If you have ever thought about how to conduct yourself properly and what to pay attention to during a raid, this article is for you!
Our Associate Kostyantyn Marchenko shares with you important recommendations and advice so that you are prepared for any situation.
As of today, one of the most common and at the same time problematic investigative actions in criminal proceedings is considered to be a search. This is due to the fact that in practice, law enforcement agencies in a number of cases carry out this investigative action in violation and non-compliance with the norms established by the criminal procedural legislation.
According to Article 234 (1) of the Criminal Procedure Code of Ukraine (hereinafter referred to as the CPC of Ukraine), a search is carried out in order to identify and record information about the circumstances of the commission of a criminal offense, to find the instrument of the criminal offense or property obtained as a result of its commission, as well as to establish the location of wanted persons. That is, this investigative action consists of inspecting the scene of the incident or a person in order to identify and seize evidence that can help in the investigation of a specific criminal offense.
The basis for the search is the determination of the investigator of the judge of the local general court, within whose territorial jurisdiction the pre-trial investigation body is located, which is issued from the petition of the investigator or prosecutor to the court with a request to grant permission to conduct a search.
The current CPC of Ukraine determines that the determination of the investigating judge on permission to search a home or other property must include a list of information, in particular:
- the validity period of the determination, which may exceed 1 month from the date of the determination;
- the prosecutor, investigator who filed the petition for a search;
- the provisions of the law on the basis of which the determination is made;
- the home or other property of the person or part of the home or other property of the person who must be searched;
- the person who owns the home or other property and the person in whose actual possession it is;
- By the way, the documents or persons to identify whom the search is being conducted.
- However, representatives of law enforcement agencies, as noted earlier, do not always comply with the norms of the law when conducting a search, thereby violating it.
Some of the most common types of violations by law enforcement officers during a raid are:
- conducting a search without permission from the investigating judge (lack of a ruling on permission to search), which is a violation of Part 2 of Article 234 of the Criminal Procedure Code of Ukraine;
- non-compliance of the ruling of the investigating judge on permission to search a home or other property with the general requirements established by Part 2 of Article 235 of the Criminal Procedure Code of Ukraine, namely:
- failure to specify in the ruling the period of its validity, which, according to paragraph 1 of Part 2 of Article 235 of the Criminal Procedure Code of Ukraine, cannot exceed one month;
- non-compliance with the provisions of the law on the basis of which the ruling is made (paragraph 3 of Part 2 of Article 235 of the Criminal Procedure Code of Ukraine), since this makes the ruling invalid;
- lack of information in the ruling about the person who owns the home or other property and the person in whose actual possession it is, which contradicts paragraph 5 of Part 2 of Article 235 of the Criminal Procedure Code of Ukraine;
- failure to provide the person with the opportunity to use the assistance of a lawyer, which contradicts the provisions of Article 59 of the Constitution of Ukraine and Part 3 of Article 236 of the Criminal Procedure Code of Ukraine.
One of the features of a search as an investigative search action is that during the martial law regime it can be conducted from 6 am to 10 pm. At other times, it is allowed to be conducted only in urgent cases, when a delay in its conduct may lead to the loss of traces of a criminal offense. It is also important to note that if it is impossible to involve witnesses for objective reasons or if such involvement is associated with an objective danger to their life or health, a search can be conducted without their involvement, but it must be recorded by available technical means by continuous video recording.
Therefore, when conducting a raid, the following algorithm of actions should be followed:
- Make sure that the search is being conducted by authorized persons by checking their service IDs.
- Request the presentation of the document on the basis of which this search action is being carried out (a ruling by an investigator or judge on permission to search a home or other property), and also obtain a copy of this document.
- Carefully read the text of the resolution to determine whether it contains all the necessary information specified in Part 2 of Art. 235 of the Criminal Procedure Code of the Ukraine.
- Immediately call a lawyer and explain the situation as clearly as possible with a request to come to the search site. It is also recommended to draw up a written petition to involve a lawyer in the search and wait for his arrival. It is important to note that, according to current legislation, persons authorized to conduct a search are not required to wait for the lawyer to arrive.
If the search began in the absence of a lawyer, it is important to carefully document the entire process. It is necessary to record all the details (preferably by video and/or photography) related to the search, including: the time of the beginning and end of the search; the names and positions of the persons conducting the search; the location of the search; a list of seized items; actions taken by law enforcement officials during the search etc.
- Demand a detailed description of the seized property. During the raid, you have the right to have all seized and/or temporarily seized items and documents described in the report in as much detail as possible, as this minimizes the risk of errors, replacement or loss during subsequent identification and return.
- Do not leave law enforcement officers unattended and record their every action, again by video and/or photography.
