Part I
GENERAL PROVISIONS
Chapter VII
EVIDENTIARY ACTIONS
1. Search of apartment, other premises and persons
Reasons for search of apartment, other premises or persons
Article 77
(1) The search of apartment and other premises of the defendant or other persons, as well as movables which are found in those premises, may be conducted if it is probable that this will lead to the capture of the defendant or that evidence of a criminal offence will be found or objects of significance for the criminal proceeding.
(2) Search of Law Office may be conducted only for a certain object, file or document.
(3) The search of the person may be conducted when it is probable that the search would result in the finding of traces or objects, which may be significant for the criminal proceedings.
Search warrant and the time of search
Article 78
(1) The search is ordered by the court. The order is given in writing stating the reasons for the search and it shall contain:
1) name of the court;
2) facts based on which probable reasons arise for the search (Article 77 or the present Code);
3) name and function of the authorized police officer or Public Prosecutor, entrusted with the search, if the Investigative Judge decided to entrust the conduct of the search to one of the above-mentioned bodies;
4) name and surname, and if needed description of the person who is to be captured during the search of the apartment or other premises, or expected traces and description of objects needed to be found in the search process;
5) defining and description of the place in which the search will be conducted, stating its address, data related to the owner or occupant of the
objects or apartment and other premises, and other data relevant for determining of identity;
6) instructions that the search can be conducted in the manner stipulated in paragraphs 3 and 4 of the present Article and that the person being searched or whose premises are being searched has the rights stated in paragraph 2 of the present Article;
7) signature and official stamp of the court.
(2) Prior to commencement of the search, the search warrant shall be handed over to the person which is to be searched or whose premises will be searched. Before the search commences, the person referred to in the search warrant shall be asked to voluntarily hand over the wanted person, i.e. objects searched for. That person shall be advised that he has the right to a counsel, i.e. defense counsel who may be present during the search. If the person referred to in the search warrant requests a presence of a counsel, i.e. defense counsel to be present, the start of the search shall be postponed until his arrival no more than for three hours.
(3) The search may commence without handing over of the search warrant, as well as without the prior request to hand over the person or objects, and without the advice on the right to counsel, i.e. defense counsel, if there is justified reason to anticipate armed resistance or other types of violence or if it is obvious that preparations are being made to destroy or conceal the traces of criminal offense or objects relevant for the criminal proceeding or that such actions already began.
(4) The search shall be conducted during the day. The search may be conducted during the night as well if it began during the day but was not terminated, or if reasons stipulated in Article 81, paragraph 1 of the present Code exist.
Search rules
Article 79
(1) The occupant of the apartment or of other premises shall be called to be present during the search, and if he is absent, his representative shall be called or an adult person living in the apartment or a neighbor.
(2) Locked rooms, furniture or other objects shall be opened by force if their occupant is not present or does not want to open them voluntarily. During the opening unnecessary damages shall be avoided.
(3) During the search of the apartment, other premises or the person two adult citizens are to be present as witnesses. A female person may be searched only by a female, and the witnesses shall also be female. The witnesses shall prior to the start
of the search be warned to pay attention to the course of the search, as well as that they have the right to state their remarks, prior to the signing of search record, if they think that the content of the record is not accurate or that there has been an infringement of any of their rights during the search.
(4) When searching the premises of the government authorities, companies or other legal entities, their senior official shall be invited to be present.
(5) When a law office is searched in case referred to in paragraph 2 of the present Article, or in absence of the attorney to whom the law office belongs to, the representative of the competent Attorney Bar Association shall be invited, and if this is not possible, another attorney who is a member of the same Attorney Bar Association shall be invited. If the invited attorney does not arrive within three hours from the moment he receives the call, the search may be conducted without his presence.
(6) The search and inspection of a military building shall be conducted upon approval of the competent military official.
(7) The search of an apartment or person should be carried out carefully, having respect for the dignity and privacy of the person, without unnecessary obstruction of domestic life.
(8) A record shall be made of every search of the apartment, other premises or persons which has been conducted, that shall be signed by the persons being searched or whose premises are being searched and persons whose presence is mandatory. The course and the manner in which the search is being conducted shall by rule be audio and video recorded, with special attention to places in which certain persons or objects are found. The place of the search and some of its parts, as well as persons, i.e. objects found during the search, may be photographed. The audio and video recordings and photographs shall be enclosed in the search record and may used as evidence.
(9) During the search, only those objects and documents relevant to the purpose of the search shall be temporarily seized. Confiscated objects and documents shall be specified in the record, and shall also be included in the receipt which shall immediately be given to the person from whom objects and documents have been taken.
Discovery of items linked to another criminal offence
Article 80
(1) If during the search of the apartment, other premises or persons objects were found which have no connection with the criminal offence for which the search was ordered, but are probably connected to another criminal offense that is subject to ex off prosecution, these objects shall be described in the record and temporarily
seized, and a receipt of seizure shall immediately be issued.
(2) If the search was conducted by an Investigative Judge or the Police, and without the presence of the competent Public Prosecutor, the public prosecutor shall immediately be informed of the discovery of objects referred to in paragraph 1 of the present Article, for the purpose of initiating a criminal prosecution. These objects shall immediately be returned if the Public Prosecutor finds that there are no grounds for initiation of criminal proceeding, and no other legal grounds exist for the confiscation of these objects.
Search without a warrant
Article 81
(1) Authorized police officials or a Public Prosecutor, may enter a person’s apartment or other premises without a court warrant and, if necessary, carry out a search for the following reasons:
1) when the occupant of the apartment or other premises requests so;
2) when somebody calls for help;
3) in order to execute a court order to place a person in detention or an order issued by a competent authority to bring a defendant;
4) to apprehend a fugitive perpetrator who has been caught in the act of committing a criminal offense subject to prosecution ex officio;
5) in order to remove serious risk to the life and health of people or to property of substantial value that could not be removed in any other way;
6) in order to secure evidence of importance for the criminal proceedings, if it is evident that the destruction of traces or objects of the criminal offense has started or is about to start at the apartment or other premises.
(2) The occupant of the apartment or other premises, if present, shall have the right
to object to the proceedings carried out by the authorities referred to in paragraph 1
of the present Article. The authorized police official shall be bound to inform the
occupant of the apartment or other premises about this right and to include his objection in the document issued upon entering the apartment or in the record on the search of the apartment or other premises.
(3) A record shall not be made in the cases referred to in paragraph 1 of the present Article, however a receipt on entering shall be issued immediately to the occupant of the apartment or other premises, in which the reasons for entering the apartment or other premises and the objections of the occupant of the apartment or other premises shall be specified. If a search has also been carried out in premises of other persons, it shall be carried out pursuant to Article 79, paragraphs 3 and 7 of the present Code.
(4) A search may be carried out without the presence of witnesses if it is not possible to immediately arrange for their presence, and there is a risk of delay. The reasons for a search without the presence of witnesses shall be specified in the search record.
(5) The authorized police officials may carry out a search of a person without a search warrant and without witnesses, when executing a ruling on apprehension or during an arrest, if the person is suspected of being in possession of offensive weapons or tools that could be used for an attack, or if there is suspicion that he will dispose of, conceal or destroy the objects which need to be seized as evidence in the criminal proceedings.
(6) When conducting a search without a warrant, the authorized police officials shall be bound to submit immediately a report on the search to the Investigative Judge.
(7) If the prerequisites for a search without a warrant are met by the police in the preliminary investigation, a Public Prosecutor shall always be present during such a search, unless prevented by circumstances that are not subject to delay. In that case, the authorized police officials shall be bound to submit immediately a relevant report to the competent Public Prosecutor.
2. Temporary seizure of objects
Order for the seizure of objects and the seizure proceeding
Article 82
(1) Objects which in accordance with the Criminal Code have to be seized or which may be used as evidence in criminal proceedings shall temporarily be seized and delivered for safekeeping to the court, or their safekeeping shall be secured in some other way.
(2) Anyone who is in possession of such objects shall be bound to hand them over upon a relevant court order. The court order for the temporary seizure of objects shall include: the name of the court, legal grounds for the temporary seizure of objects, marking and detailed description of the object that is subject to temporary seizure, name and surname of the person the object is being temporarily seized from and location at which certain objects need to be temporarily seized.
(3) A person who refuses to hand over the objects may be fined with up to CSD 150,000 and in the case of further refusal the person may be fined once again with an additional amount of up to CSD 300,000. In the case of further refusal to hand over the objects, a person may be imprisoned. Imprisonment shall last until the person hands over the objects or until the final completion of the criminal proceedings, but not longer than for one month. The same proceeding shall be implemented against a person acting in an official capacity or a responsible person in a government authority, enterprise or other legal entity.
(4) The chamber (Article 24, paragraph 6.) shall decide on an appeal against a ruling imposing a fine or imprisonment. The appeal against the ruling on imprisonment shall not stay its execution.
(5) The authorized police officials may confiscate the objects referred to in paragraph 1 of the present Article when acting pursuant to the provisions of Article 255, paragraphs 1, 2 and 8 of the present Code, or when executing a court order.
