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Search

Verified 23 September 2020 - Directorate for Legal and Administrative Information (Prime Minister)

Search is an investigative measure that involves searching for evidence of all kinds in a private place. The procedure is supervised and is conducted under the control of a judicial police officer or a judge. The rules are different for searches of premises, organized crime and terrorism. These include the timetable, the presence and agreement of the person concerned, the taking of evidence, the assistance of a lawyer.

A search is a search of a private place by persons authorized by the courts, for the purpose of finding evidence of a offense (documents, objects, or computer files). The search is not a voluntary surrender of documents to police officers: it is a binding act of the police or the gendarmerie.

The search involves:

  • Accommodation (home of suspect, alleged accomplice or witness)
  • Annexes of living quarters (garage, box, etc.)
  • Premises of a company or a public service (offices, warehouses, etc.)
  • Professional premises of a lawyer, a doctor, a notary or a bailiff

The procedure to be followed in order to initiate the search depends on the nature of the premises to be visited and the type of judge conducting the main investigation.

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Ordinary premises

Investigation by the Public Prosecutor

The public prosecutor lead flagrant investigation and preliminary investigation.. During these investigations, the police or the gendarmerie do not need a written authorization from the prosecutor to initiate a search. But they must account to him for the result.

The search may be conducted by police or gendarmes, but under the control of a judicial police officer (OPJ) present at the site. The quality of OPJ allows the officer who holds it to direct investigations. It could be a policeman or a policeman. He must report the result of the search to the prosecutor.

Warning  

the search of a car (excluding residential vehicles such as a motorhome) is not considered a search and other rules..

Investigation by the examining magistrate

The examining magistrate shall judicial information.. During this investigation, the police or gendarmerie must have written authorization to conduct any search. We're talking about a rogatory commission..

Office and residence of a lawyer

The search of a lawyer's office or home must be carried out directly by a judge and not by the police or the gendarmerie.

The bearer or his delegate must also be present. Seizures may not concern facts unrelated to the ongoing investigation.

This procedure applies to searches of the premises of the Bar Association or of the financial settlement funds of lawyers. It also applies to the office or the home of the bearer.

Press office premises

The search of a media outlet or the private home of a journalist or his professional vehicle must be carried out directly by a judge. The search may not be for the purpose of identifying a source, or delay or prevent the dissemination of information.

Office of a doctor, study of a notary and a bailiff

The search of a doctor's office, study of a notary or a bailiff must be carried out directly by a judge. The person responsible for the order or professional organization concerned must be present.

Places containing elements covered by national defense secrecy

The search of premises containing elements covered by national defense secrecy must be carried out directly by a judge in the presence of the chairman of the National Defense Secrecy Commission or his representative.

Premises of a court or domicile of a judge

The search of the premises of a court or of the residence of a judge must be carried out directly by a judge. In addition, the search 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 his representative.

General case

A search must begin between 6 a.m. and 9 p.m. A search started before 9:00 p.m. may end after that time.

Organized crime and terrorism

In the case of organized crime offenses, terrorism, or to drug trafficking, a search may begin before 6 a.m. and after 9 p.m. This investigative act is called a night search..

The procedure may be canceled if the police and gendarmes do not have written authorization and reasons. This authorization shall be issued by the Judge for Liberties and Detention, at the request of the Public Prosecutor during a preliminary investigation or flagrante delicto.. During a judicial information, it shall be issued by the examining magistrate via a rogatory commission..

The occupant is the one who lives or works in the place concerned (the tenant and not the landlord owner for example). For the premises of a company, it is the manager who is considered to be the occupant.

FYI  

if the search involves a minor child living in the home of his or her parents, the parents must give their consent. In the absence of the parents, the OPJ must appoint 2 major witnesses.

Blatant crime

The consent of the occupant is not required. The judicial police officer (OPJ) can use force to enter.

The search shall be carried out in the presence of the occupier but the latter may be absent.

If the OPJ is able to contact the absent occupant, it invites him to appoint a representative of his choice.

If the OPJ cannot reach the absent occupant, he selects 2 major witnesses himself outside the police or gendarmes under his administrative authority. These persons may be other police officers or gendarmes.

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

Preliminary investigation

The consent 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, the JLD may authorize a search without the consent of the occupier.

The search shall be carried out in the presence of the occupier but the latter may be absent.

If the OPJ is able to contact the absent occupant, it invites him to appoint a representative of his choice.

If the OPJ cannot reach the absent occupant, he selects 2 major witnesses himself outside the police or gendarmes under his administrative authority. These persons may be other police officers or gendarmes.

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

When a person being searched is detained or detained for an organized crime offense, his or her presence at the scene of the search may be problematic. If his transport on the spot seems to be to be avoided, the JLD must give its consent to the search taking place in his absence at the request of the public prosecutor. The search is then carried out in the presence of two witnesses or a representative of the person.

FYI  

where searches are intended to prevent a serious breach of the security of persons and property, the search of vehicles and the visual inspection of luggage shall be authorized. This includes offenses related to terrorism, narcotics, weapons, explosives and aggravated theft or concealment.

Judicial information

The consent of the occupant is not required. The OPJ can use force to get in.

If the search takes place at the home of the person indicted by the examining magistrate, he must be present or appoint a representative.

Otherwise, the OPJ will call 2 witnesses.

If the search is carried out in a home other than that of the accused, the person in whose home the search is 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 gathered, listed and placed under sealed for use in criminal proceedings.

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

It is also possible to remotely access data outside the place of search using a computer located on the premises. For example, to view e-mail, a client account on a website, or files on a server.

Request for cancelation of evidence

If the person against whom the search was conducted has not been prosecuted within 6 months, he or she may apply to the judge of liberty and detention for annulment. The application must be made in writing at transplant the court where the search was carried out or the court where the proceedings were opened, within one year.

Persons present may be required to remain on site during the search if they are likely to provide information on the evidence seized. They do not have the right to legal assistance.

And even if a person is placed in custody at the beginning or during operations, the search may take place without his lawyer.

FAQ