The legality of the search prior to the entry of information into the EDPR depends on whether the detention was lawful. This conclusion was made by the Supreme Court in Resolution No. 754/2818/20, the text of which is given below.
In the name of Ukraine
December 13, 2021, Kyiv #754/2818/20
The Supreme Court by the panel of judges of the third judicial chamber of the Criminal Court of Cassation consisting of:
chaired by S. B. FOMIN,
judges: I.V. IVANENKA, Y.M. LUHANSKY —
considered in an open court session the cassation appeal of the convicted Person 1 against the verdict of the Desnyan District Court of Kyiv dated November 30, 2020 and the decision of the Kyiv Court of Appeal dated April 7, 2021, issued in the criminal proceedings against Person 1, Information 1, a native of Kyiv, who lives at Address 1, previously not convicted of the crime provided for in Part 2 of Article 263 of the Criminal Code.
The content of contested court decisions and the circumstances established by the courts
By the judgment of the Desnyan District Court dated November 30, 2020, Person 1 was found guilty of committing the crime provided for in Part 2 of Article 263 of the Criminal Code, and he was sentenced to 1 year of imprisonment.
On the basis of Article 75 of the Criminal Code, Person 1 was released from serving a sentence of probation with a probationary period of 1 year and 6 months and the imposition of obligations stipulated in Part 1 of Article 76 of this Code.
According to the court's verdict, Person 1 was convicted for the fact that he, at a time and place not determined by the pre-trial investigation, purchased a knife, which is a cold bladed weapon, which he carried with him without the permission provided by law. On December 9, 2019, at 3:15 p.m., in the lobby of the "Lisova" metro station of the "Kyivskyi Metropoliten" KP in Kyiv, the specified knife was discovered and seized from Person 1 by police officers.
The decision of the KAS dated 04/07/2021 left the verdict of the local court unchanged.
Requirements of the cassation appeal and generalized arguments of the person who filed it
In the cassation appeal, the convict does not agree with the court decisions, asks them to be canceled on the grounds of a significant violation of the requirements of the criminal procedural law, incorrect application of the law on criminal responsibility, and to appoint a new trial in the court of first instance.
In order to substantiate his claims, he claims that the materials of the criminal proceedings do not contain information about the arrest of the object of the crime he was accused of – a knife that was seized by law enforcement officers, and therefore this material evidence, as well as those derived from it, namely, the expert's opinion dated 18.12.2019 No. 25-197, are inadmissible.
In addition, he claims that his actual detention took place at 15:00 on 9/12/2019 by Lieutenant V.S. Plahotniuk, contrary to the information entered in the detention protocol, in violation of the requirements of Article 208 of the Criminal Procedure Code.
Taking into account the above, neither the local nor the appellate courts did not properly evaluate the evidence in the criminal proceedings for their admissibility, and therefore the specified court decisions are illegal and unfounded, and the court's conclusions about his guilt are premature.
No objections to the cassation appeal of the convicted person were received from the participants in the court proceedings <…>.
Motives of the Court
In the cassation complaint submitted to the Court, Person 1 refers to the lack of legal grounds for the knife seized from him to be in the body of the pre-trial investigation, and therefore the inadmissibility of the expert opinion dated 18.12.2019 No. 25-197 and the material evidence of the knife, which were the basis of the decision on his culpability. However, the panel of judges considers these arguments unfounded, taking into account the following.
According to Part 3 of Article 208 of the Criminal Procedure Code, an authorized official, an investigator, a prosecutor may search a detained person in compliance with the rules provided for in Part 7 of Article 223 and Article 236 of this Code.
The prescriptions of Part 7 of Article 236 of the Criminal Procedure Code provide that items that are withdrawn from circulation by law are subject to withdrawal regardless of their relation to criminal proceedings. Seized things and documents that are not included in the list for which permission to search was expressly granted in the decision on permission to conduct a search, and do not belong to objects that are removed from circulation by law, are considered temporarily seized property. In such a case, a request for the seizure of temporarily seized property must be submitted to the investigator, prosecutor no later than the next working day after the seizure of the property, otherwise the property must be immediately returned to the person from whom it was seized (part 5 of Article 171 of the Criminal Code).
Thus, the Criminal Procedure Code obliges the investigator, the prosecutor, after the search, to immediately apply to the court with a request for the imposition of a seizure, which provides the owner or other owner of the property, acquired legally and in good faith, with additional guarantees of verifying the legality of possession by the bodies of the pre-trial investigation of the property, which is endowed with the characteristics of physical evidence in accordance with Article 172 of the Code of Criminal Procedure. At the same time, seizure of objects, the acquisition and use of which is carried out under special permits and an exhaustive list of which is defined by legislation, or objects, the manufacture, acquisition, storage, sale and distribution of which is prohibited by legislation, does not grant them the status of temporarily seized property, and therefore does not put the prosecution on the side the obligation to go to court to decide the further legal fate of such property.
