The Investigating Judge’s Ruling Authorising a Search Does Not Equal the Seizure of Property

Author: Alina Davydova, Attorney, Counsel at Grain Law Firm

Search and seizure of property are entirely distinct institutions of criminal procedural law, and there are no grounds to equate them or to apply the legal consequences of one to the other.

However, in practice there are numerous cases where, following a search and the seizure of a person’s property, the prosecution improperly attempts to substitute these two concepts, mistakenly assuming that a search warrant also authorises the retention of seized property. For example, after property has been seized during a search, a prosecutor or investigator (with the prosecutor’s approval) fails to apply to the court for its arrest within the period prescribed by Part 5 of Article 171 of the Criminal Procedure Code of Ukraine (CPC), incorrectly believing that the investigating judge’s ruling authorising the search also provides a legal basis for retaining such property after seizure, even after the expiry of the statutory 48-hour period from the end of the search.

The key distinction between these two criminal procedural institutions is clear: a search is classified as an investigative (search) action, whereas seizure (arrest) of property is a type of measure to ensure criminal proceedings.

This also determines the difference in their purpose and legal function. Investigative actions are aimed at obtaining (collecting) evidence or verifying already obtained evidence in criminal proceedings, whereas measures to ensure criminal proceedings are aimed at ensuring the effectiveness of such proceedings.

A significant difference between a search and seizure of property also lies in their purpose.

Thus, the purpose of a search, in accordance with Part 1 of Article 234 of the CPC of Ukraine, is to identify and record information about the circumstances of a criminal offence, to locate instruments of the offence or property obtained as a result of its commission, as well as to establish the whereabouts of persons being sought.

By contrast, the purpose of arresting property, according to Part 2 of Article 170 of the CPC of Ukraine, depending on the legal grounds invoked by the prosecution, may be to ensure: (1) preservation of physical evidence; (2) special confiscation; (3) confiscation of property as a type of punishment or a criminal-law measure against a legal entity; (4) compensation for damage caused by a criminal offence (civil claim), or recovery of unlawful benefit obtained by a legal entity.

At the same time, the institution of asset arrest is defined as a measure aimed at temporarily depriving a person, by court order, of the right to dispose of, use, and/or alienate property, in respect of which there are sufficient grounds or reasonable suspicion that it constitutes evidence of a criminal offence, is subject to special confiscation, confiscation from a suspect, accused, convicted person or third parties, confiscation from a legal entity, or is necessary to secure a civil claim, recovery of unlawful benefit, or possible confiscation.

In other words, Article 170(1) of the CPC establishes that arrest of property is a mechanism for the temporary deprivation of property rights or their components (disposal, use, or alienation).

By contrast, the legal provisions governing searches do not provide for the possibility of lawful retention of seized property without a separate court order imposing arrest.

Accordingly, it is clear that a search warrant (whether issued before the search or ex post facto in urgent cases under Part 3 of Article 233 of the CPC of Ukraine) is not a judicial decision that may lawfully deprive a person of property rights. A search is aimed at locating items and documents, whereas arrest of property is aimed at temporarily restricting ownership rights over them.

The erroneous conflation of these distinct procedural institutions, including the substitution of their legal consequences, creates legal uncertainty regarding the status of property seized during an “urgent” search subsequently validated by a court order.

In practice, property seized during such an “urgent” search and listed in the ruling validating it is often incorrectly treated by investigators and prosecutors as not requiring a separate court order for continued retention. This stems from a misinterpretation of the judicial decision authorising the search, which law enforcement authorities mistakenly view as sufficient legal grounds for retention of the property. However, such interpretation is inconsistent with the CPC of Ukraine. This is further confirmed by the fact that such property does not acquire the status of arrested property, which places the owner in a situation where there is no effective legal remedy to protect their violated rights, contrary to international treaties ratified by Ukraine.

This misunderstanding may stem from the fact that search warrants often contain operative language authorising the “discovery and seizure” of specific items, which is incorrectly interpreted as granting ongoing authority to retain property without a separate arrest order.

The Unified State Register of Court Decisions (USRR) contains a number of rulings confirming the position that a search warrant is not equivalent in legal effect to an order imposing arrest on property, and that property seized during such a search is not considered arrested. For example: the ruling of the Desnianskyi District Court of Chernihiv in case No. 750/2732/19 of 15.03.2019, the ruling of the Dzerzhynskyi District Court of Kryvyi Rih in case No. 210/3144/21 of 17.10.2021, and the ruling of the Pecherskyi District Court of Kyiv in case No. 757/3699/25-к of 30.01.2025.

It should be noted that, in relation to property recognised by an investigator or prosecutor as physical evidence in criminal proceedings, the law provides only two legal grounds for its retention by the prosecution: its acquisition through temporary access or the imposition of arrest. Both are measures to ensure criminal proceedings. It follows that the legality of retaining property cannot be based on a court decision authorising an investigative (search) action.

Furthermore, Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees that every natural or legal person is entitled to peaceful enjoyment of their possessions. No one shall be deprived of their property except in the public interest and subject to the conditions provided for by law and general principles of international law.

The principle of inviolability of private property is also enshrined in Article 16 of the CPC of Ukraine, according to which deprivation or restriction of property rights during criminal proceedings may only be carried out on the basis of a reasoned court decision adopted in accordance with the procedure established by the CPC.

The legislator also provides that, under the grounds and procedure established by the CPC, temporary seizure of property without a court order is permitted. However, such seizure is lawful only if the property meets the criteria set out in Article 167(2) of the CPC. Moreover, such seizure is limited in time, as provided by Article 171(5) of the CPC, for the purpose of filing a motion for arrest of property. Failure to apply to the court for arrest within 48 hours (in case of seizure during a search conducted pursuant to a court order) or by the next day (in case of an “urgent” search) constitutes grounds for termination of the seizure and return of the property to its owner or possessor, pursuant to Article 169(1)(3) of the CPC.

Thus, a search, by its legal nature, cannot constitute sufficient legal grounds for temporarily depriving or restricting a person’s property rights, as the legislator has provided a separate procedural mechanism for this purpose—namely, arrest of property with a clearly defined procedure.

Retention of property seized during a search without a court order imposing arrest is unlawful, as it is not provided for by any provision of criminal procedural law. Consequently, it contradicts the fundamental principles of criminal proceedings set out in Article 7 of the CPC of Ukraine, including the rule of law, legality, and inviolability of property rights, as well as the procedure of criminal proceedings itself. Such unjustified restriction of property rights also deprives the person of an effective remedy, in violation of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Accordingly, a court ruling authorising a search is not a judicial decision intended to deprive or restrict property rights, as Ukrainian legislation provides a separate mechanism for this purpose – asset arrest, regulated by Chapter 17 of Section II of the CPC of Ukraine. The necessity of applying such arrest must be demonstrated by the prosecution before the court in order to prevent unjustified interference with the constitutional right to property guaranteed by Article 41 of the Constitution of Ukraine.