The positions of the courts of the first and appellate instances: according to the indictment, the actions of PERSON_1 are qualified under Part 2 of Art. 307 of the Criminal Code.
According to the verdict of the local court, PERSON_1 was acquitted due to lack of proof of his guilt in committing the specified criminal offense. In particular, the local court found the protocol of the search of PERSON_1's home to be inadmissible evidence. The court motivated this by the fact that during the search the requirements of Art. 236 of the Criminal Procedure Code, since the search was conducted by an unauthorized person, namely a senior operative without the participation of an investigator. While the decision of the investigating judge of the local court stated that a one-time permission to search PERSON_1's home was given to the investigator.
The Court of Appeal upheld this verdict.
In the cassation appeal, the prosecutor claimed that the appellate court did not properly refute the arguments of the prosecutor's appeal, which related to the erroneous conclusions of the court of first instance, in particular, regarding the inadmissibility of the apartment search protocol.
Grounds for consideration of the criminal proceedings of the OP: the need to deviate from the conclusion regarding the application of the rule of law in similar legal relations and to ensure the unity of judicial practice regarding subjects who are authorized to execute a decision on permission to search a person's home or other property (Article 236 of the Criminal Procedure Code).
OP's position: the decision of the appellate court was left unchanged.
Justification of OP's position: OP notes that the procedure for conducting a search is regulated in detail by the Criminal Procedure Code (Articles 234, 235). Despite the general rule that operative divisions of the National Police, security agencies, NABU, DBR, BEB, DPS, bodies, institutions for the execution of punishments and remand detention centers of the State Security Service carry out SRD and NSRD in criminal proceedings on a written order of the investigator, inquirer, prosecutor , and the unit of detectives, the operational-technical unit and the unit of internal control of NABU – on the written assignment of a detective or prosecutor of the Criminal Code of Ukraine (Part 1 of Article 41 of the Criminal Procedure Code), Part 1 of Article 236 of the Criminal Procedure Code stipulates that a decision on permission to search a person's home or other property may be executed by an investigator or a prosecutor. It does not provide for exceptions for operational units. There is no similar norm in any other article of the CPC, which concerns the procedure for conducting the SRD.
Therefore, the systemic analysis of Clause 3, Part 2, Art. 40, Articles 235, 236 of the Criminal Procedure Code allows us to conclude that the execution of the decision of the investigating judge on the permission to search a person's home or other property rests personally with the investigator or prosecutor and cannot be entrusted to the relevant operative units.
With regard to the arguments of the panel of judges of the First Judicial Chamber, which referred the specified criminal proceedings to the OP, about the possibility of the prosecutor, investigator, investigator to entrust the conduct of the SRD and NSRD to the relevant operational units or operatives of such units in the order provided by law for the implementation of relevant actions, including in in the cases of obtaining the permission of the investigating judge provided for by the Criminal Procedure Code, during which the employee of the operational unit uses the powers of the investigator, the OP notes the following.
In clause 5 of Art. 36, item 3, part 2, art. 40, p. 3, part 2, art. 40-1 of the Criminal Procedure Code provides for the authority of the prosecutor, investigator and investigator to entrust the conduct of the SRD and NSRD to the relevant operational units.
The OP points out that in many articles of the current Code of Criminal Procedure, in particular, those that regulate the conduct of the SRD, the legislator really does not mention, along with the investigator, the prosecutor, neither an investigator, nor a detective, nor an operational unit. This approach can be explained by considerations of the need to avoid overloading the text of the CCP. However, the conclusion that no SRD can be conducted by an operational unit or its employee, since it is not mentioned in Art. 223 of the Criminal Procedure Code or the article that regulates the procedure for conducting a specific investigative action is erroneous. In addition, judicial practice has also never interpreted the absence of a mention in Art. 223 of the Criminal Procedure Code of the operational unit or its employee as a prohibition to act on the basis of the mandate of the investigator or prosecutor.
However, the above does not apply to Part 1 of Art. 236 of the CCP. After all, there is no similar norm in any other article of the CCP, which provides for the procedure for conducting the SRD.
Thus, the general provisions of Art. 223 of the Criminal Procedure Code do not indicate the possibility of reassigning the execution of the decision of the investigating judge. Article 235 of the Criminal Procedure Code deprives the investigating judge of the opportunity to give instructions to the operational unit or its employee to execute the search warrant. The special norm in Art. 236 of the Code of Civil Procedure clearly defines the subjects of the execution of the resolution, where the employees of operational units are not specified.
The CPC regulates the procedure for conducting the NSRD in a different way. In Part 6 of Art. 246 of the Code of Criminal Procedure stipulates that the right to conduct NSRD is an investigator who carries out a pre-trial investigation of a criminal offense, or on his behalf – authorized operational units of the NP, security agencies, NABU, DBR agencies, BEB agencies, agencies, institutions for the execution of punishments and remand detention centers of the DKVS, agencies DPtS According to the decision of the investigator or prosecutor, other persons may also be involved in the NSRD. This norm is due to the fact that for the majority of NSRD, the investigator, inquirer, and prosecutor cannot conduct them without special resources and the skills of operative units.
Taking into account the above, NSRD may be conducted by operational units by the decision of the investigating judge. Moreover, due to the need to protect information about the fact of the NSRD being conducted, the petition of the investigator, the prosecutor, the decision of the investigating judge does not indicate the authorized operational unit that must carry out the NSRD (clause 2.2. Instructions on the organization of secret investigative (search) actions and the use of their results in criminal proceedings).
Conclusion: systematic interpretation of the procedural norms provided for in clause 3, part 2 of Art. 40, Art. 236 of the Criminal Procedure Code gives grounds for the conclusion that the execution of a decision on permission to search a person's home or other possessions is entrusted to the investigator or prosecutor and cannot be entrusted to the relevant operative units.
A separate opinion was expressed in the case.
You can read more about the text of the resolution of the OP dated 06.12.2021 in case No. 663/820/15-k (proceedings No. 51-2075kmo20) at the link: https://reyestr.court.gov.ua/Review/101829915 .
A separate opinion can be found at the link: https://reyestr.court.gov.ua/Review/101829965 .