23 Aug Police search without a sufficient number of witnesses in accordance with the Article 8 of the Convention

In the case Simovski v. North Macedonia (application no. 46176/14, 24.06.2021) the European Court of Human Rights declared the application inadmissible. 

The case concerned a search of the applicant’s home, without enough witnesses, contrary to the requirements of domestic law. The applicant is a collector of ancient coins and since 1993 has been a member of “Paionon”, a numismatic society based in Skopje. In 2010 an investigating judge of the Skopje Court of First Instance (“the trial court”) issued a warrant to have the applicant’s home searched. The warrant was issued at the request of the Ministry of the Interior on the grounds of reasonable suspicion that the applicant had committed the following criminal offences: criminal conspiracy; bribery; damage or destruction of cultural heritage; appropriation of cultural heritage; and the exportation of cultural heritage.

The Court considered that the search of the applicant’s apartment amounted to an interference with his “home” within the meaning of Article 8 of the Convention, which makes it unnecessary to determine whether it also involved his “private life” in the context of his complaints before the Court.

It was also clear that the search had a general basis in domestic law, as interpreted by the national courts in the present case, having, inter alia, been ordered by an investigating judge. This is quite separate from the issue of the absence of a second witness during the search, a matter which should be considered in connection with the procedural safeguards. The search in question was ordered with a view to uncovering physical evidence of serious offences, and thus in pursuit of a “legitimate aim”, namely the prevention of crime and the protection of the rights of others. What remains to be resolved, therefore, is whether the interference with the applicant’s home was “necessary in a democratic society” within the meaning of Article 8 of the Convention – that is, whether the interference was proportionate to the legitimate aim pursued.

Turning to the search warrant, the Court notes that it was couched in relatively broad terms. However, although it might have been feasible to frame the warrant in more precise terms, it was sufficient, in the circumstances, that its scope was limited by reference to the nature of the alleged offences, and that the applicant was subsequently provided with a document certifying the seizure of all the objects found (including those belonging to his parents) during the search, together with some additional objects that had not been noted in the search record.

Finally, in respect of the procedural safeguards, the Court notes that while only one witness was present during the search, rather than two, the applicant himself was also present. Moreover, he also signed the official record of the search-and-seizure operation and the seizure certificate, and raised no objections either to the search procedure as such or to the reasoning of the search warrant. The Court is thus of the opinion that the applicant was afforded adequate and effective safeguards against any abuse during the search itself.

 In view of those circumstances, the Court cannot but conclude that the interference with the applicant’s “home” was “in accordance with the law”, was undertaken in pursuit of a legitimate aim, and was “necessary in a democratic society”, for the purposes of Article 8 of the Convention. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

References from the official website of the European Court of Human Rights