A group of deputies requested a review of the constitutionality of the third and seventh paragraphs of Article 148, of Articles 149b, 149c, 149č, 150a, and 156, and the second sentence of the first paragraph of Article 216 of the Criminal Procedure Act (Official Gazette RS, No. 176/21 – official consolidated text – hereinafter referred to as the CrPA). In this Partial Decision, the Constitutional Court decided on the constitutionality of the second sentence of the first paragraph of Article 216 of the CrPA, which regulates a house search in the presence of an authorised person appointed ex officio by a court from amongst attorneys if the person whose apartment or premises are the subject of a house search or his or her representative is unreachable, and the house search is carried out by an investigative judge. By Order No. U-I-144/19, dated 9 October 2019 (Official Gazette RS, No. 66/19), it temporarily suspended the implementation of the challenged provision until a final decision is adopted.
The applicant challenged the mentioned provision of the CrPA due to both the disproportionality of the interference with the right to the inviolability of dwellings determined by the first paragraph of Article 36 of the Constitution and Article 8 of the ECHR and its inconsistency with the principle of the clarity and substantive precision determined by Article 2 of the Constitution.
In accordance with the third paragraph of Article 36 of the Constitution, a person whose premises are being searched or his or her representative has the right to attend the house search. The Constitutional Court established that the term “his or her representative” in the third paragraph of Article 36 of the Constitution, which refers to the representative of a person whose dwelling or premises are being searched, cannot be interpreted so narrowly as to only encompass a representative appointed on the basis of the previously expressed will of the represented person.
Despite the possible different intent of the legislature, the Constitutional Court interpreted the term “unreachability” in the challenged provision as merely the physical inaccessibility of the holder of a dwelling and a representative appointed at his or her discretion or as such person being unreachable via means of communication. Therefore, it limited its assessment to only this instance. Hence, it did not adopt a position as to the questions that refer to the conduct of the holder (or the representative appointed at his or her discretion) after he or she has been notified that a house search would be carried out, either concerning the possible evasion of prosecuting authorities or the question of the holder’s (or representative’s) waiver of the guarantee determined by the third paragraph of Article 36 of the Constitution.
Since a house search is usually carried out by the Police on the basis of a written court order issued upon a reasoned written motion submitted by the state prosecutor, it is, as a general rule, the Police who will find at the location of the house search that the holder is unreachable and will attempt to trace him or her on the basis of data on the holder’s contact information, workplace, possible other dwellings, etc. The state must make a reasonable and diligent effort to determine where the holder is and how to contact him or her in order to be able to invoke the guarantee determined by the third paragraph of Article 36 of the Constitution. The obligation stemming from the third paragraph of Article 36 of the Constitution is fulfilled if on the basis of reasonable inquiries it is established that the holder or the representative appointed at his or her discretion are unreachable. In order to fulfil this standard, unreasoned positions of the authorities responsible for detecting or prosecuting criminal offences, which are not based on evidence, regarding the fact that [the authorities] attempted to reach the holder and the representative appointed at his or her discretion do not suffice; also the abuse of powers such as house searches planned at a time when it is known that the holder is not at home is prohibited.
A court is the only authority that can establish, in view of the circumstances of a given case and by applying the standard of reasonable care, whether the holder and the representative appointed at his or her discretion are unreachable, or that can appoint a representative ex officio. In order for the standard of reasonable care to be fulfilled in a concrete case, it suffices that a motion to appoint a representative ex officio contains the allegations and evidence that document, prove, and enable the traceability of the conduct and activities of the Police and State Prosecutor’s Office concerning the search for the holder and the representative appointed at his or her discretion, or that demonstrate that the Police and the State Prosecutor’s Office have carried out due diligence. This standard requires that the decision that the holder and the representative appointed at his or her discretion are unreachable and the decision that, for such reason, the holder is to be appointed a representative ex officio be made in written form and substantiated. The above prevents a situation wherein the authorities responsible for detecting or prosecuting criminal offences would ascertain whether the conditions for carrying out a house search in the absence of the holder or the representative appointed at his or her discretion are fulfilled and that such authority would determine who the representative is in a concrete case.
The Constitutional Court established that the third paragraph of Article 36, under the conditions stated in this Decision, enables a court to subsidiarily and exceptionally appoint a representative of an unreachable holder ex officio if the holder and the representative appointed at his or her discretion have been given a reasonable possibility to be informed of the house search.
It concurrently established that it follows from the content of the challenged provision of the CrPA that such provision, in conjunction with other provisions of the CrPA, can be interpreted in a constitutionally consistent manner such that the requirements stemming from the third paragraph of Article 36 of the Constitution are fulfilled. Therefore, it decided that the second sentence of the first paragraph of Article 216 of the CrPA is not inconsistent with the Constitution.