One of the most common tools for exercising police arbitrariness, especially in smaller towns, is conducting checks by police officers without legal grounds for doing so. The possible types of checks are:
- to establish the identity of a person;
- of personal belongings, vehicles and means of transport and of belongings, transported in them;
- personal search of a person.
Every police check is subject to strict legal grounds, and conducting one without such grounds constitutes a violation of the law, for which the state owes compensation. This is awarded solely and exclusively through the courts.
In today’s article, we will see what my rights are when being checked by police officers and how I can defend myself against their unlawful actions.
Verification of the identity of a person
Verification by a police officer of the identity of a person may be carried out on five a9> exhaustively listed in the law grounds.
Firstly, such a check is permissible in relation to a person who is suspected of having committed a crime or a breach of public order. This ground relates to specific data concerning a specific person.
Example from the firm’s practice: A young man is regularly checked by law enforcement officers while walking, and each time he is required to show his ID card. When asked what led to the need for such checks, the police officers replied that he was wearing black clothes, a hoodie, and combat boots, which made him look suspicious to them. This action would be unlawful, as there is no specific evidence that the young man in question has committed a crime.
In fact, “the existence of evidence that a person has committed a crime” is the most common “excuse” for police arbitrariness, although in practice this evidence can almost never be proven with clear and concrete evidence.
На второ място, проверка на самоличността на лице е възможна, когато това е необходимо за разкриване или разследване на престъпления и при образувано административно наказателно производство. Този случай касае хипотезата, в която органите на реда издирват извършител или свидетели на престъплението или нарушението.
The third possibility for a police officer to check a person’s identity exists when checking the validity of identity and residence documents in the country. This legal basis mainly concerns third-country nationals and is related to checking the legality of their residence.
The fourth basis on which identity checks may be carried out is at checkpoints set up by police officers. A typical example of such a checkpoint was the checkpoints at the entrances to cities at the beginning of the COVID-19 pandemic.
The last grounds for verification by a police officer of the identity of a person a6> is provided for in cases where another state authority has requested assistance in carrying out this action.
The law regulates and the manner of establishing identity. This is done by requiring and presenting an identity document, by collecting information from citizens with established identity who know the person or in another way, through which they can be a24> be collected reliable data about the person, for example, by checking the special information systems of the Ministry of Interior.
Inspection by police officer of personal belongings, vehicles and belongings transported in them
The answer to the question “Do police officers have the right to search cars and check personal belongings?” is yes, but with one condition—the search must comply with the provisions of the law. And the law provides for a number of grounds for doing so.
We will begin with the grounds for searching personal belongings by a police officer.
The first group of grounds concerns the identity of the person being checked. Thus, such a check is permissible in the following cases:
– when there is specific evidence that a particular person has committed a crime or other violation of public order.
As mentioned above, this is one of the grounds most frequently abused by police officers to justify a check carried out by a police officer on the basis of an “operational signal” that the person in question has committed a crime. In most cases, there is no such signal at all, and the police actions are carried out after unlawful “surveillance,” which is essentially an operational method whose use is authorized by the court.
Furthermore, the person being checked shall in no case have access to the information contained in this alert. In cases where no items prohibited by law are found during the inspection of personal belongings, this information is necessary solely for the purposes of compensation, which the person whose belongings have been illegally inspected is entitled to receive through legal proceedings. The content of this information proves that the search carried out by the police officer was indeed based on “evidence of a crime or offense.” However, denying access to this information deprives the person searched of the opportunity to prove the illegality of the search, thereby rendering the legal remedy provided for by law ineffective. In this case, a complaint may be lodged with the European Court of Human Rights.
In cases, however, in which are found objects whose whose possession is prohibited by law, the usual inspection of personal belongings, which has begun in accordance with the provisions of the Law on the Ministry of Internal Affairs activities, turned into a search, seizure and search on an urgent basis.
In this way allows serious circumvention of the law, which in principle requires prior judicial authorization for such actions. In this case, failure to provide information regarding the received “operational signal” constitutes and violation of the right to a fair trial, for which again may be submitted a complaint to the the European Court of Human Rights.
The conducting of a search by a police officer of personal belongings is possible in the following cases:
– when this is necessary for disclosure or investigate crimes and in the case of initiated administrative penalty proceedings;
– at a checkpoint, organized by police authorities;
– when the identity of a person cannot be established by presenting a document a7> be established by presenting a document proving the identity of the person, information from citizens with established identity who know the person, or by other means, suitable for collecting reliable data;
– when a foreigner seeking protection under the Asylum and Refugees Act has entered the country illegally or is residing illegally in the Republic of Bulgaria;
– towards a person, who exhibits severe mental abnormalities and whose behavior violates public order or endangers his life or the life of other persons to obvious danger;
– in the event of impossibility to establish the identity of the person being checked by any of the means listed in – above methods;
– when the person being checked is wanted for arrest, as well as at the request of another country in connection with their extradition or in execution of a European arrest warrant;
– in other cases, specified by law.
