Search

Verified 22 August 2023 - Legal and Administrative Information Directorate (Prime Minister)

A search is an investigative measure designed to look for evidence in the commission of a infringement anywhere. The procedure is framed and takes place under the control of a judicial police officer or a judge. We will explain how it works.

Search is the search of a place by a judicial police officer or under its control, for the purpose of finding evidence of infringement (documents, objects, computer files...).

The search is not a voluntary surrender of coins to the police and gendarmes, it is a binding act.

The search may take place at the following locations:

  • Accommodation spaces (domicile suspect, alleged accomplice or witness)
  • Accommodation space annexes (garage, box, etc.)
  • Premises of a company or public service (offices, warehouses, etc.)
  • Professional premises of a lawyer, a doctor, a notary or a commissioner of justice (former bailiff and judicial auctioneer)

Warning  

a search of a car (excluding residential vehicles such as a camper van) is not considered a search and relieves other rules.

The procedure for initiating the search depends on the nature of the premises to be visited and the judge conducting the main investigation.

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Ordinary premises

Investigation led by the Public Prosecutor

The public prosecutor directing the flagrance inquiry and the preliminary inquiry. During such investigations, the police or gendarmerie do not need written authorization from the prosecutor to initiate a search. It must be under the control of a judicial police officer (OPJ: titleContent) present on the premises. He must report the outcome to the prosecutor.

Investigation conducted by the investigating judge

The examining magistrate directing criminal investigation. During this investigation, the police or gendarmerie must have their written authorization to be able to conduct any search. We're talking about a letters rogatory.

Office and domicile of a lawyer

It is possible to search of the cabinet or home a lawyer.

It must be done directly by a judge and not by the police or gendarmerie. The JLD: titleContent must return a reasoned decision allowing the judge to conduct the search. The bastler or its delegate must also be present.

This procedure applies to searches of the premises of the Bar Association or the CARPA: titleContent. It also concerns the president's office or home.

Seizures may not relate to facts unrelated to the ongoing investigation. The search must not impair the free exercise of the profession of lawyer (assistance, representation...). The documents seized must not be covered by professional secrecy.

FYI  

professional secrecy is not enforceable in cases of tax fraud, corruption or money laundering and terrorist financing.

Premises of a press office

The search of media premises or private home of a journalist or his or her professional vehicle must be made directly by a judge.

The search must respect the free exercise of the profession of journalist. It may not be used to identify a source, or to delay unjustifiably or prevent the dissemination of information. The person present at the place of search may object to the seizure of a document or any object.

Office of a doctor, study of a notary and a commissioner of justice (ex bailiff)

The search of a doctor's office, a notary's study or a commissioner of justice must be carried out directly by a judge. The head of the professional order or organization concerned must be present.

Places of national defense secrecy

The search of premises containing elements covered by the national defense secret must be carried out directly by a judge. It's being done in the presence of the Chairman of the National Defense Secrecy Commission or its representative.

Premises of a court or domicile of a judge

The search of the premises of a court or the home of a judge must be carried out directly by a judge on reasoned decision. It must take place in the presence of the first president of the court of appeal or the First President of the Court of Cassation or its delegate.

The times at which a search may take place may vary depending on the type of offense or the premises searched.

General case

A search has to begin between 6am and 9pm. A search that begins before 9 p.m. may end after that time.

Organized crime, terrorism and drugs

In the event of an offense connected with organized crime, the terrorism, or drug trafficking, a search can begin before 6am and after 9pm. This investigative act is called night search.

Procuring and prostitution of minors

In the case of an infringement related to procuring or to the juvenile prostitution, a search may be made at any time of day or night.

The occupant is the person who lives or works in the place concerned (for example, the tenant and not the landlord).

For the premises of a company, the occupant is the manager.

FYI  

if the search involves a minor child who lives in the home of his parents, it is the parents who must give their consent and are present. In the absence of parents, theOPJ: titleContent must designate 2 major witnesses.

The rules differ depending on the type of investigation.

Flagrant offense

Agreement and presence of the occupant are not mandatory. L'OPJ: titleContent can use force to get in.

In the absence of the occupant, if theOPJ: titleContent can contact him, he invites him to appoint a representative of his choice to serve as a witness.

If theOPJ: titleContent cannot reach the absent occupant, he himself chooses 2 major witnesses apart from the policemen or gendarmes under his administrative authority.

These witnesses may be, for example, neighbors or passers-by. They must accept or face a fine of €150.

Preliminary Inquiry

The agreement must be given in writing by the occupant.

There is an exception for offenses punishable by more than 3 years in prison. If the needs of the investigation so require, JLD: titleContent may authorize a search without the consent of the occupant.

The search takes place in the presence of the occupant, but the latter may be absent.

If theOPJ: titleContent manages to contact the absent occupant, he invites him to designate a representative of his choice to act as witness.

If theOPJ: titleContent cannot reach the absent occupant, he himself chooses 2 major witnesses apart from the policemen or gendarmes under his administrative authority.

These witnesses may be neighbors or passers-by, for example. They must accept or face a fine of €150.

Where a person subject to the search is police custody or detained for an offense related to organized crime, its presence during operations may pose a problem. If transport on the spot seems to be avoided, the JLD: titleContent At the request of the public prosecutor, he must give his consent for the search to take place in his absence. The search is then carried out in the presence of 2 witnesses or a representative of the person.

FYI  

where the purpose of searches is to prevent serious harm to the safety of persons and property, vehicle searches and visual inspection of baggage shall be permitted. This includes offenses related to terrorism, narcotics, weapons, explosives and aggravated theft or concealment.

Judicial inquiry

The consent of the occupant is not required. LOPJ: titleContent can use force to get in.

If the search takes place at the person's home indictment by the investigating judge, she must be present or appoint a representative. Otherwise, theOPJ: titleContent designates 2 witnesses.

Indictment If the search takes place in a home other than that of the person being searched, the person with whom the search is being carried out shall be invited to attend.

If she is absent or refuses, the search takes place in the presence of 2 of her parents or allies present at the scene or in the presence of 2 witnesses.

Seizure of evidence

The evidence seized is collected, listed and placed under sealed for use in criminal proceedings.

Computer data can be entered directly at the source (entering a hard drive) or copied onto a physical medium (USB stick for example).

It is also possible to remotely access data located outside the search location using a computer located on site. For example, to view emails, a customer account on a website, or files on a server.

Request for annulment of evidence

If the person subject to the search has not been prosecuted in the 6 months who have followed, it may request its cancelation by JLD: titleContent.

The request must be made by declaration to the graft the court where the search was carried out or before the court where the proceedings were opened. The application may be made in a one-year period from the date on which it became aware of them.

Who shall I contact

Attendees may be required to remain at the scene for the duration of the search if they are able to provide information on the evidence seized. They do not have the right to a lawyer.

If a person is placed in police custodyThen the search takes place without his lawyer.

A person who has suffered material harm can apply to the Department of Justice for compensation.

Who shall I contact

Warning  

The person claiming compensation must be third party to the proceedings justifying the search, i.e. it must not be the Respondent or the civil party. 

Example :

the owner of a rented dwelling whose door has been forced through a search may, under certain conditions, obtain compensation for the damage suffered.

FAQ