In the judgement, the ECHR indicated that it was necessary to put in place special safeguards in order to avoid any possible abuse [of power by intervening Police] and to ensure the effective protection of a person’s rights under Article 8 of the Convention. Such safeguards might include the adoption of regulatory measures which confine the Police ability to enter the premises by, for instance, ensuring (i) the presence of an impartial person during the operation or (ii) the obtaining the owner’s clear consent as a pre-condition to entering his or her premises. The judgment in the case of Rachwalski and Ferenc v. Poland is a source of guidelines regarding actions of the Police and other law enforcement authorities. The judgment also forces the lawmakers to consider outlying more detailed rules of search.
Article 221 of polish code of criminal proceedings specifies time limitations of search of premises. It excludes the possibility of search between 10 p.m. and 6 a.m. Additionally, according to article 224 para 2 of code of criminal proceedings, during the search of premises there can be present an owner (occupier) and a person adoptive by the Police. Moreover, this regulation provides the possibility of presence of a person pointed by the premise owner if it doesn’t prevent from the search and doesn’t obstruct it.
It seems that article 224 of code of criminal proceedings will fulfil its guarantee role, if its content is known by the person mentioned in the regulation. Helsinki Foundation for Human Rights asked the Ministry of Justice for change of this regulations (also internal rules) in order to create an obligation of the Police to inform about the rights streaming from article 224 of code of criminal proceedings. It could mean the enlargement of the scope of obligation created in article 224 para 1 that orders a notification of the purpose of the search and call for delivery of a thing.
The letter is available here.
