Part II
THE COURSE OF PROCEEDINGS
A. CRIMINAL OFFENSE REPORT, PRELIMINARY INVESTIGATION AND NOTIFICATION OF CRIMINAL OFFENCE
Chapter XIX
PRELIMINARY INVESTIGATION AND SUBMISSION OF NOTIFICATION ON CRIMINAL OFFENCE
Gathering evidence from citizens in preliminary investigation
Article 257
(1) In order to collect information about criminal offense and a perpetrator and other relevant circumstances pertaining to the criminal offense, the police authorities may also summon citizens. The reason for the summoning and a capacity in which a citizen is summoned must be noted in the summons. A person who fails to appear may be brought in by force only if he was warned of it in the summons.
(2) In the course of application of the provisions of the present Article the police authorities may not interrogate citizens in the capacity of a defendant or witness, except in the case referred to in Articles 258, 260 and 261 of the present Code.
(3) Collecting information from the same person may last as long as it is necessary to obtain the necessary information, but not longer than four hours.
(4) Information from citizens must not be collected by the use of force, nor by means of deception or exhaustion, and the police authority must respect the personality and dignity of each citizen. If the citizen refuses to provide information he may not be detained and in this case the rule about the time limitation from the paragraph 3 of the present Article is not applicable.
(5) If summoned citizen comes with his counsel to the police premises, the police shall allow the counsel to be present while information is being given by the citizen.
(6) An official note or a record made on given information shall be read to the person who provided the information. This person may raise objections and the police authorities are obligated to note them in the official note or the record. A copy of the official note or record on given information shall be issued to the citizen upon his request.
(7) The citizen may be summoned again for collecting information on circumstances related to other criminal offense or perpetrator, but in cases of collecting information related to the same criminal offense the citizen may exceptionally be summoned only one more time for very important reasons.
The interrogation of a witness in the preliminary investigation
Article 258
(1) If the police authority in the course of collecting information assesses that a summoned citizen should be interrogated as a witness, it is obligated to immediately inform of it the Public Prosecutor, who may interrogate the person in accordance with the Article 109 of the present Code.
(2) The Public Prosecutor may entrust police authority to conduct interrogation of a witness, and may be present during this interrogation.
(3) If during the course of undertaking the activity referred to in paragraph 1 of the present Article, the identity of a suspect for the criminal offense regarding which the citizen is being interrogated as a witness is known, it shall be made possible for a suspect and his defense counsel, save for cases when the danger of delay exists or when it is not possible due to other important reasons, to be present during interrogation, throughout which they question a witness ions and state their own remarks.
(4) The interrogation of a citizen as a witness must commence before the expiration of the time limitation set forth in the Article 257, paragraph 3 of the present Code, but that deadline may be extended upon the consent of the citizen.
(5) The official record shall be made on the interrogation of a witness interrogated by the Public Prosecutor or police authority and said record shall be signed by the interrogated witness. The entire course of the interrogation shall be recorded by the video and audio recording device. Audio-video recording shall be attached to the official record on the interrogation of a witness.
(6) If there is a danger that it will not be possible to interrogate a citizen in case of a trial, due to his old age, illness or other important reasons, or when the Public Prosecutor deems that it is necessary for other important reasons that an Investigative Judge conducts this activity, he shall recommend to the Investigative Judge to interrogate a citizen as a witness in accordance with Article 109 of the present Code.
(7) If the Investigative Judge fails to consent to the recommendation from Paragraph 5 of the present Article, the chamber as per Article 24 paragraph 6 of the present Code shall decide on the issue.
(8) The official record of interrogation of a witness during preliminary investigation as well as the recordings from the paragraph 5 of the present Article shall not be excluded from the record and may be used as evidence during criminal proceedings.
Gathering of information from persons in detention during the preliminary
investigation
Article 259
(1) With the permission of Investigative Judge, Single Judge, i.e. the President of the Chamber, the Public Prosecutor or exceptionally police authorities in cases of duty delegated by Public Prosecutor, may collect information from persons in detention, if this is necessary for discovering or clarifying other criminal offenses and perpetrators.
(2) Information from paragraph 1 of the present Article shall be collected in the institution in which the defendant is detained at the time ordered by the Investigative Judge, Single Judge or the President of the Chamber and in his presence or the presence of a judge designated by him. Upon the request of a detainee, his defense counsel is entitled to be present during the course of this collection of information.
(3) Gathering of information shall be postponed until the defense counsel arrives, but no longer than for four hours and if within that time frame, defense counsel does not arrive, information may be collected even without the presence of the defense counsel.
Interrogation of a suspect in preliminary investigation
Article 260
(1) If the police authority in the course of collecting information assesses that a summoned citizen may be deemed as a suspect, it is obligated immediately to inform him that he is considered a suspect, of a criminal offence he is charged with and the grounds for suspicion, that he does have the right to remain silent and not provide answers to the questions asked, as well as that anything he says may be used as evidence against him in the criminal proceeding. The suspect is informed of his right to retain a defense counsel who shall be present in the course of his further interrogation, that if he had retained defense counsel or in cases of mandatory professional defense he is not obligated to provide answers to questions asked without presence of the defense counsel, and shall in case of confinement (Article
264) be notified of the rights referred to in Article 5 of the present Code and be allowed to invoke the rights referred to in Article 263 paragraph 1 of the present Code.
