Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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ppi 201502ZU4645
Vol.39 N° 69
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Recibido el 15/03/2021 Aceptado el 20/06/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 39, Nº 69 (Julio - Diciembre) 2021, 462-474
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Establishment of the institution of
covert investigation in the criminal justice
system of Ukraine
DOI: https://doi.org/10.46398/cuestpol.3969.29
Oleh Tarasenko *
Maksym Tsutskiridze **
Artem Shevchishen ***
Yuri Yermakov ****
Dmytro Mirkovets *****
Abstract
The purpose of the article is to study the formation of the covert
investigation institution in the criminal justice system of Ukraine.
The subject of research is the prerequisites for the establishment
of this institution in Ukraine. Research methods are chosen
considering the stated purpose and tasks, object, and topic of
the study. Consequently, the article uses general and specic
scientic methods. Among the results of the research, the realization of an
analysis of the international experience of operation of similar institutions
in developed countries stands out. Problematic issues of the formation of
the covert investigation institution in Ukraine are identied. In conclusion,
it is noted that Ukraine has opted for a covert investigation system, the
mechanism of which is more geared towards solving crimes - “incidents”,
when it is not necessary to hide the fact of the investigation. In terms of
the practical implications, the peculiarities of the operation of the covert
investigation institution in the criminal justice system of Ukraine are
highlighted and, based on the investigation carried out, the denition of the
perpetrators of the mentioned legal category is oered.
* Candidate of Legal Sciences, Associate Professor, Associate Professor Department of the Department
of operational and search activities of the National Academy of Internal Aairs, Ukraine. ORCID ID:
https://orcid.org/0000-0002-3179-0143. Email: k012@naiau.kiev.ua
** Doctor of Legal sciences, Associate Professor, Professor of the Department of Criminal Procedure of the
National Academy of Internal Aairs, Ukraine. ORCID ID: https://orcid.org/0000-0002-5880-8542.
Email: k007@naiau.kiev.ua
*** Doctor of Legal sciences, Associate Professor, Professor of the Department of Criminal Procedure of the
National Academy of Internal Aairs, Ukraine. ORCID ID: https://orcid.org/0000-0002-1342-6639.
Email: Krum.proces@ukr.net
**** Candidate of Legal Sciences, Associate Professor. ORCID ID: https://orcid.org/0000-0002-9400-
0604. Email: YermakovYu@ukr.net
***** Candidate of Legal Sciences, Associate Professor, Associate Professor of the Department of Public Law
Disciplines of Private Higher Education Institution «University of Modern Knowledge». ORCID ID:
https://orcid.org/0000-0003-2539-2824. Email: sekretariat@umk.edu.ua
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Vol. 39 Nº 69 (Julio - Diciembre 2021): 462-474
Keywords: concept formation; criminal justice system; undercover
investigation; covert investigation (trespassing); criminal
justice in Ukraine.
Establecimiento de la institución de investigación
encubierta en el sistema de justicia penal de Ucrania
Resumen
El propósito del artículo es estudiar la formación de la institución de
investigación encubierta en el sistema de justicia penal de Ucrania. El tema
de la investigación son los requisitos previos para el establecimiento de esta
institución en Ucrania. Los métodos de investigación se eligen teniendo
en cuenta el propósito y las tareas declaradas, el objeto y el tema del
estudio. En consecuencia, el artículo utiliza métodos cientícos generales
y especícos. Entre los resultados de la investigación destaca la realización
de un análisis de la experiencia internacional de funcionamiento de
instituciones similares en los países desarrollados. Se identican cuestiones
problemáticas de la formación de la institución de investigación encubierta
en Ucrania. Como conclusión se observa que Ucrania ha optado por un
sistema de investigación encubierta, cuyo mecanismo está más orientado a
resolver los crímenes - “incidentes”, cuando no es necesario ocultar el hecho
de la investigación. En términos de las implicaciones prácticas se destacan
las peculiaridades del funcionamiento de la institución de investigación
encubierta en el sistema de justicia penal de Ucrania y, sobre la base de la
investigación realizada, se ofrece la denición de los autores de la categoría
legal mencionada.
