A preventive police measure in the form of a surface check is a method of detecting prohibited items, during which a person must independently show the contents of personal belongings to the police. In the event that prohibited items are found on a person during the specified measure, they cannot be considered as having been removed in a manner not provided for by the Code of Criminal Procedure.
Circumstances of the case: in the course of a cursory check of persons, conducted in the premises of a gambling establishment, the police found an object similar to a brass knuckle in PERSON_1. The appellate court established that police officers in accordance with Art. 34 of the Law of Ukraine "On the National Police" a preventive police measure was taken against PERSON_1. After that, an investigator arrived at the scene of the incident, who drew up a protocol of the scene inspection about the removal of an object recognized as a cold weapon from the table in the gambling establishment.
Positions of the courts of the first and appellate instances: according to the verdict of the local court, PERSON_1 was found not guilty of the indictment under Part 2 of Art. 263 of the Criminal Code in connection with the lack of evidence that he committed a criminal offense.
The appellate court overturned the verdict of the court of first instance and adopted a new one, according to which it found PERSON_1 guilty of the criminal offense provided for in part 2 of Article 263 of the Criminal Code.
As the appellate court established, the police officer first applied to PERSON_1 a preventive police measure in the form of a surface check, during which the accused voluntarily handed over an object similar to a knuckle duster, after which a report of the inspection of the scene of the incident was drawn up, during which a knuckle duster was discovered and seized on a table in in the premises of the gambling establishment, where he was voluntarily placed by the accused PERSON_1, without having the status of a detainee. At the same time, after discovering the prohibited item, PERSON_1 was forced to stay with the authorized official in the premises designated by this person, which in view of Art. 209 of the Criminal Procedure Code can be considered an actual detention, but this does not affect the legality of the investigative action in the form of an inspection of the scene of the incident, because in this particular case the investigator did not search the person.
In the cassation appeal, the defense attorney points out that during the sentencing, the appellate court unjustifiably recognized the factual data of the report of the inspection of the scene of the incident, which was not properly signed by the witnesses, and the evidence derived from it as admissible. PERSON_1 was actually detained, but the protocol in accordance with Art. 208 of the CPC was not drawn up, as a result of which his right to defense was violated.
The position of the CCS: the verdict of the appellate court was left unchanged.
Justification of the position of the Supreme Court of Justice: the panel of judges of the Supreme Court of Justice found the arguments of the cassation appeal of the defender about the admission by the appellate court of a significant violation of the requirements of the criminal procedural law during the review of the verdict of the local court to be unfounded in view of the following.
In this proceeding, the search of the person was not carried out, as it is clear from the video recording examined by the court of appeals that PERSON_1 gave the knuckle voluntarily. In addition, the review was carried out before entering information into the EDPR in accordance with the provisions of Art. 214 of the Criminal Procedure Code, and therefore, since PERSON_1 did not acquire the status of a suspect in criminal proceedings, his rights to defense were not violated. At the same time, PERSON_1 was explained his rights as a participant in the examination, which he familiarized himself with, as evidenced by his signature, and therefore the defender's assertion to the contrary is unfounded.
The defense counsel's reference to the fact that the knuckles were seized during a cursory search, and therefore not in the manner defined by the CPC, is unfounded, since during a cursory search a person must independently show the police the contents of personal belongings, which was done. In turn, the surface inspection in this case was a way to detect a prohibited item, and after its detection, an inspection of the scene was conducted, which recorded its removal.
Therefore, the protocol of the inspection of the scene of the incident was drawn up in compliance with the requirements established by Articles 104, 105, 107, 237 of this Code, signed by all participants of the inspection, no objections to the protocol were received from them.
The appellate court found the defender's claim that there was no decipherment of their surnames in the report of the inspection of the scene, in the column with the witnesses' signatures, but took into account the fact that the witnesses were questioned by the court of first instance as witnesses. At the same time, the lack of a specialist's signature in the report of the inspection of the scene of the incident, according to the appeals court, does not indicate the inadmissibility of the report as evidence.
You can read more about the text of the resolution dated November 22, 2021 in case No. 711/9435/19 (proceedings No. 51-3189км21) at the link https://reyestr.court.gov.ua/Review/101361107 .