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Republic of Croatia Negotiating Team for the Accession of the Republic of Croatia to the European Union Working Group for Chapter 23. Judiciary and Fundamental.

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Presentation on theme: "Republic of Croatia Negotiating Team for the Accession of the Republic of Croatia to the European Union Working Group for Chapter 23. Judiciary and Fundamental."— Presentation transcript:

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2 Republic of Croatia Negotiating Team for the Accession of the Republic of Croatia to the European Union Working Group for Chapter 23. Judiciary and Fundamental Rights Bilateral screening: Chapter 23. Presentation of the Republic of Croatia Bruxelles, 18 October 2006 Damir Brnetić BA lawyer Chief Police Inspector, Police Academy

3 DETENTION COMPARATIVE OVERVIEW CONSTITUTION OF THE REPUBLIC OF CROATIA CRIMINAL PROCEDURE ACT  CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS Article 5 RECOMMENDATION No. R (80) 11 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES CONCERNING CUSTODY PENDING TRIAL (Adopted by the Committee of Ministers on 27June 1980 at the 321st meeting of the Ministers' Deputies) GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

4 CONSTITUTION Freedoms and rights may only be restricted by law in order to protect freedoms and rights of others, public order, public morality and health. Every restriction of freedoms or rights shall be proportional to the nature of the necessity for restriction in each individual case. Freedom and personality of everyone shall be inviolable. No one shall be deprived of liberty, nor may this liberty be restricted, except upon a court decision in accordance with law. No one shall be arrested or detained without a written court warrant as prescribed by law. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

5 CONSTITUTION The police may arrest a person without a warrant when the person is reasonably suspected of having committed a serious criminal offence defined by law, provided that the person is brought promptly before a court. The arrested person shall be informed promptly, in terms which he understands, of the reasons for his arrest, and of his rights determined by law. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

6 CONSTITUTION Everyone arrested or detained shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court. All arrested or convicted persons shall be treated humanely and their dignity shall be respected. Everyone who is detained or accused of a criminal offence shall have the right to be brought before the court within the shortest term specified by law and to be acquitted or sentenced within the statutory term. A detainee may be released on legal bail to defend himself. Everyone who has been unlawfully deprived of liberty or convicted shall, in conformity with law, be entitled to compensation and a public apology. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

7 Detention may be ordered only if the same purpose cannot be achieved by an alternative measure. Detention shall be vacated as soon as the grounds for detention cease to exist and the detainee shall be released. In considering detention, and in particular its duration, the court shall have regard to the proportionality between the gravity of the offence, the sentence which may be expected to be imposed and the need to order detention. The judicial authorities conducting the criminal proceedings shall proceed especially urgently if the defendant is in detention, and take care, by virtue of the office, whether the grounds and legal conditions for detention have ceased to exist, in which case detention shall be immediately vacated. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION Criminal Procedure Act (CPA) general provisions

8 CPA – precautionary measures When circumstances exist which constitute a ground for detention, and the same purpose may be achieved by any of the precautionary measures available, the court shall issue a ruling ordering the defendant to comply with one or more of the precautionary measures: prohibition to leave a residence, prohibition to visit a certain place or territory, obligation to report periodically to a certain person or authority, prohibition to approach a certain person, prohibition to establish or maintain contacts with a certain person, prohibition to engage in a certain business activity, temporary seizure of a passport or any other document which serves to cross the state border, temporary seizure of a license to drive a motor vehicle. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

9 CPA - bail The defendant who shall be or has already been detained because of the danger of flight may remain at large or may be released provided that he personally, or another person, gives bail guaranteeing that he shall not abscond until the conclusion of criminal proceedings and the defendant personally promises that he shall not hide or change his place of residence without permission. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

10 CPA - arrest Police authorities are entitled to arrest: any person against whom they execute a ruling for compulsory appearance, any person against whom a detention order is to be executed any person who is caught in the act of committing an offence subject to public prosecution, a person against whom there are grounds for suspicion of having committed an offence subject to public prosecution, if exist any grounds for ordering detention GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

