2. Evidentiary Actions
a) Interrogation of the Defendant
Preconditions for the Interrogation of the Defendant
When a defendant is being interrogated for the first time, he will be asked to state his first name and surname, his personal ID number, or the number of a personal document, nickname, the first names and surnames of his parents, his mother’s maiden name, his place of birth, his residence, date of birth, citizenship, occupation, family circumstances, literacy status, professional qualifications, his and his family's financial standing, whether he was ever convicted of any offence, when and which offence, whether he served any sanction pronounced against him, and whether proceedings are being conducted against him in connection with another criminal offence.
The defendant will be advised of the rights referred to in Article 68 paragraph 1 of this Code and enabled to exercise them, and also be cautioned about his duties (Article 70) and the consequences of not obeying them.
The defendant will then be invited to state expressly whether he will retain a defence counsel of his own choosing, and cautioned that if he does not choose a defence counsel in the case of mandatory defence a court appointed defence counsel will be appointed, in accordance with the provisions of this Code.
The defendant may be interrogated without a defence counsel being present if the defendant has expressly waived that right, if a duly summoned defence counsel is not present although he has been informed about the interrogation (Article 300 paragraph 1.) and there exists no possibility for the defendant to hire another defence counsel, or if the defendant has failed to secure the presence of a defence counsel even after the expiry of a period of 24 hours after first being advised about that right (Article 68 paragraph 1 item 4)), except in the case of mandatory defence.
If the defendant has not been duly advised or enabled to use the rights referred to in paragraph 2 of this Article, or the statement of the defendant referred to in paragraph 3 of this Article about the presence of a defence counsel has not been entered into record, or where it was acted contrary to paragraph 4 of this Article, or where a statement of the defendant has been obtained contrary to Article 9 of this Code, the court’s decision may not be based on the defendant’s statement.
Rules of Interrogating Defendants
A defendant is interrogated orally, with decency and full respect for his personality. A defendant is entitled to use his notes during interrogation.
During the interrogation it will be made possible to the defendant to state, without being interrupted, his position in relation to all circumstances against him and facts which support his defence.
After a defendant has completed his statement, and it is necessary to fill in gaps in the statement or clarify it, he will be asked questions which must be clear, unambiguous and understandable, which may not contain deception or be based on an assumption that he has admitted to something which he has not admitted, and the questions may not be leading.
Where the defendant’s subsequent statements differ from those given previously, and especially if the defendant recants his confession, the authority conducting proceedings may invite him to explain why he had made differing statements or why he had recanted his confession.
Interrogation through an Interpreter or Translator
If a defendant is deaf, he will be questioned in writing, if the defendant is mute, he will be invited to reply in writing and if he is blind, the contents of written evidence will be presented to him orally. If the interrogation cannot be conducted in this manner, a person capable of communicating with the defendant will be invited to serve as an interpreter.
If the defendant does not understand the language of the proceedings, he will be asked questions through a translator.
If the interpreter or translator was has not been sworn in previously, he will swear that he will faithfully communicate the questions asked of the defendant and the statements he makes.
The provisions of this Code relating to expert witnesses apply accordingly to interpreters and translators.
Confession of the Defendant
When a defendant confesses to having committed a criminal offence, the authority conducting proceedings is required to continue collecting evidence about the perpetrator and the criminal offence only where there exists grounded suspicion about the veracity of the confession or if the confession is incomplete, contradictory or unclear and contrary to other evidence.
Confronting the Defendant
A defendant may be confronted with a witness or other defendant, if their statements do not match in respect of facts which are being proved.
The persons confronting each other are placed facing each other and are asked by the authority conducting proceedings to repeat to each other the statements about every disputed circumstance and to discuss the veracity of their statements. The course of the confrontation and statements made by the confronted persons will be entered into record by the authority conducting the proceedings.
Recognition of Persons or Objects
If is is necessary to establish whether a defendant recognises a certain person or object, or the characteristics of it as described by him, he will be shown that person or object together with other persons not known to him or objects whose basic characteristics are similar to those he has described.
The defendant will then be asked to state whether he can recognise that person or object with full certainty or with a degree of certainty, and, if so, to point to the person or object thus recognised.
If the person or object referred to in paragraph 1 of this Article is not accessible, the defendant may be shown a photograph of the person or object together with other photographs of persons unknown to him or objects whose basic characteristics are similar to those he has described.
In accordance with the provisions from paragraphs 1 to 3 of this Article, recognition of a person may also be performed on the basis of his voice.
2. Evidentiary Actions
b) Questioning Witnesses
a) Basic provisions
A witness is a person for whom it is probable that he will provide information about a criminal offence, the perpetrator, or other facts being determined in the proceedings.
Capacity and Duty to Provide Testimony
Every person capable of presenting his knowledge or impressions in connection with the subject-matter of the testimony has a capacity to give evidence.
