Covert Questioning as an Instrument of Pre-Trial Investigation of Crimes
Abstract
The purpose of this study is to identify and resolve legal issues relating to the use of covert questioning of individuals within the framework of pre-trial investigation of crimes. To achieve this goal, both empirical and theoretical methods of research were used. Мethodology. The empirical basis of this paper is the results of questioning of 312 cover police operatives of the National Police of Ukraine (active and retired) who have considerable experience in using covert questioning during pre-trial investigation of crimes; materials of 249 criminal proceedings (Ukraine,
2014–2019), where according to unofficial data covert questioning was used; own experience of the authors of conducting covert questioning within the framework of pre-trial investigation of crimes; a survey of 4000 people of different ages (from 18 to 67 years old) with different social status regarding their attitude towards the use of covert questioning within the framework of pre-trial investigation of crimes. Theoretical basis for the study was the following: the results of research on the content of covert questioning; a possibility of using certain methods and means of criminal intelligence and covert investigation of crimes; the results of the analysis of the legislation of post-Soviet countries. Scientific novelty. In this study, it has been shown that in many post-Soviet countries, without legislative consolidation, covert questioning is used actively and with much effect. It is substantiated that if such a questioning is not legalized
(or even forbidden), law enforcement officers will still use it due to high efficiency for obtaining the necessary information. In this case, the use of covert questioning will be impossible to control, which creates conditions for abuse. Legitimation of covert questioning with the criminal procedural law enables to put this activity under control and minimize social harm from it. Conclusions. 1. Covert questioning is an action which is carried out by the stuff of the police (and other law enforcement bodies) with concealment of personal data and (or) professional membership, and consists of obtaining the information necessary for prevention of crimes, by making a dialogue with persons questioned (oral or written; direct or indirect, with the use of technical communications devices or without it). 2. The use of covert questioning in pre-trial investigation of crimes is possible and expedient. Inevitable social harm from its application in the form of humiliation of dignity of the questioned (because of deceit) is insignificant in comparison with its social benefit which becomes possible from its application (execution of tasks of criminal legal proceedings, establishing of location of the wanted persons, providing compensation of harm caused by a criminal offence, prevention of crimes which could be committed and their heavy consequences, etc.). Causing possible (probable) harm from the use of covert questioning (damage to the reputation of the interrogated person in case of disclosure of the fact and content of questioning, danger to his life and health, damage to the reputation of the organizations from which the documents of operative covering are applied) can be minimized and, in general, liquidated at all in case of introduction of precise procedure and an effective control behind realization of covert questioning. 3. Covert questioning is subject to legislative normalization not as separate covert questioning action, but as one of the measures of operative (intelligence) support of criminal proceeding. It needs to be established in criminal-procedural codes on such a model sample: covert questioning is interviewing carried out with concealment of its purpose, and also with concealment of a professional membership and personal data of persons who perform it. It is carried out only for obtaining information necessary for taking procedural, organizational and tactical decisions in criminal proceeding. The information received by the results of covert questioning cannot be used in criminal procedural proving.
Keywords: covert questioning; police; pre-trial investigation; crime; criminal procedure.
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