The article “Search and its legal basis” is available on the Forbes Latvia website

Increasingly, we can read and hear the news of countless searches. In some criminal proceedings, several dozen searches are carried out in one day, which the investigating authorities try to position in the media as some sort of records and significant achievements.

However, these statements and statements do not indicate or explain that the number of these large-scale searches is directly linked to serious human rights violations to the same extent. It can be concluded that the investigating authorities, with their public statements, are proud of the fact that human rights were significantly restricted and have succeeded in doing so to a very significant extent in a particular criminal proceeding. The question arises! How legitimate and justified are these searches and has the substantial violation of human rights caused by objective necessity or it was a record-breaking and demonstration of power?

When reviewing several publications on searches, it is difficult to find an explanation from the investigating authorities as to what a search really is, what its meaning and legal basis are. In those circumstances, it must also be borne in mind that, in criminal proceedings, there are not a few cases in which the evidence obtained during the search cannot be used in evidence at all, since the search itself was unlawful.

It is important to pay attention to the fact that the publications of the investigating authorities and statements on large-scale violations of human rights during the searches appear while the criminal case is registered by the investigating authority, but it should be recognized that the society is not publicly informed about the court's opinion on this search already at the moment of trial.

In order to provide an insight into what a search is and to provide information on the most common situations, in this article we will look at the term search in accordance with the law and case law, and set out observations from three different situations and judgments where this investigation was not justified. News of this nature is rarely readable in publications.

In order to determine the legal basis for a search, it is first important to define what the investigative activity is - a search. For the purposes of Section 138, Paragraph one of the Criminal Procedure Law, investigative actions are procedural actions that are directed toward the acquisition of information or the examination of already acquired information in specific criminal proceedings. It should be noted that investigative actions can only be taken after the initiation of criminal proceedings, and in some cases, specific investigative actions may not be taken at all. The purpose of the investigative activity is to obtain information or to verify information already obtained in the relevant criminal proceedings, and they are separated from the set of criminal procedural activities into a separate group because they have the same procedural task.[1]

Section 179, Paragraph one of the Criminal Procedure Law provides that a search is an investigative action whose content is the search by force of premises, terrain, vehicles, and individual persons for the purpose of finding and removing the object being sought, if there are reasonable grounds to believe that the object being sought is located in the site of the search. In its turn, Section 179, Paragraph two of the Criminal Procedure Law stipulates that a search shall be conducted for the purpose of finding objects, documents, corpses, or persons being sought that are significant in criminal proceedings. Searches have a high degree of interference with a person's life, which thus affects the person's right to privacy, the inviolability of property and the protection of places inaccessible to the public.[2] In this context, it must be borne in mind that the right to respect for private and family life is also guaranteed by Article 8 of the European Convention on Human Rights.[3]

A search shall be performed if it is necessary to search for the object to be seized and it is not located in a publicly accessible place, as well as in cases where a person refuses to voluntarily extradite an object in respect of which seizure is made in accordance with Section 188 of the Criminal Procedure Law. The person conducting the proceedings (investigator), when making a decision regarding a search, in accordance with Section 180 of the Criminal Procedure Law, must take into account the substantiation of the facts on the basis of which the search is performed. Given that the search is possible with the sanction of the investigating judge or with the consent of the prosecutor as a matter of urgency, the reasons for the search must be legitimate. The investigator must substantiate the need for the search, as well as the conclusions that can be drawn from these facts, the importance of the interests affected by the search and the importance of the possible outcome of the search in the process of proving it.[4]

The content of the search is the forced search of the premises, the territory, the vehicle and persons and the seizure of the objects necessary for the criminal proceedings. It is the condition of a forced search that distinguishes this investigative activity from other investigative activities, within the framework of which the evidence necessary for the criminal proceedings is also established and seized. The significance of these circumstances is particularly important, as searches are inseparable from other investigative activities, such as seizures and inspections, and are characterized by a much more serious violation of human rights.

Thus, the purpose of a search is to find and seize the object of the search. Although this seems self-evident, there are more and more cases when the search is carried out not in order to find the object sought, but in order to “rummage” into the personal belongings and find something that has nothing to do with the criminal proceedings under investigation, but creates a well-founded reason to subject a person to examinations of a completely different nature, to apply significant restrictions and to make allegations of an absurd nature against a person.

In these circumstances, the question arises as to whether such an approach is correct and permissible. It must be admitted that in several cases contradictory circumstances arise - the investigating judge has allowed the search, but when a specific criminal case is later tried in court, another judge declares this search and the evidence obtained therein invalid. As it follows from the Criminal Procedure Law, a search is carried out in order to find the objects necessary for the specific criminal proceedings - objects, documents, corpses and wanted living persons. The search cannot be done with the aim: "for sure we will find at least something worthwhile there." When searching, the objects or range of objects to be searched for must be clear and understandable. Moreover, a search that is not aimed at finding a specific object, defining it with the term "and other objects and things" is not allowed. In accordance with Sections 180 and 182 of the Criminal Procedure Law, the decision regarding the search must specify the indications regarding the object sought, as well as the course of the search and the amount of seized objects.[5]

A search may be carried out only if there are sufficient grounds to believe that the object sought is in the particular place of the search, and this is a prerequisite for the search. From the latter, questions arise as to what is this sufficient reason to believe that the object sought is located in a person's house, vehicle or elsewhere? When deciding on a search, it must be ensured that information is available in the case file that the object or circle of objects is located in the place to be searched. It is not sufficient to make an unfounded presumption that there is possible evidence in a particular place, as this creates a situation where the investigator creates a subjective assumption that immediately leads to a real violation of human rights. In circumstances of such kind, it must be borne in mind that, in the performance of their duties, a number of officials have a real opportunity to carry out searches, both for personal retaliation and because of lobbying, for example, in the interests of an entrepreneur, politics and political party.

Pursuant to Section 180, Paragraph one of the Criminal Procedure Law, a search shall be conducted with a decision of an investigating judge or a court decision. An investigating judge shall take a decision based on a proposal of the person directing the proceedings and materials attached thereto. Although the legislator has clearly indicated the obligation of the person conducting the proceedings to attach materials to the proposal to conduct a search, the legislator has not provided for and specified the list of these materials. In addition, in several of the cases investigated, this set of attached materials is limited to the decision to initiate criminal proceedings. If a police officer's report is attached to this decision to initiate criminal proceedings, there seems to be no doubt about the need for a search, but it is clear to anyone that such a set of documents can be described as a subjective opinion of a police officer, without any indication of objectivity. It seems only logical that the person conducting the proceedings should enclose documents in the annexe substantiating and confirming what is stated in the search proposal, including information that the object is in a high probability location, but practice indicates otherwise. It is subjective for the person conducting the proceedings to decide which documents to attach to the search request. The subjective assessment gives rise to numerous searches without objective justification for the seizure of the object or evidence specified in the search decision, thus causing significant harm and infringement of rights to the person.

There have also been frequent cases where the place to be searched is the person's actual place of residence, but in these circumstances, it is necessary to assess how the person's actual place of residence is determined in practice. The notion of "actual place of residence" gives rise to an objective reason for various speculations and in several cases the motivation for such a place of actual residence is illegible.

Among the materials studied, there is a case in which a person in 2021 made a complaint about the unreasonability and illegality of the decision to conduct a search. In this situation, the search was carried out in an urgent case on the basis of Section 180, Paragraph three of the Criminal Procedure Law, which stipulates that in urgent cases where objects or documents sought may be destroyed, concealed or damaged, or by a decision of the person conducting the proceedings, if the decision is made by an investigator, then the search shall be performed with the consent of the prosecutor. In the present case, the prosecutor, agreeing with the investigator’s decision, had not assessed the validity of the search of the property of a third party, as this property of the third party was not the actual residence of the suspect. In the complaint against the search warrant, the defense counsel stated that the fact that the suspect had visited his acquaintance or a third party did not mean that the suspect lives there. Such a conclusion or subjective assessment of the investigator suggests that when a person visits a person, his or her place of residence may be considered to be the other person's actual place of residence only because the person has been there. The above allegations of the investigator cast doubt on a person's impartiality and ability to perform his or her direct duties properly, as their reasoning led to a search of a third party, thus unlawfully interfering with that person's privacy and damaging the third party's property. Such actions constitute a significant procedural violation and give a person every right to apply to the European Court of Human Rights.[6]

Moreover, in such case, in which the search is manifestly carried out in an inappropriate place, leads to the conclusion that the search is an unlawful perceived omission.

Although a search may be carried out in the course of an investigation of any criminal offense, nevertheless a careful assessment of whether, in the particular circumstances, it is really necessary and proportionate to carry out this procedural step, is required. It is important to assess whether it complies with the prohibition to unjustifiably interfere in a person's life specified in Section 1 of the Criminal Procedure Law. Increasingly, these limits are not being respected and violated directly by investigators. Article 8 of the European Convention on Human Rights also enshrines the right to respect for private and family life. Sometimes it seems that these human rights exist somewhere in Europe, but not in Latvia. It must be admitted that such circumstances do not promote legal understanding of human rights in Latvia, and the possibility of conducting searches on the subjective motives of an investigator is incompatible with the meaning and essence of regulatory enactments.

In accordance with the first paragraph of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to respect for his private and family life, his home and his correspondence. The second paragraph of this article supplements the above, without prejudice to the fact that public authorities may not prevent anyone from enjoying these rights, except in cases provided for by law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In one of the cases investigated, the applicant complained to the ECtHR on 2 November 2012 that there had been a violation of Article 8 of the Convention, stating that during a search of his residence, the State police officers had seized the applicant's computer, which contained information about his clients, to whom he had provided legal assistance as a sworn advocate. The ECtHR first assessed the situation on the merits, noting that the acquisition of electronic data containing information on the sworn advocate-client relationship constitutes an interference with the right to the inviolability of correspondence. It is important to note that the ECtHR stated that correspondence between a sworn advocate and clients is considered privileged and has increased protection from interference. The seized computer also contained other information about the applicant's files and visits of online websites, therefore the ECtHR considers that the applicant's right to privacy has also been infringed.

