Procedure in the event of the appearance of law enforcement officers with a court ruling on granting permission to conduct a search of a home or other possession of a person

The current Criminal Procedure Code of Ukraine (hereinafter - the CPC of Ukraine) provides for such a procedural action as a search .

In accordance with the provisions of Part 1 of Art. 234 of the CPC of Ukraine search is carried out in order to identify and record information about the circumstances of a criminal offense, finding a tool of a criminal offense or property obtained as a result of its commission, as well as establishing the location of wanted persons.

The search is possible only on the basis of the decision of the investigating judge, which meets the requirements of Part 2 of Art. 234 of the Criminal Procedure Code of Ukraine. The decision of the investigating judge on permission to search the home or other property of a person on the grounds specified in the request of the prosecutor, the investigator, gives the right to enter the house or other property of a person only once, during the decision.

In practice, there were cases when penetration into a dwelling or other property on the basis of one decision occurred several times. For example, when a search is conducted in a large room and it may take several days. In this case, the person conducting the search shall take measures to seal the premises and transfer it under the protection of law enforcement agencies. This action is motivated by the fact that investigative (search) actions at night (from 22 to 6 o'clock) are not allowed. But, in accordance with Part 4 of Art. 223 of the CPC of Ukraine, investigative actions may be carried out at night, when the delay in their conduct may lead to the loss of traces of a criminal offense or the escape of the suspect.Therefore, the specified norm establishes that carrying out search can be carried out at night in the presence of the specified bases. It follows that if the person conducting the search has left the place of the search, then for further continuation of the specified investigative action, he must apply to the investigating judge with a request to obtain permission to conduct such a search.

As noted earlier, the search must be conducted on the basis of a decision of the investigating judge. According to Art. 235 of the CPC of Ukraine The decision to grant a search permit must meet the requirements of the Law and contain the following information:

• the term of the decision, which may not exceed one month from the date of the decision by the investigating judge;
• information on the prosecutor, investigator who filed the search request (whether they are included in the group of prosecutors and the investigative group, respectively);
• on the basis of which article and which Law the Resolution is passed;
•     the dwelling or other property of the person or part of the dwelling or other property of the person to be searched;
• the person who owns the dwelling or other property and the person in whose actual possession it is;
• things, documents or persons to be searched.

Before conducting a search, the prosecutor or investigator must present the decision of the investigating judge and provide a copy of the decision to the person who owns housing or other property, and in his absence - to another person present.

After receiving a copy of such a decision, it should be carefully examined and the following information established:

1. Identify the person who has been granted a search warrant;

In practice, a search is often carried out not by the person who requested the search, but by another person. Law enforcement officers motivate this by the fact that the pre-trial investigation of criminal proceedings is carried out by a designated group of investigators, and the investigator or prosecutor who is directly granted the right to conduct a search is undergoing another investigative action. However, this is a violation of Part 2 of Art. 234 of the CPC of Ukraine, as the search is conducted exclusively within the decision of the investigating judge. In such cases, a person who is not listed in the decision of the investigating judge should be required to order the appointment of an investigative team that directly identifies the investigator or prosecutor who plans to conduct the search. In the absence of such a decision, the investigative action is illegal, and all the information established by such a search cannot be evidence in criminal proceedings, as they were obtained contrary to the requirements of the CPC of Ukraine. Also in practice, there are cases when the pre-trial investigation of the criminal proceedings in which the search is conducted is carried out by the investigator alone, but the search is carried out by another investigator. In this case, there must be a power of attorney to conduct such an investigative action.

2. Check which housing or other property of the person may be searched;

When studying the decision of the investigating judge, it is necessary to pay attention to the address of the search. The decision of the investigating judge must indicate in which part of the dwelling or other property of the person the search permit has been granted. Most often, the investigating judges state in the decision the following: "to allow investigator A. to conduct a search of the premises at the address: ___, which belongs to B.'s property, only in the part used by B."

Thus, the investigating judge restricts the person conducting the search to the territory of the search. That is, the search should be carried out only in the part of the premises for which the permit is issued.

3. Establish what items and documents are planned to be found and seized;

Investigating judges must indicate what items and documents are planned to be found. That is, based on the specifics of the criminal proceedings, the investigating judge grants permission to find and seize specific items and documents that are relevant to the criminal proceedings. During the search, the investigator, prosecutor has the right to measure, photograph, sound or video, make plans and diagrams, make graphic images of the searched home or other property of a person or individual items, make prints and casts, inspect and seize documents, temporarily seize items that are relevant to criminal proceedings. Items that are withdrawn from circulation by law are subject to seizure regardless of their relation to criminal proceedings .

Seized items and documents that are not included in the list in respect of which the search permit was directly issued in the search permit decision, and do not belong to the items that have been withdrawn from circulation by law, are considered to be temporarily seized property. It should be noted that the investigator or prosecutor has the right to temporarily seize items and documents that are not specified in the decision of the investigating judge. However, the investigator must describe such items and documents and state that they are temporarily seized and, within 48 hours of their seizure, the investigator or prosecutor must request the seizure of such property, otherwise the property must be returned to the person immediately. in which it was removed.

After studying the decision of the investigating judge for permission to conduct a search, it is necessary:

4. Establish the presence of witnesses;

In accordance with paragraph 2 of Part 7 of Art. 223 of the CPC of Ukraine search or inspection of housing or other property of a person, search of a person are carried out with the mandatory participation of at least two witnesses, regardless of the use of technical means of recording the relevant investigative (search) action. This rule stipulates that witnesses must be present during such an investigative action as a search. However, in practice, there are cases when the investigator or prosecutor engages witnesses in the search only for the part of the time when the investigator or prosecutor submits a search warrant and a copy of such a warrant is served.

After that, the witnesses are released and returned to sign the search report. But, given the requirements of paragraph 2 of Part 7 of Art. 223 of the CPC of Ukraine, these actions are illegal, as witnesses must be present during the search from the beginning and until the end of the search.

5. Call a defender;

Prior to the search, the investigator or prosecutor must be requested to seek legal assistance. According to Art. 59 of the Constitution of Ukraine, every person has the right to legal aid and every person is free to choose a defender of their rights. But Part 1 of Art. 236 of the CPC of Ukraine does not establish the obligation of the prosecutor or investigator to ensure the presence of counsel, but only gives the right to an invitation. In view of these norms, it should be concluded that the investigator or prosecutor on his own initiative may not interfere with the exercise of rights of defense.

6. Call the owner or possessor of housing or other property of the person;

Require the investigator or prosecutor to take appropriate measures to ensure the presence during the search of persons whose rights and legitimate interests may be restricted or violated. It should be noted that in accordance with Part 1 of Art. 236 of the CPC of Ukraine, it is the duty of the investigator or prosecutor.

We sincerely wish to never get into such situations, and in case the search cannot be avoided - to use this publication as an instruction.