Provisional arrest

Bulgaria

Bulgaria - Criminal Code 1968 (2010) EN

Extradition and European Arrest Warrant Act

Chapter three - EXTRADITION PROCEDURE

Title I - Extradition at the request of another state

Article 13

(1) In cases of urgency the competent authorities of the requesting state may request from the Ministry of Justice or the Supreme Prosecution Office of Cassation the provisional arrest of the person sought, prior to submitting a request for extradition.

(2) A request for provisional arrest shall specify the existence of an act of detention, arraignment or of a conviction and the intention of the requesting state to file a request for extradition. The request should contain information about the criminal offence in respect of which extradition will be requested, and when and where such offence was committed, as well as a description of the person sought.

(3) Where the request for provisional arrest was filed by a state with which the Republic of Bulgaria has no extradition agreement, the Minister of Justice shall notify the Supreme Prosecution Office of Cassation of the existence of reciprocity.

(4) A request for provisional arrest may be sent by mail, telegraph, telex, fax, through the diplomatic channel, the International Criminal Police Organisation (Interpol) or in another way, allowing the production of a written record as evidence of its receipt and content.

(5) Once the person has been located in the territory of the Republic of Bulgaria and his/her identity has been ascertained, the Supreme Prosecution Office of Cassation shall detain him/her for a period of up to 72 hours and forward the request for provisional arrest together with all documents to the District Prosecutor in whose are the person is located.

(6) Within the period under para 5 the District Prosecutor shall appoint a defence counsel and an interpreter to the person where he/she has no command of the Bulgarian language and shall lodge an application for his/her provisional arrest with the respective District Court.

(7) The District Court shall review the application in pursuance of Art. 152a, paras 5 and 8 of the Criminal Procedure Code and shall pronounce a ruling whereby it shall apply a measure of provisional arrest or another measure of procedural coercion which will ensure the participation of the person in extradition proceedings. The measure of provisional arrest shall be taken for up to 40 days or another period, as provided for in an international treaty to which the Republic of Bulgaria is a party.

(8) A ruling under para 7 may be appealed and protested before the respective Appellate Court within three days.

(9) The Supreme Prosecution Office of Cassation shall forthwith notify the Minister of Justice and the requesting state of the measure applied.

(10) At the requested of the arrested person under the period specified in para 7 the District Court may modify provisional arrest into another measure of procedural coercion which can ensure the participation of the person in extradition proceedings, acting in pursuance of Art. 152b of the Criminal Procedure Code. The ruling of the District Court may be appealed and protested before the respective Appellate Court within three days.

(11) The prosecutor shall rescind the measure of provisional arrest where within the period of provisional arrest specified by the court the Republic of Bulgaria does not receive a request for extradition and the documents under Art. 9, para 3.

(12) Release of the person shall not be an obstacle to his/her further arrest to the purpose of extradition or to the extradition itself, where the request for extradition is received after expiry of the period under para 7.

Bulgaria - Criminal Procedure Code 2006 (2011) EN

BULGARIA - PENAL PROCEDURE CODE

Part one. GENERAL RULES

Chapter seven. ACCUSED

Section II. Restraining Measure and Other Measures of Procedural Compulsion

Art. 56. (1) To the accused a restraining measure may be taken in case of general nature, where from the evidence on the case a reasoned assumption that he/she has committed the crime and a ground under Art. 57 appear.

(2) Where the accusation is brought under the conditions of Art. 269, Para 3, items 2 and 3, a restraining measure shall be taken after the inquiry of the accused.

(3) At determination of the restraining measures, the degree of social danger of the crime, the evidence against the accused, the health status, family status, the profession, the age and other data about the accused shall be taken in view.


Art. 57. The restraining measures shall be taken with the purpose to stop the accused to abscond, to commit a crime or to foil the execution of the entered in force sentence.

BULGARIA - PENAL PROCEDURE CODE

Part one. GENERAL RULES

Chapter seven. ACCUSED

Section II. Restraining Measure and Other Measures of Procedural Compulsion

Art. 63. (1) The restraining measure detention in custody shall be taken when a grounded assumption that the accused has commuted a crime, which is punishable with imprisonment or other stricter punishment, and the evidence on the case indicate that a real danger that the accused may abscond or commit a crime exists.

(2) Should the opposite not be found from the evidence under the case, the danger under Para 1 shall be there upon the initial disposition of detention in custody, when:

1. 1. The charge is for an offence committed repeatedly or under the conditions of a dangerous recidivism;

2. The charge is for a grave malicious crime and the accused has been convicted for another grave malicious crime of general nature to imprisonment of no less than one year or to another more severe punishment, the execution of which has not been delayed on the grounds of Art. 66 of the Penal Code;

3. the person has been involved as accused in a crime for which a punishment of at lest 10 years imprisonment or other more severe punishment is provided .

(3) Where the danger that the accused may abscond or commit another crime is over, the detention in custody shall be replaced by a lighter restraining measure or shall be cancelled.

