THEORETICAL, LEGAL, AND ORGANIZATIONAL FOUNDATIONS OF PRELIMINARY INVESTIGATIONS IN THE CONTEXT OF PROTECTION OF HUMAN AND CIVIL RIGHTS AND FREEDOMS

Abstract

The article is devoted to a comprehensive study of the theoretical, legal, and organizational foundations of pre-trial investigation in Ukraine through the prism of ensuring and protecting human and civil rights and freedoms—the highest social value in accordance with Article 3 of the Constitution of Ukraine.

It analyzes the constitutional foundations of criminal proceedings (Articles 8, 29–32, 55, 59, 62 of the Constitution), key provisions of the Criminal Procedure Code of Ukraine, internal regulations (in particular, Order of the Prosecutor General No. 51 of March 28, 2019), as well as the multi-level practice of the European Court of Human Rights and the Supreme Court of Ukraine. Particular attention is paid to the implementation of such fundamental guarantees as the right to liberty and personal integrity, the right to respect for private and family life, the confidentiality of communications, the right to professional legal assistance (defense) from the earliest stage of prosecution, presumption of innocence, the right to a reasonable length of proceedings, and the right to an effective, independent, and thorough investigation.

The current organizational model of pre-trial investigation is considered: the division of powers between the National Police, NABU, DBR, and SBU; the role of the prosecutor as the subject of procedural management; the functions of the investigating judge as the key guarantor of human rights at the pre-trial stage; the relationship between the procedural independence of the investigator and the supervisory powers of the heads of pre-trial investigation bodies and prosecutors.

Based on a summary of ECHR decisions (in particular, Salduz v. Turkey, Kharchenko v. Ukraine, Kaverzin v. Ukraine, Yaremenko v. Ukraine, Smirnov v. Russia, Uzun v. Germany, etc.) and Supreme Court rulings, the main systemic problems of law enforcement practice are highlighted: the predominance of formal (template) justification of risks when choosing preventive measures: insufficient individualisation and motivation of decisions on searches, arrests and temporary access:  abuse of investigation periods and prolongation of detention: overloading of investigative units and, as a result, a decline in the quality of procedural actions: problems with ensuring the right to defense at the initial stages (interrogation without a lawyer, pressure, improper recording); insufficient transparency and control of covert investigative (search) actions: the formal nature of many investigations into complaints of torture and ill-treatment.

The principle of the rule of law is analyzed separately as a system-forming criterion that requires not only formal legality, but also legal certainty, predictability, proportionality, and qualitative motivation of all procedural decisions.