CHAPTER V THE DEFENDANT’S LAWYER
Article 52 Guarantees for the defense lawyer
Examinations and searches in the office of a defense lawyer are allowed only:
a) when he or other persons who constantly carry out their activity in the same office, are defendants and only for the purpose of proving the criminal offence attributed to them;
b) to discover traces or material evidence of the criminal offence or to search for items or persons specifically defined.
a) in cases when the defence lawyer is in the conditions of flagrante delicti or pursue of escaping, pursuant to paragraph 1 of article 298 of this Code.
Prior to conducting an examination, search or a sequestration in the defense lawyer’s office, the proceeding authority notifies the Directing Board of the Bar Association so that one of its members may have the possibility to be present in these activities. Except for cases of flagrante delicto, the proceeding authority shall postpone the examination, search or sequestration until the arrival of the assigned member, but no longer than two hours after the Bar Association has been informed. In any case, a copy of the act shall be sent to the Directing Board of the Bar Association.
Searches, examinations and sequestrations in the defense lawyers’ offices, pursuant to letters “a” and “b” of the first paragraph of this article, are performed by the judge in person, whereas during the preliminary investigations they are performed by the prosecutor, based on an authorizing decision of the court.
Interceptions of conversations or communications between defense lawyers and their assistants, or between defense lawyers and the persons they defend are not allowed.
Any form of inspection of the mail between the defendant and his defense lawyer is prohibited, except when they constitute material evidence of the criminal offence object of investigations.
Inspections, searches, sequestrations, or interceptions of conversations or communications carried out in violation of the provisions above mentioned may not be used.
CHAPTER III TOOLS FOR SEARCHING EVIDENCE
SECTION II SEARCHES
Article 202 Conditions for conducting searches
1. When there are reasonable grounds to believe that someone is concealing material evidence of the criminal offence or items belonging to the criminal offence in his/her body, the court shall issue a body search warrant. When these items are located at a certain place, the place or house search warrant shall be issued.
2. The court which has issued the search warrant may act itself or order judicial police officers, specified in the search warrant, to conduct the search.
3. In case of flagrancy or chasing of a person fleeing, where it is not possible to obtain a search warrant, the judicial police officers shall conduct a search of a person or place, in compliance to the rules provided for in Article 298.
Article 202/a Decision for permitting the search
1. The decision permitting the search shall indicate the type of search, the person being searched and his/her personal data, location or residence being bound to control, exhibits or things being searched, reasons permitting the search, as well as the authority to perform it.
2. Where there are grounded reasons that the data, information, IT programs or their traces are in an IT or telematics system, and this is protected by precautionary measures, the court shall make a decision on the search, by way of ordering the appropriate technical measures, which ensure the preservation of the original data and do not allow their modification. The decision imposing the search shall determine the type of information being required and the way of obtaining it.
3. The court shall make a substantiated decision in closed session, within 24 hours of the request of the prosecutor being filed. Against the decision rejecting the search request, a direct complaint may be filed with the appeal court within 24 hours. The appeal court shall decide within 48 hours of the acts being taken.
4. The search has to be completed within 72 hours from the moment the decision for its accomplishment has been made.
Article 203 Request for handing over
1. Where a certain asset is being required, the proceeding authority may seek the handover. If the thing is handed over, the search shall not occur, except for the cases where behind the handover of the item there are reasonable grounds to believe that the search may discover trails or other things connected to the criminal offence.
2. To determine the items which could be sequestered or verify certain circumstances necessary for the investigation, the proceeding authority or its authorized judicial police officers shall be permitted to search bank operations, documents or correspondence.
Article 204 Search of persons
1. Prior to conducting a body search, a copy of the search warrant shall be provided to the person subject to the search, informing him for the right to request the presence of a trusted person of him, provided that he can be found immediately and is appropriate.
2. The search shall occur abiding by the personal dignity of the person being searched. The search of the person shall be conducted by a person of the same gender, except in cases when this is not possible due to the circumstances.
