In the conditions of wartime, the strengthening of responsibility associated with the violation of legislation regarding war crimes (treason, collaborationism, mobilization measures, etc.), as well as other types of crimes, raises a number of problematic issues related to the implementation of procedural actions. In this regard, more than ever, it is necessary to orient oneself and know the extent of one’s rights and the limits that law enforcement agencies do not have the right to cross.
How should Ukrainians behave, what are their rights and obligations during house or premises searches? IA “FACT” asked the lawyers of the “Repeshko and Partners” Bar Association to comment on the current legislation and give recommendations
The search procedure is used during the investigation of a criminal case and is clearly regulated by the norms of the Criminal Procedure Code. Pursuant to the Criminal Procedure Code of Ukraine (CPC of Ukraine), searches are conducted for the purpose of identifying and recording information about the circumstances of the commission of a criminal offense, finding the instrument of a criminal offense or property obtained as a result of its commission, as well as establishing the whereabouts of wanted persons.
According to Article 13 of the Criminal Procedure Code of Ukraine, it is not allowed to break into a person’s home or other possessions, conduct an inspection or search in them other than by reasoned court decision, except for the cases provided for by this Code. The main thing that must always be remembered in connection with the search is that it is carried out on the basis of the decision of the investigating judge of the local general court, within the territorial jurisdiction of which the pre-trial investigation body is located. Therefore, if the body of the pre-trial investigation is located in the Pechersk District of Kyiv, then the court order for the search must be from the judge of the Pechersk District Court of Kyiv and not from the Kyiv District Court of Kharkiv.
The search implementation mechanism is as follows. The investigator, in whose proceedings there is a certain criminal case, applies for coordination with the prosecutor who is the procedural head of the investigation, or the prosecutor who is such a procedural head or is part of the group, addresses the corresponding petition to the investigating judge. In this petition, the number of the criminal proceedings in the Unified Register of Pretrial Investigations, a summary of the crime and its qualification according to the relevant article of the Criminal Procedure Code of Ukraine, the grounds for the search, the home or other property of the person or part of the home or other property of the person, where the search is planned, must be specified; the person who owns housing or other property, and the person in whose actual possession it is; individual or generic characteristics of things, documents, other property or persons that are planned to be searched, as well as their connection with the committed criminal offense and justification.
The court considers the said petition on the day of its receipt with the participation of an investigator or a prosecutor. At the same time, the judge can refuse a request for a search, if the investigative body does not prove that the searched items are important for the investigation of the case, are located in the place, housing, etc. specified in the request. If the judge refused to grant a request for permission to search a person’s home or other property, the investigator or prosecutor does not have the right to appeal to the court again with a request for permission to search the same home or other person’s property, unless the request indicates new circumstances that were not considered by the investigating judge.
It must be remembered that the decision of the investigating judge on the permission to search the home or other property of a person on the grounds specified in the petition of the prosecutor, the investigator, gives the right to enter the home or other property of the person only once. All! There are no exceptions. An investigator cannot come today with a search, leave, and tomorrow with the justification that he did not check everything and there is a court order, come again and search the house or premises.
A house or premises is searched by an investigator or a prosecutor. The victim, suspect, defense attorney, representative and other participants in criminal proceedings may be invited to participate in its conduct. In order to receive help on matters requiring special knowledge, appropriate specialists (for example, IT specialists or pharmacists) may be invited to the search. At the same time, the investigators should be ensured maximum participation in the search of persons whose rights and legitimate interests may be limited or violated. The investigator must admit a defense attorney or a lawyer to the place of search!
The search must take place at a time when the least harm is caused to the ordinary occupation of the person who possesses them. Usually, investigators or prosecutors like to come on Friday evening or Saturday morning in order to confuse the person as much as possible, to prevent them from quickly finding a lawyer who will arrive at the scene of the search and be able to professionally monitor this investigative activity.
It is necessary to remember that before the search, the owner of the house, and in his absence – another person present, must be presented with a search warrant and given a copy of it.
The investigator has the right to prohibit any person from leaving the place of the search before its completion and to take any actions that interfere with its conduct. Failure to comply with these requirements entails legal liability.
