Which provisions of the “Stop the Mask Show” law proved ineffective in practice?

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 Pretrial Investigations,” which entered into force on December 7, 2017, (the so-called “Stop the Mask Show” law), ostensibly progressive amendments were made to the Criminal Procedure Code of Ukraine with the aim of protecting businesses from the arbitrary actions of law enforcement agencies. However, in practice, certain provisions of this Law are not always effectively implemented, leading to further abuses by law enforcement officials.

For example, despite the inclusion of long-awaited provisions requiring the presence of a lawyer at any stage of a search, lawyers are still not allowed to be present during searches. Law enforcement officers simply refuse to open the door, ignoring the lawyer’s arrival. The fact that a lawyer was denied access to the search must be documented—for example, by summoning police officers and drafting a corresponding report—and subsequently used to argue that evidence obtained during such a search is inadmissible during the court proceedings in a criminal case.

As for another, at first glance positive, innovation regarding the mandatory technical recording of court hearings, during which a decision to grant a search warrant is made, we are already seeing a situation in the courts where law enforcement officers line up in huge queues before investigative judges from late at night or early in the morning, awaiting the consideration of their motions. The introduction of mandatory audio-visual recording of court hearings where motions for search warrants are considered has already led to an excessive workload for investigating judges and a lack of time for them to hear other types of cases. However, even with this new requirement, loopholes have been found to circumvent the technical recording of hearings—investigators do not (formally) appear for the consideration of their own motions, and in such cases, the hearing is not fully recorded.

Furthermore, although the law provides for the possibility of subsequently declaring evidence obtained during the execution of a search warrant inadmissible if such a warrant was issued by an investigating judge without a complete technical recording of the hearing, there is also a provision allowing the court to restrict or even prohibit access to the technical recording of such a hearing if the materials of the investigator’s or prosecutor’s motion for a search warrant contain information derived from covert investigative (surveillance) activities.

New amendments to the Code of Criminal Procedure also prohibit the seizure during a search of servers, computer equipment, mobile phones, and other types of electronic information systems and mobile communication terminals, with the option to copy only the information contained therein if necessary. However, in practice, investigators continue to seize such property, noting in the search report that it was impossible to copy the information due to password protection or because the property owner obstructed the copying of such information. In such cases, the attorney or the owner of the property should include appropriate comments in the search report, which may subsequently influence the outcome of a complaint regarding the investigator’s inaction, specifically the failure to return temporarily seized property.