ARTICLE 246 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE AS A KEY PROVISION OF THE INSTITUTION OF COVERT INVESTIGATIVE ACTIONS: GROUNDS, LIMITATIONS, SAFEGUARDS

Abstract

The article is devoted to a scholarly and legal analysis of the grounds and limits for conducting covert investigative (search) actions (CISA) in criminal proceedings, with particular emphasis on Article 246 of the Criminal Procedure Code of Ukraine. It is argued that this provision establishes the substantive conditions for the admissibility of CISA as requirements of: necessity – when obtaining information by other means is impossible; and proportionality –where the most intensive forms of rights restrictions are permitted primarily in proceedings concerning serious and especially serious crimes. Such a construction performs a preventive function and imposes on the prosecution the obligation to prove that the chosen measure is minimally sufficient to achieve the objectives of the investigation. The connection between the restrictions set forth in Part 2 of Article 246 CPC of Ukraine and the classification of criminal offenses in Article 12 of the Criminal Code of Ukraine is identified, ensuring proportionality of rights restrictions depending on the degree of social danger of the act. It is emphasized that in proceedings concerning criminal misdemeanors and non-serious crimes, certain CISA may be applied subject to heightened standards of necessity justification and narrowly defined limits of interference; special regulation under Article 300 CPC of Ukraine is also taken into account, which expressly permits the conduct of CISA provided for in Article 268 CPC during pre-trial investigation of criminal misdemeanors. The procedural safeguards of Chapter 21 CPC of Ukraine are analyzed (judicial control, requirements for motions and rulings, time limits, procedures for recording, preserving, and using results), as well as the exception for urgent cases under Article 250 CPC of Ukraine, which requires subsequent referral to an investigating judge. Particular attention is paid to the standards of the European Court of Human Rights regarding the lawfulness of covert surveillance, the requirements of legal certainty, and effective safeguards against uncontrolled restrictions of rights. The legal nature of the CISA provided for in Article 268 CPC of Ukraine (determining the location of radio equipment/electronic devices) is separately examined, and the possibility of its application in proceedings concerning non-serious crimes is substantiated, provided necessity is demonstrated, clear limits are defined, and judicial control is observed. It is concluded that the proper application of Article 246 CPC of Ukraine is a key prerequisite for the admissibility of evidence and a practical indicator of the effectiveness of the human rights protection function of criminal procedure.