The injured party, subsidiary prosecutor or private prosecutor may be questioned as witnesses.
All persons being summoned as witnesses are required to respond to the summons as well as to testify, unless specified otherwise by this Code (Articles 93 and 94).
Exclusion from the Duty of Testifying
The duty to testify does not apply to :
1) a person who would by his statement violate the duty to preserve a state, military or official secret until the competent authority or person from public authorities revokes the secrecy of information or releases him from that duty ;
2) a person who would by his statements violate the duty of maintaining confidentiality of information acquired in a professional capacity (a religious confessor, lawyer, physician, midwife, etc.), unless released from such obligation by a special regulation or a statement of the person for whose benefit the confidentiality was established ;
3) a person who is the defence counsel, in connection with what he was told by the defendant ;
By exception from paragraph 1 of this Article, the court may decide, at the proposal of the defendant of his defence attorney, to examine a person who has been excluded from the duty to testify.
Exemption from the Duty of Testifying
The following are released from the duty of giving evidence :
1) the defendant’s spouse or common-law spouse or other person with whom the defendant lives in a common law marriage or other permanent association ;
2) the defendant’s blood relatives in the direct line, collateral relatives to the third degree, and in-laws to the second degree ;
3) adopter and adoptees of the defendant.
Juveniles who are in view of their age and mental development not capable of understanding the significance of the right not to have to testify may not be questioned as witnesses, except if the defendant so demands.
The authority conducting proceedings is required to caution the person referred to in paragraph 1 of this Article that he does not have to testify before questioning or as soon as it learns about his relationship with the defendant,. The caution and reply are entered into record.
A person with valid grounds to decline to testify in connection with one of the defendants is relieved of the duty to testify in connection with all the other defendants, if by the virtue of his testimony it cannot be limited only to the other defendants.
Preconditions for Questioning Witnesses
Witnesses will be warned that they are required to tell the truth and that they may not omit anything, and then cautioned that perjury constitutes a criminal offence.
Witnesses will also be cautioned that they are not required to answer certain questions if its is probable that they would thereby expose themselves or persons close to them referred to in Article 94 paragraph 1 of this Code to serious disgrace, considerable pecuniary damage or criminal prosecution. The caution will be entered into record.
Witnesses will then be asked to provide their first name and surname, personal ID number, name of father or mother, temporary residence, permanent residence, , place and year of birth and information about their relationships with the defendant and injured party. Witnesses will be cautioned that they are required to notify the authority conducting proceedings of every change of temporary or permanent residence.
If a person has been examined as a witness in contravention of Article 93 paragraph 1 of this Code, or a person exempt from the duty to give evidence (Article 94) has not been duly cautioned or has not expressly waived that right or if the caution and waiver were not entered into record, or if a witness’s statement was obtained in contravention of Article 9 of this Code, the court’s decision may not be based on the testimony of that witness.
Witnesses shall be required to swear in before giving evidence.
Witnesses may swear in before the trial only where there is a danger that poor health or another reason could prevent them from attending the trial. The reasons for swearing in on that date will be entered in the record.
The text of the oath is: “I swear by my honour that I will tell only the truth about everything I am asked, and that I will omit nothing”.
Witnesses take the oath orally, by reading its text, or by giving an affirmative reply after being read out the text by the authority conducting proceedings. Mute witnesses able to read and write sign the text of the oath, and deaf, blind or mute witnesses who are illiterate are sworn in with the help of an interpreter.
Refusals of witnesses to take an oath and their reasons will be entered in the record.
Witnesses who do not Take Oaths
The following witness does not have to take an oath :
1) a person who has not come of age at the time of the questioning ;
2) a person unable to comprehend the significance of the oath due to the state of his mental health.
Rules on Questioning Witnesses
A witness is questioned individually and without the presence of other witnesses . A witness is required to give testimony orally.
Following the general questions, witnesses are asked to state everything known to them about the case.
After a witness has completed his statement, and it is necessary to fill in gaps in the statement, amend or clarify it, he will be asked questions which must be clear, unambiguous and understandable, which may not be deceiving or be based on an assumption that he has admitted to something which he has not admitted, and the questions may not be leading, except during cross-examination at the trial.
Witnesses are always asked for the origin of their knowledge.
Injured parties questioned as witnesses will be asked whether they wish to realise their restitution claim in the criminal proceedings.
If the questioning of a witness is being conducted through an interpreter or a translator, or if a witness is deaf, blind or mute, the questioning is conducted in the manner specified in Article 87 of this Code.
A witness may be confronted with another witness or the defendant, if their statements are not in agreement in respect of the facts being proved.
The provisions of Article 89 paragraph 2 of this Code are applied to the confrontation of witnesses.