Palabras clave: formación de conceptos; sistema de justicia penal;
investigación encubierta; acciones de investigación
encubierta (allanamiento); justiciar penal en Ucrania.
Introduction
Crime is characterized by rapid adaptation to the protective mechanisms
of the State. Therefore, the eectiveness of detection and investigation of
criminal oenses is possible only in the case of the use of adequate means
of obtaining evidence, which leads to the use of appropriate tools, the use
of covert measures, means and methods of law enforcement. Until 2012
the existing system of criminal justice was largely based on a signicant (in
some cases) restriction of the rights and freedoms of citizens; the State, not
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Oleh Tarasenko, Maksym Tsutskiridze, Artem Shevchishen, Yuri Yermakov y Dmytro Mirkovets
Establishment of the institution of covert investigation in the criminal justice system of Ukraine
having adequate threats of levers of inuence, tried to solve the problem of
combating crime by not procedural measures (including search operations).
But the development of interstate relations, internationalization of crime,
and extraterritorial nature of criminal groups forced law enforcement
agencies of dierent countries to search for the most eective mechanisms
of cooperation in law enforcement, which necessitated the unication of
relevant legislation (Denysenko, 2017). Democratic transformations, the
State’s course towards European integration have forced to reconsider the
doctrinal approach and change the criminal procedure legislation, and the
legislation regulating operational and investigative activities. The reform
of the criminal justice system in Ukraine and the adoption of the Criminal
Procedure Code of Ukraine have established a number of new institutions
in the domestic criminal procedure legislation. Modern criminal procedure
legislation has undergone signicant changes, in particular to ensure
the rights of participants in criminal proceedings, the introduction of
adversarial proceedings, improving the collection of evidence, increasing
guarantees of privacy, expanding judicial control over restrictions
on constitutional human rights and freedoms at the stage of pre-trial
investigation (Cherniavskyi et al., 2013). There has been a transformation
of the institutions of criminal justice – operational and investigative
activities and pre-trial investigation, the functional association of which
has been consolidated in criminal proceedings as an institution of covert
investigations. Nowadays, the current criminal procedure legislation of
Ukraine is largely integrated into the European legal space of regulation of
criminal procedural legal relations. The introduction of covert investigative
(search) actions in the legal area testies to the evolution of current criminal
procedure legislation, the existence of democratic changes in the criminal
justice system of Ukraine, but the formation and development of covert
investigations remains one of the most controversial issues of the criminal
justice system.
So, the purpose of the article is to determine the peculiarities of the
formation and concept of the institution of covert investigations in the
system of criminal justice of Ukraine.
1. Methodology
Research methods are chosen taking into account the stated purpose
and tasks, object and subject matter of the study. Dialectical method as a
general method of scientic cognition helps to consider all the issues in
the dynamics, reveal their relationship and interdependence, examine the
state of scientic development of the institution of covert investigation in
the system of criminal justice of Ukraine. Historical and legal method is
applied to study establishment of the institution of covert investigation in
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the criminal justice system of Ukraine. System analyses method, as well
as formal and logical method make it possible to analyze the legal support
for the institution of covert investigation in our State. Formal and legal
method allows to reveal the powers of the actors of this activity (prosecutor,
investigator and detective). System and structural method is helpful in
identifying the types of criminal justice systems of dierent countries.
Comparative and legal method is used to compare the procedures for the
application of covert measures within criminal justice systems of some
States of the world.
2. Literature Review
The adoption of the Criminal Procedure Code of Ukraine (Law No.
4651-VI, 2010) has provoked some discussions on the introduction of
the mechanisms of operational and investigative activities (regarding the
receipt of evidentiary information in a tacit manner) in the criminal process.
Therefore, the study of the institution of covert investigations has attracted
the attention of a number of scholars, who devoted both monographic
studies and individual scientic publications to this issue. In particular,
Hahach (2017) determined the functions of procedural guidance in the
process of covert investigations. Omelianenko (2015) singled out the aspects
of the interaction between the investigators and authorized operational
units in the course of covert investigations. Pohoretskyi (2012) investigated
the introduction of the institute of covert investigations in law enforcement
practice. Salo (2018) considered the peculiarities of the powers of the head
of the pre-trial investigation agency when conducting covert investigative
(search) actions. Serhieieva (2014) dened the principles of using materials
obtained in the course of covert investigation in criminal proceedings.