(6) During the seizure of objects it shall be noted where they have been found with their description, and, if necessary, some other way shall be ensured to establish that these are the same objects. A receipt shall be issued for the seized objects.
Protection of the confidentiality of documents and data
Article 83
(1) State authorities may refuse to disclose or hand over their files or other documents if they deem that the disclosure of their contents would cause damage to public interests, except in cases under Article 87, paragraph 1 of the present Code. If the disclosure or hand-over of files and other documents is denied, the final decision thereon shall be made by the chamber (Article 24, paragraph 6).
(2) Enterprises or other legal entities may request that data related to their business be not publicly disclosed. The chamber (Article 24, paragraph 6) shall decide on the request.
Inventory of the temporarily seized documents and confidentiality protection
Article 84
(1) The temporarily seized files which may be used as evidence shall be listed. If this is not possible, the files shall be put in an envelope and sealed. The owner of the files may put his own seal on the envelope.
(2) The person from whom the files have been seized shall be summoned to attend the opening of the envelope. If he fails to appear or is absent, the envelope shall be opened, the files examined and listed in his absence.
(3) During the examination of files, due care must be taken to prevent unauthorized persons from learning about their contents.
Temporary seizure of letters, telegrams and other dispatches
Article 85
(1) Upon the proposal of the Public Prosecutor, the Investigative Judge may order postal, telegraphic and other enterprises, companies and entities licensed for information transfer, to retain and deliver to him with a delivery confirmation letters, telegrams and other dispatches sent to the suspect or defendant or sent by him if circumstances indicate that it is reasonably expected that these postal items shall be used as evidence in the proceedings.
(2) The Investigative Judge shall open the dispatches in the presence of two witnesses. When opening, due care shall be taken not to damage the seals, while the envelopes or wrappings and addresses shall be preserved. A record shall be made on the opening.
(3) The Investigative Judge shall inform the Public Prosecutor about the contents of the letters, telegrams and other dispatches and shall forward to the prosecutor upon his own request, their copies and a copy of the record referred to in paragraph 2 of the present Article.
(4) If this does not violate the interests of the proceedings, the suspect or defendant or the addressee may be fully or partially informed of the contents of the dispatch, which may be also delivered to him. If the defendant or suspect is absent, the dispatch shall be returned to the sender unless this is against the interests of the proceedings.
Acquiring information from a bank or other legal entity and suspension or
temporary seizure of financial transactions
Article 86
(1) A Public Prosecutor may request that the competent government authorities, banking or other financial institutions make an inspection of business activities of certain individuals and submit to him documents and data that may be used as evidence of a criminal offense or proceeds from criminal offense, as well as information on suspicious financial transactions referred to in the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds arising from criminal offense.
(2) Under the conditions referred to in paragraph 1 of the present Article, the Public Prosecutor may issue an order by which a competent authority or institution shall be requested to temporarily suspend the payment, i.e. issuance of suspicious money, securities or objects.
(3) In the order referred to in paragraphs 1 and 2 of the present Article, the Public Prosecutor shall describe in more detail the contents of the measure or action he has requested to be undertaken.
(4) Upon a proposal from the Public Prosecutor, the court may issue a ruling by which the financial transaction, suspected of constituting a criminal offense or of being intended for the execution or concealment of a criminal offense or proceeds from criminal offense, shall be suspended.
(5) Under the decision referred to in paragraph 4 of the present Article, the court shall order the funds to be temporarily seized, either from an account or in cash, and deposited to a special account for safekeeping until the final completion of the criminal proceedings, or until conditions for their return are created.
(6) The decision referred to in paragraph 4 of the present Article may be appealed by the parties and defense lawyer, or by the owner of the funds or his authorized representative, or by the legal entity from whom the funds have been temporarily seized. The chamber referred to in Article 24, paragraph 6 shall decide on the appeal.
Temporary seizure of objects or proceeds that are suspected of resulting from
criminal offense and the destruction of narcotics before the final end of the
proceedings
Article 87
(1) If there is reasonable suspicion that an object or proceeds result from a criminal offense punishable by imprisonment of ten years or more severe penalty, the court may order the objects and the assets to be seized in a way other than that described in the general conditions referred to in Articles 82 to 86 and Articles 491 to 497 of the present Code.
(2) Unless otherwise provided for by the present Chapter, provisions of the Code on the Enforcement Proceeding and relevant provisions of the present Code shall be applied, as appropriate, in the course of temporary seizure of objects and assets referred to in paragraph 1 of the present Article.
(3) When narcotics are temporarily seized, the authority in charge of proceedings shall as a rule, and especially in the case of a large quantity of narcotics, ensure the safeguarding of a quantity which is at least ten times greater than the lowest amount needed for appropriate expert analysis, while the rest shall be destroyed in the presence of the President of the Court or the judge appointed by him, Public Prosecutor and authorized police official, on which a record shall be made.
