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What to Do During a Search? Top 20 Advices of Lawyers

Home Blog What to Do During a Search? Top 20 Advices of Lawyers

What to Do During a Search? Top 20 Advices of Lawyers

07. 07. 2017

The law enforcement officers arrived to carry out a search.

  1. Keep calm and balanced. Try to treat the investigation activity as an ordinary matter. It is necessary for making informed and effective decisions and preventing emotional errors.
  2. Ask the officials to say their names, positions and show their official identity documents. Record these data (write down on a sheet of paper). Make sure that the names of the officials, who are going to conduct a search, are indicated in the court decision as names of officials authorized to conduct a search. In case of absence of their names in the court decision, you should request a resolution of the head of the pre-trial investigation body on the creation of a group of investigators/prosecutors (section 2 of Article 38, paragraph 1 of section 2 of Article 39 and section 1 of Article 236 of the Criminal Procedural Code (hereafter – CPC).
  3. Ask an official who calls himself a senior officer (investigator/prosecutor) to present other persons who are present during a search, namely, specialists, operational search activity staff and division of protection staff and to provide their identification documents and papers that confirms their authority.
  4. Check the data of the involved identifying witness (name, place of residence, etc.): request to provide you with a document certifying the identity and note the contact information. All this will be needed for further inquiry of identifying witnesses and verification of potential bias in the results of criminal proceedings or activity of law enforcement bodies (paragraphs 3-4 of section 7 of Article 223 of the CPC).
  5. Please indicate that you want to use the lawyer’s legal assistance (provide law enforcement officials with a copy of the legal aid agreement) and ask them not to start the search until your lawyer arrives. In the case, when the investigator/prosecutor admits that you do not have a right to have a lawyer, point out the provisions of par. 2 of section 1 of Art. 66 CPC of Ukraine (right of a witness for assistance of a lawyer), par. 3 section 3 of Art. 42 CPC of Ukraine (right of a suspect and accused to have, on his first demand counsel and consultation with him prior to the first interview) and the case-law of the European Court in the case of Shabelnik v. Ukraine (judgment of 17.02.2009). The European Court ruled: the right to legal aid arises depending on the special features of the proceeding even if the person is not officially detained as a suspect.
  6. If a lawyer of a centre for free legal is present at the search, inform the investigator/prosecutor that you refuse his services and provide a copy of the contract with your lawyer (the lawyer of the centre is not legally entitled to take part in the case, in which lawyer under the contract takes part).
  7. If they refuse to wait for your lawyer, receive prior to the search a copy of the decision of the investigating judge on the permission to conduct a search. Carefully check the actual data in the decision (correctness of the address, the name of the person to be searched, name and identification code in the companyregistry of the company to be searched and validity period of the decision). If you find out that the address in the search decision differs from the actual address or address is incorrect, note it in the protocol of the search, inform the investigator/prosecutor about it and draw attention of the identifying witnesses to this fact.
  8. Request the law enforcement officers to use technical means of recording the search and note the consent or refusal to your request. Conducting search without technical means of fixing entails the invalidity of the relevant procedural activity and the inadmissibility of the results obtained (section 1 of Article 6 and Article 107 of the CPC). However, the participants of procedural activity shall be warned about the intention to use the technical means of recording a search on the initiative of the investigator (section 2 of Article 107 of the CPC).
  9. If the law enforcement officers refuse to use the technical means of recording, turn on the video camera, voice recorder, arrange active visual observation of the actions of law enforcement officers and permanently capture all events and actions. Instantly send stored files online to your lawyer or a trusted person, if he or she for some reason is absent during the search, because electronic devices can be subsequently seized and data deleted. Organize such observation by other trusted persons during the search. Following these recommendations, pay attention to the general atmosphere during the search, the mood and behaviour of law enforcement officers in order to prevent conflict and use of force by law enforcement officers. Be sure to pay attention of the identifying witnesses to refusal of the law enforcement officers to use technical means of recording the investigation and make respective notes in the protocol of the search.
  10. A personal search may be conducted only by the decision of the investigator or the prosecutor and if there are sufficient reasons to believe that the person hides objects or documents of importance for the criminal proceedings. If the personal search has been conducted in the absence of two identifying witnesses or a person of the opposite sex, note this violation in the protocol (Art. 104, section 7 of Art. 223, section 5 of Art. 236 of the CPC).
  11. Demand polite communication and correct behavior. In your turn, do not act offensively towards law enforcement officers. Videos of hysterically aggressive behavior of investigator/prosecutor and persons who are searched look equally unfavorable in social media and YouTube.
  12. Keep track of every action of law enforcement officers. If they separate to different cabinets (rooms), arrange simultaneous visual observation with the help of colleagues, relatives or neighbors. Note that the search should not be accompanied by force, but two neutral identifying witnesses the both of which have to observe all actions of law enforcement officers. Therefore, the search should be done in each room one by one and not everywhere at one time. In addition, the persons who conduct the search and identifying witnesses must constantly stay together.
  13. Based on the content and volume of the wanted materials and documents in the decision of the investigating judge, consider their availability and that providing them is not a big difficulty and does not harm you, but in contrast eliminate the potentially negative consequences of investigation.
  14. Require the drafting of the protocol and providing it to you. Carefully examine the protocol after it is finished. Pay attention to filling all the fields in the form by the officials, as well as to indicating in the protocol a complete list of seized documents, materials and their detailed description. Enter all your statements, remarks and additions to the protocol: information on procedural violations, seized items (if not clearly described), damaged property, body injuries, absence of access to a lawyer, staying of identifying witnesses separately from officials who have conducted the search, etc. (Article 104 and section 8 of Article 236 of the CCP). REQUIRE to provide a second copy of the protocol (Article 9 and Article 236 of the CPC) and in case of refusal indicate it in the protocol.
  15. Do not sign any documents other than the search protocol.
  16. Do not answer the questions of the investigator and comment on the origin of money, documents and other subjects during the search and after it. Remember that in accordance with the provisions of Art. 63 of the Constitution of Ukraine and Art. 18 of the CPC you have a right not to answer the questions of the investigator/prosecutor and you shall not be held liable for this. In accordance with Art. 135 of the CPC, investigator/prosecutor may summon you for interrogation three days before the day you must appear on the summon (section 8 of Article 135 of the CPC). If after a search you are offered to go to talk with officers, tell them that you will come to them with a lawyer on the summon sent to you.
  17. If the investigator/prosecutor severely violates your rights and legitimate interests during the search and the rules for carrying out the investigation procedure mentioned above, please inform the police (call 102) by telephone or make an oral notification of a criminal offense committed, in particular under Art. 162 “Violation of security of residence” (Unlawful entry into residence or any other property of a person, or unlawful examination or search thereof). If you cannot do this during the search, do so after the search is finished. Prior consulting with your lawyer, be sure to file a written complain on a criminal offense in accordance with Art. 214 of the CCP to the Prosecutor’s Office (before the launch of the State Bureau of Investigations).
  18. Report the events on the respective phone numbers of “trust” and “hot lines”: Cabinet of Ministers (0800507309), National Police of Ukraine (0800500202, (044) 254-91-02), General Prosecutor’s Office (044) 200-76-24), National Anti-Corruption Bureau (0-800-503-200), Ministry of Internal Affairs (044) 254-94-94), Sate Fiscal Service (service “Pulse”(044) 284-00-07), etc.
  19. Take a note of contact details of third parties who witnessed illegal investigation activities and agree with them on objective testimony/explanations.
  20. All persons present at a search should follow this algorithm.
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