Today, an increasing number of Ukrainian companies are being subjected to searches as part of criminal proceedings. A search is an investigative action conducted to identify and document information regarding the circumstances of a criminal offense, locating the instruments of a criminal offense or property obtained as a result of its commission, as well as determining the whereabouts of wanted persons. It is important to understand the legal grounds, the procedural rules for conducting a search, and the potential consequences for the company.

According to Article 234 of the Criminal Procedure Code of Ukraine, the basis for conducting a search is a ruling by an investigating judge, issued on the basis of a substantiated motion by an investigator or prosecutor.

The motion must specify:

· The name and registration number of the criminal proceeding

· The factual circumstances of the offense

· Criminal classification

· Legal justification for the necessity of the search

· The exact location of the search

· Information about the owner or actual occupant of the premises

· Description of the items, documents, or persons to be located

· Justification for the impossibility of gaining access by other means

A search may be conducted only on the basis of a valid court order. Before commencing the search, the investigator is required to present this order, inform those present of their rights, call in witnesses, or ensure video recording.

All seized items are recorded in the search report. Persons present during the search have the right to make statements during this investigative (search) procedure, which must be recorded in the search report. Upon completion of the search, a report is drawn up and signed by all participants in the process. One copy remains with the company representative.

In exceptional cases, a search may be conducted without a court order (Art. 233 of the Code of Criminal Procedure)—when there is a real threat of evidence being destroyed or a need for the immediate apprehension of a suspect. Unfortunately, in practice, pretrial investigation authorities often abuse the provisions allowing searches without a warrant from an investigating judge, citing the “urgency” of the situation. A telling example is the decision of the Cassation Criminal Court in Case No. 462/3127/22 dated November 1, 2023, in which the Supreme Court held that justifying a search on the grounds of “preventing the destruction of evidence” does not meet the criteria for urgency set forth in Part 3 of Article 233 of the Code of Criminal Procedure of Ukraine. The court emphasized that the law permits entry into a residence without a warrant only in cases involving the saving of human lives or property, or the immediate pursuit of suspects.

In 2024, the Joint Chamber of the Cassation Criminal Court of the Supreme Court, in its ruling of October 7, 2024, in Case No. 466/525/22, provided an even broader interpretation: it was recognized that an investigator or prosecutor has the right to enter a residence without a court order if there is a foreseeable risk of losing physical evidence.

Thus, this latest position significantly broadens the understanding of an “urgent case,” which, unfortunately, creates a risk of abuse by pretrial investigation authorities.
The rights of those subject to searches are effectively weakened, and judicial oversight of searches is curtailed. In the long term, this could lead to an increase in the number of searches conducted without proper procedural justification, which requires enhanced legal awareness among businesses and citizens. In this regard, advance preparation by businesses is particularly important: employees must be informed of their rights and the steps to take during investigative actions, and within the company, it is advisable to designate responsible individuals who can respond promptly in the event of a search and coordinate with a lawyer.

Companies own their own premises, equipment, and documentation, and have a staff of employees who may be affected by a search.

A search of a company may result in the following consequences:

· Disruptions to the company’s operations. The temporary seizure of equipment or documents, or restrictions on access to offices, may bring work to a halt.

· The company’s involvement in a criminal case. Executives, accountants, or other employees may be assigned procedural status—as a witness, suspect, or defendant.

· Psychological distress for staff. A search can create an atmosphere of tension and fear and may affect employees’ motivation and sense of security.

· Risk of loss or damage to property. Valuables, equipment, and data storage devices may be seized or damaged during a search.

· Risk of confidential information being disclosed. Access to a company’s internal data may pose a threat to trade secrets or personal data.

In such a situation, it is particularly important to:

· ensure that a court order authorizing the search is in place;

· to video-record all actions taken by law enforcement officers;

· ensure the presence of a qualified attorney representing the company’s interests;

· act in accordance with the law: do not obstruct the search, but at the same time document any violations.

In the event of the seizure of equipment, documents, or digital media, it is mandatory to draw up a detailed inventory listing the exact names, quantities, serial numbers, and other identifying characteristics of the seized property.

In today’s environment, businesses should be prepared for a potential search. Here are the key tips to help businesses protect their rights and minimize risks:

· Train your staff—explain how to behave during a search and who should respond first.

· Designate responsible individuals—ideally, each office should have someone who knows the basic rights and the procedure to follow.

· Keep a lawyer on call – ensure quick access to a lawyer.

· Back up data—regularly create copies of important documents and servers.

A search of a business premises is a serious legal challenge, but proper preparation in advance for a potential search is crucial for protecting the business. Understanding your legal rights, having all necessary documents on hand, and engaging a qualified attorney will allow you to maintain control over the situation, prevent potential abuses, and ensure the stable operation of your business.