Information Note on the Court’s case-law 70

December 2004

Van Rossem v. Belgium - 41872/98

Judgment 9.12.2004 [Section I]

Article 8

Article 8-1

Respect for home

Drafting of search warrants in general terms: violation

Facts : The public prosecutor’s service applied for the opening of an investigation into the applicant, whom it suspected of forging documents and making criminal use of them, misappropriation and dis honouring of cheques. The investigating judge issued warrants for searches to be carried out at various locations, and delegated his power of search, authorising criminal investigation officers to conduct immediate searches and seizure of any items and doc uments which they would consider of use to the investigation opened in respect of the applicant. The applicant was not present when the investigators searched his home and the premises of his commercial companies. No list was drawn up of the accounting rec ords seized in the companies’ offices. The trial judges sentenced the applicant to five years’ imprisonment and ordered him to pay a fine. As part of an appeal on points of law against his conviction, the applicant repeated that the search warrants had bee n drawn up in terms that were too general. The Court of Cassation dismissed his appeal. It stated that a search warrant did not necessarily have to specify the objects to be searched for or seized, or to state the classification of the offence into which t he investigation had been opened. The Court of Cassation held that the investigators in this case knew what they were to look for, since the searches had been conducted under the orders of the police superintendent who had carried out initial questioning o f the applicant; in addition, the applicant had not complained that the documents seized had been used to charge him with new offences.

Law : Article 8 – The searches and seizures carried out at the applicant’s home and at the premises of the companies whic h he headed amounted to an interference. Provided for by the law, they had a legal basis. They were to gather clues and evidence concerning the suspicion that the applicant had committed a criminal offence, and they pursued the legitimate aims of the preve ntion of disorder and crime. The key question was the necessity in a democratic society of multiple searches of the home, carried out by the police as part of a massive search and seizure operation, in the absence of the accused, on the basis of warrants f ormulated in broad terms which barely limited the scope of the investigations. While unavoidable imperatives could justify the fact that the investigating judge delegated his power of search to criminal investigation police, any such search warrant ought t o contain a minimum number of indications which would limit the scope of the authority thus conferred on the investigators and make it subsequently possible to verify whether they had complied with the scope of the investigation authorised in this way. In particular, the judge ought to have indicated in the warrant the useful evidence for which the investigators were to search. The text of the search warrants contained no information about the investigation at issue and on the items to be seized, and thus c onferred wide powers on the investigators. The applicant, who had been questioned previously, was the only person who had been informed of the “context” in which the searches were taking place, namely the opening of an investigation on charges of forging d ocuments and making criminal use of them, misappropriation and dishonouring cheques. This would have enabled him to ensure that the searches were limited to seeking evidence of those offences and to complain of abuse, thus enabling him to monitor the scope of the searches and seizures carried out. However, the applicant had not been present at any of the searches. In addition, the only a partial inventory was drawn up of the seized items. In the absence of sufficient indications by the judge in the search w arrants and given the applicant’s absence from the premises being searched, no effective and comprehensive supervision of the scope of the searches had been possible, and the failure to produce an inventory listing each item seized had prevented the applic ant from requesting the withdrawal of certain items a posteriori . In short, a fair balance of the interests involved had not been struck in this case.

Conclusion : violation (unanimous).

Article 41 – The Court made no award under this Article, since no req uest in respect of just satisfaction had been submitted within the time-limits allowed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes