Iryna Hlovyuk, Ph.D. in Law, Associate Professor, Attorney-at-Law, and Legal Counsel at BARRISTERS Law Firm, on the problematic issues surrounding the temporary seizure and attachment of property under the draft law “On Amendments to the Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine (Regarding the Improvement of the Procedure for Applying Certain Measures to Secure Criminal Proceedings)” No. 9484

Issues Regarding the Temporary Seizure and Attachment of Property Under Draft Law No. 9484 “On Amendments to the Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine (Regarding the Improvement of the Procedure for Applying Certain Measures to Secure Criminal Proceedings)”

The draft law “On Amendments to the Criminal Procedure Code of Ukraine and the Criminal Code of Ukraine (Regarding the Improvement of the Procedure for Applying Certain Measures to Secure Criminal Proceedings)” No. 9484 (http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511;=65354&pf35401;=474733) proposes a number of amendments and additions to the Criminal Procedure Code of Ukraine regarding “electronic” evidence, devices for processing, transmitting, and storing information in electronic form (electronic information) and their components, including provisions regarding their temporary seizure and the seizure of property. This draft has already been dubbed the “Mask Show Stop No. 3” bill (https://www.facebook.com/photo.php?fbid=2115815301821221&set;=a.254265341309569&type;=3&theater;). As stated in the explanatory note, the bill was drafted in response to the need to clarify terminology and refine provisions regarding temporary access to and seizure of information and telecommunications systems; if adopted, it will help strike a better balance between ensuring the rights of individuals and legal entities and the powers of investigators during the pretrial investigation of criminal offenses; it will improve the methodology for conducting investigative actions and reduce the burden on law enforcement agencies by eliminating the need to store large quantities of bulky seized equipment. It appears urgent to develop a mechanism for applying measures to secure criminal proceedings that would strike a reasonable balance between the state’s interest in ensuring fair justice and the interests of business owners who suffer significant harm as a result of unlawful actions by state agencies in the exercise of their official powers (http://w1.c1.rada.gov.ua/pls/zweb2/webproc34?id=&pf3511;=65354&pf35401;=474756). At the same time, the proposed provisions should be considered in the context of, first, the balance between private and public interests in criminal proceedings; second, their correlation with other existing provisions of the Criminal Procedure Code of Ukraine; and third, potential implementation challenges. Let us examine these issues specifically with regard to measures to ensure criminal proceedings.

Draft No. 9484 proposes to amend the second paragraph of Part 1 of Article 159 of the CPC of Ukraine to read as follows: “Temporary access to devices for processing, transmitting, and storing electronic information or their components shall be carried out without their seizure (removal) by making a copy of the information contained therein. A separate protocol shall be drawn up based on the results of copying the information, a copy of which shall be handed over to the person who owns the device for processing, transmitting, and storing electronic information or its components from which the information was copied.” However, it is proposed that Part 7 of Article 163 of the Code of Criminal Procedure of Ukraine state that: “7. The investigating judge, the court, in a ruling granting temporary access to items and documents, may order that items and documents be seized, including devices for processing, transmitting, and storing electronic information or their components, as defined in Article 98 of this Code ….” Thus, these provisions are directly contradictory in their meaning and are not consistent with one another (as is also the case, incidentally, in the current provisions of the Code of Criminal Procedure of Ukraine). Furthermore, the question arises as to why the current provision—stating that the copying of such information is carried out with the assistance of a specialist—has been removed, since such assistance may be necessary.

The terminology used in the proposed amendments to Article 168 of the Code of Criminal Procedure of Ukraine is unclear—“tangible assets,” since the proposed paragraph 13-1 provides a list of devices for processing, transmitting, and storing electronic information and their components.

In the event of the seizure of such devices or their components, the person conducting the seizure is obligated, at the request of the owner (lawful possessor), to allow the owner or a person authorized by the owner to copy the information contained in these devices or their components (except in cases where such information constitutes confidential information about another person, classified or official information, or where the dissemination, storage, or other actions regarding such information are prohibited by law) (Part 2 of Article 168 of the Criminal Procedure Code of Ukraine)—however, these amendments do not take into account the fact that the owner (lawful possessor) may be the controller of such information, and that it is lawfully stored on their devices or their components—for example, in situations where the individuals to whom this information relates have consented to the processing of their personal data.

