JUDICIAL OVERSIGHT IN THE CONDUCT OF PRE-TRIAL INVESTIGATIONS AND SPECIAL INVESTIGATIONS DURING THE GATHERING OF EVIDENCE IN CORRUPTION-RELATED CRIMINAL OFFENSES

Abstract

The article notes that the greatest deviation from standards of justice is observed in the issue of authorization by an investigating judge of operational-investigative measures and covert investigative (search) actions. It highlights problematic issues regarding the implementation of judicial oversight mechanisms during the conduct of operational-investigative measures and covert investigative (search) actions when documenting facts of corruption-related criminal offenses, particularly the fact that legal terms and concepts are used that are ambiguous or lack a statutory basis; evaluative concepts, the meaning of which is determined not by law or a regulatory act, but by the legal awareness and legal culture of the investigating judge, for example, when assessing the sufficiency of grounds for ordering the operational measures in question and granting permission to conduct operational-investigative measures or covert investigative (search) actions, important issues are left to the subjective discretion of the judge, which results in inadequate regulatory control over judicial discretion, an imbalance toward an excessive expansion of the investigating judge’s subjective discretion, and the absence of a legislative requirement for the investigating judge to request additional materials from the pre-trial investigation body (prosecutor) to verify the grounds and justifications for ordering covert investigative (search) actions. It is proposed to expand and clarify the procedure by which an investigating judge reviews a motion by an investigator or prosecutor for authorization to conduct covert investigative (search) activities, specifically by establishing a step-by-step mechanism whereby the investigative body and the prosecutor, at the request of the investigating judge, provide additional documents to verify the necessity, grounds, and expected results of covert investigative (search) actions; to introduce into criminal procedural law criteria for distinguishing between operational-search measures and covert investigative (search) actions; and to provide for a step-by-step procedure for an investigating judge to review motions by the pre-trial investigation body and the prosecutor for authorization to conduct operational investigative measures and covert investigative (search) actions.