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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”.

 

Wave and Peace

23.06.2016

Iryna Kuzina, attorney at law, Head of Kharkiv office of Ilyashev & Partners
Source: Yurydychna Praktyka

People’s deputies of Ukraine propose to amend the Code of Criminal Procedure of Ukraine (CCP), which, in their opinion, should make it impossible to conduct unlawful searches. What good can it do?

Judging by direction of suggestions and a loud PR-campaign, it is obvious that the authors of draft law No. 3719 “On Amendments to the Code of Criminal Procedure of Ukraine regarding some aspects of investigative actions to provide additional guarantees of legitimacyduring their conduct” were much willing to help IT-companies to survive a wave of searches without big losses.

However, as a result the lawmakers did not offer any effective mechanisms and mainly restricted themselves to duplication of rules from other articles and introduction of bureaucratic obstacles for the pre-trial investigation body, which again are easy to overcome.

Confusion of terminology, vagueness of requirements to the documents authorizing search and absurdity of some proposals compel to enter into open discussion with the initiators of change. Thereto, each item of proposals is noteworthy.

According to requirements envisaged in Article 51(2) of the Code of Criminal Procedure of Ukraine to the form and content of the attorney-client contract now an investigator will carefully study the text of the agreement with all annexes regarding fees and other issues.

Complete prohibition of seizure “of electronic information systems, or parts thereof”, which the authors seem to understand as computer servers, will make impossible some kinds of computer technical and other forensic examinations that require provision of the original data storage device.

In addition, I did not manage to find the term “electronic information system” in the legislation, I have not found, and the investigator during search sees material rather than electronic system unit.

I interpret “electronic information system” as a software product, i.e. software that is stored on material media. As a rule, investigators do not seize the software separately, they seize the material media. Perhaps the authors were misled by Article 264 of the Code of Criminal Procedure of Ukraine, but it also refers to information, does not it?

Why not use the terminology of the Criminal Code of Ukraine, which in Chapter XVI “Crimes in the field of use of ECM …” uses the term “electronic computing machine (computer)”, “automated system”, “computer network”, “electric communications network”? If these concepts are outdated, the code should be amended.

Further, I do not understand the prohibition to seizure “a mobile terminal of communication systems” (a simple mobile phone), because it can be, e.g. stolen, that is the target of crime.

It is possible to determine the contents of SMS-messages, if previously secret investigative (search) actions were not carried out, only if the phone is available to the law enforcement agencies and recognized as material evidence.

Most importantly, why the prohibition of temporary seizure is introduced in Article 168(2) of the Code of Criminal Procedure of Ukraine, and not in Article 167? Does it mean that servers must not be seized only during search and examination? And if you at once detain director of the company, programmers and seize servers, so it can be done? It is easy to guess how a prohibition of the investigator will be got around.

The proposed amendments to Article 235(1) are made in the interests of law enforcement agencies. Let us take a closer look at the situation: the investigators broke into the dwelling on the basis of ruling on search issued by the investigating judge, but for some reason were unable to start the search (in particular, due to efforts of attorneys). Now, they will be permitted to come again on the basis of the same ruling.

Finally the promised nonsense: the requirement to notify all parties in accordance with Article 135 of the Code of Criminal Procedure of Ukraine, i.e. three days in advance. Examination is usually an urgent investigative action, and the scene of action may be examined even before registration of criminal proceedings (Article 214(3) of the CCP of Ukraine). The proposed procedure for notification of parties of the proceedings will destroy the whole meaning of the investigative action. For example, the corpse can corrupt in three days.

In my opinion, the only positive feature is a requirement to allow an attorney to search even after its beginning. However, it was proposed in the Law “On the Bar”.

 
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