Is it always worth rushing slowly or some issues of urgent investigative actions

Abstract

The article reveals the features of the subsequent judicial control over the legality of the search and inspection in urgent cases under Part 3 of Article 233 of the CPC of Ukraine, in particular related to the requirement of immediate appeal to the investigating judge with a request.An attempt is made to look at the outlined problem through the prism of its understanding in judicial practice, addressing the needs of the achievements of criminal procedural science.

Based on the materials of practice: a) three approaches to the qualification of the urgency requirement are highlighted (the next day after the search; the next working day after the search; indefinite procedural deadline); b) the valid reasons for missing the deadline, which are recognized by the courts are distinguished (identification of the premises owner; inspection of the seized property; involvement of procedural managers in other law enforcement activities). As a result of critical comprehension of the found positions it is offered: a) not to consider the category “urgency” as procedural deadline; b) recognize the impossibility of calculating, omitting and renewing such a “deadline”; c) to perceive urgency as an evaluative concept. 

Due to the lack of a deadline for urgent appeal, it is recommended: 1) to amend the second sentence of part three of Art. 233 of the CPC, fixing the maximum period (“immediately, but not later than 24 hours”); 2) determine whether the requirement of urgency has been complied with, taking into account three criteria: a) the period that has elapsed since the urgent search before applying to the investigating judge; b) the seriousness of the reason that led to its duration. To do this, the following should be taken into account: the need to complete actions related to the proper documentation of urgent investigative action, the actual ability of the investigator or prosecutor to prepare a request; c) the opportunity to apply to the investigating judge in a shorter time; 3) refuse to satisfy the request for a search if the specified criteria indicate non-compliance with the requirement of urgency.