Recognition of Persons or Objects
If it is necessary to establish whether a witness has recognised a certain person or a certain object, or their characteristics as he had described them, the recognition is performed in accordance with Article 90 of this Code.
The recognition of persons in the pre-investigation proceedings and during the investigation is conducted so as to prevent the person being recognised from seeing the witness, and from preventing the witness from seeing that person before the formal recognition procedure.
During the pre-investigation proceedings and the investigation, the recognition of persons is performed in the presence of the public prosecutor.
If a duly summoned witness fails to appear and fails to justify his absence, or without authorisation or a justifiable reason leaves the location where he was to be questioned, the authority conducting proceedings may order that he be brought in by force, and the court may fine him up to 100,000 dinars.
If a witness appears, and after being cautioned about the consequences refuses to testify without legal justification, he may be fined up to 150,000 dinars by the court, and if he continues to refuse to testify, may be punished again with the same sanction.
An appeal against a ruling pronouncing a fine is decided by the panel. An appeal does not stay execution of the ruling.
b) Protection of Witnesses
The authority conducting proceedings is required to protect an injured party or witness from an insult, threat and any other attack.
The public prosecutor or the court will caution a participant in proceedings or other person who, before the authority conducting proceedings insults an injured party or a witness, threatens him or endangers his safety, and the court may also fine him up to 150,000 dinars.
An appeal against a ruling pronouncing a fine is decided on by the panel. The appeal does not stay execution of the ruling.
Upon receiving notification from the police or the court or upon learning about the existence of violence or a serious threat directed at an injured party or a witness, the public prosecutor will undertake criminal prosecution or notify the competent public prosecutor thereof.
A public prosecutor or the court may request that the police undertake measures to protect an injured party or a witness in accordance with the law.
Especially Vulnerable Witness
The authority conducting proceedings may ex officio, at the request of parties or the witness himself, designate as an especially vulnerable witness a witness who is especially vulnerable in view of his age, experience, lifestyle, gender, state of health, nature, the manner or the consequences of the criminal offence committed, or other circumstances.
The ruling determining a status of an especially vulnerable witness is issued by the public prosecutor, president of the panel or individual judge.
If it deems it necessary for the purpose of protecting the interests of an especially vulnerable witness, the authority conducting proceedings referred to in paragraph 2 of this Article will issue a ruling appointing a proxy for the witness, and the public prosecutor or the president of the court will appoint a proxy according to the order on the roster of attorneys submitted to the court by the bar association competent for designating court appointed defence counsels (Article 76).
No special appeal is allowed against a ruling approving or denying a request.
Rules on Examining an Especially Vulnerable Witness
An especially vulnerable witness may be examined only through the authority conducting the proceedings, who will treat the witness with particular care, endeavouring to avoid possible detrimental consequences of the criminal proceedings to the personality, physical and mental state of the witness. Examination may be conducted with the assistance of a psychologist, social worker or other professional, which will be decided by the authority conducting proceedings.
If the authority conducting proceedings decides to examine an especially vulnerable witness using technical devices for transmitting images and sound, the examination is conducted without the presence of the parties and other participants in the proceedings in the room where the witness is located.
An especially vulnerable witness may also be examined in his dwelling or other premises or in an authorised institution professionally qualified for examining especially vulnerable persons. In such case the authority conducting proceedings may order application of the measures referred to in paragraph 2 of this Article.
An especially vulnerable witness may not be confronted with the defendant, unless the defendant himself requests this and the authority conducting proceedings grants the request, taking into account the level of the witness’s vulnerability and rights of defence.
No special appeal is allowed against a ruling referred to in paragraphs 1 to 3 of this Article.
If there exist circumstances which indicate that by giving testimony or answering certain questions a witness would expose himself or persons close to him to a danger to life, health, freedom or property of substantial size, the court may authorise one or more measures of special protection by issuing a ruling determining a status of protected witness.
The measures of special protection include questioning the protected witness under conditions and in a manner ensuring that his identity is not revealed to the general public, and exceptionally also to the defendant and his defence counsel, in accordance with this Code.
Measures of Special Protection
The measures of special protection ensuring that the identity of a protected witness is not revealed to the public are excluding the public from the trial and prohibition of publication of data about the identity of the witness.
The measure of special protection whereby data about the identity of a protected witness is withheld from the defendant and his defence counsel may be ordered by the court exceptionally if after taking statements from witnesses and the public prosecutor it determines that the life, health or freedom of the witness or a person close to him is threatened to such an extent that it justifies restricting the right to defence and that the witness is credible.
The identity of the protected witness withheld in accordance with paragraph 2 of this Article will be revealed by the court to the defendant and his defence counsel no later than 15 days before the commencement of the trial.
In deciding on the measures of special protection referred to in paragraphs 1 and 2 of this Article, the court will endeavour to order a harsher measure only if the purpose cannot be achieved by the application of a more lenient measure.
