1. SEARCH OF DWELLINGS, ARTICLES AND PERSONS
Reasons for Search of dwellings, other premises, movable articles and persons
(1) search of dwellings and other premises of the accused persons or other persons as well as their movable articles outside the dwellings may be carried out if grounds for suspicion exist that in the course of search the perpetrator would be caught or that traces of the criminal offence or objects relevant to the criminal procedure would be found.
(2) The search of movable articles within the meaning of Paragraph 1 of this Article shall include the search of computers and similar devices for automatic data processing to which the computer is connected. At the request of the Court, the person using a computer shall enable access to the computer and removable storage used for storing information relative to the object of the search (discs, USB flash discs, USB hard discs, diskettes, tapes and alike), as well as give necessary information on the use of the computer. Persons who refuse to do so although reasons referred to in Article 111 of the present Code do not exist may be punished pursuant to Article 85 paragraph 3 of the present Code.
(3) search of persons may be carried out if grounds for suspicion exist that in the course of search traces and objects relevant to the criminal procedure would be found.
Search Warrant and Request for a search warrant
(1) A search warrant shall be issued by the court at the request of the State Prosecutor or at the request of an authorized police officer granted authorization by the State Prosecutor, and it shall be enforced by the police.
(2) A request for the issuance of a search warrant shall be submitted in writing, and only exceptionally orally in line with Article 78 of the present Code.
Contents of the Request for a Search Warrant
The request for issuing a search warrant shall contain :
1) the name of the applicant,
2) the name of the court to which the request is addressed,
3) facts indicating the likelihood that reasons for search exist referred to in Article 75 of the present Code,
4) the first and the last name, and, if necessary, a description of the person to be apprehended during the search of dwellings or other premises, or expected traces and a description of objects that should be found by the search,
5) the designation of the location of the search, by indicating the address, information about the owner or the person in possession of the objects, dwellings or other premises and any other information of importance to establish the identity, and
6) signature of the applicant.
Verbal Request for a Search Warrant
(1) A verbal request for issuing a search warrant may be filed when risk of delay exists.
(2) The request from paragraph 1 of this Article may be communicated to the investigating judge also by telephone, radio or other means of electronic communication.
(3) When a verbal request for issuing a search warrant has been submitted, the investigating judge shall record the further course of conversation. If a voice recording device has been used or stenographic records kept, a transcription thereof shall be made within 24 hours, the identity of which shall be certified and kept with the original records.
(1) When the investigating judge receives the request for issuing a search warrant, if s/he agrees with the request, s/he shall immediately issue a search warrant containing :
1) the information provided for in Article 77 of the present Code ;
2) that the search will be conducted by the police ;
3) an instruction that the search is being done in accordance with Article 80 of the present Code ;
4) signature of the judge and the official stamp of the court.
(2) If the investigating judge determines that the request for issuing a search warrant is not justified, s/he shall immediately request the panel referred to in Article 24, paragraph 7 of the present Code to decide on the request. The panel shall make a decision within 24 hours.
Search Upon a Court Order
(1) Before the commencement of the search, the search warrant shall be given to the person to be searched or whose premises are to be searched. Before the search, the persons against whom the search warrant has been issued shall be asked to voluntarily hand over the wanted person or objects. Those persons shall be instructed that they are entitled to retain a lawyer i.e. a defense attorney who may be present during the search. If a person against whom a search warrant has been issued demands the presence of a lawyer or defense attorney, the commencement of the search shall be postponed until his/her arrival, but for no more than two hours.
(2) The search may commence without previously presenting a warrant or without a previous invitation to hand over the person or objects and without an instruction on the right to a defense attorney or lawyer, if it is necessary in order to prevent a criminal offence from being committed, for the purpose of outright capture of a criminal offender, saving of persons and property or if the search is to be carried out in public premises.
(3) The search shall be carried out by day from 6:00h until 21:00h. The search may be carried out by night as well, if it was commenced during the day and was not completed or if it was explicitly ordered so by the court because of risk of delay or if reasons referred to in Article 83 paragraph 1 of the present Code exist.
Rules of Search
(1) The occupants of a dwelling or other premises shall be summoned to attend the search, and if they are absent, their representative, adult members of his family or neighbors shall be summoned to attend.
(2) Premises that are locked, furniture and other things shall be opened by force only if their occupant is absent or if the occupant is refusing to open them voluntarily. Unnecessary damage shall be avoided in the course of opening.
(3) The search of a dwelling or person shall be attended by two citizens of age in the capacity of witnesses, unless reasons referred to in Article 83 paragraph 4 of the present Code exist. The search of persons shall be carried out by a person of the same sex, and a person of the same sex shall be taken as a witness. Before the commencement of the search, witnesses shall be admonished to pay attention to the course of the search, as well as that they have the right to raise their objections before the signing of the record on the search, should they consider that the contents of the record are incorrect.
(4) When conducting a search of premises of state authorities, enterprises or other legal entities, a head of such authorities, enterprises or other legal entities shall be summoned to be present at the search.
(5) Search and inspections of military facilities shall be carried out upon the permission of the competent military officer and in the presence of a person designated by him/her.
(6) If a search needs to be carried out aboard a ship or aircraft the search warrant shall be delivered to the captain of the ship or person in charge of the aircraft. The captain of the ship or the person in charge of aircraft, or a person designated by them shall witness the search.
(7) The search of dwellings and persons shall be carried out carefully, while respecting human dignity and the right to privacy, without unnecessary disturbance of the house rules and without causing nuisance to the citizens.
(8) A record shall be made on the search signed by the person whose premises have been searched or who has been searched and by persons whose attendance at the search is mandatory. The course of the search may be audio and audio-visually recorded while paying special attention to the places where certain persons and objects have been found. The venue of the search and its individual parts, as well as the persons or objects found during the search may be photographed. Audio or audiovisual recordings and photographs shall be enclosed to the record on the search and may be used as evidence.
(9) Only those objects and documents that relate to the purpose of the search shall be provisionally seized in the course of the search. The records shall include and clearly specify the objects and documents that have been seized, which shall also be indicated in a receipt to be given immediately to the person from whom the objects or documents have been seized.
Seizure of Other objects on basis of a search warrant
(1) If a search of a dwelling or a person reveals objects that are unrelated to the criminal offence for which the search was ordered, but indicate the commission of another criminal offence that is prosecuted by virtue of office, they shall be described in the record and provisionally seized, and a receipt confirming seizure shall be issued immediately.
(2) If the search was not attended by the competent State Prosecutor, s/he shall immediately be informed about the discovery of objects referred to in paragraph 1 of this Article for the purpose of initiating criminal procedure. These objects shall be returned immediately if the State Prosecutor establishes that there are no grounds to initiate criminal proceedings and if no other legal grounds for the seizure of these objects exist.
(3) If certain objects are seized during the search of computers and similar devices for automatic data processing, they shall be immediately returned to their users, if they are not needed for further procedure. Personal information obtained during the search may be used only for the purposes of conducting a criminal procedure and shall be erased as soon as that purpose ceases.
Entering Another Person's dwellings without a search warrant and searching
(1) An authorized police officer may enter another person's dwelling or other premises without a search warrant and, if necessary, carry out the search, provided that the tenant so requires or if it is necessary or for the purpose of preventing the commission of a criminal offence or outright capturing a criminal offender or for the purpose of saving people and property.
(2) The tenant, if present, shall have the right to object to the procedure of the authorized police officer referred to in Paragraph 1 of this Article. The authorized police officer shall inform the tenant about this right and shall include his/her objections in the receipt on entering the dwelling or in the search record.
(3) In case referred to in Paragraph 1 of this Article, if another person's dwelling was only entered without search, the tenant shall be issued a receipt stating the reason for entering the dwelling or other premises as well as the tenant's objections. If search was also carried out in another person's dwelling or other premises, the procedure shall be the one referred to in Article 81, paras. 3, 7 and 8 and Article 82, paragraph 1 of the present Code.
(4) A search may be carried out without the presence of witnesses if it is not possible to arrange their presence immediately, and risk of delay exists. The reasons for the search without the presence of witnesses shall be specified in a record.
(5) Authorized police employees may, without a search warrant and without the presence of witnesses, carry out a search of persons when enforcing a warrant on compulsory apprehension or when depriving of liberty, if suspicion exists that the person owns weapons or dangerous tools, or if suspicion exists that the person would reject, hide or destroy the objects that need to be taken from him/her as evidence in a criminal procedure.
(6) If there are grounds for suspicion that criminal offence was committed that is prosecuted by virtue of office, authorized police employees may, without a court warrant and without the presence of witnesses, carry out the search of transport means, passengers, luggage and other movable objects, with the exception of things referred to in Article 75 paragraph 2 of the present Code.
