Violations during the search

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Violations during the search

Reading time: 9 min.

Law enforcement agencies are increasingly conducting searches and interrogations in Ukraine. Very often significant violations occur during a search.

For example, a gross violation during a search may be:

  • It was not possible to obtain legal assistance from a lawyer (in accordance with Article 59 of the Constitution of Ukraine, Part 3 of Article 236);
  • The search was conducted without the decision of the investigating judge, the requirements of Part 2 of Art. 234 of the Criminal Procedure Code of Ukraine;
  • No decision was issued on the search permit (Article 13, Part 3, Article 236 of the CPC of Ukraine);
  • A copy of the search warrant was not provided (in accordance with Article 236 of the CPC of Ukraine);
  • Before the execution of the decision of the investigating judge, the person who owns housing or other property, and in its absence - another person present was not presented the decision and provided a copy (Part 3 of Article 236 of the CPC of Ukraine) (this article shows that the owner of the premises must be present during the search)
  • The search was carried out by a person who is not specified in the decision on permission to conduct a search, violation of the requirements of Part 2 of Art. 234 of the Criminal Procedure Code of Ukraine;
  • The search was carried out by operatives, but no warrants were issued for them (unauthorized persons, Part 2 of Article 234).
  • More than one search was conducted for one search warrant (in accordance with Part 1 of Article 235 of the CPC of Ukraine);
  • The decision on the search permit does not specify the term of the decision, which may not exceed one month from the date of the decision (paragraph 1, part 2 of Article 235 of the CPC of Ukraine);
  • The decision on the search permit does not contain information about the prosecutor, investigator who filed the search request (paragraph 2, part 2 of Article 235 of the CPC of Ukraine);
  • The decision on the search permit does not specify the provisions of the law on the basis of which the decision is made (paragraph 3, part 2 of Article 235 of the CPC of Ukraine);
  • The decision on the search permit lacks information on the person's home or property or part of the person's home or other property to be searched (paragraph 4, part 2 of Article 235 of the CPC of Ukraine);
  • The decision on the search permit lacks information about the person who owns the dwelling or other property and the person in whose actual possession it is (paragraph 5, part 2 of Article 235 of the CPC of Ukraine);
  • The decision does not specify the person who rents the premises in violation of paragraph 5 of Part 2 of Article. 235 of the Criminal Procedure Code of Ukraine).
  • The decision does not specify the owner of the premises in violation of paragraph 5 of Part 2 of Article. 235 of the Criminal Procedure Code of Ukraine.
  • The decision on the search permit does not specify the things, documents or persons for the identification of which the search is conducted (paragraph 5, part 2 of Article 235 of the CPC of Ukraine);
  • No witnesses were present during the search (in accordance with Part 7 of Article 223 of the CPC of Ukraine);
  • The second copy of the search report together with the description of the seized documents and temporarily seized items was not handed over to the person who was searched, and in his absence - to an adult member of her family or his representative (according to Part 9 of Article 236 CPC of Ukraine);
  • In violation of Part 9 of Art. 236 of the CPC of Ukraine during a search of the enterprise, institution or organization, the second copy of the protocol was not handed to the head or representative of the enterprise, institution or organization.
  • In violation of Part 9 of Art. 236 of the CPC of Ukraine instead of a copy of the protocol (original) handed a copy of the search report.
  • The search report does not contain information about all persons present during the proceedings (in accordance with paragraph 1 of Part 3 of Article 104 of the CPC of Ukraine);
  • The participants in the proceedings were not given the opportunity to read the text of the search report before signing it (Part 4 of Article 104 of the CPC of Ukraine);
  • A search was conducted at night (from 10 pm to 6 am) (in accordance with Part 4 of Article 223 of the CPC of Ukraine).

According to Part 2 of Art. 236 of the CPC of Ukraine, a search of a person's home or other property on the basis of a decision of the investigating judge must take place at a time when the least damage to the ordinary occupation of the person who owns them, unless the investigator, prosecutor does not consider that such a condition could significantly harm the search.

