Challenging evidence based on the results of operational investigative activities by advocates: problems and solutions

The article examines the problems associated with numerous gaps in the legislative regulation of operational investigative activities (OIA), which naturally form a contradictory law enforcement practice. In turn, according to many interviewed lawyers, it often develops not in favor of the legitimate interests of the defense, since the notorious accusatory bias often manifests itself in the activities of representatives of the prosecution and individual judges. As a result, a significant part of lawyers experience the phenomenon of denying the effectiveness of any attempts to challenge evidence obtained as a result of the OIA (in short, the phenomenon of denial). Typical arguments of lawyers characterizing this phenomenon are analyzed, arguments for their refutation are formulated. The purpose of the study is to propose recommendations based on law and judicial practice that ensure effective protection in criminal cases. Arguments to refute the phenomenon of denial are formulated with references to the practice-forming decisions of the higher courts. The structure of the work, in addition to the traditional ones: introduction, research methodology and conclusions, includes three more sections devoted to: the arguments of the phenomenon of denial and their refutation; the level of qualification of individual lawyers; strategies and tactics of defense aimed at compromise of the parties. Methodological basis of the research: dialectical method, systematic approach, general scientific methods of analysis and synthesis, special legal, sociological methods, including questionnaires, interviews. Special research methods also included initiation and subsequent analysis of discussions on video content on the Internet, analysis of the results of training sessions for lawyers and investigators. As a result, the conclusions are formulated that, in addition to gaps in legislation and accusatory bias, one of the reasons for the phenomenon of denial is the low level of qualification of individual lawyers in matters related to the OIA. Professional defenders are offered not only a system of legal arguments, but also principles and tactics of effective defense. The scope of application of the research results is the practical activities of the parties in criminal proceedings and teaching.