Illegal searches and legal ways to overcome their consequences

I, too, have decided to talk about searches. 

But my discussion will focus strictly on illegal searches, the indicators of their illegality, and the tools for protecting against their consequences.

I’ll start with the basics: a citation of Article 234 of the Criminal Procedure Code of Ukraine, which defines the purpose of a search. Thus, the legislature has established that “a search is conducted for the purpose of identifying and documenting information regarding the circumstances of the commission of a criminal offense, locating the instruments of the criminal offense or property obtained as a result of its commission, as well as determining the whereabouts of wanted persons.”

That is, there are only three grounds that allow law enforcement to conduct a search. Each of these grounds is independent of the others. The ground on which the investigating judge agreed to grant permission for the search must be highlighted in red in the court document titled “ruling.”

It should be noted here that the investigating judge’s ruling granting permission to conduct a search, despite the mandatory nature of its execution (the search will be conducted regardless), in no way indicates that the ruling is lawful.

In most cases, the issuance of unlawful rulings stems from the investigating judge’s formalistic approach to reviewing law enforcement officers’ motions to conduct a search. Rulings issued through a formalistic approach do not meet the general requirements for judicial decisions: they lack an analysis of the specific procedural situation, as well as references to the facts established by the court and the grounds on which the court based its ruling. The practical effect of such rulings boils down to the fact that the investigating judge concluded that there is a specific basis for conducting a search and that there is a need to carry it out, but the ruling does not disclose the analysis on which the judge based this conclusion.

Under a formalistic approach, the person being searched remains completely unaware of the reasons and grounds for the state’s interference in their private life (home or other property), which is unacceptable.

Grounds for conducting searches cannot exist on their own; they must be supported by relevant evidence in tangible form. Such tangible evidence must be properly documented by law enforcement and presented to the investigating judge. At the same time, procedural documentation must be reflected in protocols and documents that carry actual informational weight, rather than in law enforcement reports that merely assert the existence of certain circumstances but for which no one bears any responsibility.

Whether the investigating judge had genuine grounds for authorizing the search can only be ascertained by reviewing the materials on which law enforcement officials based their motion for a search and by reviewing the transcript of the court hearing in which the consideration of such a motion was recorded.

Current criminal procedural law does not contain mandatory provisions that would completely bar access to the materials regarding the search. However, procedural law also does not contain provisions that would explicitly grant the person whose premises were searched the right to review such materials. 

The provisions of Articles 87 and 107 of the Criminal Procedure Code of Ukraine indicate that access is, in fact, possible. 

Thus, pursuant to paragraph 4 of Part 3 of Article 87 of the CPC of Ukraine, evidence obtained during the execution of a ruling authorizing a search of a person’s residence or other premises is inadmissible if such a ruling was issued by an investigating judge without a complete technical recording of the hearing.

Pursuant to Article 107 of the CPC of Ukraine, an investigating judge the court may restrict or prohibit access by the defense parties in criminal proceedings to the results of the technical recording in order to ensure the inadmissibility of the disclosure of information regarding the pre-trial investigation if, in support of the motion to conduct a search, the investigator or prosecutor provided the results of covert investigative (search) actions.

An analysis of the above provisions indicates that access is permitted, except in cases where the investigator or prosecutor, in seeking authorization for a search, used the results of covert investigative (search) activities to demonstrate the necessity of the search.

Furthermore, based on an analysis of the cited provisions, an investigating judge’s decision to deny or partially restrict access to the materials of the hearing on a motion for a search warrant must include appropriate reasoning.

In practice, investigating judges are reluctant to provide access to the case materials regarding the search, justifying their refusal by stating that the materials are confidential to the pre-trial investigation. However, this issue is debatable, and that is not the subject of today’s discussion. In my view, a refusal to allow access to the materials that does not include a single specific ground for restricting or prohibiting access already indicates that the authorized search exhibits signs of illegality.

Regardless of whether access to the case materials regarding the search was granted, the following, in particular, may indicate the unlawful nature of the search:

1. the investigating judge’s ruling contains a description of the facts of the criminal proceeding that does not contain any elements of a criminal offense;
2. the investigating judge’s ruling contains a description of the facts of the criminal proceedings that has no connection whatsoever to the person being searched;
3. the investigating judge’s ruling authorizes the search for a wide range of items and documents that clearly cannot be related to the stated subject of the investigation;
4. the investigating judge’s ruling contains authorization to search for a wide range of unspecified items and documents;
5. the investigating judge’s ruling does not contain any arguments that would establish the existence of procedural grounds for conducting the search;
6. The investigating judge’s ruling does not contain a justification that the pre-trial investigation authority cannot obtain access to the items, documents, or information they may contain on a voluntary basis by requesting the items or documents or through other investigative actions provided for by this Code, and access to the persons to be located cannot be obtained through other investigative actions (this criterion does not apply to cases where a search is conducted to locate the instruments of a criminal offense, items, and documents removed from circulation);
7. the investigating judge’s ruling authorizing the search was issued on the basis of forged documents provided by law enforcement officials to justify the necessity of the search (such a conclusion can be reached without reviewing the case file if the crime, the investigation of which required the search, was not committed);
8. the investigating judge’s ruling was issued without a complete technical recording of the court hearing (information regarding whether the court hearing on law enforcement’s motion for a search warrant was recorded or not can be obtained from the court upon a lawyer’s request. Such information does not constitute any procedural secrets).

A search conducted by law enforcement officers with a clear abuse of their authority is also unlawful. In particular, the following circumstances may indicate the unlawfulness of a search by law enforcement officers:

• submission of forged documents to the investigating judge to obtain a search warrant;
• the use of physical force by law enforcement officers during a search where there were no grounds for its use;
• damage to the property of the person being searched under circumstances that did not require the use of force to enter the premises or other hiding places;
• seizure of property that was not authorized by the investigating judge’s ruling and that is clearly unrelated to the subject of the investigation;
• the absence in the search report of specific descriptions of the seized items and documents;
• if there were no urgent grounds for conducting the search at night (from 10 p.m. to 6 a.m.);
• if there were no urgent grounds for conducting an unauthorized search, which was subsequently formally approved by the investigating judge;
• if there were no urgent grounds for conducting a search in the absence of the owner or occupant of the premises where the search was conducted;
• if there were no urgent grounds for conducting a second and subsequent searches within the same criminal proceeding;
• the absence of video recording of the search.

If the search exhibits signs of illegality, the aggrieved party has the right to demand that law enforcement and disciplinary authorities conduct a thorough and genuine investigation into the circumstances of the search. The aggrieved party also has the right to demand the restoration of violated rights by returning property seized during the search that is unrelated to the subject of the investigation, and to demand the lifting of the seizure of property if such a seizure was imposed on the seized property.

Unfortunately, our procedural legislation does not provide for the possibility of appealing investigative judges’ rulings granting permission to conduct a search through an appellate process; however, this does not mean that the aggrieved party is not entitled to compensation for damages caused by the unlawful actions and decisions of law enforcement officials and the court.

In particular, this right is provided for in the Law of Ukraine “On the Procedure for Compensating Damage Caused to a Citizen by Unlawful Actions of Bodies Conducting Operational-Investigative Activities, Pre-trial Investigation Bodies, the Prosecutor’s Office, and the Court.”

Furthermore, those responsible for the unlawful search must also be held accountable for the official misconduct committed. Such accountability may be either disciplinary or criminal. Incidentally, Article 162 of the Criminal Code of Ukraine provides for criminal liability for unlawfully entering a person’s dwelling or other premises, or unlawfully conducting an inspection or search therein.

I must separately note that an illegal search is often facilitated by the inaction of the person being searched, who, being in a state of distress during the search, does not understand that the conduct of the search in no way deprives them of their right to defend themselves against the actions of law enforcement officers.

I would like to highlight certain points that go unaddressed by the persons being searched during the search, and failure to address them is a direct path to tacitly condoning the unlawful conduct.

Under Article 236 of the Criminal Procedure Code of Ukraine, a search of a person’s residence or other property based on a ruling by an investigating judge must take place at a time when it causes the least disruption to the ordinary activities of the person who owns it, unless the investigator or prosecutor deems that complying with this condition could significantly hinder the purpose of the search.

This provision specifically indicates that if law enforcement officers arrive to conduct a search after 10 p.m. (investigative actions between 10 p.m. and 6 a.m. are prohibited under Article 223 of the CPC of Ukraine), the investigator or prosecutor must explain on video why they resorted to such actions. 

If they refuse to do so, the legality of the search becomes a pressing issue, and the actions of the person being searched—who objects to the search taking place at night and simply refuses to open the door to their own home—gain a legal basis.

I would like to remind you that, in accordance with Articles 36 and 40 of the CPC of Ukraine, a prosecutor/investigator, in exercising their powers in accordance with the requirements of this Code, is independent in their procedural activities, and interference in such activities by persons who do not have the legal authority to do so is prohibited. State authorities, local self-government bodies, enterprises, institutions, and organizations, as well as public officials and other individuals, are obligated to comply with the lawful demands and procedural decisions of the prosecutor or investigator.

In other words, procedural law requires individuals to comply only with lawful requests made by investigators and prosecutors. At the same time, procedural law does not impose an obligation to comply with all requests made by law enforcement officers in real time under the principle of “obey first, and we’ll sort it out later.”

If the prosecutor and investigator act in good faith while performing their official duties, there will be no difficulty in explaining the urgent necessity of the search to a camera recording the proceedings.

At the same time, if the person who is being unlawfully searched fails to make adequate statements of objection to the obviously unlawful actions of law enforcement officers, and after the search is completed does not record their objections in the search report or on the video recording of the investigative action, law enforcement and judicial authorities will subsequently interpret such a person’s actions as not having resulted in a significant violation of that person’s rights and freedoms. If you passively accept the violation of your rights, be prepared for the fact that after the search, the violation of your rights will also be passively accepted by those to whom you report that you have been the victim of abuse by law enforcement officers.

If you did not report that you sustained bodily injuries during the search, be prepared for the fact that no law enforcement officer will acknowledge this, and the witness called in by law enforcement will sheepishly say: “If it’s not on video, then I didn’t see anything.”

If the law enforcement officer who seized the cash found on you—a seizure not authorized by an investigating judge—refuses to explain, at your request, why he is doing so, be prepared for the fact that the seized money will not be returned to you for a long time. The logic is simple: since they remained silent during the seizure, it means they knew the money was illegal.

To conclude this discussion on illegal searches, I must note that only those who know their rights and are capable of defending them are truly armed. Do not neglect the protection of your rights, and enlist the help of professional attorneys to defend them.