THE COURSE OF PROCEEDINGS
A. CRIMINAL OFFENSE REPORT, PRELIMINARY INVESTIGATION AND NOTIFICATION OF CRIMINAL OFFENCE
PRELIMINARY INVESTIGATION AND SUBMISSION OF NOTIFICATION ON CRIMINAL OFFENCE
The activities of the police authority during preliminary investigation
(1) If there are grounds for suspicion that a criminal offense subject to ex officio public prosecution was committed, the police authorities shall be obligated to take necessary measures aimed at identifying, locating and capturing the perpetrator of the criminal offense, preventing the perpetrator or accessory after the fact from going into hiding or fleeing, discovering and securing traces of the criminal offense and objects which may serve as evidence as well as gathering all information which could be useful for successfully conducting criminal proceedings.
(2) In order to fulfill the duties referred to in paragraph 1 of the present Article, the police authorities may conduct the following preliminary investigation activities: seek information from citizens; carry out the necessary inspection of the means of transportation, passengers and luggage; restrict movement of people and vehicles in a certain territory for a necessary period of time, no longer than for six hours; undertake necessary measures regarding the establishment of the identities of persons or objects; issue a wanted notice for a person or warrant for objects searched for; carry out in the presence of the authorized person an inspection of objects and premises of government authorities, enterprises, firms and other legal entities; review their documentation and seize it temporarily if necessary, as well as undertake other necessary measures and actions.
2. Evidentiary Actions
Examination of a Person
An examination of a defendant will be performed even without his consent if it is necessary for establishing facts of importance for the proceedings.
Examinations of other persons may be performed without their consent only if it has to be established whether their bodies bear a certain trace or consequence of a criminal offence.
If the conditions referred to in Article 141 of this Code are fulfilled, samples may be taken for the purpose of analysis from the persons referred to in paragraphs 1 and 2 of this Article (Articles 141 and 142).
Examination of Objects
An examination is performed on movable and immovable objects of the defendant or other persons. An examination of a cadaver is performed if the conditions referred to in Article 129 paragraph 1 of this Code are fulfilled.
Everyone is required to provide for the authority conducting proceedings access to objects and to provide necessary information. Under the conditions referred to in Article 147 of this Code, movable assets may be seized.
If performance of an examination requires entering buildings, dwellings and other premises, the provisions of Article 155 and Article 158 paragraph 1 item 1) of this Code are applied.
Examination of a Location
The examination of a location is performed at a crime scene or other location where the objects or traces of a criminal offence are located.
The authority conducting proceedings may take into custody a person found at the location of the examination under the conditions stipulated in Article 290 of this Code.
2. Evidentiary Actions
Obtaining a Record
A record is obtained ex officio or on a motion of the parties by the authority conducting proceedings, or is submitted by the parties, as a rule in its original form.
If a person or state institution refuses to voluntarily surrender a record at the request of the authority of proceedings, actions will be taken in accordance with the provisions of Article 147 of this Code. If the original of a record has been destroyed, has disappeared or cannot be acquired, a copy of the instrument may be obtained.
The authority conducting proceedings will enter the contents of the instrument in the record and make a copy of the instrument, and if required return the original to the person who submitted it.
2. Evidentiary Actions
e) Obtaining Samples
Obtaining Biometric Samples
With the aim of establishing facts in the proceedings, impressions of papillary lines and body parts, buccal (cheek) swabs and personal data may be taken, a personal description made, and a photograph taken (forensic registration of the suspect) of a suspect even without his consent
When necessary for the purpose of establishing identity or in other cases of interest to the successful conduct of proceedings, the court may allow a suspect’s photograph to be made public.
In order to eliminate suspicion about being connected with a criminal offence, impressions of papillary lines and body parts and mouth swabs may be taken from an injured party or other person found at a crime scene even without their consent.
The action referred to in paragraphs 1 and 3 of this Article is performed by a professional acting under an order of the public prosecutor or the court.
Obtaining Samples of Biological Origin
The obtaining of samples of biological origin and performance of other medical actions which are under the rules of the medical profession required for the purpose of analysing and establishing facts in proceedings may be conducted even without the consent of the defendant, except if it would cause harm to his health in some way.
If it is necessary to establish the existence of a trace or consequence of a criminal offence on another person, the obtaining of samples of biological origin and performance of other medical actions in accordance with paragraph 1 of this Article may be conducted even without the consent of the person, except if it would cause harm to his health in some way.
