HOW TO RETURN THE PROPERTY SEIZED DURING THE SEARCH?
You can expect or do not expect people to come to your office or apartment with the intention of a search, but you must always understand that law enforcement officers appear for the sole purpose of finding and removing everything that can only be similar from a distance to a thing or a document involved. to a criminal offense, and then on the course of the case already to understand, it was necessary to remove it or not. Therefore, be ready that the law enforcement officers “make” at the time of the search all the property that they entice.
A good idea is to read carefully the decision of the investigating judge on the search, because this is your key to success. The property list, which the investigating judge has allowed to find and remove, should be completed in detail and meticulously. That is, such a list contains things and documents that relate to a particular criminal offense and are relevant to the investigation of a crime. For example, seals, stamps, all kinds of documents, invoices, invoices, etc. If in the decision of the investigator the judge is not given permission to find and remove certain things or documents, they are nevertheless seized by the investigator or prosecutor – the property is called “temporarily seized property”.
Thus, all the property that law enforcement officers can remove in your office, apartment or other premises are divided into two categories:
Property determined in the decision of the investigating judge and granted a search and seizure permit. Such property law enforcement officers are not obliged to arrest in the future, although they are not obliged to return you too.
Property which in the decision of the investigating judge is not determined, and thus the permission to find and remove it is NOT granted. Such property is called “temporarily seized property”, and law enforcement officers are required to either arrest or return it to you.
However, investigating judges often indicate in the decision to conduct a search that the list of property that is allowed to be deleted is not clear.
For example, the decision may indicate that the permission has been granted for the removal of computer equipment containing information about a criminal offense, but the investigator removes all the computer equipment that is only contained in your office, for example. Such computer equipment is also considered to be temporarily withdrawn and must be returned if, within a certain period, which I will discuss below, there was no sequestration of the seized property.
How to do business yourself during a search
The correct behavior after the search depends on your awareness of the possible scenarios of the deployment of events.
Yes, after the search, law enforcers have two options for dealing with temporarily seized property: turn to an investigating judge with a petition for the arrest of property or return it to you. It is logical that the investigator / prosecutor does not seize the property, not to immediately return it to you, so you should expect seizure of seized property. Since the day of the search, the deadlines for monitoring are beginning to pop up: law enforcement officers in the reserve 48 hours after the property is seized, which is not indicated in the court order, in order to appeal to the investigating judge on the issue of seizure of property.
If the law enforcers did not apply to the court within 48 hours or request to arrest property, but the investigator refused the arrest, the property should be immediately returned to the person who was removed from it.
Of course, the manipulation of law enforcement officers already has a well-established practice, so hoping that returning property after 48 hours or after the refusal of an investigating judge to arrest property is useless.
In this case, it is appropriate to prepare a petition (request) for the return of the temporarily seized property to the investigator / prosecutor. If such a method does not apply to a law enforcement officer, then the next step is a complaint to the investigating judge about the inaction of the investigator / prosecutor, which consists in the non-return of the temporarily seized property.
If the investigator / prosecutor absolutely does not respond to such methods and continues to illegally hold your property, an effective remedy may be a disciplinary complaint to the prosecutor about his disciplinary offense, which consists of failure to perform or improper performance of his duties.
If the law enforcers all the same have appealed to the court within 48 hours and the investigating judge has seized the temporarily seized property, then in this case I offer you two ways of returning the property:
1) apply to the Court of Appeal with an appeal against the decision of the investigating judge regarding the seizure of the temporarily seized property;
2) apply to the investigating judge with a petition for the cancellation of property seizure.
When appealing to a court with an appeal, it is important to adhere to terms that depend on whether you were present when considering the issue of seizure of property.
If you were present at the court session, then you can appeal the seizure of property not later than 5 days from the moment of announcement of court order.
As a rule, property owners do not summon property to be seized for consideration, so in such a case, an appeal may be filed no later than 5 days from the receipt of a copy of the court order to impose an arrest.
Not all owners of temporarily seized property have access to the court with the request to cancel the arrest, but only those who were not present during the consideration of the petition of the law-enforcers about its imposition.
As already mentioned, this is a typical situation that property owners do not bring to court and seize property without their participation, so this way balances your rights.
The basis of this method’s advantage is the lack of deadlines for filing such a request. That is, it can be used even when you missed the time limit for appeals.
In Ukraine, they will search for new rules
The satisfaction of your appeal or petition for the cancellation of an arrest will oblige law enforcement officers to return the seized property. As described above, the obligation to return property does not always affect law enforcement effectively, therefore, how to act in this case – see “Scenario 1”.
In general, there is a disappointing tendency that you will have to fight for your own property: it is taken out by law enforcement officers, although they are not given permission for it, and then still have to make efforts to return it.
However, I hope that this article has cleared up possible ways to return the property seized during the search.
Despite this, the work of a lawyer as a specialist will never be superfluous, but will save you from wrong steps towards returning your property and preserving precious time.
Аuthor: Andrew Cubov