Amendment to coercive measures act does not provide sufficient protection under the law in house searches
In the view of Deputy-Ombudsman Jussi Pajuoja, the amendment to the Coercive Measures Act passed last year did not go far enough. He regards it as open to question whether the amendment is in and of itself the kind of effective protection of legal rights that the European Convention on Human Rights requires.
Since the amendment entered into force, a person whose premises have been the object of a house search has the right to demand that the matter be referred to a district court for a decision on whether the preconditions for the house search have been met and whether lawful procedure had been followed. The demand must be delivered to the court within 30 days of receipt of information that the search had been conducted.
In cases that have taken to a district court, however, all that has followed from an unlawful procedure having been followed is that the court has deemed an error to have been made.
For example, demands for compensation for damage have not been examined. The question of dealing with demands for compensation and other associated demands is, at least in district courts, partly unclear.
Deputy-Ombudsman Pajuoja monitored application of the amendment to the Coercive Measures Act on his own initiative.
District courts issued decisions in 22 cases
Between the beginning of August 2011 and the end of March 2012, district courts ruled on a total of 22 home search cases, in eight of which unlawful actions had been taken. What was involved almost always was that the right of an occupant of a dwelling to be present at a house search or to call a witness had not been implemented in accordance with the Act.
District court decisions and contact with district court judges revealed that there had been problems in the handling of home search matters. Among other things, district court judges in Helsinki have agreed among themselves on the procedures to be followed.
Legal situation flawed also more generally
"Both compensation for damage caused when coercive measures are employed and redress for violations of fundamental and human rights are inadequately covered by legal provisions," says Deputy-Ombudsman Pajuoja.
For this reason, judgements against Finland at the European Court of Human Rights are very possible.
Need for improvement in the actions of criminal investigation authorities
The Deputy-Ombudsman considers it important that authorities do not compromise on the procedural rules set down in the Act and that they can increase protection under the law also through their own measures.
In his assessment, there is room for improvement in the quality of home search court orders, and they should be put in writing more often than is now the case. The aim should also be that it is always an official with the power of arrest who decides on a home search if this is possible.
The Deputy-Ombudsman informed the Ministry of Justice, the National Police Board, the Customs, the Border Guard headquarters and the Defence Staff of his opinion.
Additional info will be provided by Senior Legal Adviser Juha Haapamäki, tel. + 358 (9)432 3334.