Issues Concerning the Guarantee of Due Process in Searches (in Light of the Amendments to the Criminal Procedure Code of Ukraine)

Statement of the Problem and Analysis of Previous Research. A search, as one of the nonverbal investigative actions, is a highly effective means of collecting and verifying evidence in criminal proceedings. At the same time, to ensure the admissibility of the factual data obtained as a result of a search, strict compliance with the requirements of the Code of Criminal Procedure is necessary—both when an investigating judge reviews a motion for a search and when the search is conducted, as well as at the conclusion of the pretrial investigation, when the pretrial investigation materials are made available. The issue of ensuring due process when reviewing a search warrant application and when conducting a search has never been overlooked by researchers, especially given the instances of abuse and violations that have occurred in practice during searches; however, these issues have gained renewed relevance following the adoption and entry into force of the Law of Ukraine “On Amendments to Certain Legislative Acts Regarding Ensuring Compliance with the Rights of Participants in Criminal Proceedings and Other Persons by Law Enforcement Agencies During Pre-trial Investigations” dated November 16, 2017. These changes have not yet been systematically subjected to scholarly analysis. Therefore, the purpose of this article is to identify problematic aspects of the regulatory framework governing the recording of the consideration of search warrants, the conduct of searches, and the consequences of non-compliance with the requirements of the Code of Criminal Procedure when considering search warrants and conducting searches (in light of the amendments to the Code of Criminal Procedure).

Presentation of the Main Material. In examining the issues of the first section—namely, the recording of the consideration of a search warrant application—we note that Part 5 of Article 27 of the CPC is worded as follows: “5. During court proceedings and in cases provided for by this Code, during the pretrial investigation, a complete recording of the court hearing and procedural actions shall be ensured using audio and video recording equipment. The official record of the court hearing is only the technical recording made by the court in accordance with the procedure provided for by this Code.” While supporting the advisability of video recording of hearings, we draw attention to the impractical and unjustified duplication of recording using both audio and video recording equipment, since video recording capabilities already include audio recording. This also applies to the amended wording of Part 1 of Article 107 of the Code of Criminal Procedure, which states that “the execution of a ruling by an investigating judge or a court to conduct a search shall be recorded using audio and video recording equipment,” even though the recording of a search using audio equipment is surprising in itself, given that a search is a nonverbal investigative (search and seizure) action.

The updated provisions of Part 4 of Article 107 of the Code of Criminal Procedure regarding the consideration of matters by an investigating judge raise concerns regarding the absence of additions to the second sentence of this same part, since the rule that “In the event that not all persons participating in the court hearing appear in the court proceedings, or if, in accordance with the provisions of this Code, court proceedings are conducted by the court in the absence of persons, the criminal proceedings in court shall not be recorded using technical means», should also apply to the consideration of issues by an investigating judge. Therefore, it is deemed appropriate to revise this sentence as follows: “If all persons participating in the court proceedings fail to appear at the court hearing or during the consideration of matters by an investigating judge, or if, in accordance with the provisions of this Code, court proceedings are conducted by the court in the absence of persons or matters are considered by an investigating judge in the absence of persons, criminal proceedings in court shall not be recorded using technical means».

In the context of search procedures, while unequivocally supporting the already established general rule that the execution of a ruling by an investigating judge or a court to conduct a search must be recorded using audio and video recording equipment—which, without a doubt, can serve as an effective mechanism for preventing abuses during searches and ensuring compliance with legal requirements by all participants in these investigative (search) actions—we note that the regulatory framework governing certain provisions regarding the recording of searches is not without flaws. In particular, the wording of Article 104 of the Code of Criminal Procedure—«Actions and circumstances of a search that are not  recorded  in the recording may not be included in the search report or used as evidence in criminal proceedings» raises doubts from the perspective of failing to take into account the legal definition of evidence contained in Article 84 of the CPC, in which evidence is defined through the phrase “factual data,” which indicates that “actions and circumstances” can never, under any circumstances, be recognized as evidence or used as such.

