The authority to order search in a comparative perspective: a call for judicial oversight

Abstract

Searches are an example of investigative actions aimed at the discovery of evidence, and failures in conducting them lawfully and reasonably have a direct impact on the admissibility of evidence during a trial. But searches by their nature also significantly interfere with the rights of the individual, which makes them a coercive tool that can very easily deprive a person of their privacy and dignity. For that reason, provisions concerning search must be shaped in a way that will reconcile the effectiveness of the investigation with adequate protection against unlawful searches. One such safeguard is the question of the authority empowered to order searches that will successfully safeguard the rights of the individual. While it is a rule in some countries (e.g. USA and Germany) that the issuing of search warrants remains exclusively in the hands of the judge, some countries (e.g. Poland and Italy) vest that power in the hands of the prosecutor. However, since the majority of searches are conducted without a warrant, it is necessary to analyze in parallel whether the warrantless searches should be left solely to the discretion of the executing authority or whether they should be placed under the more careful scrutiny of another authority. This will be done with the aim of identifying solutions that provide the best protection for a person against unreasonable and disproportionate searches.