Powers of the investigator, prosecutor and employee of the operational unit to involve other persons in confidential cooperation in criminal proceedings

The different views of scholars and practitioners on the procedure for involving other persons in confidential cooperation in criminal proceedings are analyzed in the article. By analyzing the case law, at least three approaches to the moment of acquiring the status of a confidant by a person who has consented to participate in covert investigative (search) actions are identified. Our own vision of the procedural order for involving persons in confidential cooperation is proposed, taking into account the powers of the investigator and the prosecutor to make the relevant procedural decision. The procedural impossibility of employees of operational unit to independently involve other persons in confidential cooperation is substantiated. Arguments are made in favor of the fact that formally the prosecutor in criminal proceedings has the right to involve persons in confidential cooperation, regardless of the investigator. The purpose of this research is to formulate proposals to improve the legislation governing the use of confidential cooperation in criminal proceedings, so that due to legal uncertainty the prosecution does not lose important evidence of involvement in a criminal offense and the perpetrators do not avoid responsibility due to the imperfection of procedural and legal constructions. To achieve this purpose, in the course of the research the author identified and analyzed the causes of uncertainty in the order of involvement of a person in confidential cooperation. Different approaches of scholars and practitioners to the meaning of the term “other persons”, which may be involved in covert investigative (search) actions and confidential cooperation, which the author considers an independent covert investigative (search) action, are studied. The procedural expediency of including the prosecutor in the construction of Article 275 of the Criminal Procedure Code of Ukraine is substantiated to normatively consolidate the powers of the prosecutor to use confidential cooperation, equivalent to the powers of the investigator, and to stop discussions on this issue, which will promote uniform law enforcement practice and bring perpetrators to justice