Shcherbakovskyi, Stepaniuk, Kikinchuk, Oderiy and Svyrydova (2020)
studied the signicance of such measures in combating corruption oences
and came to the conclusion that quite often information that records the
circumstances of corruption acts can only be collected by interfering with
private communication, using condential cooperation, and other covert
investigative actions. Tahiiev (2015) dened the mechanism of realization
of the institution of covert investigations in the criminal process of Ukraine.
Tatarov (2016) highlighted the number of problems that may occur when
performing covert investigative (search) actions.
Dierent aspects of covert investigation were also examined by a number
of foreign scientists. For example, Shabde and Craft (1999) studied the
problem of covert video surveillance in cases of suspected child abuse and
came to the conclusion that it is justied when if it is necessary to protect
the interests of a child and if the child is at serious risk of abuse. However,
this measure can be applied only using local child protection procedures,
which will include medical, nursing, social work, and police sta.
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Establishment of the institution of covert investigation in the criminal justice system of Ukraine
Hareld (2010) stressed that the wide use of covert actions necessitates
the dialogue about their direction and governance. That is due to the fact
that nowadays it is not the only eective means to prevent crime, as the
data obtained with its help cannot be proved by witness testimony at trial.
Loftus and Goold (2012) investigated covert surveillance conducted
by the police and try to highlight some peculiarities of this activity. In
particular, the authors demonstrated how exactly police ocers manage to
be invisible in order to inltrate into suspect’s daily routine.
Loftus (2019) proved that today covert surveillance is a normal activity
in Britain, which is legally regulated and having a lot of tools in its arsenal.
As policing has become public business lately, covert measures are
increasingly important.
Thus, having studied various aspects of the use of the institution of
covert investigations, we can state that most of the scientic developments
are related to the implementation of its sample provisions; many of
them contain controversial provisions; some views are insuciently
substantiated. As a result, a conceptual model for the implementation of
the institution of covert investigations in the criminal justice system of
Ukraine has not yet been developed.
3. Results and Discussion
The introduction of the institution of covert investigations into the
criminal process was preceded by the analysis of foreign experience
in relation to the similar institutions envisaged by criminal procedure
legislation of foreign countries. Thus, such procedure was due to the fact
that enshrining the possibility of inspection and seizure of correspondence,
control of telephone conversations in certain rules of the Criminal
Procedural Code of Ukraine of 1960 (Law No. 1001-05, 1960) was
insucient to rehabilitate Soviet methods of obtaining information by
using covert measures and use them in evidence (Salo, 2018). Operational
and investigative activities, which were carried out mainly before the
pre-trial investigation, did not fully allow the application of due process,
as they were based on departmental regulations, and in most cases their
results were not considered a procedural source of evidence. The gradual
democratization of society required the changes in the criminal justice
system. The Criminal Procedural Code of Ukraine of 1960 (Law No. 1001-
05, 1960) has already provided for the use of operational and investigative
activities in the interests of criminal justice by imposing the obligation
on the criminal inquiry to take necessary operational and investigative
measures in order to identify the signs of a crime and their perpetrators
(Part 1, Article 103). Although the said Criminal Procedural Code (Law
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No. 1001-05, 1960) did not directly indicated the possibility of using the
materials of operational and investigative activities as reasons and grounds
for initiating a criminal case, conducting certain investigative actions and
making other procedural decisions, as well as for obtaining factual data that
may be evidence in a criminal case, the content of a number of its norms
(Articles 65, 66, 78, 83, 94, 103, 104, 106, 177, 178, etc.) provided for such
a possibility (Serhieieva 2014, p.153). Later, the Law of Ukraine of June 21,
2001 (Law 2670-III, 2001) amended and supplemented Art. 187, 187-1 of
the Criminal Procedural Code of Ukraine of 1960 (Law No. 1001-05, 1960);
the list of investigative actions was expanded by withdrawal of information
from communication channels, seizure of correspondence, which created
the legal basis for the application of this covert method for obtaining
information about a crime in criminal proceedings. Part 2, Art. 65 of the
CPC of Ukraine was supplemented by the provision stating that the actual
data constituting the content of the evidence is established, including
protocols with relevant annexes, drawn up by the authorized bodies as a
result of operational and investigative activities.