Furthermore, in accordance with the amended wording of paragraph 1 of Article 107 of the Code of Criminal Procedure, “The defense is granted the right to unimpeded video recording of the search.” This wording directly contradicts the amended Part 3 of Article 236 of the Code of Criminal Procedure, which includes the following provision: “A person in whose residence or other premises a search is being conducted has the right to legal assistance from an attorney at any stage of the search.” Thus, if one interprets the provisions of Part 1 of Article 107 of the Code of Criminal Procedure literally, then in cases where a lawyer is not acting as defense counsel, he or she no longer has the right to freely record the search via video. This, in turn, constitutes a restriction on the lawyer’s professional rights, since paragraph 8 of Article 20 of the Law of Ukraine “On the Bar and the Practice of Law” provides that, in the course of practicing law, a lawyer has the right to take any actions not prohibited by law, the rules of legal ethics, or the agreement on the provision of legal assistance, necessary for the proper performance of the agreement on the provision of legal assistance, in particular to use technical means—including for copying case materials in which the attorney is providing defense, representation, or other types of legal assistance—to record procedural actions in which he or she participates, as well as the course of the court hearing in the manner prescribed by law.

At the same time, attention should be drawn to another important aspect. The practice of implementing the updated provisions of the Code of Criminal Procedure of Ukraine has revealed a problem: there are no detailed regulations on how to conduct video recording. It remains unclear whether witnesses must be included in the frame or whether the camera must record the fact of seizure and the inventory of property. Most importantly, the amendments to the CPC do not mention the requirement for continuous video recording [1]. Indeed, unlike, for example, the provisions of Part 7 of Article 223 of the CPC of Ukraine, Part 1 of Article 107 of the CPC of Ukraine, for unclear reasons, does not contain any indication of the need to ensure continuous audio and video recording. However, the fundamental principle of criminal proceedings set forth in Article 27 of the CPC of Ukraine is titled “Publicity and Openness of Judicial Proceedings and Full Recording of Court Hearings and Procedural Actions by Technical Means,” and paragraph 5 of the same article provides that during court proceedings and in cases provided for by the CPC of Ukraine, during the pretrial investigation, the full recording of court hearings and procedural actions using audio and video recording equipment shall be ensured. Accordingly, “full recording” appears to indicate the need for continuous, uninterrupted recording of procedural actions, including searches, which should be taken into account when providing legal assistance in criminal proceedings.

Changes regarding the regulation of searches are not always consistent. For example, under the version of Part 1 of Article 236 of the Code of Criminal Procedure dated November 16, 2017, the victim, suspect, defense counsel, representative, attorney, and other participants in the criminal proceedings may be invited to participate in the search. However, Part 1 of Article 236 of the Code of Criminal Procedure, as amended by the Law of Ukraine “On Amendments to the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts” dated October 3, 2017, provides that the victim, suspect, defense counsel, representative, and other participants in criminal proceedings may be invited to participate in a search; there is no longer any mention of a lawyer; although Part 3 specifies that the investigator or prosecutor has no right to prohibit participants in the search from receiving legal assistance from a lawyer or representative. The investigator or prosecutor is obligated to allow such a lawyer or representative to be present during the search at any stage of its conduct.

