Mohyla V. Investigator’s and investigative judge’s powers during submission, consideration and disposition of motions to conduct investigative (search) actions.

The dissertation is the first special complex scientific research of an investigator’s and an investigative judge’s powers during submission, consideration and disposition of motions to conduct investigative (search) actions. The legal nature and the system of investigative (search) detective actions that are conducted upon a decision of the investigative judge are examined. The definition of the investigator’s powers during submission, consideration, and disposition of motions by the investigative judge to conduct investigative (search) actions is formulated and such powers are classified. The powers are classified on: list of investigative (search) actions in respect of which a motion shall be filled; a form of realization of powers: powers regarding agreeing upon a motion, powers regarding submitting a motion, powers regarding participation during the consideration of a motion; the special character of legal regulation: directly provided and in a form of a reference; those that defined as such that belong to an investigator and those that belong to prosecution party; time of conducting: preliminary and subsequent; mode of conduct; the character of initiation: autonomous-initiative (that are realized due to the needs of pre-trial investigation on evidence gathering) and adversary-initiative. The notion of powers of the investigative judge during consideration and disposition of motions to conduct investigative (search) actions is proposed. It is the systematic cohesion of rights and duties of the investigative judge of the court of the first instance that are aimed to ensure security and protection of rights, freedoms, and legitimate interests of individuals and entities as well as to gather and verify evidence that has public character and are realized in the ways and form prescribed by the criminal procedural law. The investigative judge’s powers regarding investigative (search) actions are divided into the following groups that are connected to (1) securityand protection of the inviolability of the home and individuals’ other lawful property, the right not to subject to interference in their personal and family life (search of a home or other possession of a person; inspection of a home or other possession of a person; the review of whether there are urgent grounds to enter a home or any other possession of a person (Art. 233 of the Code of Criminal Procedure of Ukraine (CCP of Ukraine)); (2) protection of the right to liberty and personal inviolability (search of a person; compulsory conduct of medical or psychiatric expertise examination of a person; sending a person to a medical institution for psychiatric expert examination; taking biological samples from a person); (3) protection of the right to dispose of one’s assets (taking samples of objects and documents); securing proof. The powers of the investigative judge are classified by the following criteria: substantive focus; the character of influence that exerted by the investigative judge on the conduct of an investigative (search) action; the character of the informative direction of activity; be the actor of initiation; the form of realization; consideration regime. The issue of court jurisdiction of motions to conduct investigative (search) actions are explored. It is proved that Art. 223 of CCP of Ukraine shall consist of a rule, regarding the court jurisdiction of a motion, that would be applied in case of absence of special provisions regarding the court jurisdiction of certain motions. The rule shall provide for a decision of the investigative judge in case it lacks jurisdiction: if the fact is established by the investigative judge on its own, the power to return a motion shall be provided; in case of conflicts over jurisdiction during the adversarial consideration of the motion, both the investigative judge and the parties shall act according to the procedure provided for in Art. 34 Paras. 2 and 3 of CCP of Ukraine. The motion of the investigator is studied as a criminal procedural decision. It is established that it is a criminal procedural decision as it fully meets focused, actorfunctional, procedural-legal characteristics of a criminal procedural decision. The features of reasoning of all motions of the investigator to conduct investigative (search) actions are examined in detail. It is proposed that model content of a reasoning part of the investigator’s motion to conduct investigative (search) actions shall consist of: description of criminal proceedings; an investigative (search) action that has been sought; a person that shall participate or in respect of which aninvestigative (search) action shall be conducted, or an object in respect of which an investigative (search) action shall be conducted; the grounds to conduct an investigative (search) action; the reasoning of the evidential value of information that is to be gathered; the justification of impossibility to obtain information in another way.