Search of an official office does not require a judge's permission as for a residence – court

The Supreme Court pointed out that the requirement to obtain permission for a search in the absence of the person's voluntary consent applies only to a residence or other possession of the person, which follows from the interpretation of Articles 233 and 235 of the Criminal Procedure Code. These legal provisions protect a person from unjustified interference by state authorities into the sphere of their privacy, which the person is entitled to expect in their residence or other possession.

An official office by itself cannot be considered a residence or other possession, access to which is exclusively determined by its owner.

An official premises is provided for the performance of official duties, and access to it is regulated by other rules based on considerations unrelated to the protection of the privacy of the persons to whom such official premises are provided.

In the case, the courts of first and appellate instances found the person guilty under Part 3 of Article 368 of the Criminal Code of Ukraine. In the cassation appeal, the defense argued that the search of the official office was conducted illegally — without a judge's warrant and without the consent of the premises' owner.

However, the Cassation Criminal Court of the Supreme Court left the decisions of the previous instances unchanged.

The panel of judges of the Cassation Criminal Court indicated that the appellate court reached a convincing conclusion that the guarantees against interference in private life provided by the Constitution of Ukraine and the Criminal Procedure Code did not apply to the defendant's official office.

As a general rule, inspection or search of a residence or other possession of a person is carried out based on a judge's warrant. An investigator, inquirer, or prosecutor has the right to enter the residence or other possession of a person before such a warrant is issued only in urgent cases related to saving lives and property or the immediate pursuit of persons suspected of committing a criminal offense. In such cases, the prosecutor, investigator, or inquirer, with the prosecutor's consent, is obliged to immediately apply to the judge with a motion for conducting a search after such actions.

The requirement to obtain permission for a search, in the absence of the person's voluntary consent, applies only to a residence or other possession of the person, which follows from the interpretation of Articles 233 and 235 of the Criminal Procedure Code. These legal provisions protect a person from unjustified interference by state authorities into the sphere of their privacy, which the person is entitled to expect in their residence or other possession.

An official office by itself cannot be considered a residence or other possession, access to which is exclusively determined by its owner. An official premises is provided for the performance of official duties, and access to it is regulated by other rules based on considerations unrelated to the protection of the privacy of the persons to whom such official premises are provided.

Resolution of the panel of judges of the Second Judicial Chamber of the Cassation Criminal Court of the Supreme Court dated April 2 in case No. 404/2286/21 (proceeding No. 51-2758km25).

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