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Police services rebuked for errors in house searches

The legality of a house search can be referred to a district court for adjudication

In his decisions on ten complaints, Deputy-Ombudsman Jussi Pajuoja has criticised the actions of several police services in conjunction with house searches. His criticism in most cases focuses on the fact that the police had not given the occupant of the dwelling the opportunity to be present at a house search, although this is an a priori requirement of the law.

Also a person who has been detained must a priori be offered the opportunity to be present at a house search.
In several cases, however, the police had removed a detained suspect from his or her home before a house search. Deputy-Ombudsman Pajuoja also points out that the use of a police dog does not constitute a ground for preventing the occupant of the dwelling from being present.

The police can conduct a house search even if the occupant of the dwelling is not present. Then the police should document the house search carefully, e.g., by photographing. In such cases, notification of the house search must also be made immediately, e.g., by leaving a notice in the dwelling.

In one case, Pajuoja criticises the police for not having cleaned up the mess that the search had caused. In another case, a search of a car had been conducted without the legal preconditions for it existing and no protocol of it had been kept.

Deputy-Ombudsman Pajuoja has also earlier directed criticism at the police for similar kinds of things, inter alia in the Ombudsman's most recent annual report, for 2010.

A house search can be referred to a district court

Since the entry into force at the beginning of August of an amendment to the Coercive Measures Act, it has been possible to ask a district court to rule on the legality of a house search. The person on whose premises the house search has been conducted can demand that a district court examine whether the preconditions for the search were satisfied and whether lawful procedure had been followed while the search was being conducted.
Thus the opportunity to refer the legality of a house search to a court for evaluation has been statutorily provided for as a specific legal remedy for the issues that arose in the cases now resolved.

The legislative amendment was prompted by a judgement of the European Court of Human Rights in February 2011. The Court found that our legislation relating to house searches did not contain adequate legal remedies.

The new regulations apply only to house searches that have been conducted since the amendment entered into force. The matter must be referred to a court for a ruling within 30 days of the fact that a search has been conducted coming to the knowledge of the person presenting the demand.

Police must provide information on possibility of appealing

In the view of Deputy-Ombudsman Pajuoja, it is not enough that the possibility of making an appeal has been statutorily provided for. An authority must proactively ensure that the protection under the law to which targets of coercive measures are entitled is implemented also in practice.

Indeed, it is his opinion that the police should inform the subject of a house search that he has the possibility of referring the legality of the search to a district court for evaluation. This can easily be done with a form already during the search or at the latest when notification of it is given after the fact.

In the view of Pajuoja, the introduction of the requirement to notify could be done in the initial stage by means of internal guidelines issued by the criminal investigation authorities. However, the matters should be statutorily provided for in the future.

The Deputy-Ombudsman has asked, inter alia, the Ministry of Justice and the National Police Board to inform him, by 15.1.2012, of what measures they have taken.

Additional info will be provided by Senior Legal Adviser Juha Haapamäki, tel. + 358(0) 432 3334.