When addressing the issue of the consequences of failing to follow due process in documenting the consideration of a search warrant application and conducting a search, attention should be drawn to the following problematic issues. Part 3 of Article 87 of the Code of Criminal Procedure has been supplemented with paragraphs 3 and 4 as follows: “3) during the execution of a ruling authorizing a search of a person’s residence or other premises in connection with the denial of a lawyer’s access to this investigative (search) action. The lawyer is required to prove the fact of being denied participation in the search in court during the proceedings; 4) during the execution of a ruling authorizing a search of a person’s residence or other premises, if such a ruling was issued by an investigating judge without a complete technical recording of the hearing.” In assessing these provisions, the question arises as to why the fact of being denied participation in the search must be proven solely by the attorney. After all, a situation may arise in which, during the court hearing, this attorney is no longer providing professional legal assistance to the defendant (if the attorney is acting as defense counsel). Furthermore, a search may be conducted in the residence or other premises of any person, including someone who will not be a party to future court proceedings; consequently, their attorney will also not be a party to those proceedings. In such a case, what burden of proof regarding the fact of the attorney’s exclusion from the search can even be raised? Moreover, even as a witness, we believe such a lawyer may be questioned only if the client has released him or her from the duty to maintain attorney-client privilege by means of a written statement. Furthermore, the wording of paragraph 3 somewhat contradicts the provisions of Part 2 of Article 92 of the Code of Criminal Procedure, since, as a general rule, a party is obligated to prove the admissibility of the evidence it submits, whereas this wording implies an obligation on the part of the attorney (who may not even be part of the defense) to prove the inadmissibility of the prosecution’s evidence. It should be noted that the issue of the burden of proof in cases where a motion is filed to declare evidence inadmissible is quite controversial in the literature [2, pp. 70–71; 3], however, given that there is no definitive answer to this question in legal doctrine or practice, the cited wording resolves this issue only partially in the context of evidence obtained during the execution of a warrant authorizing a search of a person’s residence or other premises. As for paragraph 4, it does not specify on whom the burden of proof rests. The wording “is obligated to prove in court during court proceedings” is very narrow. After all, Part 4 of Article 87 provides that the evidence referred to in this article must be deemed inadmissible by the court during any judicial proceedings, except when the issue of liability for committing the specified substantial violation of human rights and freedoms is being decided, as a result of which such information was obtained, which opens the possibility of examining the admissibility of evidence during proceedings, in particular, when considering a motion to apply measures to secure criminal proceedings [4; 5; 6]. And the above wording deprives the defense counsel of the opportunity, for example, point out, during the consideration of a motion to seize property, that the physical evidence seized during the search is inadmissible, as well as, during the consideration of a motion to impose a preventive measure, to challenge the existence of reasonable suspicion or risks on the grounds that the evidence seized during the search is inadmissible.

Such a ground for rejecting factual findings—namely, “during the execution of a warrant authorizing a search of a person’s residence or other premises, if such a warrant was issued by an investigating judge without a complete technical recording of the hearing”—requires compliance with the Code of Criminal Procedure’s requirements for mandatory audio and video recording of the hearing on a search motion, since Part 4 of Article 107 of the CPC provides that the recording of criminal proceedings using technical means during the consideration of matters by an investigating judge—except for decisions on conducting covert investigative (search) actions—and in court during judicial proceedings is mandatory; Part 5 of Article 27 of the Code of Criminal Procedure unequivocally requires “full recording of court hearings and procedural actions using audio and video recording equipment,” and the postponement of the effective date applies only to the use of video recording equipment during court proceedings, not during pretrial proceedings, since the provision refers to court proceedings—which constitute a stage of criminal proceedings—rather than to a court hearing, which also takes place during pretrial proceedings when the investigating judge considers motions. In addition, these provisions must be taken into account when disclosing materials from the pretrial investigation.

Part 4 of Article 107 of the Code of Criminal Procedure provides that an investigating judge, the court may restrict or prohibit access by the defense parties in criminal proceedings to the results of technical recordings in order to ensure that information from the pretrial investigation is not disclosed, if the investigator or prosecutor provided the results of covert investigative (search) actions to substantiate a motion to conduct a search. O. Tatarov points out that “the legislature has overlooked the issue of the possibility of using materials that substantiate the grounds for conducting a search (interrogation protocols of key witnesses, ‘undercover’ raquo; individuals), or any other materials, the disclosure of which could lead not only to the leakage of information but also to the undermining of the entire tactics and planning of the pretrial investigation. After all, the search may fail to achieve its objective. However, potential “criminals” will be able to learn from the transcript of the motion hearing what information the pre-trial investigation authority possesses, as well as details about individuals cooperating with it” [7].