  • In violation of Part 1 of Art. 107 of the CPC of Ukraine, the lawyer's request to record the procedural action by technical means was not granted. Collection of evidence is provided by item 7 of h. 1 Art. 20 of the Law "On Advocacy and Advocacy".
  • They were not allowed to provide written explanations regarding the refusal to sign the protocol (Part 6 of Article 104 "If a person who participated in the proceedings refused to sign the protocol, it is stated in the protocol. Such person has the right to give written explanations of the reasons from the signatures, which are entered in the minutes. ")
  • The appendices to the protocol were not packed properly packed and certified by the signatures of the participants, transcript, audio, video recording of the procedural action, no signature of the lawyer on the packages (parts 2 - 3 of Article 105 of the CPC of Ukraine)
  • In violation of Part 1 of Art. 107 of the CPC of Ukraine and paragraph 8 of Art. 20 of the Law of Ukraine "On Advocacy and Advocacy" was not applied to the lawyer's request for video recording.

According to Part 1 of Art. 107 of the CPC of Ukraine the right to unimpeded recording of the search by video is given to the defense.

  • In violation of Art. 19 of the Constitution of Ukraine, the investigator does not satisfy the lawyer's request to involve his witness. Because the lawyer acts "everything is allowed that is not prohibited", and the investigator acts "everything is allowed by law." The current CPC does not specify who elects witnesses, and therefore, the request to satisfy a lawyer should be granted (Part 7 of Article 223).
  • The person who was searched (lawyer) in violation of Part 9 of Art. 236 a copy of the protocol and description of the seized documents and temporarily seized items was not left.
  • In violation of Part 2 of Art. 27 of the Law of Ukraine "On Advocacy and Advocacy" lawyer was not allowed under an oral agreement to enter into a written.
  • The decision to grant a search permit states the wrong address, the office of the place of the search.
  • They did not present themselves, which made it impossible to find out whether the person mentioned in the search permit decision and whether he had the authority.
  • The assignment for operational staff does not specify the specific names of these employees.
  • The order for operatives uses a seal for packages, instead of a seal for references.
  • In violation of Part 3 of Art. 223 of the CPC of Ukraine before carrying out investigative action didn't explain the rights to witnesses.
  • At the request (statement) of the lawyer (the person in whose presence the search was conducted) in violation of Part 8 of Art. 236 did not check the documents establishing the identity of witnesses. According to Part 7 of Art. 46 public authorities and local governments, their officials are obliged to comply with the legal requirements of the defender.
  • During the search, paragraph 2 of Art. 23 of the Law of Ukraine "On Advocacy and Advocacy", according to which during a search or inspection of housing, other property of a lawyer, premises where he practices law, temporary access to things and documents of a lawyer must be present a representative of the Bar Council.
  • In violation of paragraph 9 of Art. 9 of the Law of Ukraine "On Accounting and Financial Reporting" copies and / or originals of primary documents and accounting registers were seized without compiling a register of seized documents.
  • Execution of the decision of the investigating judge, the court on the search was not necessarily recorded with the help of audio and video recording equipment. (Part 1 of Article 107 of the CPC of Ukraine).
  • Investigators in violation of Part 1 of Art. 236 of the CPC of Ukraine, no measures were taken to ensure the presence during the search of persons whose rights and legitimate interests may be restricted or violated.
  • In violation of Part 4 of Art. 236 of the CPC of Ukraine, the investigator, prosecutor did not ensure the safety of property in the home or other property of the person, and the impossibility of access to it by unauthorized persons.
  • In violation of Part 5 of Art. 236 of the CPC of Ukraine, the search on the basis of the decision of the investigating judge was conducted in an amount greater than necessary to achieve the purpose of the search from _____________ to _____________________, date ______________.
  • In violation of Part 5 of Art. 235 the search of persons who were in a dwelling or other premises was carried out by the decision of the investigator or prosecutor without sufficient grounds to believe that they were hiding items or documents that are relevant to the criminal proceedings. The search of persons was carried out without drawing up an appropriate protocol of investigative action.
  • In violation of Part 6 of Art. 236 of the CPC of Ukraine closed premises, storage, things when the person present during the search refused to open them or if the owner was absent were opened not by the  investigator, the prosecutor , and by third parties. In violation of paragraph 7 of Art. 237, involved so-called "specialists" to open the premises without a relevant order / resolution of the investigator, prosecutor.

According to Part 3 of Art. 110 of the CPC of Ukraine The decision of the investigator, prosecutor is made in the form of a resolution. The decision is made in the cases provided by this Code, as well as when the investigator, the prosecutor deems it necessary.

  • In violation of Part 8 of Art. 236 of the CPC of Ukraine, the statements of the persons in whose presence the search was carried out were not recorded in the search report during this investigative action.

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