How to Record Search Violations in the Search Record
Short answer
Raise each violation immediately and state the fact, time, participants and requested correction. Before signing, read the entire search record, check the inventory and require statements and comments to be entered without changing their meaning. If an entry is refused, preserve the refusal on video and in a written explanation. A comment does not itself exclude evidence; the court assesses all materials.
- Published
- Legally reviewed
- Author
- Vitaliy BessonovAttorney-at-law, license No. 1893 dated 18 February 2015
Step-by-step action plan
- 1State immediately that counsel is being called; note the time the search began, the order was shown, counsel arrived and counsel was actually admitted
- 2Record the name, position and procedural role of every person who searches, takes or packages property, or signs documents
- 3Raise a violation when it occurs: identify the fact, time, object and specific request for an entry in the protocol
- 4Before signing, read the entire protocol and inventory; compare them with the video, your notes and the items actually taken, then place comments before the signatures
- 5Obtain the second protocol copy and inventory, photograph every page, and preserve your notes and files without editing them
What the law provides
Article 104 of the Criminal Procedure Code of Ukraine requires the course and results of a procedural action to be recorded in a protocol. It must identify the place and time, the officer conducting the search, everyone present, the recording equipment used, the sequence of actions, items found and taken, their means of identification, and participant comments or additions. Participants must be allowed to read the protocol before signing, and comments must appear before the signatures. If a participant refuses to sign, the refusal is recorded and that person may give a written explanation of the reasons.
Under Articles 104 and 107 CPC, execution of a search order must be recorded by audio and video. The search video is an integral attachment to the protocol. Search actions and circumstances absent from that recording cannot be entered in the protocol or used as evidence. The defense has the right to make an unobstructed video recording of the search.
Article 236 CPC requires defense counsel or another attorney to be admitted at any stage of the search. Persons present may make statements that must be entered in the search protocol. On completion, the person whose premises were searched receives the second copy of the protocol together with the inventory of documents and temporarily seized items, where an inventory was prepared.
Facts and wording to preserve
Record an event that can later be compared with the order, protocol and video, not only a general conclusion that the search was unlawful. A useful structure is: exact time, person acting, what occurred, your statement or request, and the officer's response.
Do not make unauthorized additions to a completed official document or damage it. Dictate a short statement, check how it is reproduced, and submit any written explanation in a manner that preserves its connection with the protocol.
Step-by-step action plan
What follows from case law
In its judgment of 6 December 2023 in case No. 729/700/21, proceeding No. 51-3776km23, the Third Chamber of the Criminal Cassation Court considered a defense argument that the protocol omitted video-recording details and technical characteristics of the equipment and carrier. The Supreme Court left the lower judgments unchanged. On the specific facts, a video existed, covered the full search, was examined by the courts and was consistent with other material; the parties had not alleged that the recording differed from the actual course of the search.
This conclusion does not mean that failure to comment always prevents a later challenge, or that every protocol defect is immaterial. It shows that a court examines the nature of the breach and the record as a whole instead of attaching an automatic consequence to a formal error. The protocol, video, timely statements and other supporting material should therefore be preserved together.
Common mistakes
What to do after the search
Preserve the order copy, second protocol copy, inventory, photographs, video and notes in their original form. Prepare a separate timeline with exact times and give the material to counsel. The appropriate next step, such as seeking return of property, challenging admissibility or using another procedural remedy, can be chosen only after reviewing the order, protocol, recording and the materials of the particular proceeding.
Rule of law and case law
What the law provides
- Criminal Procedure Code of Ukraine — ст. 104, 107, 236
What follows from case law
In its 6 December 2023 judgment in case No. 729/700/21, the Third Chamber did not treat incomplete protocol details about video recording as automatic grounds for exclusion. The courts examined the full recording, its consistency with other material and the absence of alleged discrepancies. The conclusion is limited to the facts established in that case.
Official sources
- LawCriminal Procedure Code of Ukraine — ст. 104, 107, 236
- Supreme CourtSupreme Court review of inspection and search case law — 2020–2025 decisions
- Supreme CourtThird Chamber judgment of 6 December 2023 in case No. 729/700/21
- Supreme CourtSupreme Court December 2023 review — case No. 729/700/21, pp. 37–38
- RegistryUnified State Register of Court Decisions
- RegistrySupreme Court Legal Positions Database
Frequently asked questions
May I add comments to the protocol by hand?
Article 104 CPC requires comments and additions to appear before signatures but does not prescribe one method of entry. Do not alter a completed official document without authorization. Dictate the text, verify its meaning and arrange any written explanation with the officer preparing the protocol.
What if the officer refuses to enter a comment?
Repeat the statement calmly for the official video and preserve the time and identity of the officer refusing it. Ask again before signing. If you decide not to sign, Article 104 CPC provides for the refusal to be recorded and permits a written explanation of the reasons. Coordinate the decision with counsel.
May the defense record the search on its own phone?
Yes. Article 107(1) CPC gives the defense the right to make an unobstructed video recording of the search. Preserve the original file without editing and separately note the time of any interruption in the official recording.
Does every protocol defect make evidence inadmissible?
No. A court assesses the type of breach, its effect on rights, the video and other material. In case No. 729/700/21, the Supreme Court did not treat incomplete technical details as automatic grounds for exclusion on the facts before it. That is not a universal rule for every search.
Which documents should be provided after the search?
Article 236(9) CPC requires the person whose premises were searched to receive the second protocol copy together with the attached inventory of documents and temporarily seized items, if an inventory exists. Check every page, attachment and identifying property detail before documentation is completed.