SEARCH OF A PERSON IN CRIMINAL PROCEEDINGS: ISSUES OF LEGAL REGULATION AND PRACTICAL APPLICATION

Abstract

The article examines the problem of legal regulation of personal search of a detained person in criminal proceedings of Ukraine. It is noted that the current legislation only partially regulates the procedure for conducting this investigative action, which leads to contradictions between the law and practice, creates risks of human rights violations and makes it difficult to prove the legality of the obtained evidence. Particular attention is paid to the role of judicial interpretation, which partially compensates for legislative gaps and adapts the law to realities, in particular taking into account the sudden and dynamic nature of detention. Two main situations of conducting a personal search were analyzed: during the detention of a person under Art. 208 of the Criminal Procedure Code of Ukraine and during a search of a person's home or other property in accordance with Part 5 of Art. 236 of the Criminal Procedure Code of Ukraine. The specifics of the search of a detained person are revealed, which consists in the possibility of conducting it without the prior permission of the investigating judge, without recording it using technical means and drawing up a separate search protocol. The practice of the Supreme Court, which recognizes a personal search as an integral part of detention and allows establishing the circumstances of its conduct not only by the detention protocol, but also by other evidence, is considered. Emphasis is placed on the inadmissibility of replacing a personal search with an inspection of the scene, which may lead to the recognition of evidence as inadmissible. The differences between personal search and surface inspection in accordance with the Law of Ukraine «On the National Police» were also analyzed. A conclusion was made about the need for a clear and systematic legislative regulation of the procedure for conducting a personal search, taking into account its specifics, which will contribute to increasing legal certainty, ensuring proper procedural control, protecting human rights and preventing abuses by law enforcement officers.