Searches: A Tool for Collecting Evidence or an Instrument of Pressure

In 2025, more than 100,000 procedural documents related to searches were submitted to courts. Publicly available data include only judicial statistics on motions requesting authorisation for a search, which are considered by investigating judges as part of preliminary (ex-ante) judicial control. In 2024, law enforcement bodies submitted 93,991 such motions, of which 7,239 were rejected (7.7%). For comparison, in 2020, there were 97,367 motions and 15,310 refusals (15.7%). Even in 2022, despite a lower number of requests and the partial authorisation of searches by prosecutors under Article 615 of the CPC of Ukraine, the refusal rate was 18.8%. The downward trend in refusals persists — judges are granting an increasing number of motions.

This may be explained by improved substantiation of the motions. However, there is also another explanation: in cases where the prospect of obtaining judicial authorisation is doubtful, investigators may resort to an urgent search followed by the subsequent legalisation of its results.

Regular media reports about searches create the impression that their number is increasing. However, the problem lies not only in the figures. Searches have become more visible due to the high-profile nature of the proceedings and the strong public demand for justice. In public discourse, the very fact of a search is often perceived as evidence of guilt, although it is merely an instrument for collecting evidence.

Whether the number of searches has indeed increased, whether urgency is gradually becoming the rule and how to maintain a balance between the effectiveness of investigations and human rights — these are the questions we attempt to address.

Searches: How They Work — and Why

A search is an investigative action aimed at collecting evidence in criminal proceedings under strict judicial control. It has a clearly defined object of search — the identification and recording of information about the circumstances of a criminal offence, the discovery of the instrument used to commit the offence or property obtained as a result of its commission (evidence) and other relevant materials. This is established in the Criminal Procedure Code of Ukraine (CPC of Ukraine).

However, in practice, searches often go far beyond procedural needs and may be unlawful. In some cases, they are part of political stories — pressure on opponents or the discrediting of civil society actors or representatives of the authorities, when investigative actions turn into a public ‘show’. At times, searches become part of unlawful practices by law enforcement bodies: intimidation of businesses, pressure on competitors, corrupt ‘raids’, protection rackets and other abuses. In such cases, a search ceases to be an instrument for collecting evidence and instead becomes a tool of arbitrariness.

If a search is authorised by an investigating judge, the investigator and the prosecutor are obliged to substantiate the grounds for conducting it. However, the Constitution of Ukraine and the CPC of Ukraine allow, in exceptional cases, for an urgent search: when the investigator believes that delay would lead to the loss of items or documents, the search may be conducted without a prior ruling of the investigating judge. The aim is to ‘preserve property’, which judicial practice interprets to include physical evidence.

Media coverage may create the impression that in 2025 this practice has not been avoided by NABU, the SBI or other bodies. In my view, the perception of increasing abuses during searches may be primarily linked to the more active use of urgent searches and their public exposure. In most cases, it is precisely these searches that generate additional resonance, since they are conducted without prior judicial authorisation and are subsequently subject to review within the framework of ex post judicial control.

To claim arbitrariness, it is necessary to understand how many urgent searches were ultimately not validated by the court and how often the evidence obtained during them was declared inadmissible. Due to the absence of statistical data, society does not have a complete picture, which creates space for assumptions and generalisations. Publicly available data do not include the number of urgent searches conducted by each pre-trial investigation body separately (SBI, NABU, the National Police, the SSU, the ESBU). Negative perceptions are also reinforced by the sometimes-aggressive behaviour of certain representatives of law enforcement bodies during searches (humiliation, attempts to plant evidence, gathering and leaking information about individuals and other practices). According to information published by ‘Dzerkalo Tyzhnia’, NABU has only recently begun to keep statistics on urgent searches, which currently constitute 2% of the total number; other bodies do not maintain such statistics.

Searches conducted by the SBI at the premises of the HQCJ and at the residence of the then Deputy Head of the Commission in 2025 attracted considerable public attention. Formally, these actions were carried out within criminal proceedings. However, beyond the procedural framework, deeper institutional problems became apparent: the HQCJ stated that it regarded these actions as pressure. The events coincided with the intensification of the qualification assessment of judges of the liquidated District Administrative Court of Kyiv and the Pecherskyi District Court of Kyiv, which at the same time were considering SBI motions concerning searches and access to documents. The boundary between law enforcement and pressure proved to be dangerously thin.

Recently, another high-profile scandal unfolded around the ‘Yabko’ chain of stores, where representatives of the ESBU carried out searches. During these actions, allegedly smuggled equipment worth more than USD 100 million could have been seized. Company representatives speak of ‘signs of a commissioned campaign’, while the ESBU claims that its detectives conducted a large-scale operation aimed at de-shadowing the electronics and technology market.

These are only a few cases that received media coverage. However, media visibility does not provide an understanding of the scale of the use of this instrument or allow an objective assessment of its effectiveness or possible abuses. Ultimately, the media often portray urgent searches as potential abuse. Yet the mere fact that a search is conducted without a prior judicial ruling does not automatically indicate a violation. The key issue is whether the mechanism for the subsequent validation of the search was followed and whether judicial control over the use of this instrument was properly exercised.

Judicial Oversight — the Weakest Link?

