Searches and seizures are a means of gathering evidence to prove that crimes have been committed. Like any action related to criminal proceedings, it must meet certain requirements for legality, insofar as it is likely to affect the fundamental rights of the person whose premises (home, warehouse, office, etc.) or motor vehicle is subject to search and seizure.
The search of a person is called a “body search” and will not be the subject of this article. Today, we will only discuss the conduct of searches and seizures of premises or motor vehicles.
Conditions for the lawfulness of searches and seizures
Criminal – the procedural code provides for several mandatory conditions, without compliance with which the conduct of a search and seizure shall be unlawful.
Firstly, such a condition is the existence of sufficient grounds to assume that objects, documents, or computer information systems that are relevant to the pre-trial proceedings are located in a premises (including a motor vehicle). This means that
The search may be carried out for the purpose of detecting a person or corpse who are connected with criminal proceedings.
Secondly, a condition for the legality of search and seizure actions is a court order issued at the request of the supervising prosecutor. However, the law provides for an exception to this rule, stipulating that searches and seizures may also be carried out in urgent cases without court authorization when this is the only way to collect and preserve evidence relevant to the specific criminal proceedings in a timely manner. In this case, subsequent judicial approval is required.
IMPORTANT! This exception in practice has become an unacceptable rule, as most searches and seizures are carried out “under conditions of urgency as the only possibility for collecting and preserving evidence” without such conditions actually existing. A common excuse for urgency in practice is the receipt of an “operational signal”/”operational information,” which is never disclosed to either the accused or the defense. The reason for this usually lies in the fact that no such signal/information exists, and police officers have been conducting illegal surveillance of a person suspected of a crime.
With the assistance of the law firm, two complaints were filed with the European Court of Human Rights precisely because of this illegal practice, and both have been accepted for consideration and are awaiting a decision.
A problem also arises with regard to subsequent judicial approval, which in all cases is given formally without examining in detail the conditions for urgency in carrying out the actions, as it boils down solely to an assessment of compliance with the minimum requirements for legality. In this regard, it is the duty of the defense attorney authorized in the criminal case to request the court hearing the case in its judicial phase to rule on the overall legality of the protocols.
The third essential requirement is the participation of witnesses. This is another condition that practice has turned into a formality. However, this means that the protocols of the search and seizure actions are invalid, as they have not been compiled in accordance with the law, and their findings should not be used in determining the sentence. This is because witnesses act as objective observers of the actions performed, and their participation is intended to reduce the possibility of arbitrariness and ensure a fair trial.
Protection against unlawful search and seizure
The legal remedies provided for in the law against unlawful search and seizure may be exercised in several ways, depending on whose rights are affected by the action.
Firstly, conducting a search and seizure affects the rights of the accused/defendant, insofar as these are the actions that initiate criminal proceedings against them and form the basis of the prosecution’s case. The defense is carried out during the trial phase of the proceedings by questioning the witnesses to establish whether they were actually present at the time of the actions and whether they perceived them personally and directly, or whether their presence was merely formal. If the actions were carried out in urgent circumstances, it is necessary to examine their actual existence and whether there has been any circumvention of the law.
The second category of persons whose legal rights and interests may be affected by the conduct of a search and seizure are the owners of the premises subject to search, as well as the owners of the items, documents, or computer information systems that are seized. They may be natural or legal persons.
In this case, protection is provided by filing a claim against the prosecution for compensation for damages suffered, which may be pecuniary, e.g. due to the devaluation of seized assets, the seizure of equipment necessary for the company’s operations, etc., as well as non-pecuniary, e.g. due to violation of the right to personal and family life of individuals, the right to property, the good name of the person or company, etc. The amount of compensation varies according to the intensity and duration of the damage caused.
Instead of a conclusion: cases of illegal search and seizure from the practice of the law firm
Given the extensive experience of the firm in representing criminal cases, we have encountered a multitude of instances where the prosecutor has failed to prove the alleged offense. a8> encountered a multitude of cases of illegal searches and seizures, and we will share the three most – striking of them.
Case 1: Following illegal surveillance by police officers, suspicions arise that the person under surveillance is distributing narcotics. As a result, uniformed police officers break one of the windows of the person’s home and enter without prior court authorization. Since one of the police officers claims to have seen the person throwing objects out of another window, a search is conducted around the residential building where the actions are taking place. In a neighboring yard, about 20 grams of grassy mass is found, which later turns out to be marijuana, which is seized and noted in the inspection report, reflecting actions “of urgency.”
The protocol was submitted to the relevant court for approval, but the request was rejected as inadmissible because the inspection is not an action subject to subsequent approval. This circumstance excludes the possibility of approving the seizure, as the protocol in this part is invalid.
Case 2: A search and seizure was carried out under urgent circumstances, and excise goods without excise stamps were found in the premises. The report on the action taken was submitted to the court within the statutory time limit and was formally approved because it met the minimum requirements for legality. During the examination of the witnesses in the court phase of the proceedings, it transpired that one of them was an elderly person with vision and hearing problems, who expressly stated that he had neither observed the actions nor found his signature in the reports, nor had he subsequently been questioned by an investigating police officer, even though there is a protocol for his interrogation.
The second witness states that he did not read the search and seizure reports because he had lived abroad since childhood, had recently returned to Bulgaria, and could not read Bulgarian well. He also states that during the interrogation, he did not dictate its content, but another police officer did, and the witness was forced to simply sign what the police officer dictated. He again notes that he did not read the protocol for the reason already mentioned.
Протоколите са невалидни.
Case 3: A search and seizure was carried out in a room under urgent circumstances, where forged seals of several state authorities and forged documents were found. The court approved the protocol due to the minimum requirements for legality being met. During the court phase of the proceedings, when questioned, the witnesses explained that they had not been present in the premises at all, but had been smoking cigarettes outside and had only signed the protocol for the actions taken after it had been drawn up.
The protocols are invalid.
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More interesting topics, related to the work of the law firm in connection with crimes committed crimes, can be found in the section “Criminal law”.
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