However, this did not change the basic approach to the fact that covert
measures were carried out exclusively by operational within operational
and investigative activities; covert pre-trial investigation was aimed
primarily at ensuring the interests of the State and created a duplication,
which the Council of Europe experts considered to be as “a cumbersome,
with numerous replications, a three-stage criminal process of the Soviet
type” in the conclusion of November 2, 2011 (Council of Europe, 2011).
Besides, the institution of operational and investigative activities required
a certain reformation, transition from Soviet, secret methods of obtaining
information about the crime, as the established procedure for obtaining
information about illegal activities of individuals was increasingly
recognized by the court as inadmissible evidence (Salo, 2018).
The historical retrospective of the development of Ukrainian society
required nding a compromise between the need to eectively combat crime
and the principle of justice, ensuring the realization of constitutional rights
and freedoms of an individual and citizen, saving forces, means, funds,
etc. In fact, Ukraine faces a dilemma – on the one hand, totalitarianism is
capable to overcome the criminalization of society, but its consequences can
be compared with the consequences of crime for most people; on the other
hand democratic society is more focused on individual rights and freedoms,
but it does not help to reduce crime rate. Thus, the question of introduction
and consolidation of «secret activities» directly into the criminal process,
which would make it possible to obtain evidence in a procedural (albeit
tacit) way and use the information obtained in evidence, has come up to the
legislators. At the same time, the introduction of the institution of covert
investigations provided that it was the pre-trial investigation body that
would obtain evidence at the stage of pre-trial investigation by both overt
and covert methods and techniques (Salo, 2018).
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Oleh Tarasenko, Maksym Tsutskiridze, Artem Shevchishen, Yuri Yermakov y Dmytro Mirkovets
Establishment of the institution of covert investigation in the criminal justice system of Ukraine
The institution of covert investigations is widely used in a number of
foreign countries, where the functions of operational and investigative
activities and pre-trial investigation are performed by the same ocial
(police ocer, agent, detective, etc.), who directly uses both public and
covert means of crime (Serhieieva 2014, p. 214), except for those that require
special knowledge and skills, and which, in this regard, are conducted by
special entities. The result is the right of the investigator (detective) as a
subject of pre-trial investigation to receive, verify, and use the evidence by
public and covert actions.
The criminal procedure legislation of developed countries has in its
arsenal the means of covert investigations, the legal justication of the use
of which allows to fully ensure the observance of human and civil rights
and freedoms. At the same time, the formation of the institution of covert
investigations is signicantly inuenced by the criminal justice system.
For example, covert measures in the United States are recognized as legal
methods of investigation, which is called proactive investigation. According
to the proactive investigation, all means of obtaining procedurally relevant
information are endowed with equal legal force, and their results acquire
the status of full-edged arguments in court, although the right to recognize
the latter as judicial evidence remains with the court. That is, operational
and investigative information in American justice does not pass through
the lter of pre-trial investigation, but comes directly to court, where the
question of its admissibility is resolved (including the results of special
police operations and secret investigations conducted by prosecutors
(Nechai, 2018).
Another system is operating in the countries where covert investigations
are conducted exclusively within criminal proceedings and the grounds for
conducting them are dened directly in the Criminal Procedural Codes.
Analyzing the practice of their application, it can be noted that in this case
the criminal justice system is aimed at solving crimes (incidents), when it is
not necessary to conceal the fact that an investigation has been conducted
(but only to hide interest in a particular person).
The third system is functioning in the countries, where the legislator
does not draw a clear line between the actual search and investigative action;
for example, the design of the legal provision (Par. 100a “wiretapping” to
the Criminal Procedural Code of Germany) allows for covert investigations
both in the investigation of a particular criminal case and beyond these
limits. Formally, this is not a fact established during the trial, but only
the possibility of such a fact - the German legislator intentionally gave
the enforcer some room for manoeuvre (to obtain operationally relevant
information, which may be transformed into evidence, but at the time it
was received there was none (Nechai, 2018).
