RESCUE OF PROPERTY AS ONE OF THE URGENT CASES OF ENTERING A PERSON'S HOME OR OTHER PROPERTY WITHOUT AN INVESTIGATING JUDGE'S ORDER

Abstract

It is established that the Supreme Court's case law, as well as scientific research, does not provide an unambiguous answer to the question whether «rescue of property», which is provided by the legislator as one of the urgent cases of entering a person's home or other property before the investigating judge’s ruling (Article 233(3) of the CPC of Ukraine), covers the possibility of detection and seizure of potential material evidence. The authors emphasise the importance of distinguishing between the police measure provided for by the Law of Ukraine on the National Police and the ‘entry’ into a person's home or other property regulated by Article 233(3) of the CPC of Ukraine. The authors argue that in the procedural situation under consideration, given the logical interconnection of the components of Article 233(3) of the CPC of Ukraine with the tasks of criminal proceedings, the pre-trial investigation body and the prosecutor may conduct an urgent search prior to the issuance of the investigating judge's ruling and find and seize objects which may be material evidence. It is necessary to establish and confirm by the court the proportionality of such procedural activity upon its completion to the legitimate purpose. The authors summarise that the need to identify and record the circumstances of a criminal offence, which arose after breaking into a person's home or other property, in situations of urgent cases, can be realised by pre-trial investigation authorities and the prosecutor during the inspection. The authors continue the previously initiated scientific discussion on the existing ‘discrepancy of terminology’ in the legislative wording, since part Article 233(3) of the CPC of Ukraine provides for the destruction of the obtained ‘information’, and Article 255(1) of the CPC of Ukraine provides for the destruction of ‘information, things and documents’. If there were no grounds for entering a person's home or other property, as well as no grounds for conducting an emergency search, the evidence obtained as a result of such a search is inadmissible. The violated rights of a person must be restored, and those responsible for their violation must be brought to the appropriate type of liability.