Prospects for Appealing Investigating Judges’ Rulings Concerning Searches and the Return of Property Seized During Such Searches

The existence of an appellate review of decisions made by an investigating judge during the pretrial investigation is regarded as an important safeguard for the administration of justice, allowing for the swiftest possible correction of errors committed by the courts and ensuring the protection of human rights.

In this regard, the issue of appealing investigative judges’ rulings granting permission to conduct a search, as well as rulings denying search requests, which, pursuant to Part 1 of Article 309 of the Code of Criminal Procedure, are not classified as rulings by investigating judges that may be appealed during the pretrial investigation.

In violation of the requirements of the Code of Criminal Procedure, the investigating judges of the Tarashcha District Court of Kyiv Oblast, in five rulings granting permission to search a residence, indicated in the operative part the possibility of filing an appeal against such a ruling with the Kyiv Oblast Court of Appeals within five days from the date of its announcement. A similar reference is contained in some rulings by investigating judges of other courts, which constitutes a gross violation of the provisions of criminal procedural law. The same references are found in rulings by investigating judges in which motions for search warrants were returned to the prosecutor.

Given the relevance of this conflict in the application of the law, the Verkhovna Rada Commissioner for Human Rights, in his submission to the Constitutional Court of Ukraine, raises the issue of reviewing the constitutionality of Part 3 of Article 309 of the Code of Criminal Procedure of Ukraine. The submission notes that a ruling by an investigating judge granting permission to search or inspect a person’s residence is not subject to appeal during the pretrial investigation. Only those persons participating in the preparatory hearing may file objections to the ruling. However, the court conducting the criminal proceedings is not authorized to make any decisions regarding such objections. Accordingly, if such a ruling is issued in violation of the requirements of the Code of Criminal Procedure or lacks proper justification, the restriction of the right to the inviolability of the home through a search conducted on the basis of such a ruling is unlawful and arbitrary.

The Ombudsman is convinced that an effective legal remedy against a violation of the right to the inviolability of the home in such a case is to file an appeal against the relevant rulings of the investigating judge granting permission to enter, inspection, and search of a residence immediately after the relevant person has been informed of the ruling [1].

However, to resolve this issue, the defense already has an effective mechanism to protect violated rights, specifically—to file a motion to have evidence collected as a result of a search conducted pursuant to an investigating judge’s ruling that contradicts the requirements of the law declared inadmissible, since such evidence was obtained in violation of the individual’s constitutional right to the inviolability of the home. Thus, the facts of violations committed during the search can already be used in court during the examination of evidence in the trial.

In addition, in the event of violations by law enforcement officers, an internal appeal may be filed: complaints regarding their unlawful actions may be submitted to their superiors (for example, the head of the relevant police department or the head of the regional prosecutor’s office).

We believe that it would be advisable to add a refusal to conduct a search to the list of investigative judge’s rulings subject to appeal, as this may hinder the progress of the pretrial investigation and the ability to gather necessary evidence.

Attention should be drawn to the provisions of Part 3 of Article 233 of the Code of Criminal Procedure, according to which, if a search was conducted without a ruling by an investigating judge and the judge subsequently denies a motion for a search, the information obtained as a result of this investigative (search) action must be destroyed. However, the aforementioned article provides only for the procedure for destroying information obtained as a result of an unlawful search of a residence; it does not at all specify the obligation to return to the owner of the residence or the person occupying the premises all items and documents that were unlawfully seized during such a search; furthermore, the reference to Article 255 of the Criminal Procedure Code of Ukraine pertains to the destruction of information and, when interpreted literally, does not address the return of items and documents. In the author’s opinion, it is inadvisable to destroy such information, since an error by an investigator, prosecutor, or investigating judge could lead to the loss of items and documents that are important to their owner.

More appropriate provisions that can be applied in this situation are those of Part 3 of Article 255 of the Code of Criminal Procedure, which states that if the prosecutor becomes aware that the owner of the seized items or documents is interested in their return, the prosecutor shall resolve this matter in accordance with the procedure established by Article 100 and Part 3 of Article 255 of the Code of Criminal Procedure and may return these items or documents to the interested party. Upon deciding that it is not appropriate to use in criminal proceedings the items, documents, and property seized during such an investigative (search) action, and to return them to their owner, the prosecutor is required to do so at a stage of the criminal proceedings that does not prejudice the legally protected rights and interests of persons who were involved in or aware of the conduct of these actions, nor the organizational and tactical objectives of the criminal proceedings.

In light of the foregoing, we propose supplementing Article 233 of the Criminal Procedure Code of Ukraine with Part 4 and revising it as follows:

“4. If the owner of items or documents seized as a result of a search may have an interest in their return, the prosecutor is required to notify the owner of the presence of such items or documents in the prosecutor’s possession and to ascertain whether the owner wishes to have them returned. The admissibility of the actions provided for in this paragraph and the timing of their implementation shall be determined by the prosecutor, taking into account the need to safeguard the rights and legitimate interests of individuals, as well as to prevent harm to the criminal proceedings.”

List of Sources Used:

Constitutional petition regarding the conformity with the Constitution of Ukraine (constitutionality) of the provisions of Part 3 of Article 309 of the Criminal Procedure Code of Ukraine No. 1.-2711/17-107 dated December 5, 2017 [Electronic resource]: Constitutional Court of Ukraine – official website. – Available at: http://www.ccu.gov.ua/sites/default/files/5_5542.pdf