EVIDENCE AND MEANS OF EVIDENCE
MEANS OF EVIDENCE
Confiscation of objects and writings.
Performance of searches
Confiscation of objects and writings
Art. 96 - The criminal investigation body or the court must take away the objects or writings that may serve as means of evidence in the criminal trial.
Delivery of objects and writings
Art. 97 - Any natural person or legal person who possesses an object or a piece of writing that may serve as means of evidence must appear and hand it, and take a proof for this, to the criminal investigation body or to the court, at their request.
If the criminal investigation body or the court considers that even a copy of a piece of writing may serve as a means of evidence, it keeps only the copy.
If the object or the writing has a secret or confidential character, the presentation or the delivery is done in circumstances that would ensure keeping the secret or confidentiality.
Retaining and handing over of correspondence and objects
Art. 98 - The court, with the prosecutor's proposal, during the criminal investigation or ex officio, may order that any post or transport office retain and deliver the letters, telegrams or any other correspondence, or the objects sent by the accused person or defendant, or addressed to him/her, either directly or indirectly.
The measure provided at par. 1 is disposed if the conditions shown in art. 91(1) par. 1 are met and according to the procedure provided there.
The retaining and handing over of letters, telegrams or any other correspondence or objects to which par. 1 makes reference may be disposed, in writing, in urgent and fully justified cases , by the prosecutor as well, who is obliged to immediately inform the court about this.
Retained correspondence and objects that have nothing to do with the case are returned to the addressee.
Confiscation by force of objects or writings
Art. 99 – If the object or writing required is not delivered voluntarily, the criminal investigation body or the court order confiscation by force.
During the trial, the order of confiscation by force of objects or writings is communicated to the prosecutor, who takes enforcement measures through the criminal investigation body.
Art. 100 - When the person asked to deliver one of the objects or writings mentioned in art. 98 denies their existence or possession, as well as whenever the search is necessary in order to discover and gather evidence, a search may be ordered.
The search may be domiciliary or corporal.
Domiciliary search may be disposed only by the judge, through motivated closing, during criminal prosecution, upon prosecutor’s request, or during trial.
Domiciliary search is disposed during criminal prosecution in the council room, without summoning of the parties. The participation of the prosecutor is mandatory.
Corporal search may be disposed, according to the case, by the criminal investigation body, by the prosecutor or by the judge.
Domiciliary search may not be disposed before the beginning of the criminal investigation.
Domiciliary search during criminal investigation
Art. 101 - The search ordered during criminal investigation, according to art. 100, is performed by the prosecutor or by the criminal investigation body, accompanied, according to the case, by operational workers.
Domiciliary search during trial
Art. 102 - The court may perform a search on the occasion of a local investigation.
In the other cases, the court's order to perform a search is communicated to the prosecutor, in order to proceed with the search.
The time for making the search
Art. 103 - Confiscation of objects and writings, as well as domiciliary search may be performed between 6 a.m. - 8 p.m., and at other times only in case of flagrante delicto, or when the search is to be performed in a public place. The search begun between 6 a.m. - 8 p.m. may continue during the night.
The search procedure
Art. 104 - The judicial body that will perform the search must prove its identity and, in the cases stipulated by the law, present the authorization given by the prosecutor.
The taking away of objects and writings, as well as domiciliary search are performed in the presence of the person from whom the objects or the writings are taken away, or whose place is searched and, when the person is absent, in the presence of a representative, of a member of the family or of a neighbour, having exertion ability.
These operations are performed by the criminal investigation body in the presence of assistant witnesses.
When the person whose place is searched is held or arrested, he/she will be brought to the search. In case he/she cannot be brought, the taking away of objects and writings, as well as domiciliary search, are performed in the presence of a representative or a member of the family, and, in their absence, in the presence of a neighbour having exertion ability.
Performing domiciliary search
Art. 105 - The judicial body that performs the search has the right to open the rooms or other means of enclosing where the objects or the writings wanted may be found, if the person entitled to open them refuses to do so. The judicial body must limit itself to confiscation of objects and writings connected to the deed committed ; objects and writings whose circulation and possession are forbidden are always taken away.
The judicial body must take measures so that facts and circumstances in the personal life of the person whose place is searched which are not connected with the case are not made public.
Performing corporal search
Art. 106 - Corporal search is performed by the judicial body that ordered it, following the provisions of art. 104 paragraph 1, or by the person appointed by this body.
Corporal search is performed only by a person of the same gender with the person being searched.
Identifying and keeping objects
Art. 107 - Objects and writings are shown to the person from whom they are taken away and to those who assist, in order to be recognized and marked by them in order not to be changed, after which they are labelled and sealed.
The objects that cannot be marked, labelled or sealed are wrapped up or closed, together if possible, after which they are sealed.
The objects that cannot be taken away are attached and left to be kept, either by the person who has them or by a custodian.
Tests for analysis are taken at least twice and are sealed. One test is left with the person from whom they are taken or, in his/her absence, with one of the persons mentioned in art. 108, final paragraph.
Official report for search and confiscation of objects and writings
Art. 108 - An official report is drawn up mentioning the performance of the search and confiscation of objects and writings.
The official report must include, besides the specifications stipulated in art. 91, the following: place, date and circumstances in which the writings and the objects have been found and taken away, a list and detailed description of these, in order to be recognized.
The objects that have not been taken away, as well as those left for keeping are also mentioned in the official report.
A copy of the official report is left with the person to whom the search has been performed or from whom the objects or writings have been taken away, with the representative, a member of the family, the persons he lives with or a neighbour and, if such is the case, with the custodian.
Measures regarding confiscated objects
Art. 109 - The criminal investigation body or the court order that the objects or writings taken away, that represent means of evidence are, according to case, attached to the record or kept in another way.
The taken away objects and writings that are not attached to the file may be photographed. In this case, the photos are stamped and attached to the record.
Until the case is finally resolved, material means of evidence are kept by the criminal investigation body or by the court where the record is.
Objects and writings delivered or taken away during the search which are not connected with the case are returned to the person to whom they belong. Confiscated objects are not returned.
The objects that serve as means of evidence, if they are not subject to confiscation, may be returned to the person to whom they belong, even before the trial is finally resolved, unless the return might impede the revealing of the truth. The criminal investigation body or the court informs the person to whom the objects were returned that he/she must keep them until the case is finally resolved.
Conservation or use of confiscated objects
Art. 110 - The objects that serve as means of evidence, if they are among those mentioned in art. 165 paragraph 2 and if they are not to be returned are kept or used according to the provisions of that article.
Special provisions regarding public units and other legal persons
Art. 111 - The provisions in the present section are also enforced accordingly when the procedural acts are performed at a unit among those referred to in art. 145 in the Penal code, provisions completed as follows :
a) the judicial body proves its identity and, according to the case, shows to the representative of the public unit or to another legal person the authorization given ;
b) the confiscation of objects and writings, as well as the search, are performed in the presence of the representative of the unit ;
c) when the presence of assistant witnesses is obligatory, they may be part of the unit staff ;
d) a copy of the official report is left with the representative of the unit.
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: