Застосування прокурором тимчасового доступу до речей і документів у світлі практики Європейського суду з прав людини
The article is devoted to exploring the peculiarities of the use of temporary access to property and documents in practice of the European Court of Human Rights. It is pointed out that one of the conditions for using temporary access to property and documents as a means of criminal procedural proof is that the needs of the pre-trial investigation meet the necessary degree of interference with the rights and freedoms of the person (the rule of proportionality of intervention).
The ECtHR has been found to emphasize in its decisions that: 1) achieving a fair balance between the general interests of society and the requirements of the protection of a person's fundamental affairs only then becomes significant if it is established that the principle of "legality" was respected during the relevant intervention and not was arbitrary; 2) the absence of sufficient legal justification for interfering with the personal life of certain persons entails a violation of Art. 8 of the European Convention on Human Rights.
On the basis of a systematic analysis of the ECtHR's practice, the warranty of respect for the rights of the individual in the use of temporary access to property and documents as a means of criminal procedural evidence are singled out: 1) information is collected on the basis of law; 2) the provisions of the law meet the requirements of accessibility, clarity and predictability; 3) decisions on granting access should be subject to judicial review; 4) such control should provide for an opportunity for a person to present his / her arguments; 5) the court's decision must be substantiated; 6) the instructions in the court order regarding which information (documents) is made available should be as clear as possible; 7) the person to whom the information is transmitted should have effective means of protection, which would provide for the possibility of challenging the legality and validity of access to such information, as well as receiving compensation in case of violation; 8) access should be given only to the information necessary for the purpose of the investigation; 9) the information received must be properly recorded, stored and protected in order to prevent its modification, unlawful destruction and dissemination.
It is concluded that failure to comply with the above warranty entails the recognition of the evidence obtained inadmissible.