The weakest point in the entire issue of urgent searches is judicial oversight. It takes place post factum: urgently, but no later than within 24 hours after the search, the investigator must notify the judge, who then verifies its legality. At the moment of review, the search has already taken place. If the court recognises the actions as unlawful, the evidence obtained may be declared inadmissible. However, the damage has already been done: business operations may have been halted and reputations damaged — and this cannot be undone. Moreover, cases where evidence is declared inadmissible are rare — the ‘legalisation’ of the search for the prosecution is usually successful.

The weakness of judicial oversight has fundamental causes. The criteria for authorising a search (‘sufficient grounds’, ‘likelihood of finding evidence’) belong to evaluative concepts. These criteria cannot be exhaustively defined in legislation given the wide variety of real-life situations where an urgent search may be necessary. Such categories should instead be clarified through judicial practice. Unfortunately, that practice remains inconsistent.

As a result, judges often approach the assessment of the grounds for an urgent search formally, and motions are granted without in-depth analysis. Defence counsels accuse courts of ‘playing along’ with the prosecution and of lacking professionalism, arguing that judicial oversight has a biased character. The reasons lie not only in possible external or internal pressure but also in the systemic overload of judges. Judges themselves note that the greatest threat to impartiality is the lack of time to examine the materials of the pre-trial investigation. Excessive workload forces them to rely on personal sympathies and prior working relationships with participants in the proceedings formed in earlier cases.

If chronic time constraints are combined with a heavy workload, the result is a situation in which motions for searches are granted almost automatically — not because judges are convinced of their substantiation but because of routine and mutual trust. Prosecutors bring materials daily, which usually do not contain obvious procedural errors, and judges rarely can examine each case critically.

This situation is well explained by the theory of the ‘courtroom workgroup’, developed by American sociologists of law in the 1960s–1970s. In criminal proceedings, stable ‘working groups’ are formed: the investigator, the prosecutor and the same investigating judge who interact daily. They know each other and have developed a working relationship. In this model, the defence counsel is a variable figure without a permanent institutional presence. The lack of independence, combined with bias arising from excessive workload, contributes to the formation of a prosecutorial bias.

Under martial law, the number of refusals to grant motions for searches decreases, while urgent searches are more easily validated by the court. At the same time, the judicial system remains in a difficult condition: staff shortages, uneven workload, changes in jurisdiction due to the war and constant postponements of hearings because of air raid alerts. In such circumstances, a formalistic approach to judicial oversight becomes a systemic risk.

Is There an Effective Solution?

It is unlikely that we will be able to overcome sociological patterns — ‘working groups’ will always emerge as long as participants in criminal proceedings interact daily. The human factor, cognitive bias and the desire to simplify work are inherent elements of professional activity. Nevertheless, their impact can be minimised.

First and foremost — through legislative amendments, by providing for the participation of the person whose premises were searched during the ex-post validation of the search. The European Court of Human Rights pointed to the necessity of such a measure in the case Korniyets and Others v. Ukraine (2025). The Court found ineffective investigation of complaints, unjustified interference with private life and the absence of effective remedies. The ECtHR emphasised that an urgent search is an exception rather than the rule and must comply with the criteria of ‘in accordance with the law’, ‘necessary in a democratic society’ and ‘proportionality’. Compliance with these standards would improve the procedural dimension of such cases but would not eliminate the problem of pressure entirely — its roots lie not only in procedure but also in motives and in the system itself.

Another approach would be to narrow the grounds for conducting an urgent search. Such an attempt has already been made: by Law No. 4555-IX of 23 July 2025 the relevant grounds were narrowed by excluding certain economic and official offences, including corruption offences. However, due to risks for proceedings conducted by NABU and SAPO, only a week later Law No. 4560-IX restored Part 3 of Article 233 of the CPC of Ukraine to its previous wording. At the same time, new initiatives with similar proposals continue to appear in Parliament.

Equally important is changing public attitudes towards the presumption of innocence. A search of a flat or office does not automatically mean ‘guilty’. The same applies to the notification of suspicion and the registration of information in the URPTI. Yet in the public sphere, a search is often perceived as moral satisfaction when it concerns ‘corrupt officials’, and as a ‘betrayal’ when investigative actions are carried out with regard to journalists or service members. Such emotional logic has nothing to do with criminal procedure. A search is merely an instrument, and it is the court that must ensure a balanced application of this instrument.

It is also necessary to address the problem of the excessive workload of courts and to strengthen judicial oversight. Investigating judges should more carefully assess the materials of the pre-trial investigation, especially in cases of urgent searches.

Ultimately, clearer criteria for urgency must be developed in judicial practice, and the Supreme Court should be engaged in shaping approaches to the most serious interferences with human rights, particularly the right to privacy.

Such steps could change the situation: investigators would have less incentive to apply to an investigating judge for a search without a genuine intention to obtain evidence, while urgent searches would become the exception rather than common practice.

A search is neither good nor bad. It is an instrument. However, in a system with weak judicial oversight and vague criteria for urgency, any instrument risks turning into a means of pressure. Therefore, the issue is not the number of searches but whether the system can guarantee that the exception does not become the rule and that evidence-gathering does not replace justice.