The Order of Entrance to the House or other Property of a Person: Current Issues of Theory and Practice

Abstract

The purpose of the article is to analyze the problematic issues of the criminal procedure for penetration into housing or other property of a person and the formation on this basis of scientifically sound recommendations for improving existing legislation and practice of its application. Methodology. The article uses a set of scientific methods, namely: terminological, system-structural, formal-logical, comparative-legal. The theoretical basis of the study are the works of Ukrainian and foreign scientists, the provisions of the Criminal Procedure Code of Ukraine, as well as the practice of its application. The scientific novelty of the article is that it: 1) reveals the features of the CPC of Ukraine procedures for penetration into housing or other property of a person (with the voluntary consent of the person who owns or uses them, based on the decision of the investigating judge; urgent cases with the subsequent receipt of such decision after penetration into housing or other possession of the person); 2) recommendations for their application in practice are formulated, as well as areas for improvement are identified. Conclusions. According to the results of the study, a number of proposals aimed at improving the provisions of the CPC of Ukraine governing the procedures for penetration into housing or other property of a person, and the practice of their application, in particular: 1) formulated recommendations for obtaining and procedural registration of voluntary consent to such penetration; 2) it is established that intrusion with voluntary consent is possible during the detention by an authorized official and inspection of the scene; 3) it is argued that today the recognition of the protocol of the scene, conducted with the voluntary consent of the person who owns housing or other property, admissible evidence depends on the results of the court’s interpretation of the relevant provisions of the CPC of Ukraine (this situation is a favorable environment for corruption); 4) the position of the Supreme Court is recognized as unfounded, according to which if the investigating judge issues a decision to grant a certain investigative permit to conduct a search, the search should be conducted only by the investigator, who has no right to entrust this investigative (search) action to operatives; 5) it is proposed to expand the list of urgent cases for inspection or search of housing or other property of a person or clearly regulate in the CPC of Ukraine the possibility of inspection or search of housing or other property of a person with the voluntary consent of the owner or user and without further appeal to the court. obtaining an appropriate resolution; 6) a proposal was made to supplement the CPC of Ukraine with provisions that would allow not only inspection and search, but also other investigative (search) actions in a person’s home or other property (for example, an investigative experiment in a person’s home or other property).

Keywords: entrance to the house or other property of a person; search; review; detention of a person; investigative (search) actions; investigator.