Ensuring the implementation of the principle of legality by the prosecutor during the application of preventive measures

Abstract

The purpose of the work is to study the problematic issues of ensuring the implementation of the principle of legality by the prosecutor during the application of preventive measures.

The methodological basis of the scientific research was the following general scientific and special methods: analysis, synthesis, generalization, analogy, structural-logical, systemic-structural, and comparative-legal methods.

The results. The article examines the problematic issues of ensuring the implementation of the principle of legality by the prosecutor during the selection of a preventive measure. It was established that the stage of choosing a preventive measure consists in the joint work of the investigator, the prosecutor and the investigating judge, however, the key role is played by the prosecutor, who, exercising his powers, must check the materials that substantiate the suspicion and are the basis of the petition, in order to prevent arbitrariness on the part of law enforcement agencies. The basis for the application of a preventive measure is the existence of a well-founded suspicion that a person has committed a criminal offense. Having analyzed the opinions of scientists regarding the concept of “reasonable suspicion” in the context of choosing precautionary measures, it was concluded that this term is a more meaningful standard than the sufficiency of evidence, and is different from a written notification of suspicion. That is why the request for the selection of a preventive measure should be based on more substantial evidence of the person’s involvement in the commission of a criminal offense than that contained in the paper document “notification of suspicion”. Attention is drawn to the fact that before sending the petition to the investigating judge, the prosecutor must check the evidence and facts indicated in it, and in case of discovery of illegal evidence, the prosecutor must provide an assessment of the entire body of evidence through the prism of the doctrine of “fruit of the poisoned tree” and the rule of “inevitable discovery”, and “independent source” to form a conclusion about the legality or illegality of the suspicion as a whole.

Conclusions. In the event that the prosecutor establishes illegal evidence, he must provide an assessment of the entire body of evidence through the prism of the doctrine of “fruit of the poisonous tree” and the rules of “independent source”, “inevitable discovery” in order to form a conclusion about the legality/illegality of the suspicion as a whole. If the prosecutor concludes that the suspicion is illegal, he does not have the right to initiate the question of applying a preventive measure before the court by drawing up or agreeing to the appropriate motion.