“Pravova derzhava”. Issue 36 (2025), pages 557–566.

DOI: 10.33663/0869-2491-2025-36-557-566

Gorbachov Dmytro
Legal challenges in determining the admissibility of search results conducted under martial law: balancing investigation effectiveness and human rights compliance

The scientific article examines the changes in the criminal process of Ukraine due to the introduction of martial law, in particular, in the context of searches. The new provisions of the Criminal Procedure Code of Ukraine, which regulate the procedure for conducting a search and are aimed at increasing the effectiveness of investigations under martial law, are analyzed. The influence of the novels on the observance of the fundamental rights of the suspect is considered. Special attention is paid to the possibility of remote participation of the defense counsel during the search, which has both advantages (safety of the defense counsel or representative, saving time and resources, convenience for the participants, ensuring a quick and complete pre-trial investigation), and disadvantages (limitation of the defense counsel’s capabilities, violation of the right to privacy , the risk of manipulation of evidence, complications of control over procedural actions). Permission to carry out investigative actions around the clock, even at night, was also considered. These innovations, aimed at improving the effectiveness of the investigation, may, however, make it more difficult to ensure the right to a defense, especially under curfews.
The practice of the Supreme Court was studied, according to which the right to the protection of a person during a search is not ensured by law enforcement agencies, and its violation does not always lead to the recognition of evidence as inadmissible. The corresponding guarantee rests entirely with the person concerned. Such a position will prevent the guilty person from avoiding responsibility for «formal non-compliance with the requirements of the criminal procedural law when receiving evidence».
There is also a negative impact of this position on the actions and decisions of law enforcement agencies in respect of the rights of suspects during pre-trial investigation.
The prosecution party in criminal proceedings may disregard the relevant procedural requirements for ensuring the right to defense during a search, given that in the event of its violation, this will not affect the admissibility of the evidence obtained.
The article focuses on the importance of achieving a balance between the need to conduct effective investigations under martial law and ensuring fundamental human rights and freedoms. It is emphasized that changes to the legislation, although aimed at increasing the efficiency of law enforcement activities, should not lead to an unjustified restriction of the rights of citizens. It is extremely important that law enforcement agencies act within the framework of the law, even in the difficult conditions of martial law, and the priority of their activities is to ensure these human rights and freedoms.
Key words: the right to defense, search, martial law, defense counsel, admissibility of evidence, remote participation of a lawyer, basic principles of criminal proceedings, investigative (search) actions, purpose of search, duties of the investigator, significant violations of the requirements of the criminal procedural law, mandatory participation of a defense lawyer, effectiveness of pre-trial investigation.

References

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