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

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

Characters:

System Administrator, Special Investigator, Operations Commissioners, Witnesses, Granny, Attorney, Judge, Prosecutor

Day One (Saturday)

One of the autumn Saturday evenings, when all normal people drink beer and relax with friends and girlfriends, they rang the doorbell of one system administrator’s apartment ...

The system administrator, 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 an indefinite age, who introduced herself as an investigator for particularly important cases of one of the local police units. This lady was accompanied by the brave opera from OBEP and witnesses. The lady investigator presented an official ID and a resolution on 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 involved in a criminal case in which the main charges are -188 (smuggling), 171 (illegal business), 172 (illegal banking), 174 (legalization (laundering) of funds or other property acquired by other persons by criminal means), 199 (Tax evasion and (or) organization fees). Just a "complete bouquet" ... Khodorkovsky and Chichvarkin are resting.

Our hero blushes, turns pale and curses the day when he began to take work home. There is nothing to do, it is necessary to let the "guests" in. To the miserable twittering that a court decision was required to conduct a search of the apartment, about constitutional rights, etc., etc., the poor fellow only got his forehead from the opera and quickly calmed down.

A small but important digression:

The grandmother was still living in the apartment where the search was conducted - God’s dandelion, veteran and disabled person of all the Kulikovo battles, a respected person among the district’s pensioners, and also our hero’s grandmother ...

During the search, all computer equipment was seized from the apartment, all information storage devices (hard drives, disks, flash drives), all notebooks and money. Our hero understands that there is more to become another person involved in the criminal case, and there is nothing left to do but pack warm socks, tied by your beloved granny and dry crackers.

The search continued until 5 a.m. The witnesses are yawning, the opera is “pecking their nose,” the investigator begins to talk and write complete nonsense to the protocol. Suddenly, our hero comes up with the thought - and not ask the investigator for permission to call a lawyer. The investigator gives permission. Convulsive dialing of the lawyer’s phone number, the lawyer's sleepy-sleepy response, confusing explanation of the situation, in response to a selected mate to the cops and advice on how to fill in the “remarks on the protocol” column of the protocol, namely: at the end of the protocol, indicate the fact that the investigator at the request of our hero did not ensure the presence of a lawyer and on this basis I do not agree with the protocol of the poor fellow.

After drawing up the protocol and sealing the boxes with the seized, the investigator invites those who participated in the search to read the protocol and sign their autographs. The system administrator was the last to read the protocol. After reading the protocol, our hero makes a note in it in accordance with the recommendations of the lawyer, as well as a small note stating that everything that was seized during the search did not belong to him, but to his respected grandmother. At first glance, you might think that the granddaughter "burned the granny" ... But !!! This postscript played a very serious role in the future and brought the valiant law enforcement officers to disciplinary liability. Having received a copy of the protocol, the hero of our story rushed to the nearest Internet cafe to forward a copy to the lawyer.

Day Two (Sunday)

Early on Sunday morning, the lawyer of our bureau, who provided legal aid to the poor fellow on a subscription basis , cursing the cops, their clients with their “flights”, dreaming of a bottle of cold beer, climbed to check mail and get acquainted with the search protocol. When reviewing the protocol, the lawyer drew attention to a number of violations that the investigator committed when drawing up the protocol and during the search itself. The lawyer begins to reason:

1. It is pointless to challenge the lawfulness of the search warrant due to the absence of a court decision. The investigator has the right, in exceptional cases, in accordance with Part 5 of Article 165 of the Code of Criminal Procedure, to search the home without a court decision, but within 24 hours from the start of the investigative action, he is obliged to notify the judge of the search and attach a protocol and resolution to the notification. Within 24 hours from the moment of receiving the materials from the investigator, the judge is obliged to consider the materials and assess the legality of the investigative action. The lawyer understands that time is very short. It is urgent to write a complaint to the court about the actions of the investigator in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation (Judicial Procedure for Complaints) But, today is Sunday, and duty judges do not accept complaints, however, they also do not accept materials on investigative actions (searches) and from investigators.
2. In the protocol, the client made comments, as recommended. This is a positive point, because the Resolution on the search conduct clarifies his rights, including the right to invite a lawyer. Customer's signature is worth. Let the investigator prove that the client did not demand the provision of counsel for him, and he did not give the subscription on the refusal of counsel to the investigator. Consequently, violations of the norms of the Code of Criminal Procedure of the Russian Federation were committed, namely, Part 11, Article 182 of the Code of Criminal Procedure, and the right to defense, which was guaranteed by the Constitution of the Russian Federation, was violated. This is serious. If this oversight is properly promoted, then the investigator can be brought to the “zugunder”. Article 286 of the Criminal Code (abuse of power) has not been canceled.
3. What about granny? Granny is the owner of the apartment, during the search the apartment was in the apartment, but she was not indicated in the protocol and she was not signed. Another clue to declare the search illegal. The client in the search report indicated that everything seized belongs to the granny. The lawyer decides to prepare two complaints to the court. The first complaint is on behalf of the client, the second is on behalf of the granny. An investigator without research on 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 familiarize yourself with the client’s resolution, to send the materials to the ECC (expert and forensic center), etc. The investigator does not have time. And to prove the veracity of the client’s allegations, the grandmother is not obliged in court, because

