A search almost never begins at a convenient time. The investigative team arrives early in the morning, when the person has not yet woken up and has not had a chance to contact anyone. A great deal is decided at that moment: what will be written in the record, which items will leave with the investigator, and whether the file will contain comments that can be relied on later. Attorney Yuriy Arutyunov has repeatedly seen the outcome of a case being determined in precisely those two or three hours. What actually happens during a search, and what rights does a person retain while it continues?
On what grounds can a search be carried out at a person's premises?
The grounds are a formal order, but its type depends on where the search is carried out. In a dwelling, the investigative action is permitted only on the basis of a court decision issued under the procedure of Article 165 of the Code of Criminal Procedure of the Russian Federation. In non-residential premises — an office, a warehouse, a garage — an order by the investigator is sufficient. The difference is fundamental: judicial control checks in advance whether intrusion into a home is justified, while for other premises there is no such check.
There is an exception to the court-decision rule. In urgent cases, a search of a dwelling is carried out on the investigator's order, but the investigator must notify the court and the prosecutor within three days. The court then assesses whether the urgency was justified. If it finds the search unlawful, all evidence obtained during it loses its force. In Moscow such reviews of lawfulness take place regularly, and the result is by no means always in favour of the investigation — especially in cases where defence in misappropriation and embezzlement cases is required and the search is carried out at the workplace.
How does a search differ from an inspection and a seizure?
In its purpose and the degree of coercion. An inspection is the recording of the setting; nothing is searched for and the premises are not forced open. A seizure is carried out when it is known in advance which specific item or document is needed and where it is: the investigator comes precisely for it. A search, by contrast, is ordered when there is no precise knowledge, but there are grounds to believe that what is sought is somewhere on the premises.
Hence the scope of powers. During a search the investigator is entitled to open locked premises and storage places if the owner refuses to open them voluntarily. The investigator may prohibit those present from leaving the place and communicating with one another until the action is completed. The law allows nothing of the kind during an inspection. Substituting one investigative action for another is therefore a common violation that should be recorded immediately.
What must the investigator do at the start of a search?
Present the order and offer the person the opportunity to hand over the items sought voluntarily. This is a direct requirement of Part 5 of Article 182 of the Code of Criminal Procedure of the Russian Federation, and the sequence is exactly this: first the document, then the offer, and only then the search itself. If the person hands over the item themselves, the investigator is entitled not to continue the search. In practice this is rarely used, but an entry in the record about voluntary surrender works in the person's favour and is later taken into account by the court.
Which documents should be checked and noted down?
Everything that is presented is recorded — on paper, on a phone, in memory. The order is read in full, not skimmed: it is the order that states what is being sought and from whom. An attorney's help at this stage consists above all in checking that what is happening corresponds to the text of the document.
- Type and date of the order. Whether it is a court decision or an investigator's order, by whom and when it was issued — the lawfulness of the entire action depends on this.
- Address and premises. Only the premises expressly specified in the document may be searched, and nothing beyond them.
- Object of the search. The wording sets the limits: seizure of items unrelated to the case will have to be justified separately.
- Participants. The surnames and positions of everyone who entered are written down, including operational officers and attesting witnesses.
- Start time. An exact note makes it possible later to compare it with the entries in the record and identify discrepancies.
What may and may not be done during a search?
You may be present during all actions, demand that defence counsel be invited and make comments, which are entered in the record. Part 11 of Article 182 of the Code of Criminal Procedure of the Russian Federation expressly allows the participation of the attorney of the person whose premises are being searched. No permission from the investigator is required for this, and a refusal to admit the attorney is in itself a violation.
Why should you not give explanations on the spot?
You must not physically obstruct, hide or destroy items, or give explanations on the fly. The latter seems harmless, but it is precisely conversations in the corridor that most often later turn into testimony that is difficult to retract. A search does not involve interrogation, and at that moment the person is not obliged to answer questions on the substance of the case. Article 51 of the Constitution applies here too.
What may the investigator seize and how is this documented?
Items relevant to the case are seized, as well as items withdrawn from circulation. Each item is shown to the attesting witnesses and others present, then packed and sealed on the spot — with the participants' signatures on the packaging. This procedure is often neglected: equipment is put into a box without an inventory and described later, in the office. Documentation of that kind can be challenged.
A separate issue is phones and computers, which are most often seized where defence in fraud cases is being conducted. The record must state their individual features: model, serial number, condition at the time of seizure. Without this it is impossible to prove that exactly what was taken has been returned and that the contents have not been altered. In this respect, the services of an attorney in criminal disputes in Moscow come down to meticulousness: ensuring that every item is described unambiguously.
Can you refuse to let them into the flat, and how will that end?
Formally you may not open the door, but this will achieve nothing. The law allows premises to be forced open if the owner refuses to open them voluntarily, and such forced entry will be lawful. No one will compensate for the damage, and the person's behaviour will be entered in the record and interpreted against them. It is more sensible to open the door, state at once that defence counsel is being called, and record everything that happens in writing.
How can a search be challenged if it was conducted with violations?
By means of a complaint — to the prosecutor, to the head of the investigative body or to the court under the procedure of Article 125 of the Code of Criminal Procedure of the Russian Federation. Both the decision to conduct the search and the manner in which it was carried out can be challenged. Success depends not on the eloquence of the complaint but on what was recorded at the time of the action. A comment entered in the record on the spot carries incomparably more weight than an account of the same thing a week later.
What should you do immediately after the investigative team leaves?
Act quickly, before the details fade. After a day, a person will no longer remember the order in which the rooms were searched or where each of those present was. At this stage, legal services in criminal cases begin with reconstructing a complete picture of what happened.
- Obtain a copy of the record. It is handed over against a signature, and demanding it is a right, not a request.
- Check the inventory against the facts. Discrepancies between the list in the record and what was actually seized are recorded in writing on the same day.
- Write down the chronology. The time of arrival, the composition of the team, the sequence of actions and all disputed points, from memory.
- Preserve traces of forced entry. Photographs of the damaged door, locks and furniture will be useful both for a complaint and for compensation of the damage.
- Pass everything to defence counsel. An attorney's help in criminal cases is all the more effective the sooner the attorney receives these materials.
Why call an attorney precisely at the time of the search?
Because later there will be nothing left to correct. The record has been signed, the items seized, explanations given — and all of this becomes part of the case. An attorney in criminal proceedings is needed where evidence is being formed, and a search is exactly such a moment. That is why an attorney in criminal cases stays available around the clock: searches are not scheduled around working hours.
Searches are most often conducted in property offences, where defence in theft cases, misappropriation or deception is required. An attorney defending the accused joins such cases in Moscow and the Moscow Region at any stage, but it is during a search that the attorney's presence changes the course of events most. The reason is simple: only here is it possible to influence the content of the document that will form the basis of the charge.
A search is neither a sentence nor proof of guilt. It is an investigative action with a clear procedure, and deviations from it work in favour of the defence. All a person can do at that moment is remain calm, record what is happening and not stay alone in the flat with the investigative team.