BULGARIA - PENAL PROCEDURE CODE
Part two. EVIDENCING
Chapter fourteen. METHODS OF EVIDENCING
Section V. Search and Seizure
Art. 159. On a request of the court or of the bodies of the pre-trial procedures, all establishments, juridical persons, officials and citizens shall be obliged to preserve and deliver the objects, papers, computer information data, the carriers of such data and data about the subscriber, which are in their possession and may be of importance for the case.
Art. 160. (1) Where there is sufficient grounds to presume that in a room or person there are objects, papers or computer information systems, containing computer information data, which may be of importance to the case, a search shall be made for finding and seizing them.
(2) A search may also be made with the purpose of tracing down a person or a dead body.
Art. 161. (1) Search and seizure in the pre-trial procedures shall be carried out with the permission of a judge of the respective court of first instance or of a judge of the court of first instance where the action shall be performed, upon request of the prosecutor.
(2) In urgent cases, where this is the only possibility for the gathering and preservation of the evidence, the bodies of the pre-trial procedures may carry out a search and seizure even without a permission of a judge of the respective court of first instance or of a judge of the nearest court of equal rank. The record of the carried out investigation proceeding shall be presented for approval to the judge without delay but not later than 24 hours.
(3) Search and seizure in the pre-trial procedures shall be carried out on a decision of the court, which is trying the case.
Art. 162. (1) Search and seizure shall be conducted in the presence of witnesses of the act and of the person using the premises or of an adult member of his/her family.
(2) Where the person using the premises or a member of his/her family is unable to attend, the search and seizure shall be conducted in the presence of the chief of the block of flats or a representative of the municipality or the town hall.
(3) The search and seizure in premises, which are used by state or public services, shall be conducted in the presence of a representative of the service.
(4) Search and seizure in premises used by a legal person, shall be carried out in the presence of its representative. Where a representative of the legal person is not able to present, the search and seizure shall be carried out of a representative of the municipality or of the town hall.
(5) Search and seizure in premises of foreign representations of international organisations and in houses of their employees, which enjoy immunity with regard to the criminal jurisdiction of the Republic of Bulgaria shall be conducted with the consent of the chief of the representation office and in the presence of a representative of the Ministry of Foreign Affairs .
(6) Whereas the search and seizure are related to computer information systems and software products, the actions shall be carried out in the presence of an expert- technical assistant.
Art. 163. (1) Search and seizure shall be performed during the day, except if they brook no delay.
(2) Before commencement of search and seizure, the respective body shall submit the warrant thereof and shall propose to be shown the searched objects, papers and computer information systems, where are kept computer information data.
(3) The body conducting the search shall be entitled to prohibit the persons present to come into contact with other persons or between or among themselves and to leave the premises until the search is over.
(4) During search and seizure shall not be carried out any actions, which are not necessary for the purpose thereof. Premises and depositories shall be opened by force only in case of refusal to be opened avoiding unnecessary damages.
(5) When circumstances regarding the private life of the citizens have been disclosed during the search, the necessary measures shall be taken that they are not made public .
(6) The seized objects, papers and computer information systems which contain computer information data shall be submitted to the witnesses of the procedural actions and the other persons present. Whereas necessary, they shall be packed and sealed at the place of seizure.
(7) The seizure of computer information data shall be carried out by record on a paper carrier and another carrier. Whereas the carrier is a paper one, each of the pages shall be signed by the persons under Art. 132, Para 1. In the rest of the cases the carrier shall be sealed by a note, where shall be stated: the case, the body which has carried out the seizure, the place, the date and the names of all of the persons presented as per Art. 132, Para 1 and who shall sign it.
(8) Printing of the carrier, made out under the order of Para 7, shall be admitted for the necessities of the investigation only and with the permission of the prosecutor and shall be performed in the presence of witnesses of procedural actions and of an expert-technical assistant.
