How to protect your rights during a search?

Criminal Law
Semenenko Eugene
Law Services - How to protect your rights during a search?

The right to inviolability of the home is one of the basic personal rights of citizens. The Constitution of Ukraine (Article 30), the Code of Criminal Procedure (Article 13) and a number of international legal acts contain a rule according to the content of which – everyone is guaranteed the inviolability of the home.

various abuses during a search, taking advantage of the ignorance of persons in whose homes such a procedural action is carried out.

The question arises: how to prevent this?

Let’s see what you need to pay attention when conducting law enforcement searches of your home. First of all, it is worth remembering the following main points.

    1. Detailed acquaintance with the court decision on search. A court ruling on a search warrant is the sole basis for a search and allows entry into such housing only once (a new ruling is required for re-entry). Accordingly, the absence of such a decision makes it impossible to conduct a search.

The court’s decision must be presented to the person whose home is being searched, or to another adult present in the home, and a copy must be provided; in the absence of the person, a copy of the decision shall be left in a conspicuous place. 

In this aspect, we advise you to pay attention to the content of the court decision on:

    • validity of the decision (not more than 1 month from the date of the decision;
    • if the term has expired – the legal basis for the search has disappeared);
    • list of things, documents and persons to be found (the need for a clear definition of things, including their generic and individual characteristics, is also associated with the subsequent fate of such things, because if they were not included in the list of things for which permission is granted, acquire the status of temporarily withdrawn and the CPC has established a separate procedure for them). Seizure of things not provided for in the decision is a ground for appeal.

In addition, the search should be carried out at a time when the least harm is done to the person’s normal activities. For investigative actions, this is a period of time from 6 to 22 hours, at night – in exceptional cases.

The possibility of conducting a search without a court decision is provided only in exceptional cases: saving lives and property; persecution of persons; cessation of a life-threatening crime.

    1. Circle of participants. The investigator / prosecutor is the obligatory subject of the search. The victim, suspect, and other participants in the criminal proceedings may be invited, and specialists may also be involved. The presence of two witnesses is mandatory. Conceived – disinterested persons who are aware of the content of actions (can not be law enforcement, incapacitated, minors, persons in a state of intoxication, etc.).
    1. The need to enlist the legal support of a lawyer. The CPC stipulates that the admission of a lawyer or defense counsel must be carried out regardless of the stage of the investigative action. Of course, the involvement of a lawyer during a search is only a person’s right, but such actions will help to avoid abuse by law enforcement and ensure real protection of the rights and legitimate interests of the person. Failure to admit a lawyer will result in the inadmissibility of the evidence obtained during the search. Remember the rules of the search of the person – in this case, law enforcement officers have to wait 3 hours for the arrival of a lawyer.
    1. Mandatory audio and video recording by law enforcement. The relevant records are subsequently attached as annexes to the minutes. Recording the progress of the search is an additional guarantee to avoid violating your rights. Absence of such fixation – recognition of evidence inadmissible. You can also use the right to freely record the search.
    1. Familiarization with the search protocol before signing. The search report actually contains the result of the search. All information obtained during the search shall be entered in the search report; statements of persons present during the search.

What to do if the search report contains information that does not correspond to reality? In this case, you can state your comments and additions to the minutes before signing. You also have the right to refuse to sign the protocol – written explanations of the reasons for such refusal.

    1. The right to appeal. Any investigative action carried out in violation of the procedure or in violation of substantive law may be appealed. As a result, the evidence obtained as a result of such actions will be declared inadmissible by the court. We cannot do without the qualified help of the lawyers of our bar association in this matter.

    We hope the tips we provide help you minimize search losses and effectively challenge all law enforcement violations during the search.