On 16 November 2017, the Ukrainian Parliament adopted the Law of Ukraine on Amending Specific Legislative Acts Regarding the Compliance with the Rights of Participants of Criminal Proceedings and Other Persons by Law Enforcement Authorities in the Course of Pre-Trial Investigations (the “Law”).
The Law introduces a number of significant amendments to the Ukrainian criminal procedure rules, which are meant to enhance the protection of businesses against abusive and unjustified actions by the law enforcement authorities in the course of pre-trial investigations.
These amendments will bring about the mandatory audio/video recording of searches on premises conducted by law enforcement officers. The defendant will be allowed to conduct such recording on its own initiative. The audio/video recordings of the authorities will thus become an indispensable part of the search protocol.
The Law also clearly requires the presence of the defence attorney throughout the entire search. Evidence obtained during a search in absence of the defence attorney will be deemed inadmissible, provided the attorney proves that she/he was not granted access to attend the search by the enforcement authorities.
Further, the audio/video recording of court hearings during the trial stage and, in specific circumstances, during the pre-trial investigation will now be required. Evidence obtained during searches granted by a court order but presented without recording of the court hearings will be considered inadmissible.
Another significant change introduced by the Law is the prohibition of temporary seizure of electronic devices with a limited number of exceptions, e.g. for expert research purposes, if such devices constitute proceeds of crime or means for its perpetration, etc.
The Law also provides that an individual who sought to commence criminal proceedings will have the right to receive an extract from the Unified Registry of Pre-trial Investigations within 24 hours upon filing his or her request.
The Law also aims to take on the long-standing practice of law enforcement authorities on re-opening classified investigations. For instance, it will require termination of criminal proceedings instituted on charges for allegations that have already been disproved in other criminal proceedings.
The Law will enter into effect upon its signing by the President of Ukraine and official promulgation, while the rules on the mandatory video recording of court hearings will become effective on 1 January 2019.
We believe that the adoption of this Law is a significant step towards the elimination of the unlawful pressure on businesses by the law enforcement authorities, which will contribute to the overall improvement of the business climate in Ukraine.
Source: text of the draft Law On Amending Certain Legislative acts Regarding Compliance with the Rights of Participants of Criminal Proceedings and Other Persons by Law Enforcement Authorities in Course of Pre-Trial Investigations.