Article 205 Search of places
1. The defendant, if the latter is present, and the person possessing the premises, shall be handed over the search decision, while making them aware of the right to seek the presence of a person
of their trust, who is there and appropriate under Article 108 of this Code, or his/her defence lawyer.
2. Where the defendant seeks the presence of the defence lawyer while conducting the search, the proceeding authority shall postpone the conduct of the search to the moment of arrival of the defence lawyer, however, not more than 2 hours from the moment that the defence lawyer has been informed about the search. During this period, the proceeding authority may restrict the movement of the interested person or other persons being at the location where the search shall be conducted.
3. The postponement of the search, under paragraph 2 of this Article, shall extend the respective time period provided for in paragraph 4 of Article 202/a of this Code.
4. The proceeding authority may search the persons being present, upon deeming that they may hide the exhibit or the things belonging to the criminal offence. It may order the persons being present no to leave prior to the search being completed and get those leaving coercively turned back.
5. Where the owner or the possessor of the item is not found, the proceeding authority shall carry out the search at the obligatory presence of the defence lawyer being appointed ex officio.
Article 206 Time for house searches
1. The search of a house or in closed places next to it cannot begin before 07:00 hours nor after 20:00 hours. In urgent cases, the proceeding authority can order in writing that the search is conducted outside these limitations.
Article 207 Sequestration during searches
1. Items found out during a search shall be seized, provided that they are indicated in the decision authorizing the search.
Other items found during the search and not included in the respective decision, yet, connected to the same criminal offence, may be seized abiding by the provisions regulating sequestration.
2. When during the search items are discovered bearing no connection with the criminal offence wherefore the search decision has been issued, however, connected to another criminal offence being prosecuted ex officio, the discovered items shall be seized.
3. Regarding the sequestration carried out under the conditions of paragraphs 2 and 3 of this provision, the criteria of Article 301 of this Code shall apply.”
SECTION III SEQUESTRATIONS
Article 208 Scope of the sequestration
1. A judge, or prosecutor, shall order by reasoned decision the sequestration of material evidence and items related to the criminal offence, when they are needed for evidencing the facts.
2. Sequestration shall be carried out by the person who has issued the sequestration order or the judicial police officer authorised by the same order.
3. A copy of the sequestration decision shall be delivered to the interested person.
Article 208/a Sequestration of computer data
1. In cases of proceedings against crimes concerning information technology, the court upon request of the prosecutor, shall order the sequestration of computer data or systems. With the same decision, The court shall establish the right to access, search and take computer data from the computer system as well as the prohibition to perform further actions or the securing of the computer data or system.
2. If there are reasonable grounds to believe that the computer data have been stored in another computer system or in any parts of it, and such data may be legally obtained by, or in the availability of, the initial computer system being controlled, the court upon request of the prosecutor shall immediately order the search or access to such computer system.
3. In executing the court decision, the prosecutor or the judicial police officer authorized by the prosecutor shall adopt measures:
a) to prevent any further action being taken or to secure the computer system or part of it or of another data storage device;
b) to take out and obtain copies of computer data;
c) to prevent the access to computer data, or to remove such data from accessible computer systems;
ç) to ensure the inviolability of the relevant stored data.
For the executions of such actions, The prosecutor may order the summoning of an expert who is competent in the field of computer system functioning or the measures applied for the protection of the computer data. The summoned expert may not refuse to conduct the tasks assigned to him without reasonable grounds.
Article 209 Sequestration of correspondence
1. When the court has grounded reasons to think that in the postal or telegraphic offices there are letters, securities, envelopes, parcels, telegrams and other items of correspondence which have been sent by or to the defendant, even under another name or through another person, it shall order for their sequestration.
2. When sequestration is performed by a judicial police officer, he must deliver to the judicial authority the correspondence items sequestered without opening and without having access to their content in any other way.
3. The sequestered items which do not classify as correspondence which may be sequestered shall be returned to their possessor and may not be used
Article 210 Sequestration at bank offices
1. The court may order the sequestration of banks documents, securities, amounts deposited in current accounts and any other things, even if they are in safety boxes, when there are grounded reasons to think that they are connected to the criminal offence, even when they do not belong to the defendant or are not under his/her name. In urgent cases, such decision may be taken by the prosecutor.
