Volume 11 - Issue 60
/ December 2022
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DOI: https://doi.org/10.34069/AI/2022.60.12.12
How to Cite:
Khyzhniak, Y., Chyzh, S., Kucherov, D., Tsybulskyi, D., & Shyshatska, Y. (2022). Problematic aspects of the conduct of covert
investigative (search) actions by the authorized criminal police officers within the framework of criminal investigation. Amazonia
Investiga, 11(60), 121-128. https://doi.org/10.34069/AI/2022.60.12.12
Problematic aspects of the conduct of covert investigative (search)
actions by the authorized criminal police officers within the framework
of criminal investigation
Проблемні аспекти проведення негласних слідчих (розшукових) дій
уповноваженими працівниками кримінальної поліції в межах оперативно-
розшукового забезпечення кримінального провадження
Received: November 28, 2022 Accepted: December 30, 2022
Written by:
Yevhen Khyzhniak52
https://orcid.org/0000-0001-8263-0353
Sergii Chyzh53
https://orcid.org/0000-0003-4296-3246
Dmytro Kucherov54
https://orcid.org/0000-0002-8721-8592
Dmytro Tsybulskyi55
https://orcid.org/0000-0002-5038-2014
Yuliia Shyshatska56
https://orcid.org/0000-0002-4731-5769
Abstract
The purpose of the article is to identify and
analyze the problematic aspects of conducting
covert investigative (search) actions by
authorized criminal police officers within the
framework of criminal investigation. Research
methodology includes the use of general
scientific and special methods of scientific
knowledge, including general and specific ones:
historical and legal, system and structural, formal
and logical, analysis, content analysis, logical.
Results of the research. The essence of the
concept of "operational and investigative
support" was defined. The content of tacit
activities related to interference in private
communication and other undercover actions
was characterized. Practical meaning.
Problematic aspects of performing of covert
investigative (search) actions by criminal police
officers during operational and investigative
support for criminal proceedings were
52
Ph.D. in Law, Associate Professor, Dean of the Faculty of Advocacy and Anti-Corruption Activities of the National University
"Odessa Law Academy", Ukraine.
53
Ph.D in Law, Senior Lecturer of the Department of Preinvestigative and Detective activity of Kharkiv National University of Internal
Affairs, Ukraine.
54
Postgraduate Student of the Department of Criminal Procedure, Detective and Operational Activities of the National University
«Odesa Law Academy», Ukraine.
55
Postgraduate Student of the Department of Criminalistics of the National University "Odessa Law Academy", Ukraine.
56
Postgraduate Student of the Department of Criminal Procedure, Detective and Operational Activities of the National University
«Odesa Law Academy», Ukraine.
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highlighted. Value/originality. A conclusion was
made on the need to improve Article 246 of the
Criminal Procedure Code of Ukraine concerning
the category of persons who can be involved in
conducting tacit measures and identification of
authorized operational units, which are entitled
to perform such activities.
Keywords: covert investigative (search) actions;
criminal investigation; operative and
investigative measures; police officers; pre-trial
investigation; support.
Introduction
The institution of covert investigative (search)
actions is quite relevant from the point of view of
both science and practice. The scientists devote
their research to the its study, as there are many
problematic issues regarding the procedure and
grounds for conducting covert investigative
(search) actions, obtaining the results of their
conduct, and using the last to prove the guilt of
the person.
Effective detection and investigation of criminal
offenses is impossible without close cooperation
of different divisions (bodies) of the National
Police of Ukraine. It is understood as joint
service activities provided for in the legislation in
force, aimed at complete, comprehensive and
prompt investigation of criminal offenses. Most
often, such interaction occurs between the
pretrial investigation body and criminal police
officers (operational officers).
The goal of such interaction is a constant
"contact" during pre-trial investigation of
criminal offenses, which is reflected in the
operational investigation of criminal
proceedings. As in all activities, criminal police
officers often face various problematic issues
related to conducting covert investigative
(search) actions during criminal proceedings.
