Duties and operational limits of security guards: no to searches

The growing use by local authorities of private security services makes it necessary to redefine the boundary between activities that may be entrusted to authorised organisations and those reserved for the police. Sworn private security guards may patrol museums, libraries, parks, public buildings, sports facilities and infrastructure, control access and the flow of people, carry out inspection and surveillance duties, respond to alarm systems and provide complementary security services, including armed services where the nature of the service so requires. However, they may not carry out activities judicial police duties, forcibly identify individuals, carry out searches or perform public functions.

In Judgment No. 226/2010, handed down regarding the regulations governing the so-called “volunteer patrols” introduced by the 2008 Security Decree, the Constitutional Court clarified that urban security does not amount to with social unrest, but with the prevention and suppression of crime, and falls within the exclusive competence of the State. This principle also applies to private security: authorised entities may contribute to security through observation, surveillance and the protection of property, in accordance with the model of collaboration outlined in the ‘A Thousand Eyes on the City’ Protocol, promoted by the Ministry of the Interior and based on the prompt reporting of incidents to the police, but they cannot replace the police in the exercise of public security functions.

The Consolidated Act on Public Security (TULPS), the relevant implementing regulations and Ministerial Decree 269/2010 govern private security, whilst ANAC Guidelines No. 10/2018 distinguish it from mere security guard services or concierge services. Unlike these latter activities, private security involves active monitoring of the property entrusted to them, which entails intervention in the event of an alarm or in situations of risk. For this reason, it is reserved for authorised organisations and specially sworn security guards: ‘special’ because they are called upon to protect specific property or interests, and ‘sworn’ because their appointment is approved by the Prefect and they are required to take an oath.

The TULPS Act designates private security guards, whilst carrying out their surveillance and security duties, as public service officers. This designation affects the rules governing criminal liability, without, however, extending the operational powers conferred upon them. Consequently, in the cases provided for by law, specific offences against the public administration are applicable, such as embezzlement and corruption; furthermore, the obligations specific to public service officials arise, starting with the duty to report offences that are prosecutable ex officio.

However, they are neither public officials nor law enforcement officers. This distinction becomes particularly clear when a security guard witnesses the commission of a crime. Their duty is to protect the property entrusted to them, prevent further consequences of the crime, promptly alert the police and assist in establishing the facts. They may only make an arrest in the same circumstances in which the law permits any private citizen to do so, namely for an offence that is prosecuted ex officio and for which the law provides for mandatory arrest in flagrante delicto. The person arrested must be handed over to the judicial police without delay.