Searching premises during criminal proceedings
During criminal proceedings there is a risk that a search will be conducted. Who can search premises and on what basis? Who can be present during the search? At what time of day can a search be held? What happens with items discovered in the search? And is there any appeal against the conduct of a search?
A search is one of the key discovery activities during criminal proceedings. It is a compulsory measure intruding on the constitutional right of ownership as well as the physical integrity of the person and the person’s home. It may also interfere with business operations.
Under Polish law, a search may be conducted in order to discover, arrest or involuntarily haul in a suspect, as well as find items that may constitute evidence in the case or be subject to seizure in the criminal proceeding. Thus a search is mainly used to locate a person the authorities suspect of committing a criminal or fiscal offence, find evidence in the case, or identify items that may be attached as security for financial sanctions or claims by the injured party.
The search may cover premises (such as offices or a manufacturing plant), other locations (e.g. automobiles), as well as persons and their clothing and personal items. The legal literature breaks searches down into searches of places, people, and things (P. Hofmański et al., Criminal Procedure Code: Commentary on Art. 1–296, vol. 1, 2011, Legalis, and literature cited there). In this article we will focus on searches of premises, as they are particularly relevant to businesses.
A search may be conducted by the prosecutor or, at the instruction of the court or the prosecutor, by the Police, and in instances provided for by statute, also by other authorities, such as the Internal Security Agency, the Central Anti-Corruption Bureau, or the National Revenue Administration. The practice shows that most often searches are made by authorities other than prosecutors.
Basis for search
The authority intending to conduct a search must present to the person whose premises are to be searched an order by the court or prosecutor authorising the search and seizure of items.
In instances not admitting of delay, where an order could not be issued by the court or prosecutor, the authority conducting the search will instead present an order by the director of the unit or official ID. In such case the authority must promptly apply to the court or prosecutor for approval of the search. The entity whose premises are searched has a right to include in the protocol a demand for service of a copy of the order on the search, and should be instructed of this right. The order approving the search must be served on the entity within 7 days after the search is conducted.
In the case of a search of premises or other locations, the person whose place is to be searched should be notified by the authority beforehand of the purpose of the search, and called upon to turn over the items sought. If the person then hands over the items sought, the authority should abandon the search (J. Skorupka (ed.), Criminal Procedure Code: Commentary, Legalis 2018). If not, the search will proceed.
Who may be present during a search?
Those who can be present during the search are the person whose premises are being searched and another person designated by them (if the other person does not prevent or seriously hinder the search), and a person selected by the authority conducting the search. In addition, counsel for the person whose premises are being searched may also be present (e.g. the attorney for a company whose offices are being searched).
In the absence of the authorised persons (e.g. the owner or tenant of the premises), the authority conducting the search is required to call for the attendance of at least one adult member of the household or neighbour.
The search (as with the seizure of items) must be conducted in compliance with the purpose of the activity, maintaining restraint and respecting the dignity of the persons affected, and without causing unnecessary injury or inconvenience.
When can a search be conducted?
The time when premises can be searched depends on the nature of the premises.
Searches of inhabited premises (e.g. apartments, houses, or structures “in which someone permanently or periodically resides,” S. Steinborn, in S. Steinborn (ed.), Criminal Procedure Code: Commentary on selected regulations, 2016, Lex) may generally be conducted during daytime hours, i.e. between 6 am and 10 pm. Such premises may be searched at night (between 10 pm and 6 am) only in instances not admitting delay. If a search is begun during the daytime, it may be continued even after the arrival of night-time hours. The situation is different in the case of premises that are generally accessible (e.g. cinemas or restaurants) or used for storing items (e.g. a luggage storage area, ibid.), which may be searched at any time of day or night. (We leave aside here the issue of searching premises or closed areas belonging to state institutions or premises occupied by the military.)
What happens to items found or turned over?
In the event of voluntary turning over of items sought, or if items are found in the search, the authority conducting the search will examine them and prepare an inventory and description of the items. The authority will either remove the items or turn them over to a trustworthy person for safekeeping (it may also be the person who turned over the item or on whose premises the item was found, T. Grzegorczyk, Criminal Procedure Code, Vol. 1, Art. 1–467: Commentary, 2014, Lex), indicating to the person the duty to present the items upon demand by the authority conducting the proceeding. The procedure is similar for items found during the search which may constitute evidence of another offence, are subject to forfeiture, or whose possession is prohibited.
Correspondence and other documents turned over or found during a search may contain information subject to trade secrecy. If the person at whose premises the items are seized or the search is conducted declares that a given document contains such information, the authority conducting the activity is required to place the document in a sealed package and promptly submit the package to the prosecutor or the court. Trade secrets are treated as “other legally protected secrets” (S. Pawelec, Protection of trade secrets under substantive and procedural criminal law, 2015, Legalis), and the authority conducting the activity is not allowed to decipher documents containing them. This procedure does not apply, however, if the holder of the document containing a trade secret is a suspect.
The authority conducting the proceeding must promptly provide a receipt to the interested person (e.g. the person who turned over an item or had an item taken, or at whose premises the item was found, Hofmański et al., op. cit.) confirming the items that were seized and who they were seized by.
Can a search be challenged?
A protocol of the search is prepared, including a precise list of seized items, and a description if necessary. When signing the protocol, persons participating in the search may also assert objections to the protocol, including objections to how the search was conducted. Such objections should be set forth in the protocol together with a statement by the person conducting the activity covered by the protocol.
An interlocutory appeal is allowed against the order permitting the search, as well as the conduct of the search (as with an order on seizure of things and the conduct of the seizure). During the investigation phase, the interlocutory appeal is heard by the district court for the place where the proceeding is conducted. In the case of orders issued by a court during the judicial phase, the interlocutory appeal is heard by a higher court.
An authorised person may also apply for return of seized items by showing that they are not needed for the criminal proceeding.
Is it possible to prepare for a search?
A search of premises can temporarily interrupt the daily rhythm of the operations of a business, as items or documents may be seized during the search which are useful or essential for regular business operations. Thus a search is not only an action seeking to uncover evidence, but is also a means of compulsion causing certain inconveniences. It can also have an impact on honest businesses who have crossed paths with a dishonest counterparty.
Some businesses adopt internal “dawn raid” procedures to be followed in the event of a search. Among other things, such procedures include a designation of the person responsible for cooperating with the authorities during the search, specify how certain types of items and documents should be turned over and how the conduct of the search should be documented, indicate which persons should be notified of the search, and explain how the staff of the entity whose premises are being searched should behave as events unfold. Clear rules on how to proceed in the event of a search can streamline the cooperation with law enforcement authorities, ensure that work continues smoothly at the location, and reduce organisational chaos. This is another instance where the compliance function is closely connected with criminal law.
Jakub Znamierowski, Business Crime practice, Wardyński & Partners