Article 211 Obligation to hand over and maintain secrecy
1. Persons bound to maintain professional or state secrecy must immediately hand over to the proceeding authority acts and documents, even in the original copies, and anything else being kept by them because of their duty, service or profession, except when they declare in writing that it is a state secret or a secret related to their duty or profession. In the latter case, the necessary verifications shall be conducted and, when it results that the declaration is groundless, the proceeding authority shall order for the sequestration.
2. When the competent authority confirms the state secrecy status, the proceeding authority shall inform the competent authority asking for confirmation to be given, and evidence is crucial to the solution of the case, the proceeding authority shall decide to acquire the evidence.
3. When within thirty days from the request the competent authority does not confirm the secrecy status, the proceeding authority shall order the sequestration.
Article 211/a Sequestration at the offices of the intelligence services
1. Where it is necessary to perform sequestrations of documents, acts or other items at the offices of the intelligence services, the activity of which is connected to the national security, the court shall, in the reasoning of the sequestration decision, indicate in a detailed manner as possible, the acts or items being subject to sequestration.
2. The court shall authorise the prosecutor for examining the documents, acts and items to be sequestered, who he shall take only those which are indispensable for the purposes of the investigation.
3. Where there are reasonable grounds to believe that the documents, acts or items are not made available or are not complete, the court shall inform the competent body, which shall proceed to the delivery of the documents, acts or other items or to confirm their absence.
4. Where the need emerges for obtaining the original or the copy of the document, act or item created by a foreign intelligence service, having been given on the condition of non- dissemination, the examination and handover shall be suspended. In this case, the competent
authority is promptly notified to communicate with the foreign authority for deciding on the further maintenance of secrecy. Within 60 days, the competent body shall authorise the handover of the document, act or item, or confirm the need to preserve the State secrecy.
5. If the competent body does not respond within the time limit provided for in paragraph 4, of this article, the court shall order the taking of the document, act or item subject to sequestration.
Article 212 Challenging the sequestration decision
1. The Defendant, the person whose items have been sequestered and the one who has a claim on them, may lodge a complaint at the court, which rules by reasoned decision within 10 days.
1. An appeal may be proposed against the court decision within 5 days. The court of appeal shall issue a reasoned decision within 10 days of the receipt of the relevant acts.
2. The appeal does not suspend the execution of the decision.
Article 213 Copies of the sequestered documents
1. The preceding authority may order the issuing of copies of the sequestered acts and documents, returning the original copies and, when the original copies must be retained, order the secretariat to issue certified copies.
2. In any case, the person or office where the sequestration took place shall be entitled to hold a copy of the minutes of the sequestration.
3. If the sequestered document is part of a book or register from which it cannot be separated, and the proceeding authority needs the original document, the book or register shall remain at the disposal of the proceeding authority. The Secretary of the proceeding authority shall issue to the interested persons upon their request, copies, extracts or certificates of parts of the book or register which have not been sequestered.
Article 214 Custody of sequestered items
1. Sequestered items shall be kept in custody at the secretariat. When this is not possible or appropriate, the proceeding authority shall order for them to be kept in custody in another place, specifying the manner of custody.
2. During the delivery, the person in charge shall be warned on the obligation of custody and presentation of items when requested by the proceeding authority as well as the punishment envisaged in the criminal law for violation of custody duty.
Article 215 Sealing of sequestered items
1. Sequestered items shall be secured with the seal of the proceeding authority or, depending on the nature of the items, with other adequate means which indicate that they are kept for justice needs.
2. The proceeding authority shall issue copies of the documents and pictures or other reproductions of sequestered items which might change or are difficult to be preserved, which shall be attached to the documents and orders that they are filed with the secretariat.
3. For items which might change, the proceeding authority shall order, as the case may be, their transfer or destruction.
