Summary.
The bill replaces Article 325 of the Criminal Procedure Code (Código Procesal Penal), which addresses searches of persons and vehicles. It proposes that members of the National Police (Policía Nacional) may search a person without a judicial order when there are sufficient, objective, and verifiable grounds to presume that the person conceals among their clothing or carries attached to their body objects connected with a criminal offense. The search must comply with the principles of legality, necessity, reasonableness, and proportionality. The proposed authority is thus tied to the grounds for intervention and the search for those objects.
Before carrying out a search, the officer must identify themselves to the person concerned, explain the reasons for the procedure, and state what object is being sought. The officer must also ask the person to produce it voluntarily. The bill places these steps before the physical search so that the person is told why the procedure is taking place and what the officer seeks to find. It requires the search to be conducted separately, in a place that ensures privacy, while respecting the person's modesty, dignity, physical integrity, and fundamental rights.
Body searches must be performed by personnel of the same sex or gender as the person searched, unless a material impossibility is duly justified. The article prohibits any search involving cruel, inhuman, or degrading treatment or unnecessary exposure of the person's body. These requirements form part of the safeguards governing how the procedure is carried out, in addition to the conditions governing when it may begin.
A brief written record must be drawn up for every search of a person or vehicle. It must identify the acting officer and state the place, date, time, reasons for the intervention, and outcome of the procedure; where possible, it must also bear the signature of the person concerned. If the procedure gives rise to criminal proceedings, a copy must be made available to the Public Prosecutor's Office (Ministerio Público). The preceding provisions also apply to vehicle searches. Such a search must take place in the presence of the driver or person in charge of the vehicle, who must first be informed of the reasons for the procedure.
Failure to observe the article's safeguards gives rise to the applicable disciplinary, administrative, and criminal liability, without prejudice to judicial review of legality. Article 2 expressly identifies the amendment to Article 325 of the Criminal Procedure Code, while Article 3 provides that the proposed law would take effect upon promulgation. In institutional terms, the bill concerns the National Police and the Public Prosecutor's Office. Its provisions could also affect persons searched, drivers and persons in charge of vehicles, and those involved in criminal proceedings.
What it proposes.
- Searches of persons without a judicial order.
- Vehicle searches and procedural safeguards.
- Written records of searches and liability for breaches.
Who it would affect.
- National Police members conducting searches.
- Persons subjected to a search.
- Drivers or persons in charge of vehicles being searched.
Key points.
- Permits a search without a judicial order when sufficient, objective, and verifiable grounds support the presumption that a person conceals or carries on their body objects connected with a criminal offense.Art. 1
- Requires the officer to identify themselves, explain the reasons and the object sought, and ask the person to produce it voluntarily before proceeding.Art. 1
- Requires a separate search in a private place that respects dignity, physical integrity, and fundamental rights; body searches must be conducted by personnel of the same sex or gender unless a material impossibility is justified.Art. 1
- Prohibits searches involving cruel, inhuman, or degrading treatment or unnecessary exposure of the body.Art. 1
- Requires a brief written record of each search of a person or vehicle and its submission to the Public Prosecutor's Office when criminal proceedings result.Art. 1
- Applies the safeguards to vehicle searches and requires the presence of the driver or person in charge, who must first be told the reasons.Art. 1
- Provides for applicable disciplinary, administrative, and criminal liability for breaches of the safeguards, without prejudice to judicial review of legality.Art. 1
- Identifies the amendment to Article 325 of the Criminal Procedure Code and provides for entry into force upon promulgation.Arts. 2-3