Initiating Proceedings for Determining Protected Witness Status
The status of a protected witness may be granted by the court ex officio, or at the request of the public prosecutor or the witness himself.
The request referred to in paragraph 1 of this Article contains: the witness’s personal data, data on the criminal offence in connection with which the witness is being examined, facts and evidence indicating that in the case of giving testimony there exists a danger to the life, body, health or property of substantial size of the witness or persons close to him, and a description of the circumstances to which the provision of evidence relates.
The request is submitted in a sealed cover marked “witness protection – strictly confidential” and is submitted during the investigation to the judge for preliminary proceedings, and after the indictment is confirmed, to the president of the panel.
If during his examination the witness withholds the provision of the data referred to in Article 95 paragraph 3 of this Code or his replies to certain questions, or refuses to give testimony, with the explanation that the circumstances referred to in Article 105 paragraph 1 of this Code exist, the court will invite the witness to act within three days in accordance with the provisions of paragraphs 2 and 3 of this Article.
If it deems the withholding of data, replies, or testimony clearly unfounded, or the witness fails to act in accordance with the provisions of paragraphs 2 and 3 of this Article within the prescribed time limit, the court will apply the provisions of Article 101 paragraph 2 of this Code.
Deciding on Determining Protected Witness Status
During the investigation the judge for preliminary proceedings decides on determining protected witness status by issuing a ruling, and after the indictment is confirmed, the panel. The public is excluded from the trial if the decision is taken at that time (Article 363), without the exceptions prescribed by Article 364 paragraph 2 of this Code.
The ruling determining protected witness status contains a pseudonym of the protected witness, the duration of the measure and the manner in which it will be implemented: alteration or erasure from the record of data on the identity of the witness, concealment of the witness’s appearance, examination from a separate room with distortion of the witness’s voice, examination using technical devices for transferring and altering sound and picture.
The parties and the witness may appeal against the ruling referred to in paragraph 1 of this Article.
An appeal against a ruling of the judge for preliminary proceedings is decided on by the panel (Article 21 paragraph 4), and in other cases the panel (Article 21 paragraph 4) of the immediately higher court. A decision on the appeal is rendered within three days of the date of receiving documentation.
Examining a Protected Witness
When the ruling determining protected witness status become final, the court will, by a special order that represents a secret, confidentially notify the parties, defence counsel and the witness about the date, hour and location of the questioning of the witness.
Before the commencement of the questioning the protected witness is notified that his identity will not be revealed to anyone but the court, the parties and the defence counsel, or only to the court and the public prosecutor, under the conditions referred to in Article 106 paragraphs 2 and 3 of this Code, and is informed about the manner in which he will be examined.
The court will caution all those present that they are required to keep confidential data on the protected witness and persons close to him and on other circumstances which may lead to the
exposure of their identities, and that divulging a secret represents a criminal offence. The caution and the names of those present will be entered in the record.
The court will deny any question that requires an answer that might reveal the identity of the protected witness.
If the examination of the protected witness is being conducted using technical means for altering sound and image, they are handled by a professional.
The protected witness signs the minutes with the pseudonym.
Protecting Data on a Protected Witness
Data on the identities of the protected witness and persons close to him and on other circumstances which may lead to the exposure of their identities will be sealed under a separate cover marked “protected witness – strictly confidential”, sealed and submitted for safekeeping to the judge for preliminary proceedings.
The sealed cover may be opened only by a court deciding on a legal remedy against a judgment. The reason, date and hour of its opening and the names of the members of the panel informed about the data referred to in paragraph 1 of this Article will be marked on the cover. The cover will thereafter be resealed, the date and time of resealing being indicated on the cover, and returned to the judge for preliminary proceedings.
The data referred to in paragraph 1 of this Article represent secret data. Besides public officials, all other persons who learn about them in any capacity whatsoever are required to maintain their confidentiality.
Duty of Notification about Special Protection Measures
The police and the public prosecutor are required during the collection of information from citizens to inform them about the special protection measures referred to in Article 106 of this Code.
Analogous Application of Provisions on a Protected Witness
The provisions of Articles 105 to 111 of this Code apply accordingly to the protection of an undercover investigator, expert witness, professional consultant and professional.
2. Evidentiary Actions
Examination of a Person
An examination of a defendant will be performed even without his consent if it is necessary for establishing facts of importance for the proceedings.
Examinations of other persons may be performed without their consent only if it has to be established whether their bodies bear a certain trace or consequence of a criminal offence.
If the conditions referred to in Article 141 of this Code are fulfilled, samples may be taken for the purpose of analysis from the persons referred to in paragraphs 1 and 2 of this Article (Articles 141 and 142).
Examination of Objects
An examination is performed on movable and immovable objects of the defendant or other persons. An examination of a cadaver is performed if the conditions referred to in Article 129 paragraph 1 of this Code are fulfilled.
