Tishin M. Ensuring the admissibility of factual data collected as a result of investigative (detective) actions by the prosecutor.

Tishyn M.V. Ensuring the admissibility of factual data collected as a result of investigative (detective) actions by the prosecutor. - Qualifying research paper on the rights of the manuscript. Dissertation on Doctor of Philosophy Degree on a specialty 081 Law. – Lviv State University of Internal Affairs, Lviv, 2024. The dissertation is the first special research on ensuring the admissibility of collected factual data as a result of investigative (detective) actions (hereinafter referred to as I(D)A), including covert investigative (detective) actions (hereinafter referred to as CI(D)A) by the prosecutor under the Code of Criminal Procedure of Ukraine of 2012 (hereinafter referred to as CCP). Ensuring the admissibility of collected factual data as a result of I(D)A including CI(D)A, the topic that is examined in the dissertation based on the analysis of the existing studies of the issue which showed that the majority of these studies deal with conceptual issues of prosecutor’s powers as well as general issues of a prosecutor as an actor of fact-finding (proving). The special character of the prosecutor’s powers to ensure the admissibility of factual data collected as a result of I(D)A including CI(D)A is discussed in certain writing and includes the following topics such as the prosecutor’s powers concerning admissibility of evidence; finding evidence as inadmissible; prosecutor’s powers to ensure the legality of I(D)A and CI(D)A. The concept of admissibility of evidence is examined according to the case-law of both the Supreme Court (hereinafter referred to as SC) and the European Court of Human Rights (hereinafter referred to as ECHR). It is proved that for seamless application of the approach outlined in the decision of the Grand Chamber of SC in the case № 756/10060/17 of 31 October 2022 on the assessment of the impact of procedural violations may have on the human rights it is necessary to incorporate it to CCP as the imperative character of Article 86 of CCP prevents the application of thereof. It is argued that the overall fairness of the court proceedings is not applicable as ECHR in its decisions does not imply the inadmissible character of obtained evidence but rather whether such evidence had no or limited impact on the overall fairness of the proceedings; and the admissibility rules is the matter of national law. The specifics of ensuring the admissibility of factual data by the prosecutor to provide international legal assistance (when the requesting State is Ukraine) are highlighted. It consists of ensuring that the general and additional criteria for the admissibility of evidence are met during the preparation of the request and after receiving a response thereof. In particular, during the preparation of the request, the proper subject, form, and content of the request are checked; after receiving a response to the request, the following are checked: compliance with the procedure for sending the request and responding to it; the competence of the request execution authority. In addition, an assessment of compliance with the principles of fair trial, human rights, and fundamental freedoms is provided, considering, among other things, international reports on the state of human rights in the requested State and checking whether evidence is used in the criminal proceedings that the request concerned, and if not, the requested party has agreed on the use of this evidence and to what extent. It is noted that in terms of ensuring the proper legal procedure for disclosing materials to ensure the admissibility of evidence, the prosecutor has the authority to: inform the suspect, his/her defense attorney, the legal representative, and the defense attorney of the person against whom compulsory medical or educational measures are to be applied, about the completion of the pre-trial investigation and the provision of access to the materials of the pre-trial investigation or entrust this to the investigator; correctly determine the volume of materials that will be provided for review; provide access to pre-trial investigation materials; receive written confirmation of familiarization or voluntary refusal of familiarization; in case of delay in familiarization or failure to confirm familiarization, file a motion to an investigative judge (following Article 290 Para. 10 of CCP).