Taras Bezpalyy, counsel at Legal Alliance Company
Yurydychna Gazeta
On March 16th, 2018 amendments to the Criminal Procedure Code of Ukraine, which significantly change rules for law enforcement officers at searches, entered into force.
In 95% of searches law enforcement officers tried not to permit access to attorneys, did not do video recording of the search which led to numerous violations of right to legal protection, disappearance of some things and, what is worse, appearance of new things during searches (seals of sham enterprises, pen drives with unknown content, ammunition, drugs).
In order to protect your business from unlawful actions by law enforcement officers and protect individuals, law enforcement agencies repeatedly issued recommendation letters.
Thus, the letter of the General Prosecutor’s Office of Ukraine as of February 22nd, 2016 explained that it is necessary to take immediate measures in order to prevent illegal refusal of attorney participation in investigative and other procedural actions.
A similar letter with almost analogous wording was sent to the employees on March 14th, 2017 by S. V. Solodchenko, a head of the Investigative Department of Financial Investigations of the Chief Directorate of the State Fiscal Service in Kyiv.
However, practically it often did not work since an investigator said “I do not think it is necessary to grant access to an attorney”, “we do not need an attorney here”, “submit a complaint that you do not agree with my decision”, etc.
Last changes to the Criminal Procedure Code of Ukraine were made to improve protection of individual’s rights and freedoms during searches.
The amendments to the procedure of obtaining search writ are as follows: it is established by the law that an investigator while considering a petition for granting a right to do search, must let an investigative judge know that it is impossible for a pre-trial investigative body to obtain access to things, documents or information which is contained there voluntarily by requesting things, documents and information under Article 93 of the Code, or by other investigative actions provided by the Code, and the access to wanted persons – by other investigative actions provided by the Code. This demand is not valid for cases of search to find a tool of criminal offense, objects and documents withdrawn from circulation.
Thus, an investigator or a prosecutor must inform an investigative judge that all possible actions aimed at searching proofs have been done, and only search can help reach the aim of pre-trial investigation and evidence search. Then the investigative judge not only will be have to accept a petition / listen to the prosecution side formally, but will be obliged to hold a court session to consider the search petition, since all petitions must be considered using audio recording.
Besides, the legislator limited the right of an investigator to submit the unlimited number of petitions to conduct search in case the petition was rejected (Article 234(6) of the Criminal Procedure Code of Ukraine), which law enforcement agencies used to abuse.
The significant positive amendments can be the investigator’s obligation to do video recording of the search, to grant access to the attorney at any stage of search, and a special note that every person may enjoy legal aid during search and this right cannot be limited.
Also, the investigator has been obliged to conduct search only if the attorney is present (exception is only a case of attorney’s non-arrival for 3 hours).
Moreover, the law specified that cases when the attorney is not granted access, or video recording is not done cause invalidity of the respective procedural action and the obtained results.
Based on the abovementioned, it can be said that in future law enforcement officers will respect human rights and freedoms more, in particular in terms of the right to protection/representation of interests during search. Search must be not a tool of duress/pressure, but a mechanism to get evidence as stated in the Criminal Procedure Code of Ukraine.
Should you have any questions regarding this article, please do not hesitate to contact Taras Bezpalyy, counsel at Legal Alliance Company, bezpalyy@l-a.com.ua
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