(4) The detention in custody in the pre-trial proceeding shall not last for more than one year, if the charge is for a major malicious crime and for more than two years, if the charge is for a crime for which a punishment of not less than fifteen years of imprisonment or life imprisonment is provided. In all the rest of the cases, the detention in custody in the pre-trial proceeding shall not last for more than two months.

(5) After the expiration of the terms referred to in Para 4, the detained shall be released without delay by order of the prosecutor.

(6) Where in the pre-trial procedure is found that the grounds of Para 3 present, the prosecutor by his/her initiative shall change the restraining measure detainment in custody into a lighter or shall cancel it.

(7) About the detainment in custody immediately shall be notified:

1. the family of the accused;

2. the employer of the accused, except the accused declares that he/she does not want this;

3. the Ministry of Foreign Affairs, if the detained is a foreign citizen.

(8) The detainee’s children, if they have no relatives to nurse them, shall be accommodated through the respective community or municipality in a nursery, a kindergarten or a boarding school.

Art. 64. (1) (1) Detention in custody in the pre-trial procedure shall be ordered by the respective court of first instance on a motion of the prosecutor.

(2) The appearance of the accused before the court shall be ensured without delay by the prosecutor, who where necessary, may order that the accused be detained up to 72 hours for bringing him/her before the court.

(3) The court shall hear the case immediately in a sitting of a single judge with the participation of the prosecutor, the accused and his/her counsel.

(4) The court shall take restraining measure detainment in custody, where the grounds of Art. 63, Para 1 appear, and if these grounds do not appear, the court is allowed not to take restraining measure or to take a lighter one.

(5) The court shall rule a definition, by which shall be announced to the parties in the court hearing and shall be executed immediately. By ruling the definition the court shall set down the case for hearing before the appellate court within a period of not more than seven days, in case of an appeal or an objection.

(6) The definition shall be subject to appeal and objection before the appropriate appellate court within three-day time period.

(7) The appellate court shall try the case in a composition of three judges in open session with the participation of the prosecutor, the accused and his or her counsel. The non-appearance of the accused without good reasons shall not prevent the hearing of the case.

(8) The appellate court shall rule a definition, which shall be announced to the parties in the court hearing. The definition shall not be a subject to appeal by private complaint or private objection.

(9) Where guarantee has been imposed by virtue of the effective definition, the accused shall be detained after depositing it.

Art. 65. (1) The accused or his/her defender may at any time in the pre-trial procedure to require change of the imposed measure detainment in custody.

(2) The motion of the accused or his/her defender shall be brought through the prosecutor who shall be obliged to forward immediately the case to the court.

(3) The case shall be set down for hearing within three-days period following its receipt into the court and shall be heard in open session with the participation of the prosecutor, the accused and his/her defender. The case shall be tried in the absence of the accused, if he/she states that he/she does not want to appear or his/her bringing before the court is impossible for health reasons.

(4) The court shall assess all circumstances relating to the legality of the detention and shall rule a definition, which shall be announced to the parties at the court session. With the announcement of the order the court shall set down the case for hearing before the appellate court in case of an appeal or an objection within a period of not more than seven days

(5) The definition shall be executed immediately following the expiration of the term for appeal except if an objection, which is not in the accused’s interest, has been filed.

(6) When the motion has been brought by the accused or by his/ her defender and the definition under Para 4 confirms the restraining measure, the court may set a time period in which a new motion by the same persons shall be inadmissible. Such period shall not exceed two months following the entry into force of the definition and shall not be applied when the motion is grounded on a sudden decline of the accused’s state of health.

(7) The definition shall be subject to appeal by a private complaint and a private protest before the appropriate appellate court within three-days period.

(8) The appellate court shall try the case in a body of three judges in open session with the participation of the prosecutor, the accused and his/her defender. The case shall be tried in the absence of the accused, where he/she states that he/she does not want to appear or his/ her bringing to court is impossible for health reasons.

(9) The appellate court shall rule a definition, which shall announce to the parties in the court session. The definition shall not be a subject to appeal by a private complaint or private protest.

(10) Where by virtue of the effective definition a guarantee has been imposed, the accused shall be detained until depositing it.

(11) Para 1- 10 shall also apply in the cases, where the accused has been detained because of non-payment of the guarantee determined by the court.

Rome Statute

Article 92 Provisional arrest

1. In urgent cases, the Court may request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91.

2. The request for provisional arrest shall be made by any medium capable of delivering a written record and shall contain:

(a) Information describing the person sought, sufficient to identify the person, and information as to that person's probable location;

(b) A concise statement of the crimes for which the person's arrest is sought and of the facts which are alleged to constitute those crimes, including, where possible, the date and location of the crime;

(c) A statement of the existence of a warrant of arrest or a judgement of conviction against the person sought; and

(d) A statement that a request for surrender of the person sought will follow.

3. A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in article 91 within the time limits specified in the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.

4. The fact that the person sought has been released from custody pursuant to paragraph 3 shall not prejudice the subsequent arrest and surrender of that person if the request for surrender and the documents supporting the request are delivered at a later date.