The vast majority of court rulings authorizing a search allow the investigator to seize documents, electronic media, mobile phones, laptops and computers, as well as other items that may be relevant to the pre-trial investigation of a criminal case.
Of course, using this wording, investigators very often take away personal belongings (money, valuables), regardless of whether these things and objects are relevant to the case.
Requirements for such an investigative action as a search are set out in Article 223 of the CPC, described in more detail in the material on our website. Here it is necessary to dwell on how significant are the consequences of such actions on the part of the prosecution.
Thus, in Panteleenko v. Ukraine (application 11901/02), the European Court of Human Rights found a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms during a search. The applicant complained that the unlawful search of his office and the disclosure of confidential information about his mental health and psychiatric treatment at the hearing had violated the rights guaranteed to him by the above-mentioned article of the Convention. The court ruled that the interference had not been carried out “in accordance with the law”.
In Ernst and Others v. Belgium (application 33400/96), the ECtHR also found a violation of Article 8 of the Convention. The Serious Crimes Investigation Department searched four journalists’ apartments. The applicants complained that they had not been provided with the necessary information as to the grounds, purpose and scope of the measures ordered by the investigating judge. The court found that the searches did not meet the legitimate aim pursued.
Very often, searches are conducted on the lawyers themselves, in order to obtain evidence against the company or person – the client of these lawyers.
In Andre and Others v. France (application no. 18603/03), the ECtHR ruled that there had been a violation of Article 8 of the Convention: the search and seizure had been disproportionate to the purpose, namely the prevention of riots and crime. Tax authorities searched lawyers to find evidence against a client company suspected of tax evasion. Several documents were seized, including handwritten notes and a commentary document handwritten by the first applicant. As these were the lawyer’s personal documents, which were accordingly protected by the principle of absolute professional secrecy and could not be seized, the applicants complained, inter alia, of a breach of professional confidentiality and a lack of an effective remedy by which they could challenge the lawfulness of searches and seizures. their offices.
In Golovan v. Ukraine (application no. 41716/06), the Court also, within the meaning of Article 8 of the Convention, concluded that the interference had not been “provided for by law”. The premises used by the applicant for the purpose of advocacy were searched on the basis of the investigator’s decision and documents related to the applicant’s execution of the client’s instructions were seized. The specified resolution of the investigator did not contain the circumstances allowing carrying out search without the sanction of court. The court concluded that the impugned measures had damaged the applicant’s professional life and constituted an interference with his right to respect for his “private life” and “home”.
And there are many more such decisions of the European Court of Human Rights.
Today in Ukraine there are practically no criminal proceedings in which such an investigative action as a search is not carried out, regardless of whether there is a need for it or not. Often the purpose of a search has nothing to do with the subject of the pre-trial investigation and then the question arises: does such a search meet the legitimate purpose?
These decisions of the ECtHR on non-compliance with the law during the search, among other things, entail the inadmissibility of evidence obtained as a result of such a violation.
Any search must be carried out “in accordance with the law”, pursue a legitimate aim and be proportionate. But practice shows that the limit is exceeded.
