BULGARIA - PENAL PROCEDURE CODE

Part one. GENERAL RULES

Chapter one. TASKS AND LIMITS OF EFFECT


Art 2. (2) The Penal Procedure Code shall also apply in the cases of performing court orders of another country, placed by virtue of an agreement or under the terms of reciprocity.

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 IV. Penal Procedure Transfer

Art. 478. (1) A request for transfer of penal procedure by another state shall be sent to:

1. the Supreme Cassation Prosecution – for pre-trial procedure;

2. the Ministry of Justice – for court procedure.

(2) The request for transfer of penal procedure from another state shall be accepted by the authority under Para 1 when:

1. the act for which the request has been addressed constitutes a crime under the Bulgarian law;

2. the perpetrator bears criminal liability under the Bulgarian law;

3. the perpetrator has permanent residence in the territory of the Republic of Bulgaria;

4. the perpetrator is citizen of the Republic of Bulgaria;

5. the crime for which the request is addressed is not considered to be political or to be related to a political crime, or a war crime;

6. the request does not aim at prosecution or punishment of the person due to his/her race, religion, ethnicity, gender, civil status or political convictions;

7. a penal procedure has started against the perpetrator in the Republic of Bulgaria for the same or for
another crime;

8. the transfer of procedure is in the interest of establishing the truth, and the major evidence is in the territory of the Republic of Bulgaria;

9. the execution of the sentence, if a sentence should be enacted, will improve the possibilities of the convicted person for socialisation;

10. the presence in person of the perpetrator may be ensured in the procedure in the Republic of Bulgaria;

11. the sentence, if a sentence should be enacted, may be executed in the Republic of Bulgaria;

12. the request does not contradict the international obligations of the Republic of Bulgaria;

13. the request does not contradict the basic principles of the Bulgarian penal and penal procedure law.

(3) If the authority under Para 1 grants the request, it shall immediately forward it to the competent authorities of penal procedure in accordance with the provisions of this code.

(4) Any procedure action carried out by an authority in the requesting state in accordance with its national legislation, shall enjoy in the Republic of Bulgaria the same force of evidence it would have enjoyed had it been carried out by a Bulgarian authority.

Art. 479. (1) If the person against whom a penal procedure has been instituted in the Republic of Bulgaria is a citizen of another state or has permanent residence in another state, the authorities under Para 2 may send a request for transfer of the penal procedure to this state.

(2) A request for transfer of a penal procedure to another state at the proposal of the competent Bulgarian authority of penal procedure shall be sent by:

1. the Supreme Cassation Prosecution – for pre-trial procedure;

2. the Ministry of Justice – for court procedure.

(3) A request for transfer of penal procedure to another state may be addressed when:

1. the extradition from the requested state of the person, perpetrator of the crime, is not possible, is not allowed or has not been requested for another reason;

2. for establishing the facts, for determining the punishment or for executing the sentence, it is expedient that the penal procedure be held in the requested state;

3. the person who has perpetrated the crime is or will be extradited to the requested state, or for another reason his/her appearance in the penal procedure in that state is possible;

4. the extradition of a person convicted by a Bulgarian court with an effective sentence of imprisonment is not possible or is not allowed by the requested state, or the execution of the sentence in that state is not possible.

(4) If the requested state allows the transfer of the penal procedure, this procedure cannot continue in the territory of the Republic of Bulgaria against the person who has perpetrated the crime, and the imposed sentence under Para 3, Item 4 on the crime in connection with which a transfer of penal procedure has been made, shall not be executed.

(5) The authorities of the pre-trial procedure or the court shall continue the penal procedure or shall send the sentence to be executed, if the requested state:

1. having accepted the request for transfer, fails to institute a penal procedure;

2. subsequently rescinds its decision for transfer of the penal procedure;

3. fails to continue the procedure.

Art. 480. In the event of receiving information from an authority of another state for instituted penal procedure or for procedure which will be instituted in connection with a crime perpetrated in that state, the respective prosecutor under Art. 37 shall decide whether the Bulgarian authorities shall exercise their power under Art. 4, Para 1 for instituting a penal procedure for the same crime.

Additional provisions

§ 1. (1) "Close relatives" in the meaning of this code shall be the direct descendants (including the adopted and stepchildren), the relatives of collateral branches up to fourth degree included, relatives in law up to third degree.

(2) "Data of the traffic" in the meaning of this law shall be all data connected with a message, passing through a computer system, produced by it as an element of a communication chain, with statement of the information of origin, destination, rout, hour, data, size and duration of the connection or of the main service.

Article 93
Other forms of cooperation
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.
7. (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.
8. (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.
9. (a) (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.
10. (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.