If the video-conference is being conducted on the basis of the European Investigation Order the Act on judicial cooperation in criminal matters is being applied that prescribes the following:
European investigation order can be issued for the purpose of conducting the evidentiary action of interrogation the defendant or suspect and hearing witness or expert witness via video conference connection.
The EIO can be refused if the suspect or defendant does not agree (consent can be withdrawn before the beginning of interrogation) or if the execution of such an evidentiary action in a certain case would be in contradiction with the fundamental principles of domestic law.
When the competent county attorney's office decides to execute the European investigation order it shall agree the details of the execution directly with the authority issuing the order and:
a) summon a witness or an expert stating the time and place of the examination;
b) summon the suspect or defendant for questioning in accordance with domestic law and, together with the summons, provides instructions on the rights that belong to that person according to the law of the issuing country.
When the examination is held via videoconference or other type of audiovisual transmission, the following rules apply:
a) the authority that performs the action is present during the interrogation, and is assisted by an interpreter if necessary, and is responsible for establishing the identity of the person to be questioned and respecting the basic principles of domestic law. If he believes that the basic principles of domestic law are being violated during the interrogation, he immediately takes the necessary measures to ensure the continuation of the interrogation in accordance with the stated principles;
b) measures for the protection of the person to be examined are agreed by issuing and executing authority
c) the examination is carried out directly by the competent authority of the issuing country, in accordance with its law;
d) at the request of the issuing country or the person to be examined, Croatian competent authority provides the person who is to be examined with the assistance of an interpreter, if necessary;
e) suspects or defendants are informed before interrogation of their procedural rights, including the right not to testify, according to Croatian applicable law and according to the law of the issuing country. Witnesses and experts may invoke the right not to testify that belongs to them according to domestic law or according to the law of the issuing country, and they are informed of this right before the examination.
The competent judicial authority of the Republic of Croatia draws up a record of the examination and sends it to the issuing authority.
In the event that a person is questioned in accordance with this article and refuses to testify even though he is obliged to do so or as a witness does not give a true statement, domestic law shall be applied in the same way as if the interrogation took place within the framework of domestic proceedings.
If the hearing by video-conference is conducted on the basis of the MLA request the applicable international agreements are being applied (Article 9 of CoE Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (2001)) and domestic law (Articles 192, 193 and 194 of the Criminal Procedure Act)
It is necessary to emphasize that Article 9 of the mentioned Second Additional Protocol applies on hearing of witness of expert witness when the person is in one Party’s territory and has to be heard as a witness or expert witness by the judicial authorities of another Party, where it is not desirable or possible for the person to be heard to appear in its territory in person.
Regarding the interrogation of the defendant the Article 9 prescribes the following: “Parties may at their discretion also apply the provisions of this article, where appropriate and with the agreement of their competent judicial authorities, to hearings by video conference involving the accused person or the suspect. In this case, the decision to hold the video conference, and the manner in which the video conference shall be carried out, shall be subject to agreement between the Parties concerned, in accordance with their national law and relevant international instruments. Hearings involving the accused person or the suspect shall only be carried out with his or her consent.”
In the absence of the international agreement the rule of reciprocity is being applied and applicable provisions of the Act on mutual legal assistance in criminal matters and Criminal Procedure Act (Articles 192, 193 and 194). In accordance with mentioned provisions the interrogation/hearing by video-conference can be conducted for the purpose of hearing/interrogation of witness of defendant.