The practice of conducting searches without a warrant from an investigating judge has been growing significantly in recent times and is becoming a tool for abuse, according to lawyers surveyed by the Interfax-Ukraine news agency.
“This is a long-standing problem that regularly turns into a tool for abuse. In my practice, there have been situations where criminal proceedings were registered at 6 a.m., and by 7 a.m., law enforcement officers were conducting an ‘urgent’ search. There have also been absurd cases of searches at the “wrong address,” which within a few minutes were legalized as urgent at the correct address. Such cases raise serious questions about the goals and proportionality of law enforcement actions,” said Konstantin Kryvenko, a lawyer and head of the criminal law practice at Ilyashev & Partners Law Firm.
However, he noted that “especially in economic cases, the justification often appears formal; in most cases, the investigation motivates the search by the need to preserve important documents, but in fact, ordinary business documents that are already in the possession of contractors, banks, state institutions, etc. are seized.”
At the same time, Kryvenko noted that in most cases, the investigating judge post facto “legalizes” the actions of the investigation without hearing the party against whom the searches were conducted.
“This creates an opaque situation where a person does not even know on what grounds the investigator convinced the court.
It would be advisable to amend the legislation to give the party subject to the search the opportunity to participate in the consideration of the issue of legalization,“ he said.
However, according to Kryvenko, judicial practice regarding evidence obtained in violation of the law is inconsistent, i.e., ”in practice, courts sometimes ‘turn a blind eye’ if the violation is formal and the evidence is significant.”
For his part, Denis Bugay, founding partner of the VB Partners law firm and former president of the Ukrainian Bar Association (UBA), also emphasizes that searches remain not just an investigative measure, but a tool of pressure, and conducting a search without a court order is a field of abuse for law enforcement officials.
As a general rule, a search must be conducted after obtaining the appropriate court permission. However, in exceptional cases (pursuit of a suspect, rescue of property or life), law enforcement officers may conduct a search without a court order, but must obtain it after the investigative action is completed. Investigators systematically take advantage of the possibility of conducting searches without a court order. Therefore, such searches are currently a field of abuse for law enforcement officials,” he said.
Bugay recalled that last year alone, the BEB requested permission to conduct searches at least 163 times, and in 2023, 187 times.
This is despite a three-month moratorium on searches in 2024. In addition, over the past few months, searches have been conducted on lawyers without court permission. Bugay also noted that “despite the requirements of the law, evidence collected during a search conducted with procedural violations can be used in court. This position of the Supreme Court will encourage law enforcement agencies to violate the requirements of the law during investigative actions.”
For his part, lawyer Dmytro Zelenyuk of Barristers noted that there is no uniform judicial practice or approach to considering motions for urgent searches in the courts.
In particular, an analysis of the last 100 rulings of the Pechersky, Svyatoshinsky, Shevchenkivsky, and Solomyansky district courts of Kyiv shows that urgent searches are upheld by the courts in the vast majority of cases. Thus, requests for searches were granted in 75% of cases, meaning that in three out of four cases, investigating judges legalize searches conducted without prior authorization.
“Such a high rate may indicate either the impeccable work of the pre-trial investigation authorities or, more likely, a tendency toward a formal approach on the part of some judges. However, the distribution of the results of the consideration of motions between different district courts of the capital demonstrates a striking lack of a unified approach to the application of the same legal norm,” he said.
According to Zelenyuk, in particular, the percentage of search warrants granted in the Pechersky District Court of Kyiv is 96%, in the Svyatoshinsky District Court – 80%, in the Shevchenkivsky District Court – 72%, and in the Solomyansky District Court – 52%.
“Such a striking difference in indicators cannot be explained solely by differences in the quality of law enforcement agencies in different parts of the city. This fully confirms the assumption that in some courts, investigating judges are more thorough in checking whether there are grounds for granting such requests,” he said, stressing that conducting a search without a decision by an investigating judge, intended by the legislator as an urgent measure for emergency situations, “is increasingly becoming a routine tool for circumventing the standard procedure for obtaining judicial authorization to conduct numerous unjustified searches.”
In turn, Yevgen Hrushevets, a partner at Ario Law Firm, noted that the practice of conducting searches without a decision by an investigating judge tends to become a dangerous “new norm” in the activities of law enforcement agencies.
“Yes, this trend exists. And it is an objective reality. There are several reasons for this. First and foremost, it is the war, which expands the powers of law enforcement agencies, especially in cases involving national security. On the one hand, this is natural and justified, but there is another side to the coin. When the system is operating in “enhanced mode,” there is a greater risk that innocent bystanders may come under pressure from investigators. For example, a lawyer whose only ‘crime’ is simply doing his job by providing legal assistance to his client,” he said.
At the same time, Hrushevets emphasized that “in cases involving national security, the possibility of alternatives to arrest or bail is extremely limited.”
Hrushevets noted that another factor contributing to increased pressure from law enforcement agencies is the political context.
“A search is just one of the tools of influence. And it is one of the most effective, because it not only creates legal risks, but also exerts serious psychological pressure, forcing many to change their position or give up the fight,” he said.
At the same time, he particularly noted the searches of lawyers.
“In the last few months alone, there’s been a series of searches of lawyers’ homes and offices without court orders or proper justification for urgency. There have been cases where law enforcement officers seized media containing attorney-client privilege without a representative of the Bar Association being present. As a result, this creates an atmosphere of pressure on lawyers as participants in criminal proceedings, which directly undermines the guarantees of the right to defense,” he said, recalling that relevant professional organizations have already publicly stated several times about the inadmissibility of such actions and the systematic nature of the problem.
Commenting on possible mechanisms to protect against unlawful actions, Hrushevets noted that formally there is only one mechanism to protect against abuse: judicial review, whereby a court may declare a search illegal, order the return of seized property, and declare the evidence obtained inadmissible.
“The reality in Ukraine is that the court often becomes part of the same law enforcement system. The percentage of cases in which the court recognizes investigative actions as illegal remains extremely low. According to the Criminal Procedure Code, evidence obtained as a result of gross violations of the search procedure cannot be used in court. However, judicial practice shows that often even “toxic” materials are deemed admissible, which undermines confidence in the defense mechanism,” he said.
Source: https://interfax.com.ua/news/general/1081625.html