(7) When conducting a search without a search warrant, authorized police officers shall immediately submit thereon a report to the investigative judge.
Legally invalid evidence
If the search was conducted in contravention to the provisions of Article 76, Article 80 Paragraph 1, Article 81 Paragraph 3 and Article 83 of the present Code, search records and evidence collected during the search may not be used as evidence in the course of criminal procedure.
2. PROVISIONAL SEIZURE OF OBJECTS, PROPERTY GAIN AND PROPERTY
Provisional Seizure of Objects and Property Gain
(1) Objects which have to be seized according to the Criminal Code or which may be used as evidence in the criminal procedure, shall, at the proposal of a State Prosecutor, and by way of a court ruling, be provisionally seized and delivered for safekeeping to the court or their safekeeping shall be secured in another way.
(2) The ruling on the provisional seizure of objects shall contain :
1) the name of the court rendering the ruling,
2) legal grounds for the seizure of objects,
3) indication and description of objects that are to be provisionally seized, and
4) the first and the last name of the person from whom the object is provisionally seized and the place at or in which a certain object should be provisionally seized.
(3) Anyone who is in possession of objects referred to in paragraph 1 of this Article shall hand them over. Persons refusing to hand over the objects may be punished by a fine of up to €1.000, and in case of further rejection, they may be detained. Detention shall last until the object is handed over or until the criminal procedure is completed, and at the longest for two months. The procedure as regards a person in an official capacity or a responsible person in a public authority, enterprise or another legal entity shall be the same.
(4) Provisions of paras. 1 and 3 of this Article shall be applied to the data saved in devices for automatic or electronic data processing and media wherein such data are saved, which shall, upon the request of the court, be handed over in a legible and comprehensible form. The court and other authorities shall abide by the regulations on maintaining data secrecy.
(5) The following objects cannot be provisionally seized :
1) papers and other documents of public authorities, publication of which would violate the obligation to keep data secret in terms of regulations laying down data secrecy, until the competent authority decides otherwise ;
2) the accused persons' letters to their defense attorney or the persons referred to in Article 109, paragraph 1, items 1, 2 and 3 of the present Code unless the accused decide to hand them over voluntarily ;
3) recordings, extracts from the register and similar documents that are in possession of persons referred to in Article 108, item 3 of the present Code and that are made by such persons in relation to the facts obtained from the accused person while performing their professional service, if publication thereof would constitute violation of the obligation to keep a professional secret.
(6) The prohibition referred to in paragraph 5, item 2 of this Article shall not apply to the defense attorney or persons exempted from the duty to testify pursuant to Article 109, paragraph 1 of the present Code if reasonable doubt exists that they aided the accused parties in committing the criminal offence or they helped them after the criminal offence was committed or if they acted as accomplices by virtue of concealment.
(7) The ruling referred to in paragraph 3 of this Article shall be made by the investigative judge during the investigation and by the Chair of the Panel after an indictment has been brought.
(8) The panel referred to in Article 24, paragraph 7 of the present Code shall decide on the appeal against a ruling referred to in paras. 2 and 3 of this Article. An appeal against the ruling on imprisonment shall not stay the execution.
(9) Authorized police employees may seize objects referred to in paragraph 1 of this Article when proceeding pursuant to Articles 257 and 263 of the present Code or when executing a court warrant.
(10) When seizing objects it shall be indicated where they were found and they shall be described, and where appropriate, their identity shall be established in another way as well. A receipt shall be issued for the seized objects.
(11) Measures referred to in paragraph 3 of this Article may not be enforced against the suspects or accused parties or persons relieved of duty to testify.
(12) Provision of Article 481 of the present Code shall be applied on the provisional seizure of property gain.
Denial of Disclosure or Issuing of Files
(1) State authorities may refuse to disclose or issue their files and other documents if they deem that disclosure of their contents would cause damage to the public interests, with the exception of case referred to in Article 90 of the present Code. If disclosure or handover of files and other documents was denied, the final decision shall be made by the panel referred to in Article 24, paragraph 7 of the present Code.
(2) Enterprises or other legal entities may request that data related to their business operations are not publicly disclosed. The panel referred to in Article 24 paragraph 7 of the present Code shall decide on the request.
Inventory and Sealing of Files
(1) An inventory of provisionally seized files that may be used as evidence shall be made. If that is not possible, the files shall be put in a cover and sealed. The owner of the files may put his/her seal on the cover.
