House search in Belgium: when can the police enter and what are your rights?

It is six in the morning and the police are at your door, telling you that your home is going to be searched. A house search is one of the most intrusive measures in a criminal investigation: it affects your private life, your family and often your work too. At the same time, it is subject to strict rules.

This article explains when the police in Belgium may carry out a house search, what you should do at the time and what the consequences of an irregular search can be. Knowing your rights helps you avoid mistakes that are hard to put right later.

Your home is protected by the Constitution

The Belgian Constitution declares the home inviolable. A search may only take place in the cases provided for by law and in the form the law prescribes (Article 15 of the Constitution).

The concept of home is broad. It covers not only your house or flat, but also, for example, a student room, an enclosed garden forming part of the property or business premises that are not open to the public. Different rules apply to searching a vehicle.

When can the police carry out a house search in Belgium?

Apart from special legislation, there are in practice three legal bases.

• A warrant from the investigating judge. Only the investigating judge (onderzoeksrechter / juge d’instruction) can order a search against the occupant’s will. As a rule, this happens within a judicial investigation, which is referred to the judge by the public prosecutor (procureur des Konings / procureur du Roi) or by a civil party. The judge may delegate the search, by reasoned order, to a judicial police officer (Article 89bis of the Code of Criminal Procedure, Wetboek van strafvordering / Code d’instruction criminelle).
• Caught in the act. When an offence is discovered in flagrante delicto (heterdaad / flagrant délit), that is while it is being committed or just afterwards, a magistrate or a judicial police officer may go to the scene to record it and carry out a search without a warrant from the investigating judge.
• Your consent. The person who has actual use and occupation of the premises may consent to a search. That consent must be given in writing and in advance (Article 1bis of the Act of 7 June 1969).

The police may also enter a home in response to a call for help from inside, or in the event of fire or flooding.

At what time can a house search begin?

A search of a place that is not open to the public may not begin before 5 a.m. or after 9 p.m. (Article 1 of the Act of 7 June 1969).

There are exceptions to this rule: when an offence is caught in the act, at the request or with the consent of the occupant, in response to a call for help from inside, in the event of fire or flooding, and where special legislation allows it. A night-time search is also possible in cases including terrorist offences and certain offences where there are serious indications that weapons or explosives are present (Article 1, second paragraph, 6°, of that Act).

The early morning, shortly after 5 a.m., is therefore a typical time for a house search.

Giving consent: think twice

Without a warrant from the investigating judge and outside cases caught in the act, everything depends on your consent. You are not obliged to give it. Refusing is not an offence, and you may not be pressured into agreeing.

Do not sign a consent form unless you understand what you are signing. The form normally states what the search relates to. So read it carefully before you sign.

If you did sign, the validity of that consent can be examined later. Were you properly informed, did you give it freely, and was it given before the search began? Did the consent really come from the person who has actual use and occupation of the premises?

Your rights during the house search

1. Stay calm and do not obstruct. Physically resisting a lawful search may constitute a separate offence and will weaken your position.
2. Ask about the legal basis. Is the search being carried out on a warrant from an investigating judge, because an offence was caught in the act, or with consent? Ask who is leading the investigation and write it down.
3. Do not make any statements. A search is not an interview, and you do not have to answer questions about the facts on the spot. Before being interviewed as a suspect, you must be informed of your rights, including the right to remain silent and, depending on the offence, the right to consult and be assisted by a lawyer (Article 47bis of the Code of Criminal Procedure). Read more about your rights during a police interview.
4. Keep track of what is seized. The seizure is recorded in an official police report (proces-verbaal / procès-verbal). Ask for a list of what is being taken away.
5. Keep everything you are given. Documents, any copy of the warrant or the form you signed will be important for your lawyer later on.

Mobile phones, computers and digital data

Mobile phones, laptops and storage media are often seized during a house search. Searching a computer system is subject to its own statutory rules (Article 39bis of the Code of Criminal Procedure).

Under certain conditions, the investigating judge may also order a person to provide access to a device or its data (Article 88quater). Whether such an order is valid in your situation, and what the consequences of refusing are, is best discussed with a lawyer first.

After the search: seized property and access to the case file

If you want seized property returned, such as a mobile phone, a vehicle or money, you can apply for it. During a preliminary investigation led by the prosecutor (opsporingsonderzoek / information), you address that request to the public prosecutor (Article 28sexies of the Code of Criminal Procedure); during a judicial investigation, to the investigating judge (Article 61quater). You can also apply for access to the case file (Articles 21bis and 61ter).

The official report of the search is a key document for the defence. It shows who was present, when the search began and ended, and on what legal basis. For what happens next, read our article on your rights as a suspect in criminal proceedings.

An irregular house search: what happens to the evidence?

A search without a valid legal basis, outside the permitted hours or based on invalid consent is irregular. This does not automatically mean that the evidence found will be excluded.

Unlawfully obtained evidence is only excluded where a formal requirement laid down on pain of nullity has been breached, where the irregularity has undermined the reliability of the evidence, or where its use would jeopardise the right to a fair trial (Article 32 of the Preliminary Title of the Code of Criminal Procedure).

The lawfulness of the search can be challenged when the investigating courts rule on the further course of the case (regeling van de rechtspleging / règlement de la procédure) and before the trial court. That argument must be well substantiated, on the basis of the full case file.

Frequently asked questions

Can I refuse a house search?

If there is no warrant from an investigating judge and no offence caught in the act, the search can only take place with your written consent. You may refuse it. If there is a warrant, you must allow the search, but you keep the right not to make any statements.

Can the police enter at night?

In principle, a search may not begin between 9 p.m. and 5 a.m. Exceptions include offences caught in the act, your own request or consent, a call for help from inside the home and certain serious offences expressly listed by law.

Can I call my lawyer?

You can notify your lawyer. The law grants the right to a lawyer’s assistance mainly during interviews, not during the search itself. If you are then interviewed or deprived of your liberty, the rights under the Salduz legislation apply, such as the right to remain silent and, depending on the situation, the right to consult a lawyer.

Can the police take me away after the search?

Yes, if there are grounds to deprive you of your liberty. That deprivation of liberty may not exceed 48 hours (Article 12 of the Constitution). Within that time, you are released or the investigating judge must issue an arrest warrant. Read more in our article on pre-trial detention and the council chamber.

Novex Advocaten can assist you after a house search

After a house search, speed matters: to prepare for an interview, to request the return of seized property and to check whether the search was lawful. We assist you in English, Dutch, French and Arabic, discreetly and at short notice.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.