Although at first glance this wording may seem extremely broad, in reality this is not the case. The reason for this is that when drawing up the protocol for inspection by a police officer of personal belongings, in it shall be noted the legal basis for its performance. When it is “in other cases, specified by law”, they also must be specifically indicated with the numerical expression of the legal provision. This specification is mandatory, as its purpose is for the audited person to be able to defend themselves against any accusations that they have not complied with the requirements of the law be able to defend themselves against the allegations made by police officers, by obtaining information about the grounds on which it was verified.
The second ground for a police officer to search a specific person’s personal belongings is related to the existence of sufficient evidence that items related to a crime or offense are being concealed. Here, too, the operational signal is often considered “sufficient evidence,” but failure to provide it violates the right to defense and to a fair trial as a whole to the same extent as mentioned above.
Thirdly, the law provides for the possibility of searching personal belongings in cases of escorting or accommodation in a special home for temporary accommodation of foreigners. The logic behind this is that before being escorted or accommodated in the home, the authorities should ensure that the foreigner does not possess any items that could endanger the life and health of the other residents.
With regard to cases of police checks on vehicles and the items transported in them, the legal grounds for this are significantly more limited. Actually, there are only two.
The first is related to the existence of data on a crime or violation of public order, and the second to the existence of an alert in the Schengen Information System for specific checks.
Often, these checks are initiated by the Traffic Police in cases where a driver is pulled over, tested for drugs, and the test comes back positive. In this case, there is sufficient evidence of a crime (driving under the influence of drugs), which also leads to reasonable suspicion of possible possession of such substances. It is lawful for a police officer to search the driver’s personal belongings, the vehicle, and the items transported in it.
Check by police officer by conducting a personal search of person
A police officer may also conduct a personal search of an individual, for which there are four specific legal grounds.
First, a police officer may conduct a personal search of a person when the person being searched is detained for up to 24 hours by police order.
Secondly, personal searches under the Ministry of Interior Act are lawful in cases where there is evidence that a specific person is carrying dangerous or prohibited items. Here again, it is important to point out the abusive practice of conducting searches on the basis of “operational signals,” which leads to violations of the right to personal and family life, the right to a fair trial, and the rule of providing effective legal remedies.
Thirdly, a police officer may conduct a personal search when a specific person is found at the scene of a crime or public order violation, and there is sufficient evidence that the person is in possession of items related to the crime or violation.
Finally, the last possibility for a lawful personal search carried out by a police officer is when there is a signal in the Schengen Information System for the person being searched to undergo specific checks.
IMPORTANT!!! In cases where a police officer has carried out a check on grounds other than those provided for by law and listed above, that check is unlawful and the person subject to it is entitled to compensation.
Protection in the event of unlawful checks by police officers
In all cases of such checks, fundamental human rights are violated, including the right to liberty and security and the right to private and family life. In such cases, the state is liable for compensation for the unlawful actions of its administrative bodies. Protection is provided through the courts.
Case from the law firm:
A young man becomes a frequent victim of vehicle checks and personal searches on the grounds that there is “operational intelligence” that he is in possession of a large quantity of narcotics. The young man has never had anything to do with such a crime. Furthermore, he has no criminal record or criminal history. After a lawsuit filed and won with the help of the law firm, he received BGN 1,000 in compensation for the unlawful actions, as well as legal aid costs.
Since the compensation was not satisfactory, once again with the assistance of the law firm, the young man filed two complaints with the European Court a16> on human rights for violation of the right to freedom and security, for violation of the right to a fair trial, for violation of the right to personal and family life, as well as for lack of effective legal means of protection. At the present time, notification has been received that both complaints have been accepted for consideration as admissible accepted for consideration as admissible.
Conclusion
One of the most frequently asked questions is “Do I have the right to photograph a police officer during an inspection?” The fact that it concerns a police officer does not in any way change the constitutional prohibition on filming without someone’s knowledge or with their express consent. Therefore, filming a police officer during a check without their knowledge or if they have expressly disagreed may be unlawful.
However, this prohibition is not absolute, as filming in violation of the Constitution could still be considered lawful if there is a so-called “overriding public interest.” Such an interest can be justified in cases where a police officer violates his or her official duties or exercises police arbitrariness. This is the case, for example, when a police officer violates his official duties or exercises police arbitrariness.
In any case, the assessment will be made individually depending on the specific situation.
________________________________________________________________________________________________
Еднолично адвокатско дружество “Силвия Петкова” предоставя специализирана правна помощ при незаконна проверка от полицай, претърсвания и обиски.
Contact:
Working hours: Monday to Friday from 10:00 AM to 6:00 PM
Address: Sofia, 2 Tri Ushi Str., 3rd floor
Tel. 0885 47 77 57
Email: office@petkovalegal.com
Phone consultations and in-office consultations are conducted by appointment only.
