The Verkhovna Rada adopted as a basis a bill that changes the procedure for conducting searches without prior court authorization, returning seized property, and registering reports of criminal offenses. UNN reports this, citing a parliamentary session.
Details
Draft Law No. 15488-3 "On Amendments to the Criminal Procedure Code of Ukraine Concerning the Improvement of the Institutions Governing Searches in Urgent Cases, as well as the Registration of Statements and Reports of Committed Criminal Offenses" was supported at first reading in principle by 265 members of parliament.
Under the draft law, an investigator, inquiry officer, or prosecutor shall have the right, before a ruling by an investigating judge is issued, to enter a person’s home or other property only in urgent cases related to saving people’s lives and property or to the direct pursuit of persons suspected of committing a criminal offense.
In such a case, the prosecutor, investigator, or inquiry officer, with the prosecutor’s approval, shall be required to apply to the investigating judge without delay, but no later than 72 hours after carrying out such actions, with a motion to conduct a search.
Currently, Part Three of Article 233 of the Criminal Procedure Code provides that an investigator, inquiry officer, or prosecutor shall have the right, before a ruling by an investigating judge is issued, to enter a person’s home or other property only in urgent cases related to saving people’s lives and property or to the direct pursuit of persons suspected of committing a criminal offense.
The bill proposes that, in such a case, the prosecutor, investigator, or inquiry officer, with the prosecutor’s approval, shall be required to apply to the investigating judge without delay, but no later than 72 hours after carrying out such actions, with a motion to conduct a search. That is, a 72-hour limit is established for applying to a judge to "legalize" the search.
A motion by a prosecutor, investigator, or inquiry officer to conduct a search shall be considered by a judge no later than three days from the date it is received by the court, with the participation of the owner of the property temporarily seized during the search.
The judge will be required to notify in advance the owner of the property temporarily seized during such a search, the owner of the home or other property in which such a search was conducted, or their representatives, of the date, time, and place of consideration of the prosecutor’s, investigator’s, or inquiry officer’s motion to conduct a search. The failure of these persons to appear at the court hearing shall not prevent consideration of the motion.
If the prosecutor does not approve the motion to conduct a search or the investigating judge refuses to authorize it subsequently, the seized property shall acquire the status of temporarily seized property and shall be returned.
Why the amendments became necessary
As stated in the explanatory note to the document, Article 30 of the Constitution of Ukraine establishes a general rule under which entry into a person’s home or other property, and the conduct of an inspection or search therein, is permitted only on the basis of a reasoned court decision.
At the same time, Part Three of this article establishes an exception to this rule: in urgent cases related to saving people’s lives and property or to the direct pursuit of persons suspected of committing a crime, another procedure for entering a person’s home or other property and conducting an inspection or search therein, as established by law, is possible.
The Criminal Procedure Code elaborates on the constitutional provision. In particular, Part One of Article 233 of the Criminal Procedure Code of Ukraine states that no one has the right to enter a person’s home or other property other than with the voluntary consent of the person who owns it or on the basis of a ruling by an investigating judge.
In particular, Part Three of Article 233 of the Criminal Procedure Code of Ukraine provides that an investigator, inquiry officer, or prosecutor shall have the right, before a ruling by an investigating judge is issued, to enter a person’s home or other property only in urgent cases related to saving people’s lives and property or to the direct pursuit of persons suspected of committing a criminal offense.
Ukrainian Parliament Commissioner for Human Rights Dmytro Lubinets reported in October that about 10 cases had been recorded in Ukraine in which representatives of territorial recruitment and social support centers entered private homes, yards, or other private premises and forcibly removed men from them.
According to him, such cases are being recorded in various regions of the country. In Lubinets’s view, this is a kind of test of the legal response.
The ombudsman emphasized that Article 30 of the Constitution of Ukraine guarantees the inviolability of the home. Entry into it is generally permitted on the basis of a substantiated court decision, while exceptions are provided by law for certain urgent cases.
The serving of a summons in itself is not among the grounds permitting entry into a home without the owner’s consent. The presence of police officers nearby also does not override the requirements of the law.