Art. 164. (1) Search of a person in the pre-trial procedure without a warrant by a judge of the respective court of firs instance shall be admitted:
1. upon detention;
2. where there are sufficient grounds to consider that persons attending the search have screened objects or papers of significance for the case.
(2) The search shall be conducted by a person of the same sex in the presence of witnesses of the same sex.
(3)The record of the conducted investigation action shall be produced to the judge for approval without delay but not later than within 24 hours.
Art. 165. (1) Interception and seizure of correspondence shall be allowed only when it is necessary for the detection and prevention of serious crimes.
(2) Interception and seizure of correspondence in the pre-trial procedure shall be performed upon request of the prosecutor and with the permission of a judge of the respective court of first instance or of the first-instance court in the district where the action shall be performed.
(3) Interception and seizure of correspondence in the court proceeding shall be performed on a decision of the court trying the case.
(4) Interception and seizure of correspondence shall be performed under the order of Art. 162. Para 1- 4.
(5) The provisions of Para 1 – 4 shall be also applied to interception and seizure of electronic mail.
BULGARIA - PENAL PROCEDURE CODE
Part two. EVIDENCING
Chapter thirty six. PROCEDURES IN CONNECTION WITH INTERNATIONAL COOPERATION ON PENAL CASES
Section III. International Legal Assistance in Penal Cases
International Legal Assistance in Penal Cases
Art. 471. (1) International legal assistance in penal cases of another state shall be rendered on the terms of a concluded international treaty to which the Republic of Bulgaria is a party, or on the principle of mutuality. International legal assistance in penal cases shall also be rendered to an international court of justice whose jurisdiction has been recognised by the Republic of Bulgaria.
(2) The international legal assistance shall include:
1. submission of documents;
2. investigation actions;
3. collection of evidence;
4. providing information;
5. other forms of legal assistance if they are stipulated in an international treaty to which the Republic
of Bulgaria is a party, or are imposed on the terms of mutuality .
Art. 472. The international legal assistance may be refused if the granting of the request could endanger the sovereignty, national security, public order or other interests protected by law.
Art. 473. (1) The appearance of a witness and an expert before foreign court authorities shall only be allowed if assurance is given that the summoned persons, irrespective of their citizenship, would not bear criminal liability for acts committed prior to summoning them. In the event of a refusal to appear, no coercive measures may be applied to them.
(2) Turning over persons detained in custody, in order to be interrogated as witnesses or experts, shall only be allowed in exceptional cases at the discretion of the respective district court on the grounds of papers submitted by the other state or the international court of justice, provided that the person gives his/her consent for being turned over and provided that his/her stay in the other state will not extend the term of his/her detention in custody .
Art. 474. (1) A court authority of another state may carry out through a video conference or a telephone conference the interrogation of a person who is a witness or an expert in penal procedure and is in the Republic of Bulgaria, when this is stipulated in an international treaty to which the Republic of Bulgaria is a party. An interrogation through video conference with the participation of a defendant may only be carried out with his/her consent and after the participating Bulgarian court authorities and the court authorities of the other state have agreed on the manner of holding the video conference. An interrogation through video conference or telephone conference may only be carried out if this does not contradict basic principles of the Bulgarian law.
(2) The request for interrogation from the court authority of the other state shall contain:
1. the reason for which the appearance of the person himself/herself is undesirable or impossible;
2. the name of the court authority of the other state;
3. the data of the persons who will carry out the interrogation;
4. the consent of the person who will be interrogated as a witness or an expert through a telephone conference;
5. the consent of the defendant who will participate in a hearing for interrogation through a video conference.
(3) The Bulgarian competent authorities in penal procedure shall execute requests for interrogation through video conference or telephone conference. For the needs of a pre-trial procedure, a request for interrogation through video conference or telephone conference shall be executed by the National Investigation Service. For the needs of a court procedure, a request for interrogation through telephone conference shall be executed by a court of equal degree at the place of residence of the person, and for interrogation through video conference – by the court of appeal at the place of residence of the person. The competent Bulgarian authority may require the requesting state to ensure the technical means of interrogation.
