3. Examination of the defendant
Basic rules for the examination of the defendant
(1) At the first examination of a defendant, he shall be asked for his first name and surname; personal identification number; nickname, if any; the first names and surnames of his parents, maiden name of his mother or family name of a parent that was changed after marriage; place of his birth; address; day, month and year of birth; citizenship; occupation; employment status and employer’s name; financial standing; family situation; if he is literate; his educational background; if he has served the army and if so where and when, if he has the rank of a reserve non¬commissioned officer, officer or military official; if he is listed in the military records and if so at which authority in charge of defense; if he has been decorated; if he has ever been convicted and if so when and for which criminal offense; if he has ever been sentenced and if he has served the sentence and when; if a criminal proceeding is underway against him for another criminal offense; and if he is a minor, who his legal representative is.
(2) The defendant shall be instructed that he shall be bound to appear upon a summons and immediately notify the court of any changes of his address or of intention to change his place of residence, and shall be warned of the consequences if he does not act accordingly. Thereafter, the defendant shall be informed of his rights referred to in Article 5 paragraphs 1, 6 and 7 of the present Code as well as of:
1) why he is being charged and which criminal offense he is being charged with;
2) facts which serve as the basis for reasonable suspicion that he has committed the criminal offense;
3) that he is under no obligation to present his defense or answer any of the questions;
4) that if he decides to present his defense he is under no obligation to incriminate his close relatives, spouse or person living with him in a lasting common-law marriage.
(3) Upon having received the instruction in accordance with paragraph 2 of the present Article, the defendant shall be called on to present his defense if he wishes to.
(4) At his request, the defendant shall be allowed to read the criminal charges, i.e. notification on criminal offense immediately before the first hearing, but after reading it, and before the hearing, the defendant may not consult his defense counsel until the examination has been completed.
(5) The defendant shall be examined verbally, and during the hearing he shall have the right to use his notes.
(6) During the hearing, the defendant should have the opportunity to speak about all incriminating circumstances and state all facts in favor of his defense and his position in criminal proceedings without any interruptions.
(7) Once he has completed his statement, the defendant shall be asked questions if it is necessary to fill the gaps or remove contradictions and ambiguities in his story.
(8) The defendant shall be examined decently and with full respect for his dignity.
(9) Force, threat, deceit, promises, coercion, wearing-out tactics or similar means (Article 143, paragraph 5) must not be used to obtain a statement or confession or a particular action by the defendant that may be used as evidence against him or to achieve any other goal.
(10) The defendant may be heard in the absence of a defense counsel if he has expressly waived this right and defense is not mandatory, if the defense counsel is not present although he has been notified about the examination (Article 278, paragraph 8) and there is no possibility for the defendant to take another defense counsel, or if the defendant has not secured a defense counsel for the first hearing
within 24 hours from the time he has received the instruction on this right (Article 5, paragraphs 6 and 7), except in the case of mandatory defense.
(11) If any actions have been taken in violation of the provisions of paragraphs 9 and 10 of the present Article, or if the defendant has not been instructed about his rights referred to in paragraph 2 of the present Article, or if the defendant’s statements pursuant to paragraph 10 of the present Article regarding the presence of a defense counsel have not been entered into the record, a judicial decision may not be based on the defendant’s statement.
Questioning of the defendant, prohibition to assume admission, and change of the
(1) Questions shall be put to the defendant in a clear, comprehensible and precise manner so that he can perfectly understand them. The hearing must not be based on the assumption that the defendant has admitted to something that he has not, nor must leading questions be asked.
(2) If subsequent statements made by the defendant differ from the previous ones, and particularly if the defendant revokes his admission, the authority in charge of his hearing shall invite the defendant to present his reasons for giving different statements, i.e. revoking his admission.
Confrontation of the defendant with other persons
(1) The defendant may be confronted with a witness or another defendant if the important facts in their statements differ and if the authority in charge of the proceedings believes that this difference may be clarified through confrontation.
(2) The confronted persons shall be placed facing one another and shall be requested to repeat to one another, while maintaining eye contact, their statements regarding each disputable fact and to argue the truthfulness of their respective statements. The authority supervising the confrontation may question the
confronted persons. The course of the confrontation, the conduct and statements of the confronted persons shall be entered in the record and, if the authority in charge of the proceedings finds it opportune, an audio and video recording may be made. The recording of the confrontation shall be attached to the record as its integral part and may be used as evidence.
Identification of objects by the defendant
(1) The objects that are in connection with the criminal offense or those that serve as evidence, i.e. those for which it needs to be established whether the defendant recognizes them, shall be presented to the defendant for identification after he has previously described them. If such objects cannot be brought to the defendant, he may be taken to the place where they are located so that they can be shown to him.
(2) Record shall be made on the course of the identification and statements of the defendant and, when the authority in charge of the proceedings finds it opportune, an audio and video recording of the process of identification and statement by the defendant may be taken. If identification is carried out at the location where the objects are, an audio and video recording shall be made as a rule. The recording of the identification shall be attached to the record as its integral part and may be used as evidence.
Recording of the defendant’s statement
(1) The defendant’s statement shall be entered into the record as a first-person narrative, while the questions and answers shall be entered into the record only when they refer to a criminal matter.
(2) The defendant may be permitted to dictate his own statement into the record.
(3) As a rule, the defendant’s statement shall be recorded with the audio or audio and video recording equipment, unless when this is impossible for important reasons. The recording of the defendant’s statement constitutes an integral part of the record on the hearing of the defendant and may be used as evidence.
The defendant’s confession
When a defendant confesses that he has committed a criminal offense, the authority in charge of the proceedings shall have the obligation to continue gathering evidence on the criminal offense only if the confession has obviously been false, incomplete, contradictory or ambiguous or if the confession is not supported by other evidence, i.e. if there is suspicion that the confession has been made in order to conceal other perpetrators or other criminal offenses.
Examination of a defendant with a disability and examination of a defendant
through an interpreter
(1) The defendant shall be examined through an interpreter in the cases envisaged in the present Code.
(2) If the defendant is deaf, questions shall be posed in writing, and if he is mute, he shall be asked to answer in writing. If the examination cannot be carried out in this way, a person with whom the defendant is able to communicate shall be summoned to act as an interpreter.
(3) If the interpreter has not previously taken an oath, he shall swear that he shall faithfully communicate the questions put to the defendant as well as statements made by the defendant. If the interpreter refuses to take the oath, his statement to that effect shall be entered into the record and the authority in charge of the proceedings shall summon another interpreter.
(4) The provisions of the present Code on expert witnesses shall be applied to interpreters as appropriate.
4. Examination of witnesses
Persons examined as witnesses
(1) Persons who are likely to have knowledge and to be able to provide information on a criminal offense, its perpetrator and other relevant circumstances shall be summoned and examined as witnesses.
(2) An injured party, injured party as subsidiary prosecutor and private prosecutor may be examined as witnesses.
(3) Every person summoned as a witness shall have the obligation to appear at court and, unless otherwise prescribed by the present Code, shall also have the obligation to testify.
Persons who may not be examined as witnesses
The following persons may not be examined as witnesses:
1) a person whose testimony would violate his duty to keep a state, military or official secret until the competent authority releases him of this duty in a written statement;
2) a person whose testimony would violate the obligation of a legal privilege of confidentiality regarding the information gained in his professional capacity (member of clergy, lawyer, physician, nurse, midwife, psychologist, social worker, etc.), unless he has been released from this obligation by a special regulation or document, or a statement entered into the record by the person to whom such legal privilege of confidentiality belongs, or such a statement by his legal successor;
3) a minor who, in view of his age and mental development, is incapable of understanding the importance of his right not to testify (Article 104, paragraph 1), unless the defendant himself demands so;
4) the defendant’s defense lawyer on what he, as the defense counsel, has been told by the defendant;
5) a person who is completely incapable of testifying due to his mental or physical illness or age;
Persons exempt from the duty to testify
(1) The following persons shall be exempt from the duty to testify:
1) the defendant’s spouse and the person with whom he lives in a lasting common-law marriage;
2) the defendant’s blood relatives in a direct line, collateral relatives to the third degree and his in-laws to the second degree;
3) a person who is the defendant’s godfather or best man, or to whom the defendant is godfather, or a person who is godfather to the defendant’s children, or to whose children the defendant is godfather;
4) the defendant’s adopted child or adoptive parent.
(2) The court in charge of the criminal proceedings shall have the obligation to instruct the persons referred to in paragraph 1 of the present Article, prior to their examination or as soon as it learns of their relationship with the defendant, that they do not have to testify. The instruction and the answer shall be entered in the record.
(3) A person who has reason not to testify against one of the defendants shall be exempt from the duty to testify against the other defendants if his testimony cannot be, by nature of the matter, limited only to these other defendants.
Procedural consequences of mistakes and abuse of the authority in charge of the
proceedings during the examination of a witness
If a person who may not be examined as a witness (Article 103) or a person who does not have to testify (Article 104) has been examined as a witness and has not been instructed of his right not to testify or has not explicitly waived it, or if this instruction and waiver has not been entered in the record, or if the testimony has been obtained from a witness by coercion, threat or similar forbidden means (Article 143, paragraph 5), a judicial decision cannot be based on such a testimony.
Right of a witness not to answer certain questions
A witness is not obliged to answer individual questions by which he would be likely to expose himself or persons referred to in Article 104, paragraph 1 of the present Code to serious disgrace, considerable material damage or criminal prosecution.
Questions that may not be posed to the injured party or witness
The injured party or a witness must not be asked questions that refer to his sexual activity and preferences, political and ideological preferences, racial, national and ethnic background, ethical criteria and other strictly personal and family circumstances, unless the answers to such questions are in direct and obvious connection with the need to clarify the important elements which constitute the criminal offense which is the subject matter of the proceedings.
Summoning a witness
(1) A witness shall be summoned by serving a written summons which shall indicate the name and surname and occupation of the summoned person, when and where he is to appear, the criminal case in connection with which he is summoned, an indication that he is summoned as a witness and the consequences of unjustifiable non-compliance with the summons (Article 115).
(2) A witness who has agreed to this in the preliminary investigation or in a previous hearing and who has confirmed that he has the necessary technical requirements for being served such a summons, may also be summoned by e-mail or any other electronic messaging system, if the authority which is summoning the witness can thus receive a feedback that the witness has personally received such a summons.
(3) A minor younger than 16 shall be summoned as a witness through his parents or legal representative, except where this is not possible for reasons of urgency of proceedings or other circumstances.
(4) A witness who by reason of old age, illness or serious disability is unable to comply with the summons may be examined in his apartment or other place he is in.
Method of examining a witness
(1) A witness shall be examined separately and without the presence of other witnesses. A witness shall answer questions verbally.
(2) A witness shall first be told that it is his duty to speak the truth and that he may not withhold anything, whereupon he shall be warned that false testimony constitutes a criminal offense. A witness shall also be instructed that he need not answer any of the questions referred to in Article 106 of the present Code and the instruction shall be entered in the record.
(3) Subsequently, the witness shall be asked to state his first name and surname, the name of his father or mother, occupation, place of residence, place and year of birth and his relation to the defendant and the injured party. The witness shall be warned of the obligation to report to the court any change in address or place of residence.
(4) The witness shall be asked if he has the technical requirements for receiving summons by e-mail or any other electronic messaging system and, if so, whether he is the only person who has access to the PC, or has the password for opening e- mails and possibility to confirm by electronic means the receipt of the summons served to him in this way, and whether he agrees to be served summons in this way if the need for another examination arises.
(5) When a minor is examined, especially if he has been injured by the criminal offense, special care shall be taken to prevent any harmful effects of the hearing on his state of mind. If necessary, the minor shall be examined with the assistance of a psychologist, pedagogue or some other expert.
(6) After the general questions, the witness shall be asked to say everything he knows about the case, whereupon questions shall be asked so that the statement he has provided may be checked, supplemented, and clarified. The use of deception or leading questions shall not be allowed during the examination of a witness. A witness shall always be asked how he knows the things he is testifying about.
(7) Witnesses may be confronted if they give testimonies which substantially conflict with one another. Only two witnesses may be confronted at a time. In the confrontation of witnesses, provisions of Article 97, paragraph 2 of the present Code shall be applied.
(8) The injured party examined as a witness shall be asked whether he intends to pursue an indemnification claim in the criminal proceedings.
Rules for the examination of very sensitive injured parties and witnesses
(1) The injured parties and witnesses whom the authority in charge of the proceedings has assessed as very sensitive in view of their age, experience, lifestyle, gender, state of their health, nature or consequences of the criminal offense, i.e. other circumstances of the case, and decided that the examination on the premises of the authority in charge of the proceedings might have harmful effects on their state of mind and physical state shall be examined in the way referred to in Article 108, paragraph 4 of the present Code.
(2) The injured party or witness referred to in paragraph 1 of the present Article may be examined at his apartment or in some other place where he is, or in an authorized institution/organization which employs experts for the examination of very sensitive persons.
(3) A proxy shall be appointed to the injured party or witness referred to in paragraph 1 of the present Article during the examination, when the authority in charge of the proceedings deems this necessary for providing assistance to the said persons..
(4) Questions to the injured party or witness referred to in paragraph 1 of the present Article may be asked only through the authority in charge of the proceedings, which will address this injured party or witness with special care, trying to avoid any harmful effects of the criminal proceedings on his person and physical and mental state.
(5) The injured party or witness referred to in paragraph 1 of the present Article may be examined with the assistance of a psychologist, social worker or some other expert, when this is necessary to prevent any harmful effects of the criminal proceedings on his person and mental and physical state, and the authority in charge of the proceedings may decide to use picture and sound transmission devices in the examination of this person. Such an examination is held without the presence of parties and other participants in the proceedings in the room where the injured party or witness is situated, so that the parties, defense lawyer and persons who have the right to ask questions shall do so through the authority in charge of the proceedings, psychologist, pedagogue, social worker or some other expert.
(6) The court may decide to examine the injured party or witness referred to in paragraph 1 of the present Article in a closed session, in which case all data on the identity of this person shall constitute an official secret.
(7) The identification of the defendant by the injured party or witness referred to in paragraph 1 of the present Article shall be carried out in all stages of the criminal proceedings in such a way that would completely prevent the defendant from seeing and hearing the injured party or witness.
(8) The injured party or witness referred to in paragraph 1 of the present Article may not be confronted with the defendant, and he may be confronted with other witnesses only at their own request.
(9) No special appeal is allowed against the decisions made by the authority in charge of the proceedings on the basis of the provisions of the present Article.
Identification of persons or objects by a witness
(1) If it is necessary to determine whether a witness can recognize a person or object he has previously described, he shall be shown the person in question together with, as a rule, between five and eight other persons unknown to him, whose distinctive features should be similar to those described by him, or the object in question together with the objects of the same or similar kind, whereupon the witness shall be asked to say whether he can identify this person or object with certainty or with a certain degree of probability and, in case of an affirmative answer, he should point at the identified person or object.
(2) In the preliminary investigation, the identification of persons shall take place in the presence of the Public Prosecutor, in such a way as to prevent the person who is the object of identification from seeing the witness and to prevent the witness from seeing this person before the identification proceeding begins.