Request for the temporary seizure of objects and proceeds for which reasonable
suspicion exist that they result from criminal offense
Article 88
(1) Investigative Judge or the Trial Chamber before which the trial is being held shall decide upon the request of the Public Prosecutor on the measures of temporary seizure of objects and proceeds.
(2) The request of the Public Prosecutor referred to in paragraph 1 of the present Article shall include: a brief description and statutory title of the criminal offense, description of the objects or proceeds acquired through the commission of a criminal offense, data on the person who owns these objects or proceeds, evidence which serves as a basis for suspicion that the objects or proceeds have been acquired through the commission of a criminal offense, and reasons why it would be very difficult or impossible to seize the objects or proceeds from criminal offense by the end of the criminal proceedings.
Ruling on a temporary seizure of objects and proceeds for which reasonable
suspicion exist that they result from criminal offense
Article 89
(1) In its ruling on a temporary seizure of objects or proceeds, the court shall specify the value and type of the objects or proceeds, and the period during which they shall remain seized.
(2) In its ruling referred to in paragraph 1 of the present Article, the court may specify that the measure does not apply to the objects or proceeds which need to be exempt under the rule on protection of bona fidae acquirers.
(3) The ruling referred to in paragraph 1 of the present Article may be appealed, and the chamber referred to in Article 24, paragraph 6, of the present Code shall rule on the appeal. The appeal shall not stay the execution of the decision.
(4) The Court shall serve the ruling containing statement of reasons referred to in paragraph 1 of the present Article upon the person against whom the measure shall be implemented, to bank or other institution in charge of payment operations, and, if necessary, to other persons and government authorities.
Appeal against a ruling on the temporary seizure of objects and proceeds for which
reasonable suspicion exist that they result from criminal offense
Article 90
(1) If a ruling on the temporary seizure of objects and proceeds is appealed, the chamber referred to in Article 24 paragraph 6 of the present Code shall schedule a hearing and summon the person the ruling refers to, his defense counsel, i.e. his proxy and the Public Prosecutor.
(2) The hearing referred to in paragraph 1 of the present Article shall be held within one month from the date when the appeal has been filed. The summoned persons shall be heard at the hearing. Their failure to appear shall not prevent the hearing from being held.
(3) The chamber shall cancel the measure referred to in paragraph 1 of the present Article if legality of the origin of the objects or proceeds is proved with credible documents, i.e. if the Public Prosecutor fails to prove that the objects and proceeds probably result from criminal offense.
Duration of the measure of temporary seizure of objects and proceeds for which
reasonable suspicion exist that they result from criminal offense
Article 91
(1) The maximum period in which the measure of temporary seizure of objects and proceeds may be implemented shall be until the completion of criminal proceedings before a court of first instance.
(2) If the measure referred to in paragraph 1 of the present Article has been ordered in the preliminary investigation, it shall be revoked ex officio unless an investigation
commences within three months from the date when the order on the implementation of this measure has been issued.
(3) This measure may be revoked by the court ex officio, or at the request of a Public Prosecutor or an interested party before the expiration of the deadlines referred to in paragraphs 1 and 2 of the present Article, if it is proven to be unnecessary or unjustified in view of the severity of the criminal offense, financial situation of the person subject to the measure or the person he has the legal obligation of supporting and circumstances that show that it would not be impossible nor very difficult to seize the objects or proceeds before the completion of the criminal proceedings.
Enforcement of a decision on the temporary seizure of objects and proceeds for
which reasonable suspicion exist that they result from criminal offense
Article 92
(1) The measure of temporary seizure of objects and proceeds shall be enforced by the court in charge of enforcement under the Code on Enforcement Proceedings, which is in charge of all disputes arising from the enforcement of the measure.
(2) The day of opening of bankruptcy proceedings against the person in possession of the temporarily seized objects or proceeds shall create the right to file an interpleader regarding these objects and proceeds as amounts that matured.
Temporary management of assets and funds
Article 93
The government authority having jurisdiction shall manage the temporarily seized assets and funds with due diligence throughout the duration of the measure.
Return of the temporarily seized objects
Article 94
Objects that have been temporarily seized during the criminal proceedings shall be returned to their owner, i.e. the person was in possession if the proceedings are suspended and there are no reasons for their confiscation (Article 490). The objects shall be returned to the owner, i.e. possessor even before the completion of the criminal proceedings, as soon as the reasons for their seizure cease to exist.
Search and seizure - national proceedings
EDIT.