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State Attorney’s Office of the Republic of Croatia Reply to the Consultative Council of European Prosecutors (CCPE) Questionnaire (2001)1 PROV2 in regard to the preparation of the Opinion No. 6(2001) of the CCPE

1. Introduction remarks

In order to understand the State Attorney’s Office of the Republic of Croatia Reply to the Consultative Council of European Prosecutors (CCPE) Questionnaire (2001)1 PROV2 in regard to the preparation of the Opinion No. 6(2001) of the CCPE (hereinafter: “Replay”), it is necessary to emphasise that there is a comprehensive criminal law reform undergoing in the Republic of Croatia, primarily determined with enacting of the new Criminal Procedure Code (Official Gazette No. 152/08, 76/09; hereinafter: “CPC”).

The CPC has complex vacatio legis. It came into force for crimes within the jurisdiction of the Office for the Suppression of Corruption and Organised Crime on 1 July 2009 and will come into force for all other criminal cases on 1 September 2011. The CPC also urged amendments of other encompassing laws, which led to enactment of the new State Attorney’s Office Act (Official Gazette No. 76/09, 153/09, 116/10, 145/10) whose vacatio legis follows the one of the CPC.

In context of the Questionnaire, forms of deprivation of liberty in Croatian legal system, as well as State Attorney’s concrete legal powers and obligations in that regard, are regulated with the CPC and Execution of Prison Sentence Act (Official Gazette No. 128/99, 55/00, 59/00, 129/00, 59/01, 67/01, 11/02, 190/03, 76/07, 27/08, 83/09, 18/11; hereinafter: “Execution of Prison Sentence Act”).

Bearing the enforcement regime of CPC and other aforementioned laws, the Reply will be based only on the new legislation.

1.1. Use of terms

The scope and application of the Recommendation Rec(2006)2 according to Part I, paragraph 10.1 – 10.4 of the Appendix to Recommendation Rec(2006)2, when related to the relevant rules of the Croatian legal system, consider three non-conviction forms of deprivation of liberty: arrest, pre-trial detention and investigative detention; and one form of following-conviction deprivation of liberty: the sentence of imprisonment.

The term arrest will be used for the short-term deprivation of liberty by the police without formal supervision of the judiciary authorities, regulated in Articles 106 – 111 of the CPC. The term pre-trial detention will be used for the short-term State Attorney’s supervised deprivation of liberty according to Articles 112 – 118 of the CPC; and the term investigative detention will be used for the non-conviction deprivation of liberty supervised by the competent court during the criminal procedure, according to Articles 122 – 144 of the CPC. The term sentence of imprisonment will reflect all final custodial sentences passed by the competent court, enforced according to the Execution of Prison Sentence Act.

Prisons, as defined in Part I, paragraph 10.2 of the Appendix to Recommendation Rec(2006)2, in Croatian legal system relate to: detention units, jails and prisons.

The term detention unit will be used for facilities in which the pre-trial detention is carried, that are organised and governed by the Ministry of Interior. Term jail considers facilities where the investigative detention is carried in compliance with the CPC or where the short term prison sentences or administrative offences prison sentences are executed, which are organised and governed by the Ministry of Justice. The term prison will be used in regard to facilities for execution of the sentence of imprisonment, which are also organised and governed by the Ministry of Justice.

For officials and civil servants within the competent State Attorney’s Office term “prosecutor” will be used, when referring to their concrete authorities and actions.

2. Reply to Question 2

First prosecutorial infliction into the issues of deprivation of liberty in course of the criminal procedure appears as a supervision task to the legality and necessity of further detention of an arrested individual. However, the arrest itself is within autonomous authority of the police.

Police authorities are obliged under the CPC to bring the arrested person to the detention unit within 12 or, in exceptional circumstances, 24 hours from the moment of the arrest, and surrender that person to the detention supervisor. The detention supervisor is a specialized police officer dealing with the detained persons. After the detention supervisor has made a record regarding the identity of the arrested person and circumstances of his or her arrest, the record must be submitted to the competent State Attorney’s Office. Within 20, or in exceptional circumstances, 32 hours starting from the moment of the arrest, prosecutor to which the detention supervisor’s record was submitted, must decide on further deprivation of liberty of the arrested individual or on his or her release. The law strictly obliges detention supervisor to release the individual brought to the detention unit if competent prosecutor does not make this determination within the proscribed time limit.

The prosecutor must examine and analyse case file against the arrested person and if conditions set in Article 112 CPC have been met, must pass the decision of pre-trial detention. Prosecutor’s decision on pre-trial detention can be subject of an appeal to the judge of investigations. Maximum period of the pre-trial detention is 48 hours, and it can be exceptionally prolonged to additional 48 hours only upon the application of the prosecutor and decision of the judge of investigations. This decision can also be subject of an appeal on which a panel of judges decides.

