PRIVATDETEKTIV. Ukraine.

[Детективное агентство. Украина. Харьков. Львов.]

Private detective in Ukraine. Pitfalls.

In Ukraine, in contrast to Western countries, private detectives remain only heroes of books and films. Although representatives of many professions actually perform similar functions: lawyers, bank employees, even journalists often collect information about their clients or article heroes. Sometimes representatives of law enforcement agencies also do this - privately and for a fee. But that’s all - the services are illegal, because such activities are not regulated by any laws. This state of affairs indicates that there is a demand for private detective services today. However, the niche in the market is almost empty, since the activities of detective agencies need legislative regulation and control. There have been such attempts.

Over the past ten years, draft laws on private detective work have been submitted to BP four times. However, most of these projects were frankly “torn apart” from Russian legal practice, in which the activities of private detectives have been regulated by laws since 1992. In the projects submitted to the Verkhovna Rada, whole articles were found that contradicted the Constitution. It is not surprising that they deserved well-deserved oblivion. It seems that a similar fate awaits the bill of People’s Deputy Vladimir Moisik, submitted to parliament in February this year.
This time, according to the bill, a private detective can be a citizen of Ukraine who has reached the age of 21, has a basic higher education, is mentally healthy, has no criminal record, and received, in the prescribed manner, a certificate of the right to carry out private detective activity. He cannot occupy any position in state and local government bodies, in law enforcement and judicial bodies.

A detective has the right to verbally or in writing receive the necessary information, conduct an external examination of structures, premises, other objects with the consent of their owners. He is allowed to inspect and study materials, objects, documents with the consent of their owners or legal users, to receive written conclusions and oral consultations of specialists on a contractual basis. In addition, he has the right to detain attackers at the crime scene. As you can see, part of these points requires voluntary cooperation from interested parties, in some circumstances - those whose activities the detective will investigate. Therefore, hoping for their support would be naive. In fact, the law allows private investigators to do what is impossible in practice or will be accompanied by objective difficulties. It turns out that if this bill passes the approval of the parliament, private detectives will appear in Ukraine who will not be able to do anything, which means there will not be much sense in their existence.

If someone else introduced such a bill, such a person could still be suspected of inexperience or naivety. But the former judge of the Ukrainian Armed Forces, Vladimir Moysik, knows wonderfully that his project is utopian in essence and cannot be realized without introducing radical changes, proposed at least in the Concept of reforming the criminal justice of Ukraine. There are several important points:

The main problem of the modern Ukrainian investigation is that the violation and investigation of criminal cases is de facto the discretionary power of the prosecutor's office: it wants to - it investigates, it does not want to - it does not investigate. You can, of course, complain to the court and even achieve the cancellation of the decision to refuse to initiate proceedings, but in practice this will not help the victim much, because only “competent authorities” can carry out an investigation and conduct an investigation. And they, as they say, "may dig, but may not dig." And until the victim receives the right and opportunity to personally initiate criminal prosecution, not only in the extremely insignificant category of cases of “private prosecution”, but in all cases, any other reforms will have no meaning.

The next key issue is the introduction of the present procedural equality of defense and prosecution, which is based, first of all, on the most equal possibilities of proof by collecting and fixing evidence. As long as the lawyer has to humblely petition the investigation to conduct some investigative actions, there can be no question of any procedural equality. Inequality gives rise to monopoly, monopoly leads to a drop in the quality of the investigation below the level of the plinth, which we, in essence, are now observing. “Materials, documents and information on the evidence will be submitted directly to the parties to the defense and the prosecution. At this stage of the judicial proceedings, it is necessary to introduce an institution of recognition in court of facts that are confirmed by the materials of the case and are not disputed by the parties, without burdening the court with their investigation during the trial, ”the authors of the Concept continue to dream. Indeed, that would be wonderful. Only for this we need to "just" write and "pass" a completely new Criminal Procedure Code through BP. Given the volumes of the “black market” turnover of custom-made criminal prosecutions and “otmazyvany”, everyone can evaluate the prospects for the country to get such a Code.

Indeed, the Concept refers to private detectives. “To ensure the competitiveness and procedural equality of the parties to the prosecution and the defense, it is necessary to complete the formation of the bar as an independent self-governing organization that performs the function of defense in criminal proceedings, provide for the possibility of creating and regulating the activities of private detectives (detective agencies).” That is, the detectives and the Law on them should be the last cream rose on this “reform cake”, but by no means the first, lower cake.

What is the conclusion of all this? Simple - that’s not what you, gentlemen, are doing. To no avail try to build a roof of the house without first erecting walls. And until criminal justice is conceptually reformed, people will still receive the information they need, but on the black detective market, illegally and secretly.

Alexey Byk, Tatyana Montyan,
specially for the “Judicial-legal newspaper”