Why “mask shows” are so popular in Ukraine and how to reduce pressure on business

Searches are necessary, they are used in all democratic countries. But there is one condition: everyone in the state must obey the law, which provides not only rights, but also duties and responsibilities. However, investigators, prosecutors and judges in Ukraine currently have no responsibility for non-compliance with the requirements of criminal procedural legislation. They know that there will be no punishment for them, so they freely violate the constitutional rights of property owners. This undermines the trust of the people and foreign partners in law enforcement agencies and the judicial system, calls into question the status of Ukraine as a state governed by the rule of law, and distances us from the European Union and NATO, where the observance of human rights and economic entities is given considerable attention.

"Mask shows" as they are

Unlike developed countries, in Ukraine the investigative process almost traditionally begins with searches. And there are a number of reasons why they are so popular.

First, the purpose of searches. Unfortunately, this is not at all the detection and recording of the circumstances of the commission of a criminal offense. The real purpose of searches is mostly to show their power, impunity for breaking the law, and to take as much as possible from the owner. As a result, create favorable conditions for negotiations. "All state bodies in Ukraine, which have investigative and operative units, are trying to play the 'economy' games. The National Police, the Security Service and the Prosecutor's Office do not want to say goodbye to such investigative actions, because this is their business. Half of the employees who work in these bodies will simply leave if they don't engage in the economy," you can often hear from lawyers and business owners.

Secondly, the impunity of investigators, prosecutors, and investigative judges. That is, they themselves do not follow the law. For example, in order to conduct a search, the investigator must obtain permission from the investigating judge to enter the premises for the purpose of the search. The judge, after checking the facts presented by the investigator, decides whether there are grounds for such investigative actions. It is important that the permission of the investigating judge to conduct a search is not a permission to seize any documents or things!

“The problem of non-return of property seized during a search is primarily in the ambiguous wording of Article 236 of the Criminal Procedure Code of Ukraine. Part 7 of this article says that "removed things and documents that are not included in the list for which permission to search was expressly granted in the decision on permission to conduct a search, and do not belong to objects that are removed from circulation by law, are considered temporarily seized property,” explains lawyer Serhii Burlakov. Temporarily confiscated property must be seized by the decision of the investigating judge. The status of this property is clear, clearly defined by the Code of Criminal Procedure, accordingly, this arrest can be appealed, and the property returned to the owner. But the code does not determine the status of the property, which is directly written in the resolution, accordingly, investigators and prosecutors believe that it is no longer temporarily seized property, and therefore, there is no need to apply for its seizure. As a result, the defense side is deprived of the opportunity to challenge his removal, and in the case of appealing to the court with a complaint about the investigator's inactivity, in most cases it is rejected.”

According to the lawyer, this was not always the case, and after the adoption of the new Criminal Procedure Code in 2012, investigative bodies for a long time turned to the court with requests to seize all property seized during the search – both specified in the decision and not. But a new practice gradually developed, and law enforcement officers and courts found a completely legal, as they believe, way to make their work easier and improve their lives.

Therefore, the investigator with the prosecutor and the investigating judge twice limited the constitutional rights of the owner of the property: the first time, when they came with a search and took the property for an indefinite period, fulfilling the decision of the investigating judge on permission to conduct a search and seizure of certain things, the second time, when they actually refused the procedure for imposing an arrest on temporarily seized property.

It is worth noting that there is a small part of investigators who turn to the court with petitions for the seizure of temporarily seized property. However, again not without restrictions on the property owner's rights. According to the Criminal Procedure Code, the owner of the property has the right to attend such a court session (unlike the previous session regarding the search warrant). But the investigators ask the judge not to summon the owner of the property to court. In their petition, they write: “In order to preserve the property or prevent an attempt to destroy the property seized during the search, I ask that the consideration of the petition be conducted without summoning the owner of the property.” (The Criminal Code provides for this possibility, but in the event that there was no search, and it is about specific property under the control of the owner.) “In practice, investigating judges almost always do this, depriving the owner of the property of the opportunity to defend his rights,” says the managing partner of DSA GROUP law association Oleksandr Pylypenko.

In the future, when the owner of the property learns that there is a decision to seize the property, he receives a corresponding decision in court and applies to the appeals court. The points of the owner are the following: “According to the Code of Civil Procedure, there is a certain procedure, the court is obliged to notify the owner of the court session regarding the seizure of property, so let's cancel the decision that limited the rights of the owner who was not summoned to the session.” However, the appellate court decides that it is a violation of a procedural issue, and rejects the complaint: “Well, if the investigating judge violated the procedure and did not summon you, then apply to the investigating judge to cancel the seizure of property.” That is, even in the appellate court, the norms of the Criminal Procedure Code are ignored, and they believe that violation of the procedure defined by law is not a reason to cancel the seizure of property.

“Complain as much as you want”

A separate issue is how investigative judges make decisions on complaints from property owners.

“The institution of appeal, in particular some of its procedural aspects, is not regulated clearly enough, and in some cases the norms are imperfectly formulated. Here we can talk about gaps in the legislation. That is why problems arise in judicial practice, which consist in the uneven and, in certain cases, incorrect application of the provisions of the law, improper resolution of issues brought before the investigating judge,” explains Stanislav Poliovyi, lawyer of GRACERS law firm.

In his opinion, at least the following issues require normative regulation:

— participation in the court session of the person who filed a complaint against the decision, action or inaction of the investigator, prosecutor, inquirer, since there are rare cases when investigating judges refuse to return property to persons who filed a petition in the interests of the owner (representatives), motivating such a decision by the absence the owner in court. According to the lawyer, this is a gross violation of a person's right to protect his rights to own and dispose of property and requires clear legislative regulation;

— participation in the court session of the investigator or prosecutor: the practice of non-appearance of the above-mentioned persons in the court session in order to delay the process and constantly postpone the review of the complaint on the merits is a constant practice; these actions also deprive a person of the right to dispose of his property at his own discretion.

“As long as there are gaps in the legislation, judges, prosecutors, and investigators will look for various loopholes in order to bypass the clearly prescribed norms and establish their "legal" position,” emphasizes Stanislav Poliovyi. “The only but, unfortunately, insufficiently effective measure of influence on the activities of officials is the institution of challenging the decisions, actions or inaction of the investigator, the prosecutor during the pre-trial investigation.”

What should be done?

If investigators, prosecutors, investigative judges, judges of the appellate courts do not comply with the law, their responsibility should be strengthened. In particular, to date, the responsibility of the investigator or prosecutor has not been determined for inactivity established by the court, violation of order during the search, unjustified detention of property, annulled decisions.

It is necessary to strengthen the responsibility of judges. Starting from the argumentation of their decisions, which often contain frankly odious conclusions and illogical connections, and ending with the practice, when in absolutely identical situations without changing the legislation, the judge makes literally opposite decisions.

But first of all, it is necessary to bring the relevant legislation into line. Lawyers stand in solidarity: some procedural aspects are not regulated clearly enough, and in some cases the very norms regulating the procedure for taking actions and making decisions are imperfectly formulated, which ultimately leads to the emergence of problems due to the incorrect application of the provisions of procedural legislation. Loopholes used by judges and law enforcement officers, such as in the case of non-return of property seized during a search, have long been known. It is not difficult to change this by filling the gaps that currently exist in the Criminal Procedure Code.