Searches - it's not just about real detection of offenses, it is also one of the most popular ways to put pressure on people by law enforcement. However, as we mentioned earlier in Article do not be afraid of the visit of investigators. Let's understand what the court says about searches, their legality and grounds.
Regarding the admissibility of evidence obtained during the actual detention and personal search of a person:
In order to declare the evidence obtained during detention inadmissible, the court must establish and substantiate in its decision:
1) whether violations of the rights and freedoms of the detainee were committed;
2) what rights and freedoms were violated;
3) whether these violations were significant;
4) and, finally, whether the evidence whose admissibility is disputed was the result of these violations.
The absence of a detention report or a court-found discrepancy between the information in the report and the actual circumstances of the case is not in itself a sufficient ground for declaring evidence obtained during detention inadmissible, but must be taken into account in conjunction with other evidence to assess detention. fundamental rights and freedoms of the detained person during his stay under the control of law enforcement agencies.
Regarding the presence of a lawyer during detention under Articles 207 or 208 of the CPC:
The panel of judges of the CCC does not agree with the conclusion that detention in accordance with Art. 207 or 208 of the CPC must be conducted with the mandatory participation of a lawyer.
Detention in accordance with Articles 207 or 208 of the CPC is an unexpected event for its participants. In fact, the very fact that the law empowers law enforcement agencies to detain without prior judicial permission means that the legislator recognizes the unpredictability of the circumstances that lead to such detention. Thus, in the opinion of the panel of judges, the requirement to have a lawyer present during detention is practically impossible and is not provided for by any provision of the CPC, the Constitution of Ukraine or international treaties of Ukraine. The establishment of such a rule by the Court will nullify any police activity, as it is virtually impossible to ensure the presence of a lawyer at a time and place where detention on suspicion of a crime may take place.
Resolution of 16.02.2021 in the case № 204/6541/16-k.
An urgent search can be carried out ONLY if it is necessary to save lives and property or in case of direct prosecution of the suspect.
The right of an investigator or prosecutor to enter and search a dwelling may arise in three cases:
1) by decision of the investigating judge;
2) without issuing such a decision on the basis of the voluntary consent of the owner of the dwelling or other property of the person;
3) until the ruling of the investigating judge is issued only in urgent cases related to saving lives and property or directly prosecuting persons suspected of committing a crime.
Therefore, in order to recognize the lawfulness of the search and the evidence obtained, in the decision to conduct such a search, the investigator must justify the urgency of the case, which became the basis for the search without a decision of the investigating judge.
Resolution of 08.04.2021 in the case № 573/2028/19.
A search conducted prior to the entry of criminal proceedings into the ERDR is illegal.
Before conducting an investigative (search) action, the persons participating in it shall be explained their rights and obligations under the CPC of Ukraine, as well as the liability established by law. Carrying out a pre-trial investigation before entering information about the commission of a criminal offense in the Unified Register of Pre-trial Investigations or without such entry is not allowed and entails liability established by law. In urgent cases, the scene inspection may be carried out before entering information into the Unified Register of Pre-trial Investigations, which shall be carried out immediately after the inspection.
Therefore, if the investigator conducts a search of the person's home instead of inspecting the scene before entering the data on the initiated criminal proceedings in the ERDR, it will be considered a violation of the CPC of Ukraine and will indicate the inadmissibility of evidence - such a search protocol.
Resolution of 06.10.2020 in the case № 279/3931/18.
Evidence obtained as a result of a search of the premises under the guise of its inspection is inadmissible.
It is important to understand the difference between a search and an inspection of the premises. During searches, law enforcement officers have the opportunity to seize things and documents, including computer equipment and servers, with the subsequent possibility of arresting them, thus exerting pressure on the participants of criminal proceedings. And in order to identify and record information about the circumstances of the commission of a criminal offense, the investigator, the prosecutor conducts review area, premises, things and documents in accordance with Art. 237 of the Criminal Procedure Code of Ukraine.
Considering the case №127 / 13350/18 on charges of committing criminal offenses, the Criminal Court of Cassation of the Supreme Court in its decision of 20.01.2021 concluded that the pre-trial investigation authorities conducted a review of the scene - a rented apartment. Instead, the inspection of the materials of the pre-trial investigation revealed the absence of data that could be the basis for the review. It was found that the inspection was conducted in a crude, coercive form, and information about the criminal offense was entered into the Unified Register of Pre-trial Investigations on the basis of data obtained during such an investigation. In this regard, the Court of Cassation agreed with the conclusion of the Court of Appeal that the inspection of the scene was in fact a search, which should take place solely on the basis of the decision of the investigating judge. And the evidence obtained during the illegal investigation is inadmissible.
The principle of "fruit of the poisonous tree" in the context of evidence and illegal searches:
According to the doctrine of the fruit of the poisonous tree, the ECtHR has formulated judgments in the cases of Hefgen v. Germany, Balytsky v. Ukraine, Nechyporuk and Yonkalo v. Ukraine; if the source of evidence is inadequate, all evidence , obtained with its help, will be the same. Evidence obtained in substantial violation of human rights and freedoms is inadmissible.
In view of this position of the ECtHR, the evidence obtained as a result of the illegal search is declared inadmissible.
As we can see, the court in its decisions often defends people in the fight against law enforcement. This does not mean that by committing an offense, you should expect the court to acquit you. However, if you have a problem and you have received information about the criminal proceedings against you, do not hesitate to seek legal assistance.
Authors of the article: Dmytro Nikiforov, Victoria Balatska.