(2) It will be made possible for the citizen who in the course of collecting information became a suspect to establish a contact with the defense counsel by telephone, or other electronic message transmitter, either directly or with a help of his family members or third person whose identity must be known, and the police authority or Public Prosecutor may assist the suspect to retain a defense counsel.
(3) Public Prosecutor or police authorities may also summon the suspect, and the summons shall contain a warning from the paragraph 1 of the present Article.
(4) In the case referred to in paragraph 1 of the present Article, the police authorities shall immediately notify the Public Prosecutor. Public Prosecutor shall request from the police authorities to postpone interrogating the suspect until his arrival and to provide him with the opportunity to interrogate the suspect, but can also delegate this interrogation to the police authority alone, and the Public Prosecutor may be present during such interrogation.
(5) If the suspect is dumb, deaf or incapable of defending himself successfully, as well as in cases he is charged with the criminal offense with the stipulated penalty of more than 5 years and does not retain a defense counsel, and the defense counsel does not appear within four hours after the suspect established a contact with him as per paragraph 2 of the present Article, Public Prosecutor or Police shall appoint a defense counsel to the suspect ex officio from the list of counsels compiled by the Public Prosecutor at the suggestion of the Attorney Bar Association.
(6) The provisions of the present Code on the interrogation of a defendant shall be applied in cases of interrogation of a suspect by the Public Prosecutor or Police.
(7) The official record shall be made on the interrogation of a suspect interrogated by the Public Prosecutor or police authority and said record shall be read to the suspect and signed by him, and all the objections made by the suspect shall also be entered into the record. The entire course of the interrogation conducted by the Police and without the presence of Public Prosecutor shall be recorded by video and audio recording device. Audio-video recording must contain the entire course of the interrogation while faces of all persons present during the interrogation must be clearly visible. The audio-video recording shall be attached to the official record on the interrogation of a suspect, and the official record of this interrogation shall not be excluded from the record and may be used as evidence during criminal proceedings.
(8) If the interrogation of a suspect was conducted by the Public Prosecutor who determined that reasonable suspicion exists that the suspect committed the criminal offense charged with, he may issue an Ruling on instigating the investigation pursuant to Article 273, paragraph 3 of the present Code.
(9) The Public Prosecutor may upon issuing a decision from the paragraph 8 of the present Article and determining that the conditions set forth in Article 264, paragraph 1 of the present Code are met, also issue an Order on temporary confinement, in which case the Public Prosecutor shall pursuant to Article 265, paragraph 1 recommend detention to the Investigative Judge. Investigative judge shall act pursuant to the provisions of Article 274 of the present Code.
(10) The provisions from Article 275 shall be accordingly applied on an Ruling on instigating the investigation issued by the Public Prosecutor pursuant to paragraph 8 of the present Article.
The interrogation of a suspect by using the device for registering physiological
reactions of the interrogated person
Article 261
(1) Authorized police official may at the request or with the consent of the person that became a suspect during the collection of information pursuant to Article 260, paragraph 1 of the present Code, i.e. who was summoned pursuant to Article 260, paragraph 3 of the present Code to be interrogated as a suspect, conduct his interrogation with the use of a device for registering physiological reactions.
(2) Prior to interrogation from paragraph 1 of the present Code the suspect must be read his rights from Article 260 of the present Code, and authorized police official shall explain the method of operation of this device for registering physiological reactions and the suspect shall give his written consent to be interrogated with the use of this device prior to commencement of interrogation.
(3) If the suspect during the course of interrogation declares that he withdraws his consent the authorized police official shall stop the interrogation with the use of device for registering physiological reactions.
(4) The interrogation with the use of device for registering physiological reactions cannot be applied towards the suspect who:
1) is under the influence of alcohol or under the influence of other psychoactive substances
2) suffers from serious heart condition or severe respiratory problems
3) is under an extremely great stress
4) takes sedatives
5) shows visible signs of mental illness, permanent or temporary mental disturbance or is in another condition of illness that prevents interrogation
6) is significantly mentally incompetent
7) suffers severe physical pain
8) is pregnant or recently gave birth
(5) The interrogation with the use of device for registering physiological reactions may not be applied towards a person that has not reached the age of 16, while older minor may be interrogated only with the consent of a parent or a legal guardian, and by an expert specially trained to work with minors.
(6) After the completed interrogation referred to in paragraph 1 of the present Article, the authorized police official or Public Prosecutor may conduct interrogation from the Article 260 of the present Code.
(7) Defense counsel of the suspect, i.e. counsel of the persons subject to collection of information from Article 260, paragraph 1 of the present Code and the Public Prosecutor may be present during the interrogation referred to in paragraph 1 of the present Article, and may observe the interrogation but have no right to ask questions during the interrogation and influence its course, and as a rule they shall be in a different room that shall be connected via video link to the room where the interrogation with the use of the device for registering physiological reactions is being conducted.
(8) The whole course of interrogation from paragraph 1 of the present Article may be recorded by the video and audio recording device and in cases of such audio- video recording these recordings shall be attached to the expert report of an expert for interrogation with the use of device for registering physiological reactions.
(9) The record shall not be made on the statement given during the interrogation referred to in paragraph 1 of the present Article, as it represents integral part of the expert report of an expert for interrogation with the use of device for registering physiological reactions that cannot be used as evidence in the criminal proceeding, but has a significance as an appropriate basis for caution about the possible link of a suspect, i.e. a person subject to collection of information from Article 260, paragraph 1 of the present Code, to the criminal offense being investigated in the preliminary investigation.
Questioning of persons - national proceedings
EDIT.