Limits of Property Seizure: How Courts Protect the Rights of Third Parties

Author: Semen Pidluzhniak, Attorney at Grain Law Firm

“Seize everything — we will sort it out later!” Unfortunately, law enforcement agencies often act on this principle when conducting searches of a person’s home or other premises within criminal proceedings. In doing so, they sometimes resort to extremes: seizing all computer equipment containing important personal documents; mobile phones with, for example, family photos; and the last available funds of an entire household or other persons living together, without distinguishing whose property it is — whether it belongs to third parties, is a child’s tablet, or is genuinely the property of a suspect or accused in the case.

Let us examine one of the most pressing issues: the protection of third-party property rights during searches in criminal proceedings.

What constitutes third-party property in criminal proceedings? In simple terms, it refers to property owned by persons who are not suspects or accused in the case, but which has been seized during a search or has been subject to arrest.

A search is one of the most intrusive and unpredictable forms of interference with a person’s private property. Its conduct requires strict legal regulation and, importantly, judicial oversight. The purpose of a search is to obtain evidence strictly through lawful means, as any deviation from the procedure undermines the results obtained and disrupts the balance between investigative interests and individual rights.

Accordingly, a search must be authorized by a ruling of an investigating judge, which ensures both its legality and the lawful seizure of third-party property. Moreover, so-called “urgent cases” under Article 233 of the Criminal Procedure Code of Ukraine do not justify a search in such situations, as they are permitted only for saving lives and property or in the case of the immediate pursuit of a person suspected of committing a criminal offense.

Violations during searches by pre-trial investigation authorities have recently become increasingly common. These include: searches conducted by unauthorized persons; the absence of a clear list of property to be seized, which allows investigators or prosecutors to confiscate anything they consider relevant to the proceedings; vague or unsubstantiated risks outlined in the court order justifying the seizure; and entirely groundless or procedurally improper confiscations.

And this is before even considering the search process itself: lack of proper control, abuse of the power of temporary seizure of property, delays in returning seized items, absence of a clear legal status of the seized property, difficulties in proving its lawful ownership, and lengthy procedural mechanisms that restrict the rights of the owner.

For example, imagine the following situation: a knock at the door. “Good day, we are here to conduct a search.” The investigating judge’s order is read aloud, citing unsubstantiated reasons for the search unrelated to the criminal proceedings: allegedly, at an unspecified place, with unspecified persons, on an unspecified date and time, someone under unclear circumstances may have committed a criminal offense.

A search follows. Valuable property is seized, including money, computers, and mobile phones that in fact belong to or are used by third parties. At the end, media and social networks report on the operation, without providing the searched person with any procedural status in the case, effectively linking them to a so-called suspect and publishing their photos.

What follows is a long, burdensome, and stressful process requiring significant effort: numerous motions and complaints, unjustified refusals to return property, and, in addition, reputational damage that is not always possible to restore.

All of this sometimes amounts to de facto confiscation of property without a court decision. And this must be challenged.

The question arises: where can protection be sought, especially from law enforcement authorities themselves, whose primary duty is to protect human rights and freedoms?

Although the protection of human rights and freedoms is a fundamental duty of law enforcement bodies — derived from the constitutional obligations of the state and delegated to specific institutions — for some officials this duty is not always given primary importance.

Therefore, the only effective institution capable of ensuring proper protection of property rights, including those of third parties, is the court.

The judiciary serves as a procedural safeguard and a guarantee designed to protect individuals from unlawful interference in their private life. When granting authorization for a search, the investigating judge is empowered to assess the legality of interference with property rights of persons not involved in the alleged offense, to verify all legal grounds for such action, and to ensure compliance with statutory requirements.

The basic principles of judicial control are as follows.

First, the court order must contain sufficient grounds to believe that the sought property may be located in a person’s residence or premises. The order must clearly define what is being searched for and set boundaries to prevent “general” searches and the seizure of unrelated property. The assessment of sufficient grounds and evidence must align with the objectives of criminal proceedings under the Criminal Procedure Code of Ukraine.

In other words, judicial control ensures that a search does not turn into a “fishing expedition” for any items, but is limited strictly to those specified in the court order and relevant to the evidentiary purposes of the case.

Second, safeguards must be in place to protect the property owner’s rights, ensuring oversight of investigative actions and proper documentation of the process. It is important to remember that all seized items, including those not listed in the court order, must be recorded as temporarily seized property. This is essential for subsequent legal challenges, and compliance with the procedure must be reflected in the search protocol. A search should not be feared as an investigative action; rather, it should be carefully documented, with all violations and shortcomings properly recorded.

Third, the investigating judge must assess the legality of the seizure and may order the return of property if it is not evidence or does not belong to a suspect or accused. A person whose property has been seized has the legal right to seek its return by filing a motion with the investigator or prosecutor, or by submitting a complaint to the investigating judge regarding their inaction, as provided under Article 303 of the Criminal Procedure Code of Ukraine.

In addition, the investigating judge exercises control over motions by investigators or prosecutors to arrest temporarily seized property. Such motions must be submitted within the statutory timeframe — 48 hours or the next working day, depending on the circumstances. If this deadline is violated, the judge must order the immediate return of the property.

Fourth, proper consideration must be given to motions for lifting arrests on property. It is essential to take into account the rights of third parties who claim ownership and seek cancellation of the arrest. The court must assess whether the seizure of third-party property is proportionate and necessary to achieve the objectives of the proceedings.

Property cannot be arrested without lawful grounds. Full stop. However, in practice, there are numerous cases where investigators ignore the obligation to apply to the court for arrest of temporarily seized property, instead recognizing it as material evidence under Article 98 of the Criminal Procedure Code of Ukraine to avoid the requirement of its immediate return to the owner.

A brief note on the moral aspect: how should an impartial, independent, and fair investigating judge act in accordance with the law? The conduct of searches and the seizure of third-party property remains one of the most pressing issues in criminal procedure, as this investigative action involves a highly intensive interference with individual rights, significantly restricts property rights, and therefore requires a strengthened and genuinely effective system of judicial control. At times, however, this control becomes merely formal — whether due to insufficient legal regulation (one might even ask why the High Council of Justice does not function properly), excessive workload on judges who are sometimes forced to schedule hearings late in the evening due to lack of time and resources, or even possible political influence undermining procedural fairness.

There are many possible answers to the questions of “why” and “how.” Despite Ukraine’s progress in establishing independence from totalitarian and communist ideology, the ongoing process of building a democratic state has, in some respects, taken a wrong turn, ultimately contributing to today’s challenges. Given the current difficult circumstances and the fourth year of full-scale invasion, it is critical to act decisively in building a functioning rule-of-law system.

It is an undeniable fact that any search of a residence accompanied by unlawful seizure of property without proper legal grounds constitutes a direct violation of constitutional rights and requires immediate legal protection.

Accordingly, searches must be conducted exclusively by authorized pre-trial investigation bodies, strictly for the purpose of collecting evidence in criminal proceedings. Investigators must substantiate before the court the necessity of entering premises and specify the items sought as evidence, rather than seizing lawfully acquired property belonging to third parties — property obtained through honest labor, at the cost of health, effort, and sleepless nights. Finally, investigating judges, in turn, must carefully examine the arguments presented by investigators when authorizing such actions, as the court remains the last hope for citizens in ensuring justice, objectivity, and protection of their rights and freedoms.