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Sadly, Ukraine has chosen the second system, although the simplication
of the procedural form of investigative actions by transferring evidentiary
and relevant consequences to the trial stage, ensuring the process of proving
eective guarantees of admissibility of evidence and eective judicial
control could have been achieved by legal regulation of admissibility of
evidence obtained in the course of performing operational and investigative
activities prior to the commencement of pre-trial investigation. The path
to the implementation of such a mechanism was indicated by a specialist
in the theory of evidence, Professor Mikhieienko (1984), who proposed
to separate the notions of proof (factual) and their «procedural sources».
Further development of this idea in modern socio-legal realities might lead
to the conclusion that it is necessary to use the materials of operational and
investigative activities in proving.
But the situation was dierent and the country’s course on European
integration forced to choose a dierent path. The change in the criminal
justice system modied the process of gathering evidence in the pre-trial
investigation, in particular by granting the prosecution the right to obtain
evidence by conducting covert investigative (search) actions, which are
regulated by the Chapter 21 of the Criminal Procedural Code of Ukraine
(Law No. 4651-VI, 2010) and by Interdepartmental Instruction “On the
organization of covert investigative (search) actions and the use of their results
in criminal proceedings” (ORDER No. 114/1042/516/1199/936/1687/5,
2012). The modern concept of criminal justice is aimed at substantiating
and ensuring the eective functioning of the new institution of the domestic
criminal process – covert investigations. Although it seems that the basis for
the institution of covert investigations is the interpenetration of operational
and investigative and criminal procedural activities, but that’s not exactly
true. Serhieieva (2014) states that covert investigative (search) actions are
operational and investigative measures in their essence, but only those that
are carried out after the registration of information about the crime in the
Unied Register of Pre-trial Investigations.
Tahiiev (2015) believes that the legislator enshrined in the Criminal
Procedural Code of Ukraine (Law No. 4651-VI, 2010) the implementation
of covert investigative (search) actions by the prosecutor, investigator
and detective, and transformed operational and investigative activities
performed by operational units into covert investigative (search) actions.
In our opinion, this is not entirely in line with the amendments to the
Law of Ukraine “On operational and investigative activities” did not
lead to the so-called “proceduralization” of operational and investigative
measures, namely to limitation of the use of operational and investigative
activities in criminal proceedings, but to maintaining the possibility of
the use of investigative activities pending the commencement of criminal
proceedings. We can agree with the opinion of scientists who believe that
the covert activities by the investigator does not mean the regulation of
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Oleh Tarasenko, Maksym Tsutskiridze, Artem Shevchishen, Yuri Yermakov y Dmytro Mirkovets
Establishment of the institution of covert investigation in the criminal justice system of Ukraine
procedural activities by operational and investigative rules; on the contrary,
technical, and legal techniques, legal categories that were previously used
just in operational and investigative activities, acquire certain special,
distinctive features, which allows them to be used in criminal proceedings
by investigators (Spilnyk and Komarnytska, 2015).
However, in our opinion, the approach to the regulation of covert
investigations by analogy with the overt measures of pre-trial investigation
causes a number of problems of the basic nature. For example, the Criminal
Procedural Code of Ukraine (Law No. 4651-VI, 2010) does not regulate the
procedure of using the results of covert investigations. Part 1, Art. 256 of
this act states that protocols for covert investigative (search) actions, audio
or video recordings, photographs, other results obtained through the use
of technical means, seized things and documents or their copies may be
used in evidence on the same grounds as the results of other investigative
(search) actions during pre-trial investigation.
However, the covert nature of these actions, the need to keep the actors
of their conduct in secret, the very fact of their conduct, lack of possibility
to prepare protocols under the general procedure (for example, the issue of
involving witnesses who should certify the protocol) is the evidence of the
impossibility of transposing the rules on the conduct of overt investigative
(search) actions to the procedure for conducting covert investigations.
