Problems of the procedural status of property temporarily seized during a search

Abstract

Introduction. In the aspect of both legislative regulation and practical implementation of such a means of security as temporary seizure of property, it is possible to state a violation of certain fundamental principles - legal certainty, protection against arbitrariness, and observance of human rights. This issue is monitored in terms of the unregulated procedural status of temporarily seized property and insufficient regulation of the legal basis for obtaining such property, that is, the lack of "legitimization" of the corresponding seizure by a special entity. The purpose of the paper is to analyze the essential issues of the legal status of temporarily confiscated property according to the current criminal procedural legislation, the consequences of leveling such a procedural concept, as well as to investigate the guarantees of the rights of the person whose property is confiscated and to identify possible means of overcoming the relevant regulatory gaps. Results. It is noted that a number of problematic issues arise during the application of the relevant security measure, which may at least lead to a violation of the inviolability of a person's property rights. The fundamental and essential basic principles on which the improvement of the institute of temporarily seized property should be based are characterized. In particular, conventional, national and branch principles. Analyzed decisions of the ECtHR. It was established that the things obtained as a result of the search and not specified in the decision of the investigating judge, were left with a procedural status due to the lack of a legal basis, namely a court decision for their receipt. This situation persists with the relevant property until the investigator, the prosecutor submits a petition for seizure of the relevant temporarily seized property to the investigating judge. It is noted that the property of a person, which is important in the context of criminal proceedings, from the time of its acquisition by authorized subjects during the search, until the decision on the seizure of temporarily seized property is made, is in a "procedural vacuum status". Procedural guarantees of the rights of a person whose property is temporarily seized have been analyzed. Conclusions. The author notes the need for further improvement of the institute of temporarily seized property.