The Legal Basis of Search and Seizure
Search and seizure are the most intrusive investigative actions, because they strike directly at the inviolability of the home and property. The Criminal Procedure Code confines them to a strict frame: where a substantiated suspicion exists, seizure and search are conducted in order to discover and seize an object, document, substance or other information-containing object significant for the case. A search may also be conducted to find a wanted person or a corpse. Every entry into private space must therefore be justified by this statutory purpose and by the evidentiary standard of substantiated suspicion.
Two distinct instruments should be distinguished. Seizure without a search is permitted where there is a substantiated suspicion that the object is kept at a certain place, with a certain person, and searching for it is not necessary. A search, by contrast, is conducted where discovering the object requires a search. Constitutional practice has declared part of these norms unconstitutional insofar as a search result could serve as a basis for new suspicion — an important tool for the defence, because illegally obtained fruit cannot feed further intrusions.
Procedure — the Ruling and Its Presentation
Seizure or search is conducted on the basis of a court ruling or, in cases of urgent necessity, an investigator's decree. Before starting, the investigator is obliged to present the ruling or decree to the person at whose premises the action is conducted, and the person confirms its presentation with a signature. The investigator may prohibit persons present or arriving at the scene from leaving and from communicating with each other or with others until the end of the action, which is recorded in the protocol.
After presenting the ruling, the investigator offers the person the opportunity to hand over the object voluntarily. Voluntary surrender is recorded in the protocol; refusal or partial surrender leads to compulsory seizure. If the person to be searched refuses to open closed premises voluntarily, the investigator is entitled to open the storeroom, dwelling or room. In the premises of a legal person or administrative organ, the action must be conducted in the presence of its head or representative.
During a search, the objects indicated in the ruling or decree are sought and seized. Every other information-containing object that may have evidentiary significance for the case or that clearly points to another crime, as well as objects withdrawn from civil circulation, must also be seized. An object discovered during the search must, if possible, be shown to the participating persons before seizure, then seized, described in detail, sealed and, where possible, packaged. The package bears the date and the signatures of the participants. A document seized because of its content is not sealed.
A notable rule of equality of arms: the right to the primary examination of an object obtained on the basis of a defence motion belongs to the prosecution. This allocation balances the parties' access to evidence and prevents parallel, uncontrolled examinations of the same object.
Personal Search
Personal search follows a distinct regime: the prosecutor, the investigator and an official empowered to detain may, where a substantiated suspicion exists, seize by personal search a significant object found on a person's clothes, among items in his possession, in a vehicle, on or in the body. A personal search of a person present at the scene of a search is admissible where there is a substantiated suspicion that he hid the object to be seized — this is deemed urgent necessity, is conducted without a court ruling, and its legality is subsequently checked by the court.
Where there is a substantiated suspicion that a detained person has a weapon or intends to dispose of incriminating evidence, the detaining official may conduct a personal search without a ruling, which is noted in the detention protocol; no separate protocol is drawn up in that case. A detaining official may disarm the detained person. If the personal search involves undressing, it must be conducted by a person of the same sex, with the participation of same-sex persons only.
Special Objects — Media and Religious Premises
The Code specially protects the editorial offices of mass media and publishers, scientific, educational, religious and public organisations and political parties. It is impermissible to search, seize or attach an object located on those premises in respect of which there is a reasonable expectation of public dissemination. The prohibition does not extend to cases where there is a substantiated suspicion that the object to be seized is the subject of a crime or a weapon.
The court may issue a ruling for such premises only where there is clear and convincing substantiation that conducting the action will not violate the constitutionally protected freedoms of speech, opinion, conscience, confession, belief or association. The action must be conducted in the form least restrictive of those rights — a proportionality requirement the defence must always test.
Consequences, Defence Routes and Practical Advice
The legality of a search or personal search is checked by the court under the established procedure. A violation — the absence of a ruling, skipped presentation, defects of the protocol, non-compliance with sealing rules — becomes a ground for the inadmissibility of the evidence. The advocate's task is therefore a documentary verification of every stage: the grounds of the ruling, the completeness of the protocol, the participation of witnesses, and inaccuracies of sealing.
Practical advice for citizens matters as well: request a copy of the ruling, never sign the protocol without remarks, describe the defects you observed, and record the list of seized items. These steps often prove decisive in subsequent litigation.
Frequently Asked Questions
Can a search be conducted without a ruling?
Only in cases of urgent necessity — on the basis of an investigator's decree. A personal search at the scene, where the person is suspected of hiding an object, is deemed urgent necessity and is conducted without a ruling.
Who checks the legality of a search?
The court, under the procedure established by the Code. Where a violation is established, the seized evidence is declared inadmissible.
What happens to seized items?
They are described, sealed and, where possible, packaged; the package bears the date and the signatures of participants. A document seized for its content is not sealed.
Can editorial offices of the media be searched?
As a rule no — objects with a reasonable expectation of public dissemination are protected. The exception is where the object is the subject of a crime or a weapon, and even then the court needs clear and convincing substantiation.
How We Help on Legal.ge
The advocates of Legal.ge verify the legality of searches and seizures, move to have evidence declared inadmissible, and protect the interests of citizens and businesses during investigative actions. Contact us if your home or office has been searched.