A decision to place a person in custody that is issued without the hearing being recorded using technical means is invalid

At the end of last year, amendments were made to the Code of Criminal Procedure requiring the complete recording of court proceedings using audio and video recording equipment. Although this requirement is scheduled to take effect on January 1, 2019, it is already in force for cases heard by investigating judges.

The deferral does not apply to all cases

According to paragraph 24 of Part 1 of Article 3 of the CPC, court proceedings “include preparatory court proceedings, the trial itself, and the adoption and pronouncement of a court decision, as well as proceedings for the review of court decisions on appeal, in cassation, and on the basis of newly discovered or exceptional circumstances.” At the same time, the amendments to Part 5 of Article 27 of the CPC take effect on January 1, 2019, only insofar as they concern the trial. Thus, at other stages, they are effective from the moment of official publication.

Part 4 of Article 107 of the Code of Criminal Procedure stipulates that the consideration of matters by an investigating judge must be recorded, with the exception of authorizations for covert investigative (search) actions and court proceedings. Thus, the legislature has clearly distinguished between the concepts of “court proceedings” and “consideration of issues arising during the pretrial investigation by an investigating judge.”

The provision regarding the application of Part 5 of Article 27 of the CPC as of January 1, 2019, applies exclusively to court proceedings. Indeed, there are no notes indicating that this provision does not extend to the consideration of matters by an investigating judge.

By “technical recording devices,” the legislature means audio and video recording equipment (Article 27(5) of the CPC). The use of such devices to record proceedings conducted by an investigating judge is mandatory.

Consequently, today, with the exception of cases provided for in Part 4 of Article 107 of the Code of Criminal Procedure, when considering a motion for the application of preventive measures, the investigating judge is required to ensure that the hearing is recorded using both audio and video recording equipment. A similar conclusion was reached by the head of the Department of Criminal Procedure at the National University “Odessa Law Academy,” Professor Iryna Hlovyuk, Ph.D. in Law, Iryna Hlovyuk, in her article “Problematic Issues in Ensuring Due Process During Searches (in Light of the Amendments to the Code of Criminal Procedure).”

A Decision Without Legal Consequences

No less interesting and at the same time controversial is the question regarding the procedural consequences of violating the requirements of procedural law on the use of technical recording when considering, for example, a motion to impose a preventive measure. Pursuant to Part 2 of Article 412 of the Code of Criminal Procedure, a court decision is subject to reversal in any case if the case file lacks a hearing transcript or a technical data storage medium on which the proceedings in the court of first instance were recorded. The appellate court shall set aside the judgment or ruling of the court and order a new trial in the court of first instance if a violation is established, including that provided for in paragraph 7 of Part 2 of Article 415 of the CPC.

However, as you have likely already noted, both Article 412 and Article 415 of the Code of Criminal Procedure refer not to decisions made during the pretrial investigation stage, but to court verdicts and rulings. Do these provisions apply to rulings by investigating judges?

Note that Part 6 of Article 107 of the CPC itself establishes the procedural consequences in the event of a violation of the requirements of Part 5 of Article 27 and Part 4 of Article 107 of the CPC—namely, the invalidity of the relevant procedural action and the results obtained as a result of its commission. An exception applies in cases where the parties do not object to recognizing such an action and its results as valid.

Thus, the consideration by an investigating judge of a motion or other matter raised before him by the parties to criminal proceedings, without recording it using technical means when such recording is mandatory, results in the invalidity of the relevant procedural action.

The Code of Criminal Procedure does not define the term “invalid.” However, in legal theory, “invalid” refers to something that does not produce legal consequences and has no legal significance. Thus, a decision by an investigating judge—for example, to impose a preventive measure in the form of pretrial detention—adopted in violation of the requirements of the CPC is invalid and therefore does not and cannot produce legal consequences.

Unconditional Revocation

Section V of the Code of Criminal Procedure does not provide for any special procedures for reviewing rulings by an investigating judge; it merely states that such rulings may also be appealed in the cases provided for by the Code (Article 392(3) of the Code of Criminal Procedure). In other words, general rules apply to the review of such appeals, including the provisions governing the grounds for overturning or modifying a decision of the court of first instance.

At the same time, Part 3 of Article 407 of the CPC provides that, based on the results of such review, the appellate court has the right to leave the investigating judge’s ruling unchanged or to set it aside and issue a new one. But what should be done with rulings issued in material violation of the requirements of procedural law?

It should be noted that a material violation includes, in particular, the absence of a court hearing record or a digital recording of the proceedings in the court of first instance (Article 412(2)(7) of the CPC).

As is well known, the appellate court reviews both decisions of the court of first instance (Part 1 of Article 404 of the Code of Criminal Procedure) and rulings of the investigating judge (although this is not explicitly stated in the aforementioned article). In other words, it verifies the correctness of the decisions rendered.

Consequently, the absence of a data storage medium on which the proceedings are recorded makes it impossible to verify the legality of such a decision (it has not produced any legal consequences, as follows from Part 6 of Article 107 of the Code of Criminal Procedure). That is, it appears that such a ruling, in accordance with Part 5 of Article 27, Part 6 of Article 107, Paragraph 7 of Part 2 of Article 412, and Paragraph 1 of Part 1 of Article 415, and in application of Article 9(6) of the Code of Criminal Procedure, is subject to unconditional reversal, with the motion being referred to the investigating judge for a new hearing.

Moreover, judicial practice includes examples of precisely this approach, where the appellate court has set aside rulings by investigating judges and referred the motion for a new hearing.