(2) The person from whom the files have been seized shall be summoned to attend the opening of the cover. If this person fails to appear or is absent, the cover shall be opened, the files examined and a list of them made in his/her absence.
(3) During the examination of files, attention shall be paid that their contents are not be disclosed to unauthorized persons.
Provisional Seizure of Letters, Telegrams and Other Parcels
(1) The investigating judge may order, upon the motion of the State Prosecutor, that postal agencies, other enterprises and legal entities registered for the transfer of information retain and deliver to him/her, with the acknowledgement of receipt, letters, telegrams and other parcels sent to the suspect or accused person or sent by them if circumstances exist due to which it is reasonable to expect that these parcels would serve as evidence in the procedure.
(2) The investigating judge shall open the consignments in the presence of two witnesses . When opening, care shall be taken not to damage the seals, while the covers and addresses shall be preserved. A record shall be made on the opening.
(3) Investigating judges shall inform State Prosecutors about the contents of letters, telegrams and other parcels and upon their request provide them with copies thereof and of the record referred to in paragraph 2 of this Article.
(4) If the interests of the procedure allow so, the suspects or the accused parties, i.e. the addressees may be fully or partially informed on the contents of the shipment, which may be also delivered to them. If the suspects or the defendants are absent, the shipment shall be returned to the sender unless that is not in breach of interests of the procedure.
Obtaining Information from the Competent Public Authority for Temporary Suspension of Monetary
(1) State Prosecutors may request that the competent public authority performs control over the financial operations of certain persons and to submit them documentation and information which can be used as evidence of a criminal offence or of the proceeds of crime, as well as information about suspicious monetary transactions.
(2) State Prosecutors may request that the competent authority or organization temporarily suspends the payment, or the issuing of suspicious money, securities and objects, at the longest for six months.
(3) State Prosecutors shall specify in the motion referred to in paragraphs 1 and 2 of this Article in more detail the contents of measure of action they are requesting.
(4) At the proposal of State Prosecutors, the court may issue a ruling ordering a temporary suspension of a certain monetary transaction when reasonable doubt exists that it constitutes a
criminal offence or that it is intended for the commission or concealment of a criminal offence or proceeds of crime.
(5) By way of the ruling referred to in paragraph 4 of this Article, the court shall order that funds in check or cash form be provisionally seized and deposited into a special account where they will be kept until the completion of the proceedings with final force and effect or until conditions for their return are met.
(6) An appeal against the ruling referred to in paragraph 4 of this Article may be filed by the parties and the defense attorney, or the owner of funds or his/her proxy or the legal person from whom the funds have been provisionally seized. Such an appeal shall be decided upon by the panel referred to in Article 24, paragraph 6 of the present Code.
Provisional Seizure of Property Gain and Financial Investigation for the Purpose of Extended Seizure of
(1) In the procedure conducted for the criminal offence for which the Criminal Code provides for a possibility of extended seizure of property from the sentenced persons, their legal successors or persons to whom the sentenced persons have transfered their property who are not able to prove the legality of its origin, and grounds of suspicion exist that the property in question was illicitly acquired, the court may, at the proposal of a State Prosecutor, order the property to be provisionally seized.
(2) The State Prosecutor shall initiate a financial investigation by way of an order against the suspects or accused persons for the criminal offence referred to in paragraph 1 of this Article, their legal successors or persons to whom the suspects or accused persons have transfered certain property.
(3) During the financial investigation, evidence shall be collected on the property and revenues of suspects or accused persons, their legal successors or persons to whom the accused persons have transferred property that was acquired in the period prescribed by the Criminal Code.
(4) In the procedure of provisional seizure of property referred to in paragraph 1 of this Article, provisions of the law regulating enforcement proceedings shall be applied accordingly, if provisions of the present Code do not prescribe otherwise.
Contents of the Request and Decision Making on the Request for Ordering Seizure of Objects, Property Gain or Property
(1) The provisional seizure of objects, property gain or property shall be decided by the investigative judge immediately or within eight days as of the receipt of request, or the Chair of the Panel before which the main hearing is conducted. The panel referred to in Article 24, paragraph 7 of the present Code shall decide on appeals filed against such rulings.
(2) The State Prosecutor shall institute proceedings for ordering the provisional seizure of objects, property gain or property referred to in paragraph 1 of this Article.
