CANCELLATION OF ARESH TO THE PROPERTY
Considering that one of the most common measures to ensure criminal proceedings is the seizure of property, we consider it expedient to consider the legal nuances of lifting property seizure as an action, which is the final stage of this security measure.
It should be noted that arrest in criminal proceedings can be lifted in two ways: appeal against the decision of the investigating judge (court) to arrest the property on appeal or to appeal to the investigating judge (court) with a petition to cancel the arrest.
An appeal against the ruling of the investigating judge (court) is filed directly to the court of appeal and is advisable if the court of first instance approves when a ruling is issued to arrest the property of procedural violations that suggest the relevant ruling is illegal and unreasonable.
For example, in the case of arresting property in order to preserve material evidence, it is important to pay attention, the investigation provided the relevant property with the procedural status of the evidence (execution of the relevant prosecutor’s decision or other procedural decision), and the investigator provided evidence of the risks of destruction or damage to the relevant property.
In addition, in case of seizure of property in order to ensure possible confiscation, special confiscation or civil action, the proportionality of the value of the seized property and the gravity of the crime should be taken into account, the suspect (accused) is accused and the harm caused by the relevant crime.
In addition, although it is expressly prohibited by the provisions of the Criminal Procedure Code of Ukraine, some investigators judge make decisions about arresting property in order to ensure possible confiscation, special confiscation or civil action in the absence of a suspect (accused) in the relevant criminal proceedings. Such a violation is sufficiently weighty reason to cancel the relevant decision on the arrest of property on appeal.
Particular attention should be paid to the fact that the seizure of property in accordance with the provisions of the Criminal Procedure Code of Ukraine, can not interfere with the normal economic activities of a legal entity whose property has been arrested. So, in the case of the arrest of bank accounts, corporate rights or any property of a legal entity, prevents the normal conduct of business, there is reason for the court of appeal to raise the question of the abolition of the arrest.
It should be noted that in addition to appealing the decision of the investigating judge (court) on arrest of property on appeal, the criminal procedural law allows to raise the issue of cancellation of the relevant decision on arrest of property by submitting a separate petition to the investigating judge (court), provided that the person who submits the corresponding petition (the suspect, the accused, their defense counsel, the legal representative of the other owner or property owner, the representative of the legal entity in respect of which Xia production) was not present when considering ECT and property.
Considering that in most cases investigators judge decisions to arrest property without summoning a suspect, accused, other owner or property owner, representative of a legal entity in respect of which the proceedings are being carried out, the right to file a petition for the abolition of the arrest relevant people.
The opportunity to prove that further arrest of property is not required or the arrest is imposed unreasonably, is also the basis for lifting the arrest of property.
In accordance with the provisions of the Criminal Procedure Code of Ukraine, an application for the abolition of the arrest of property must be considered no later than 3 days after its receipt by the court, but so far the specified time limits are not respected in most cases.
In addition, the seizure of property is subject to cancellation by the prosecutor at the same time as the decision to discontinue criminal proceedings is taken, provided that such property is not subject to special confiscation.
Also, the question of the abolition of the arrest of property is decided by the court simultaneously with the adoption of a judicial decision, which ends the trial.
The court cancels the seizure of property, in particular, in case of acquittal of the accused, the closure of criminal proceedings by the court, if the property is not subject to special confiscation, if the court imposed a penalty in the form of confiscation of property and / or did not apply special confiscation, a civil suit was left without consideration or case of denial of a civil suit.
Separate specific grounds for the abolition of the arrest of property include the abolition of the arrest of property of a bona fide purchaser. It is worth noting that the Criminal Procedural Code of Ukraine does not allow the seizure of property of a bona fide purchaser, other than the seizure of property in order to preserve evidence, however, unfortunately, does not contain a definition of a bona fide purchaser. It appears that in the event of the arrest of the property of a bona fide acquirer, the relevant decision of the investigative judge must be appealed on appeal, and in order to protect the rights of such a bona fide acquirer, a claim for recognition of a person as a bona fide acquirer may be quite effective in a court of general jurisdiction or arbitration court.
Thus, in the case of unjustified and unjustified seizure of property in criminal proceedings, there is a fairly wide arsenal of grounds for canceling such arrest both by appealing appeal of the relevant decision of the investigating judge (court) to arrest the property, and by applying to the investigating judge (court) with a petition on the abolition of the arrest of property.
Author: Andrey Kubov