Some Issues Regarding the Enforcement of an Investigating Judge’s Order Authorizing a Search of a Person’s Residence or Other Premises

Ensuring due process for every participant in criminal proceedings is a fundamental objective of such proceedings; however, certain provisions of the Criminal Procedure Code of Ukraine (hereinafter—the CPC) do not always allow this objective to be achieved. One example of such wording is Article 235 of the CPC, the application of which in practice has raised the question of whether an investigator or prosecutor is authorized, when searching a person’s residence or other premises, to suspend the search due to, for example, nighttime, and to resume the search after the break without a new ruling from the investigating judge.

On this issue, inconsistency is characteristic of law enforcement practice, and opposing views have also been expressed in legal doctrine. Thus, O.V. Kaplina notes: if it is necessary to conduct a lengthy search and it is impossible to form an investigative team, then interruptions in the course of the investigative action are permissible. They should not become the norm for conducting searches but must be dictated by necessity [1, 11]; While consistently documenting their actions during the search, the investigator must indicate when a break in the investigative action is announced due to the onset of nighttime (the need for rest, etc.), specifying the exact time. In addition, the investigator must inform the persons participating in the investigative action or those present that the investigative action is not concluded; only a break is being announced [1, 15]. The requirement of Part 1 of Article 235 of the Code of Criminal Procedure must be interpreted as the possibility of entering a person’s dwelling or other premises to conduct an investigative action and achieve the objective specified in the motion filed by the investigator or prosecutor and reflected in the ruling of the investigating judge. Thus, if the objective can be achieved—taking into account the duration of the search and the complexity of the investigative action—within a few days, there should be no question of repeated entry into the premises [1, 16]. This position is supported by O.B. Komarnytska, who notes that when executing a search warrant over the course of several days or weeks, the method of documenting the conduct of such an investigative (search) action is particularly important; specifically, the search protocol must indicate that the action has been suspended, rather than that it has been concluded [2, 121].

According to Y.P. Alenin and V.D. Bernaz, however, if the need arises to conduct a repeat search of the same premises, the investigator and prosecutor must repeat the procedure for obtaining a warrant from an investigating judge to enter and search the premises [3, 483]. Furthermore, O.V. Shvidkova argues: “The current Code of Criminal Procedure of Ukraine … permits entry into a person’s dwelling or other premises on the basis of a single ruling by an investigating judge only once” [4, 9]; “if the investigator leaves the search site during a break, pursuant to Part 1 of Article 233 of the Code of Criminal Procedure of Ukraine, in order to continue the search, the investigator has the right to enter a person’s dwelling or other premises the following day only with the voluntary consent of the owner” [4, 9].

Applying a literal interpretation of the provision of Part 1 of Article 235 of the Code of Criminal Procedure, we note that the wording “an investigative judge’s ruling authorizing a search of a person’s residence or other premises on the grounds specified in the prosecutor’s motion, the investigator, grants the right to enter a person’s home or other premises only once,” in our opinion, unequivocally indicates that entry into a person’s home or other premises for the purpose of conducting a search there is permitted only once. If the legislature had intended to provide for a “continuation” of the search based on the same ruling of the investigating judge, it would have been appropriate to specify that “an investigative judge’s ruling authorizing a search of a person’s home or other premises on the grounds specified in the motion filed by the prosecutor or investigator grants the right to conduct a search of a person’s home or other premises only once,” and in such a case, indeed, when a recess is announced, it would be correct to proceed as proposed by O.V. Kaplina [1, 15]. “Entry,” however, in the context of a search, means gaining access to a person’s residence or other premises and, in criminal proceedings, is associated with the subsequent conduct of certain procedural actions [5, 154], and therefore, upon leaving the premises of a person’s dwelling or other property, the entry should be considered complete, and a new order from the investigating judge must be obtained to continue the search. This preliminary conclusion is consistent with other provisions of the Code of Criminal Procedure, in particular, that a search based on a ruling by an investigating judge must be conducted to the extent necessary to achieve the purpose of the search (Art. 236(5) of the Code of Criminal Procedure); investigative (search) activities may not be conducted at night (from 10 p.m. to 6 a.m.), except in urgent cases where a delay in conducting them could result in the loss of evidence of a criminal offense or the suspect’s escape. These provisions permit the conduct of a continuous search without leaving the premises being searched; even if it becomes necessary to continue the search at night, the investigator or prosecutor has the right to do so, since it is understood that leaving a residence or other premises while the search is still in progress would, with a high degree of probability, result in the loss of evidence of a criminal offense. In addition, it should be noted that a procedural action such as sealing a person’s residence or other premises is neither provided for nor regulated by the current Code of Criminal Procedure, which already calls into question the legality of the investigator’s or prosecutor’s actions regarding such sealing during a “break” in the search. At the same time, it should be noted that, given the complexity of criminal proceedings, the insufficient number of investigators, the heavy workload of investigators and prosecutors, and the difficulties in forming investigative and operational teams for complex and protracted searches, the current regulatory framework governing entry into a person’s residence or other premises does not ensure a balance between public and private interests; therefore, proposals to amend Part 1 of Article 235 of the Code of Criminal Procedure should be recognized as well-founded [4, 10]. However, under the current version of the Code of Criminal Procedure, if the person conducting the search leaves the searched residence or other premises, it is unlawful to continue the search on the basis of the same ruling by the investigating judge.