Thus, the question of whether operatives are
authorized to perform such measures and what
acute aspects arise during their implementation
by the specified category of the National Police
body is particularly relevant at the moment.
Consequently, the aim of the article is to identify
and analyze pressing matters of conducting
secret activities by empowered criminal police
officers within the framework of criminal
investigation.
Literature Review
The issue under consideration was studied, inter
alia, by Khaberyush in his scientific work
"Operational-search support of combating to
contraband in Ukraine" (2016). On the basis of
theory, legal regulation, and practical activity,
the author highlighted certain issues regarding
the improvement of operational investigative
activities by the employees of operational units,
their interaction with other units, as well as the
use of operational equipment.
It is also worth paying attention to the article by
Mailunts "Operational units as subjects of
criminal prosecution" (2018). The researcher
noted that the participation of employees of
operational units in criminal proceedings cannot
be limited to the execution of the investigator’s
orders, and proposed that the terms of reference
of operatives be expanded, taking into account
the current legal rules.
Linenko (2022), using the example of the
analysis of theoretical and legal foundations for
the search for a suspect, reveals the quality of
criminal police organization through the prism of
various legislative innovations, reforming the
judicial system and related legal institutions, etc.
According to Pcholkin (2022), operational
investigative support in the structure of the
methodology of investigations of criminal
offenses is an integral tool of the activities of pre-
trial investigation bodies. Thus, among the
elements of the forensic tool, he includes the
peculiarities of the detection of criminal offenses,
interaction of the investigator with the bodies
performing operational and investigative
measures and covert investigative (search)
actions, the organization of overcoming
counteraction to investigation and other
elements, which traditionally relate to criminal
Khyzhniak, Y., Chyzh, S., Kucherov, D., Tsybulskyi, D., Shyshatska, Y. / Volume 11 - Issue 60: 121-128 / December, 2022
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investigation in the theory of operational and
investigative activity.
It is clear that the scope of operational research
covers a significant number of scientific works
by a number of scholars. However, as Tarasenko
et al., (2021, p. 106) correctly point out,
nowadays, scientists are only trying to balance
the possibilities of investigation (search)
measures with operational and search activities
within a fundamentally new model of criminal
justice. Because of the constant improvement of
the legislation, controversial issues in practice,
problematic aspects of conducting covert
investigative (search) actions by authorized
criminal police officers within operational and
investigative support require comprehensive
study in view of the rules of the current
legislation, selected gaps in the law on
operational authority and solving the tasks of
criminal proceedings without violating the
fundamental principle – the rule of law.
Methodology
Scientific methods are chosen in view of the set
goal, taking into account the object and subject
matter of the study. In particular, general
scientific methods (observation, description,
comparison, classification) were used to
determine the legal categories, characterizing
criminal proceedings and the performance of
covert investigative (search) actions. Historical
and legal approach helped to study the
development of the institution of tacit measures.
System and structural measures made it possible
to highlight two types of secret activities –
related to interference in private communication
and other types of covert investigative (search)
actions not related to it.
Formal and logical, as well as dogmatic methods
were applied in the study of the legislation,
governing the institution under consideration, the
practice of its application, the views of scientists
on certain issues included in the subject matter of
the research, and respect for the rights and
legitimate interests of the persons on whom they
are produced.
With the help of the analysis method the
procedure for implementing, recording and
applying undercover measures was considered.
Content analysis approach was used in the
interpretation of the relevant legal instruments
and views of scholars, who examined
problematic aspects of the conduct of covert
investigative (search) actions by the police.
Logical method was applied in summing up the
research results and the need to amend current
legislation, in particular, Article 246 of the
Criminal Procedure Code of Ukraine.
Results and Discussion
Operational and investigative support for pre-
trial investigation of a criminal offense occupies
a special place in the criminal justice system and
is implemented in accordance with the rules of
the current legislation, in particular the Code of
Criminal Procedure of Ukraine and the Law "On
operative investigative activity" and is a very
relevant topic for study both from the perspective
of science and practice.
