Guidelines for Action in the event of the police search at your premise or another property

The Internet offers plenty of articles covering this topic, but at the same time the subject is still highly relevant as this information below is targeted at both businesspeople and lawyers as a guide for professional defense of persons and businesses against possible unlawful conduct by law enforcers during a search.

These guidelines take into account all essential changes made to the Criminal Procedure Code of Ukraine and have been prepared for clients of Morgun & Partners Law Firm to help them be aware of the existing pitfalls and record all abuses committed by law enforcement officers during this investigative action. Law enforcement team may always take you by surprise because, bluntly speaking, this is actually the purpose of any search. So if this happens, remember what you need to do:

1. Call your defense lawyer:

You should inform the investigator or public prosecutor of your intention to seek legal assistance. As set forth by Art. 59 of the Constitution of Ukraine, everyone has the right to legal assistance and everyone is free to choose the defender of their rights. For this reason, you should ask the senior officer of the investigation team or any law enforcer standing behind the door not to start the search and give your lawyer a possibility – at least half an hour – to come and participate in the investigative action.

Noteworthy, paragraph 1 Art. 236 of the Criminal Procedure Code of Ukraine (CPC) does not impose an obligation on a public prosecutor or investigator to ensure that a defender is present, and only provides for such right to invite him/her. In view of the above provisions and the practice, you should understand that the investigator or public prosecutor may, at their own initiative, hinder the exercise of your right to defense and start the search without waiting for the lawyer.

At the same time, if the investigator decides to make a body search, you have the right to be searched only by an officer of the same sex, in the lawyer’s presence at your request, and if you request so, your lawyer will be given three hours to appear. You should request a separate report to be drawn up for the completed body search, alongside the report that will be executed for the ongoing premise search. Looking ahead, it’s worth noting separately, that a person does not have to give law enforcers their log-ins or passwords to computers, phones, server equipment, or any other software.

2. Request continuous video-recording during the search:

You should request the investigator or public prosecutor who conducts the search, to make continuous video-recording of the entire action, and if he or she refuses to do so, you should try to make a respective note in the original copy of the search warrant issued by the investigating judge – you will be provided with this copy as you have to sign it and thus confirm that you have read and understood it, or you can make this note later in the search report.

3. Request showing the search warrant issued by the investigating judge to check the police have enough powers for the search and read carefully the warrant:

In case the search starts without your lawyer, you should know that there must be a respective search warrant issued by the investigating judge that serves as sufficient grounds. Before actually starting the search, the prosecutor or investigator must show you the warrant of the investigating judge and provide a copy of this warrant to the person who owns the premise or another property to be searched, and where there is no such person, to another person who is present.

After receiving a copy of the search warrant, you should read it carefully and find the following information:

- period of the warrant’s validity which may not exceed one month from the warrant date – that’s why you need to be careful and check whether or not the warrant is valid as of the actual search date;

- check what premise or another property exactly is subject to the search:

when you go through the investigating judge’s warrant, pay attention to the address where the search is supposed to take place. The warrant must clearly indicate in which part of the premise or another property the search is allowed. Most frequently, investigating judges use the following wordings in their warrants: “authorize investigator A to carry out a search in the premise at [address] owned as a private property by B, only in the part used by B”. The investigating judge thus imposes a restriction for the person who conducts the search as for the area allowed to access. This means, the search must be executed only in that part of the premise which is expressly allowed for the search.

3. Call for the owner or proprietor of the premise or another property to be searched:

You should request the investigator or prosecutor to take adequate measures in order to ensure that respective persons are present at the search whose rights or interests may be limited or violated. Please mind that this is something the investigator or prosecutor is obliged to do in compliance with paragraph 1 Art. 236 of the CPC of Ukraine.

4. Check that there are attesting witnesses of the search:

As required by paragraph 2 clause 7 Art. 223 of the CPC, a search or inspection of a home or any other property of a person, search of a person must be conducted with mandatory participation of at least two witnesses, irrespective of the use of technical devices for recording of the investigative (detective) action. This above provision sets forth that witnesses must be present at such an investigative action as search. However, as practice shows, there are cases when the investigator or prosecutor engages witnesses only in that part of the search when they show the search warrant and hand over a copy of this warrant. After that, they let the witnesses go and call them again for signing the search report. In view of the requirements stipulated by paragraph 2 clause 7 Art. 223 of the CPC, these actions are unlawful because witnesses’ presence is required throughout the search duration – from its very beginning to the end, that’s why you should insist that there are two impartial witnesses are unfailingly present during the search. You should request personal identification from “stranger” witnesses and claim that the grounds for this request is your doubt about their being impartial.

5. Remember that the investigator or the prosecutor is authorized to forbid any person from leaving the search site until its completion or from taking any actions that impede the search (paragraph 3 Art. 236 of the CPC).

6. Insist that all the persons involved in the search are present in the same premise or its part.

This means, you should not allow the situation where the investigator, prosecutor and investigation officers are present at the same time in different rooms, without the two witnesses present and without the persons present who occupy the premise. That’s why, during the search, it is better not to leave anyone from the “group of persons involved in the search” unattended by other search participants.

7. You should demand a comprehensive and explicit list of all seized possessions and documents in the search report. All comments that might be made with regard to the search procedure and seizure of your possessions must be included in the search report (if there are too many comments and there isn’t enough space for them in the report, it is possible to submit a separate statement with all comments and in this case there must be a note made in the report about such statement). So before signing the report – enter all your comments with your own hand to the report if there have been any violations during the search or if the report misrepresents what has happened at the search. Make sure that the report does not have any “blank spaces”.

If there are any incriminating documents or things found during the search, you’d better choose not to sign the search report without your lawyer or to give any explanations, or on the opposite – sign the report with comments.

8. Make sure that the search report is signed by all persons involved in the investigative action and request to give you a copy of the report and of the inventory of all seized things.

Make sure that after the search is completed you end up having a copy of the search warrant issued by the investigating judge, a copy of the search report with all annexes and the inventory of seized possessions.

By following these basic rules, you will be able to avoid any serious procedural errors that will influence your future defense and your possibility to have your things returned after unlawful seizure by the law enforcers.

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