When a personal search is lawful: 5 criteria to consider

During a search of a home or office, it is quite common for a representative of the investigative team to also conduct a personal search of the persons present. Such action is permissible, however, subject to certain rules set out in the criminal procedure law.

The other day, the Main Investigation Department of the State Bureau of Investigation conducted a search of an enterprise in one of its office premises. Since the premises belonging to the lawyer were located on the territory, law enforcement officers, in accordance with the law, involved the UNBA Committee on Protection of Advocates' Rights and Guarantees of Legal Practice. Therefore, a representative of this committee, Yevhen Pelikhos, took part in the investigation.

In particular, he said that six hours after the search began, the investigator decided to conduct a personal search of the advocate, which he motivated by the fact that the group had not been opened for about thirty minutes. During the event, personal belongings from the advocate's bag were checked, and a laptop with information about clients was seized. This information was not relevant to the criminal proceedings, but contained the attorney-client privilege. Relevant comments on violations of the guarantees of the practice of law were set out in the report of the investigative action.

Y. Pelikhos reminded that such a personal search is regulated by Part 5 of Article 236 of the CPC, the analysis of which allows to identify five main criteria of its legality:

1.The search must be conducted to the extent necessary to achieve the purpose of the search. A personal search may be carried out only to achieve the purpose of a search that is already underway. In other words, the authorised person, when motivating his/her decision, must convincingly link it to the purpose of the search, within the framework of which the person's home or other property was entered. Any other grounds that are not related to a specific investigative action in accordance with the judge's decision should be declared illegal.

2.Sufficient grounds to believe that the person is hiding items or documents relevant to the criminal proceedings. Not every time an investigator makes an appropriate decision to search a person if there are sufficient grounds. Often, such decisions are made by investigators on an emotional level, with the aim of putting pressure on a person. For example, it is impossible to argue that there are sufficient grounds when, after several hours of searching, the investigator selectively decides to search the contents of a citizen's personal bag only on the grounds that at the beginning of the search the door was not opened for a long time.

3.Sufficiency of grounds to believe that the person is hiding such items or documents on his or her person. Here, the private sphere of a person should be interpreted broadly. The subject of a person's search includes not only items in pockets and clothing, but also the contents of a personal bag, briefcase or package that is directly in the person's hands or near the person and belongs to him or her. In other words, an investigator or prosecutor is not entitled to examine the contents of, for example, a person's personal bag during a «routine search» in the absence of grounds and a decision on a personal search.

4.A person must be searched by persons of the same sex. This rule does not require any special comments, as it is a matter of ensuring the dignity of the person being searched. For example, if there are no women in the investigative team, law enforcement officers are not entitled to inspect the personal belongings of female office workers. Even if there is a reasonable suspicion that they are hiding something.

5.A search of a person is carried out in the presence of a lawyer or representative at the request of such a person. In order to increase the scope of human rights guarantees, the legislator has formulated a procedure according to which a person subjected to a personal search has the right to engage a lawyer other than the one who already provides legal assistance during the search in general and wait for his or her arrival for up to three hours. This guarantee, in our opinion, is effective and helps to prevent disproportionate restriction of human rights.