The Standard of Reasoning of Court Decisions Authorizing the Search of a Dwelling or Other Possession of a Person in the Practice of the European Court of Human Rights

Abstract

According to Ukrainian criminal procedural legislation (Part 4 of Article 370 of the Criminal Procedure Code of Ukraine), the reasoning of a court decision constitutes a mandatory condition and an integral component of its legality and, at the same time, one of the guarantees designed to ensure such lawfulness. The requirement to provide reasons for a judicial decision serve as a legal basis for conducting an inspection or a search of a dwelling or other possession of a person and has its own specific normative enshrinement, inter alia, in Part 1 of Article 30 of the Constitution of Ukraine and Article 13 of the Criminal Procedure Code of Ukraine, being intended to guarantee the individual’s right to the inviolability of the home. In the interpreting Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, Practice of the European Court of Human Rights, instances of violations of the requirement of reasoning in procedural decisions authorizing searches of a dwelling or other possession of a person have been identified, along with legal positions and guidelines concerning the factors ensuring compliance with this requirement. Based on an analysis of these positions, it is possible to construct a standard of reasoning for court decisions authorizing the search of a dwelling or other possession of a person in the practice of the European Court of Human Rights. In general terms, the content of this standard may be summarized as follows: 1) the mere fact that judicial authorization has been granted to conduct a search of a dwelling or other possession of a person does not, in itself, ensure the lawfulness of the corresponding interference with the individual’s right to the inviolability of the home or other possession, as it does not constitute a sufficient safeguard against abuses by State authorities in the course of carrying out such an investigative measure; 2) even a well-founded but unreasoned judicial decision authorizing a search of a dwelling or other possession of a person fails to satisfy such an element of lawfulness as the necessity of the respective interference in a democratic society; a ruling of an investigating judge authorising a search of a dwelling or other possession of a person must comply with the general requirements of reasoning applicable to any judicial decision, with the exception of the obligation to address all key arguments of the defence; 3) such a ruling must contain all requisites established by criminal procedural law in a judicial decision authorizing a search of a dwelling or other possession of a person; 4) in a court decision on permission to search a person’s home or other possession, the grounds, reasons, purpose of the search and the feasibility of achieving it through a search must be specified by the circumstances of the relevant criminal proceedings and confirmed by proofs obtained in accordance with the procedure established by law; 5) in order to exclude any scope for arbitrariness on the part of the authorities conducting the search, the judicial decision authorizing a search of a dwelling or other possession of a person must clearly define the limits of the scope of the search, in particular by describing the individual characteristics of the items and documents to be sought and seized as a result of the search, as well as by personalizing the persons to be identified through the search; 6) in the event of granting permission to search an advocate’s home or other property, the investigating judge’s decision must clearly define the methods of protecting lawyer confidentiality.