CYIL vol. 8 (2017)

VÍT ALEXANDER SCHORM CYIL 8 ȍ2017Ȏ been informed of the search warrant before the search was carried out, were present and the record explained why the search was an urgent and unrepeatable measure which could be taken before charging a concrete suspect. The first applicant was charged after the search (and later sentenced with other accomplices). The Constitutional Court reviewed the search warrant in part, in particular as to the reasoning behind urgent and unrepeatable nature of the search, finding it acceptable, but refused to do so in the remaining part, in particular as to the absence of a previous hearing of the first applicant, deeming it premature in light of the pending criminal proceedings against him. On admissibility, the Court rejected the application with respect to the second applicant and inter alia questioned the division of issues previously made by the Constitutional Court; in the opinion of Strasbourg judges the way the search was carried out is relevant rather for the assessment of proportionality of the interference under Article 8 of the Convention than for the outcome of the criminal proceedings, but they concluded that the first applicant would have an opportunity to turn to the Constitutional Court anew, and examined on the merits only the complaint that the search warrant was not supported by sufficient reasoning. As to the legal basis of the interference, the Court noted that the search warrant was formally issued in accordance with the Code of Criminal Procedure, reviewed and accepted by the Constitutional Court which ruled that justification of urgent and unrepeatable nature of the search can also be inserted in the record of the search, and not necessarily in the warrant itself. In any event, in urgent situations it is not always possible to give detailed reasons for carrying out a search and the national authorities do not seem to have acted arbitrarily. The search pursued a legitimate aim of prevention of crime. As to the necessity of the interference in a democratic society to achieve such aim, the Court noted that a search warrant must contain certain minimal elements and national law must provide adequate and sufficient safeguards against arbitrariness. The warrant delimited the premises where the search was to be conducted, concluded to a reasonable suspicion that objects important for the criminal proceedings could be found there; the applicant was informed about the context, though quite shortly before the search itself; he (as well as an independent person) could be present during the search and effectively verify the scope of the search. The police made record of the search. The Constitutional Court examined the first applicant’s constitutional appeal and nothing prevented the applicant from raising objections as to the legality of both the warrant and the search. The Court’s conclusion is certainly without prejudice to the need to be more careful in stating reasons for interferences with the rights protected by Article 8 of the Convention. Home searches are amongst those interferences where effective judicial review ex post can be secured rather easily, though it would be better if affected individuals were not obliged to turn directly to the highest judicial instance of the country, i.e. the Constitutional Court; this is especially true in situations where such an individual is even not charged and remains outside the framework of criminal proceedings. It is also important for domestic judges to be able to adequately distinguish between the aspects of the interference which matter in light of the rights protected by Article 8 and those which relate to the fair trial considerations and the admissibility of evidence in the criminal proceedings. 3 A recent controversy of this kind

3 See Heglas v. the Czech Republic (no. 5935/02, judgment of 1 March 2007); Bykov v. Russia (no. 4378/02, judgment [GC] of 10 March 2009).

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