Search and inspection. What is the difference?
On the one hand, a search is a fairly effective and efficient way to obtain evidence of a criminal offence. On the other hand, a search restricts the right to inviolability of the home guaranteed by the Constitution of Ukraine.
Along with the search, there is another way to obtain evidence — inspection. It should be noted that these investigative actions are quite similar in nature, but have significant differences in the grounds and procedure for their conduct.
What is a search? Grounds and procedure for its conduct.
First of all, a search is an investigative (detective) action that consists of a forced and targeted inspection of housing, premises, vehicles, areas, etc. in order to identify and record information about the circumstances of a crime, find the instrument of a criminal offence or property obtained as a result of its commission, as well as establish the location of wanted persons.
A search is conducted not otherwise than on the basis of a ruling of an investigating judge of a local general court within the territorial location of the pre-trial investigation body conducting the search, and in criminal proceedings concerning crimes within the jurisdiction of the High Anti-Corruption Court — on the basis of a ruling of an investigating judge of the High Anti-Corruption Court.
In order to obtain a court order to conduct a search, the investigator, in agreement with the prosecutor, or the prosecutor himself must file a petition with the investigating judge, stating, inter alia, the grounds for the search, and justifying that access to things, documents or information that may be contained therein cannot be obtained voluntarily through discovery or other investigative actions. However, the latter requirement does not apply to cases of searching for the instrumentality of a criminal offence, items and documents withdrawn from circulation.
A warrant to search a person’s home or other property can be executed by an investigator or prosecutor and gives them the right to enter a person’s home or other property only once.
The following may be invited to participate in the search: the victim, suspect, defence counsel, representative and other participants in the criminal proceedings, for example, a specialist.
The search of a person’s home or other property should take place at a time when the usual occupation of the person who owns it is least likely to be harmed, unless the investigator or prosecutor believes that the fulfilment of such a condition may significantly undermine the purpose of the search.
How to behave and what you need to know if you are searched is described in detail in this article.
What is an inspection and when is it carried out?
Inspection is one of the types of investigative (detective) actions aimed at obtaining (collecting) evidence or verifying evidence already obtained in a particular criminal proceeding.
The investigator or prosecutor conducts an inspection of the area, premises, things, documents and computer data in order to identify and record information about the circumstances of the criminal offence.
As during the search, the following may be invited to participate in the examination: the victim, suspect, defence counsel, legal representative, as well as other participants in the criminal proceedings, including a specialist.
Only items and documents relevant to criminal proceedings and items withdrawn from circulation may be seized during the inspection. All seized items and documents shall be immediately inspected and sealed with the signatures of the persons involved in the inspection. If it is impossible to inspect things and documents on site or if their inspection is difficult, they shall be temporarily sealed and stored in this form until their final inspection and sealing are carried out.
When conducting an inspection, the investigator, prosecutor or, on their behalf, a specialist involved has the right to take measurements, photographs, sound or video recordings, draw up plans and diagrams, make graphic images of the inspected place or individual items, make prints and casts, inspect and seize items and documents relevant to the criminal proceedings. Items that are withdrawn from circulation by law (drugs, weapons, ammunition, etc.) are subject to seizure regardless of their relevance to the criminal proceedings.
The Criminal Procedure Code of Ukraine distinguishes between the following types of inspection:
- Locations
- Premises
- Things
- Documents
- Corpses, including those related to exhumation.
For example, inspection of the scene of an incident is an investigative action aimed at direct perception, investigation of the situation at the scene, detection, recording and seizure of material evidence, clarification of the nature of the event, identification of the offender and motives for the crime. Inspection of the scene is one of the first and most urgent investigative (detective) actions and in urgent cases may be carried out before entering information about the crime into the Unified Register of Pre-trial Investigations.
Conclusions
So, what is the difference between such investigative actions as search and inspection?
The similarity between a search and an inspection is due to the common tasks of these investigative actions, namely the search and detection of objects of evidentiary value in a particular criminal proceeding. However, a search, unlike an inspection, has a coercive nature, which is manifested in the fact that an inspection of a person’s home or other property, as well as a personal search, may be carried out without the person’s consent, i.e. against his or her will.
The relevant decision of the investigator or prosecutor, which also does not require a written form, is sufficient for an inspection, while a search requires only a decision of the investigating judge.
Also, the difference between a search and an inspection is a specifically defined list of persons who may conduct these investigative actions. In the case of inspection, it is the investigator or prosecutor who directly arrived at the scene of the criminal offence. In the case of a search, only the investigator and prosecutor specified in the court decision to authorise the search may conduct the search.
However, in practice, the investigator or prosecutor instructs the search to be carried out by officers of operational units who cannot properly confirm their authority to conduct such an investigative action.
Also, the difference between a search and an inspection is that a search of a person during the inspection of the scene is not provided for, since a search of a person is not actually a separate investigative action, but is absorbed by such actions as detention or search of a dwelling, and therefore, during a search, by decision of the investigator or prosecutor, a search of persons in a dwelling or other property may be conducted if there are sufficient grounds to believe that they are hiding objects or documents relevant to criminal proceedings.