Day Three (Monday)

At nine in the morning, the lawyer arrived at the federal district court at the place of the preliminary investigation and posted two complaints - from his client in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, and a complaint from granny in accordance with Article 123 of the Code of Criminal Procedure of the Russian Federation. On the same day, the President of the court “wrote” the complaints to the judge and scheduled “consideration of the 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 situation with the complaint from the client was quite simple, since the judge asked the investigator and the prosecutor, who in these cases must be summoned to court, one question - was there a statement about the refusal of the defense counsel? Not! The search was declared illegal. Notebooks and money decided to return. With granny everything was more complicated. Before the trial, the lawyer had to give her a little advice on the subject of behavior in court.

Judge Granny: Do you own computer equipment and drives?
Granny: Yes, to me.
Judge: For what purpose do you use a computer, and what information is on disks and flash cards?
Granny:Since I am an elderly person and it is difficult for me to communicate with my girlfriends offline, we use the Internet to communicate, I also use a computer to purchase various goods, medicines and food products via the Internet. The discs contain my personal information and archives of my family (photographs, personal letters, personal bookkeeping), correspondence with social and pension services. If the court needs to get acquainted with the information, and there will be an appropriate court order, I am ready to disclose the information for the court.
Judge: Which browser do you use?
Granny: Mozilloy, as well as IE, because not all state websites. see the organs of Mozilla
Judge: I agree with you, but I recommend that you try Opera.
After such a dialogue between the granny and the judge, the lawyer respectfully looked at both of them.
Judge: What is your education?
Granny: It was a medical degree, but since I have been retired for almost twenty years, my diploma has been canceled.
Judge: How did the investigators and the investigator behave during the search?
Granny: Boorish and aggressive.
Judge: Did you try to somehow protest?
Granny: No, because my family remembers the 38th year very well.

Then the investigator could not stand it and began to express hysterical threats against her grandmother, which would bring her to criminal liability for defamation. The judge’s reaction was lightning fast. The judge issued a private decision, addressed to the city prosecutor, about the violation of the law by the investigator and taking appropriate measures in accordance with part 4 of Art. 29 Code of Criminal Procedure.

The prosecutor did not ask a single question. The complaint was examined, the claims were fully satisfied, the court decided to return all the seized equipment and wheels to the granny. All seized fell automatically into the category of inadmissible evidence under Art. 75 of the Code of Criminal Procedure of the Russian Federation, and no longer had any procedural significance for the preliminary investigation.

Day Five (Thursday)

The investigator, without waiting for ten days (the deadline for appealing against the judicial act), returned everything seized to our hero and his granny. The criminal case was suspended. No one else was called in this case. Our hero stopped taking work at home and cleaned out all his archives. Granny’s participation made it possible to deflect the blow in the form of an expert study of computer technology, because if our hero, the system administrator, recognized that the computer and its media, it is not known how the judge would behave. It would be quite likely that the search would have been unlawful, and regarding the seizure of equipment, the actions of the investigator could be recognized as legitimate. We have encountered similar cases in our practice.

The investigator was prosecuted. At the client’s request, the lawyer did not raise a “butch” and initiate criminal proceedings against the investigator and the investigators. The office of the company, where our system administrator still works, bypasses even the district police officer today. Granny and her friends got another topic for discussion during their gatherings.

So, a timely appeal to a lawyer and his quick reaction to challenge the investigator’s actions helped our hero save his official information and return his computer.
With this article, we wanted to draw the attention of respected habra-people to the fact that knowing your rights is vital. As a rule, law enforcement officers behave in a boorish manner, because in 90% of cases they know that our citizens are poorly guided in their rights and are not able to really realize them. But, if you immediately let them know that you know your procedural rights, and also know the mechanisms for protecting them, then the valiant policemen immediately begin to behave with an emphasis on politely and correctly, like angels.

We also strongly recommend:

If you become a voluntary / involuntary participant in various investigative actions, never lose your temper, do not shout and prove your case with foam at the mouth, just behave calmly, do not show your excitement, politely communicate with law enforcement officers and record in procedural documents ( protocols) any disagreement and comment. All this must be done, absolutely calmly and silently. To engage in verbal fights is useless. The main thing is not to show your fear, and even more so it is impossible to “fawn” before the official. It must be remembered that any system cannot be perfect, and even more so when in the system, there are less and less professionals every day.

We’ll tell 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 shameful in appealing to a lawyer, especially as soon as you became an “object of attention” of respected law enforcement officers. Never succumb to their statements that a lawyer is not to be appointed to you in any given action. This is a lie and a gross violation of your rights! Never refuse to go to court to protect your rights. We do not argue that the modern Russian judicial system is more inclined towards prosecution, there is no competition among the parties to practice, acquittals today are very rare, BUT! At the stage of the preliminary investigation, it is possible through the court to effectively recognize the actions / omissions of investigators and operas as unlawful.

Good luck to everyone and thank you!