Taking of evidence - national proceedings

Ukraine

Code of Criminal Procedure of Ukraine 2012 (2015)

Section II

INSTITUTING CRIMINAL PROCEEDINGS, INQUIRY, AND PRE-TRIAL INVESTIGATION

Chapter 16

SEARCH AND REMOVAL

Article 177. Grounds for search and authorization thereof

Search is conducted when probable cause exists to believe that crime instrument, illegally obtained goods and valuables, as well as other objects and documents of importance for establishing the truth in a case or securing a civil claim remain in a certain premise or place or are kept by a person.

Search is also conducted when there are sufficient data that wanted persons, dead bodies or animals stay in a certain premise or place.

Search is conducted upon motivated decision of the investigator or upon prosecutor or his/ her deputy’s sanction, except home or any other possession of a person.

In urgent cases, a search, except home or any other possession of a person may be conducted without prosecutor’s sanction but with further information submitted to the prosecutor within 24 hours about the search conducted and its results.

Home or any other possession of a person, except urgent cases, is conducted only upon a motivated decision of a judge. When it is necessary to conduct a search, investigator, upon prosecutor’s consent, files an appropriate request with the court in the place where investigation is conducted.

The judge appointed according to the procedure prescribed in paragraph 3 of Article 16-2 of this Code promptly considers the request and records of the case and, if necessary, hears investigator, prosecutor and, with sufficient grounds present, takes a decision to conduct the search or dismisses the request for search. Judge’s decision to conduct a search may not be challenged. Judge’s decision to dismiss the request for search may be challenged by the prosecutor before the Court of Appeals within three days from the date of the decision.

In urgent cases, when it comes to saving life and property or to hot pursuit of the persons suspected of having committed a crime, the home or any other possession of a person may be searched without judge’s decision. In such cases, the record should state reasons for the search without judge’s decision. Investigator forwards a copy of the search record to the prosecutor within 24 hours after this action has been conducted.

(Article 177 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001, as amended by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 2453-VI ( 2453-17 ) of 07.07.2010 – amendments regarding introduction of automated electronic document management system in courts shall come into force on 01.01.2011, and changes to the procedure of execution of power by the Supreme court of Ukraine and High Civil and Criminal Court of Ukraine come into force after High Civil and Criminal Court of Ukraine starts its work – from 01.11.2010).


Article 178. Grounds for removal and authorization thereof

Removal is conducted when there is accurate information that objects or documents of importance for the case remain with a certain person or in a certain place.

Removal is conducted upon motivated decision of the investigator.

Documents containing state and/or bank secret may be removed only upon motivated decision of judge and in the way agreed with head of the institution concerned.

Compulsory removal under law from a home or any other possession of a person, as well as removal of a document relating to final process is conducted only upon judge’s motivated decision which should be made in accordance with Article 177, fifth paragraph, of the present Code.

(Article 178 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001; as amended by Laws No 2922-III ( 2922-14 ) of 10.01.2002, No 2252-IV ( 2252-15 ) of 16.12.2004, No 3538-IV ( 3538-15 ) of 15.03.2006, No 1940-VI ( 1940-17 ) of 04.03.2010).


Article 179. Objects and documents should necessarily be produced (delivered)

Officials and citizens may not refuse producing or delivering documents or copies thereof or any other objects requested by investigator during search or removal.

Documents containing state and/ or bank secret are delivered and inspected in compliance with rules which ensure protection of state and/ or bank secret.

(Article 179 as amended by Law No 2922-III (2922-14) of 10.01.2002, No 1940-VI ( 1940-17 ) of 04.03.2010).


Article 180. Time when search and removal are conducted

Searches and removals, except urgent cases, should be conducted in daytime. Article 181. Persons in whose presence search and removal are conducted

Search and removal are conducted in the presence of two attesting witnesses and the tenant of the premise concerned and, in the absence of the latter, - in the presence of a representative of housing maintenance organization or local council of people’s deputies. Search and removal in premises occupied by enterprises, institutions, and organizations are conducted in the presence of their representatives. During search, as far as possible, there should be present the person whose premise is searched or full age member of his/her family and, if necessary, the victim.

Persons whose premise is searched, attesting witnesses, and appropriate representatives should be advised of their right to be present during all actions conducted by investigator and make statements in connection with such actions; these statements should be entered in the record.

(Article 181 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).


Article 182. Conditions for search and removal in premises of diplomatic missions

In premises occupied by diplomatic missions, as well as in premises where members of diplomatic missions and their families who enjoy diplomatic immunities live, search and removal may be conducted only upon consent of the diplomatic representative.

Consent of diplomatic representatives for search and removal is sought through the Ministry of Foreign Affairs of Ukraine.