If there are grounds for further detention of the individual during the criminal proceedings, upon prosecutor’s order and within the proscribed time limit, the detained person shall be brought before the judge of investigations for his or her decision on the investigative detention. The investigative judge can render the decision only after an oral adversarial hearing has been held. Parties, the prosecution and the defence, are allowed without prejudice to the substantive matter of the proceedings, present its case for further detention or release. The decision on investigative detention is also subject of an appeal. The investigative detention can last until the finality of the criminal procedure, but not beyond the time limits prescribed in article 133 of the CPC. Further decisions on investigative detention are within the authority of the competent court, depending on the stage of the procedure. During this stage prosecution only has powers to recommend or request further detention or release, without any concrete decisive actions or powers and obligations.

After finality of the sentence of imprisonment or after the first instance judgment has been passed and upon defendant’s request, the convicted person is subjected to the enforcement of the sentence procedure. The procedure is governed in compliance with the Execution of Prison Sentence Act by the Ministry of Justice and under the supervision of the executing judge, also with minimum and limited authorities of the State Attorney’s Office.

3. Reply to Question 3

Authorities of the State Attorney’s Office in regard to prison matters are primarily determined trough the position which State Attorney’s Office bears in national legal system. That means protection of public interests, as well as basic rights of detained persons, through the regular system of criminal investigations and prosecutions. However, there are no concrete authorities invested in the State Attorney’s Office when it comes to the administrative prison matters. From the substantive point, the reasons are certainly related with the autonomous and independent constitutional and legal position of the State Attorney’s Office in regard to the Ministry of Interior that governs detention units, and Ministry of Justice that governs jails and prisons. Both of these institutions have their internal system of supervision and control, and both are subjected to general human rights protection mechanisms.

Concrete administrative authority of State Attorney’s Office in regard to persons deprived of liberty is authority of the prosecutor in criminal proceedings to limit, through means of supervision, or to exclude contacts of arrested person with his or her defence attorney. In order to exercise this authority special conditions, proscribed in Article 75 of the CPC, must be met and decision must be made in writing with clear expression of reasons. This decision is subjected to the appeal before the judge of investigations. However, when the arrested person becomes detainee in the pre-trial detention or investigative detention regime, this authority passes to the judge of investigations and prosecutor is only allowed to make submissions in that regard.

During the enforcement of sentence of imprisonment, State Attorney’s Office also has only limited, informative means of influence to the administrative issues. So in accordance with Execution of Prison Sentence Act relevant prison or jail authorities are allowed to seek information from State Attorney’s Office when deciding on benefits of leave for an inmate. However, information provided by the State Attorney’s Office does not have the decisive influence on the final decision.
4. Reply to Question 4

As already noted in regard to Question 3, Republic of Croatia has such a legal system where Prosecution Service has only general competences in regard to prison administration. However, every breach of human rights that would represent a crime or any other punishable offence must be reported by the prison or jail administration to the competent State Attorney’s Office, which must react ex officio on such a report. Prison or jail administration is obliged to do so according to Article 204 of the CPC which sets formal obligation on all state institutions to report any crime that they discovered or are otherwise aware of. In addition, rules on internal supervision or civil oversight of the prison or jail administration oblige bodies conducting the supervision to report any breach of human rights to the competent State Attorney’s Office.

As a mean of fast action, practice set out for conduct of detention supervisors in regard to pre-trial detention, represents a form of immediate and direct control of any possible infringement of detainees’ human rights. Namely, after an individual has been detained in his or her detention unit, the detention supervisor is obliged to file a thorough report on all circumstances of imprisonment to the competent prosecutor. The prosecutor is obliged to interview the detained person within 10 hours after the person has been brought to the detention unit. This serves not only for the investigative purposes, but also sets out a form of control on the detention.

5. Reply to Question 5

The positive and decisive role of State Attorney’s position in control of prison administration is related to the authority of instigation and conduct of criminal investigations and prosecutions in cases of human rights infringements. This is the element, certainly missing in competency of any other state or civil form of prison supervision.

6. Reply to Question 6

Concrete specially established paths and mechanisms of reporting of possible infringements of human rights in detention facilities to the State Attorney’s Office, are still missing. It can create negative conflict of competences and it can prolong reaction even in the situations when immediate measures of protection or preservation of evidence must be preformed.

7. Replay to Question 7

If State Attorney’s Office would be by any means informed on infringements of human rights in detention facilities, it would have powers and obligations to investigate such reports. The nature or regime of the detention facility has no influence on State Attorney’s powers and obligations. Depending on the results of the investigation, State Attorney’s Office would have authority to initiate a criminal procedure and trial or to instigate another appropriate, disciplinary or other, action.

8. Reply to Question 8

Concrete legally established procedure for direct communication of prisoners and prosecutors in regard to possible mistreatment in prisons does not exist. However, there is no rule that would prohibit such a situation, especially if prosecutor would exercise his or her powers of investigation.

9. Replay to Question 9

Organisation and governance of detention facilities is not in any way connected with State Attorney’s Office. That disallows State Attorney’s Office to make any proposals and recommendations to the budgetary issues. The compliance of detention facility with rules of the Council of Europe regarding prison administration is supervised by the executing judge. The law does not have any proscribed mechanism for prosecutors to participate in such actions.

