Cancellation of seizure and return of property during martial law

The issue of canceling the seizure of property in criminal proceedings, returning property during martial law is becoming very urgent. Often, law enforcement officers stop investigating actual criminal proceedings due to various reasons – evacuation of criminal proceedings materials to safe regions, change of priority of criminal proceedings, loss of opportunity to obtain evidence due to their presence in the occupied territories. 

In such cases the owner has a question regarding the return of seized property, but is it really possible to do it under martial law? 

Read also: How to cancel the seizure of bank accounts in criminal proceedings? 

What is the procedure for canceling the seizure of property in criminal proceedings?

Cancellation of arrest regulated by Art. 174 of the Criminal Procedure Code of Ukraine. During the martial law, the property return procedure did not change significantly. 

They can initiate the issue of cancellation of arrest the suspect, the accused, their defender, legal representative, other owner or owner of property, representative of a legal entity. 

Grounds for cancellation of arrest:

🔹вказані особи не були присутні у засіданні, на якому вирішувалось питання про арешт майна. Тобто суд вирішив питання лише за участі слідчого.

🔹 особи були присутні, але можуть довести, що в подальшому застосуванні арешту відпала потреба або арешт накладено необґрунтовано.

At the pre-trial investigation, in order to return the property, it is necessary to apply to the court that imposed the seizure. And if the case has already been referred to the court for consideration, contact the presiding officer of the case. It seems that everything is clear, but in practice, many difficulties arise in the process of considering petitions. 

Peculiarities of returning property during martial law

Certain nuances arise during the consideration of requests to cancel the arrest imposed during the pre-trial investigation.

First, the court informs the investigator and the prosecutor about the consideration of the request to cancel the arrest and asks to provide the materials of the criminal proceedings for verification. The prosecution often tells the court that cannot file criminal proceedings in connection with his stay in another region due to the war. 

Criminal Procedure Code does not oblige the court will consider the cancellation of the arrest if there are materials, but as a rule, judges want to check at what stage the criminal proceedings are and whether there are materials in the case that can refute the arguments of the defense regarding the cancellation of the arrest. 

In such cases, we we insist on considering the possibility of canceling the arrest in the absence of case materials. However, if the court is against it, it can greatly delay the case and hinder the proceedings for a long time. The lawyer's task in such a case is to provide the maximum of available materials so that the court can make a decision without demanding the entire case. Here is one of the most recent examples where the court granted a petition without criminal proceedings: https://reyestr.court.gov.ua/Review/104664941

At the same time, such situations are provided for protection an additional argument for the cancellation of the arrest. If the materials are located in another region and in fact the investigation is not conducted, then what is the point in the long-term restriction of the owner in the use and disposal of his property? It is necessary to remember that any seizure of property is a temporary measure and the investigator is obliged to return the property as soon as possible.  

If the court approves the petition, another problematic question arises about the execution of the decision on the return of property. Here is an example of a solution that was difficult but fully implemented. 

How to execute the decision to return seized property?

For example, the court agreed that the arrest was unjustified and due to the long-term absence of any investigative actions, the need for further arrest disappeared. The court approves the request and you receive a court decision on the need to return the property. How to perform it? 

Before the war, this was also a problematic issue, but during the war again, investigators say that everyone physical evidence, seized and seized property are located together with the criminal proceedings in another region, or even both the materials and the seized property are located separately from each other in different regions. So the investigators say that it is impossible to execute the decision to return the property. 

In such cases it is necessary to register the court decision in the body of pre-trial investigation, then separately - in the prosecutor's office, which oversees criminal proceedings. Also demand the return of the property as soon as possible and notification of its location. 

Possible options when there is a need withget another lawyer at the location of the seized property for prompt execution of the court decision. There is also an option when materials and seized property are handed over to the investigator to execute the court decision and he executes the court decision. 

If these options do not work, the only way left is to apply to the State Bureau of Investigation with a statement of willful non-compliance with the court decision. When the investigator is summoned for questioning on such a statement, he will have no other option but to return the property. 

As you can see, it is possible to cancel the seizure and return the seized property to the owner, although the procedure has become more complicated due to the war. With the help of effective communication with the investigator, or the involvement of lawyers on the ground, an appeal to the SBI, it is possible to return the property even under martial law.