A voice or handwriting sample may be taken from a defendant, injured party, witness or other person for the purpose of establishing facts in proceedings for the purpose of making comparisons.
The actions referred to in paragraphs 1 and 2 of this Article are performed by a healthcare professional, acting on an order of the public prosecutor or the court.
The person referred to in paragraph 3 of this Article who without a lawful reason (Article 68 paragraph 1 item 2), Article 93, Article 94 paragraph 1 and Article 95 paragraph 2) refuses to provide a voice or handwriting sample may be fined by the court by a fine of up to 150,000 dinars.
An appeal against the ruling pronouncing a fine is decided on by the panel. An appeal does not stay execution of the ruling.
Obtaining Samples for Forensic-Genetic Analysis
If necessary for detecting the perpetrator of a criminal offence or establishing other facts in the proceedings, the public prosecutor or the court may order the taking of samples for forensic-genetic analysis :
1) from the crime scene or other location where traces of the criminal offence are located ;
2) from the defendant and injured party, under the conditions stipulated in Article 141 paragraph 2 of this Code ;
3) from other persons if there is one or more characteristics that bring them in connection with the criminal offence.
In a decision pronouncing a custodial criminal sanction, a first-instance court may ex officio order a sample for forensic-genetic analysis to be taken from :
1) a defendant sentenced to a term of imprisonment of more than year in connection with an intentional criminal offence ;
2) a defendant found guilty of an intentional criminal offence against sexual freedom ;
3) a person on whom has been imposed a security measure of compulsory psychiatric treatment.
The keeping of records on the obtained samples, their safekeeping and destruction is regulated by the act referred to in Article 279 of this Code.
2. Evidentiary Actions
z) Seizure of Objects
Objects Being Seized
The authority conducting proceedings will seize objects which must be seized under the Criminal Code or which may serve as evidence in criminal proceedings and secure their safekeeping.
The decision on the seizure of funds which are the object of a suspicious transaction (Article 145) and their placement in a special account for safekeeping is issued by the court.
Among the objects referred to in paragraph 1 of this Article are automatic data processing equipment and devices and equipment on which electronic records are kept or may be kept.
2. Evidentiary Actions
z) Seizure of Objects
Procedure for Seizing an Object
A certificate is issued to a person from whom objects are seized in which they will be described, the locations where they were found indicated, data on the person from whom the objects are being sized given, and the capacity and signature of the person conducting the action given.
Documents which may serve as evidence will be listed, and if that is not possible, the documents will be placed under a cover and sealed. The owner of the documents may place his seal on the cover.
The person from whom the documents were seized will be summoned to attend the opening of the cover. If he does not respond or is absent, the authority conducting proceedings will open the cover, inspect the documents and make a list of them. In the inspection of documents care must be taken for unauthorised persons not to be allowed to learn their content.
2. Evidentiary Actions
a. Basic Provisions
Subject-matter and Grounds for a Search
A search of a dwelling or other premises or a person may be performed if it is probable that the search will result in finding the defendant, traces of the criminal offence or objects of importance for the proceedings.
A search of a dwelling or other premises or a person is performed on the basis of a court order or exceptionally without an order, on the basis of a legal authorisation.
The search of automatic data processing devices and equipment on which electronic records are kept or may be kept is undertaken under a court order and, if necessary, with the assistance of an expert.
Seizure of Objects and Documents
During a search, objects and documents connected to the purpose of the search will be
If during a search objects are found which are not connected to the criminal offence for which the search was undertaken, but which indicate another criminal offence prosecutable ex officio, they will be described in the record and seized, and a receipt on the seizure will be issued immediately.
If the search was not undertaken or attended by the public prosecutor, the authority which performed the search will notify the public prosecutor thereof immediately.
If the public prosecutor finds that there are no grounds to initiate criminal proceedings or if the reasons for which the objects were seized cease to exist, and the reasons for their confiscation do not exist (Article 535), the objects will immediately be returned to the person from whom they were seized.
2. Evidentiary Actions
b) Search Based on an Order
A search is ordered by the court, acting on a reasoned request by the public prosecutor. The search order contains the following :
1) the title of the court which ordered the search ;
2) designation of the subject-matter of the search ;
3) the reason for the search ;
4) the name of the authority which will perform the search ;
5) other data of importance for the search.
The search referred to in paragraph 1 of this Article will commence no more than eight days from the date of issuance of the order. If it does not commence in the foresaid time limit, the search cannot be performed and the order will be returned to the court.
Preconditions for a Search
After serving the search order, the holder of a dwelling and other premises or person who will be searched is asked to voluntarily surrender the person, or objects which are being sought.
