Repeated searches based on one court order are forbidden!
Subject of complaint: Investigation Department for Financial Investigations of the General Directorate of the State Fiscal Service in Kyiv City (Tax Police)
Complaint in brief: The company providing visa services addressed the Council. The company complained about unlawful actions of the Tax Police – law enforcers searched the Complainant twice, whereas they had a court permit only for one search.
Based on a court order, an investigator and other Tax Police officers legally got into the Complainant’s office for the first time and started the search. After spending some time there, all the law enforcers left the premises. They returned the next day to renew the search. However, they presented the same court order as the first time.
However, the Complainant objected to it – in his view, a court order allowed only one entry into the office, which had already been completed, as law enforcers conducted the search and left the premises.
Actions taken: The Council’s investigator analyzed case files and relevant legislation and concluded the Complainant was right. The second entry into the office that took place on another day couldn’t be considered authorized by a court and, therefore, was illegal. The Council wrote about it to the Tax Police and brought up the Complainant’s issue at the Expert Group meeting created based on Memorandum on Partnership and Cooperation between the Council and the SFS of Ukraine.
During the meeting, the government agency expressed an alternative approach to interpretation of the law. The Tax Police responded the Complainant’s case was a controversial issue having different practices. Therefore, it did not see any violations in the investigator’s actions.
However, being convinced of its legal position correctness, the Council did not give up. The Council’s investigator conducted an additional analysis of court judgements on this issue, including both investigating judges’ and appellate instance courts’ decisions. Everything pointed towards legitimacy of the Complainant's position.
Therefore, the issue was again brought under consideration at the Expert Group meeting. At the meeting the Council’s representative presented findings of an in-depth research as well as arguments in favor of the company. The Council asked to officially inform all the Tax Police authorities that one mustn’t conduct a repeated search based on one court order.
Result achieved: During the second Expert Group meeting, the Council managed to persuade the state authority. The Tax Police sent a directive to the heads of all branches of the Tax Police in oblasts, the City of Kiev and Large Taxpayers’ Office to be followed in their work. Taking the existing judicial practice into account, the document determined a re-entry into the dwelling or other possession of the person that was previously entered into based on the investigating judge’s order for a search as forbidden. The case was closed successfully.