Everyone is required to provide for the authority conducting proceedings access to objects and to provide necessary information. Under the conditions referred to in Article 147 of this Code, movable assets may be seized.
If performance of an examination requires entering buildings, dwellings and other premises, the provisions of Article 155 and Article 158 paragraph 1 item 1) of this Code are applied.
Examination of a Location
The examination of a location is performed at a crime scene or other location where the objects or traces of a criminal offence are located.
The authority conducting proceedings may take into custody a person found at the location of the examination under the conditions stipulated in Article 290 of this Code.
2. Evidentiary Actions
Obtaining a Record
A record is obtained ex officio or on a motion of the parties by the authority conducting proceedings, or is submitted by the parties, as a rule in its original form.
If a person or state institution refuses to voluntarily surrender a record at the request of the authority of proceedings, actions will be taken in accordance with the provisions of Article 147 of this Code. If the original of a record has been destroyed, has disappeared or cannot be acquired, a copy of the instrument may be obtained.
The authority conducting proceedings will enter the contents of the instrument in the record and make a copy of the instrument, and if required return the original to the person who submitted it.
2. Evidentiary Actions
e) Obtaining Samples
Obtaining Biometric Samples
With the aim of establishing facts in the proceedings, impressions of papillary lines and body parts, buccal (cheek) swabs and personal data may be taken, a personal description made, and a photograph taken (forensic registration of the suspect) of a suspect even without his consent
When necessary for the purpose of establishing identity or in other cases of interest to the successful conduct of proceedings, the court may allow a suspect’s photograph to be made public.
In order to eliminate suspicion about being connected with a criminal offence, impressions of papillary lines and body parts and mouth swabs may be taken from an injured party or other person found at a crime scene even without their consent.
The action referred to in paragraphs 1 and 3 of this Article is performed by a professional acting under an order of the public prosecutor or the court.
Obtaining Samples of Biological Origin
The obtaining of samples of biological origin and performance of other medical actions which are under the rules of the medical profession required for the purpose of analysing and establishing facts in proceedings may be conducted even without the consent of the defendant, except if it would cause harm to his health in some way.
If it is necessary to establish the existence of a trace or consequence of a criminal offence on another person, the obtaining of samples of biological origin and performance of other medical actions in accordance with paragraph 1 of this Article may be conducted even without the consent of the person, except if it would cause harm to his health in some way.
A voice or handwriting sample may be taken from a defendant, injured party, witness or other person for the purpose of establishing facts in proceedings for the purpose of making comparisons.
The actions referred to in paragraphs 1 and 2 of this Article are performed by a healthcare professional, acting on an order of the public prosecutor or the court.
The person referred to in paragraph 3 of this Article who without a lawful reason (Article 68 paragraph 1 item 2), Article 93, Article 94 paragraph 1 and Article 95 paragraph 2) refuses to provide a voice or handwriting sample may be fined by the court by a fine of up to 150,000 dinars.
An appeal against the ruling pronouncing a fine is decided on by the panel. An appeal does not stay execution of the ruling.
Obtaining Samples for Forensic-Genetic Analysis
If necessary for detecting the perpetrator of a criminal offence or establishing other facts in the proceedings, the public prosecutor or the court may order the taking of samples for forensic-genetic analysis :
1) from the crime scene or other location where traces of the criminal offence are located ;
2) from the defendant and injured party, under the conditions stipulated in Article 141 paragraph 2 of this Code ;
3) from other persons if there is one or more characteristics that bring them in connection with the criminal offence.
In a decision pronouncing a custodial criminal sanction, a first-instance court may ex officio order a sample for forensic-genetic analysis to be taken from :
1) a defendant sentenced to a term of imprisonment of more than year in connection with an intentional criminal offence ;
2) a defendant found guilty of an intentional criminal offence against sexual freedom ;
3) a person on whom has been imposed a security measure of compulsory psychiatric treatment.
The keeping of records on the obtained samples, their safekeeping and destruction is regulated by the act referred to in Article 279 of this Code.
2. Evidentiary Actions
ž) Checking Accounts and Suspicious Transactions
If the conditions referred to in Article 143 paragraph 1 of this Code are fulfilled, the public prosecutor may order a bank or other financial organisation to provide him within a certain time limit data :
1) about accounts a suspect has or controls and the funds in those accounts ;
2) from data records.
The bank or other financial organisation is required to preserve as a secret the fact that it acted in accordance with paragraph 1 of this Article.
If he does not initiate criminal proceedings within six months of the date of examining the collected data referred to in paragraph 1 of this Article, or if he declares that he will not request the conduct of proceedings against the suspect, or if he deems the collected data not necessary for conducting proceedings, the public prosecutor will issue a ruling on the destruction of the collected materials.