The word "support" is interpreted as "the creation
of reliable conditions for the implementation of
something", in our case – establishment of
credible conditions for conducting covert
investigative (search) actions in criminal
proceedings. That is, effective disclosure of
criminal offenses occurs as a result of
coordinated and consistent activity of
investigative and operational units, which is
expressed in the timely implementation of
operational and investigative measures.
As Podobnyi (2021, p. 222) notes, "operational
and investigative support for criminal
proceedings is a system of measures, mostly of
secret nature, carried out in a qualified manner by
operative units under the leadership of the
investigator and prosecutor at the stages of pre-
trial investigation and trial with the aim of: 1)
creating optimal conditions for comprehensive
and objective investigation process; 2)
termination or neutralization of the of the
organized criminal group members’ obstruction
to the implementation of the law enforcement
function of the State and justice; 3) ensuring
safety of participants in criminal proceedings".
According to Pcholkin (2019, p. 259),
operational and investigative measures can be
considered as the system of such actions along
with covert investigative (search) actions aimed
at creating optimal conditions for detecting
crimes and performing complete and objective
evidence process; overcoming obstruction to
investigation; performing function of protection
(security) of participants in the criminal process;
guaranteeing the principle of the inevitability of
accountability.
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We agree with the definitions provided by the
specified scientists, and, in turn, are of the view
that operational and investigative support for
criminal proceedings is also expressed in:
providing evidence obtained expeditiously to
facilitate an objective assessment of the
testimony of the participants in the criminal
proceedings; establishing proper tactics for
conducting procedural actions; identifying
necessary operational combinations; conduct a
rapid verification of existing evidence, as well as
direct participation of criminal police officers
(operational officers) in the preparation and
performing covert investigative (search) actions,
which is extremely important for the legality,
admissibility, and sufficiency of evidence in
criminal proceedings, in particular in relation to
the investigation of serious and especially serious
crimes.
According to Udalova, Savytskyi, Rozhnova and
Ilieva (2015, p. 15), covert investigative (search)
actions are a type of investigative (search)
actions, information on the facts and methods of
conducting which cannot be disclosed, aimed at
data collection, verification or research in
specific criminal proceedings and which are
carried out in cases of extreme necessity, when
information on the crime or the perpetrator
cannot be obtained in any other way.
Sergeeva (2016, p. 94) defines covert
investigative (search) actions as measures
consisting of a set of search and cognitive,
investigative and evidentiary techniques,
information on the facts and methods of
conducting which cannot be disclosed, which are
carried out by the entity authorized by the
criminal procedural law for the purpose of
identifying and securing factual data and
information on their sources for obtaining
evidence in criminal proceedings and their
verification.
Ivanenko (2013) points out that such actions are
a type of investigative (search) actions, the
procedure for which is established by the
procedural law, have cognitive orientation,
significantly affect the rights and legitimate
interests of persons, are ensured by State
coercion where necessary and are hidden from
persons not involved in the criminal proceedings.
The legislator divides covert investigative
(search) actions into two types – related to
interference in private communication and other
types of covert investigative (search) actions not
related to it. The first category (related to
interference) includes: audio and video
monitoring of persons (Article 260 of the
Criminal Code of Ukraine) (Law of Ukraine
No. 2465-IX, 2012); arrest, inspection and
seizure of correspondence (Articles 261 – 262);
collecting information from transport
telecommunication networks (Article 263);
collecting information from electronic
information systems (Article 264).
Other types of covert investigative (search)
actions include: inspecting publicly inaccessible
places, home or any other property of a person
(Article 267 of the Criminal Procedure Code of
Ukraine) (Law of Ukraine No. 2465-IX, 2012);
establishing the location of a radio-electronic
device (Article 268); surveillance of an
individual, an object or a place (Article 269);
monitoring of bank accounts (Article 269-1);
audio and video monitoring of a place (Article
270); control of the commission of a crime
(Article 271); covertly obtaining samples which
are necessary for comparative analysis (Article
274), etc.
Among the features inherent in covert
investigative (search) actions, we can highlight
the following:
− the decision is taken by the investigator, the
prosecutor, and in some cases, the
investigating judge;
− are conducted exclusively in criminal
proceedings regarding serious or especially
serious crimes;
− there is a clear deadline;
− related to the restriction of human rights and
freedoms;
− are not subject to disclosure;
− are carried out using operational and
operational and technical means.
Besides, for covert investigative (search) actions,
except for the above-mentioned particulars,
determining factor is their lack of visibility
(concealment) from persons not participating in
them, including subjects in relation to whom they
are conducted (Kudinov et al., 2013, p. 7).
Sherudylo (2018, p. 30), for example, distributes
covert investigative (search) actions according to
the following criteria:
− depending on the possibility of interference
in private communication: interference is
carried out/it is carried out without
interference;
− depending on the severity of the crime –
serious/especially serious;
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− depending on the official who grants the
sanction: investigating
judge/prosecutor/prosecutor or investigator;
− depending on the type of information
received – information of verbal
origin/objects or documents;
− related to confidential cooperation;
− depending on the type of evidence –
documents/material evidence.
In general, we support this position of the
scientist, but believe that the criteria of «type of
information» and «type of evidence» should be
merged. In our opinion, these are identical
concepts (in the specified context) uniting the
same groups of requested information - evidence
in criminal proceedings, which can be in the form
of information (secured through a chosen tacit
investigative (search) action), documents or
physical evidence, received during or as a result
of such actions.
Thus, the studied measures are a type of
investigative (search) actions, information on the
facts and methods of conducting which cannot be
disclosed except in cases provided for by the
Code of Criminal Procedure of Ukraine (Law of
Ukraine No. 2465-IX, 2012). The legal grounds
and procedure for conducting these actions are
enshrined in Chapter 21 of this Code.
We support the opinion by Sherudylo (2018,
pp. 28-29), who emphasizes that covert
investigative (search) actions cannot be called
operational and investigative activities, since
these two concepts are of different legal nature.
The procedure for conducting the first type of
measures is established by the Criminal
Procedure Code of Ukraine, not the Law "On
operational and investigative activities".
We also agree with the view by Poltavskyi (2014,
p. 108), who points out that operational and
investigative activity was never a procedural
activity, and accordingly, the information
obtained with its help, for example, on the person
involved in the crime, it was necessary to
«legalize» in order, determined by the criminal
procedural law in force at the time.
Therefore, the grounds and procedure for
conducting investigative (search) actions (which
include covert ones) are regulated by the criminal
procedural rules, and operational and
investigative measures are governed by the
relevant Law of Ukraine No. 1882-IX (1992). It
is not entirely correct to note that the latter have
been enshrined in the Criminal Procedure Code
of Ukraine, since covert investigative (search)
actions are a type of investigative activities as a
means of evidence formation in criminal
proceedings. By their legal nature, they are
criminal procedural operations, the form of
proceedings of which differs from the procedure
for conducting operational and investigative
measures.
Thus, the decision to conduct covert investigative
(search) actions is taken by the investigator, the
prosecutor, and in the cases provided by law – by
the investigating judge at the request of the
prosecutor or the investigator agreed with the
prosecutor. The investigator is obliged to inform
the prosecutor about the decision to perform
certain tacit activities and the results obtained.
The prosecutor has the right to prohibit the
conduct or cease the further implementation of
covert actions.
An investigator conducting pre-trial
investigation of a criminal offense has the right
to undertake covert investigative (search)
measures, or on his behalf – authorized
operational units of the National Police and other
bodies. However, in practice, there are still
problematic aspects related to the conduct of
such activities by operatives, so we suggest
considering them.
The first aspect we would like to draw attention
to is the legislator’s vague definition of persons
involved in performing such measures. Thus,
Article 246 of the Criminal Procedure Code of
Ukraine (Law of Ukraine No. 2465-IX, 2012)
defines authorized criminal intelligence units of
the National Police, security agencies, the
National Anti-Corruption Bureau of Ukraine, the
State Bureau of Investigations, and authorities
supervising compliance with tax and customs
legislation , bodies, penitentiary institutions and
pre-trial detention centres of the State
Penitentiary Service of Ukraine, bodies of the
State Border Guard Service of Ukraine as those
that shall have the right to conduct covert
investigative (search) actions, without specifying
which ones – criminal police, special police,
intelligence.
On the other hand, it is clearly stated in the Law
of Ukraine No. 1882-IX (1992) that operational
and investigative activities are carried out by yje
operational units of the National Police – units of
the criminal and special police, in particular,
units of other bodies are also specified.
We believe that covert investigative (search)
actions and operational and investigative
activities, clearly, are of common legal nature,
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but distinguished by the subject composition, the
moment of implementation, legal regulation.
Therefore, we consider it necessary to clearly
indicate the specific divisions of the National
Police bodies that are entitled to conduct tacit
actions, because this is one of the most important
factors of an impartial and complete
investigation of a criminal offence and just the
specified Code regulates the procedure and legal
grounds for conducting these activities.
Besides, the same article provides for including
other persons in performing tacit actions by the
decision of the investigator or prosecutor; which
other persons the legislator means is
incomprehensible. Clearly, in practice, there are
cases of involvement of various categories of
persons by the employees of operational units in
individual covert investigative (search) actions,
for example, control over the commission of
crime, special task of detecting criminal activities
of an organized group or criminal organization,
etc., but there are no clear rules in this case.
For example, Sokolov (2022, p. 132) cites the
following circle of actors, who can be involved
in the performance of tacit activities, namely:
employees of operational or operational and
technical divisions of law enforcement agencies,
specialists, translators, individual citizens,
persons who cooperate with operational
subdivisions on a confidential basis, etc. The
author also supports the position regarding the
involvement in individual cases of the applicant,
victim, witness, etc., in covert investigative
(search) actions.
In this context, interesting is the issue of
attraction of a minor in tacit activities. Currently,
juvenile delinquency is a fairly common
phenomenon, for example, the creation of
various criminal groups with their participation.
The purpose of covert investigative (search)
actions is to collect necessary evidence in
criminal proceedings in a "hidden" way. In such
cases, it will be more effective to involve the
juvenile in performing tacit measures. This issue
is not regulated by the current legislation, and
therefore requires more detailed study.
The next problematic aspect of covert
investigative (search) actions carried out by
operatives is the use of the results of these
activities as evidence. In the categories of
criminal offences such as illicit traffic in narcotic
drugs, corruption offenses, criminal offenses
against national security, the direct source of
evidence is precisely the results of tacit
measures. But these data are not always
recognized by the court as admissible due to
failure to comply with protocol procedures.
In accordance with Article 252 of the Criminal
Procedure Code of Ukraine (Law of Ukraine No.
2465-IX, 2012), recording of the progress and
findings of covert investigative (detective)
actions shall comply with the general rules for
recording criminal proceedings provided for by
this Code. After the conduct of a covert
investigative (detective) action, a record shall be
drawn up, with attachments thereto, where
necessary. Information about persons who
conducted covert investigative (detective)
actions, or were involved in the conduct thereof,
where security measures are applied to them,
may be indicated, provide that confidentiality of
personal data relating to them is protected in
accordance with the procedure established by
law. The conduct of covert investigative
(detective) actions may be recorded with special
technical and other means.
The protocol on the course and results of covert
investigative (search) action (or its stages) is
drawn up by the investigator, if it is conducted
with his (her) direct participation, in other cases
– by the authorized employee of the operational
unit, should comply with the general rules for
recording criminal proceedings. Other cases are
those in which surveillance materials were used
as reasons and grounds for initiating pre-trial
investigation; assignment to conduct an
unspoken investigative (search) action, as a rule,
shall be made available to the operational unit
that detected the offence, but its authority is taken
into account (Order No.
114/1042/516/1199/936/1687/5, 2012).
The decision of the investigating judge on
permission to conduct covert investigative
(search) action or the resolution of the
investigator, prosecutor on the implementation of
this operation is attached to the directive of the
investigator, prosecutor. If several operative
units are involved in the conduct of tacit activity,
drawing up the protocol is entrusted to the unit
defined by the head of the body as the main one.
Employees of operative units – performers of
covert investigative (search) actions – should
take necessary measures to ensure the
preservation and integrity of the received
materials (protection against unauthorized
interference, deformation, demagnetization,
discoloration, erasure, etc.) before handing them
over to the prosecutor.
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In case of implementing security measures
against employees of operative units who
conducted tacit activities or were involved in
their exercise, the record of these persons shall be
kept confidential in a manner determined by the
legislation (Order No.
114/1042/516/1199/936/1687/5, 2012).
Having analyzed the above, we came to the
following conclusions: 1) the protocol must be
drawn up by an employee of the operational unit
that conducted covert investigative (search)
action and who was specifically charged with; 2)
the order to conduct this activity should be in the
criminal proceedings and provided to the parties
when opening the materials of the criminal
proceedings on the basis of Article 290 of the
Criminal Procedure Code of Ukraine (Law of
Ukraine No. 2465-IX, 2012), as it serves as
documentary evidence of the authority to draw
up the records of tacit measures by the operative
unit employee; 3) appendices to the protocol on
secret investigative (search) actions should be
properly constructed, labelled and preserved
(Mokhonko, 2020, p.218).
Failure to comply with these rules can lead to
"destruction" of evidence, which is confirmed by
relevant practice. Thus, the Kramatorsk City
Court of the Donetsk region (Right No.
1-kp/234/102/19, 2019) noted the following:
« the court comes to the conclusion that the
protocols provided by the prosecution, obtained
by the application of technical means are not
protocols for recording the progress and results
of covert investigative (search) actions, the
registration of which is provided for by the
requirements of Article 252 of the Criminal
Procedure Code of Ukraine. They do not include
any information about where, at what time, and
what kind of tacit actions were conducted in
criminal proceedings, who performed them and
who participated in their performance; there is no
descriptive part with information on the sequence
of secret measures, on the data obtained as a
result of their conduct, including discovered
and/or provided items and documents; there is no
final piece with information on carriers produced
during covert investigative (search) actions and
the method of their identification, technical
means used and information for their
identification, reports on familiarization of
participants with the contents of the protocols.
Therefore, properly formalized investigator’s
instructions to conduct covert investigative
(search) actions to the operative unit remains a
problematic issue. We believe that it is necessary
to conduct clarifications or training with
investigators and explain the correct procedure
for submitting and internally filling out orders to
operational units for conducting undercover
investigative (search) actions.
Conclusions
Analyzed the above, we came to the conclusion
that the rules of the criminal procedural
legislation, which provide for the grounds and
procedure for conducting covert investigative
(search) actions, require additional regulation.
This concerns the improvement, change or
amending current articles, in particular,
supplement to Part 6, Article 246 of the Code of
Criminal Procedure with regard to authorized
operational units with the identification of
criminal and special police units in accordance
with judicial practice.
We also consider it necessary to define in
paragraph 6 the list of persons belonging to the
category of other persons, who may be involved
in conduct of covert investigative (search)
actions. This is important to bring certain norms
into compliance with the requirements for the
proper conduct tacit measures within the scope of
operative and investigative support for criminal
proceedings. Compliance with the rules of the
current legislation, human rights, which are
violated during the implementation of the
relevant activities, will ensure the prevention of
problematic aspects by the authorized employees
of the criminal police during operational and
investigative support for criminal proceedings.
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