(4) The interrogation shall be held directly by the court authority of the requesting state or under its direction in accordance with its legislation.
(5) Prior to the interrogation, the Bulgarian competent authority shall establish the identity of the person who is to be interrogated. After the interrogation, a protocol shall be drawn up, reflecting:
1. the date and place of holding it;
2. the data of the interrogated person and his/her consent, should this be required;
3. the data of the persons participating from the Bulgarian side;
4. the fulfillment of other terms accepted by the Bulgarian side.
(6) A person who is abroad may be interrogated by a competent Bulgarian authority or under its direction through video conference or telephone conference, when the legislation of the other state allows this. The interrogation shall be carried out in accordance with the Bulgarian legislation and the provisions of the international treaties to which the Republic of Bulgaria is a party, regulating the said means of interrogation.
(7) Interrogation through video conference or telephone conference under Para 6 in the pre-trial procedure shall be carried out by an investigator from the National Investigation Service, and in the court procedure – by the court.
(8) The provisions of Paras 1 - 5 shall also be applied respectively to the interrogation of the persons under Para 6.
Art. 475. (1) The order for international legal assistance shall contain data of: the authority addressing it; the subject and motive of the request; the names and citizenship of the person to whom the request refers; the name and address of the person to whom the papers are to be handed over; if necessary – the indictment and a brief statement of the its facts.
(2) The order for international legal assistance shall be sent to the Ministry of Justice unless an international treaty to which Bulgaria is a party stipulates another procedure.
Art. 476. (1) The order for international legal assistance shall be executed under the procedure stipulated in the Bulgarian laws, or under a procedure stipulated in an international treaty to which the Republic of Bulgaria is a party. The order may also be executed under the procedure stipulated in the law of the other state or the statutes of the international court of justice, provided that this has been requested and does not contradict the Bulgarian laws. The other state or the international court of justice shall be informed about the time and place of execution of the order, if this is requested.
(2) The request for legal assistance and all the other notices from the competent authorities of another state, sent and received by facsimile and electronic mail, shall be received and executed by the Bulgarian competent authorities under the same procedure as those sent by ordinary mail. The Bulgarian authorities may ask for verification of the authenticity of the sent materials and may receive the originals by express mail.
(3) The Supreme Cassation Prosecution shall establish together with other states joint investigation teams in which Bulgarian prosecutors and investigation authorities shall participate. An agreement shall be concluded with the competent authorities of the participating states about the activities, term and composition of the joint investigation team. In the territory of the Republic of Bulgaria the joint investigation team shall observe the provisions of the international treaties, the terms of the agreement and the Bulgarian legislation.
(4) The Supreme Cassation Prosecution shall file requests to other states for investigation through an undercover officer, through controlled delivery and cross-boundary observation, and shall pronounce itself on such requests from other states.
(5) On the terms of mutuality, the foreign authority carrying out an investigation through an undercover officer in the territory of the Republic of Bulgaria may collect evidence in accordance with its national legislation.
(6) In urgent cases of crossing the state boundary for cross-boundary observation in the territory of the Republic of Bulgaria, the Supreme Cassation Prosecution shall be informed immediately. It shall adopt a decision for the continuation or termination of the cross-boundary observation on the terms and under the procedure of the Special Intelligence Devices Act.
(7) The execution of requests from other states for controlled delivery and cross-boundary observation shall be carried out by the competent investigating authority. It may ask for assistance the police, customs and other administrative authorities.
Art. 477. The expenses for the execution of the order shall be distributed between the countries in accordance with the international treaties to which the Republic of Bulgaria is a party, or on the principle of mutuality.
Part 2 Evidencing
Chapter 14 Methods of Evidencing
Section 5 Search and Seizure
Article 159
(2) (new – SG 32/10, in force from 28.05.2010) The pre-trial authorities or the Court may request from the European Anti-Fraud Office to provide the reports and the documents attached thereto regarding investigations conducted by the Office.
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:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.