On certain issues of regulation of investigating judge`s authority to consideration of applications for temporary access to objects and documents

Abstract

Temporary access to objects and documents is one of the most common means of ensuring criminal proceedings and an important means of gathering evidence. This measure of criminal proceedings represents the undoubtedly basic instrument for the formation and consolidation of evidence, which will further serve as a legal basis for the promulgation of a correct and well-founded procedural decision by the investigator or prosecutor during a full, complete and impartial pre-trial investigation. The author of the article is intended to investigate the problematic issues of regulation of investigating judge`s authority to consideration of applications for temporary access to objects and documents. Attention is drawn to the lack of legislative regulation of the powers of the investigating judge to issue a decision on the return of the petition and the refusal to grant it in the case of non-compliance of such petition with the requirements of criminal procedural legislation. The decision of the investigating judge, type of which is not provided by the CPC of Ukraine, is contrary to the principle of the lawfulness of criminal proceedings, adversely affects the effective protection of the rights, freedoms and interests of the person in the framework of criminal proceedings, the effectiveness of criminal procedural evidence and the formation of unambiguous legal practice. The author concludes that in order to improve the institute of temporary access to objects and documents, the following changes should be made to the CPC of Ukraine: - Art. 163 as a rule on the procedural possibility of an investigating judge to return to a party of criminal proceedings a request for temporary access to things and documents, if it is filed without observing the requirements of Art. 160 CPC of Ukraine; - the norm of refusal to grant such a request in case of non-compliance with the requirements of Part 5 of Art. 163 of the CPC of Ukraine. In view of the above, the investigating judge will be empowered by law to rule on the results of the consideration of the request for temporary access to the things and documents of the decision on: 1) satisfaction of the request, 2) refusal to grant the request, 3) return of the request. The proposed amendments to the current CPC of Ukraine in terms of improving the procedure of temporary access to things and documents as a means of criminal procedural evidence, in particular the introduction of alternative types of rulings, will certainly increase the effectiveness of criminal procedural evidence, as well as ensure the effectiveness of the functioning of the investigative institution.