The Code of Criminal Procedure provides for an exceptional measure known as an emergency search. However, in practice, this mechanism—designed for emergency situations—is increasingly being used as a routine means of circumventing judicial oversight, posing significant risks to the protection of property rights and the inviolability of the home.
The Constitutional Guarantee and Its Exceptions
Article 30 of the Constitution guarantees everyone the inviolability of their home. The Criminal Procedure Code elaborates on this provision, stipulating in Article 233 that entry into a person’s home is permitted only with their consent or based on a ruling by an investigating judge.
However, paragraph 3 of the same article provides for two exceptions under which an investigator may act without prior court authorization: to save human lives or property; or during the immediate pursuit of a suspect.
It is precisely the broad interpretation of the concept of “saving property”—which law enforcement officials often equate with preventing the destruction of evidence—that has become the basis for systematic abuses.
The Supreme Court’s Position: A High Standard of Proof
The Supreme Court has repeatedly emphasized that conducting an emergency search to preserve evidence is permissible only if there is an “obvious and real threat” of its destruction. This means that the investigator must have specific, objective evidence confirming that any delay in obtaining a court order will inevitably lead to the loss of this evidence. General assumptions are insufficient.
Furthermore, after conducting such an investigative action, the investigating authority is required to immediately apply to the court to have it legalized. Failure to comply with this requirement, as well as the absence of evidence of a real threat, constitutes grounds for declaring the search unlawful and all evidence obtained inadmissible under the “fruit of the poisonous tree” doctrine.
Case Law: A Lottery Instead of a Uniform Standard
An analysis of 100 rulings by investigating judges in four district courts in Kyiv shows that in 75% of cases, the courts legalize urgent searches. However, a detailed examination reveals a striking difference in approaches. While the Pechersk District Court grants 96% of such motions—indicating a formalistic approach—the Solomyanskiy District Court denies nearly half (48%).
Such a wide disparity in figures indicates the absence of a uniform standard of justice. The protection of the constitutional right to the inviolability of the home effectively depends not on the law, but on which court the case is assigned to.
A Legal Trap for Property Owners
The main problem arising from the abuse of urgent searches is the legal status of the seized property. The prosecution often argues that property seized during such a “legalized” search is not considered temporarily seized. This allows them to avoid filing a motion with the court for seizure and to hold the property indefinitely, depriving the owner of any effective means of defense.
This approach is flawed. A search warrant legalizes only the interference with possession, but not the restriction of the right to property. Any property seized during a search without a prior court order for its seizure automatically acquires the status of temporarily seized property. This means that the investigator is required to file a motion for its seizure, and if the court denies the motion, the investigator must immediately return it to the owner.
Author: BOGDAN ZABARA, YEVGEN BOVKUN, attorneys at Barristers, LLC
Source: https://zib.com.ua/ua/167615.html