The holder or person referred to in paragraph 1 of this Article will be advised of the right to retain a lawyer, or defence counsel, who may attend the search. If the holder or the person referred to in paragraph 1 of this Article requests the presence of a lawyer or defence counsel, the commencement of the search will be postponed until his arrival, but by no more than three hours.
A search may be performed even without the service of the search order, and without an invitation for a person or object to be surrendered and the advice on the right to a defence counsel or lawyer, if armed resistance or other form of violence is expected, or if there is obvious preparation for or commencement of the destruction of traces of a criminal offence or objects of importance for the proceedings, or if the holder of a dwelling or other premises is inaccessible.
The holder of a dwelling and other premises will be summoned to attend the search, and if he is absent, an adult member of his household or another person will be called to attend the search on his behalf.
When military facilities, premises or state institutions, enterprises or other legal persons are searched, their managing official or person he designates will be summoned to attend the search. If the person summoned does not appear within three hours of receiving the summons, the search may be performed without his presence.
When a lawyer’s office or an apartment in which an attorney lives is searched, a lawyer appointed by the president of the competent bar association will be summoned. If the lawyer appointed by the president of the bar association does not appear within three hours, the search may be performed without his presence.
The search is attended by two citizens of adult age as witnesses who will before the commencement of the search be advised to observe the course of the search, and that they are entitled before they sign the record of the search to enter their objections on the veracity of the content of the record. If the conditions referred to in paragraph 3 of this Article are fulfilled, the search may also be performed without the presence of witnesses.
When a search of a person is being conducted, the witnesses and the person conducting the search must be of the same sex as the person being searched.
A search is performed carefully, respecting the dignity of person and right to intimacy, without unnecessary obstruction of the house rules of order. As a rule a search is conducted in the daytime, and exceptionally at night, between 22:00 and 06:00 hours, if it was commenced in the daytime and not completed, or if it so ordered in the search order.
Locked rooms, furniture and other objects will be opened by force only if their holder is not present or refuses to open them voluntarily or a person present refuses to do so (Article 156 paragraph 4). Unnecessary damage will be avoided in the opening process.
If a search of the devices and equipment referred to in Article 152 paragraph 3 of this Code is being performed, the holder of the object or the person present (Article 156 paragraph 4), besides the defendant, is required to make possible access and provide information needed for their use unless any of the reasons from Article 93, Article 94 paragraph 1 and Article 95 paragraph 2 of this Code exist.
A record will be made of every search in which the objects and instruments being seized and the location of their finding will be accurately described, and a special explanation will be provided on why the search is conducted at night. Observations of the persons present are also entered in the record.
The record of the search is signed by the persons present. In case a person refuses to sign the record, this will be noted on the record. A receipt will be made in respect of the seized objects and will immediately be issued to the person from whom the objects or instruments were seized.
An audio or video recording may be made of the course of a search, and the objects found during the search may be photographed separately and if the search is conducted without the presence of witnesses (Article 156 paragraph 7) or without the representatives of the bar association (Article 156 paragraph 6) the recording and taking of photographs is mandatory. The recordings and photographs will be attached to the record of the search.
COURSE OF THE PROCEEDINGS
2. Authority of the Authorities Conducting Pre-investigation Proceedings
Questioning the Suspect
When the police collect information from a person for whom there exist grounds for suspicion that he is the perpetrator of a criminal offence, or undertake towards that person actions in the pre-investigation proceedings stipulated by his Code, they may summon him only in the capacity of a suspect. The suspect will be advised in the summons that he is entitled to obtain a defence counsel.
If during collection of information the police find that the citizen summoned may be deemed a suspect, they are required to advise him immediately of the rights referred to in Article 68 paragraph 1 items 1) and 2) of this Code and of the right to obtain a defence counsel who will attend his questioning.
The police will notify the competent public prosecutor without delay about acting within the meaning of the provisions of paragraphs 1 and 2 of this Article. The public prosecutor may conduct the suspect’s questioning, attend the questioning or assign the questioning to the police.
If the suspect agrees to make a statement, the authority conducting the questioning will act in accordance with the provisions of this Code relating to the questioning of a defendant provided that the consent of the suspect to be questioned and his statement during the questioning are given in the presence of his defence counsel. The transcript of this questioning is not excluded from the files and may be used as evidence in criminal proceedings.
If the public prosecutor is not present at the questioning of a suspect, the police will deliver to him without delay the transcript of the questioning.
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: