Fiches Belges

1.) The service of summons is being done in accordance with the applicable international agreement. The questions that are not regulated by the international agreement are regulated by the Act on mutual legal assistance in criminal matters and Criminal Procedure Act. The Article 7, 8, 9 and 10 of the European convention on mutual legal assistance in criminal matters prescribes the following: Article 7 1 The requested Party shall execute service of writs and records of judicial verdicts which are transmitted to it for this purpose by the requesting Party. Service may be executed by simple transmission of the writ or record to the person to be served. If the requesting Party expressly so requests, service shall be effected by the requested Party in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law. 2 Proof of service shall be given by means of a receipt dated and signed by the person served or by means of a declaration made by the requested Party that service has been executed and stating the form and date of such service. One or other of these documents shall be sent immediately to the requesting Party. The requested Party shall, if the requesting Party so requests, state whether service has been executed in accordance with the law of the requested Party. If service cannot be executed, the reasons shall be communicated immediately by the requested Party to the requesting Party. 3 Any Contracting Party may, by a declaration addressed to the Secretary General of the Council of Europe, when signing this Convention or depositing its instrument of ratification or accession, request that service of a summons on an accused person who is in its territory be transmitted to its authorities by a certain time before the date set for appearance. This time shall be specified in the aforesaid declaration and shall not exceed 50 days*. This time shall be taken into account when the date of appearance is being fixed and when the summons is being transmitted. * The Republic of Croatia gave a declaration on above mentioned Article 7 of the Convention: “The Republic of Croatia declares that service of a summons on a person residing in the Croatian territory must be transmitted to the competent Croatian judicial authorities no less than 30 days before the date set for appearance.” Article 8 A witness or expert who has failed to answer a summons to appear, service of which has been requested, shall not, even if the summons contains a notice of penalty, be subjected to any punishment or measure of restraint, unless subsequently he voluntarily enters the territory of the requesting Party and is there again duly summoned. Article 9 The allowances, including subsistence, to be paid and the travelling expenses to be refunded to a witness or expert by the requesting Party shall be calculated as from his place of residence and shall be at rates at least equal to those provided for in the scales and rules in force in the country where the hearing is intended to take place. Article 10 1 If the requesting Party considers the personal appearance of a witness or expert before its judicial authorities especially necessary, it shall so mention in its request for service of the summons and the requested Party shall invite the witness or expert to appear. The requested Party shall inform the requesting Party of the reply of the witness or expert. 2 In the case provided for under paragraph 1 of this article the request or the summons shall indicate the approximate allowances payable and the travelling and subsistence expenses refundable. 3 If a specific request is made, the requested Party may grant the witness or expert an advance. The amount of the advance shall be endorsed on the summons and shall be refunded by the requesting Party 2.) In the absence of the international agreement the domestic law shall be applied: Act on mutual legal assistance in criminal matters and Criminal Procedure Act. Mentioned acts shall be applied in the cases where the international agreement is being applied but when the service is done in accordance with the law of Requested State or when there is lacuna. If the service is executed in the accordance with the Croatian domestic law the following rules will be applied: The summons shall be served directly to the person to whom it is addressed, and the person shall be bound to receive it. If that person cannot be reached at the address of domicile or residence, the procedural documents shall be served on one of the adult members of the household, who are bound to receive the letter. If they are not found in the apartment, the procedural documents shall be served on the janitor or a neighbour, if they are willing to receive it. It shall be deemed by such acts that the documents are served. If a procedural document is served on a person at his place of work, and the person cannot be reached, delivery can be executed to the person authorized to receive mail who is bound to receive it, or to the co-employee, if he is willing to receive it. It shall be deemed by such acts that the letter is served. If it is determined that the person to whom the decision and letter is to be served is absent and due to his/her absence documents cannot be served t on him/her in due time, the documents shall be return to the sender with a notice stating the address at which the letter could be served on the recipient. If the defendant issued a power of attorney to his defence counsel authorizing him to receive documents, summons, incriminating acts and rulings from whose service starts the appeal deadline, the service shall be considered to be duly performed as of the day of the service of the letter to the attorney's office of the defender or as of the day of sending the letter to that office by means of telecommunications. In accordance with the Article 29 of the Witness Protection Act when the person is summoned as a witness in criminal proceedings for criminal offenses committed before joining the witness protection program, the summons will be served to him/her by the Protection Unit of the Ministry of Interior. Summoning as a witness a child who has not reached the age of sixteen is done through his parents or legal representative, unless this is not possible due to the need to act urgently or due to other justified circumstances. If the summons has to be delivered to military personnel, members of the police and judicial police, it shall be executed through their command or the head of the organizational unit. If the summons has to be delivered to persons deprived of their liberty, the delivery shall be executed by the court or by the penitentiary institution. If the summons has to be delivered to persons who in the Republic of Croatia have the right to immunity under international law, the delivery shall be executed through the ministry responsible for foreign affairs, unless international agreements stipulate otherwise

