Fiches Belges

Expert witness testimony shall be ordered when, with a view to determine or assess relevant facts it is necessary to obtain findings and the opinion of a person who has the necessary expert knowledge. Before the commencement of the expert witness testimony, the expert shall be asked to thoroughly examine the object of his testimony, to indicate accurately everything he notices or discovers and to give his opinion without bias and in conformity with the rules of the pertinent science or skill. He/she shall be given a special instruction that giving false expert witness testimony is an offence. An expert opinion is determined when, in order to determine or evaluate an important fact, a finding and opinion must be obtained from a person who possesses the professional knowledge or skill. A person who is called as an expert is obliged to respond to the call and give his findings and opinion. If the duly summoned expert does not come and does not justify his absence, or if he refuses to testify, he may be fined up to 6.636,14 euros, and in case of unjustified absence, he may be forcibly brought. The judge of the investigation makes the decision to punish and forcibly bring. The body conducting the procedure may ask the expert to specify the deadline by which he will submit the findings and opinion. An expert may be allowed to inspect the files. The expert may propose to acquire objects and data that are important for giving findings and opinions. If he is present during the investigation or other evidentiary action, the expert can suggest that certain circumstances be clarified or that the person being questioned be asked certain questions. The body leading the proceedings may attend the actions of the expert. If for the purposes of the expert examination it is necessary to carry out an analysis of some substance, if possible, only a part of that substance will be made available to the expert, and the rest will be provided in the necessary quantity for the case of subsequent tests. If the expert's report is unclear, incomplete or in contradiction with itself or with the observed circumstances, and these deficiencies cannot be eliminated by re-examining the expert, the expert examination will be renewed with the same or another expert. If there are contradictions or deficiencies in the opinion of the expert, or grounds for doubting the accuracy of the given opinion appear, and these deficiencies or doubts cannot be removed by re-examining the expert, the opinion of another expert will be requested.

Directive on the European Investigation Order in criminal matters: in relation to Member States that implemented the Directive. Otherwise: European Convention on Mutual Assistance in Criminal Matters (20.04.1959) and its Additional Protocols as well as applicable bilateral treaties Rule of reciprocity: Act on mutual legal assistance in criminal matters and Criminal Procedure Act

Directive on the European Investigation Order in criminal matters: County State Attorney's Offices where the evidentiary action is to be carried out, i.e. where the evidence is located; The MS EU that have not implemented the EIO Directive and third States: Ministry of Justice and Public Administration International agreements: applicable provisions Rule of reciprocity: Ministry of Justice and Public Administration

Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: Croatian or English language (in a need of urgency in under the condition of reciprocity) European convention on mutual legal assistance in criminal matters signed on 1959: Croatian or English language (declaration on the Article 16 of the European convention on mutual legal assistance in criminal matters signed on 1959) Article 8 of the Act on mutual legal assistance in criminal matters: “The request as well as the attached documents should be accompanied by a translation into Croatian, and if this is not possible, then into English. Translations must be officially certified.”

Directive 2014/41/EU of 3 April 2014 on the European Investigation Order: The competent authority must execute it as soon as possible and at the latest within 90 days after the decision of recognition of the EIO. European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 the requested State executes the request for mutual legal assistance as soon as possible (Art. 1 Second additional Protocol to the Convention of 20 April 1959) There is no deadline for the execution of requests for assistance in Croatian criminal law. However, if the requested authority asks for a deadline to be observed such a deadline will be respected.

The investigative measure of technical and scientific examination is being conducted in accordance with the Criminal Procedure Act as applicable law of the Republic of Croatia as executing State/requested State: Expert examination is determined by a written order by the body leading the procedure. The order will specify the facts with which the expert opinion is conducted and to whom it is entrusted. The order is also delivered to the parties. If there is an expert institution or state body for a certain type of expert examination, such expert examinations, especially more complex ones, will, as a rule, be entrusted to such an institution or body. The institution or body appoints one or more experts who will perform the expert examination. As a rule, one expert is appointed, and if the expert examination is complex, two or more experts. If there are experts permanently appointed by the court for any type of expert examination, other experts may be appointed only if there is a risk of delay, or if the permanent experts are prevented, or if other circumstances require it. An expert cannot be a person who cannot be examined as a witness or a person who is exempt from the duty to testify, nor a person against whom a criminal offense has been committed, and if taken, his findings and opinion cannot be used as evidence in proceedings. The reason for the exemption of an expert also exists in connection with a person who, together with the plaintiff, defendant, victim or injured party, is employed in the same state body or by the same employer. Examination and autopsy of the body will always be undertaken when there is a doubt, or it is obvious that the death was caused by a criminal offense or is related to the commission of a criminal offense. If the body has already been buried, exhumation will be ordered for its examination and autopsy. During the autopsy of the body, the necessary measures will be taken to establish the identity of the body, and for this purpose, the data on the external and internal physical characteristics of the body will be specifically described. Exhumation can only be ordered by the court. Please note that Article 9 para 2 of the Directive 2014/41/EU of 3 April 2014 on the European Investigation Order:” The executing authority shall comply with the formalities and procedures expressly indicated by the issuing authority unless otherwise provided in this Directive and provided that such formalities and procedures are not contrary to the fundamental principles of law of the executing State.” Most of the international agreements prescribe the possibilities of conducting requested investigative measure in accordance with the law of requesting state. For example, Article 8 of the Second Additional Protocol to the European Convention on mutual legal assistance in criminal matters prescribes the following: “Notwithstanding the provisions of Article 3 of the Convention, where requests specify formalities or procedures which are necessary under the law of the requesting Party, even if unfamiliar to the requested Party, the latter shall comply with such requests to the extent that the action sought is not contrary to fundamental principles of its law, unless otherwise provided for in this Protocol.2 In the absence of the international agreement the rule of reciprocity is being applied as well as domestic law. In accordance with the Article 10 of the Act on mutual legal assistance in criminal matters the Republic of Croatia as requesting state can execute service in accordance with the law of requesting state: (1) When providing international legal assistance, the domestic judicial body will comply with the formalities and procedures that are explicitly stated in the application as necessary according to the law of the requesting state, unless an international treaty provides otherwise and on the condition that such formalities and procedures do not contradict the principles domestic legal order. (2) The domestic judicial body decides upon the request of the foreign judicial body without delay, taking into account procedural deadlines and other specially determined deadlines explained in the request.