Dmytro Zelenyuk, Associate Attorney at Barristers LLP: "YOU CAN'T STOP FILMING: On the Main Issues with Video Recording of Searches"

At a time when the entire legal community is closely following the fate of the “Stop the Mask Show-3” bill (No. 9484), which is designed to protect the IT industry from unauthorized searches and the abuse of authority by law enforcement during such operations, acute and still unresolved issues created by the “Mask Show Stop-2” Act (No. 2213-VIII) have faded into the background.

Without assessing Law No. 2213-VIII as a whole, we note that the provisions related to the requirement to fully record court hearings and procedural actions using technical means remain quite controversial and ambiguous in legal practice.

Thus, Part 1 of Article 107 of the Criminal Procedure Code of Ukraine (hereinafter—the CPC of Ukraine) stipulates that the execution of a ruling by an investigating judge or a court authorizing a search must be recorded using audio and video recording equipment.

However, the question of when the video recording should begin remains unregulated: from the moment the investigator or prosecutor presents the investigating judge’s order authorizing the search to the person in possession of the dwelling, or, in their absence, to another person present, or from the moment law enforcement officers actually begin the search.

Given the negative practice of pretrial investigation authorities of inviting witnesses to the search who do not meet the requirement of being “uninterested persons” in accordance with Article 223 of the Code of Criminal Procedure of Ukraine, I consider it appropriate to include the process of their selection in the search protocol, which will serve as the starting point for video recording.

Undoubtedly, it is a positive development that Article 104 of the Code of Criminal Procedure of Ukraine stipulates that actions and circumstances of a search not captured on video may not be included in the search protocol or used as evidence in criminal proceedings. However, Article 27 of the Code of Criminal Procedure of Ukraine, which establishes the requirement for “complete” recording of procedural actions, does not define the meaning of this term and does not explicitly prohibit interrupting such recording.

Unfortunately, this gap in the law allows law enforcement officers to pause the video recording during a search, move to other rooms, and then resume recording the search, which creates an opportunity for unlawful maneuvers on the part of law enforcement agencies.

At the same time, neither Article 236 nor any other provisions of the Code of Criminal Procedure of Ukraine specify when the video recording of a search must end. I believe that video recording should be completed after the owner of the premises or another person, acting as a witness, has reviewed the search report, provided their comments, and signed it.

The provisions of Part 9 of Article 236 of the CPC also raise concerns, pursuant to which the second copy of the search report, together with the attached list of seized documents and temporarily seized items (if any), is handed over to the person whose premises were searched, and, in the event of their absence, to an adult member of their family or their representative. As we can see, the aforementioned article makes no mention whatsoever of the obligation of the investigator or prosecutor to provide the person whose premises were searched with a recording of the search itself.

However, given the provisions of Part 2 of Article 104 of the Criminal Procedure Code of Ukraine, according to which a recording made using audio and video recording equipment during a search conducted by an investigator or prosecutor is an integral part of the search report, we can conclude that the investigator is obligated, upon completion of the search, to provide a copy of the video recording of the search in addition to the search report and the inventory of seized items. However, investigators and prosecutors do not do this, citing the absence of such an obligation in the Code of Criminal Procedure of Ukraine.

In my opinion, after a search has been conducted, it is advisable to submit a request to the investigator asking for a copy of the video recording of the search. If the investigator refuses to grant the request for a copy of the video recording, it is advisable to file a complaint regarding the investigator’s inaction with the investigating judge in accordance with paragraph 1 of part 1 of Article 303 of the Code of Criminal Procedure of Ukraine, which pertains to the failure to perform other procedural actions which he is obligated to perform within the time limits specified by the Code of Criminal Procedure, with reference to Part 2 of Article 113, according to which any procedural action or set of actions during criminal proceedings must be carried out without undue delay.

Thus, by a ruling of the investigating judge of the Pechersk District Court of Kyiv in Case No. 757/26508/18, the attorney’s complaint regarding the investigator’s inaction was granted,the investigator to provide the attorney, in particular, with a copy of the video recording attached to the search report.

Furthermore,  I consider it appropriate to file a motion with the investigating judge to set reasonable deadlines for the investigator to take procedural actions regarding the provision of such a copy of the search video recording as an integral part of the search protocol and to file a motion for temporary access to items and documents, namely, to the video recording of the search.

In particular, there is already a positive track record of granting such motions. For example, by a ruling of the Kyiv District Court of Kharkiv dated December 28, 2018, in case No. 640/23870/18, a defense attorney was granted temporary access to the search report and the video recording of the search of the residential property, which are included in the criminal case file.

The foregoing leads to the conclusion that, despite the effectiveness of the mandatory full video recording of court hearings and procedural actions using technical means, as declared in the “Mask Show Stop-2” law, a number of questions remain unresolved.

Therefore, to ensure due process in the video recording of searches, it is necessary to: specify in the Code of Criminal Procedure the start and end times for video recording of a search; include a requirement for the continuity of the video recording of the search; amend Part 9 of Article 236 of the Code of Criminal Procedure of Ukraine by adding the words “video recording of the search” and rephrasing it as follows:

“The second copy of the search report, together with the attached video recording of the search, a description of the seized documents, and temporarily seized items (if any), shall be handed over to the person whose premises were searched, and, in the event of their absence, to an adult member of their family or their representative.”