About the system administrator, a search in his apartment and the illegal seizure of computer equipment

Good afternoon, dear habrakrady!
Today we want to tell you a story about how one system administrator achieved the recognition through court of actions of police officers as illegal and made him return the seized computer and a bunch of media with official information.

Characters:

System administrator, Investigator for Especially Important Cases, Operational Commissioners, Understood, Granny, Lawyer, Judge, Prosecutor

Day One (Saturday)

On one of the autumn Saturday evenings, when all normal people drink beer and relax with friends and girlfriends, the door of the apartment of one system administrator was called ...
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The sysadmin, cursing everyone and everything, went to open the door. On the threshold of the apartment was a group of people in civilian clothes. This group was headed by a lady of indeterminate age, who introduced herself as an investigator for particularly important cases of one of the local police units. This lady was accompanied by gallant operas from OBEP and witnesses. The lady-investigator presented a certificate of employment and a decision to conduct a search in the apartment of our hero. To questions about the reason for the search, an answer was received that the leaders of the IT company in which our hero works are defendants in a criminal case in which the main articles of the charges are 188 (smuggling), 171 (illegal business), 172 (illegal banking), 174 (legalization (laundering) of money or other property acquired by other persons by criminal means), 199 (evasion from paying taxes and (or) fees from the organization). Just a "full bouquet" ... Khodorkovsky and Chichvarkin rest.

Our hero turns red, turns pale and curses the day when he began to take work at home. Nothing to do, it is necessary to let the "guests". On the miserable chirping that a court decision on constitutional rights, etc., etc., is required for a search of an apartment in a flat, the poor fellow only got a hit in the forehead from the opera and quickly “calmed down”.

A small but important digression:

In the apartment where the search was carried out, the granny was still living - God's dandelion, a veteran and a disabled person of all the Kulikov battles, a respected man among the retired people of the district, and also our grandmother’s grandmother in combination…

During the search, all computer equipment, all data storage devices (hard drives, disks, flash drives), all notebooks and money were withdrawn from the apartment. Our hero understands that another person involved in the criminal case has become more, and there is nothing left to do, how to pack warm socks tied to his beloved granny and to dry the crackers.

The search continued until 5 o'clock in the morning. The witnesses are yawning, the opera is "nodding," the investigator begins to speak and write nonsense to the protocol. Suddenly our hero comes up with the idea - not to ask the investigator for permission to call a lawyer. The investigator gives permission. Convulsive dialing of a lawyer’s phone number, a hangover-response from a lawyer, a confused explanation of the situation, in response a selective mate to the cops and advice on how to fill in the “comments to the protocol” column of the protocol, namely: at the end of the protocol, indicate that the investigator at the request of our hero did not ensure the presence of a lawyer and on this basis the poor fellow does not agree with the protocol.

After completing the protocol and sealing the boxes with the seized, the investigator suggests that the persons who participated in the search should read the protocol and sign their autographs. Last read the protocol system administrator. After reading the protocol, our hero makes an entry in it in accordance with the recommendations of the lawyer, as well as a small postscript that everything withdrawn during the search belongs not to him, but to his distinguished granny. At first glance, one might think that the granddaughters "burned granny" ... But !!! This postscript played a very important role in the future and led valiant law enforcement officers to disciplinary action. Having received a copy of the protocol, the hero of our story rushed to the nearest Internet cafe to forward a copy to a lawyer.

Day Two (Sunday)

Early in the morning on Sunday, the lawyer of our bureau, who provided the poor fellows with legal assistance on a subscription basis , cursed the cops, their clients with their “visits”, dreaming about a bottle of cold beer, useful to check the mail and get acquainted with the search protocol. When reading the protocol, the lawyer drew attention to a number of violations that the investigator had admitted in drawing up the protocol and in conducting the search itself. The lawyer begins to reason:

1. To dispute the lawfulness of the search warrant because of the lack of a court decision is pointless. The investigator has the right, in exceptional cases, in accordance with Part 5 of Article 165 of the Code of Criminal Procedure of the Russian Federation to search a home without a court decision, but within 24 hours of the commencement of the investigative action, he is obliged to notify the judge of the search and attach a report and ruling to the notification. The judge within 24 hours from the moment of receiving the materials from the investigator is obliged to consider the materials and assess the legality of the investigative action. The lawyer understands that there is very little time. It is urgent to write a complaint to the court against the actions of the investigator according to Art. 125 of the Code of Criminal Procedure (Judicial complaints procedure). But today is Sunday, and the judges on duty do not accept complaints, however, they also do not accept materials on investigative actions (searches) from investigators. It is necessary to understand the situation, by 9 o'clock on Monday to place the complaint in court and get ahead of the investigator with his materials on the search.
2. In the protocol, the client made comments, as he was recommended. This is a positive thing, since the Resolution on conducting a search clarifies his rights, including the right to invite a lawyer. Signature client is worth. Let the investigator prove that the client did not demand the provision of a lawyer to him, and he did not give the subscription to refuse a lawyer to the investigator. Consequently, violations of the norms of the Criminal Procedure Code of the Russian Federation, namely ch.11.st 182 of the Code of Criminal Procedure of the Russian Federation, were committed, and the right to defense, which is guaranteed by the Constitution of the Russian Federation, was violated. This is serious. If this misstep is properly unwound, then the investigator can be brought “to the Zugunder”. Article 286 of the Criminal Code of the Russian Federation (abuse of power) has not been canceled.
3. What about granny? Granny is the owner of the apartment, she was in the apartment during the search, but she is not listed in the protocol and there is no signature. Another "clue" to recognize the search as illegal. The client in the search protocol indicated that everything withdrawn belongs to the granny. The lawyer decides to prepare two complaints to the court. The first complaint on behalf of the client, the second on behalf of the granny. An investigator without research of seized materials and things will not be able to refute the client’s statement. To do this, it is necessary to make a decision on the appointment of a special technical examination, to acquaint the client with the decision, send the materials to the ECC (expert-criminological center), etc. The investigator does not have time. And to prove the veracity of the client’s statements, the grandmother in court is not obliged, since the investigative action was carried out within the framework of the preliminary investigation of the criminal case, in this case the presumption of innocence works for 100%.

Day Three (Monday)

At nine in the morning the lawyer arrived at the federal district court at the place of the preliminary investigation and placed two complaints - from his client according to Art. 125 of the Code of Criminal Procedure, and the complaint from the granny according to Article.123 of the Code of Criminal Procedure. On the same day, the President of the court “wrote down” the complaints to the judge and appointed a “review of petitions” the next day.

Day Four (Tuesday)

The parties arrived at the court, where they were met by a judge of pre-retirement age with universal sadness in their eyes. The complaint from the client was quite simple, since the judge asked the investigator and the prosecutor, who in these cases always summoned to the court, was there a question - a statement about the refusal of counsel for the defense? Not! The search was declared illegal. Notebooks and money decided to return. With granny everything was more complicated. Before the court session, the lawyer had to give Granny some advice on the subject of conduct in court.

Judge granny: Computer equipment and drives belong to you?
Granny: Yes, me.
Judge: For what purpose do you use a computer, and what information is on disks and flash cards?
Granny: Because I am an elderly person and it’s hard for me to communicate with my girlfriends offline, we use the Internet for communication, and I also use a computer to buy various goods, medicines and food via the Internet. The disks contain my personal information and archives of my family (photos, personal letters, personal accounting), correspondence with social and pension services. If the court needs to get acquainted with the information, and there will be a corresponding court decision, I am ready to disclose the information for the court.
Judge: What browser are you using?
Granny: Mozilla, as well as IE, because not all sites of the state. bodies see Mozilla
Judge: I agree with you, but I recommend you to try Opera.
After such a dialogue between grannies and judges, the lawyer respectfully looked at both of them.
Judge: What is your education?
Granny: It was higher medical, but since I’m already retired for almost twenty years, the diploma has been revoked.
Judge: How did the operatives and the investigator behave during the search?
Granny: In a boorish and aggressive way.
Judge: Have you tried to protest in any way?
Granny: No, because my family remembers the 38th year very well.

Here the investigator could not stand it and began to express hysterical threats against granny, which would bring her to criminal liability for defamation. The reaction of the judge was lightning. The judge issued a private decision, addressed to the city prosecutor, about the violation of the law by the investigator and the adoption of appropriate measures in the manner of part 4 of art. 29 Code of Criminal Procedure.

The prosecutor did not ask a single question. The complaint was considered, the requirements were satisfied in full, the court decided to return all the withdrawn equipment and disks to the granny. Everything withdrawn automatically fell into the category of inadmissible evidence under art. 75 of the Code of Criminal Procedure of the Russian Federation and no longer represented any procedural significance for the preliminary investigation.

Day Five (Thursday)

The investigator, without waiting for ten days (the end of the appeal period of the judicial act), returned all that was taken to our hero and his granny. The criminal case was suspended. No one else in this case was called. Our hero stopped taking work at home and cleaned out all his archives. The participation of granny allowed to take a blow in the form of an expert study of computer equipment, because if our hero - the system administrator recognized that the computer and its carriers, it is not known how the judge would have behaved. It is quite likely that the search would be recognized as illegal, and in terms of seizure of equipment, the actions of the investigator could be considered lawful. We encountered such cases in our practice.

Investigator brought to disciplinary responsibility. The lawyer, at the request of the client, did not raise the “bug” and initiate a criminal case against the investigator and operatives. The office of the company, in which our system administrator still works, today bypasses even the district police officer. Granny and her friends got another topic for discussion during their gatherings.

So, timely addressing a lawyer and his quick reaction to challenging the actions of the investigator helped our hero to save official information and return his computer.
With this article, we wanted to draw the attention of respected habra people to the fact that knowing their rights is vital. As a rule, law enforcement officers behave in a boorish way, since in 90% of cases they know that our citizens are poorly oriented in their rights and do not really know how to implement them. But, if you immediately let them know that you know your procedural rights, and you also know the mechanisms for their protection, then the valiant police officers immediately begin to behave markedly politely and correctly, yak angels.

We also strongly recommend:

If you become a voluntary / unwitting participant in various investigative actions, never lose time, do not shout and prove your case with foaming at the mouth, just keep calm, don’t show your excitement, communicate with law enforcement officers politely and record in the procedural documents ( protocols) any disagreement and comment. All this must be done absolutely calmly and silently. In verbal sparring to join is useless. The main thing is not to show your fear, and the more it is impossible to “curry” before an official. It must be remembered that any system cannot be perfect, and even more so when there are less and less professionals every day in the system.

Let's open to you one of our professional secrets:

When an official behaves aggressively - this is not an indicator of his professionalism, but an ordinary defensive reaction, since these gentlemen do not know the laws at all, and they are afraid of you!

And in conclusion, we want to remind you that there is nothing wrong with appeals to a lawyer, especially right away, as you became the “object of attention” of respected law enforcement officers. Never succumb to their statements that with this or that action, the lawyer is not eligible for you. This is a lie and a gross violation of your rights! Never refuse to appeal to the courts for the protection of your rights. We do not argue that the modern Russian judicial system is more inclined towards the prosecution, there is no practical adversary, acquittals today are very rare, BUT! At the preliminary investigation stage, it is possible to effectively recognize the actions / omissions of investigators and operatives as illegal by the court.

Good luck to everyone and thank you!