4. Upon the request of proceeding authority, the court may order the destruction of items that are prohibited to be produced, possessed, kept, traded when their safeguarding is difficult, especially costly, or is risky for the public security, public health or hygiene. In this case, the court orders the taking of samples and their preservation for proceeding purposes.
5. The proceeding authority informs the retained or ex officio appointed defense lawyer of the place and date when the samples will be taken, at least 24 hours in advance. Failure of the defense lawyer to attend the taking of samples does not prevent the proceeding authority from their taking.
6. The procedure for the destruction of the sequestered items, the time limit and the competent authority shall be established by a joint instruction of the Minister responsible for public order and security and the Minister of Justice. When possible, actions shall be documented by means of audio-visual tools and in any case minutes shall be kept, a copy of which shall be sent to the prosecution office at the court deciding the destruction.
Article 216 Opening and closing of seals
1. The proceeding authority, when it wants to open seals, verifies whether they are damaged and if it ascertains any changes, it shall record that in minutes. After the action which required the opening of seals is performed, the sequestered items shall be re-sealed, providing the date of intervention close to the seal.
Article 217 Return of sequestered items
1. When keeping the sequestration is not necessary any more for any evidence purpose, the sequestered items shall be returned to the one they belong to, even before a final decision is issued. When necessary, the proceeding authority shall order that such returned items are re- brought again at its disposal.
2. The court may also rule that the sequestered items are not returned if upon request of prosecutor or civil plaintiff the sequestration must be retained to secure the civil claim.
3. After the decision issued becomes final, the sequestered items shall be returned to the person they belong to, unless a confiscation order has been issued on them.
Rules on returning of sequestered items
The court shall rule for the return the sequestered items where there is no doubt regarding their belonging
When items are sequestered from a third party, their return may not be ordered in favour of other parties, without the third party being heard by the court.
2. During the preliminary investigations, the return of sequestered items shall be ordered by the prosecutor. Interested parties may appeal against such order at court.
Article 219 Disposal in case of non-restitution
1. If in a year from the day the decision becomes final the restitution request has not been filed or has not been admitted, the court which issued the decision shall order for the money or securities to be deposited in a bank, in a special account. Regarding the items, an order for their sell out shall be issued, while those which have a scientific or artistic value shall be transferred to the relevant institutions.
2. The sale may be ordered also before the time period indicated in paragraph 1, when the items may not be preserved without incurring the risk of being perished or with considerable expenses.
3. The amounts raised as a result of the sale shall be deposited in a special bank account.
Article 220 Expenses related to sequestered items
1. Expenses needed for maintaining sequestered items, shall be covered by the state, which shall have priority over any other creditor towards the amounts deposited from the non-returned items and values.
TITLE VI PRELIMINARY INVESTIGATIONS
CHAPTER IV EX OFFICIO ACTIVITIES OF THE JUDICIAL POLICE
Article 298 Searches
1. In the cases of flagrante delicto or pursue of a person escaping, the judicial police officers shall perform a search on the person or premises when they have reasonable grounds to believe that the person conceals items or traces of a criminal offence, which may disappear or be lost or that these items or traces are in a certain place or where the person under investigation or escaping is located.
2. When a detention must be carried out, an arrest or sentence by imprisonment decision be executed, the judicial police officers may carry out a search of the person or premises, where there exist the conditions stipulated in paragraph 1 and there are particular reasons of urgency that does not permit the issue of a search decision. When delay may compromise the successful conclusion of investigations, the house search may be carried out even outside the time limits provided for under article 206.
3. In cases of flagrante delicto or pursuit of an escaping person or when a detention must be carried out, or an arrest decision or a sentence by imprisonment must be executed, judicial police shall take all technical measures aimed at ensuring the preservation of the original computer data and preventing their loss, damage, and alteration and shall carry out all further searches of computer data, when there are reasonable grounds [to believe] that they contain information, software or traces of the criminal offence.
4. The minutes of the acts carried out shall be sent immediately, but not later than forty -eight hours, to the prosecutor of the place where the search was conducted, who, within the next forty eight hours, shall proceed pursuant to the Article 301 of this Code
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions: