In recent years, the number of business searches has increased significantly. Law enforcement officers operate in a wide range of areas: property that is not specifically listed in the investigating judge's ruling is often seized. Servers, computers, accounting documents, and personal belongings of employees are subject to seizure.
Courts, as a rule, do not create safeguards - the seizure of seized property is imposed upon a formal request from the prosecutor, without a detailed analysis of its feasibility. And if the prosecutor did not file a request at all - returning the property will be no less difficult.
The problem is exacerbated by the fact that the Criminal Procedure Code of Ukraine lacks an effective mechanism for the investigator's liability for the seizure of items that were not authorized by a court decision. Even if the actions of law enforcement officers are recognized as illegal, the losses or suspension of business activities are not compensated. Therefore, enterprises often find themselves in a situation where their activities are paralyzed, and the chances of promptly returning the property are minimal.
How to return property after a search: two key scenarios
- The prosecutor did not request an arrest.
If within 48 hours after the search, the prosecutor has not applied to the court with a motion to impose an arrest, the person has the right to file a complaint for inaction. This is provided for by Article 303 of the Criminal Procedure Code of Ukraine. Such a complaint should refer to the violation of property rights, the lack of judicial control, and the need for the immediate return of the seized property.
In our firm's practice, there was a case where office equipment was seized after a client's search, but the prosecutor did not file a motion on time. We appealed the inaction - the court ordered the property to be returned.
It is worth understanding that even in this case, the return does not occur instantly - the investigator may delay the execution of the decision, which requires further action.
- If an arrest has been imposed, a petition to have it lifted
According to Article 174 of the Criminal Procedure Code of Ukraine, the court shall consider a petition to cancel the arrest within 3 days from the moment of its receipt. However, in practice, such petitions are considered for several weeks or even months - due to the workload of the courts, postponement of hearings, or failure of the parties to appear.
The petition must substantiate:
- that the property is not relevant to criminal proceedings;
- that it is not material evidence;
- that the origin of the property is legal (payment documents, contracts, primary accounting).
In Bargen's practice, there was a case when 15 laptops were seized after a search of an IT company. We filed a petition to cancel the arrest, provided explanations regarding the belonging of the equipment, and confirmation of its purchase. The court granted the petition, and the property was returned. But the actual return of the equipment was delayed for another 3 weeks — due to the bureaucracy of the investigative unit.
How is the court hearing of the petition conducted?
During the consideration of a petition to cancel the seizure of property, the participation of the owner or his representative - usually a lawyer - is mandatory. It is the party initiating the cancellation of the seizure that has the obligation to prove the circumstances set forth in the petition:
- legality of the origin of the property;
- lack of connection with the subject of the criminal proceedings;
- there is no need to seize property to prove the circumstances of the case.
Also present in court is the prosecutor, who usually objects to the lifting of the arrest. He justifies the need to preserve the item for the investigation, citing the risks of destruction, concealment, or loss of evidence.
The court hears the parties' positions, examines the evidence, and makes a decision that must be implemented immediately. But again, implementing the decision in practice takes time.
What to do if the property is not returned even after a court decision?
If the investigator or prosecutor does not comply with the court decision on return, this may be qualified as a criminal offense under Article 382 of the Criminal Code of Ukraine (intentional failure to comply with a court decision). In such a case, we recommend:
- submit an application to the State Bureau of Investigation;
- prepare a written appeal to the management of the pre-trial investigation body;
- record all facts and requests in writing.
It is also advisable to publicly highlight the problem if it is an unjustified delay. Media pressure sometimes works better than procedural tools.
Conclusion: Why it’s important to act now
Returning property after a search is not a mechanical process. It requires a clear strategy, proper documentation, legal support, and sometimes public pressure. Successful return of property is possible even in complex cases, but it requires a systematic approach, patience, and constant monitoring of the situation.