Search and removal in the said premises are necessarily conducted in the presence of a prosecutor and Foreign Ministry’s representative.


Article 183. The way in which search and removal are conducted

Before the search or removal, investigator produces the decision to the persons who occupy the premise concerned or to representative of the enterprise, institution, or organization where search or removal is conducted and suggests that they deliver objects or documents named in the decision, as well as show the place where the wanted criminal hides. If they refuse satisfying investigator’s request, investigator conducts coercive search or removal. Whenever persons who occupy the premise concerned are unavailable, decision to conduct search or removal is produced to a representative of the housing maintenance organization or local council of people’s deputies, and search or removal is conducted in their presence. When conducting search, investigator shall have the power to open closed premises and repositories if the owner refuses opening them. In so doing, investigator should avoid causing unnecessary damage to doors, locks, and other objects.

Investigator may prohibit persons who are present in the premise during the search or removal, as well as persons who entered the premise during search or removal from leaving the premise and communicating one with another till the search or removal has been completed.

If necessary, investigator shall have the right to invite members of Interior and required specialists to participate in the search.

(Article 183 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada of 18.01.66, No 6834-X ( 6834-10 ) of 16.04.84).


Article 184. Searching a person and removing objects and documents therefrom

With grounds referred to in Article 177, first paragraph, of the present Code present and in view of removing objects and documents which can have probative value and are kept by a certain person, investigator may conduct a search of person and remove such objects or documents therefrom.

The person is searched and objects and documents are removed therefrom as prescribed in Article 177 and 178 of the present Code.

The person may be searched and objects and documents removed therefrom without an appropriate decision in the following cases:
1) when a suspect is physically captured by officials authorized thereto if probable cause exists to believe that the apprehended person has a weapon on him/her or any other objects which endanger surrounding people or attempts to free himself/ herself from proofs which incriminate him/her or any other person whatsoever in the commission of crime;
2) upon apprehension of a suspect;
3) upon committing a suspect, accused to custody;
4) with sufficient grounds present to believe that the person - who is in the premise where a coercive search or removal is conducted – hides objects or documents on him/her which are of importance for establishing the truth in the case.

Persons who participate in the conduct of these investigative actions should be of the same sex as the person who is being searched.

Search of an officer who is on active list of an intelligence agency of Ukraine in line of his/ her duty shall be conducted in the presence of official representatives of such agency.

(Article 184 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84, as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 – effective from 29.06.2001; as modified by Law No 3111-III (3111-14) of 07.03.2002).


Article 185. Non-disclosure of circumstances related to private life of persons searched

During search or removal, investigator shall have the duty to take measures to prevent any disclosure of circumstances related to private life of persons searched and of other persons who live or temporary stay in this premise.


Article 186. Seizing objects and documents

During search or removal, only objects and documents of importance for the case, as well as valuables and property of the accused or suspect may be seized in order to secure the civil claim or possible forfeiture of asset. Objects and documents which were seized from circulation under law are subject to seizure irrespective of their relationship with the case. Investigator should present all documents and objects to be seized to attesting witnesses and other persons present and list such documents and objects in the record of search or removal or in inventory attached thereto stating their name, number, seize, weight, material they are produced of, and individual signs. If necessary, objects and documents seized should be packed and sealed in the place where search or removal is conducted.

The copies of seized documents at the request of the owner and other persons who are entitled under the law to use these documents may be given to the investigator during the seizure of documents. Copies of seized documents are made using copiers, electronic equipment of these persons (with their consent), or copiers, electronic equipment of the agencies that carry out seizure, and should be confirmed by the signature of the investigator and certified with seal.
If it is impossible to make copies of seized documents or identify their owner during the seizure the investigator enters on the record of investigative proceeding the requests for copies of documents and within ten days after the seizure of documents gives copies to the appropriate persons or gives reasoned refusal to give the copies of documents which can be appealed against to the prosecutor or the court.

(Article 186 as amended by Laws No 807-VI ( 807-17 ) of 25.12.2008)


Article 187. Arresting correspondence and reading out information from communications channels

Correspondence may be arrested and information read out from communication channels only if probable cause exists to believe that letters, telegraph and other correspondence of the suspect or accused to other persons or from other persons to the suspect or accused, as well as information they exchange through telecommunication facilities contain data
relating to the crime committed or documents and objects having probative value and unless it is impossible to obtain such information otherwise.

Correspondence which may be arrested includes letters of all types, postal packets, parcels, postal containers, postal money orders, telegrams, radiograms, etc.

Correspondence may be arrested and information read out from communication channels in view of preventing a crime prior to instituting criminal proceedings.