There are other gaps and conflicts in the regulatory framework governing search procedures. For example, Part 4 of Article 236 of the CPC provides that if no one is present in the residence or other premises, a copy of the order must be left in a conspicuous place within the residence or other premises. At the same time, the investigator or prosecutor is obligated to ensure the safety of property located in the person’s residence or other premises and to prevent unauthorized persons from accessing it. However, the Code of Criminal Procedure does not specify the length of time that persons must be absent from the residence for a search to be conducted in this manner, which could facilitate abuse by investigators and prosecutors. Furthermore, the wording “absence of persons from a residence or other premises” should be critically evaluated, as it fails to account for the requirement that the person present in the residence or other premises must be the owner of the residence or other premises, or a person present there with the owner’s permission—rather than any unauthorized third parties. It should be noted that there is a case in judicial practice where the absence of the owner of the residence or other premises, or of other persons in that premises, was not considered a valid reason for failing to comply with an investigating judge’s search warrant [6].

Furthermore, Part 7 of Article 236 provides that during a search, the investigator or prosecutor has the right to take measurements, photographs, and audioor video recordings, draw up plans and diagrams, create graphic representations of the searched residence or other property of the person or of specific items, take impressions and casts, and examine and seize items and documents relevant to the criminal proceedings. There is no requirement to draw up a search report, although Part 8 of the same article refers to its existence. We consider it necessary to explicitly provide in Part 7 of Article 236 that a search report detailing the course and results of the search must be drawn up, which must comply with the requirements set forth in Part 3 of Article 104 of the Code of Criminal Procedure.

Thus, when executing an investigating judge’s ruling authorizing a search of a person’s residence or other premises, in order to comply with due process, it must currently be assumed that if the person conducting the search the searched residence or other premises, it is unlawful to continue the search on the basis of the same ruling by the investigating judge. The procedure for conducting a search must be improved with regard to documenting the search, as well as clarifying the possibility of conducting it in the absence of persons in the residence or other premises.

References:

1. Kaplina, O.V. Problems of Regulatory Framework and Practice of Conducting Searches During Criminal Proceedings / O.V. Kaplina // Journal of the National University “Ostrog Academy.” “Law” Series. – 2015. – No. 2(12). – pp. 1–20. : [Electronic resource]. – Access mode: http://lj.oa.edu.ua/articles/2015/n2/15kovckp.pdf
2. Komarnytska, O. B. Selected Issues Regarding the Conduct of Home Searches by the Prosecution / O. B. Komarnytska // Journal of Civil and Criminal Procedure. - 2016. - No. 4. - pp. 118–129.
3. Criminal Procedure Code of Ukraine: Scientific and Practical Commentary / Edited by S. V. Kivalov, S. M. Mishchenko, V. Yu. Zakharchenko. – Kharkiv: Odissey, 2013. – 1,104 pp.
4. Shvidkova, O. V. “Search as a Method of Gathering Evidence” / O. V. Shvidkova // Journal of the National University “Ostrog Academy.” “Law” Series. — 2014. — No. 2 (10). — pp. 1–17. Available at: http://nbuv.gov.ua/UJRN/Choasp_2014_2_35.
5. Zakharko, A. V. Regulation of Entry into a Person’s Residence or Other Premises / A. V. Zakharko //  European Standards of Criminal Procedure: Proceedings of the All-Ukrainian Scientific and Practical Conference (Donetsk, September 27, 2013). Edited by: O.O. Volobuieva, V.P. Gorbachev, D.S. Palamar. – Donetsk: Donetsk Institute of Law of the Ministry of Internal Affairs of Ukraine, 2014. – pp. 154–155.
6. Ruling of the Investigating Judge of the Karlivka District Court of Poltava Oblast dated April 10, 2014 (Case No. 531/685/14-k) [Electronic resource]. — Available at: http://www.reyestr.court.gov.ua/Review/40167504.