What status does the property seized during the search has, if it was stated in the resolution on granting permission to conduct a search? Does the law allow the investigator to return such property?
Answers to these and other questions can be found in an article of ESQUIRES partner, attorney Opanas Karlin “ Seized Lesson” for the magazine Ukrainian Lawyer.
Based on a systematic analysis of the norms of the Code of Criminal Procedure of Ukraine, the author concludes that, without exception, all items and documents seized during the search are “temporarily seized property”, which have to be arrested or returned to the owner as soon as possible.
Read more in the article for “Ukrainian Lawyer”. The publication is available in Ukrainian.
Search: Fruits and Revenues
All items and documents seized during the search are “temporarily seized property”, which have to be arrested or returned to the owner as soon as possible.
Seized items and documents that are not included into the list that explicitly granted the permission on compensation in the Resolution on permission to conduct a search, but do not relate to items that are removed from circulation by law, are considered to be temporarily seized property (part 7 of article 236 of the CPC Ukraine).
This norm, unfortunately, is traditionally interpreted as the things and documents seized during the search, which are included in the list that explicitly granted permission to search in the Resolution on permission to conduct searches, are not temporarily seized property and are held by the investigator for legal grounds.
However, this conclusion is not factually accurate for the following reasons.
First, it would contradict to the laws of formal logic. The quoted norm does not contain any grounds for making conclusions about the legal status of other (which are included in the list Resolution) items and documents.
Secondly, a systematic analysis of the norms of the current Code of Criminal Procedure of Ukraine (Articles 16, 100, 167, 168, 171, 234, 236) provides grounds for an unambiguous conclusion that the items and documents seized during the search are included in the list according to which the permission om compensation is directly granted in the resolution on the permit to conduct the search also have the status of temporarily seized property, and therefore have be returned to the owner as soon as possible if they are not arrested.
Let’s start with the principles.
According to Part 1 of Art. 16 of the Code of Criminal Procedure of Ukraine, deprivation or restriction of property rights during criminal proceedings is carried out only on the basis of a reasoned court decision, adopted in accordance to procedure established by this Code.
On the grounds and in the manner provided for by this Code, temporary seizure of property without a court decision is permitted (part 2 of article 16 of the Code of Criminal Procedure of Ukraine).
So, the principle of inviolability of the ownership right unambiguously indicates that without a court decision, the investigator can only hold temporarily seized property.
In this case, we are talking about the mandatory judicial “verification of the lawfulness of the investigator’s possession of the seized property” (letter of the Superior Specialized Court of Ukraine for Civil and Criminal Cases No. 9-49 / 0 / 4-17 as of January 12, 2017 “ Generalization of the Practice of Considering Complaints against the Decisions, actions or inaction of the pre-trial investigation bodies or the prosecutor during the pre-trial investigation”).
In addition, the search is carried out with the purpose to identify and record information about the circumstances of the criminal offense, finding the criminal offense tool or property that was obtained as a result of criminal offense commission, as well as establishing the location of the wanted persons (Part 1 of Article 234 of the Code of Criminal Procedure of Ukraine).
The two important conclusions should be distinguished from this legislative definition of the nature and purpose of the search.
Let’s move on to the conclusions.
The first conclusion: the purpose of the search is to identify and record information and find property, but not to seizure of objects and documents (the idea was borrowed from candidate of law sciences A.A. Torbas).
Moreover, according to Part 2 of Art. 168 of the Code of Criminal Procedure of Ukraine, temporary seizure of property may also be carried out during a search, inspection.
Also, “during a search, the investigator, the prosecutor has the right … for temporarily seizure of items that are relevant to the criminal proceedings” (Part 7 of Article 236 of the CPC of Ukraine).
So, the seizure of property during the search is an additional “option” (authority) of the investigator / prosecutor. However, the Articles, that allow this, clearly define that such an exemption is temporary (which is fully correspond to the principle laid down in Article 16 of the Code of Criminal Procedure of Ukraine).
The second conclusion: in addition to the wanted persons, the search is intended to identify, record and search exclusively for material evidence (the idea was also borrowed from candidate of law sciences A.A. Torbas).
According to Part 1 of Art. 100 of the Code of Criminal Procedure of Ukraine, the material evidence that was provided to Party of the criminal procedure or removed by it have to be returned to the owner as soon as possible, except in cases provided for in Articles 160 – 166 (temporary access to things and documents), 170 – 174 (seizure of property) of this Code.
Consequently, the norm of Article 100 of the Code of Criminal Procedure of Ukraine provides a clear instruction to the investigator / prosecutor regarding the methods of disposing of the property (material evidence) that was removed during the search: either arrest it or return it to the owner as soon as possible. This norm (and the given way of understanding it ) also complies with the principle laid down in Art. 16 of the Code of Criminal Procedure of Ukraine, and meets the requirements of the Code of Criminal Procedure of Ukraine, in respect of temporarily seized property.
So, a temporary seizure of the property is the actual deprivation of a suspect or persons, who own the property specified in part two of this article, the ability to own, use and dispose of certain property until the item of the seized property is returned or arrested (Part 1 of Article 167 of the Code of Criminal Procedure of Ukraine )
According to Part 5 of Art. 171 of the CPC of Ukraine, the motion of the investigator, prosecutor to arrest of temporarily seized property must be filed no later than the next working day after the seizure of property, otherwise the property must be immediately returned to the person from whom it was seized.
In the case of temporary seizure of property during a search, examination, carried out on the basis of the decision of the investigating judge, provided for in Article 235 of this Code, a motion to arrest such property must be submitted by the investigator, prosecutor within 48 hours after the seizure of the property, otherwise the property must be immediately returned to the person from whom it was seized.
So, a systematic analysis of the above norms of the current Code of Criminal Procedure of Ukraine (Articles 16, 100, 167, 168, 171, 234, 236) gives grounds for an unambiguous conclusion that all things and documents seized during the search (including those which are included in the list, in accordance to which the search permission was explicitly granted in the Resolution on the search permit) acquire the status of temporarily seized property, and therefore should be returned to the owner as soon as possible if they are not arrested.
Article is available in PDF format: Ukrainian Lawyer – Seized Lesson