A progressive provision is the proposed rule that the device owner or its lawful possessor (or a person authorized by either of them) shall be given the opportunity to copy the information directly during the seizure of the device or its component, and if it is not possible to copy such information immediately, – the person seizing the devices used for processing, transmitting, and storing electronic information, or their components, must provide such an opportunity to copy the information at any time convenient for the owner (lawful possessor) of the device. However, there are no safeguards against abuse in the event that such an opportunity is not provided at any time convenient for the owner (lawful possessor) of the device (even though it is not specified that this must be during business hours), since at the time of such copying, the temporary seizure has already taken place, and it will not be possible to challenge this on the basis of the proposed paragraph 9 of Part 1 of Article 303 of the Code of Criminal Procedure of Ukraine, since this procedure is intended for challenging decisions, actions, or omissions by an investigator or prosecutor during (my italics—I.G.) the temporary seizure of items and documents. One must also acknowledge the validity of the observation that, of course, one could joke about 2 a.m. and a call to the prosecutor, but even for investigative actions, there are restrictions on nighttime hours (https://www.facebook.com/photo.php?fbid=2115815301821221&set;=a.254265341309569&type;=3&theater;).

Seizure of property in the form of devices for processing, transmitting, and storing electronic information, or their components, if they are used by their owner (or lawful possessor) as tools or means of labor, or if their seizure may cause harm to a natural or legal person who is not a party to these criminal proceedings, may be imposed only in the cases provided for in paragraphs 2 or 3 of part two of this article (Part 5 of Article 170 of the Code of Criminal Procedure of Ukraine). These subparagraphs provide for the seizure of property for the purpose of securing special forfeiture (subparagraph 2) and the forfeiture of property as a form of punishment or a criminal-law measure against a legal entity (subparagraph 3). This provision does not take into account the provisions of Article 98 of the Code of Criminal Procedure of Ukraine regarding the possibility of recognizing such devices and their parts as physical evidence, and does not correlate with the provisions concerning the seizure of property for the purpose of securing physical evidence, since, on such grounds, a seizure may be imposed on the property of any natural or legal person if there are sufficient grounds to believe that it meets the criteria specified in Article 98 of the Code of Criminal Procedure of Ukraine. Furthermore, the possible need to conduct an examination of such devices or their components—when they themselves, rather than the electronic information they contain, constitute physical evidence—has not been taken into account. In other words, no account has been taken of situations where these objects may contain “electronic traces” that cannot be detected during an examination—even with the participation of a specialist—of electronic information systems or their components, or mobile communication terminals, in the course of an inspection or search (https://zib.com.ua/ua/print/134424-pravoohoroncyam_zaboronyat_bezpidstavno_viluchati_tehniku_pi.html).

Thus, it appears that the amendments and additions proposed in Draft No. 9484 regarding measures to secure criminal proceedings require significant and systematic clarifications, since such provisions raise questions regarding the quality of the law in regulating measures to secure criminal proceedings, and this, in turn—given the blanket wording of the proposed Article 374-1 of the Criminal Code of Ukraine—“Violation of the procedure for temporary access to items and documents, temporary seizure, or attachment of property”— calls into question the legality of criminal prosecution under this article. Such regulation, in turn, does not comply with the requirements of Article 7 of the Convention for the Protection of Human Rights and the practice of the European Court of Human Rights (ECHR) regarding this article.

As the ECHR notes in its judgment in “Verentsov v. Ukraine” (Application No. 20372/11), the guarantee established in Article 7 of the Convention, which is an essential element of the rule of law, occupies a prominent place in the system of protection under the Convention. This guarantee must be interpreted and applied, as is apparent from its subject matter and purpose, in such a way as to ensure effective protection against arbitrary prosecution, conviction, and punishment. Accordingly, it embodies, in general terms, the principle that only the law may define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). In particular, by prohibiting the extension of existing penalties for offenses to acts that were not previously considered criminal offenses, it also establishes the principle that criminal law must not be applied expansively to the detriment of the accused, for example, by analogy. Ultimately, “law” is a provision in force, as interpreted by competent courts. Moreover, the term “law” entails qualitative requirements, including those relating to accessibility and predictability. These qualitative requirements must be met both in terms of the definition of an offense and the penalty that the offense entails. A person must be able to determine from the text of the relevant provision—and, if necessary, through its interpretation by the courts—which actions and omissions give rise to criminal liability and what punishment will be imposed for the action and/or omission in question. Furthermore, the law will satisfy the requirement of “foreseeability” even if a person must seek appropriate legal advice in order to assess, to the extent that is reasonable under the circumstances, the consequences to which that action may lead (http://zakon.rada.gov.ua/laws/show/974_945). It is evident that, in its proposed wording, the draft bill—if adopted and enacted—will not meet the requirement of “quality of law” with regard to “which actions and omissions give rise to criminal liability.”