A very important point – during a search, a person has the right to use legal assistance and invite a lawyer to participate in this investigative activity. The investigator, the prosecutor has no right to prohibit the presence of the lawyer during the search, they are obliged to admit the lawyer at any stage of its conduct. At the same time, the lawyer has the right to personally use his own technical means to video record the search process.
In the absence of persons in the dwelling or other possession, a copy of the decision must be left in a prominent place in the dwelling or other possession of the person. At the same time, the investigator is obliged to ensure the safety of the property located in the home or other property of the person, and the impossibility of access to it by outsiders.
However, the procedure may not be limited to the search of a home or premises. According to the decision of the investigator, a search may be conducted of persons who are in housing or other property, if there are sufficient grounds to believe that they are hiding items or documents that are important for criminal proceedings. Thus, if a woman in her bra hides a flash drive containing photos or documents that are wanted in a criminal case, she can be searched quite legally. It is only necessary to remember that the search of a citizen must be carried out by a person of the same gender as the person being searched.
In addition to a personal search, the investigator, if necessary, has the right to open closed premises, warehouses, things, to overcome the logical protection systems, if the person present during the search refuses to open them or remove (deactivate) the logical protection system
Also, during a search, the investigator has the right to take measurements, take photographs, make audio or video recordings, draw up plans and diagrams, make graphic images of the searched dwelling or other possessions of a person or individual things, make prints and casts, inspect and seize documents, temporarily seize things that are important for criminal proceedings.
A protocol is always kept during the search. The recording, made with the help of audio and video recording equipment during the session, is an integral part of the protocol. The actions and circumstances of the search, which are not recorded in the record, cannot be included in the protocol and used as evidence in criminal proceedings. So, if the investigator found a bag with some drug in the far room of the apartment and quietly put it among the physical evidence in the case, and this find was not shown on the video recording during the search, then in the future this bag with the substance cannot be used as evidence, even if the substance was narcotic It will be considered that he did not exist at all.
If the persons in whose presence the search is carried out have any statements in the process of this action, they must be entered in the search protocol, moreover, it will be necessary to check whether the investigator really entered a statement, if not, then insist on this .
The second copy of the search protocol, together with the description of seized documents and things attached to it, must be handed over to the person from whom it was conducted, and in his absence – to an adult member of his family or his representative.
Thus, according to the results of the search, the citizen is left with two documents: the decision of the investigating judge on permission to search and the search protocol with a description of seized property or documents.
At the same time, it is necessary to remember that the more personalized the description of the property or documents seized during the search, the better! For example, the description should not say “gray box with documents – 1 piece”. There must be a complete list of documents to be withdrawn. “Computer monitor – 1 pc” should not be indicated in the description. The correct entry is “Dell computer monitor, black, 60 cm diagonal, on a stand, serial number…”.
It must be remembered that the evidence obtained during the execution of the decision on permission to search the home or other property of a person is inadmissible in connection with the barring of the lawyer to this investigative (search) action. The fact of not being allowed to participate in the search must be proved by the lawyer in court during the court hearing.
A search or inspection of a person’s home or other property, as well as a search of a person, is 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. That is why there is a saying among lawyers – “Love and respect your neighbors, because maybe they will have to understand you.” This proverb did not arise for nothing, because not only the quality of the investigative action, but also its course as a whole depends on who is in the capacity of a witness – your friend or enemy.
Regarding the situation in which there is no decision of the investigating judge on permission to conduct a search. The investigator, inquirer, prosecutor has the right to enter the home or other property of a person before the decision of the investigating judge is issued only in urgent cases related to:
- with saving people’s lives and property;
- with direct prosecution of persons suspected of committing a criminal offense.
In this case, the prosecutor, the investigator is obliged to apply to the investigating judge immediately after taking such actions with a request to conduct a search. The investigating judge examines such a petition, checking, among other things, whether there really were grounds for breaking into a person’s home or other property without a decision of the investigating judge. If the prosecutor refuses to agree to the request of the investigator, the investigator for the search or the investigating judge refuses to grant the request for the search, the evidence established as a result of it is inadmissible, and the information obtained is subject to destruction.
And most importantly, don’t be afraid to seek help from a lawyer! Timely legal assistance removes half of the questions and prevents many of your problems.
