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Provisional Criminal Procedure Code of Kosovo

UNMIK/REG/2003/26

(excerpts)

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Chapter XXI: Protection of Injured Parties and Witnesses

Article 168

For purposes of the present Chapter, the following definitions shall apply:

1) The term “serious risk” means a warranted fear of danger to the life, physical or mental health or property of the injured party, witness or a family member of an injured party or witness as an anticipated consequence of the injured party or witness giving evidence during an examination or testimony in court;

2) The term “family member” means the spouse, extra-marital partner, a blood relation in a direct line, an adoptive parent, an adopted child, a brother, a sister or a foster parent;

3) The term “judge” means the pre-trial judge or the presiding judge;

4) The term “anonymity” means the absence of revealed information regarding the identity or whereabouts of an injured party or witness or the identity or whereabouts of a family member of an injured party or witness or the identity of any person who is associated with an injured party or a witness.

Article 169

(1) At any stage of the proceedings, the public prosecutor, private prosecutor, subsidiary prosecutor, defendant, defence counsel, injured party or witness may file a written petition with a judge for a protective measure or an order for anonymity if there is a serious risk to an injured party, witness or his or her family member.

(2) The petition shall contain a declaration of factual allegations. The judge shall file the petition and declaration in a sealed envelope and only judges and the public prosecutor may have access to the sealed contents.

(3) After receipt of the petition, the judge may order appropriate protective measures for an injured party or a witness, or if he or she deems it necessary prior to making a decision on the petition, convene a closed hearing to hear further information from the prosecutor, the defendant, the defence counsel, the injured parties or the witnesses. In the case of a petition requesting an order made pursuant to Articles 171 and 172 of the present Code, the judge shall convene a hearing in closed session.

(4) The judge may make an order for a protective measure for an injured party or witness where he or she determines that:

1) There exists a serious risk to the injured party, witness or his or her family member; and

2) The protective measure is necessary to prevent serious risk to the injured party, witness or his or her family member.

(5) The public prosecutor shall be immediately notified by the judge of any petition made by the defendant, defence counsel, injured party, witness, private prosecutor or subsidiary prosecutor and is entitled to make recommendations and statements regarding the facts to the judge at a hearing and in writing if there is no hearing ordered by the judge.

Article 170

(1) The judge may order such protective measures as he or she considers necessary, including but not limited to:

1) Omitting or expunging names, addresses, place of work, profession or any other data or information that could be used to identify the injured party or witness;

2) Non-disclosure of any records identifying the injured party or witness;

3) Efforts to conceal the features or physical description of the injured party or witness giving testimony, including testifying behind an opaque shield or through image or voice-altering devices, contemporaneous examination in another place communicated to the courtroom by means of closed-circuit television, or video-taped examination prior to the court hearing with the defence counsel present;

4) Assignment of a pseudonym;

5) Closed sessions to the public, in accordance with Article 336 of the present Code:

6) Orders to the defence counsel not to disclose the identity of the injured party or witness or not to disclose any materials or information that may lead to disclosure of identity;

7) Temporary removal of the defendant from the courtroom if a witness refuses to give testimony in the presence of the defendant or if circumstances indicate to the court that the witness will not speak the truth in the presence of the defendant; or

8) Any combination of the above methods to prevent disclosure of the identity of the injured party or witness.

(2) Other provisions of the present Code shall not apply where they conflict with protective measures under paragraph 1 of the present article.

(3) An order for a protective measure shall be in writing and shall not contain any information which could lead to the discovery of the identity of the injured party, witness or his or her family member, or which could reveal the existence of, or expose to serious risk, the operational security of ongoing and confidential police investigations.

(4) Once a protective measure has been ordered in respect of an injured party or witness, the petitioning party may subsequently request an amendment of a protective measure. Only the judge granting such protective measure may amend or rescind the order, or authorize the release of protected material to another judge for use in other proceedings. If, at the time of a request for amendment or release, the original court no longer has jurisdiction over the case, the competent judge at the court which has jurisdiction may authorize such amendment or release, after giving written notice to, and hearing any argument of, the public prosecutor.

Article 171

(1) Where protective measures under Article 170 paragraph 1 of the present Code are insufficient to guarantee the protection of a witness proposed by the defence, the judge may in exceptional circumstances make an order for anonymity whereby a witness proposed by the defence shall remain anonymous to the public, the injured party, the subsidiary prosecutor, or the private prosecutor and their legal representatives or authorized representatives.

(2) Before making an order for anonymity, the judge shall conduct a hearing, in a closed session, at which the witness at issue and other persons deemed necessary, such as police and military personnel providing security, shall be examined. Apart from these persons, only the public prosecutor, essential court and prosecution personnel and the defence counsel may be present.

(3) The judge can only issue an order for anonymity if he or she first finds that:

1) There exists a serious risk to the witness or his or her family member and the complete anonymity of the witness is necessary to prevent such serious risk;

2) The testimony of the witness is relevant to a material issue in the case so as to make it unfair to compel the defence to proceed without it;

3) The credibility of the witness has been fully investigated and disclosed to the judge in a closed session; and

4) The need for anonymity of the witness to provide justice outweighs the effect of the interest of the public, the injured party, the subsidiary prosecutor or the private prosecutor and their legal representatives or authorized representatives in knowing the identity of the witness in the conduct of the proceedings.

Article 172

(1) Where protective measures provided under Article 170 paragraph 1 of the present Code are insufficient to guarantee the protection of an injured party or witness not proposed by the defence, the judge may in exceptional circumstances make an order for anonymity whereby the injured party or witness shall remain anonymous to the defendant and the defence counsel.

(2) Before making an order for anonymity, the judge shall conduct a hearing, in a closed session, at which the injured party or witness at issue and other persons deemed necessary, such as police or military personnel providing security, shall be examined. Apart from these persons, only the public prosecutor, essential court and prosecution personnel and defence counsel may be present.

(3) The judge can only issue such order for anonymity if he or she finds that:

1) There exists a serious risk to the injured party or witness or to his or her family member and the complete anonymity of the injured party or witness is necessary to prevent such serious risk;

2) The testimony of the injured party or witness is relevant to a material issue in the case so as to make it unfair to compel the prosecution to proceed without it;

3) The credibility of the injured party or witness has been fully investigated and disclosed to the judge in a closed session; and

4) The need for anonymity of the injured party or witness to provide justice outweighs the interest of the defendant in knowing the identity of the injured party or witness in the conduct of the defence.

Article 173

(1) An order for anonymity shall be in writing and shall not contain any information which could lead to the discovery of the identity of the injured party, witness or his or her family member or which could reveal the existence of or expose to serious risk the operational security of ongoing and confidential police investigations.

(2) Information in the record of the closed session shall be removed from the record and sealed and stored as an official secret immediately after the identification and prior to examination of the injured party or witness.

