1. Fundamental Procedural Rights
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Right to Remain Silent and Privilege Against Self-Incrimination (Article 147(1)(e) of the Criminal Procedure Code):
This right must be expressly explained before any police interview or judicial questioning. Except for questions concerning your identity, you have the right to remain silent. As a general rule, the exercise of this right cannot be interpreted against you. Other than providing your identity, you are under no obligation to answer any questions. - Right to Legal Assistance and Mandatory Defence Counsel (Articles 149–150 of the Criminal Procedure Code) You have the right to consult with a lawyer and to have your lawyer present during questioning. If you are suspected of an offence carrying a minimum statutory sentence of more than five years' imprisonment, a defence lawyer must be appointed if you do not already have legal representation. You also have the right to communicate privately with your lawyer in circumstances where no one else is present or able to overhear the conversation.
- Notification of Arrest or Detention (Article 95 of the Criminal Procedure Code) A relative or another person designated by you must be notified of your arrest or detention without delay. Where the detainee is a foreign national, the relevant consular authorities must also be informed, unless the individual objects to such notification.
- Access to the Case File and Copies of Documents (Article 153 of the Criminal Procedure Code) During the investigation stage, defence counsel has the right to examine the investigation file and obtain copies of documents. Restrictions on access may be imposed only by judicial order and only in relation to specific categories of offences expressly provided by law.
- Strategy Before giving any statement, request that the following be recorded in the official minutes: "I do not wish to make any statement before reviewing the investigation file." If access to the file has been restricted, request a copy of the restriction order together with details of its scope.
Arrest and Police Custody: Time Limits and the First 48 Hours
- Individual Offences Police custody may last for up to 24 hours from the time of arrest. Transportation time may be added but cannot exceed an additional 12 hours.
- Collective Offences In cases involving collective offences, the public prosecutor may extend police custody by one day at a time, up to a maximum of three extensions. Accordingly, the total period of police custody may not exceed four days.
- Appearance Before a Judge The suspect must be brought before a judge within 48 hours at the latest, or within four days in cases involving collective offences.
3) Search and Seizure (Physical Evidence)
Judicial Searches (Articles 116–119 of the Criminal Procedure Code)
Searches of homes, workplaces, or other enclosed premises generally require a judicial warrant. In urgent circumstances, they may be authorised by a written order of the public prosecutor or, where the prosecutor cannot be reached, by a written order of the senior police officer, but only in exceptional cases. Persons required by law must be present during the search, and two witnesses must attend the search in accordance with Article 119(4).
Seizure (Article 127 of the Criminal Procedure Code)
Where property is seized without a prior judicial order, the measure must be submitted to a judge for approval within 24 hours. If the judge does not issue a decision within the following 48 hours, the seizure automatically lapses.
Strategy
Carefully review all search and seizure documents to verify the date, time, legal grounds, location, and signatures. If any information is missing or the measure was carried out solely on the basis of oral instructions, ensure that an objection is recorded and challenge the legality of the measure.
4) Digital Evidence (Article 134 of the Criminal Procedure Code)
Article 134 governs the search, copying, and seizure of computer systems and digital data. In practice, creating a forensic image and generating cryptographic hash values are recognised as essential safeguards for preserving the integrity of digital evidence. Orders issued by the public prosecutor must be submitted to a judge for approval within 24 hours. If approval is not obtained, any copies or decrypted data must be destroyed.
Request:
That a forensic image be created and hash values generated to preserve the integrity of the evidence and avoid direct examination of the original storage media.
Object if:
No forensic image or hash values were created;
On-site forensic examination was not possible; or
Judicial approval was obtained outside the statutory time limits.
Such circumstances may render the digital evidence unlawful.
5) Managing Police Interviews and Judicial Questioning
- Statements obtained without informing the suspect of their procedural rights are unlawful evidence. Likewise, statements obtained through prohibited methods—including torture, deception, exhaustion, threats, or promises of benefit—cannot be relied upon as evidence (Article 148 of the Criminal Procedure Code).
- Partial silence is permitted. Other than answering questions concerning your identity, you may refuse to answer some or all substantive questions.
- Suggested Statements for the Official Record
- "My rights under Article 147 of the Criminal Procedure Code have / have not been explained to me. I am exercising my right to remain silent / my right to partial silence."
- "I do not wish to give any statement in the absence of my lawyer."
- "I request access to the questions and documents forming part of the investigation file, subject to any lawful restrictions on access."
Access to the Investigation File and Confidentiality Orders (Article 153 of the Criminal Procedure Code)
Defence counsel is entitled to examine the investigation file and obtain copies of documents. Restrictions may be imposed only by judicial order, only for specified categories of offences, and only where disclosure would jeopardise the purpose of the investigation. Any restriction must remain proportionate both in scope and in relation to the categories of evidence affected.
Strategy
Request a copy of the confidentiality order together with its reasoning. Where access has been disproportionately restricted—particularly in relation to documentary, audio, or video evidence beyond confidential witness material—consider challenging the restriction.
7) Interception of Communications, Technical Surveillance, and Undercover Investigators
- Interception of Communications (Article 135 of the Criminal Procedure Code) Interception measures require both strong suspicion supported by concrete evidence and a determination that the evidence cannot be obtained by less intrusive means. They are available only for specified catalogue offences. Communications with persons entitled to refuse to testify may not be intercepted or recorded.
- Undercover Investigators (Article 139 of the Criminal Procedure Code) The appointment of undercover investigators is permitted only for the limited categories of offences specified by law. Judicial authorisation is required, and the measure must be implemented in accordance with the applicable legal procedures.
- Technical Surveillance (Article 140 of the Criminal Procedure Code) Technical surveillance measures may not be carried out inside private residences (Article 140(5)). Procedural irregularities frequently constitute grounds for reversal by the Court of Cassation.
- Strategy Challenge the legality of surveillance measures where the authorising decision fails to specify: the offence under investigation; the duration of the measure; the telephone line or device concerned; the legal reasoning; or why the evidence could not reasonably have been obtained through less intrusive means.
8) Time Limits and Available Remedies
- Extension of Police Custody Orders extending police custody and related detention measures may be challenged before the competent judicial authorities. Objections generally follow the procedures set out in Article 268 of the Criminal Procedure Code and are normally subject to a two-week time limit.
- Search and Seizure Orders Any procedural irregularities should be challenged without delay. Where the statutory approval periods of 24 or 48 hours have not been respected, it may be argued that the seizure has become legally ineffective.
- Confidentiality Orders If the scope of a confidentiality order is considered excessive or disproportionate, you may request that it be narrowed or modified accordingly.
9) Common Procedural Violations
Searches of homes or workplaces conducted solely on the basis of oral instructions without a written judicial warrant or written prosecutorial order;
Digital searches or forensic examinations carried out without creating forensic images or generating hash values;
Statements obtained without informing the suspect of their rights under Article 147 or through prohibited methods contrary to Article 148 of the Criminal Procedure Code;
Interception orders issued under Article 135 without adequate factual reasoning or without properly identifying the relevant telephone line or electronic device.