10. Reply to Question 10

If informed on any form of misconduct of the prison staff, State Attorney’s Office has powers to investigate such misconduct if there is probable cause to believe that the crime or administrative offence has been committed. The disciplinary measures as well as other forms of actions against prison staff is within the authority of penitentiary administration of the Ministry of Justice. Disciplinary actions are mandatory procedures if certain conditions have been met, which means that the State Attorney’s Office can instigate such proceedings by referring relevant information or evidence to supervisory bodies of the penitentiary administration. The actions for damage are subject of civil claims before competent court which can be instigated only by the injured party.

11. Reply to Question 11

Monitoring of prisons and other detention facilities is within authority of executing judge, supervisory bodies of the Ministry of Justice or Ministry of Interior and civil system of control primarily through the institution of Ombudsman. State Attorney’s Office does not have any formal legal powers or obligations in that regard. However, State Attorney’s Office specialized sections for juvenile crime are obliged twice a year to visit and make control on development and execution of custodial sentences on convicted juveniles and wardens of such specialized penitentiary facilities are obliged to submit their reports to the State Attorney’s Office in same regard within every six months. Although this system is more focused on the juvenile personal development during the execution of sentence phase, it nevertheless includes control of penitentiary facilities. This procedure is regulated through a separate act, the Juvenile Courts Act (Official Gazette No. 111/97, 27/98, 12/02).

12. Reply to Question 12

See answer under No. 11.

13. Reply to Question 13

The reply to this question is determined by the fact of non-existing monitoring authorities of the State Attorney’s Office. In regard to the system of control of the juvenile penitentiary system, it must be noted that prosecutors are always accompanied by non-legal experts in the fields of protection of youth and juvenile delinquency while making their on-site inspections or assessing the received reports.

14. Reply to Question 14

This question has been already answered under No. 10. It can be additionally explained that all State Attorney’s actions in regard to investigations of any form of infringements of prisoners’ rights are absolutely autonomous and independent. All reached findings can be used in various subsequent proceedings including the disciplinary one. The information and materials are always referred to the supervisory bodies of the individual or institution that has been investigated.

15. Reply to Question 15

According to the Article 149 of the Execution of Prison Sentence Act, if during the execution of the sentence of imprisonment, prisoner commits a crime punishable with fine or imprisonment up to six months, that prisoner shall be punished only disciplinary. Accordingly this would consider investigation for such a crime led by the prison authorities. But for all other crimes State Attorney’s Office is allowed to conduct the investigation autonomously and independently without any restrictions.

16. Reply to Question 16

The Prosecution does not have any formal authority in regard to the subject of this question.

17. Reply to Question 17

The only instance when prosecution is entitled to decide on legality of the detention is possible prolongation of the deprivation of liberty following the arrest. It concerns the pre-trial detention decision vested in the authority of the prosecution, as already explained. This decision, according to Article 77 of the State Attorney’s Office Act, can be passed by the competent State Attorney or his or her Deputy but with previous consent of the State Attorney. The decision is appealable to the judge of investigations. In other instances when making proposals for prolongation of investigative detention or for release, general rules of prosecution service conduct apply.

18. Reply to Question 18

State Attorney’s Office is a party to the procedure before the execution judge, when the decision of execution of the sentence of imprisonment is passed. State Attorney’s Office is involved in the information gathering process in regard to benefit of leave as explained under No. 3. State Attorney’s Office can propose to the execution judge application of the parole in regard to a concrete prisoner and upon judge’s request has to provide its opinion and estimation, and can also request postpone of the execution of sentence for an individual.

19. Reply to Question 19

There are no formal special requests imposed upon prosecutors in this regard. Although, constant education, visits to penitentiary facilities and seminars on non-legal aspects of imprisonment are constantly being conducted.

20. Reply to Question 20

Within the procedures already described, State Attorney’s Office can file motions and appeals in regard to all decisions of the execution judge in procedures in which prosecution is allowed to participate. These procedures are: procedure for passing of the decision on execution of the sentence of imprisonment, procedure in regard to benefit of leave, application of the parole and postpone of the execution of sentence procedure.

21. Reply to Question 21

As already noted State Attorney’s Office is only generally and in a very limited manner engaged in monitoring of the enforcement of punishments. However, legally is obliged to react on any reports of mistreatment of prisoners, especially if the report has been filed by Ombudsman, or other specialized institutions of civil society such as non-governmental organisations dealing with these particular issues.

22. Reply to Question 22

Based on the experience of the Republic of Croatia and its system of participation of the State Attorney’s Office in deprivation of liberty and general penitentiary issues, it appears as necessary to establish models for more immediate, technically unified and administratively simple procedure for involvement of prosecution into the penitentiary issues. This involvement must be in exceptional circumstances with possibility for the prosecution to exercise all its authority when it appears necessary to investigate possible human rights infringements within prisons. This concerns strict guidelines for conduct both to prosecution and to other authorities involved in supervision of penitentiary facilities. With such approach Prosecution Service can maintain the position of not directly involved authority in the very administration of prisons but with high and important role of effective protection of basic substantive rights of individuals deprived of liberty.