(3) The restricted data may be inspected and used by the prosecution and the judge only in an appeal against an order issued under Article 171 or 172 of the present Code. An appeal against an order for anonymity and the use of methods to prevent disclosure of identity to the public, injured parties, witnesses, defence counsel and the defendant may be made to a three judge panel, if the order has been issued by a pre-trial judge. Otherwise it may only be appealed in an appeal of the judgment.

Article 174

The court shall prohibit all questions to which the answers could reveal the identity of an injured party or witness protected by a protective measure or restricted information.

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PART THREE: PRE-TRIAL PROCEEDINGS

Chapter XXIII: Criminal Report

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1. General Duties and Powers of the Police

Article 200

(1) The police shall investigate criminal offences and shall take all measures without delay, in order to prevent the concealment of evidence.

(2) As soon as the police obtain knowledge of a suspected criminal offence prosecuted ex officio either through the filing of a criminal report or in some other way, they shall without delay, and no later than twenty-four hours from the receipt of this information, inform the public prosecutor and thereafter provide him or her with further reports and supplementary information as soon as possible.

(3) The public prosecutor shall direct and supervise the work of the judicial police in the pre-trial phase of the criminal proceedings.

Article 201

(1) If there is a reasonable suspicion that a criminal offence prosecuted ex officio has been committed, the police have a duty, either ex officio or on the request of the public prosecutor, to take all steps necessary to locate the perpetrator, to prevent the perpetrator or his or her accomplice from hiding or fleeing, to detect and preserve traces and other evidence of the criminal offence and objects which might serve as evidence, and to collect all information that may be of use in criminal proceedings.

(2) In order to perform the tasks under paragraph 1 of the present article the police shall have the power:

1) To gather information from persons;

2) To perform provisional inspection of vehicles, passengers and their luggage;

3) To restrict movement in a specific area for the time this action is urgently necessary;

4) To take the necessary steps to establish the identity of persons and objects;

5) To organize a search to locate an individual or an object being sought by sending out a search circular;

6) To search specific buildings and premises of public entities in the presence of a responsible person and to examine specific documentation belonging to them;

7) To confiscate objects which must be confiscated under the Provisional Criminal Code or which may serve as evidence in criminal proceedings;

8) To provide for a physical examination of the injured party, in accordance with Article 192 of the present Code; and

9) To undertake other necessary steps and actions provided for by the law.

(3) A record or official note shall be made on the facts and circumstances which are established by undertaking individual actions and which may be of interest for the criminal proceedings as well as on the objects which have been found or confiscated.

Article 202

The police have the right to detain and gather information from persons found at the scene of the criminal offence who may provide information important for the criminal proceedings if it is likely that the gathering of information from these persons at a later time and date would be impossible or would significantly delay the proceedings or cause other difficulties. The detention of such persons may last no longer than necessary for names, addresses and other relevant information to be gathered, and in any case it shall not exceed six hours. Such detention should only be used when no other means are available to gather the information.

Article 203

Article 155 of the present Code shall apply to gathering information from persons under Articles 201 and 202 of the present Code.

Article 204

(1) If there is a danger that a person is carrying a weapon or a dangerous object that can be used for attack or self-injury, the police can perform a provisional security search of such person to search for weapons or other dangerous objects.

(2) A provisional security search shall not constitute a search of a person and will be limited to frisking the outside of the person’s clothing and, exceptionally, provisionally checking the luggage or vehicle of a person under direct control of such person.

(3) A provisional security search of a person shall be conduced by a police officer of the same sex as the person being searched unless this is absolutely not possible due to special circumstances.

(4) If in conducting a provisional security search the police finds objects that may be used as evidence in criminal proceedings, the police shall proceed in accordance with the provisions governing the search of persons under the present Code.

Article 205

(1) The police may photograph a person and take his or her fingerprints, if there is a reasonable suspicion that he or she has committed a criminal offence.

(2) The public prosecutor may authorize the police to release the photograph for general publication, when this is necessary to establish the identity of a suspect or in other cases of importance for the effective conduct of proceedings.

(3) If it is necessary to identify whose fingerprints have been found on certain objects, police may take the fingerprints of persons likely to have come into contact with such objects.

(4) Police may with the assistance of a qualified physician or nurse or in exigent circumstances on their own collect the samples referred to in Article 192 paragraph 4 of the present Code from a suspect if it is urgent. The public prosecutor shall be informed immediately of the collection of such samples.

(5) Police may request a suspect to take an alcohol test by providing urine or breath samples, and the refusal of the suspect to provide such samples constitutes admissible evidence. The suspect shall be notified of this in advance. Neither sample shall be taken by compulsion without a court order.

Article 206

(1) When gathering information from an injured party, the police shall inform the injured party of his or her rights under Article 82 of the present Code and upon the request of the injured party and, where the injured party belongs to one of the categories referred to in Article 82 paragraph 1 of the present Code, shall notify the Victim Advocacy Unit.

(2) A person against whom any of the measures provided for in Articles 201, 202, 204 or 205 of the present Code has been taken is entitled to file a complaint with the competent public prosecutor within three days.

(3) The public prosecutor shall, without delay, verify the grounds for the complaint referred to in paragraph 2 of the present article and if it is established that the actions or measures undertaken violate the criminal law or the code of conduct applicable to the police or employment obligations, he or she shall act in accordance with the law and shall inform the person who filed the complaint.

Article 207

(1) On the basis of information gathered the police shall draw up a police criminal report setting out evidence discovered in the process of gathering information.

(2) The police criminal report shall be submitted to the public prosecutor along with objects, sketches, photographs, reports obtained, records of the measures and actions undertaken, official notes, statements taken and other materials which might contribute to the effective conduct of proceedings.

(3) If, after submitting the police criminal report, the police learn of new facts, evidence or traces of the criminal offence, they have a continuing duty to gather the necessary information and to submit immediately to the public prosecutor a report to that effect, as a supplement to the police criminal report.

(4) If the measures and actions undertaken by the police and the information gathered provide no basis for a police criminal report and there is no reasonable suspicion that a criminal offence has been committed, the police will nevertheless send a separate report to that effect to the public prosecutor.

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Chapter XXIV: Provisional Arrest and Police Detention

Article 210

If a person is caught in the act of committing a criminal offence prosecuted ex officio or is being pursued, the police or any other person shall be authorized to arrest him or her provisionally even without a court order. The person deprived of his or her liberty by persons other than the police shall be immediately turned over to the police or, where that proves impossible, the police or the public prosecutor must be immediately notified. The police shall act in accordance with Article 211 and 212 of the present Code.

Article 211

The police may deprive a person of liberty if there are reasons for detention under Article 281 paragraph 1 of the present Code, but shall be obliged to bring him or her without delay to a pre-trial judge to rule on detention on remand.

Article 212

(1) Exceptionally the police can arrest and detain a person if:

1) There is a grounded suspicion that he or she has committed a criminal offence which is prosecuted ex officio;

2) Arrest and detention is necessary to establish the identity of the person, to check an alibi or to collect information and items of evidence for the criminal offence in question; and

3) There are reasons for detention under Article 281 paragraph 1 subparagraph 2 points (i) and (iii) of the present Code; or there is good reason to fear that the person might destroy evidence of the criminal offence (Article 281 paragraph 1 subparagraph 2, point (ii) of the present Code).

(2) The arrest and detention under paragraph 1 of the present article shall be authorized by the public prosecutor or, when due to exigent circumstances such authorization cannot be obtained prior to arrest, by the police who must inform the public prosecutor immediately after the arrest.

(3) Upon arrest, the arrested person shall be informed:

1) Orally of the rights set forth in Article 214 of the present Code; and

2) In writing of the other rights which he or she enjoys under the present Code.

(4) Detention under the present article may not exceed seventy-two hours from the time of arrest. On the expiry of that period the police shall release the detainee, unless a pre-trial judge has ordered detention on remand.

(5) As soon as possible after the arrest and no later than six hours from the time of the arrest, the public prosecutor or an authorized senior police officer shall issue to the arrested person a written decision on detention which shall include the first and last name of the arrested person, the place, date, and exact time of the arrest, the criminal offence of which he or she is suspected, the legal basis for the arrest and an instruction on the right of appeal.

(6) The arrested person shall have the right to appeal a decision under paragraph 5 of the present article to the pre-trial judge. The police and the public prosecutor have a duty to ensure that the appeal is delivered to the pre-trial judge. The appeal shall not stay execution of the decision. The pre-trial judge shall decide on the appeal within forty-eight hours of the arrest.

Article 213

(1) An arrested person has the right to the immediate assistance of defence counsel of his or her own choice upon arrest.

(2) If the arrested person does not engage a defence counsel and no one engages a defence counsel for him or her under Article 69 paragraph 6 of the present Code, he or she shall be provided with a defence counsel, in accordance with UNMIK Administrative Direction No. 2001/15 of 13 October 2001 Implementing Regulation No. 2001/28 on the Rights of Persons Arrested by Law Enforcement Authorities.

(3) The arrested person has the right to communicate confidentially with defence counsel orally and in writing. Communications between an arrested person and his or her defence counsel may be within sight but not within the hearing of a police officer.

(4) The right to the assistance of defence counsel may be waived in accordance with Article 69 paragraphs 3, 4 and 5 of the present Code.

(5) If the arrested person is suspected of terrorism or organized crime and there are grounds to believe that the defence counsel chosen by the arrested person is involved in the commission of the criminal offence or will obstruct the conduct of the investigation, the pretrial judge may, upon the application of the public prosecutor, order that alternative defence counsel be appointed to represent the arrested person for a maximum period of seventy-two hours from the time of arrest.

Article 214

(1) An arrested person has the following rights:

1) To be informed about the reasons for the arrest, in a language that he or she understands;

2) To remain silent and not to answer any questions, except to give information about his or her identity;

3) To be given the free assistance of an interpreter, if he or she cannot understand or speak the language of the police;

4) To receive the assistance of defence counsel and to have defence counsel provided if he or she cannot afford to pay for legal assistance;

5) To notify or require the police to notify a family member or another appropriate person of his or her choice about the arrest; and

6) To receive a medical examination and medical treatment, including psychiatric treatment.

(2) If the arrested person is a foreign national, he or she has the right to notify or to have notified and to communicate orally or in writing with the liaison office or the diplomatic mission of the State of which he or she is a national or with the representative of a competent international organization, if he or she is a refugee or is otherwise under the protection of an international organization.

Article 215

(1) An arrested person has the right to notify or to require the police to notify a family member or another appropriate person of his or her choice about the arrest and the place of detention, immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change.

(2) When an arrested person has not reached the age of eighteen years, the police shall notify the legal representative of the arrested person about the arrest and the place of detention immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change. If such notification is impossible, would be detrimental to the interests of the arrested person or is expressly refused by the arrested person, the police shall notify the Centre for Social Work.

(3) When an arrested person displays signs of mental disorder or disability, the police shall notify a person nominated by the arrested person and the Centre for Social Work about the arrest and the place of detention immediately after the arrest, and about any subsequent change in the place of detention, immediately after such change.

(4) Notification of a family member or another appropriate person in accordance with paragraph 1 of the present article may be delayed for up to twenty-four hours where the public prosecutor determines that the delay is required by the exceptional needs of the investigation of the case. There shall be no delay if the arrested person is under 18 years of age or displays signs of mental disorder or disability.

Article 216

(1) An arrested person has the right, upon request, to be examined by a doctor or dentist of his or her own choice as promptly as possible after his or her arrest and at any time during detention. If such doctor or dentist is not available, a doctor or dentist shall be designated by the police.

(2) An arrested person has the right to medical treatment, including psychiatric treatment, whenever necessary, upon the request of the arrested person or family members.

(3) The police may also appoint a doctor to conduct a medical examination or to provide medical treatment at any time in the case of physical injury or other apparent medical necessity. In case the arrested person refuses to undergo a medical examination or to accept medical treatment, the doctor shall render a final decision on the necessity of such examination or treatment, after due consideration of the rights of the arrested person.

(4) If an arrested person displays signs of mental illness, the police may immediately order an examination by a psychiatrist.

(5) The results of any medical examination or any medical treatment undertaken pursuant to the present article shall be duly recorded, and such records shall be made available to the arrested person and his or her defence counsel.

Article 217

(1) An arrested person shall be detained separately from sentenced persons or persons in detention on remand.

(2) Persons of different sex shall not be detained in the same room.

(3) A person detained for more than twelve hours shall be provided with three meals daily.

(4) In any period of twenty-four hours, an arrested person shall have the right to at least eight hours of uninterrupted rest, during which he or she shall not be examined and shall not be disturbed by the police in connection with the investigation.

Article 218

(1) During all examinations by the police, an arrested person has the right to the presence of defence counsel. If defence counsel does not appear within two hours of being informed of the arrest, the police shall arrange alternative defence counsel for him or her. Thereafter, if the alternative defence counsel does not appear within one hour of being contacted by the police, the arrested person may be examined only if the public prosecutor or the police determine that further delay would seriously impair the conduct of the investigation.

(2) Article 231, Article 232, Article 233 paragraphs 2 and 3, Article 234 and Article 235 of the present Code shall apply mutatis mutandis to the examination of the arrested person.

(3) There shall be short breaks in the examination of an arrested person at intervals of approximately two hours. A break may be delayed if there are reasonable grounds to believe that delay would:

1) Involve a risk of harm to persons or serious loss of, or damage to, property;

2) Unnecessarily prolong the person’s detention or the conclusion of the examination; or

3) Otherwise prejudice the outcome of the investigation.

(4) During an examination an arrested person shall not be required to stand and shall not be denied food, water or any necessary medical attention.

Article 219

(1) The police shall keep a single written record of all actions undertaken with respect to an arrested person, including:

1) The personal data of the arrested person;

2) The reasons for the arrest;

3) The criminal offence of which he or she is suspected;

4) The authorization or notification of the public prosecutor;

5) The place, date, and exact time of the arrest;

6) The circumstances of the arrest;

7) Any decision of the public prosecutor or an authorized senior police officer regarding detention;

8) The place of detention;

9) The identity of the police officers and the public prosecutor concerned;

10) Oral and written notification to the arrested person of his or her rights, as provided for in Article 212 paragraph 3 of the present Code;

11) Information about the exercise of the rights, as provided for in Articles 214 of the present Code, especially the right to defence counsel and to notification of family members or other appropriate persons;

12) Visible injuries or other signs which suggest the need for medical help;

13) The conduct of a medical examination or the provision of medical treatment; and

14) Information about the provisional security search of the person and a description of objects taken from the person at the time of the arrest or during detention.

(2) The police shall keep a written record of any examination of the arrested person, including the time of beginning and concluding the examination and the identity of the police officer who conducted the examination and any other persons present. If the defence counsel was not present, this shall be duly noted.

(3) The written records under paragraph 1 of the present article shall be signed by the appropriate police officer and countersigned by the arrested person. If the arrested person refuses to sign the written records, the police authorities shall record such refusal and any explanation and append any comments offered by the arrested person orally or in writing.

(4) The written records under paragraphs 1 and 2 of the present article shall be made available to the arrested person and his or her defence counsel on their request and in a language that the arrested person understands.

(5) These records shall be preserved by the police for a period of ten years from the time of the official end of the criminal proceedings or the person’s release from detention, whichever is later.

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5. Search and Temporary Confiscation

Article 240

(1) A pre-trial judge may order a search of a house and other premises and property of a specific person if there is a grounded suspicion that such person has committed a criminal offence prosecuted ex officio and there is a sound probability that the search will result in the arrest of such person or in the discovery and confiscation of evidence important for the criminal proceedings.

(2) A pre-trial judge may order a search of a house and other premises and property of a person not suspected of a criminal offence only in cases in which

1) There is a sound probability that the search will result in the arrest of a defendant; or

2) It is necessary to preserve evidence of a criminal offence or to confiscate specific objects which cannot be preserved or obtained without the search and there is a sound probability that such evidence or objects are in the premises or property to be searched.

(3) A pre-trial judge may order a personal search of a specific person if there is a sound probability that the search will result in the discovery of traces or confiscation of evidence of a criminal offence.

(4) A search order shall be issued in writing upon a written application of the public prosecutor or, in exigent circumstances, the judicial police.

(5) A search order shall contain: an identification of the person against whom the order is directed, a designation of the criminal offence in relation to which the order has been issued, an explanation of the basis for the grounded suspicion and sound probability in accordance with the present article, a description of the objects sought in the search, a separate description of the person, premises or property to be searched and other information relevant for the implementation of the search.

(6) The provisions of this and other Articles that refer to the search of a house and other premises and property shall also apply mutatis mutandis to searches of concealed spaces in vehicles and other means of transportation.

Article 241

(1) A search order shall be executed by the judicial police with the necessary assistance of other police officers within forty-eight hours of the issuance of the order.

(2) The judicial police shall, as a rule, execute the search order between the hours of 06:00 and 22:00. Exceptionally, a search may be conducted outside these hours if it began within them and is not completed by 22:00 or if there are reasons under Article 245 of the present Code, or if the pre-trial judge determines that a delay could lead to the escape of the person being sought or to the destruction of traces or evidence of a criminal offence and specifically permits a search outside the hours provided for by the present paragraph.

Article 242

(1) Before beginning the search, the judicial police shall provide the order to the person against whom the order is directed and such person shall be informed that he or she has the right to contact a lawyer who has the right to be present during the search.

(2) If the person requests a lawyer to be present during the search, the judicial police shall postpone the search until the arrival of the lawyer, but no longer than two hours after the lawyer has been informed about the search. In the meantime the judicia l police may restrict the movement of the person concerned and other persons in the premises that are about to be searched. In exigent circumstances the judicial police may begin the search even before the expiry of the time limit for the lawyer to arrive.

(3) Before beginning the search the judicial police shall ask the person to surrender voluntarily the person or the objects sought.

(4) Exceptionally, a search may start without the prior presentation of the order or the prior request for surrender of the person or objects sought if armed resistance is expected, or if the effectiveness of the search is likely to be undermined if it is not conducted instantly and without warning, or if a search is conducted on public premises.

Article 243

(1) During a search of a house or other premises the person whose house or other premises and property is being searched or a representative of such person shall have the right to be present.

(2) During a search of a person, a house or other premises, two adult persons shall be required to be present as witnesses. Before the search begins the witnesses shall be warned to observe closely how the search is conducted, and shall be informed of their right to make objections, if any, to the contents of the record of the search before it is signed.

(3) A search of a female person shall only be carried out by a female and only female persons shall be witnesses.

(4) The search of residential premises shall be carried out considerately, to avoid disturbing the peace. Locked premises, furniture or other objects may be opened forcibly only if their owner is not present or refuses to open them voluntarily. In opening these objects care should be taken to avoid unnecessary damage.

(5) A search of a person may include an intimate search which shall be conducted by a qualified medical doctor or nurse in accordance with the rules of medical science and with full respect for the person’s dignity.

(6) If a search is conducted on the premises of a public entity, the head thereof shall be invited to attend the search.

(7) A record shall be made of each search of a person, house or premises. Such record shall be signed by the person who has been searched or whose premises or property have been searched, his or her lawyer if present during the search and persons whose presence is obligatory. When conducting a search, only the objects and documents related to the purpose of that particular search may be confiscated. The objects and documents confiscated shall be entered and accurately described in the record, and the same shall be indicated in the receipt, which shall be immediately given to the person whose objects or documents have been confiscated.

Article 244

If during a search of a person, house or premises objects are found which are not related to the criminal offence which justified the search but which point to another criminal offence prosecuted ex officio, these objects shall also be described in the record and confiscated, and a receipt of confiscation shall immediately be issued. A notification thereof shall immediately be sent to the public prosecutor so that he or she can initiate criminal proceedings. The objects confiscated shall be returned immediately if the public prosecutor finds that there are no grounds for criminal proceedings, nor any other legal ground for confiscating the objects.

Article 245

(1) Police may, if necessary and to the extent necessary, enter the house and other premises of a person and conduct a search without an order of the pre-trial judge if:

1) The person concerned knowingly and voluntarily consents to the search;

2) A person is calling for help;

3) A perpetrator caught in the act of committing a criminal offence is to be arrested after a pursuit;

4) Reasons of safety of people and property so require; or

5) A person against whom an order for arrest has been issued by the court is to be found in the house or other premises.

(2) In the instances under paragraph 1 of the present article a record shall not be made if no search has been conducted, but the person shall be given an official note indicating the reason for the entry of the house or other premises. If during the entry under paragraph 1 of the present article a search was also conducted, the provisions of Article 243 paragraphs 2 and 7 of the present Code shall apply.

(3) Exceptionally, in exigent circumstances, if a written order for a search cannot be obtained in time and there is a substantial risk of delay which could result in the loss of evidence or of danger to the lives or health of people, the judicial police may begin the search pursuant to the verbal permission of a pre-trial judge.

(4) Exceptionally, a search may be conducted without witnesses being present if their presence cannot be secured immediately and it would be dangerous to delay the beginning of the search. The reasons for conducting the search without the presence of witnesses shall be noted in the record.

(5) The police may conduct a search of a person without an order or the presence of witnesses when executing a ruling to compel a person to appear or when making an arrest, if there is a grounded suspicion that the person possesses a weapon or a tool for attack or that he or she will dispose of, hide or destroy objects which should be taken from him or her as evidence in criminal proceedings.

(6) If the police have conducted a search without a written judicial order they shall send a report to that effect to the public prosecutor and the pre-trial judge, if any pre-trial judge is assigned to the case, no later than twelve hours after the search.

Article 246

Evidence obtained by a search shall be inadmissible if:

1) The search was executed without an order from a pre-trial judge in breach of the provisions of the present Code;

2) The order of the pre-trial judge was issued in breach of the procedure provided for by the present Code;

3) The substance of the order of the pre-trial judge was in breach of the requirements of the present Code;

4) The search was implemented in breach of an order of the pre-trial judge;

5) Persons whose presence is obligatory were not present during the search (Article 243 paragraphs 1 and 2 of the present Code); or

6) The search was conducted in breach of Article 245 paragraphs 1, 3, 4 and 5 of the present Code.

Article 247

(1) Objects that can temporarily be confiscated are objects which are to be confiscated under the Provisional Criminal Code, which may prove to be evidence in criminal proceedings or which constitute material benefit obtained from the commission of a criminal offence and under the law may be confiscated.

(2) Objects that are temporarily confiscated shall be put into the custody and control of the public prosecutor.

(3) The custodian of objects that can be temporarily confiscated has a duty to hand them over at the request of the court. The court shall issue such request on the written application of the public prosecutor. If a custodian declines to hand over the objects, he or she may be fined under Article 85 paragraph 1 of the present Code; if after being fined he or she still refuses to hand them over, he or she may be imprisoned. The imprisonment shall last until the objects have been handed over or until the end of criminal proceedings, but no longer than one month. Such arrest and imprisonment may only be ordered by the court.

(4) An appeal against a ruling by which a fine was imposed or imprisonment was ordered shall be determined by the three-judge panel. An appeal against a ruling on imprisonment shall not stay the execution of the ruling.

(5) When objects are confiscated, an indication shall be given of where they were found and they shall be described. If necessary, the establishment of their identity shall be secured in some other way. A receipt of confiscation shall be issued for the objects confiscated.

Article 248

(1) The following objects shall not be subject to temporary confiscation:

1) Written communications between the defendant and persons who, according to the present Code, may not testify (Article 159 of the present Code) or are exempted from the duty to testify and have refused to do so (Article 160 of the present Code);

2) Notes by persons under Article 159 of the present Code concerning confidential information entrusted to them by the defendant; and

3) Other objects covered by the rights of the persons referred to in Articles 159 and 160 of the present Code.

(2) These restrictions shall apply only if these objects are in the custody of a person who cannot testify (Article 159 of the present Code) or is exempted from the duty to testify and has refused to do so (Article 160 of the present Code). Objects covered by the rights of persons referred to in Article 160 paragraph 1 subparagraph 5 of the present Code shall also not be subject to confiscation if they are in the custody of a hospital or other medical institution. The restrictions shall not apply to persons who may not testify (Article 159 of the present Code) or are exempted from the duty to testify and have refused to do so (Article 160 of the present Code), if such persons are suspected of incitement or complicity or obstruction of justice or receiving stolen goods or where the objects concerned have been obtained by a criminal offence or have been used or are intended for use in perpetrating a criminal offence or where they emanate from a criminal offence.

Article 249

(1) Public entities may refuse to present and deliver files and other documents if they consider that disclosure of their contents would harm the general interest. If they refuse to do so, the final decision thereon shall be given by the three-judge panel.

(2) Business organizations and legal persons may request that information concerning their business be not published.

Article 250

(1) If files, including computer files, of evidentiary value are temporarily confiscated, a list of them shall be made. If that is not possible, they shall be put in an envelope and sealed. The owner of the files may put his or her stamp on the envelope.

(2) The person whose files or documents have been confiscated shall be invited to be present when the envelope is opened. If he or she does not respond to the summons or if he or she is absent, the envelope shall be opened in his or her absence.

(3) When the files are being examined, care must be taken that unauthorized persons do not become acquainted with their contents.

Article 251

Objects temporarily confiscated during criminal proceedings shall be returned to the owner or possessor if the proceedings are suspended or terminated and there are no grounds for them to be confiscated (Article 489 of the present Code). If the suspension of the criminal proceedings is due to the failure of the defendant to appear or the mental incapacity of the defendant, or if there is a reasonable likelihood that a suspended investigation will be likely to resume, the public prosecutor may request and the pre-trial judge or the presiding judge may permit a delay in the return of the confiscated objects upon good cause.

Article 252

(1) If an object found on the defendant belongs to another person who is not known, the body conducting the criminal proceedings shall describe that object and publish the description on the notice-board of the municipal assembly in the territory where the defendant lives and in the territory where the criminal offence was committed. In the notice the owner shall be summoned to come forward within a period of one year from the day of publication of the notice, because otherwise the object will be sold. The money obtained by the sale shall be transferred to the budget.

(2) If the objects are of considerable value, the notice may also be published in the daily newspapers.

(3) If the object is perishable or if keeping it involves considerable expense, it shall be sold according to the provisions applicable to enforcement proceedings and the proceeds shall be transferred to a bank for safekeeping.

(4) Paragraph 3 of the present article shall also apply to objects belonging to a defendant who has fled or to an unknown criminal offender.

Article 253

(1) If within one year no person claims the object or the proceeds from its sale, the court shall render a ruling that the object shall become the property of the competent public entity or that the proceeds from the sale shall be transferred to the budget.

(2) The owner shall have the right to seek the restitution of the object or of the proceeds from its sale in civil litigation. The period of statutory limitation for this right shall run from the day of publication of the notice.

(…)

Chapter XXIX: Covert and Technical Measures of Surveillance and Investigation

Article 256

For the purposes of the present Chapter:

1) A covert or technical measure of surveillance or investigation (“a measure under the present Chapter”) means any of the following measures:

i) Covert photographic or video surveillance;

ii) Covert monitoring of conversations;

iii) Search of postal items;

iv) Interception of telecommunications;

v) Interception of communications by a computer network;

vi) Controlled delivery of postal items;

vii) Use of tracking or positioning devices;

viii) A simulated purchase of an item;

ix) A simulation of a corruption offence;

x) An undercover investigation;

xi) Metering of telephone-calls; and

xii) Disclosure of financial data.

2) The term “covert photographic or video surveillance” means the monitoring, observing, or recording of persons, their movements or their other activities by a duly authorized judicial police officer by means of photographic or video devices, without the knowledge or consent of at least one of the persons subject to the measure;

3) The term “covert monitoring of conversations” means the monitoring, recording, or transcribing of conversations by a duly authorized judicial police officer by technical means without the knowledge or consent of at least one of the persons subject to the measure;

4) The term “search of postal items” means the search by a duly authorized judicial police officer of letters and other postal items which may include the use of X-ray equipment;

5) The term “controlled delivery of postal items” means the delivery by a duly authorized judicial police officer of letters and other postal materials;

6) The term “use of tracking or positioning devices” means the use by a duly authorized judicial police officer of devices, which identify the location of the person or object to whom it is attached;

7) The term “a simulated purchase of an item” means an act of buying from a person suspected of having committed a criminal offence an item which may serve as evidence in criminal proceedings or a person suspected to be a victim of the criminal offence of Trafficking in Persons, as defined in Article 139 of the Provisional Criminal Code;

8) The term “a simulation of a corruption offence” means an act, which is the same as a criminal offence related to corruption, except that it has been performed for the purpose of collecting information and evidence in a criminal investigation;

9) The term “an undercover investigation” means the planned interaction of a duly authorized judicial police officer who is not identifiable as a duly authorized judicial police officer or of a person acting under the supervision of a duly authorized judicial police officer with persons suspected of having committed a criminal offence;

10) The term “metering of telephone calls” means obtaining a record of telephone calls made from a given telephone number;

11) The term “disclosure of financial data” means obtaining information from a bank or another financial institution on deposits, accounts or transactions;

12) The term “authorizing judicial officer” means the pre-trial judge or public prosecutor under whose authority an order under the present Chapter has been issued; and

13) The term “subject of an order” means the person against whom a measure under the present Chapter has been ordered.

Article 257

(1) Covert photographic or video surveillance, covert monitoring of conversations in public places, metering of telephone calls or disclosure of financial data may be ordered against a particular person if:

1) There is a grounded suspicion that such person has committed a criminal offence which is prosecuted ex officio or, in cases in which attempt is punishable, has attempted to commit a criminal offence which is prosecuted ex officio; and

2) The information that could be obtained by the measure to be ordered would be likely to assist in the investigation of the criminal offence and would be unlikely to be obtained by any other investigative action without unreasonable difficulty or potential danger to others.

(2) Metering of telephone calls or disclosure of financial data may also be ordered against a person other than the suspect, where the criteria in paragraph 1 subparagraph 1 of the present article apply to a suspect and the precondition in paragraph 1 subparagraph 2 of the present article is met and if there is a grounded suspicion that:

1) Such person receives or transmits communications originating from or intended for the suspect or participates in financial transactions of the suspect; or

2) The suspect uses such person’s telephone.

(3) Covert monitoring of conversations in private places, search of postal items, interception of telecommunications, interception of communications by a computer network, controlled delivery of postal items, the use of tracking or positioning devices, a simulated purchase of an item, a simulation of a corruption offence or an undercover investigation may be ordered against a particular person if:

1) There is a grounded suspicion that such person has committed or, in cases in which attempt is punishable, has attempted to commit:

(i) A criminal offence punishable by imprisonment of at least four years; or

(ii) One or more of the following criminal offences, if committed in the furtherance of terrorism or organized crime:

(1) Coercion, as defined in Article 160 of the Provisional Criminal Code;

(2) Causing a General Danger, as defined in Article 291 of the Provisional Criminal Code;

(3) Showing Pornographic Material to Persons under the Age of Sixteen Years, as defined in Article 203 of the Provisional Criminal Code;

(4) An offence related to forgery of documents and money, as defined in Articles 239, 244 and 245 of the Provisional Criminal Code;

(5) Prohibited Trade, as defined in Article 246 of the Provisional Criminal Code;

(6) Unjustified Acceptance of Gifts, as defined in Article 250 of the Provisional Criminal Code;

(7) Unjustified Giving of Gifts, as defined in Article 251 of the Provisional Criminal Code;

(8) Intrusion into Computer Systems, as defined in Article 264 of the Provisional Criminal Code;

(9) False statements, as defined in Article 307 of the Provisional Criminal Code;

(10) Trading in Influence, as defined in Article 345 of the Provisional Criminal Code;

(11) Criminal Association, as defined in Article 26 of the Provisional Criminal Code;

(12) Unauthorized Ownership, Control, Possession or Use of Weapons, as defined in Article 328 of the Provisional Criminal Code;

(13) Non-compliance with Weapon Authorization Requirements, as defined in Article 329 of the Provisional Criminal Code;

(14) Accepting Bribes, as defined in Article 343 of the Provisional Criminal Code;

(15) Giving Bribes, as defined in Article 344 of the Provisional Criminal Code;

(16) Unlawful Deprivation of Liberty, as defined in Article 162 of the Provisional Criminal Code; or

(17) Unauthorized Border or Boundary Crossings, as defined in Article 114 of the Provisional Criminal Code; and

2) The information that could be obtained by the measure to be ordered would be likely to assist in the investigation of the criminal offence and would be unlikely to be obtained by any other investigative action without unreasonable difficulty or potential danger to others.

(4) The search of postal items, the interception of telecommunications or the interception of communications by a computer network may also be ordered against a person other than the suspect, where the criteria in paragraph 3 subparagraph 1 of the present article apply to a suspect and the precondition in paragraph 3 subparagraph 2 of the present article is met and if there is a grounded suspicion that:

1) Such person receives or transmits communications originating from or intended for the suspect; or

2) The suspect is using such person’s telephone or point of access to a computer system.

Article 258

(1) A public prosecutor may issue an order for each of the following measures:

1) Covert photographic or video surveillance in public places;

2) Covert monitoring of conversations in public places;

3) An undercover investigation: or

4) Metering of telephone calls.

(2) A pre-trial judge may issue an order for each of the following measures on the basis of an application by a public prosecutor:

1) Covert photographic or video surveillance in private places;

2) Covert monitoring of conversations in private places;

3) Search of postal items;

4) Interception of telecommunications;

5) Interception of communications by a computer network;

6) Controlled delivery of postal items;

7) Use of tracking or positioning devices;

8) A simulated purchase of an item;

9) A simulation of a corruption offence; or

10) Disclosure of financial data.

(3) An application for one of the measures provided for in paragraph 1 or 2 of the present article shall be made in writing and shall include the following information:

1) The identity of the duly authorized judicial police officer or the public prosecutor making the application;

2) A complete statement of the facts relied on by the applicant to justify his or her belief that the relevant criteria in Article 257 are satisfied; and

3) A complete statement of any previous application known to the applicant involving the same person and the action undertaken by the authorizing judicial officer on such application.

(4) In emergency cases, if the delay that would result from a pre-trial judge issuing an order under paragraph 2 of the present article would jeopardize the security of investigations or the life and safety of an injured party, witness, informant or their family members, a public prosecutor may issue a provisional order for one of the measures provided for in paragraph 2 of the present article. Such provisional order ceases to have effect if it is not confirmed in writing by a pre-trial judge within twenty-four hours of issuance. When confirming the provisional order of a public prosecutor, the pre-trial judge shall make a written determination as to its lawfulness ex officio. A public prosecutor may not use his or her authority under this paragraph to issue an order pursuant to Article 259 paragraphs 3 or 5 of the present Code.

Article 259

(1) An order for a measure under the present Chapter shall be in writing and shall specify:

1) The name and address of the subject or subjects of the order;

2) The nature of the measure;

3) The grounds for the order;

4) The period within which the order shall have effect, which shall not exceed 60 days from the date of the issuance of the order; and

5) The agency of the judicial police authorized to implement the measure and the officer responsible for supervising such implementation.

(2) An order for a measure under the present Chapter shall require that duly authorized judicial police officers provide the authorizing judicial officer a report on the implementation of the order at 15 day intervals from the date of the issuance of the order.

(3) An order for covert photographic or video surveillance in private places, monitoring of conversations in private places, interception of telecommunications, interception of communications by a computer network or the use of tracking or positioning devices may authorize duly authorized judicial police officers to enter private premises if a pre-trial judge determines that such entry is necessary to activate or disable the technical means for the implementation of such measures. If duly authorized judicial police officers enter private premises pursuant to an order under this paragraph, their actions in the private premises shall be limited to those specified in the order.

(4) An order for the metering of telephones or the interception of communications by a computer network shall include all the elements for the identification of each telephone or point of access to a computer network to be intercepted. Except as provided in paragraph 5 of the present article, an order for the interception of telecommunications shall include all the elements for the identification of each telephone to be intercepted.

(5) Upon the application of a public prosecutor, an order for the interception of telecommunications may include only a general description of the telephones which may be intercepted, where a three-judge panel of the competent District Court has determined that there is a grounded suspicion that:

1) The suspect is using various telephones so as to avoid surveillance by duly authorized judicial police officers; and

2) A telephone or telephones, as described in the order, are being used or are about to be used by the suspect.

(6) If an order for the interception of telecommunications is issued by a three-judge panel of a District Court pursuant to paragraph 5 of the present article,

1) The duly authorized judicial police officers after implementing the order in respect of a particular telephone shall promptly inform the three-judge panel in writing of the relevant facts, including the number of the telephone;

2) The order may not be used to intercept the telecommunications of a person who is not the suspect; and

3) The duration of the order is limited to 15 days and may be renewed up to a total period of 90 days from the date of issuance of the order.

(7) An order for the search of postal items or for the controlled delivery of postal items shall designate the address on the postal items to be searched or delivered. Such address shall be that of the subject or subjects of the order.

(8) An order for interception of telecommunications, interception of communications by a computer network, metering of telephone calls, search of postal items, controlled delivery of postal items or disclosure of financial data shall include as an annex a separate written instruction to persons other than duly authorized judicial police officers whose assistance may be necessary for the implementation of the order. Such written instruction shall be addressed to the director or the official in charge of the telecommunications system, computer network, postal service, bank or other financial institution and shall specify only the information, which is required for assistance in the implementation of the order.

Article 260

(1) A duly authorized judicial police officer shall commence the implementation of an order for a measure under the present Chapter no later than fifteen days after it has been issued.

(2) The implementation of an order shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under the present Chapter.

(3) If any of the conditions for ordering the measure cease to apply, duly authorized judicial police officers shall suspend implementation of the order and shall notify in writing the authorizing judicial officer. If the order was issued by a pre-trial judge, the judicial police officers shall also notify the public prosecutor. On receiving the written notification the authorizing judicial officer shall make a written determination as to whether the order shall be terminated.

(4) Duly authorized judicial police officers shall make a record of the time and date of the beginning and end of each action undertaken in implementing the order. The record shall state the names of the duly authorized judicial police officers who carried out each operation and the functions they performed. Such records shall be annexed to the report submitted to the authorizing judicial officer under Article 259 paragraph 2 of the present Code.

(5) With respect to the implementation of an order for interception of telecommunications, interception of communications by a computer network, search of postal items, controlled delivery of postal items and metering of telephone calls, persons responsible for the operation of telecommunications, computer-networks or postal services shall facilitate the implementation of an order under the supervision of the director or official in charge of the telecommunications system, computer network, or postal services.

(6) With respect to the implementation of an order for the disclosure of financial data, employees of a financial institution shall facilitate the implementation of such order under the supervision of the director or the official in charge of the financial institution.

(7) A duly authorized judicial police officer or a person acting under the supervision of a duly authorized judicial police officer may perform a simulated purchase of an item or a simulation of a corruption offence.

(8) With respect to the implementation of an order for an undercover investigation, a simulated purchase of an item or a simulation of a corruption offence:

1) A person implementing the order may not incite another person to commit a criminal offence which that person would not have committed but for the intervention of the person implementing the order; and

2) A person who, in accordance with the provisions of the present Chapter, implements such order does not commit a criminal offence.

(9) Criminal proceedings shall not be initiated in respect of a criminal offence which has been incited in breach of paragraph 8 of the present Article.

(10) With respect to the implementation of an order for the interception of telecommunications, interception of communications by a computer network or search of postal items, such an order may not be implemented in relation to communications between a suspect and his or her lawyer, unless there is a grounded suspicion that the suspect and the lawyer are engaged together in criminal activity which constitutes the grounds for the order.

Article 261

(1) The authorizing judicial officer may not issue a further written order for the extension of an order under the present Chapter, unless the preconditions for ordering a measure under the present Chapter, as set forth in Article 257 of the present Code, continue to apply and there is a reasonable explanation of the failure to obtain some or all of the information sought under the earlier order.

(2) An order for covert photographic or video-surveillance in public places, covert monitoring of conversations, search of postal items, interception of communications by a computer network, controlled delivery of postal items, use of tracking or positioning devices, an undercover investigation, metering of telephone-calls or disclosure of financial data may be extended for a maximum period of 60 days, which may be renewed up to a total period of 360 days from the date of the issuance of the order.

(3) An order for covert photographic or video-surveillance in private places or interception of telecommunications may be extended for a maximum of 60 days, which may be renewed for a further maximum period of 60 days.

(4) An order for a simulated purchase of an item or a simulation of a corruption offence shall only authorize a single purchase of an item or a single simulation of a corruption offence. An authorizing judicial officer may issue a further such order in respect of the same subject, if the preconditions for ordering a measure under the present Chapter, as set forth in Article 257 of the present Code, continue to apply and there is a reasonable explanation of the failure to obtain some or all of the information sought under the earlier order.

(5) The authorizing judicial officer may modify an order at any time, if he or she determines that such modification is necessary to ensure that the preconditions for ordering a measure under the present Chapter, as set forth in Article 257 of the present Code, still apply. (6) The authorizing judicial officer may terminate an order at any time if he or she determines that the preconditions for ordering a measure, as set forth in Article 257 of the present Code, cease to apply.

(7) The extension of an order for a measure ordered by a pre-trial judge may only be ordered on the motion of a public prosecutor.

Article 262

(1) On the completion of the implementation of a measure under the present Chapter, the duly authorized judicial police officers shall send all documentary records, tapes and other items relating to the order and its implementation (“collected materials”) to the public prosecutor.

(2) The collected materials shall be kept securely at all times.

(3) Postal items, which do not contain information that will assist in the investigation of a criminal offence, shall immediately be forwarded to the recipient.

Article 263

(1) The public prosecutor shall promptly inform in writing by registered mail each subject of an order that he or she has been the subject of that order, that he or she has a right to submit a complaint through the Head of the competent public entity in the field of judicial affairs to a Surveillance and Investigation Review Panel (Article 265 of the present Code) within six months of being informed and that he or she shall be permitted access to the collected materials, if:

1) There is no longer a grounded suspicion that the suspect has committed a criminal offence; or

2) The public prosecutor does not file an indictment within one year of the termination of an order for a measure under the present Chapter.

(2) A pre-trial judge may, upon the application of a public prosecutor, order that

1) The subject of the order shall not be permitted access in accordance with paragraph 1 of the present article to certain items in the collected materials, if the access of the subject of the order to such items would jeopardize the security of investigations or the life or safety of an injured party, witness, informant or their family members; or

2) The obligation to inform the subject of the order in accordance with paragraph 1 of the present article be delayed for a period of no more than one year if the performance of such obligation before the expiry of the prescribed period of time would jeopardize the security of investigations or the life or safety of an injured party, witness, informant or their family members.

(3) Exceptionally, a pre-trial judge may, upon the application of the public prosecutor, order in writing in respect of an informant or a duly authorized judicial police officer who has implemented a measure under this chapter that:

1) Names, addresses, place of work, profession or any other data or information in the collected materials that could be used to identify such person be expunged or omitted; or

2) Records in collected materials identifying such person not be disclosed; if he or she determines that the items of evidence are not deemed exculpatory and revealing those items of evidence to the defendant or his or her defence counsel would jeopardize the security of investigations or the life or safety of such person or his or her family member. Such order may be issued before the subject of the order is informed in accordance with paragraph 1 of the present article.

(4) Nothing in the present article shall be construed in any way to prejudice the right of the defendant and the defence counsel to examine the record in accordance with the law, except that the defendant and the defence counsel may be denied access to certain data, information or records pursuant to paragraph 3 of the present article, on the condition that:

1) The items of evidence may not be the basis for a decision on detention or guilt; and

2) The order of the pre-trial judge under paragraph 3 of the present article shall be reviewed by the president of the trial panel at the beginning of the trial and after all the witnesses have been examined. If the president of the trial panel determines that such items of evidence are exculpatory, he or she shall notify the public prosecutor of the determination and with the agreement of the public prosecutor the items shall be placed on the court file. If the public prosecutor does not agree to place the items of evidence on the court file, the issue in respect of which they are deemed exculpatory by the president of the trial panel shall be interpreted in the favour of the defendant by the court.

(5) If the Head of the competent public entity in the field of judicial affairs does not receive a complaint from the subject of an order six months after the subject has been informed in accordance with paragraph 1 of the present article, the public prosecutor shall destroy the collected materials.

(6) The public prosecutor shall make a written record of the destruction of the collected materials under paragraph 5 of the present article.

Article 264

(1) Evidence obtained by a measure under the present Chapter shall be inadmissible, if the order for the measure and its implementation are unlawful.

(2) Evidence which has been obtained by covert monitoring of conversations in private places, search of postal items, interception of telecommunications, interception of communications by a computer network, the controlled delivery of postal items, the use of tracking or positioning devices, a simulated purchase of an item, a simulation of a corruption offence or an undercover investigation is only admissible in criminal proceedings in respect of a criminal offence which is specified in Article 257 paragraph 3 of the present Code.

(3) Before the indictment becomes final, the judge who conducts the proceedings on the confirmation of the indictment (Articles 309 through 318 of the present Code) shall review the admissibility of the collected materials ex officio. The provisions of Article 154 of the present Code shall apply mutatis mutandis. Upon receipt of the collected materials together with the indictment, the judge shall issue to the parties a written ruling as to whether the order for a measure under the present Chapter and its implementation have been lawful. A party may submit an appeal against that ruling to a three-judge panel within 72 hours of its service. The ruling that an order or its implementation is unlawful is final:

1) When the three-judge panel takes its decision on an appeal; or

2) On the expiry of the prescribed period of time for appeal against the ruling of the judge if no appeal has been submitted.

(4) When the ruling that an order or its implementation is unlawful is final, the judge who conducts the proceedings on the confirmation of the indictment shall remove all collected materials from the record and submit such materials through the Head of the competent public entity in the field of judicial affairs to a Surveillance and Investigation Review Panel for a decision on compensation.

Article 265

(1) A Surveillance and Investigation Review Panel (“Review Panel”) shall:

1) Adjudicate on a complaint submitted under paragraph 5 of the present article in respect of a measure or an order for a measure under the present Chapter and decide on compensation where appropriate; or

2) Decide on compensation for the subject or subjects of an order under the present Chapter if a judge has made a final ruling under Article 264 paragraph 3 of the present Code that the order or its implementation is unlawful.

(2) A Review Panel shall be composed of three international judges who shall be assigned by the competent authority to adjudicate on an individual complaint or to decide on compensation following an individual ruling under Article 264 paragraph 3 of the present Code. None of the three members of the Review Panel shall be professionally connected with the subject of the complaint or the collected materials, which are the subject of the ruling under Article 264 paragraph 3 of the present Code.

(3) Judicial police officers and public prosecutors shall provide the Review Panel with such documents as the Review Panel shall require to perform its functions and shall, on request, provide oral testimony to the Review Panel.

(4) When a ruling of a judge that an order for a measure under the present Chapter or its implementation is unlawful is final, it is binding on the Review Panel.

(5) If a person considers that he or she has been the subject of a measure under the present Chapter, which is unlawful, or an order for a measure under the present Chapter, which is unlawful, he or she may submit a complaint through the Head of the competent public entity in the field of judicial affairs to a Review Panel for adjudication.

(6) If on adjudicating on a complaint the Review Panel finds that a measure under the present Chapter is unlawful or an order for such measure is unlawful, it may decide to:

1) Terminate the order, if it is still in force;

2) Order the destruction of the collected materials; and/or

3) Award compensation to the subject or subjects of the order.

Article 266

The judicial police may, where appropriate, seek the assistance of other authorities responsible for maintaining law and order and a secure environment in Kosovo in connection with the implementation of measures under the present Chapter.

Article 267

The provisions of the present Chapter are without prejudice to the powers granted to official persons under the applicable law to conduct surveillance and investigation when providing customs and other related services.