RETURN OF TEMPORARY PROPERTY DETERMINED DURING THE SEARCH
In the practice of the Law Office of the Parish and Partners, cases of the return of temporarily seized property during a search within the framework of criminal proceedings are quite common. Consider, for example, the process of recovering temporarily seized property, namely computer hardware in an enterprise.
According to Part 2 of Art. 168 CPC of Ukraine, the temporary seizure of property may be carried out during the search. Removal of electronic information systems or parts thereof, mobile terminals of communication systems for the study of physical properties relevant to criminal proceedings shall be carried out only if they are directly indicated in the court order.
At the same time item 7 of Art. 236 of the CPC of Ukraine stipulates that seized items and documents that are not on the list, for which a search permit was explicitly granted in the search permit, and do not relate to items seized by the law on circulation, are considered temporarily seized property.
FEATURES OF THE RETURN PROCESS
The peculiarities of the process of return of temporarily confiscated property during the search in criminal proceedings is that the Criminal Procedure Code of Ukraine does not give a clear definition of the procedure for the return of such property, which may cause some difficulties.
In practice, for the return of the temporarily seized property, it is necessary to file an appropriate petition with the investigator who seized the property during the search. An application for the return of temporarily seized property shall be submitted in accordance with Art. 220 of the CPC of Ukraine, where it should be noted that the computer hardware removed during the search is necessary for the conduct of the activity of the enterprise, as well as to make appropriate references to Clause 4,5,6 of Part 2 of Art. 235 CPC of Ukraine, para. 3 h. 2 tbsp. 168 CPC of Ukraine.
The petition filed by the investigators is likely to be ignored. In such a case, it is necessary to file a corresponding complaint with the investigating judge, on the inaction of the investigator in the order of Art. Art. 303, 304 of the CPC of Ukraine, the complaint must contain obligatory references to Part 5 of Art. 171 of the CPC of Ukraine, as well as paragraph 3 of Part 2 of Art. 307 of the CPC of Ukraine, since we dispute the inactivity of the investigator, which consists in the non-return of temporarily confiscated property and failure to consider the petition in the manner prescribed by law.
It should be noted that situations where, with the intention of returning temporarily seized property, criminal proceedings participants and their representatives immediately request the return of the temporarily seized property to an investigating judge are quite common. Submission of such petition to the investigating judge will not produce any result, since on the basis of the Criminal Procedure Code of Ukraine the property which has been seized is returned by the investigator who seized it in case of failure to file a corresponding request for the seizure of temporarily seized property, in the order of part 5 of Art. 171 of the CPC of Ukraine, in case the judge refuses to satisfy the request for arrest of the temporarily confiscated property. The investigating judge in this case only filed a complaint about the inactivity of the investigator, which consists in the non-return of temporarily seized property, if such inaction took place within the time limit established by law. The complaint must be substantiated, outlining all the circumstances that may be relevant to a positive decision by the investigating judge, as well as explaining that the temporarily seized property was not arrested during the search.
Therefore, the process of returning temporarily seized property during a criminal investigation has specific features and, at the same time, requires special knowledge in this area to effectively address this issue.
Author: Vladimir Pipko