The ECtHR noted that Article 8 of the Convention does not prohibit public authorities from conducting searches of the offices of legal service providers or of the places of residence of lawyers and sworn advocates, but in such cases, it is essential to ensure effective procedural safeguards. The ECtHR added that in the event of such interference, the following elements are relevant: whether the search was authorized by a judge, whether the judge's decision identified legitimate suspicions specifically against the legal aid provider, whether the scope of the judge's decision was sufficiently precise, and whether the search itself During this time, it is possible to provide such procedural protection guarantees that would allow maintaining the secrecy of the client's-sworn advocate's professional activity and preventing possible arbitrariness of the State Police employees. The Court stated in that judgment that, in the practice of other countries, independent assessors are involved in such cases, who may identify material covered by the sworn advocate's professional secrecy which is not of a probative nature in the criminal proceedings under investigation, independently from the investigators. In addition, the ECtHR noted that it is also possible to make copies of discs of electronic devices, which are sealed in the person's presence and then handed over to the investigating judge. In this way, content filtering and control is performed, which helps to prevent the leakage of privileged and non-specific information related to criminal proceedings.

In the light of the above, the ECtHR concluded that in the present case the applicant did not have access to procedural safeguards for the protection of the sworn advocate's correspondence with the client and other confidential information, and he was denied access to all private information on his tablet for an indefinite period, thus interfering with the human right to privacy and correspondence was disproportionate and there has been a violation of Article 8 of the Convention.[7]

The situation described above justifies the importance of proportionality in achieving a legitimate aim, and the reasoning provided by the court recalls how carefully it must be assessed whether the aim cannot be achieved by less intrusive means.

The range of items that can be seized during a search may vary. Unfortunately, in cases where money is seized during a search, in practice, there have been situations where a number of police offenses are detected. To illustrate such a violation, there is an example of a situation where police officers actually withdrew six times as much money during a search as was recorded in the search protocol. During the search, it was recorded that a sum of EUR 10,000 had been withdrawn. Subsequently, an additional inspection of the withdrawn money was performed, within the framework of which it was “revealed” that a much larger amount of money had been withdrawn - in the amount of 55,900 EUR. It is logical that such an amount of money cannot simply go unnoticed and suddenly appear. It is important to mention that the inspection shall be performed in accordance with Section 182, Paragraph six of the Criminal Procedure Law, which stipulates that the objects and documents referred to in a decision, as well as other objects and documents that may be significant in the case, shall be removed. If things that are prohibited from being kept, as well as things (objects, documents) the nature, identification signs of which or traces present on such things indicate to connection with another criminal offence, are found during a search, such things shall be removed, indicating the reason for such action in the minutes. Taking into account the mentioned conditions in the Criminal Procedure Law, the search protocol, in connection with the withdrawn money, should indicate the reasons for action to withdraw particular money, while already in the days after the search, this money was inspected. It was not known to the defense whether such a statutory mark had been made in the search protocol. The circumstances of the case and strange observation show that a huge amount of money was deliberately misappropriated at the place of the search, and at a time when the police were warned in absentia that these circumstances would not be ignored, they began to look for another solution for the most of the total amount of money to remain in the criminal process, thus masking their illegal actions.[8]

The illegality of the acts performed during the search and the subjective invention and initiation of the reasons for the search is not in accordance with the meaning and essence of the Criminal Procedure Law, these circumstances clearly indicate the existence of illegal actions and abuse of official authority. It should be noted that cases with funds seized during a search and the incorrect indication of the amount of these funds in the search protocol are becoming more and more regular, thus they are not considered to be separate special cases. The persons subject to the search are confused in these circumstances and choose not to conflict with the investigator during the subsequent investigation, although it is objectively clear that the bribe is taken by the investigator himself during the first meeting with the person. There are various situations in which significant procedural irregularities are found, thus it is important to understand how such situations can be prevented or prevented. It is crucial for persons subject to searches to know their rights and insist on their protection, as well as not to be afraid to object, even if such objections raise concerns about retaliation by the investigator. The procedure for conducting a search is regulated in Sections 182, 183 and 184 of the Criminal Procedure Law. The above articles set out the procedures for conducting searches, the type of searches of persons and searches of diplomatic missions and consular posts.

Investigating judges play an important role in allowing searches, therefore a call should be made to critically evaluate investigator’s suggestions on conducting searches and to apply a more precise performance of the duty set forth in Section 40 of the Criminal Procedure Law - to monitor the protection of human rights in criminal proceedings.

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