At the same time, this wording of the provision does not meet the requirement of legal certainty as an element of the rule of law, since it implies, first and foremost, a requirement for clarity regarding the grounds, objectives, and content of normative provisions, especially those addressed directly to citizens [8, p. 369]; in its judgment in “Mykhailiuk and Petrov v. Ukraine” (Application No. 11932/02), the ECHR recalled that the phrase “in accordance with the law” requires, first and foremost, that the contested interference have a specific basis in national legislation; it also concerns the quality of the relevant legislation and requires that it be accessible to the person concerned, who must, moreover, be able to foresee its consequences for themselves, and that this legislation comply with the principle of the rule of law. The cited provision of the Code of Criminal Procedure establishes neither the limits of judicial discretion, nor the standard of proof, nor the procedure for resolving this issue, nor the possibility of appealing a court decision, nor the stage or phase of criminal proceedings at which this issue must be resolved, nor who is to raise the issue of such a restriction or prohibition on access, what role the defense plays in resolving this issue, and whether this provision applies when the requirements of Article 290 of the CPC are being met. Furthermore, it should be noted that if the results of covert investigative (search) actions had not been declassified at the time the motion for a search was considered, then they, accordingly, could not have been submitted to support the motion. In accordance with paragraph 5.9 of the Instructions on the Organization and Conduct of Covert Investigative (Intelligence) Activities and the Use of Their Results in Criminal Proceedings dated December 16, 2012, upon completion of covert investigative (search) activities, the MNI’s classification designations regarding their conduct are subject to declassification based on a decision by the prosecutor exercising the powers of a prosecutor in the specific criminal proceeding in the form of procedural supervision of the pretrial investigation, taking into account the circumstances of the criminal proceedings and the need to use the materials from covert investigative (search) activities as evidence after such activities have been conducted, provided that the disclosure of such information does not harm Ukraine’s national security. If, however, at the time of consideration of a motion for a search, the results of covert investigative (search) operations have already been declassified, then it is unclear what purpose such a restriction in Article 107 of the Code of Criminal Procedure of Ukraine serves.

In the case law of the European Court of Human Rights, while it is recognized that the right to access information about a case is not an absolute right, a refusal to disclose information may be justified if it pursues a legitimate aim—for example, the protection of national security; the protection of another person’s fundamental rights—for example, the protection of witnesses from possible retaliation; or the protection of an important public interest— for example, the police’s non-disclosure of confidential criminal investigation methods—it is emphasized that in any situation involving a refusal to disclose information, such measures must be strictly necessary and weighed against the rights of the party whose interests are affected [9, pp. 133–134]. Only measures that restrict the rights of the defense and are strictly necessary are permitted under Article 6(1). Furthermore, to ensure that the accused receives a fair trial, any difficulties faced by the defense due to such restrictions must be sufficiently offset by procedures implemented by the judicial authorities [10]. In the context of its proceedings, the European Court of Human Rights (ECHR) noted in the decision “Matanović v. Croatia” that the Court must, in particular, examine whether the non-disclosure was balanced by appropriate procedural safeguards. For example, in the case of Jasper v. the United Kingdom ([GC], No. 27052/95, §§ 53, 16 February 2000), the Court noted that the defense had been informed and had been permitted to make submissions and participate in the decision-making process to the extent possible, and that the judge hearing the case had decided to disclose the evidence, even though the defense did not have access to it. The Court noted that the judge was aware of the content of the seized evidence and the nature of the applicant’s cases, and thus had the opportunity to balance the applicant’s interest in the disclosure of the information against the public interest in its non-disclosure (see, by way of comparison, Edwards and Lewis, cited above, § 46). 155. When assessing the relevant procedural safeguards, the Court must also take into account the importance of the undisclosed material and its use in court (see Jasper, cited above, §§ 54–55). The Court must, in particular, ensure that the domestic proceedings allowed for an examination of the impact of the relevant material on the certainty of the conviction in light of the defense’s detailed and well-founded evidence based on the available information [10]. Under the national procedure set forth in the Criminal Procedure Code of Ukraine, the defense is deprived of the opportunity to participate in resolving this issue, which may call into question the fairness of the trial as a whole.

