Shooting no stopping: about the main gaps in video shooting of search
At a time when the entire legal community follows with increased interest the fate of the draft law “Mask-show stop-3” (No. 9484), which is designed to protect the IT-business from unauthorized searches and abuse of authority by law enforcement officers in such operations, urgent and still unresolved issues took a back seat created by the Law “Mask-show stop-2” (No. 2213-VIII).
Not giving an assessment of the Law No. 2213-VIII as a whole, we note that quite contradictory and ambiguous in law enforcement practice are stories relating to compulsory full recording of court hearings and proceedings by technical means.
Thus, part 1 of Article 107 of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine) regulates that the decisions of the investigating judge, court on conduction of a search shall be obligatory necessarily recorded with sound and video recording technical means.
However, an issue remains unresolved concerning when to begin recording, from the time an investigator, a prosecutor presents a ruling of the investigating judge on permission for search to the person who owns the housing, and in its absence – to another person, or from the moment the law enforcement bodies directly begin the search.
Taking into account the negative practice of the pre-trial investigation bodies to invite witnesses to the search that do not meet the requirement for “unconcerned persons” in accordance with Art. 223 of the CPC of Ukraine, I consider it expedient to include in the search protocol the process of their selection, which will serve as the starting point of video recording.
Undoubtedly, positive is inclusion in Art. 104 of the CPC of Ukraine of the provisions that actions and circumstances of the search, which are not recorded in the recording, cannot be included in the search report nor be used as evidence in criminal proceedings. However, Article 27 of the CPC of Ukraine, which establishes the requirement for “full” recording of a procedural action, shall not disclose the content of this concept and shall not explicitly provide for a prohibition to interrupt such recording.
Unfortunately, this gap in the law opens the possibility of law enforcement officers during a search to make pauses in the video, go to another room, and then resume the search recording, creating the opportunity for illegal manoeuvres by the law enforcement bodies.
At the same time, neither Article 236, nor the other norms of the CPC of Ukraine specify when the video recording of a search should be completed. I believe that video recording should be completed after the owner of the housing or another person, the witnesses get acquainted with the search report, making their remarks and putting signatures thereto.
Apart from that, provisions of Part 9 of Article 236 of the CPC arise concern, according to which the second copy of the search report, together with the attached description of the seized documents and temporarily withdrawn things (if any), shall be given to a person who was searched, and in the absence thereof, to an adult member of his family or his representative. As we see, this article does not indicate in any way the duty of an investigator, the prosecutor to hand over to the person who was searched, a carrier with a video of the search itself.
However, taking into account the provisions of Part 2 of Art. 104 of the CPC of Ukraine, according to which a recording made by means of sound and video recording equipment during the conduction by the investigator, prosecutor of a search shall be an integral appendix to the report, we may conclude that the investigator is required after the completion of a search, in addition to the report and description of the seized things, to provide a copy of the video of this search. Despite that, investigators, prosecutors do not do this, referring to the absence of such a duty in the CPC of Ukraine.
In my opinion, after conducting a search it is advisable to contact an investigator with a request to provide a video copy of the search. In case of refusal of the investigator to satisfy the request for submission of a video copy, it is advisable to file a complaint against the latter’s inactivity to the investigating judge in accordance with clause 1 of Part 1 of Art. 303 of the CPC of Ukraine, which consists in the failure to execute other procedural actions, which he is obliged to commit within a period defined in the CPC, with reference to Part 2 of Art. 113, according to which any procedural action or set of actions during the criminal proceedings must be executed without undue delay.
Thus, the Ruling of the investigating judge of Pecherskyi District Court of Kyiv city in case 757/26508/18 (http://reyestr.court.gov.ua/Review/77426817) is satisfied with the lawyer’s complaint against the inaction of the investigator; the investigator is obliged to provide the lawyer in particular with a video copy, which is an annex to the search report.
In addition, I consider it expedient to submit a statement to the investigating judge regarding the establishment of reasonable time limits for the investigating judge to provide such video copy of the search as an integral part of the search report and to apply for temporary access to things and documents, namely, to a video recording of the search.
In particular, there is already a positive practice of satisfying such petitions. Thus, by the ruling of Kyivskyi District Court of Kharkiv city dated 28.12.2018 in the case № 640/23870/18 (http://reyestr.court.gov.ua/Review/78883606), the lawyer was allowed temporary access to the search report and video recording of the search of the house estate, which were in the materials of criminal proceedings.
The abovementioned makes it possible to conclude that despite the efficiency of the mandatory completion of court proceedings declared in the law “Mask-show stop-2” and procedural actions with the help of technical means, a number of issues remains unsolved.
Therefore, in order to ensure proper legal procedure for video recording of a search, it is necessary: to regulate in the CPC the initial and final moments of the video recording of a search; to include a requirement for the continuity of a video recording of a search; to supplement Part 9 of Art. 236 of the CPC of Ukraine with the words “video recording of a search” and to formulate in the following wording:
“The second copy of the search report, together with the attached video recording of the search, description of the withdrawn documents and temporarily withdrawn things (if any), shall be given to the person who was searched, and in the absence thereof, to an adult member of his family or his representative”.
Attorney’s Assistant at JSC “Barristers”
Dmytro Zeleniuk