The service of summons is being done in accordance with the applicable international agreement (for example title III of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, Articles 15 and 16 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg, 08 November 2001). The questions that are not regulated by the international agreement are regulated by the Act on mutual legal assistance in criminal matters and Criminal Procedure Act. The rule of reciprocity is being applied in the absence of the international agreement. In that case domestic law is being applied (Act on mutual legal assistance in criminal matters and Criminal Procedure Act).

Parties of the Second additional Protocol to the European Convention on Mutual Assistance in Criminal Matters of 08 November 2001 : application of the article 16 that prescribes direct transmission by post. If the Requesting State does not apply the Article 16 of the mentioned protocol or in the absence of the international agreement, the rule of reciprocity is being applied: in accordance with the domestic law the competent authority for receiving and transmitting the mutual legal assistance request is Ministry of Justice and Public Administration.

In accordance with the declaration contained in the instrument of ratification of the European convention on mutual legal assistance in criminal matters (Article 16) : „ The Republic of Croatia declares that letters rogatory for mutual assistance and annexed documents shall be accompanied by a translation into the Croatian language or, if not possible, into the English language.“ If the summons is transmitted directly by the post Article 15 paragraphs 3 and 4 of the Second Additional Protocol to the European convention on mutual legal assistance in criminal matters shall be applied. Mentioned provisions proscribe the following: “If the authority that issued the papers knows or has reasons to believe that the addressee understands only some other language, the papers, or at least the most important passages thereof, shall be accompanied by a translation into that other language. The procedural documents and judicial decisions shall, for the benefit of the authorities of the requested Party, be accompanied by a short summary of their contents translated into the language, or one of the languages, of that Party.” Other bilateral /multilateral international agreements: applicable provisions In the absence of the applicable international agreement: 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.”

The deadlines prescribe by the applicable international agreements, bilateral or multilateral. For example, in accordance with the declaration contained in the instrument of ratification of the European convention on mutual legal assistance in criminal matters signed in 1959 (Article 7): “The Republic of Croatia declares that service of a summons on a person residing in the Croatian territory must be transmitted to the competent Croatian judicial authorities no less than 30 days before the date set for appearance.” The rule of reciprocity is being applied in the absence of the international agreement. In that case domestic law is being applied. This law does not prescribe deadline. However, if the requested authority asks for a deadline to be observed such a deadline will be respected.

Most of the international agreements prescribe the possibilities of service of documents in accordance with the law of requesting State. For example Article 7 of the European Convention on mutual legal assistance in criminal matters prescribes: Service may be effected by simple transmission of the writ or record to the person to be served. If the requesting Party expressly so requests, service shall be effected by the requested Party in the manner provided for the service of analogous documents under its own law or in a special manner consistent with such law The requested Party shall, if the requesting Party so requests, state whether service has been effected in accordance with the law of the requested Party. If service cannot be effected, the reasons shall be communicated immediately by the requested Party to the requesting Party. 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.