Resolution of the Fate of Physical Evidence After the Closure of Criminal Proceedings

Author: Karina Nedosnovana, Paralegal at Grain Law Firm

The institution of asset seizure is one of the most commonly applied interim measures in criminal proceedings, the use of which directly affects the exercise of a person’s property rights. Its purpose is to ensure the fulfilment of the objectives of criminal proceedings, in particular the preservation of physical evidence, potential confiscation, special confiscation, or compensation for damage caused by a criminal offense. At the same time, the seizure of property is strictly temporary in nature and must be terminated once the procedural grounds that justified its application cease to exist.

In accordance with Part 1 of Article 170 of the Criminal Procedure Code of Ukraine, seizure of property is a temporary deprivation, until its cancellation in the procedure established by this Code, of the right to alienate, dispose of, and/or use property by a ruling of an investigating judge or court, where there are sufficient grounds or reasonable suspicions to believe that such property is evidence of a criminal offense, is subject to special confiscation from a suspect, accused, convicted person or third parties, confiscation of property of a legal entity, or is necessary to secure a civil claim, recovery of unlawful benefit, or potential confiscation of property. Seizure of property is lifted in accordance with the procedure established by this Code.

During both the pre-trial investigation and trial stages, the issues of imposing and lifting seizure of property are decided by an investigating judge or court in accordance with Articles 173 and 174 of the Criminal Procedure Code of Ukraine.

Seizure of property may be fully or partially cancelled by a ruling of an investigating judge during the pre-trial investigation or by a court during judicial proceedings upon a motion of the suspect, accused, their defense counsel or legal representative, another owner or possessor of the property, or a representative of a legal entity in respect of which proceedings are conducted, provided they prove that the need for such measure has ceased or that the seizure was imposed unjustifiably (Part 1 of Article 174 of the Criminal Procedure Code of Ukraine).

In the event of closure of criminal proceedings at the stage of pre-trial investigation, Part 3 of Article 174 of the Criminal Procedure Code of Ukraine imposes an obligation on the prosecutor, simultaneously with issuing a resolution to close the proceedings, to cancel the seizure of property, unless such property is subject to special confiscation.

Thus, the legislator clearly distinguishes the procedural mechanism for lifting seizure depending on the stage of criminal proceedings, assigning this function to the investigating judge during pre-trial investigation, to the court during judicial proceedings, and to the prosecutor upon completion of the pre-trial investigation by way of closing the case.

In practice, however, situations frequently arise where criminal proceedings are closed at the pre-trial stage, while the issue of lifting seizure of property is not addressed in the respective procedural decision of the prosecution.

This raises the question of the procedural mechanism for lifting seizure of property within already closed criminal proceedings, in the absence of judicial review and in circumstances where the investigator/detective, prosecutor, and investigating judge have lost their procedural authority in this regard.

In fact, the legislator has not provided a separate procedural mechanism for resolving the issue of lifting seizure of property after the closure of criminal proceedings. At the same time, Part 4 of Article 132 of the Criminal Procedure Code of Ukraine establishes that a ruling of an investigating judge or court on the application of interim measures ceases to be effective, in particular, upon closure of criminal proceedings in accordance with the procedure established by this Code. The application of this provision, in conjunction with Part 1 of Article 170 of the Criminal Procedure Code of Ukraine, indicates the termination of restrictions on the exercise of ownership rights imposed during the pre-trial investigation.

The mandatory provisions of Part 4 of Article 132 of the Criminal Procedure Code of Ukraine require that such property be treated by the prosecutor, pre-trial investigation bodies, state authorities, local self-government bodies, enterprises, institutions, organizations, individuals, and other participants in legal relations as no longer subject to seizure under the procedure established by the CPC of Ukraine. In the absence of other lawful grounds, any deprivation of the right to dispose of or use such property, the seizure of which has ceased to be valid, is unlawful and entails liability provided by law.

Accordingly, in the event of closure of criminal proceedings by a resolution of an investigator/detective or prosecutor, the court order imposing seizure of property (physical evidence) ceases to be effective. Consequently, the restriction on the right to dispose of and/or use the respective property also ceases. This approach appears logical and justified and is reflected in the legal conclusion of the Joint Chamber of the Criminal Cassation Court of the Supreme Court set out in its ruling of 15 April 2024 in case No. 554/2506/22.