The public prosecutor will inform the person against whom the evidentiary action was performed about the ruling referred to in paragraph 3 of this Article. The materials are destroyed under the supervision of the public prosecutor, who makes a record thereof.
Monitoring of Suspicious Transactions
If the conditions referred to in Article 143 paragraph 1 of this Code are fulfilled, the public prosecutor may request a court to order the monitoring of suspicious transactions.
The monitoring referred to in paragraph 1 of this Article is ordered by the judge for preliminary proceedings by a reasoned order. The order contains data on the suspect, designation of the account, the obligation of the bank or financial organisation to submit periodical reports to the public prosecutor, and the duration of the supervision. The monitoring may last no more than three months, and may for important reasons be extended by another three months at most. The monitoring is discontinued as soon as the reasons for its application cease to exist.
Unless specified otherwise in the order, the bank or other financial organisation is required to notify the public prosecutor before every transaction that the transaction will be performed and to specify the time limit in which it will be performed.
If due to the nature of the transaction it is not possible to act in accordance with paragraph 3 of this Article, the bank or other financial organisation will notify the public prosecutor immediately after the performance of the transaction and specify the reasons for the delay.
The bank or financial organisation is required to maintain as a secret the fact that it has acted in accordance with paragraph 2 of this Article.
If the public prosecutor does not initiate criminal proceedings within six months of the date of examining the data obtained by the supervision referred to in paragraph 1 of this Article or if he declares that he will not request the conduct of proceedings against the suspect, or if he deems the data collected not necessary for conducting proceedings, the judge for preliminary proceedings will act in accordance with Article 144 paragraphs 3 and 4 of this Code.
2. Evidentiary Actions
ž) Checking Accounts and Suspicious Transactions
Temporary Suspension of a Suspicious Transaction
If the conditions referred to in Article 143 paragraph 1 of this Code are fulfilled and if there are grounds for suspicion that a suspect is performing the transaction referred to in Article 145 paragraph 1 of this Code, acting on a written and reasoned request of the public prosecutor the judge for preliminary proceedings may order a bank or other financial organisation to temporarily suspend the performance of a suspicious transaction.
The measure of temporary suspension referred to in paragraph 1 of this Article may last no longer than 72 hours, and in case the duration of the measure encompasses holidays, may on an order of the court be extended by a maximum of another 48 hours.
The bank or another financial organisation is required to maintain as a secret the data that it has acted in accordance with paragraph 1 of this Article.
2. Evidentiary Actions
z) Seizure of Objects
Objects Being Seized
The authority conducting proceedings will seize objects which must be seized under the Criminal Code or which may serve as evidence in criminal proceedings and secure their safekeeping.
The decision on the seizure of funds which are the object of a suspicious transaction (Article 145) and their placement in a special account for safekeeping is issued by the court.
Among the objects referred to in paragraph 1 of this Article are automatic data processing equipment and devices and equipment on which electronic records are kept or may be kept.
2. Evidentiary Actions
z) Seizure of Objects
Procedure for Seizing an Object
A certificate is issued to a person from whom objects are seized in which they will be described, the locations where they were found indicated, data on the person from whom the objects are being sized given, and the capacity and signature of the person conducting the action given.
Documents which may serve as evidence will be listed, and if that is not possible, the documents will be placed under a cover and sealed. The owner of the documents may place his seal on the cover.
The person from whom the documents were seized will be summoned to attend the opening of the cover. If he does not respond or is absent, the authority conducting proceedings will open the cover, inspect the documents and make a list of them. In the inspection of documents care must be taken for unauthorised persons not to be allowed to learn their content.
2. Evidentiary Actions
a. Basic Provisions
Subject-matter and Grounds for a Search
A search of a dwelling or other premises or a person may be performed if it is probable that the search will result in finding the defendant, traces of the criminal offence or objects of importance for the proceedings.
A search of a dwelling or other premises or a person is performed on the basis of a court order or exceptionally without an order, on the basis of a legal authorisation.
The search of automatic data processing devices and equipment on which electronic records are kept or may be kept is undertaken under a court order and, if necessary, with the assistance of an expert.
Seizure of Objects and Documents
During a search, objects and documents connected to the purpose of the search will be
If during a search objects are found which are not connected to the criminal offence for which the search was undertaken, but which indicate another criminal offence prosecutable ex officio, they will be described in the record and seized, and a receipt on the seizure will be issued immediately.
If the search was not undertaken or attended by the public prosecutor, the authority which performed the search will notify the public prosecutor thereof immediately.
If the public prosecutor finds that there are no grounds to initiate criminal proceedings or if the reasons for which the objects were seized cease to exist, and the reasons for their confiscation do not exist (Article 535), the objects will immediately be returned to the person from whom they were seized.