(3) The request of the State Prosecutor referred to in paragraph 2 of this Article shall contain the following : a description of objects, property gain and property ; information on the person who is in possession of those objects, property gain or property ; reasons for suspicion that the objects, property gain and property were illicitly acquired and reasons to believe that by the time criminal proceedings are completed it would be significantly difficult or hardly possible to confiscate objects or property gain or property obtained through the commission of a criminal offence.
(4) If the court rejects the request referred to in paragraph 1 of this Article, the ruling on rejection shall not be furnished to the person referred to in paragraph 3 of this Article.
Contents of the Ruling on the Provisional Seizure of Objects, Property Gain and Property and Appeal against the Ruling
(1) In the ruling on the provisional seizure of objects, property gain and property, the court shall specify the type and value of the objects, property and the amount of property gain, as well as the period for which they shall be seized.
(2) In the ruling referred to in paragraph 1 of this Article, the court may decide that the provisional seizure does not cover objects, property gain or property which should be excluded by virtue of the rules on innocent title transferees.
(3) An appeal against the ruling referred to in paragraph 1 of this Article shall not stay execution.
(4) The ruling with a statement of reasons referred to in paragraph 1 of this Article, shall be delivered by the court to the persons to whom the ruling refers, to the bank or other organization competent for payment transactions, and, where appropriate, to other persons and public authorities.
Scheduling a Hearing and Decisions on Appeal
(1) When an appeal against the ruling on the provisional seizure of objects, property gain or property is filed, the panel referred to in Article 24, paragraph 7 of the present Code shall schedule a hearing
and summon the person to whom the ruling relates to, his/her defense attorney and the State Prosecutor.
(2) The hearing referred to in paragraph 1 of this Article shall be held within 30 days from the date of the filing of the appeal. Summoned persons shall be heard at the hearing. Their failure to appear shall not preclude holding of the hearing.
(3) The panel shall revoke the ruling referred to in paragraph 1 of this Article if the suspect or the accused proves the lawfulness of the origin of objects, property gain or property by plausible documents, or if, in the absence of plausible documents, s/he presents prima facie evidence that the objects, property gain or property were lawfully acquired.
(4) The panel shall reverse the ruling referred to in paragraph 1 of the present Article if, in line with paragraph 3 of this Article, proof has been produced or prima facie evidence established that the object, a part of property gain or property that were provisionally seized are of lawful origin.
Duration of the Provisional Seizure of Objects, Property Gain and Property
(1) The provisional seizure of objects, property gain or property may last at the most until the panel referred to in Article 24, paragraph 7 of the present Code renders a decision on the request of the State Prosecutor referred to in Article 486 of the present Code.
(2) If the provisional seizure referred to in paragraph 1 of this Article is ordered during the preliminary investigation, it shall be revoked ex officio if the investigation has not been instituted within a term of six months as of the date of issuing the ruling on provisional seizure.
(3) The ruling on the provisional seizure of objects, property gain or property may be revoked before the lapse of the period of time referred to in paragraphs 1 and 2 of this Article, by the court’s virtue of an office or upon request of the State Prosecutor or the interested party if it is proved that the measure is not needed or justifiable taking into consideration the gravity of the criminal offence, financial situation of the person the measure is imposed on or the situation of persons s/he is legally bound to support, as well as the circumstances of the case which indicate that seizure of objects, property gain and property will not be prevented or considerably aggravated until the completion of the criminal proceedings.
Enforcement of the Ruling on the Provisional Seizure of Objects, Property Gain and Property
(1) The ruling on the provisional seizure of objects, property gain and property shall be enforced by the court competent for conducting the enforcement, in line with the law regulating the enforcement proceedings.
(2) The court referred to in paragraph 1 of this Article shall be competent to decide on disputes in connection with enforcement.
(3) On the date of opening of bankruptcy proceedings against a legal person who is in possession of objects, property gain or property that was provisionally seized, terms shall be met to file an interpleader in respect to these objects, property gain or property, as on mature amounts.
Temporary Administration of Property and Assets
The competent public authority shall manage the provisionally seized property and assets in accordance with the law regulating the care on provisionally seized and confiscated property.
Return of Provisionally Seized Objects
The objects which were provisionally seized in the course of criminal procedure shall be returned to the owner or holder if the procedure is discontinued and grounds for their seizure referred to in Article 477 of the present Code do not exist. The objects shall be returned to the owner or holder even before the completion of the criminal procedure if reasons for their seizure cease to exist.
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: