Fiches Belges

If the controlled delivery refers to the control delivery ordered by the Croatian authorities on the request of foreign authorities then this investigative measure can be ordered on the basis of the European Investigation Order or MLA request (third State and EU Member States that do not apply EIO Directive) issued in accordance with the applicable international agreement or rule of reciprocity. In the case of execution and recognition of the EIO the competent County State Attorney´s Office shall verify whether the order is compiled in accordance with the EIO Directive and request from the investigative judge issuance of an order in accordance with the Article 42 ah of the Act on judicial cooperation in criminal matters with Member States of the European Union (Article 28 of the Directive 2014/41/EU ) and applicable provisions of the Criminal Procedure Act. In the case of execution of the MLA request the investigative judge of the competent County Court shall issue an order for control delivery on the basis of the MLA request, accompanied by the judicial decision rendered by the competent authority of requesting state by which the control delivery was ordered. Namely, control delivery presents coercive investigative measure that limits certain constitutional rights of citizens so it can be ordered only on the basis of the decision issued in the Requesting State. In both case the investigative judge shall order the controlled transport and delivery of objects from criminal offences if the investigation cannot be carried out in any other way or would be accompanied by great difficulties, the investigating judge may, against the person against whom there are grounds for suspicion that he/ she committed or has taken part in committing an offence referred to in Article 334 of Criminal Procedure Act (CPA): 1) war crime , terrorism , financing of terrorism, training for terrorism , travel for the purpose of terrorism, terrorist association, slavery , human trafficking, trafficking in human body parts and human embryos , unlawful deprivation of liberty, kidnapping, sexual abuse of a child under the age of fifteen, child pimping, exploitation of children for pornography, serious criminal offenses of sexual abuse and exploitation of a child , money laundering, abuse of position and authority if she committed the crime official person, accepting a bribe if the act was committed by an official person, trading in influence if the act was committed by an official person, criminal association, committing a criminal offense as part of a criminal association, murder of a person under international protection, kidnapping of a person under international protection, for criminal offenses against the Republic of Croatia and against the Armed Forces of the Republic of Croatia for which a prison sentence of at least five years is prescribed and for all criminal offenses for which a long-term prison sentence is prescribed, 2) genocide, crimes of aggression, responsibility of commanders, recruitment for terrorism, preparation of criminal acts against values protected by international by law, torture and other cruel, inhuman or degrading treatment or punishment if committed to the detriment of a child, murder , unlawful deprivation of liberty , kidnapping, prostitution, sexual abuse of a child over the age of fifteen , luring children to satisfy their sexual needs , child pimping , exploitation of children for pornography, exploitation of children for pornographic performances, abduction of a child , unauthorized production and trafficking of drugs , serious criminal offenses against general security , attack on an aircraft, ship or stationary platform , robbery, extortion, receiving bribes in business operations , abuse in public procurement procedures, evasion of customs supervision, subsidy fraud , money laundering , counterfeiting of money , abuse of position and authority , illegal favouritism , accepting bribes, giving bribes, trading in influence, illegal entry, movement and residence in the Republic of Croatia and committing a criminal offense as part of a criminal association, 3) public incitement to terrorism, unlawful deprivation of liberty, rape, serious crimes against sexual freedom, prostitution, child abduction, violation of children's rights, counterfeiting of medicines or medical products, unauthorized production and trafficking of drugs, facilitating the use of drugs, unauthorized production and trafficking of substances prohibited in sports, extortion, receiving and giving bribes in bankruptcy proceedings, giving bribes in business operations, making, procuring , possessing, selling or making available for use means for forgery, paying a bribe, paying a bribe for trading in influence, giving away an official secret if that act violates secrecy investigations and investigations, giving a false statement, preventing evidence, breaching the secrecy of the proceedings if the act violated secrecy in the criminal proceedings, revealing the identity of a vulnerable person or a protected witness, coercion against a judicial official, illegal entry, movement and residence in the Republic of Croatia, illegal possession, manufacture and acquisition of weapons and explosive substances, murder of a person under international protection, kidnapping of a person under international protection, attack on a person under international protection, threats to a person under international protection and for criminal offenses against computer systems, programs and data and against intellectual property In case there is no knowledge about the identity of the accomplices in the criminal offence, the action may be determined regarding the object of the criminal offence. Please note that this investigative measure may, with the written consent of the person, be applied to the assets, premises and objects of that person. Recordings obtained by the application of this investigative action may be used as evidence in criminal proceedings. This special investigative action may last up to three months. Upon the motion of the State Attorney the investigating judge shall prolong the duration of such measures for a term of another three months and for certain serious offences for a term of six months. Exceptionally, for certain offences, the investigating judge may prolong the measures for a further term of six months. The application of this special investigative action shall cease as soon as the reasons lapse on the basis of which they were ordered. The State Attorney and the court shall ex offo pay attention to the existence of the reasons on the basis of which the measures were ordered.

If the control delivery refers to the investigative measure ordered by the Croatian investigative judge on the request /decision of issuing /requesting State then the following legal framework is being applied: This investigative action may be conducted on the basis of bilateral /multilateral treaty that regulates mutual legal assistance and prescribes the obligation to provide mutual legal assistance in the broadest sense. This investigative action may be conducted on the basis of reciprocity in accordance with the Article 4 of the Act on mutual legal assistance in criminal matters (“International legal assistance is provided in the broadest sense, in accordance with the principles of the domestic legal order, the principles of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights.”) and applicable provisions of the Criminal Procedure Act. Article 28 of the Directive 2014/41/EU of 3 April 2014 regarding the European Investigation Order in criminal matters (EIO Directive) regulates issuance of the EIO for the purpose of conducting ˝Investigative measures implying the gathering of evidence in real time, continuously and over a certain period of time˝, including the controlled deliveries on the territory of the executing State. This provision has been transposed in the Croatian legislation by the Article 42 ah of the Act on judicial cooperation in criminal matters with Member State of the EU. If the control delivery refers to the cross-border control delivery where the Republic of Croatia gives an authorisation for this type of investigative measure on its territory the following legal framework if being applied: Article 73 of Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders which regulated the measures to allow controlled deliveries to be made in the context of the illicit trafficking in narcotic drugs and psychotropic substances The Republic of Croatia gave reservation on the Article 18 of the Second Additional Protocol to the European Convention on mutual legal assistance in criminal matters signed on 2001. So, mentioned investigative measure shall not be conducted on the request of State Party of the Second Additional Protocol. The domestic law does not regulate the procedure for giving permission to controlled deliveries on its territory.

If the legal basis is international treaty or rule of reciprocity Ministry of Justice and Administration is competent authority for reception of the mutual legal assistance request. The County Court (investigative judge) shall order the investigative measure of controlled delivery if the conditions prescribed by the Criminal Procedure Act are fulfilled. If the legal basis is EIO Directive the competent judicial authority for reception of the EIO is County State Attorney´s Office competent for the place where the evidentiary action is to be conducted, i.e. where the evidence is located;

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.

This investigative measure can be ordered only for the severe offences stipulated in the Article 334 of the Criminal Procedure Act (CPA). The requested investigative measure of controlled delivery shall be conducted in accordance with the Criminal Procedure Act of the Republic of Croatia as requested /executing State. The issuing/requesting State can request the execution of this investigative measure in accordance with its domestic law. Namely, 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.” Furthermore, 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.