Some procedures of covert investigations, in particular the use of materials
of covert investigative (search) actions, their declassication are enshrined
in by-laws, which ignore a number of important issues such as the access
of defense counsel to the materials of covert investigative (search) actions,
providing magnetic media (which contains evidence obtained as a result
of their conduct) for independent examination, etc. That is, on the one
hand, the use of the results of covert investigations in criminal proceedings
diers from the similar application of the results of operational and
investigative activities by a simplied mechanism that eliminates the need
for additional legalization and promotes the speed of use of documents, but
on the other hand, the lack of clear regulation of these procedures directly
in the Criminal Procedural Code of Ukraine (Law No. 4651-VI, 2010)
signicantly reduces the eectiveness of covert investigations. Another
problematic issue is the regulation of document circulation in the case of
the involvement of specialized operational units in the implementation of
covert investigations (including the conduct of individual operational and
investigative activities), the tactics of which, as well as the identities of the
ocers and condants should remain secret.
In our opinion, it is necessary to clearly dene the criteria for
distinguishing the concept of the institution of covert investigations from
the institution of pre-trial investigation and their relationship.
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The term “covert investigation” is used in a number of countries for the
measures to obtain “covert” information. This term provides for “hidden”,
“covert”, “secret” criminal proceedings within the investigation of crimes by
authorized bodies on the basis of a reasoned decision, and the results will
be used in proof as well as overt (transparent) ones (Salo, 2018).
Conclusion
The institution of covert investigations in the criminal justice system of
Ukraine has certain features that distinguish it from the similar institutions
in other countries, namely:
- authorization of the investigator with equal possibility of conducting
both investigative (search) actions and covert investigative (search)
actions;
- determination of the legal status of operational units in criminal
proceedings;
- unication of the actors of covert investigations, including the
introduction of the institution of detectives instead of investigative
and operational units;
- multi-subjectivity of the covert investigation, which provides for
the possibility of its conduct by investigators, operational ocers
(who, while carrying out the instructions of the investigator, have the
authority of the investigator) and detectives;
- transformation of investigative actions and operative and search
measures into investigative (search) actions and covert investigative
(search) actions, respectively;
- covert investigative (search) actions as a component of covert
investigation, the feature of which is covertness, is a kind of
investigative (search) actions;
- logical construction of the mechanism of covert investigation
depending on the gravity of the criminal oense (conducting covert
investigation in criminal proceedings on serious or especially
serious criminal oenses) and the need to intervene in private
communication;
- special procedure for recording the progress and results of covert
investigations, which establishes both general rules for recording
investigative actions (Articles 103 – 107 of the Criminal Procedural
Code of Ukraine) (Law No. 4651-VI, 2010) and special rules for
recording covert investigative (search) actions (Article 252, Article
265 of the Criminal Procedural Code of Ukraine) (Law No. 4651-VI,
2010).
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Oleh Tarasenko, Maksym Tsutskiridze, Artem Shevchishen, Yuri Yermakov y Dmytro Mirkovets
Establishment of the institution of covert investigation in the criminal justice system of Ukraine
The grounds for conducting covert investigation are:
- expediency and suciency of one or another covert investigative
(search) action;
- compliance with the goal to be achieved;
- conducting only in cases, in which it is impossible to obtain the
information on the oense and the perpetrator in another way (Part
2, Article 246 of the Criminal Procedural Code of Ukraine) (Law No.
4651-VI, 2010);
- peculiarities of conducting in terms of ensuring conspiracy, security
of actors, etc.;
- compliance with the law in the course of covert investigation;
- legal support of each covert investigative (search) action, which is
carried out during the covert investigation;
- observance of the rules of document circulation of the covert
investigation (request of the investigator, decision of the prosecutor,
decision of the investigating judge, instructions to the authorized
operational units).
Thus, the institution of covert investigation in the criminal justice system
of Ukraine is the system of legal norms that regulate a particular type of
law enforcement (which is specic to the criminal process), determine the
procedure for covert investigative (search) actions and the use of covert
means for obtaining evidence by specially authorized actors with the court’s
permission.
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Esta revista fue editada en formato digital y publicada
en julio de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 69
