Libro Primero · Título III · Capítulo V Sección Segunda. Comprobación inmediata y medios auxiliares

When it is necessary to inspect places, things or persons, because there are sufficient grounds to suspect that traces of the crime will be found, or it is presumed that in a given place the accused person or any escaped person is concealed, a search thereof shall be conducted with judicial authorization.

Through the inspection, the condition of persons, places and things, the traces and other material effects that may be useful for the investigation of the act or the individualization of the participants therein shall be verified. A record shall be drawn up that shall describe in detail what occurred and, when possible, the useful elements of evidence shall be collected or preserved.

If the act left no traces, produced no material effects, they disappeared or were altered, the current condition shall be described, endeavoring to record the prior condition, the manner, time and cause of their disappearance and alteration, and the means of evidence from which such knowledge was obtained; the same procedure shall analogously be followed when the person sought is not found in the place.

At the time of the proceeding, the owner or whoever inhabits the place where it is carried out shall be asked to witness the inspection or, when absent, his caretaker and, in the absence of the latter, any person of legal age, preferring relatives of the former.

The record shall be signed by all those present; if anyone does not do so, the reason shall be stated.

When necessary, the public official conducting the inspection may order that, during the proceeding, the persons present at the place not leave or that any other person appear.

Those who oppose may be compelled by public force and shall incur the liability provided for the case of unjustified nonappearance.

As a general rule, searches in enclosed or fenced places, even if publicly accessible, may not be carried out before six nor after eighteen hours.

When the search is to be carried out in the closed dependencies of a dwelling or of a business premises, or in inhabited premises, the written order of the judge before whom the procedure is pending or of the president if it is a collegiate tribunal shall be required.

The following cases are excepted from the provisions of the preceding paragraph:

1)If, by reason of fire, flood, earthquake or other similar devastation, the life or physical integrity of those who inhabit the place is found to be threatened.

2)When it is reported that strangers have been seen while entering a place and there are manifest indications that they will commit a crime.

3)If a person is pursued for their apprehension, as they are suspected of participating in a serious act.

4)When voices coming from a closed place announce that a crime is being committed there or that help is requested therefrom.

The decision by which the judge or the tribunal orders the entry and search of a private domicile or residence shall always be reasoned, explaining the reasons indicating the necessity of the search.

The reasons that determined the entry and search without an order shall be stated in detail in the record.

The order shall state:

1)The judicial authority ordering the search and the succinct identification of the procedure in which it is ordered.

2)The specific identification of the place or places to be searched.

3)The authority who is to conduct the search and in whose favor the order is issued.

4)The reason for the search and the steps to be taken.

5)The date and the signature.

The order shall have a maximum duration of fifteen days, after which the authorization expires, except in special cases warranting its issuance for an indefinite period, which shall not exceed one year.

The search warrant shall be notified at the time of its execution to the person inhabiting the premises or to the person in charge, by delivering a copy to such person.

If the person inhabiting the house resists entry or no one answers the calls, public force shall be used to enter. Upon completion of the search, care shall be taken to ensure that the premises are left closed and, if such closure is not immediately possible, it shall be ensured that no other persons enter the premises until closure is achieved. This procedure shall be stated in the record.

The closure measure referred to in this article shall not exceed the time limit of fifteen days, except in special cases determined by the judge.

If administrative offices or public buildings, temples or religious places, military establishments or similar establishments, or meeting or recreational places, open to the public and not intended for private dwelling, are concerned, the search-warrant order may be dispensed with upon the express and free consent of the persons in charge of the premises. If that would be detrimental to the investigation, consent shall be requested from the hierarchical superior in the service.

For entry and search in the office of one of the high authorities of the State Organs, authorization from the hierarchical superior in the service or from the president of the entity when collegiate bodies are concerned, respectively, shall be required.

In the foregoing cases, if consent is not granted or it is not possible to obtain it, a search-warrant order shall be required. Whoever gave consent shall be invited to witness the search.

When, for purposes of investigating the punishable act or for identification, the bodily or mental examination of the accused person is necessary, their observation may be carried out, taking care to respect their modesty. The examination shall be conducted with the assistance of an expert if necessary and by a person of the same sex.

The same procedure shall be followed with another person who is not the accused person, when the examination is of absolute necessity for the investigation.

In case of violent death or death suspected of criminality, the Public Prosecutor's Office shall go to the place where the corpse appeared for the purpose of carrying out the corresponding investigative proceedings. Once completed, it shall order the removal, documenting the proceeding in a record in which the circumstances under which it appeared shall be stated, as well as all data that may serve for its identification. In those municipalities in which there is no delegation of the Public Prosecutor's Office, the removal shall be authorized by the peace judge.