2. Evidentiary Actions
b) Search Based on an Order
A search is ordered by the court, acting on a reasoned request by the public prosecutor. The search order contains the following :
1) the title of the court which ordered the search ;
2) designation of the subject-matter of the search ;
3) the reason for the search ;
4) the name of the authority which will perform the search ;
5) other data of importance for the search.
The search referred to in paragraph 1 of this Article will commence no more than eight days from the date of issuance of the order. If it does not commence in the foresaid time limit, the search cannot be performed and the order will be returned to the court.
Preconditions for a Search
After serving the search order, the holder of a dwelling and other premises or person who will be searched is asked to voluntarily surrender the person, or objects which are being sought.
The holder or person referred to in paragraph 1 of this Article will be advised of the right to retain a lawyer, or defence counsel, who may attend the search. If the holder or the person referred to in paragraph 1 of this Article requests the presence of a lawyer or defence counsel, the commencement of the search will be postponed until his arrival, but by no more than three hours.
A search may be performed even without the service of the search order, and without an invitation for a person or object to be surrendered and the advice on the right to a defence counsel or lawyer, if armed resistance or other form of violence is expected, or if there is obvious preparation for or commencement of the destruction of traces of a criminal offence or objects of importance for the proceedings, or if the holder of a dwelling or other premises is inaccessible.
The holder of a dwelling and other premises will be summoned to attend the search, and if he is absent, an adult member of his household or another person will be called to attend the search on his behalf.
When military facilities, premises or state institutions, enterprises or other legal persons are searched, their managing official or person he designates will be summoned to attend the search. If the person summoned does not appear within three hours of receiving the summons, the search may be performed without his presence.
When a lawyer’s office or an apartment in which an attorney lives is searched, a lawyer appointed by the president of the competent bar association will be summoned. If the lawyer appointed by the president of the bar association does not appear within three hours, the search may be performed without his presence.
The search is attended by two citizens of adult age as witnesses who will before the commencement of the search be advised to observe the course of the search, and that they are entitled before they sign the record of the search to enter their objections on the veracity of the content of the record. If the conditions referred to in paragraph 3 of this Article are fulfilled, the search may also be performed without the presence of witnesses.
When a search of a person is being conducted, the witnesses and the person conducting the search must be of the same sex as the person being searched.
A search is performed carefully, respecting the dignity of person and right to intimacy, without unnecessary obstruction of the house rules of order. As a rule a search is conducted in the daytime, and exceptionally at night, between 22:00 and 06:00 hours, if it was commenced in the daytime and not completed, or if it so ordered in the search order.
Locked rooms, furniture and other objects will be opened by force only if their holder is not present or refuses to open them voluntarily or a person present refuses to do so (Article 156 paragraph 4). Unnecessary damage will be avoided in the opening process.
If a search of the devices and equipment referred to in Article 152 paragraph 3 of this Code is being performed, the holder of the object or the person present (Article 156 paragraph 4), besides the defendant, is required to make possible access and provide information needed for their use unless any of the reasons from Article 93, Article 94 paragraph 1 and Article 95 paragraph 2 of this Code exist.
A record will be made of every search in which the objects and instruments being seized and the location of their finding will be accurately described, and a special explanation will be provided on why the search is conducted at night. Observations of the persons present are also entered in the record.
The record of the search is signed by the persons present. In case a person refuses to sign the record, this will be noted on the record. A receipt will be made in respect of the seized objects and will immediately be issued to the person from whom the objects or instruments were seized.
An audio or video recording may be made of the course of a search, and the objects found during the search may be photographed separately and if the search is conducted without the presence of witnesses (Article 156 paragraph 7) or without the representatives of the bar association (Article 156 paragraph 6) the recording and taking of photographs is mandatory. The recordings and photographs will be attached to the record of the search.
COURSE OF THE PROCEEDINGS
2. Authority of the Authorities Conducting Pre-investigation Proceedings
Questioning the Suspect
When the police collect information from a person for whom there exist grounds for suspicion that he is the perpetrator of a criminal offence, or undertake towards that person actions in the pre-investigation proceedings stipulated by his Code, they may summon him only in the capacity of a suspect. The suspect will be advised in the summons that he is entitled to obtain a defence counsel.
If during collection of information the police find that the citizen summoned may be deemed a suspect, they are required to advise him immediately of the rights referred to in Article 68 paragraph 1 items 1) and 2) of this Code and of the right to obtain a defence counsel who will attend his questioning.
The police will notify the competent public prosecutor without delay about acting within the meaning of the provisions of paragraphs 1 and 2 of this Article. The public prosecutor may conduct the suspect’s questioning, attend the questioning or assign the questioning to the police.
If the suspect agrees to make a statement, the authority conducting the questioning will act in accordance with the provisions of this Code relating to the questioning of a defendant provided that the consent of the suspect to be questioned and his statement during the questioning are given in the presence of his defence counsel. The transcript of this questioning is not excluded from the files and may be used as evidence in criminal proceedings.
