Detention by an Authorized Official in a Person’s Home or other Property: Current Issues of Theory and Practice

Abstract

The purpose of the article is to analyze problematic issues of the criminal procedure for detention in 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 scientists, the provisions of the Criminal Procedure Code (CPC) of Ukraine, as well as the practice of its application. The scientific novelty of the article is that it highlights the features of detention of a person who is in the home or other property of a person, formulates recommendations for the application of the relevant provisions of the CPC of Ukraine in practice, and identifies areas for improving criminal procedural law. actions. Conclusions. Based on the results of the study, a set of proposals aimed at improving the provisions of the CPC of Ukraine regulating the procedure for detention in housing or other property and the practice of their use, in particular: 1) necessary grounds for both intrusion and detention in a person’s home or other property, as in fact these are different procedural actions;
2) in case of detention by an authorized official without the decision of the investigating judge, court, physical detention or detention by order may be carried out by all police officers in accordance with the Law of Ukraine «On National Police», as well as other law enforcement officers. drawing up a detention report, only the investigator, prosecutor has the right (given the above provisions of the CPC of Ukraine need clarification by a clear delineation of detention, which includes the full range of measures from physical detention to drawing up a protocol and physical detention); 3) Art. 208 of the CPC of Ukraine should provide for the provision that physical detention or detention by order may be carried out by law enforcement officers, in the presence of legal grounds specified in Part 1 of Art. 208 of the CPC of Ukraine, and procedurally formalize these actions can only authorized officials - investigator, prosecutor; 4) at the legislative level, it is advisable to provide for the possibility of detention on suspicion of committing a criminal offense before entering data into the Unified Registry of Investigations; 5) it is necessary to expand the emergencies provided for in Part.3 of Art. 233 of the CPC of Ukraine, by granting the right to the investigator, investigator, prosecutor to decide on the decision of the investigating judge to enter the home or other property of a person in urgent cases involving detention of a suspect, accused in order to get him to participate in the consideration of the request for the application of a measure of restraint in the form of detention.

Keywords: detention; authorized official; home; other property of the person; intrusion into a person’s home or other property; search; inspection; investigator.