Art. 234(4) of the CPC stipulates that the search motion is considered with investigator or prosecutor's participation thus requiring mandatory recording by technical means of criminal proceedings when considered by the investigating judge

The issuance by the investigating judge of a ruling authorising a search of a dwelling or other possession of a person without conducting full technical recording of the hearing under such circumstances leads, pursuant to point 4 of part 3 of Article 87 of the CPC of Ukraine, to the recognition as inadmissible of any evidence obtained during the execution of that ruling.   

This conclusion was reached by the Joint Chamber of the Criminal Cassation Court within the Supreme Court following its consideration of case No. 336/4830/22.

According to the circumstances of the criminal proceedings, courts of previous instances found the accused guilty and convicted him under part 1 of Article 309 of the Criminal Code of Ukraine. In his cassation appeal, the convicted person argued that the data contained in the search report constituted inadmissible evidence, since the ruling authorising the search of the dwelling had been issued by the investigating judge without full technical recording of the hearing and without the participation of the investigator and the prosecutor.

In assessing these cassation claims, the Joint Chamber of the CrimCC of the Supreme Court drew attention to the importance of the role of the prosecution during the consideration by the investigating judge of a motion for a search. This participation enables the investigating judge to fully ascertain and verify the arguments of the motion and to examine the grounds for deciding the matter on its merits.

At the same time, where the law states that the participation of a certain participant is mandatory, this is clearly indicated in its provisions through the use of formulations such as “with the mandatory participation of” or “only with the participation of”. The panel of judges does not consider the formulation “with the participation of” used in the law to be equivalent to “with the mandatory participation of”. Clearly, an indication that the consideration of a motion takes place with the participation of a particular participant imposes on the court the obligation to notify the prosecution side of the court hearing, which must be conducted in the manner and within the time limits prescribed by the CPC of Ukraine.

Regarding the use by the court of technical means of recording criminal proceedings, the Joint Chamber of the CrimCC of the Supreme Court emphasised that the participation of the investigator or prosecutor during the consideration of a motion for a search obliges the investigating judge, pursuant to part 4 of Article 107 of the CPC of Ukraine, to conduct such consideration with recording by technical means of criminal proceedings in the manner provided for by the Regulation on the Unified Judicial Information and Communication System and/or by the provisions governing the operation of individual subsystems (modules) of the Unified Judicial Information and Communication System. Where technical means of recording criminal proceedings are not used in cases where their use is mandatory, the relevant procedural action and the results obtained as a consequence thereof are deemed invalid (part 6 of Article 107 of the CPC of Ukraine).

A link to the full text of the ruling of the Joint Chamber of the CrimCC of the Supreme Court dated 19 January 2026 in case No. 336/4830/22 (proceedings No. 51-1139кмо25) will be promptly added after its publication in the Unified State Register of Court Decisions.