How to return the property seized by an investigator during a search, inspection or detention of a person

According to paragraph 1, part 1 of Article 303 of the Criminal Procedure Code of Ukraine (hereinafter - CPC of Ukraine) in pre-trial proceedings may be challenged inaction of the investigator, prosecutor, which consists in non-return of temporarily seized property in accordance with Article 169 of this Code.

In accordance with the same rule, paragraph 1, part 1 of Article 303 of the CPC of Ukraine, such a complaint is filed by the owner of the temporarily seized property.

According to the clear content of Part 1 of Article 397 of the Civil Code of Ukraine (hereinafter - the Central Committee of Ukraine), the owner of the property is the person who actually keeps it.

The owner of temporarily seized property is a person in whom the property seized by the investigator was actually at the time of seizure and who actually kept it until seizure, ruled over it.

In accordance with Part 1 of Article 169 of the CPC of Ukraine, temporarily seized property is returned to the person from whom it was seized:

1) by decision of the prosecutor, if he finds such seizure of property unfounded;

2) by decision of the investigating judge or court, in case of refusal to satisfy the prosecutor's request for seizure of this property;

3) in the cases provided for in part five of Article 171, part six of Article 173 of this Code;

4) in case of revocation of arrest.

According to part five of Article 171 of the CPC of Ukraine, a request of an investigator or prosecutor to seize temporarily seized property must be submitted no later than the next working day after seizure of property, otherwise the property must be returned immediately to the person from whom it was seized.

Thus, if the investigator or prosecutor does not apply to the court for arrest the day after the temporary seizure of property, then according to the mandatory norm of the CPC of Ukraine, such property must be immediately returned to the person from whom it was seized.

Therefore, inaction on non-return of temporarily seized property under Part 5 of Article 171 of the CPC of Ukraine is illegal, and therefore there are grounds to file a complaint to the investigating judge on the inaction of the investigator, which consists in non-return of temporarily seized property.

Moreover, according to the norms of Clause 3, Part 1, Article 169 and Part 5, Article 171 of the CPC of Ukraine, this is the inaction of the investigator, as he (the investigator) confiscated property, and he is obliged to return the confiscated property.

Part 1 of Article 304 of the CPC of Ukraine sets a ten-day period for appealing against the inaction of the investigator and prosecutor, the course of which, as follows from the above, begins the day after the day on which according to part five of Article 171 of the CPC of Ukraine committed by the investigator.

The Supreme Specialized Court of Ukraine for Civil and Criminal Cases in the Generalization "On the practice of reviewing complaints against decisions, actions or omissions of pre-trial investigation bodies or the prosecutor during the pre-trial investigation", in particular, clarified the following:

- The CPC provides for the possibility of temporary seizure of property in three cases: 1) from a detained person; 2) during the inspection; 3) during the search. The property is temporarily confiscated until its return or the issue of its arrest is resolved;

- non-fulfillment of the procedural obligation to immediately return the property to the person and determines the existence of a procedural mechanism to appeal the inaction of the investigator, prosecutor, which is not to return the temporarily seized property specified in paragraph 1 of Part 1 of Art. 303 of the CCP;

- in the context of the question of the subject, which is empowered to appeal the inaction of non-return of property, it is necessary to take into account that paragraph 1 of Part 1 of Art. 303 of the CPC provides for the procedural possibility of appealing three types of inaction, and the list of subjects of appeal is the same for all types. At the same time, one of such entities is the owner of the temporarily seized property, who, in particular, has the right to appeal against inaction, which is analyzed within this unit;

- Investigating judges must carefully assess the grounds for classifying certain property as temporarily seized within the meaning of Art. 167 of the CPC, as they depend on the procedural order of its receipt by the pre-trial investigation body;

- in particular, such an order is regulated by the provisions of paragraph 6 of Part 2 of Art. 235 and Art. 236 of the CPC, according to which the decision of the investigating judge on the permission to search the home or other property of a person must contain information about the things, documents or persons to be searched. A search based on the decision of the investigating judge shall be conducted to the extent necessary to achieve the purpose of the search. On the basis of Part 7 of Art. 236 of the CPC during a search of the investigator, the prosecutor has the right to inspect and seize items and documents that are relevant to criminal proceedings. Seized items and documents that are not included in the list in respect of which a search warrant was directly issued in the search warrant, and do not belong to the items that have been withdrawn from circulation by law, are considered to be temporarily seized property. Thus, if in respect of property seized during a search, which was not included in the relevant list provided for in the decision of the investigating judge, the investigator, the prosecutor did not make a request in the manner and within the time limits established by Part 5 of Art. 171 of the CPC, investigative judges reasonably satisfy complaints about the inaction of these entities for non-return of the property;

- the correctness of the consideration of complaints of inaction regarding the non-return of temporarily seized property largely depends on the clarity of the list formed in the decision of the investigating judge on the search;

- the argument of the prosecution, which this party uses to confirm the legality of leaving the property in the possession of the pre-trial investigation and the lack of grounds for its return, is the recognition of such property as material evidence. However, it should be borne in mind that if this evidence was obtained during the search and was not identified in the search warrant as property for which a search permit was granted, the recognition of such property as material evidence without requesting its arrest cannot be considered appropriate. legality of possession of the relevant property by pre-trial investigation bodies. In view of this, the decisions of the investigating judges on the obligation to return such property are justified;

- the above is based on the fact that in accordance with Part 1 of Art. 100 of the CPC, material evidence that has been provided to a party to criminal proceedings or seized by him, must be returned to the owner as soon as possible, except as provided in Articles 160 - 166, 170 - 174 of this Code. Thus, the legality of possession by the bodies of pre-trial investigation of property, which is endowed with signs of material evidence, must be confirmed in the manner prescribed by these articles;

- the same applies to property that was seized not during a search, but during the detention of a person in the manner prescribed by Art. 208 of the CPC, and when inspecting the scene. If such confiscated property has not been seized and is in the possession of the pre-trial investigation authorities without a proper legal basis, the investigating judges shall issue reasoned rulings on the obligation to return such property;

- inaction on non-return of property should be classified as ongoing. Thus, the results of the analysis of the content of Part 5 of Art. 171 of the CPC indicate that it establishes the obligation of the investigator, the prosecutor to file a petition for the seizure of temporarily seized property no later than the next working day after the seizure of property. In turn, in case of non-fulfillment of such an obligation, these entities have another obligation - to immediately return to the person the seized property, the term of which is not limited in time, and therefore, the moment of completion of such an obligation is exclusively its fulfillment. . That is why there are no grounds to return a complaint for inaction, which consists in non-return of temporarily seized property, on the grounds of missed deadline for filing such a complaint, as such inaction has only a starting point, but no deadline.

It should be noted that prior to amendments to the law № 772-VIII of 10.11.2015 in Part 1 of Article 170 of the CPC of Ukraine, seizure of property meant temporary deprivation of a suspect, accused or persons who by law are civilly liable for damage caused by the actions of the suspect , the accused or insane person who committed a socially dangerous act, as well as the legal entity in respect of which the proceedings are conducted.

Therefore, seizure of property seized from a person during a search could be imposed only if such a person is in the status of a suspect or accused in the relevant criminal proceedings.

This was directly indicated in paragraph 2, paragraph 2.6. Generalization of case law on the consideration by the investigating judge of motions for the application of measures to ensure criminal proceedings, prepared by the High Specialized Court of Ukraine for Civil and Criminal Cases, which stated the following:

"Regarding persons who are not suspects (which in the manner prescribed
Art. Art. 276 - 279 of the CPC, reported on suspicion, or who is detained on suspicion of committing a criminal offense), accused (a person whose indictment has been submitted to the court in the manner prescribed by Article 291 of the CPC) or persons who are legally liable for damage caused by the actions of a suspect, accused or insane person who has committed a socially dangerous act, a decision to seize property may not be made. In view of the above, even if the investigating judge has sufficient grounds to believe that a certain person has committed a criminal offense, he does not have the power to seize the property of a person who is not a suspect. In view of the above, it is correct practice for investigating judges to recognize a request for seizure of property as premature and refuse to grant it,

Currently, according to Part 1 of Article 170 of the CPC of Ukraine, the seizure of property is temporary, until the abolition in the manner prescribed by this Code, deprivation by decision of the investigating judge or court of the right to alienate, dispose and / or use property for which there are suspect that it is evidence of a crime, subject to special confiscation from the suspect, accused, convict, third parties, confiscation from a legal entity, to secure a civil lawsuit, recovery from the legal entity of illegal benefits, possible confiscation of property. Seizure of property shall be revoked in accordance with the procedure established by this Code.

The task of seizure of property is to prevent the possibility of its concealment, damage, deterioration, destruction, transformation, alienation. The investigator and prosecutor must take the necessary measures to identify and search for property that may be seized in criminal proceedings, in particular by requesting the necessary information from the National Agency of Ukraine for Detection, Search and Management of Assets Obtained from Corruption and Other Crimes, other state bodies and local governments, individuals and legal entities. The investigator and prosecutor must take the necessary measures to identify and search for property that may be seized in criminal proceedings, in particular by requesting the necessary information from the National Agency of Ukraine for Detection, Search and Management of Assets,

In accordance with Part 2 of Article 170 of the CPC of Ukraine seizure of property is allowed in order to ensure:

1) preservation of physical evidence;

2) special confiscation;

3) confiscation of property as a type of punishment or measure of a criminal law nature against a legal entity;

4) compensation for damage caused as a result of a criminal offense (civil claim), or recovery of illegal profit from a legal entity.

By law, in the case provided for in paragraph 1 of part two of this article, seizure is imposed on the property of any natural or legal person if there are sufficient grounds to believe that it meets the criteria specified in Article 98 of this Code.

Seizure may also be imposed on property that has previously been seized in accordance with other legislation. In this case, the decision of the investigating judge, the court on the seizure of property in accordance with the rules of this Code (Part 3 of Article 170 of the CPC) is subject to execution.

At the same time, parts 4-12 of Article 170 of the CPC define the following:

- In the case provided for in paragraph 2 of part two of this article, seizure is imposed on the property of a suspect, accused, convicted person or a third party if there are sufficient grounds to believe that it will be subject to special confiscation in cases provided by the Criminal Code of Ukraine.

Seizure is imposed on the property of a third party if he acquired it free of charge or at a higher or lower market value and knew or should have known that such property meets any of the criteria specified in paragraphs 1-4 of the first part of Article 96 -2 of the  Criminal Code Of Ukraine.

- In the case provided for in paragraph 3 of part two of this article, seizure is imposed on the property of a suspect, accused, convicted person or legal entity subject to proceedings, if there are sufficient grounds to believe that the court in cases under the Criminal Code of Ukraine in the form of confiscation of property or to apply to a legal entity a measure of criminal law in the form of confiscation of property.

- In the case provided for in paragraph 4 of part two of this article, the seizure is imposed on the property of a suspect, accused, convicted, natural or legal person who by law is civilly liable for damage caused by actions (inaction) of a suspect, accused, convicted or insane person. , who committed a socially dangerous act, as well as the legal entity in respect of which the proceedings are conducted, in the presence of a reasonable amount of civil action in criminal proceedings, as well as a reasonable amount of illegal gain received by the legal entity in respect of which the proceedings are conducted.

In case of satisfaction of a civil claim or recovery from a legal entity of the amount of illegal benefit, the court at the request of the prosecutor, civil plaintiff may decide to seize property to secure a civil claim or recovery from the legal entity in respect of which the proceedings by decision of legal force, if such measures have not been taken before.

- Seizure may be imposed on property that has previously been seized in accordance with other legislation. In this case, the decision of the investigating judge, the court on the seizure of property in accordance with the rules of this Code is subject to execution.

- The value of property to be seized for the purpose of securing a civil claim or recovering the received illegal benefit must be commensurate with the amount of damage caused by the criminal offense or specified in the civil claim, the amount of illegal benefit received by the legal entity.

- In urgent cases and solely for the purpose of preserving material evidence or ensuring possible confiscation or special confiscation of property in criminal proceedings for a serious or especially serious crime by the decision of the Director of the National Anti-Corruption Bureau of Ukraine (or his deputy), agreed by the prosecutor, property or funds on the accounts of individuals or legal entities in financial institutions. Such measures are applied for up to 48 hours. Immediately after making such a decision, but not later than within 24 hours, the prosecutor shall apply to the investigating judge with a request to seize the property.

If the prosecutor does not apply to the investigating judge for seizure of property within the period specified in this part, or if such a request is denied, the previous seizure of property or funds shall be deemed revoked and the seized property or funds shall be returned to the person immediately.

- Seizure may be imposed in accordance with the procedure established by this Code on movable or immovable property, money in any currency in cash or in non-cash form, including funds and valuables in bank accounts or in custody in banks or other financial institutions, expenditure transactions, securities, property, corporate rights, in respect of which the decision or decision of the investigating judge, the court determined the need to seize property.

Property may not be seized if it is owned by a bona fide purchaser, except for the seizure of property in order to ensure the preservation of material evidence.

 - Prohibition or restriction of use, disposal of property may be applied only if there are circumstances that confirm that their non-application will lead to concealment, damage, damage, disappearance, loss, destruction, use, transformation, movement, transfer of property.

- Prohibition of the use of residential premises by persons who legally live in such residential premises is not allowed.

Thus, the norms of the CPC of Ukraine and the above analysis of the case law of the court of cassation, provide sufficient opportunities to protect against unjustified inaction of the investigator in the form of non-return of temporarily seized property.