CURRENT ISSUES OF THE SEARCH

Fixing of the court session, in which the investigator judge makes a search order, with the help of sound and video recording tools mandatory or not?

In accordance with the provisions of Part 5 of Art. 27 of the Criminal Procedure Code of Ukraine - "... during the trial and in the cases provided for by this Code, during the pre-trial investigation it is ensured full recording of the court session and procedural actions with the help of sound and video recording equipment ..."

At the same time, changes in the use of video recording equipment during the trial are effective from 01/01/2019.

What Ukrainian legislation defines as a "trial":

In accordance with clause 24 Part 1 Article 3 of the Criminal Procedure Code of Ukraine - "... the trial is one of the stages of criminal proceedings in the court of first instance ..."
in accordance with the provisions of part 1 of Article 377 of the Code of Criminal Procedure of Ukraine - "... the trial is conducted only against the person charged and only within the scope of the indictment in accordance with the indictment, except in cases provided for in this article ...";
in accordance with Part 2 of Article 347 of the Code of Criminal Procedure of Ukraine - "... the trial begins with the procurator's announcement of a summary of the indictment, if the participants in the trial did not file an application for declaring the indictment in full ...";
Analyzing the content of the foregoing, it follows that the consideration by the investigating judge of the search for a search at the pre-trial investigation stage is not a trial. With this it follows that the application rules for the examination of applications for the search of video recording equipment come into force not from 01/01/2019, but from 15.03.2018.

In accordance with Part 4 of Article 107 of the Criminal Procedure Code of Ukraine, fixing with the help of technical means of criminal proceedings when examining issues by the investigating judge, except for resolving the issue of conducting secret investigative (investigative) actions, and in court during judicial proceedings is mandatory.

It should be noted that this rule does not refer to the full recording of the court session.

However, this is indirectly stated in Article 43 part 3 of Article 87 of the Criminal Procedure Code of Ukraine: "Proof is also inadmissible when executing a resolution to permit the search of a dwelling or other possession of a person, if such a decision was made by the investigating judge without full technical fixation of the meeting .

Part 27, Part 5 of Art. 3 of the Code of Criminal Procedure of Ukraine determines that full fixation is the fixation with the help of both audio and video recording equipment.

Thus, analyzing in aggregate the content of articles 27, 107, 87 of the Criminal Procedure Code of Ukraine, it can be argued that the court session at which the investigating judge resolves the issue of granting a search permit should and must take place with the provision of full fixation with the help of audio and video recording techniques means. And if this rule has not been fulfilled, it can be confidently noted that schodokazy received during the execution of such a resolution on the permit to search a home or other possession of a person are unacceptable.

Video fixing during the search:

According to the dispositions of part 1 of Article 107 of the Criminal Procedure Code of Ukraine - "... the execution of the decision of the investigating judge, the court to conduct a search is fixed with the help of sound and video recording equipment ..."

Part 10 of Article 236 of the Code of Criminal Procedure of Ukraine also specifies that the search of a home or other possession of a person on the basis of a decision of an investigating judge is necessarily recorded through audio and video recording.

The legislator twice stressed that it is mandatory to record only with the help of audio and video recording the search, which is carried out on the basis of and pursuant to the decision of the investigating judge.

At the same time, it should be noted that the search is not always carried out pursuant to the decision of the investigating judge. For example, Article 233 of the Code of Criminal Procedure allows the investigator to enter the home or other possession of a person and conduct a search in urgent cases related to saving lives and property or directly prosecuting persons suspected of committing a crime.

Proceeding from the above, it can be concluded that the search, which is carried out after penetration into the dwelling and other possession of a person in accordance with the procedure of art. 233 of the Code of Criminal Procedure of Ukraine, should not be recorded without fail by means of audio and video recording equipment.

However, the participant (s) present during the search can submit a petition for technical fixation of the search using audio and video recording in accordance with Part 1 of Article 107 of the Criminal Procedure Code of Ukraine. And in this case, the investigator, the prosecutor or the person conducting the search will already be required to carry out such a fixation. Because, according to the dispositions of part 1 of Article 107 of the Criminal Procedure Code of Ukraine - "... at the request of the participants in the procedural action, the use of technical means of fixation is mandatory ..." and "... the right of unimpeded fixation of the search by video recording is granted to the defense side. .. "

However, in paragraph 1 of Part 1 of Art. 3 of the Code of Criminal Procedure of Ukraine indicates that the defense party includes: a suspect, accused (defendant), convicted, acquitted, a person in respect of whom the use of compulsory measures of a medical or educational nature is contemplated or resolved, their advocates and legal representatives.

But, as practice shows, in most cases searches are conducted by persons who are not parties to criminal proceedings at the time of the procedural action.

At the same time, Article 20 of the Law of Ukraine "On Advocacy and Advocacy" gives the right to an attorney to use technical means and record the procedural actions in which he participates.

According to part 2 of Article 104 of the Criminal Procedure Code of Ukraine - "... a record made using audio and video recording equipment when conducted by an investigator, a search prosecutor, is an integral annex to the protocol. The actions and circumstances of the search, not recorded in the entry, can not be entered in the search report and used as evidence in criminal proceedings ... "

It is not clear how "actions and circumstances" can be used as evidence in criminal proceedings. After all, according to Article 84 of the Criminal Procedure Code of Ukraine, "... Evidence in criminal proceedings is factual data obtained in accordance with the procedure established by this Code, on the basis of which the investigator, prosecutor, investigator, judge and court establish the presence or absence of facts and circumstances relevant for criminal proceedings and are subject to proof. The procedural sources of evidence are testimony, material evidence, documents, expert opinions ... "

Actions and circumstances can not serve as evidence at all.

According to Article 105 of the Criminal Procedure Code of Ukraine, the annexes to the protocols must be properly manufactured, packaged for the purpose of reliable preservation, and certified by the signatures of the investigator, prosecutor, specialist, other persons involved in the manufacture and / or seizure of such applications.

At the same time, as stated in part 3 of Article 107 of the Criminal Procedure Code of Ukraine, original copies of technical media of recorded procedural action are stored in criminal records, and backup copies (if any) should be kept separately.

From this it follows that the originals of technical information carriers, and not their copies, should be attached to the search report. If during the trial the prosecutor submits a search record to the court with a videotape of the search, which was copied to another technical medium, the lawyer can confidently state the absence of such a video recording and, consequently, the invalidity of the procedural action - the search.

In addition, the indication in the search protocol of the technical characteristics of the information carriers to which the records were made gives the lawyer grounds to file a petition for the inadmissibility of evidence obtained during the search. (This circumstance became one of the grounds for the recognition of evidence inadmissible in case No. 650/523/15-k (judgment of December 12, 2017, Veliko-Aleksandrovsky District Court of the Kherson region, access to a court decision https://reyestr.court.gov. ua / Review / 70877410).

The consequences of non-use of technical means during the search are defined in part 6 of Article 107 of the Code of Criminal Procedure of Ukraine - "... The non-application of technical means of fixing criminal proceedings in cases when it is mandatory entails the invalidity of the relevant procedural action and the results obtained as a result of it , except for cases when the parties do not object to the recognition of such an action and the results of its implementation acting ... "

Unfortunately, the Criminal Procedure Code of Ukraine does not contain the concept of "invalidity of procedural action". In civil law there is the concept of "invalidity of the transaction" - this is a transaction that does not create legal consequences (art. 216 CC). Therefore, the correct interpretation of the "invalidity of procedural action" as such, it can be determined, as such, does not create legal consequences.

According to part 3 of Article 370 of the Criminal Procedure Code of Ukraine - "... the decision taken by the court on the basis of objectively clarified circumstances, which is confirmed by evidence examined during the trial and evaluated by the court in accordance with Article 94 of this Code, is justified ..."

According to Article 84 of the Criminal Procedure Code of Ukraine, "... Evidence in criminal proceedings is factual data obtained in accordance with the procedure established by this Code, on the basis of which the investigator, prosecutor, investigator, judge and court establish the presence or absence of facts and circumstances relevant to criminal proceedings and subject to proof ... "

According to part 2 of Article 91 of the Criminal Procedure Code of Ukraine - "... Evidence consists in collecting, verifying and evaluating evidence in order to establish circumstances relevant to criminal proceedings ..."

Analyzing the contents of the above, we can draw the following conclusion:

evidence that was collected, received as a result of an invalid procedural action, are not evidence obtained in the procedure established by the CPC. Such evidence does not meet the criteria for the admissibility of evidence, and they can not be invoked by a court in making a judgment.