Search and personal search: purpose, limits, guarantees and the right to a lawyer

Below is a concise and practical overview of the key provisions of the CPC of Ukraine, the positions of the Supreme Court and the standards of the ECHR, which should be known to anyone who may find themselves in a search situation. 

Search: purpose, limits and procedural guarantees 

The Criminal Procedure Code of Ukraine (hereinafter – CPC of Ukraine) stipulates that any investigative action must have a clear purpose and limits. Investigative (search) actions are aimed at obtaining or verifying evidence and may only be carried out if there is sufficient information indicating the possibility of achieving this goal. 

The legislator has determined that a search may only be conducted for the purpose of: 

• discovering and recording information about the circumstances of a criminal offence; 
• finding the instruments of a criminal offence or property obtained by criminal means; 
• establishing the whereabouts of wanted persons. 

The inviolability of a person’s home or other property is guaranteed by the Constitution of Ukraine. A search shall be conducted to the extent necessary to achieve its purpose. Such investigative action may be conducted in the whole or part of a person’s home or other property (vehicle, land plot, garage, etc.).  

The investigator or prosecutor has the right to prohibit any person from leaving the place of search until it is completed and from taking any action that interferes with the search. 

Key guarantees for a person during this investigative (search) action: 

• judicial control. Entry into a dwelling or other property, as well as conducting an inspection or search therein, is only possible based on a reasoned court decision. An exception is allowed only in urgent cases – when it is necessary to save life or property, or when a person suspected of committing a criminal offence is being pursued. Even in such situations, law enforcement officers are obliged to immediately apply to the investigating judge for permission “post factum”. The court’s refusal renders the evidence obtained inadmissible and requires its destruction. Under martial law, there is a special rule: if the investigating judge is objectively unable to exercise his powers, the head of the relevant prosecutor’s office temporarily exercises them. In this case, the search may be conducted based on his decision;
• clear limits of permission. The ruling must specify the premises (or parts thereof) in which the search is permitted, as well as the items, documents and persons that are to be searched for (Article 235 of the CPC of Ukraine). This determines the permissible limits of the actions of the investigator and the prosecutor;
• proportionality of interference. When granting permission, the investigating judge must ensure that the search is the most appropriate, effective and proportionate means of achieving the objective, as well as a measure proportionate to the interference in the personal and family life of the individual (Article 234(5) of the CPC of Ukraine);
• mandatory video recording. A search of a person’s home or other property is recorded using audio and video recording (Article 104, Part 10 of Article 236 of the CPC of Ukraine). The recording is an integral part of the protocol. Items or documents found during a search (or part thereof) that are not recorded cannot be used as evidence; 
• rights of participants. Persons whose rights may be restricted are informed of their rights (Article 223 of the CPC of Ukraine) and have the right to make statements and comments, which are recorded in the protocol (Article 104, Article 236, Part 8 of the CPC of Ukraine); 
• presence of witnesses. A search of a person’s home or other property shall be carried out with the mandatory participation of at least two witnesses, regardless of the use of technical means of recording (Article 223(7)). An exception is possible only under martial law: if the involvement of witnesses is objectively impossible or poses a threat to their life or health, the search or inspection may be carried out without them. In this case, the course and results of the investigative action must be continuously recorded on video, which serves as a guarantee of the recording’s reliability. This approach is in line with the position of the Supreme Court, which in its rulings of 12 June 2025 in case No. 638/4632/22 and of 25 January 2024 in case No. 453/245/21, confirmed the possibility of applying special procedural rules during martial law;  
• time of the search. Another guarantee of the proper conduct of a search is compliance with the time limits established by criminal procedural law. The CPC of Ukraine prohibits investigative (search) activities at night – from 22:00 to 06:00, except in truly urgent situations where delay may lead to the loss of evidence of a criminal offence or the escape of a suspect (Part 4 of Article 223 of the CPC of Ukraine). In turn, a search of a dwelling or other property must be conducted at a time and in a manner that causes the least possible disruption to the normal rhythm of a person’s life, unless compliance with this rule is contrary to the achievement of the purpose of the search (Part 2 of Article 236 of the CPC of Ukraine); 
• right to defence. Regardless of the stage of this investigative action, the investigator or prosecutor is obliged to allow a defence counsel or lawyer to be present at the place where it is carried out. However, it should be noted that inviting a lawyer does not stop until the lawyer arrives and is allowed into the area where the search is being conducted. (Part 1, 3 of Article 236 of the CPC of Ukraine). 

An exception is a personal search, during which the investigator or prosecutor is obliged to wait for the lawyer for 3 hours if the lawyer is invited. 

Search of a person: when is it possible, and is a court order required? 

A personal search is not an independent investigative action, does not require a separate court order to conduct it, and may be conducted in 2 cases: 

• in the event of detention of a person suspected of committing a crime in accordance with Article 208 of the Criminal Procedure Code of Ukraine; 
• during a search of a person’s home or other property based on a ruling by an investigating judge. At the same time, by decision of the investigator or prosecutor, a search may be conducted of any person present in the dwelling or other property if there are sufficient grounds to believe that they are concealing items or documents that are relevant to the criminal proceedings (Part 5 of Article 236 of the Criminal Procedure Code of Ukraine).  

The above requirements are reflected in the following resolutions of the Supreme Court: dated 31 January 2023 in case No. 761/34884/15-k; dated 26 September 2023 in case No. 404/2409/20; dated 17 January 2023 in case No. 648/1543/15-k. 

At the same time, the person conducting the personal search, as well as the witnesses, must be of the same sex as the person being searched. In addition, the investigator or prosecutor is obliged to wait up to 3 hours for a lawyer or representative if the person subject to the investigative action invites them. A personal search must be conducted in accordance with the rules set forth in Articles 223, 236, and 615 of the Criminal Procedure Code of Ukraine, with a record in the protocol and a video recording. 

It should be noted that the legislation does not define the concept of a search of a person, so there is no clear distinction between such a search and a search of a person’s home or other property. Of course, if the search items are seized, for example, from a pocket, it must be carried out exclusively within the scope of a search of a person. A somewhat controversial situation arises when, during a search of premises, a person is holding an item that they refuse to hand over at the request of an investigator or prosecutor. Is it possible to forcibly seize such an item from the person’s hands within the scope of a search of the premises? In the author’s opinion, the answer is no: any actions aimed at searching for and seizing items that require physical contact with the person must be carried out exclusively during a search of the person, in compliance with the relevant guarantees.  

The right to a defence lawyer during a search: what the law guarantees and what court practice guarantees 

The investigator or prosecutor does not have the right to prohibit participants in the search from obtaining legal assistance from a lawyer or representative. They are obliged to allow such a lawyer or representative to be present during the search at any stage of its conduct (Article 236 (1) (3) of the Code of Criminal Procedure of Ukraine).  

In its ruling of 26 September 2023 in case No. 404/2409/20, the Supreme Court noted that the law does not impose an obligation on the investigator to ensure the presence of a defence lawyer during a search. Instead, it establishes a guarantee: if a person wishes to engage a lawyer, the pre-trial investigation body has no right to prevent this. 

The question of whether a search can be conducted without the participation of a lawyer in cases where the person involved in the search, in accordance with Article 52 of the CPC of Ukraine, has the right to the mandatory participation of a defence lawyer (is suspected of committing a particularly serious crime or a criminal offence under the age of 18, has physical or mental disabilities, does not speak the language in which the proceedings are conducted, etc.). In view of the above, we believe that in such cases the investigator or prosecutor is obliged to wait for the invited lawyer to attend or to ensure his or her independent participation, and only then continue the search.