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“The team was recently visible advising on a number of pharmaceutical cases. Sources agree that the team is “moving in the right direction” and are particularly impressed by its work in the pharmaceutical sector”.

 

Draft Law on Searches: Missing the Mark

17.06.2016

Iryna Kuzina, attorney at law, Head of Kharkiv office of Ilyashev & Partners
Source: Forbes.ua

On the agenda of the parliament on June 14 is consideration in the first reading of the draft law No. 3719 on amending the Code of Criminal Procedure of Ukraine regarding some aspects of investigatory actions for provision of additional guarantees of legality during their implementation, commonly – “the law on searches”. It was registered in the Verkhovna Rada yet on December 24 last year. The draftsmen speak in the media about its focus on protection of IT-companies. Will the draft law fulfill this function in case of approval the attorney Iryna Kuzina analyzes specially for Forbes.

This is a very rare case when lawyers have comments on almost all points of the draft law. Thus, referring to the prohibition of law enforcement agencies to withdraw during searches the so-called “servers” and other computer equipment, the people’s deputies propose to introduce such a provision in Art. 168(2) of the Code of Criminal Procedure: “Temporary withdrawal of electronic information systems or their parts, mobile terminal communication systems shall be prohibited”.

Firstly, there is no concept of “electronic information system” in the law. In my understanding, it means software and electronic documents, i.e. the software of computers and other objects (and not the hardware). The main word in this term is “electronic”.

Servers can be recognized as material evidence (Art. 98 of the Code of Criminal Procedure) and be material carriers of electronic information, namely, electronic documents, photo, audio and video, and other materials that according to criminal procedural law are recognized as documents (clause 1, Art. 99(2) of the Code of Criminal Procedure).

Thereto, chapter XVI of the Criminal Code of Ukraine “Crimes in the computer usage sphere …” contains the term “electronic data processing machine (computer), automated system, computer network, telecommunications network”. It is not clear why the draftsmen did not use this terminology, or did not offer to change it.

Confusion of terminology will mean in practice that the rule on prohibition will be ineffective

Secondly, a complete ban on withdrawal of “servers” and other devices even on the basis of a court decision will make it impossible to conduct computer and technical and other forensic examinations (phonoscope, technical examination of documents, etc.), which are conducted only if technology and original material carriers of information are provided. For example a mobile phone on which the original recording was made.

Thirdly, a complete ban on withdrawal of “mobile terminal communication systems”, in plain language – mobile phones, will violate rights of people who have these phones just stolen. What is the mechanism proposed by the draftsmen regarding return of such stolen property? To return the stolen property by filing a civil vindicatory action? The possibility of implementation of such decisions is questionable.

In addition, it is impossible to identify the content of sms-messages without inspection of the telephone, and you can not provide such evidence to the court without withdrawal.

Fourthly, the draftsmen propose to prohibit withdrawal of the said devices only during search and examination (as amendments are introduced in Art.168(2) of the Code of Criminal Procedure). Thus, to withdraw the “servers” and other devices, the investigator should detain the director of the company, or programming specialists at record according to Art. 208 of the Code of Criminal Procedure of Ukraine. Is it really what the IT-business wanted?

The search procedure will certainly be more legitimate in the presence of the attorney – representative of the person being searched. If the attorney is present, he should be permitted to search immediately, and in this regard proposals of Art. 236(3) of the Code of Criminal Procedure are necessary. To the point, the much discussed draft law on the bar sets forth such a rule.

However, participation of the attorney in case of absence of the person, whose possessions are searched, has no practical implementation. How the investigator finds out who of the attorneys represents the person searched (who, recall, is not there)? This question refers to attorney-client privilege. And if the person, whose property is searched, did not conclude agreements on legal assistance with anybody? The legislation on free legal assistance does not envisage such a case.

The draftsmen propose to prohibit withdrawal of the said devices only during search and examination. Thus, to withdraw the “servers” and other devices, the investigator should detain the director of the company, or programming specialists at record according to Art. 208 of the Code of Criminal Procedure of Ukraine. Is it really what the IT-business wanted?

The next innovation is amendments to Art. 237 of the Code of Criminal Procedure envisaging that to conduct investigatory action called “examination” the victim, the suspect, the defense attorney, the legal representative shall be called obligatory according to Art. 135 of the Code of Criminal Procedure of Ukraine, i.e. not later than in three days.

Most often examination is an immediate investigatory action, and the scene of action may be examined even before registration of criminal proceedings (Art. 214(3) of the Code of Criminal Procedure of Ukraine). Three days later traces of blood can be washed away by rain, traces of shoes can be trampled down by passersby, material evidence may be hidden, documents may be corrected, and corpse can decompose. Who will guard the scene for three days?

The abovementioned is only one of the major comments to the draft law.

Not surprisingly that the Main Scientific and Expert Department made a negative opinion on the draft law and recommended to return its to the originators for revision.

 
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