EMERGENCY SEARCH: GROUNDS FOR CONDUCTING A SEARCH AND INTERPRETATION ISSUES

Abstract

The article provides a systematic theoretical and legal analysis of criminal procedural legislation, scholarly approaches, and judicial practice concerning the determination and interpretation of the grounds for conducting an urgent search of a dwelling or other premises belonging to a person. Attention is drawn to the importance and complexity of safeguarding human rights, which may be violated during the unlawful conduct of a search for a dwelling or other premises.

It is substantiated that, within criminal procedural legislation, the concept of «property» should have an autonomous interpretation and should not be equated with the civil law understanding of this term. It is determined that, in criminal proceedings, the term «property» should be understood as things, documents, money, other valuables, and material objects, including items, instruments, and means used in the commission of a criminal offense, which have or may have the characteristics of physical evidence. It is proposed to supplement the provisions of Part 1 of Article 3 of the Criminal Procedure Code of Ukraine with the corresponding interpretation.

It is established that the conduct of a search of a dwelling or other premises without the authorization of an investigating judge or court, on the grounds of the necessity to preserve property that may constitute physical evidence, shall be lawful, provided that any delay in conducting such a search would result in the destruction, damage, or loss of such property. A safeguard for the legality of conducting an urgent search is judicial control, which in such cases is exercised ex-post facto. The fact of urgency of entry must be confirmed by factual data available in the criminal proceedings, containing information about the threat of destruction or loss of property and providing grounds to consider such a threat as real.

It is emphasized that the corresponding legal position, set forth in the decision of the Joint Chamber of the Criminal Cassation Court of the Supreme Court dated 7 October 2024, should put an end to scholarly debates and ensure a unified approach to the application of law in addressing the legality of conducting an urgent search of a dwelling or other premises on the grounds of the need to «preserve property».