Purposes and basic principles of criminal proceedings
Article 17. Guarantee of the right to inviolability of domicile
17.1. Except in the circumstances provided for in this Code, nobody may enter a dwelling without the consent of those living there.
17.2. The examination and searching of residential, service or industrial buildings, and other investigative and procedural acts which limit the right to property may be carried out only in accordance with this Code on the basis of a court decision.
Purposes and basic principles of criminal proceedings
Article 18. Guarantee of the right to property
18.1. During the criminal prosecution the right to property, including the right to private property, may not be limited except in the circumstances provided for in this Code.
18.2. Property taken during the proceedings shall be noted in an appropriate manner in the records and included in a comprehensive list and a receipt shall be given to the owner of the property stating that the property will be kept safely.
18.3. During the criminal prosecution, the imposition of a fine and the seizure of property may be carried out only in accordance with a court decision.
COERCIVE PROCEDURAL MEASURES
APPLICATION OF OTHER COERCIVE PROCEDURAL MEASURES DURING CRIMINAL PROCEEDINGS
Article 177. The right to forcibly carry out investigative procedures
177.1. The prosecuting authority may, by force, carry out investigative procedures to guarantee the normal course of an investigation; it may take measures to make participants wait for the start of these procedures and to prevent them from leaving the place where they are to be held.
177.2. If the person concerned does not consent to the investigative procedure and if a court decision is requested for its compulsory conduct, the prosecutor in charge of the procedural aspects of the investigation shall apply to the court if he agrees with the investigator's reasoned request.
177.3. As a rule, a court decision shall be required in order to conduct the following investigative procedures by force :
177.3.1. examination, search or seizure and other investigative procedures in residential, service or industrial buildings ;
177.3.2. the body search of a person other than a detained or arrested person against his will ;
177.3.3. the attachment of property ;
177.3.4. the confiscation of postal, telegraphic or other messages ;
177.3.5. the interception of conversations held by telephone or other means and of information sent via communication media and other technical means ;
177.3.6. the obtaining of information about financial transactions, bank accounts or tax payments and private life or family, state, commercial or professional secrets ;
177.4. With the exception of examination, search and seizure, other investigative procedures in residential, service or industrial buildings and the investigative procedures provided for in Articles 177.3.6 and 177.3.7 of this Code may be conducted only under by court decision. The investigator may conduct the following procedures by force without a court decision :
177.4.1. on the grounds and under the circumstances provided for in Article 243.3 of this Code, he may conduct inspections, searches and seizures in residential, service or industrial buildings ;
177.4.2. he may conduct body searches in the circumstances provided for in Article 238.2 of this
177.4.3. he may seize property in the circumstances provided for in Article 249.5 of this Code ;
177.4.4. he may confiscate postal, telegraphic or other messages and intercept conversations held by telephone or other means and information sent via communication media and other technical means if there are circumstances in which evidence of serious or very serious offences against the individual or central government must be established without delay.
177.5. If the investigative procedures for which Articles 177.3.1, 177.3.2, 177.3.4 and 177.3.5 of this Code provide are carried out by reasoned decision of the investigator in circumstances allowing no delay, the investigator shall fulfil the duties laid down in Article 443.2 of this Code.
177.6. No court decision shall be necessary for the investigator to carry out the investigative procedures provided for in Article 177.3.1 of this Code in residential, service or industrial buildings with the permission or by the invitation of the owners of those premises.
PRE-TRIAL CONDUCT OF THE PROSECUTION
SEARCH AND SEIZURE
Article 242. Conduct of a search
242.1. Where the available evidence or material discovered in a search operation gives rise to a suspicion that a residential, service or industrial building or other place contains, or certain persons are in possession of, objects of potential significance to a case, the investigator may conduct a search.
242.2. A search may be conducted with the aim of finding persons or animals being sought or human or animal remains.
242.3. Objects and documents which may be of significance as evidence may be impounded by the investigator once it has been established on the basis of the evidence collected or the material discovered in a search operation where or in whose possession they are.
Article 243. Grounds for conducting a search and seizure
243.1. As a rule, searches and seizures shall be conducted by decision of a court. A court may decide to give permission for a search or seizure in response to a reasoned request from the investigator and submissions made by the prosecutor in charge of the procedural aspects of the investigation. The search or seizure shall be conducted in accordance with the requirements of Articles 177.2-177.6 of this Code.
243.2. The decision to authorise the search or seizure shall state the following :
243.2.1. the date, time and place of the decision ;
243.2.2. the family name, first name, father’s name and title of the person making the decision ;
243.2.3. the objective grounds for conducting the search or seizure ;
243.2.4. the family name, first name and father’s name of the person conducting the search or
243.2.5. the place where the search or seizure is to be carried out (nature of the building, address or location) ;
243.2.6. in the case of a decision authorising seizure, the objects and documents to be impounded.
243.3. In circumstances which admit no delay, the investigator may conduct a search or seizure without court permission only if there is precise information indicating that :
243.3.1. objects or documents concealed in a residential building constitute proof of the commission of an offence or of preparations for the commission of an offence against a person or the state ;
243.3.2. a person who has prepared or committed an offence against a person or the state or a person who has escaped from a remand facility or prison is hiding in a residential building ;
243.3.3. there is a human corpse (or parts of a corpse) in the building ;
243.3.4. there is a real danger to someone’s life or health in the building.
243.4. In the circumstances provided for in Article 243.3 of this Code, the investigator shall give a reasoned decision to conduct a search or seizure. The investigator’s decision shall be drawn up in accordance with the requirements of Article 243.2 of this Code and shall give due consideration to the need to conduct the search and seizure without court permission and the reasons why it cannot be delayed.
Article 244. Participants in a search or seizure
244.1. During a search or seizure the presence of at least 2 (two) circumstantial witnesses shall be obligatory.
244.2. Defence counsel for the suspect or accused shall be entitled to participate in the conduct of a search or seizure concerning them. If defence counsel, having been informed of the conduct of this investigative procedure by the investigator, expresses the wish to participate in the search and seizure, the investigator shall take steps to guarantee this right.
244.3. Where necessary, an interpreter or specialist may participate in the conduct of the search or seizure.
244.4. Steps shall be taken to guarantee the presence of the person concerning whom the search and seizure is being conducted, adult members of his family or those who represent his legal interests. If it is impossible to secure the participation of the above-mentioned people, a representative of the relevant housing organisation or local authority shall be asked to participate.
244.5. A search or seizure operation in an administrative department, institution, organisation or military unit shall be conducted in the presence of a representative of the entity concerned.
244.6. Persons concerned by the search or seizure and circumstantial witnesses, specialists, interpreters, representatives and defence counsel shall have the right to be present throughout the procedures conducted by the investigator and to make observations, which shall be included in the record.
Article 245. Rules governing searches and seizures
245.1. An investigator shall be entitled to enter a residential or other building on the basis of the court decision concerning the search or seizure.
245.2. Before conducting the search or seizure, the investigator shall acquaint the person concerned with the decision.
245.3. The investigator shall be entitled to conduct the search or seizure using photography, video, film or other recording techniques.
245.4. The investigator shall take measures to prevent the dissemination of information about the circumstances of the search or seizure, its results and any information concerning the private life of the person concerned.
245.5. The investigator may prohibit those present in the place where the search or seizure is conducted from leaving the premises or speaking to each other or with other persons before the end of the search or seizure operation.
245.6. On making a seizure, the investigator shall, after pronouncing the decision, propose that the objects or documents to be seized be surrendered voluntarily and, in the event of refusal, shall impound them by force.
245.7. On conducting a search, the investigator shall, after pronouncing the decision, propose that the objects or documents to be seized be given up voluntarily and that the wanted person’s hiding place be revealed. If the objects or documents are surrendered or the person’s hiding place is revealed voluntarily, this shall be noted in the record. Failure to surrender the objects or documents being searched for, in whole or in part, or to reveal the hiding place of the wanted person, shall result in the search being conducted.
245.8. During a search or seizure, all objects and documents shall be presented to the participants in the investigative procedure and their quantity, size, weight, material and other special features shall be specified as part of a detailed description. The objects and documents shall be packed and, if necessary, sealed by the investigator.
245.9. If, during the conduct of a search or seizure, the owners refuse to open closed buildings or store-rooms, the investigator shall have the right to open these.
245.10. During a search or seizure, the following shall be prohibited :
245.10.1. unnecessary damage to doors, locks and other items and creating a disturbance in the building ;
245.10.2. use of chemical or psychotropic substances, technical devices or equipment which may be harmful to human health and the environment.
Article 246. Body search and seizure
246.1. The investigator may, normally by court decision, impound objects and documents of potential significance as evidence which are on the clothing, affairs and body of the person concerning whom an investigative procedure is being conducted.
246.2. In the absence of a court decision, a body search may be conducted in the following circumstances :
246.2.1. if a suspect has been detained and he is in the custody of the police or another law enforcement agency ;
246.2.2. if the restrictive measure of arrest is applied to an accused person ;
246.2.3. if there are sufficient grounds to suspect that a person in a building where a search or seizure is being conducted is in possession of objects or documents of potential significance as evidence in the criminal prosecution.
246.3. A body search and seizure shall be conducted by the investigator in the presence of a specialist and at least 2 (two) circumstantial witnesses who are of the same sex as the person on whom the body search is being conducted.
Article 247. Record of the search or seizure
247.1. After completing a search or seizure the investigator shall draw up a record continuing the following information on the investigative procedures carried out :
247.1.1. the place, date and time of the search or seizure ;
247.1.2. the investigator’s family name, first name, father’s name and title ;
247.1.3. the family names, first names and father’s names of other persons participating in the search or seizure as well as the year, month, day and place of their birth, their nationality, education, workplace, occupation or status, address and place of registration ;
247.1.4. a note that the person in respect of whom the search and seizure was conducted was informed of his rights, duties and responsibilities ;
247.1.5. the family names, first names and father’s names of the circumstantial witnesses and the year, month, day and place of their birth, their nationality, education, workplace, occupation, address and place of registration ;
247.1.6. information concerning relations between each of the circumstantial witnesses and the suspect, accused and victim ;
247.1.7. a note that each of the circumstantial witnesses has been informed of his rights, duties and responsibilities ;
247.1.8. a note about the circumstances of the search or seizure, including use of photography, video, film or other recording techniques during the conduct of the procedure ;
247.1.9. the sequence followed and all the evidence discovered during the search and seizure, whether or not the objects and persons sought were surrendered voluntarily; any attempts made to hide the objects and documents discovered; and the quantity, size, weight, individual features and other characteristics of the objects seized, as part of a detailed description thereof.
247.2. The record of the search or seizure shall be signed by all the participants, who shall have the right to require the inclusion of their notes in it. If the record consists of several pages, each page shall be signed by the participants.
247.3. If, during the search or seizure, photography, video, film or other recording techniques are used, the relevant documents, photos, tapes or other information devices shall be attached to the record.
247.4. A copy of the record of the search and seizure shall be given to the person concerned by the investigative procedure or to an adult member of his family or his representative ; in their absence it shall be given to the representative of the housing organisation in whose area the investigative procedure was conducted.
247.5. If a search or seizure is conducted on the premises of an administration, institution, organisation or military unit, a copy of the record shall be given to its representative.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: