URGENT SEARCH: ISSUES OF LEGAL REGULATION AND PROSPECTS FOR IMPROVEMENT

Abstract

Introduction. In the context of the current development of criminal procedure legislation in Ukraine, the issue of maintaining a proper balance between the effectiveness of pre-trial investigation bodies and the guarantees of constitutional human rights and freedoms has become particularly relevant. One of the most controversial legal institutions in this regard is urgent search. As an exception to the general rule of judicial control over interference with the inviolability of the home, this institution gives rise to a considerable number of both theoretical and practical problems. The legislative provision allowing entry into a dwelling or other possession of a person without prior authorization by an investigating judge in urgent cases, although justified by the need for a prompt response to criminal offenses, also creates increased risks of abuse and de facto circumvention of constitutional safeguards of judicial control. In this context, studying the legal nature of urgent search is particularly important, since it makes it possible to develop a comprehensive understanding of this issue and to identify possible areas for improving the criminal procedure legislation of Ukraine.

Purpose. The purpose of this article is to provide a comprehensive analysis of the legal nature of urgent search, to determine its place within the system of investigative (search) actions, to identify the main problems arising in law enforcement practice, and to justify the need to improve Ukraine’s current criminal procedure legislation in light of national judicial practice, academic approaches, and the case-law of the European Court of Human Rights. Particular attention is paid to finding an appropriate balance between the interests of criminal proceedings and guarantees of the protection of human rights and freedoms, primarily the right to the inviolability of the home.

Materials and methods. The study is based on judgments of the European Court of Human Rights, decisions of Ukrainian national courts, Ukrainian legislation, in particular the Criminal Procedure Code of Ukraine, as well as doctrinal sources, including scholarly works by Ukrainian researchers in the field of criminal procedure. The following research methods were used: theoretical generalization and systematization, in order to develop a comprehensive understanding of the legal nature of urgent search and its place within the system of investigative (search) actions; analysis and synthesis, in order to examine national legislation and its practical application and to identify problematic aspects of legal regulation; the comparative legal method, in order to compare national approaches with the standards developed in the case-law of the European Court of Human Rights concerning interference with the right to respect for one’s home; the method of legal interpretation, in order to clarify the provisions of the Criminal Procedure Code of Ukraine; and logical generalization, in order to formulate scientifically grounded proposals for improving current legislation.

Results. The article provides a comprehensive analysis of the legal nature of urgent search, its statutory regulation, judicial practice, and doctrinal approaches. The main problems of law enforcement are summarized, and it is concluded that the current legal regulation of urgent search contains systemic deficiencies that create risks of violations of the constitutional right to the inviolability of the home and of the standards guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The article substantiates the need for comprehensive reform of this legal institution, in particular through clarifying the grounds for urgency, strengthening judicial control, and introducing additional procedural safeguards.

Discussion. Further research should focus on specifying the criteria for establishing a real risk of loss or destruction of evidence, improving mechanisms of ex post judicial review, and conducting comparative legal analysis of the regulation of urgent entry into a dwelling in continental and common law legal systems with a view to incorporating the most effective models into Ukraine’s national legislation.