If the public prosecutor is not present at the questioning of a suspect, the police will deliver to him without delay the transcript of the questioning.
III LEGAL ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT
General Rules of Co-operation and Providing Legal Assistance
Pursuant to Article 93 of the Statute, all state authorities shall co-operate through the Ministry to a full extent and in good faith with the International Criminal Court for the purposes of providing legal assistance to said Court, in order to prosecute persons charged with the criminal offences referred to in Article 1 of this Law.
III LEGAL ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT
Attendance of Representatives of the International Criminal Court
The state authority undertaking the action to provide legal assistance at the request of the International Criminal Court shall permit representatives thereof to witness the implementation of the legal assistance action.
The representatives of the International Criminal Court witnessing the implementation of the legal assistance action may ask questions and make proposals, and they may be granted video or sound recording of the action upon written request containing rationale should it not hinder the implementation or be inconsistent with justified interests of the persons witnessing the action and/or with the objectives of the criminal proceeding.
At their request the International Criminal Court representatives shall be provided with a copy of the minutes, and/or a copy of the video and sound recording of the legal assistance action.
The International Criminal Court representatives may be exceptionally allowed to also witness an action which excludes the public pursuant to the provisions of the Criminal Procedure Code should it not be contrary to the reasons for which the public is excluded.
In the case referred to in paragraph 4 of this Article, the state authority implementing the action shall specifically bring to the attention of the witnesses their duty to keep all facts they have learnt during the action secret, also warning them about the consequences of disclosing the secret.
III LEGAL ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT
Actions of International Criminal Court Representatives in the Territory of the Republic of Serbia
By way of exception, at the request of the International Criminal Court, the International Criminal Court Representatives may be allowed to implement certain actions in the territory of the Republic of Serbia.
The actions undertaken from paragraph 1 of this Article must be witnessed by a person designated by the Minister competent for the judiciary.
The International Criminal Court Representatives shall not have the right to carry any weapons in the territory of the Republic of Serbia, and whilst undertaking the actions referred to in paragraph 1 of this Article they must not violate or limit any constitutional rights of the citizens of the Republic of Serbia or the rights relating to witnesses, court experts, suspects or accused persons from the Criminal Procedure Code.
The actions referred to in paragraph 1 of this Article must not be conducted in a coercive manner nor arrest may be resorted to relating to said actions or any other measure of procedural coercion .
III LEGAL ASSISTANCE TO THE INTERNATIONAL CRIMINAL COURT
Transfer of Criminal Jurisdiction to the Republic of Serbia
When the International Criminal Court, pursuant to the Statute and the Rules of Procedure and Evidence, transfers to the Republic of Serbia the criminal prosecution of the crime from Article 1 of this Law, the competent Public Prosecutor shall instigate criminal proceedings before the competent court.
The Document on Charges in the case from paragraph 1 of this Article shall be based on evidence contained in the Prosecutor's former indictment, i.e. on evidence presented during the proceedings before the International Criminal Court, but it may be also based on other evidence in possession of the competent Public Prosecutor.
Criminal proceedings in the Republic of Serbia shall be conducted in accordance with the rules of the local law.
The evidence collected or presented by the International Criminal Court may be used in criminal proceedings in the Republic of Serbia only if it has been collected and/or presented in accordance with the Statute and the Rules of Procedure and Evidence, and if it could normally be utilised in the proceedings before the International Criminal Court.
The evidence mentioned in paragraph 4 of this Article shall be assessed by the competent court in accordance with the principle of free assessment of evidence and according to its own free conviction.
The International Criminal Court Representatives shall have the right to witness all stages of the criminal proceeding conducted in the Republic of Serbia, and the competent court shall send them timely summonses to witness certain actions and attend the main trial.
The right of the International Criminal Court Representatives to attend may not be limited even where the court, in accordance with the rules of the Criminal Procedure Code, passes a ruling on excluding the public from the main trial. In such event, the International Criminal Court Representatives shall be specifically made aware of their duty to keep all facts they learnt during such trial as a secret.
The right of the International Criminal Court Representatives to witness evidence-related actions undertaken prior to the main trial or outside the main trial may be limited where the court is not able, due to objective difficulties, to notify in a timely manner the International Criminal Court Representatives on any action seeing possible deferral.
The Government may conclude a separate agreement with the International Criminal Court, regulating all issues in more detail pertaining to the transfer of the criminal jurisdiction from the International Criminal Court to the Republic of Serbia.
IV ARREST, CUSTODY AND SURRENDER OF THE ACCUSED PERSON
Arrest of the Accused Person
If the accused person is hiding or in flight, the Police shall undertake all required measures to find and arrest the person concerned, bringing him/her in to the competent Investigative Judge.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.