Statement on the requirements that should be placed on the documentation of a decision to search premises pursuant to the Code of Judicial Procedure

Summary of the decision: On his own initiative, the Parliamentary Ombudsman has investigated the requirements that should be placed on the documentation of a decision to search premises pursuant to the Code of Judicial Procedure (1942:740). The point of departure for the investigation was ultimately the individual’s interest in being treated in a lawful and otherwise legally certain manner, as well as providing adequate conditions for subsequent review by, for example, the Parliamentary Ombudsmen.

The Parliamentary Ombudsman notes that a decision to search premises, or at least the agency’s case documents, must describe the circumstances on which the decision-maker’s assessment is based, such as why a given person is suspected of an offence on reasonable grounds. If the decision-maker’s assessment is based on any additional circumstances that are not apparent from the case documents, this must be noted.

One specific question raised by the Parliamentary Ombudsman is the extent to which the decision-maker’s detailed deliberations on whether the conditions exist to search premises need to be recorded. The Parliamentary Ombudsman states that this question must be answered with due consideration for the circumstance of the individual case. As a rule, such deliberations should be documented when the decision involves a search of premises belonging to someone who is not a suspect, when the child perspective must be considered, or when proportionality is a particularly prominent concern for some other reason.