In the criminal proceedings pending before the Court, the defendant's lack of the right to carry a cold weapon was the subject of a thorough examination by the courts of the first and appellate instances, since it is an integral feature of the objective aspect of the crime provided for in Part 2 of Article 263 of the Criminal Code, the presence which is proven by the totality of the evidence collected in the case. The convict himself did not object to the lack of a special permit for carrying cold weapons during court hearings. Therefore, violations of the provisions of Part 5 of Article 171 of the Criminal Procedure Code were not established in the criminal proceedings.
At the same time, as a result of the review of the proceedings, it was established that the appellate court, considering the complaint of Person 1, did not thoroughly check all the arguments presented by the complainant, did not give answers to them, and did not properly motivate its decision about their groundlessness.
Thus, in the appeal filed by Person 1, among other things, it was claimed that during his actual detention at 3:00 p.m., police officers conducted a personal search of him for the first time in the absence of witnesses and without appropriate recording of the said actions. In addition, the complainant insisted that his actual detention was carried out by police lieutenant V.S. Plahotniuk, who did not explain his rights to him and did not inform him of the reason for his detention. However, the appellate court did not provide refutations of these statements.
As noted by the Supreme Court in the resolution of June 15, 2021 (case No. 204/6541/16-k), Article 208 of the Criminal Procedure Code gives the authority to detain a person suspected of committing a crime to an "authorized official."
The CPC states in several provisions that this term refers to a person authorized by law to detain. In other provisions of the Code, the term "authorized official" is used alongside the terms "investigator", "prosecutor", "investigator".
Thus, Part 3 of Article 208 of the Criminal Procedure Code provides: "An authorized official, investigator, prosecutor may search a detained person in compliance with the rules provided for in Part 7 of Article 223 and Article 236 of this Code."
Sections 2 and 3 of Article 276 of the Criminal Procedure Code state: "In the cases provided for in the first part of this article, the investigator, prosecutor or other authorized official (a person authorized by law to carry out detention) is obliged to immediately notify the suspect of his rights, provided for in Article 42 of this Code. After notification of the rights, the investigator, prosecutor or other authorized official, at the request of the suspect, is obliged to explain each of the specified rights in detail."
According to Part 3 of Article 2981 of the Criminal Procedure Code, the authorized official who carried out the detention and the inquirer must immediately inform the person in a language understandable to him of the reasons for the detention.
Such use of the term "authorized official" in the law leads to the conclusion that by this term the legislator designated a person who is authorized by law to conduct detention, but who is neither an "investigator", nor a "prosecutor", nor an "investigator". Thus, this term refers to other legislative acts, which authorize state bodies and their officials to detain.
Based on the analysis of the legislation, it can be concluded that the term "authorized official" includes, among other things:
- policemen of the patrol or other police services (Article 37 of the Law "On the National Police");
- military personnel of the Law and Order Service (Article 7 of the Law "On Military Law and Order Service in the Armed Forces of Ukraine"), the National Guard (Article 13 of the Law "On the National Guard of Ukraine"), the State Security Department (Article 18 of the Law "On State Protection of State Authorities of Ukraine and officials");
- officials of the State Border Service (Article 20 of the Law "On the State Border Service of Ukraine"), the Security Service (Article 7 of the Law "On Counter-Intelligence Activities"), intelligence agencies (Article 47 of the Law "On Intelligence"), court security services ( Article 162 of the Law "On the Judiciary and the Status of Judges"), etc.
In accordance with Article 37 of the Law "On the National Police", the police is authorized to detain a person on the grounds, in the manner and for the terms specified by the Constitution, the Criminal Procedure Code and the Code of Administrative Offenses, as well as other laws.
A personal search is a component of the detention process and, thus, a lawful detention in itself provides grounds for conducting a personal search. Moreover, it should be taken into account that a personal search of a detained person is necessary, in addition to recording evidence of a crime, also to ensure the safety of both the detainers and other persons, including the detained person himself. Therefore, a personal search, as a rule, is carried out immediately after detention. Thus, the legality of conducting a search prior to entering information into the EDPR depends on whether it is legal to conduct a detention under such circumstances. At the same time, the presence or absence of information about the offense in connection with which the detention took place in the ERDR at the time of the detention and personal search of a person cannot be considered a condition of its legality.
At the same time, in accordance with Part 5 of Article 208 of the Code of Criminal Procedure, a report must be drawn up on the detention of a person suspected of committing a crime, in which, in addition to the information provided for in Article 104 of this Code, the following shall be noted:
- place, date and exact time (hour and minutes) of detention in accordance with the provisions of Article 209 of this Code;
- grounds for detention;
- personal search results;
- petitions, statements or complaints of the detainee, if such were received;
- a complete list of procedural rights and obligations of the detainee.
If at the time of detention the surname, first name, and patronymic of the detained person are not known, a detailed description of such person is noted in the protocol and his/her photograph is attached. The arrest protocol is signed by the person who drew it up and the detainee. A copy of the protocol is immediately handed to the detainee for signature and sent to the prosecutor.
Thus, the law gives not only the right to an authorized person, who is not an investigator, inquirer or prosecutor, to detain a person on suspicion of a crime committed by him and to conduct a personal search, but also imposes on him the obligation provided for in part 5 of article 208 of the Criminal Procedure Code.
As can be seen from the materials of the criminal proceedings, the actual detention of Person 1 took place on December 9, 2019 at 3:15 p.m. by a police officer. According to the excerpt from the ЕРДР, at the time of entering the information into the register (9/12/2019 16:56), a knife was seized from Person 1, which indicates that a personal search was conducted on him by an authorized person of the police. However, the arrest protocol was drawn up at 18:59 by investigator N.L. Zubkova.
However, in this case, the appellate court, evaluating the protocol of the person's detention dated 9/12/2019 as evidence through the prism of its admissibility, did not check compliance with the procedural law at the time of the actual detention of Person 1. In particular, who carried out such detention and whether this person complied, contrary to the complainant's statements, of the rules of Article 208, part 2, 3 of Article 276 of the Criminal Procedure Code. At the same time, the court did not find out whether the specified violations, if they were admitted, could affect the outcome of the trial, including the admissibility of the evidence, which was the basis of the decision to admit the guilt of Person 1.
In addition, the appellate court did not verify the statements of the convicted person about the groundlessness of his detention, as well as the entry into the protocol of data that did not correspond to reality, the refutation of which in its totality is important for establishing compliance with the detention procedure and preventing abuse, considering that this court is the last the authority empowered to verify the authenticity of the evidence used as the basis of the accusation.
Instead, the panel of judges during the appellate proceedings actually focused on the conclusions of the local court about compliance with the requirements of Article 208 of the Criminal Procedure Code by the investigators when drawing up the detention report, leaving out of consideration the arguments of the convict's appeal about the compliance with the law by the person who directly detained Person 1.
As repeatedly emphasized in the rulings of the CCS, a violation of the procedure for obtaining evidence, which leads to its inadmissibility, is determined by the rules of admissibility of evidence, provided for in ch. 4 §1 of the CPC and other articles of the CPC, in which such rules are formulated. The Court also recognized that not any formal failure to comply with the requirements of the criminal procedural law when receiving evidence automatically entails the need to recognize the evidence as inadmissible. Instead, the law obliges the court to evaluate the evidence from the point of view of its admissibility, taking into account whether a significant violation of the Code of Criminal Procedure was committed and how it prevented the provision and realization of the rights and freedoms of a person.
According to Part 1 of Article 87 of the Criminal Procedure Code, evidence obtained as a result of a significant violation of human rights and freedoms, namely information (factual data) obtained precisely as a result of such a violation, is inadmissible. That is, the law requires establishing a direct causal connection between the violation of human rights and the evidence obtained.
Thus, the Supreme Court states that the appellate court, in violation of the provisions of Article 419 of the Criminal Procedure Code, in fact did not properly verify the key arguments presented in the appeal complaint of the defense party, and did not give answers to them and did not indicate the motivated reasons on which it considered these arguments unfounded. which led to premature conclusions about the validity of the court's guilty verdict.
The specified violations in accordance with Part 1 of Article 412 of the Criminal Procedure Code are significant violations of the criminal procedural law, which prevented the appellate court from making a legal and well-founded judgment, and therefore the decision of this court is subject to cancellation, and the criminal proceedings are referred to the appellate court for a new trial, under during which time it is necessary to take into account the provisions of this resolution, conduct a trial in compliance with the requirements of the Criminal Procedure Code, properly verify all arguments of the appeal of Person 1 and provide meaningful answers to them.
Guided by Articles 433, 434, 436, 438, 441, 442 of the CPC, the Supreme
The cassation appeal of Person 1 is partially satisfied.
The decision of the Kyiv Court of Appeals dated 04/07/2021 regarding Person 1 shall be annulled and a new trial shall be ordered in the Court of Appeal.
The resolution enters into legal force from the moment of promulgation, is final and is not subject to appeal.