11 CPA - arrest The arrested person must be immediately informed, in a language which he understands, of the reasons for the arrest. Police authorities shall inform the family of the arrested person of the arrest within 24 hours, except when the arrested person is opposed to it. The police authorities shall take the arrested person immediately, and at the latest within 24 hours from the moment of arrest, to the investigating judge or release him. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

12 The investigating judge shall promptly inform the person arrested and brought before him: of the reasons for the arrest that he is under no obligation to testify that he is entitled to legal assistance of a defence counsel of his own choosing that the competent authority shall upon the defendant’s request inform his family or any other person he may choose of the arrest. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION CPA –rights of arrested persons

13 DETENTION-general provisions When there is reasonable suspicion that a person has committed an offence, detention may be ordered against this person: 1) if there is danger of flight 2) if there is reasonable suspicion that he shall destroy the evidence or influence witnesses 3) if there is concern that he shall repeat the offence, complete the attempted one, or perpetrate the offence he threatens to commit 4)if the offence involves: murder, robbery, rape, terrorism, kidnapping, abuse of narcotic drugs, extortion, abuse of powers in economic business activities, abuse of office or authority, association to commit a criminal offence or any other criminal offence punishable by imprisonment for a term of 12 years or more, and if this is necessary because of the particularly grave circumstances of the offence. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

14 HOUSE ARREST If there are circumstances indicating that the person may abscond, repeat the offence, complete the attempted one or perpetrate the offence threatened to be committed, the court may order house arrest if the purpose of ordering detention may be achieved by prohibiting the person from leaving the apartment or other premises he occupies. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

15 Detention shall be ordered if there is danger that the defendant, who was not accountable at the time of committing the offence, could commit a severe criminal offence due to a severe mental disturbance. Detention may be ordered against a duly summoned defendant who evades appearance at the trial. When pronouncing the judgement of imprisonment for a term of five years or more, detention against the defendant shall always be ordered. DETENTION– general provisions GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

16 DETENTION DEFENCE COUNSEL If the defendant is in detention, he must have a defence counsel as soon as detention is imposed and throughout the time he is in detention. A detainee is entitled to unrestricted and unimpeded communication with his defence counsel. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

17 The defendant, his defence counsel and the State Attorney may within two days file an appeal against a ruling on the ordering, prolongation or vacation of detention. An appeal shall not stay the execution of detention. A court panel shall render a decision on the appeal within 48 hours. DETENTION- appeal GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

18 DETENTION - duration Detention ordered by the ruling of the investigating judge may last no longer than one month from the date of the arrest. Every deprivation of liberty shall be included in the duration of detention. The court panel may, during the investigation, and where justifiable, prolong detention by two months and once more after that for a term not longer than three months. The complete duration of detention during the investigation may not exceed six months. GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

19 COMPENSATION A person who was in detention shall be entitled to compensation of damages where: criminal proceedings were not instituted - criminal proceedings were discontinued, the person was acquitted by a final judgement - the charges was rejected Entitled to compensation of damages shall also be the person:  who, due to an error or unlawful action of state authorities, was arrested or detained without legal grounds;  who was provisionally confined longer than the period prescribed by law  who was detained or kept in prison or penitentiary for a longer period of time than is prescribed by law  the right to compensation of damages shall belong to a person whose time spent in custody exceeded his sentence  to a person arrested without legal ground if detention was not ordered against him  A person who caused his arrest by illicit acts is not entitled to compensation of damages GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR ACCESSION TO THE EUROPEAN UNION

20 Thank you for your attention ! GOVERNMENT OF THE REPUBLIC OF CROATIA NEGOTIATING TEAM FOR THE ACCESSION OF THE REPUBLIC OF CROATIA TO THE EUROPEAN UNION


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