Legal regime of temporarily seized property

In criminal proceedings, temporary seizure of property is a common tool of pre-trial investigation. At the same time, this procedure is often used without proper legal justification, which creates risks for asset owners. In this article, we will look at what temporarily seized property is, what is its legal regime, how it can be seized or returned to the owner, and how to protect your rights in criminal proceedings.

What is temporarily seized property?

Temporarily seized property means property that was seized during investigative (search) actions, such as a search, inspection, or detention of a person, and which may potentially be evidence in criminal proceedings. This includes not only items that were used in the commission of a crime or obtained by criminal means, but also any items that may be relevant to the investigation.

The legal definition of temporarily seized property is contained in the Criminal Procedure Code of Ukraine (hereinafter - the CPC), in particular, in Articles 98, 100, 168 and 169.

Legal grounds for temporary seizure

Temporary seizure of property can only take place within the framework of criminal proceedings, and only in cases expressly provided for by law. The most common grounds:

• seizure of property during a search or inspection (Article 234 of the CPC);

• detention of a person and seizure of belongings (Article 208 of the CPC);

• voluntary delivery of property by the parties to the proceedings;

• temporary seizure due to the application of preventive measures.

In each of these cases, the investigator, prosecutor or other authorized entity must comply with the procedural procedure. Seizure without a proper protocol or in the absence of criminal proceedings is a violation of a person's rights.

Seizure of temporarily seized property

After the actual seizure of property, the law provides for a very clear procedure: within 48 hours, the prosecutor or investigator must apply to the investigating judge with a motion to seize the property. If this does not happen, the property is subject to immediate return to the owner.

The arrest is imposed by the decision of the investigating judge, if proven:

• reasonable suspicion that the property is material evidence;

• the risk that it may be destroyed, damaged or hidden;

• the need to ensure compensation for damage or confiscation.

If at least one of these conditions is not met, the court must refuse to arrest.

Terms of temporary seizure

The Criminal Procedure Code does not set a general time limit for the storage of temporarily seized property. However, if the seizure is not imposed in time, the property is returned automatically. If the seizure is imposed, the term of its validity is determined by the investigating judge and is subject to further review.

Thus, the seizure of property without further action by law enforcement within 48 hours is considered illegal and creates grounds for the return of property.

Return of temporarily seized property

Refunds are possible in several cases:

1. Failure to file a petition for arrest within 48 hours;

2. The court denied the motion for arrest;

3. Cancellation of the arrest at the request of the owner;

4. Closing criminal proceedings or recognizing property as not being material evidence.

In order to return the property, the owner or defense counsel must file a motion with the investigating judge. If the court agrees, the property is returned immediately. It is important to properly prove that the object is not evidence or has no connection to the offense.

Restrictions on the handling of seized property

From the moment of actual seizure until the moment of return or arrest, the owner has no right to freely dispose of the property. For example, they cannot sell, donate or move it without the permission of the pre-trial investigation authority.

Violation of such restrictions may be grounds for prosecution or be considered as obstruction of the investigation.

Typical violations by law enforcement officers

In practice, cases often occur:

• seizure of property without a protocol;

• absence of a petition to the court for arrest;

• seizure of property that has nothing to do with the proceedings;

• refusal to return property without legal grounds.

In such situations, you should contact a lawyer. A defense lawyer will help you to draw up a statement correctly, appeal against the illegal actions of the investigator, file a complaint with the prosecutor's office or initiate a separate proceeding.

Court practice

Courts regularly side with owners in cases of illegal seizure. Most often, courts cancel arrests if the prosecution fails to prove that the property is evidence. The courts also point out that unmotivated delays in considering an arrest petition are a violation of human rights.

The judgment of the European Court of Human Rights in the case of Smirnov v. Russia states that the seizure of property without proper justification is a violation of Article 1 of Protocol No. 1 to the Convention.

Protection of the owner's rights

The rights of the owner of temporarily seized property can be protected by:

• appealing against unlawful actions or inaction of pre-trial investigation bodies;

• filing an application for the return of property;

• filing a complaint with the investigating judge;

• engaging a lawyer to file procedural documents.

It is important to act promptly, as deadlines are of great importance in criminal proceedings.

Conclusions.

The legal regime of temporarily seized property is clearly regulated by law. If the actions of law enforcement officers do not meet the established requirements, the owner has the full right to demand the return of his property and protect his interests in court. Timely legal advice can help avoid long-term restrictions and preserve property rights.