Despite the mandatory provisions of criminal procedural law and established case law confirming the termination of seizure after closure of proceedings, in practice a number of problematic issues arise. The actual restoration of property rights is not limited to the formal termination of this interim measure but also requires the removal of corresponding encumbrances from public registers.

For example, where a court order during pre-trial investigation has imposed seizure on corporate rights of a company, such measure results in an entry of encumbrance in the Unified State Register. The existence of such entry prevents the exercise of corporate rights, including participation in management, disposal of shares in the authorized capital, and performance of registration actions related to changes in company data, even after the closure of criminal proceedings, despite the above-mentioned mandatory provisions of the Criminal Procedure Code of Ukraine.

Clause 2 of Part 1 of Article 28 of the Law of Ukraine “On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations” provides that a state registrar shall refuse registration if the Unified State Register contains information about a court decision prohibiting registration actions.

Clause 2 of Part 1 of Article 25 of the same Law establishes that registration actions are performed on the basis of court decisions that have entered into legal force and result in changes to the Unified State Register, including decisions received electronically from courts or enforcement authorities regarding prohibition (or lifting of prohibition) of registration actions and seizure/removal of seizure.

Under Part 10 of Article 13 of the Law, the State Judicial Administration of Ukraine ensures transmission to the Unified State Register of court decisions that result in changes to register data, including decisions on seizure of corporate rights and prohibition (or lifting of prohibition) of registration actions, on the day such decisions enter into legal force.

These provisions contain an exhaustive list of documents serving as legal grounds for registration actions. However, a resolution to close criminal proceedings, as well as the automatic termination of interim measures, is not included among such grounds. The Law does not provide for it.

As a result, a significant legal problem arises: a state registrar, in the absence of a court decision lifting the seizure, is formally deprived of legal grounds to remove encumbrances from the register. The registrar’s activity is strictly limited by the exhaustive list of documents defined by law and does not allow for independent assessment of procedural consequences of closure decisions, even in light of CPC provisions or Supreme Court case law.

Thus, the automatic termination of seizure of property under the Criminal Procedure Code does not translate in practice into its actual removal. This leads to prolonged and unjustified restrictions on property rights due to the absence of a prompt and effective procedural mechanism for their restoration. A legal collision emerges between criminal procedural provisions and state registration legislation, resulting in a situation where property rights are formally restored but remain practically restricted.

In the absence of an effective procedural mechanism to remove registration encumbrances after closure of criminal proceedings, it becomes necessary to identify a remedy within the Criminal Procedure Code itself. A key factor is the determination of the procedural status of the seized property and the possibility of deciding its fate in court after the termination of proceedings. If such property has been recognized as physical evidence, its further procedural fate must be resolved under Part 9 of Article 100 of the Criminal Procedure Code of Ukraine.

Under this provision, in the event of closure of criminal proceedings by an investigator or prosecutor, issues relating to special confiscation, physical evidence, and documents are resolved by a court ruling upon a motion considered under Articles 171–174 of the Code.

A court ruling issued under Part 9 of Article 100 of the CPC is an independent procedural act determining the legal status of such property, including the elimination of adverse consequences resulting from seizure.

It is important to emphasize that such a motion must be addressed to the court, not to an investigating judge, as otherwise it risks being dismissed on formal grounds due to lack of jurisdiction.

This procedural tool is particularly effective where: seizure of property recognized as physical evidence was imposed by an investigating judge; the criminal proceedings were closed by a resolution of an investigator/detective or prosecutor; and the issue of seizure was not resolved in violation of Part 3 of Article 174 of the CPC.

In such cases, the application under Part 9 of Article 100 CPC does not seek to re-cancel the seizure as an interim measure, which has already ceased by operation of law. Instead, it seeks a judicial determination of the fate of the physical evidence, producing an external legal effect.

The application of this provision is confirmed by judicial practice as an effective mechanism for restoring property rights. Court rulings issued under this procedure are accepted by state registrars as sufficient grounds for removing registration encumbrances, as reflected in case law including decisions in cases No. 729/1177/24 (04.07.2024), No. 519/577/25 (20.03.2025), No. 322/2001/24 (17.04.2025), and No. 331/3517/25 (30.10.2025).

Accordingly, Part 9 of Article 100 of the Criminal Procedure Code of Ukraine is not an exception to general rules but a logical procedural conclusion of the mechanism governing termination of seizure of property in criminal proceedings, ensuring the transition from the formal cessation of this measure by operation of law to its practical termination and the actual restoration of the owner’s property rights.