In the event that the identification provided for in the preceding article is not sufficient, when the condition of the corpse permits, it shall be exhibited to the public before proceeding to its burial, so that whoever has information that may contribute to its recognition may communicate it to the tribunal.

For greater effectiveness of the searches, examinations and inspections, the pertinent technical or scientific operations and the corresponding recognitions and reconstructions may be ordered.

If the accused person participates in a reconstruction, they may be assisted by their defense counsel.

Things and documents related to the crime or that could be of importance for the investigation and those subject to confiscation shall be deposited and preserved in the best possible manner.

Whoever has them in their possession shall be obliged to present and deliver them to the requesting authority.

If they are not voluntarily delivered, their seizure shall be ordered.

The following shall not be subject to seizure:

1)Written communications between the accused person and persons who may abstain from testifying as witnesses by reason of kinship or professional secrecy.

2)Notes taken by the aforementioned persons on communications entrusted by the accused person regarding any circumstance.

The limitation shall apply only when the communications or things are in the possession of the persons authorized in the preceding articles.

The seizure order shall be issued by the judge before whom the procedure is pending or by the president, if it were a collegiate tribunal.

In case of danger due to delay, the Public Prosecutor's Office may also order the seizure, but it shall immediately request judicial authorization, delivering the things or documents to the competent tribunal. The things or documents shall be returned if the tribunal does not authorize their seizure.

The rules provided for the search shall govern the seizure, insofar as applicable.

The seized effects shall be inventoried and placed in secure custody, at the disposal of the corresponding tribunal, in the Judicial Warehouse, in accordance with the regulations issued by the Supreme Court of Justice.

Weapons, instruments and objects of the crime that have been confiscated, if of lawful commerce, shall be auctioned or sold, in accordance with the respective regulations. If of unlawful commerce, the weapons shall be sent to the Ministry of Defense, objects whose nature permits it shall be incinerated and the remainder shall be destroyed; in all cases a record shall be made of the disposition of the objects.

Notwithstanding the foregoing, the Supreme Court of Justice may determine the disposition of the property that may be used in any of its offices or in social assistance centers.

The proceeds obtained by virtue of the auction or sale shall enter as private funds of the Judicial Branch.

Seized things and documents not subject to confiscation, restitution or attachment shall be returned, as soon as necessary, to the lawful holder or to the person from whose custody they were obtained. The return may be ordered provisionally, as a deposit, imposing on the possessor the obligation to exhibit them.

If there should exist doubt concerning the holding, possession or ownership over a thing or document, in order to deliver it on deposit or to return it, a separate incident shall be instructed.

Vehicles shall be returned to their owner immediately after the pertinent proceedings on them have been carried out.

In any case, the return shall be effected within a time limit not exceeding five days, except in cases of force majeure, the judge being liable for any damage or harm suffered due to unjustified delay.

When useful for the investigation, the interception and seizure of postal, telegraphic or teletype correspondence and shipments addressed to the accused person or sent by him, even under an assumed name, or of those suspected of proceeding from the accused person or being intended for him, may be ordered.

The order shall be issued by the judge before whom the procedure is pending or by the president, if it is a collegiate tribunal. The decision shall be reasoned and final. *In case of flagrancy, the Public Prosecutor's Office may issue the order, but it shall proceed as indicated for the case of seizure. The correspondence or shipment shall not be delivered to the interested persons, but to the competent tribunal. *If within three days the order is not ratified by the tribunal, the interception and seizure shall cease and the items shall be released to whom they correspond.

*

Upon receipt of the intercepted correspondence or shipments, the competent tribunal shall open them, recording it in the record. It shall examine the objects and itself read the content of the correspondence. If they are related to the procedure, it shall order the seizure. Otherwise, it shall keep its content confidential and shall order delivery to the addressee and, if that is not possible, to his representative or close relative, with a record thereof.

The preceding rules shall apply by analogy to the monitoring and recording of telephone or similar communications. Its result and recording may only be delivered to the tribunal that ordered them, which shall proceed as indicated in the preceding article, as pertinent. It may order the written version of the recording or of the parts it considers useful and shall order the destruction of the entire recording or of those that have no relation to the procedure, upon prior notice to the Public Prosecutor's Office, to the accused person and to his defense counsel.

The person entrusted with intercepting the communication and recording it or the person who puts it in writing shall have the obligation to keep its content secret, unless, cited as a witness in the same procedure, he is required to answer concerning it.

When, for the investigation of a serious punishable act, closure of a premises or immobilization of movable things which by their nature or dimensions cannot be maintained on deposit is indispensable, they shall be secured in accordance with the rules of seizure.