With grounds referred to in paragraph 1 of this Article present, investigator, upon agreement with prosecutor, applies to the president of the Court of Appeals in the place where investigation is conducted for ordering arrest on the correspondence or reading out information from communication channels. President of the Court of Appeals or his/her deputy considers the motion, reviews records of the case, if necessary hears investigator, hears prosecutor’s opinion and thereafter, with grounds for taking such a decision present, passes a ruling to order the arrest of correspondence or the reading out of information from communication channels or to dismiss such motion. This decision may not be challenged and prosecutor may not file any complaint against it.

Decision to arrest correspondence should state the criminal case and grounds for conducting such investigative actions, last name, first name, and patronymic of the person whose correspondence will be intercepted, accurate address of such person, types of postal telegraph items to be arrested, period of arrest, name of telecommunication agency charged with intercepting correspondence and informing investigator thereon.

Decision to read out information from communication channels should state the criminal case and grounds for conducting such investigative actions, last name, first name, and patronymic of the person from whose channels information will be read out, accurate address of such person, types of channels, reading out period, name of agency charged with reading out information and informing investigator thereon.

Decision to arrest correspondence or read out information from communication channels is forwarded by investigator to the head of the appropriate agency and is binding thereon. Head of the appropriate agency intercepts correspondence or reads out information from communication channels and informs investigator thereon within 24 hours.

Arrest on correspondence is revoked while reading out information from communication channels terminated after the expiration of the period fixed for the conduct of such investigative actions by judge’s decision. Investigator revokes the arrest of correspondence or terminates reading out information from communication channels whenever such measures are no longer needed, upon dismissal of the criminal case or referral to prosecutor as prescribed in Article 255 of the present Code.
Decision is taken in a manner to ensure non-disclosure of details of pre-trial investigation or
operational-detective operations.

(Article 187 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84; as revised by Law No 2533-III ( 2533-14 ) of 21.06.2001 - eff. 29.06.2001, as amended by Law No 2670-III ( 2670-14 ) of 12.07.2001, No 2533-III
( 2533-14 ) of 21.06.2001 – effective from 29.06.2001, No 2453-VI ( 2453-17 ) of 07.07.2010 –changes to the procedure of execution of power by the Supreme court of Ukraine and High Civil and Criminal Court of Ukraine come into force after High Civil and Criminal Court of Ukraine starts its work – from 01.11.2010 ).


Article 187-1. Inspection and removal of the correspondence and examination of information read out
from communication channels

Correspondence is inspected in the telecommunication agency upon court’s decision in the presence of attesting witnesses from among employees of this agency and, in case of need, with participation of a specialist. In the presence of the said individuals, investigator opens and inspects intercepted correspondence.

Should documents or objects having probative value be found, investigator conducts removal of the correspondence concerned or limits himself/herself to making copies from the messages concerned. In the absence of documents or objects having probative value, investigator instructs to deliver the correspondence inspected to the addressee or to keep it till the date he/she fixes.

Investigator draws up a record of each occurrence of inspecting, removing or keeping the correspondence. The record shall necessarily state which kind of messages have been inspected, what has been removed therefrom and what should be delivered to the addressee or temporarily kept and from what messages copies have been made. Examination of information read out from communications channels, if necessary, is conducted with involvement of a specialist. Investigator listens or otherwise analyzes contents of the information obtained and draws up a record thereon. In case of detection of data having probative value, the record should reproduce the appropriate part of recording and thereafter investigator by his/her decision finds the medium of information obtained as a proof and attaches it to records of the case.

(Article 187-1 is added by Law No 2533-III ( 2533-14 ) of 21.06.2001 - effective from 29.06.2001).


Article 188. Record of search and removal

Investigator draws up a record of search or removal in two copies in compliance with Article 85 of the present Code. The record states grounds for search or removal; premise or other place where search or removal has been conducted; the person liable to search or removal; investigator’s actions and search or removal results. In respect of each object which is subject to seizure, there should be stated where exactly such object was found and under which circumstances.

All statements and comments made by those present during search or removal with regard to investigator’s actions should be entered in the search or removal record. Both copies of the record and description of objects seized are signed by investigator, the person in whose premise search or removal was conducted and persons who were present during search or removal.


Article 189. A copy of the record of search or removal should be necessarily handed over

The second copy of the record of search or removal and the second copy of object description is
handed over to the person in whose premise search or removal was conducted and in the absence of the latter – to the representative of housing maintenance organization or local council of people’s deputies.

When search or removal is conducted at an enterprise, institution, or organization, the second copy of the record and description is handed over to the representative of enterprise, institution, or organization concerned.

If the record contains comments on wrong actions during the search, investigator informs the prosecutor who supervises investigation thereon within two days.

(Article 189 as amended by virtue of the Decree of the Presidium of the Verkhovna Rada No 6834-X ( 6834-10 ) of 16.04.84).

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;