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DigiRights Newsletter No. 4: Update from Zagreb

Expanding the use of modern information and communication technologies in Croatian criminal proceedings: Establishment of an e-communication system

The latest, Ninth amendment to the Croatian Criminal Procedure Act (CPA), voted in the Croatian Parliament on July 1 and entered into force on July 19, 2022, brought changes in the form of further expansion of the use of modern information and communication technologies in three segments of Croatian criminal procedure and included: 1) the establishment of an e-communication system, 2) the expansion of the possibility of using audio-video devices when conducting hearings remotely, and 3) the expansion of the existing possibilities of audio recording of the hearing and the future mandatory audio recording of the hearing (from October 1, 2024). These are reform interventions that are foreseen within the framework of the National Recovery and Resilience Plan 2021–2026. Government of the Republic of Croatia, which within the subcomponent “C2.5. A modern judiciary ready for future challenges”, should contribute to shortening the length of court proceedings, i.e. the efficiency of criminal proceedings.

The establishment of the e-communication system, as one of the key reform measures of the Ninth Amendment to the Criminal Procedure Act, rests on the idea of using modern communication technology in order to improve the communication of various participants in the criminal procedure, following the example of the regulation of e-communication in civil proceedings. In doing so, however, it was necessary to take into account the significant peculiarities of criminal proceedings, compared to civil proceedings. Namely, in contrast to civil proceedings, criminal proceedings include, in addition to the parties, a number of other subjects. Criminal proceedings are not conducted only before the court, but also include the preliminary proceedings which, until the indictment is filed, are conducted by the state attorney. At the same time, the state attorney is “the body that conducts the proceedings in the previous proceedings” (Art. 202, Para. 35 CPA) and in this sense, until the indictment is filed, he/she is not a party to the proceedings stricto sensu. Therefore, in the preparation of the legal text, it was first necessary to answer the question of who should be included in the e-communication system, and then the question of what should be included in that system.

As for the subjects included in the e-communication system, as mandatory users of that system, the Criminal Procedure Act, in addition to the courts, specified state attorneys, lawyers, state bodies, court experts, court interpreters and legal entities (Art. 78.a Para. 2 CPA). In other words, mandatory users of the e-communication system are all those for whom the legislator assumed that, by the nature of things, they must be trained and materially equipped for this. On the other hand, the defendant and other participants (primarily the victim, injured party—natural person, private prosecutor, subsidiary prosecutor, but also the representative of the defendant—legal person, who is also a natural person) cannot be expected to always be materially qualified and educated to use the system of e-communications. Therefore, they are free to decide whether they want to communicate with the procedural authorities via the e-communication system.

As for the subject matter of the e-communication system, it includes submissions, letters and decisions (in delivery), as well as evidence, but that evidence that already exists in electronic form and are submitted as attachments to submissions. This means that all the evidence in the case file does not have to be mandatorily transformed into electronic form, that is, scanned. Only if certain evidence already exists in electronic form, should it be attached to the submission in that form. Therefore, the establishment of an e-communication system does not imply the establishment of an electronic case file, in the sense that the entire case file exists in electronic form as well as in physical form, but it certainly represents an important step in that direction.

DigiRights Team, University of Zagreb Faculty of Law

January 2024.

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