In considering the issue of changes to the regulations governing the temporary seizure of electronic information systems or parts thereof, as well as mobile terminals of communication systems, we note that the amendments are problematic in that, first, they do not fully align with the previously established restrictions on the temporary seizure of such items, second, in some respects, they do not sufficiently clearly define the limits of the prosecution’s discretion. Thus, the provisions of Part 2 of Article 168 of the Code of Criminal Procedure, as amended by Law    of Ukraine No. 191-VIII dated February 12, 2015, provides that the temporary seizure of electronic information systems or parts thereof, as well as mobile terminals of communication systems, for the purpose of examining physical properties relevant to criminal proceedings, shall be carried out only if they are directly specified in the court ruling. However, the third paragraph of the same section, in accordance with Law No. 2213-VIII of November 16, 2017, provides that the temporary seizure of electronic information systems or parts thereof, as well as mobile terminals of communication systems, is prohibited, except in cases where their provision, together with the information contained therein, is a necessary condition for conducting an expert examination, or if such items were obtained as a result of the commission of a criminal offense or constitute a means or instrument for its commission, as well as if access to them is restricted by their owner, possessor, or holder or involves bypassing a logical security system. As can be seen, despite the similarity in the general concept of restrictions on seizure, the third paragraph does not contain a provision requiring that the possibility of temporary seizure be specified in the court order; furthermore, an alternative condition for seizure is considered to be that “access to them is restricted by their owner, possessor, or holder, or is associated with circumventing a digital protection system,” is considered an alternative condition for seizure; however, in the absence of the preceding conditions, this condition cannot serve as an alternative, since the mere fact that access is restricted by their owner, possessor, or holder, or is is linked to bypassing a logical protection system does not in and of itself indicate the need for their seizure, since restricting access to storage media that contain or may contain, among other things, personal data is a natural desire of an individual for privacy and for limiting access to data about themselves, their personal life, and their family life.

Conclusions. Ensuring due process in search procedures, in light of the amendments to the Criminal Procedure Code of Ukraine dated November 16, 2017, requires further refinement of both the relevant provisions and the standardization of their application in practice. Amendments and clarifications are needed to the provision of the second sentence of Part 4 of Article 107 of the Code of Criminal Procedure of Ukraine, which could be worded as follows: “In the event that not all persons participating in the court proceedings appear at the court hearing or during the consideration of matters by the investigating judge, or if, in accordance with the provisions of this Code, court proceedings are conducted by the court in the absence of persons or the consideration of issues by the investigating judge is conducted in the absence of persons, criminal proceedings in court shall not be recorded using technical means». The list of persons who, in accordance with the amended wording of Part 1 of Article 107 of the Criminal Procedure Code of Ukraine, are granted the right to unimpeded recording of a search via video should be expanded, and this provision should be formulated as follows: “The right to unimpeded recording of a search via video is granted to to persons present in the residence or other premises of the person during the search». Given the problematic and incorrect nature of the provision in Article 87 of the CPC of Ukraine regarding the burden of proof for the fact that a defense attorney was denied participation in a search—in terms of the parties involved, the stage of the proceedings, and the subject matter—paragraph 3 of Part 3 of Article 87 of the CPC of Ukraine should be worded as follows: “3) during the execution of a ruling authorizing a search of a person’s residence or other premises in connection with the denial of a defense attorney’s access to this investigative (search) action.” Given that the provision of Part 4 of Article 107 of the Criminal Procedure Code of Ukraine regarding the possibility of prohibiting the defense parties in criminal proceedings from accessing the results of a technical recording in order to ensure that information from the pretrial investigation is not disclosed, in the event that if, in support of a motion to conduct a search, the investigator or prosecutor provided the results of covert investigative (search) actions, is incorrect both in terms of non-compliance with the requirements of legal certainty and in terms of the use of declassified and unclassified results of covert investigative (search) actions; therefore, it must be revoked. Changes to the regulations governing the temporary seizure of electronic information systems or parts thereof, as well as mobile communication terminals, do not fully align with the previously established restrictions on the temporary seizure of such items; furthermore, in some respects, they do not sufficiently clearly define the limits of the prosecution’s discretion prosecution, which indicates the need for further clarification of these provisions.

In the context of unifying the practice of applying Articles 27, 107, and 236 of the Criminal Procedure Code of Ukraine, the requirement of “complete recording” under Article 27 of the Criminal Procedure Code of Ukraine should be interpreted as a requirement for the continuous, uninterrupted recording of procedural actions, including searches.