Who May Conduct a Search and How to Check Authority

What the law provides

Articles 37 and 39 of the Criminal Procedure Code of Ukraine distinguish the organizational decisions made in a particular criminal proceeding. The head of the relevant prosecution office assigns a prosecutor or group of prosecutors, while the head of the investigative body assigns an investigator or group of investigators. An official identity card therefore confirms identity and position but does not by itself establish procedural authority in the particular proceeding.

Article 235 CPC requires the search warrant to identify the prosecutor or investigator who applied for it. That identifies the applicant rather than creating a closed list of future executors. Article 236(1) CPC establishes the specific rule: the warrant may be executed by an investigator or prosecutor. Participants and specialists may be invited to assist, and defense counsel or another lawyer with confirmed authority must be admitted to the search location at any stage.

Article 40 permits an investigator to conduct investigative actions and instruct operational units to conduct them in cases established by the CPC. Under Article 41, operational units generally act on written instructions and may not initiate procedural actions on their own. The Supreme Court has explained how these general provisions interact with the specific rule in Article 236 governing execution of a search warrant.

Before execution starts, the warrant must be shown to the occupier or another person present and a copy supplied. The CPC does not expressly require the appointment decision for the investigator or group to be handed over at the premises. A person may ask to see it or request its details, but counsel often completes the authority check later against the case file.

Role matrix during a search

Step-by-step action plan

What follows from case law

In its judgment of 6 December 2021 in case No. 663/820/15-k, proceeding No. 51-2075kmo20, the Joint Chamber of the Criminal Cassation Court applied a systematic reading of Articles 40, 235 and 236 CPC. On the facts, a senior operational officer searched the home without an investigator being present. The Joint Chamber concluded that execution is entrusted personally to an investigator or prosecutor and cannot be delegated to an operational unit.

That does not mean every possible executor must be named in the warrant. In its judgment of 5 July 2023 in case No. 335/4728/19, proceeding No. 51-186km19, the Third Chamber confirmed that a properly assigned member of the investigator group could conduct the search even though another investigator had applied. In its judgment of 3 October 2023 in case No. 487/5033/18, proceeding No. 51-3974km19, the First Chamber separately explained that operational officers may provide organizational assistance where the search is conducted by an investigator with a prosecutor and other participants present.

A different boundary appears in the Third Chamber judgment of 30 October 2023 in case No. 759/23184/20, proceeding No. 51-5026km23. The instruction given to one investigator did not establish authority for other investigators, and no investigator-group assignment documents were in the file. On the facts established in that case, the Court agreed that evidence obtained by those investigators could not be treated as admissible.

These judgments do not create an automatic rule for every operational officer’s presence or every name discrepancy. Assessment requires comparison of the warrant, investigator and prosecutor assignment decisions, protocol, continuous video and each person’s actual role.

How to word a protocol comment

Record an observable fact rather than a final legal conclusion. For example: “Please record that at 09:42 the search of the office, opening of the cabinet and seizure of the laptop were directed by a person who identified himself as an operational officer; my request to identify the authorized investigator and basis for the officer’s participation received no answer.” A final authority assessment should follow review of the documents.

Common mistakes

What to do after the search

Give counsel the warrant copy, protocol, inventory, video and list of everyone present. When the case file becomes available, check the decisions assigning the investigator or group, prosecutor or group, any written instructions, protocol signatures and the complete search recording. Only then can counsel responsibly decide whether to challenge admissibility or use another procedural remedy.