Examination of a witness through an interpreter and examination of a witness with
If a witness is examined through an interpreter, or if a witness is deaf or mute, he shall be examined as provided for in Article 101 of the present Code.
Oath or solemn promise of a witness
(1) A witness shall be requested to take an oath or solemn promise prior to his testimony.
(2) A witness may take an oath or solemn promise before the trial only if there is a probability that he will be unable to attend the trial because of illness or some other important reason. The reason why the oath or solemn promise was taken at that time shall be entered in the record.
(3) The authority in charge of the proceedings shall ask the witness if he wishes to take an oath with religious contents or a solemn promise. The authority in charge of the proceedings must not ask the witness to state his religious affiliation or non- affiliation to a certain religion and shall have the obligation to inform the witness that he does not need to state his religious affiliation.
(4) If the witness decides to take the oath, its text shall go as follows: “I swear by one God and everything I hold holiest and dearest in this world that I shall say the truth about everything I testify of and about everything I am asked and that I shall not withhold anything I know of this matter, and as I tell the truth here, so help me God.”
(5) The witness shall have the right to adapt the text of the oath referred to in paragraph 4 of the present Article to the name of God used in his religion, i.e. the witness may use another term which for him has the appropriate religious meaning.
(6) If the witness decides to take the solemn promise, its text shall go as follows: “I solemnly promise and swear upon my honor that in my testimony I will say nothing but the truth about everything I am asked and that I will not withhold anything that has come to my knowledge.”
(7) The witness shall take the oath or solemn promise orally, by reading its text or by answering affirmatively after the text of the oath, i.e. solemn promise has been read out by the authority in charge of the proceedings or the official person he authorizes. Mute witnesses who can read and write shall sign their name under the text of the oath, i.e. solemn promise and deaf or mute witnesses who cannot read or write shall take the oath, i.e. solemn promise with the assistance of an interpreter.
(8) The refusal and reasons for the refusal of a witness to take the oath, i.e. solemn promise shall be entered in the record.
Persons who may not take the oath or solemn promise
The oath or solemn promise may not be taken by persons;
1) who are under age at the time of the hearing;
2) against whom it has been proved or reasonable suspicion exists that they have committed the criminal offense they are testifying about or have participated in it’s commission;
3) whose mental state prevents them from understanding the importance of the oath or solemn promise.
Failure of a witness to respond to summons and refusal to testify
(1) If a witness who has been duly summoned fails to appear and does not justify his failure to appear or if he leaves the place where he should be examined without permission or a valid reason, such a witness may be compelled to appear and may be fined with up to CSD 150,000.
(2) If the witness appears, but, after being warned of the consequences, refuses to give testimony without legal justification, he may be fined with up to CSD 150,000, and if he still refuses to testify, he may once again be fined with up to CSD 300,000. If the witness still refuses to testify after being ordered to pay the second fine and the proceedings are being held before the court, he may be imprisoned. This imprisonment shall last for as long as the witness refuses to testify or until his testimony becomes unnecessary, i.e. until criminal proceedings end with a final judgment, but shall not exceed a period of one month.
(3) The chamber (Article 24, paragraph 6) shall decide on an appeal against a ruling imposing a punishment of a fine or imprisonment. An appeal against the ruling on sentencing shall not stay the execution of the ruling.
General rule of witness protection
(1) The authority in charge of the proceedings shall have the obligation to protect the witness and the injured party from insults, threats and any other attacks.
(2) A participant in the proceeding or any other person who insults or threatens the witness or injured party or brings his safety into jeopardy in front of the authority in charge of the proceedings, shall be warned or fined by the authority in charge of the proceedings. In case of violence or serious threat, the court shall notify the Public Prosecutor for the purpose of prosecution and in the case the violence or serious threat occurred in the preliminary investigation or investigation before the Public Prosecutor, he himself shall initiate prosecution or inform the Public Prosecutor having jurisdiction about it. Provisions of Article 115 of the present Code shall accordingly be applied regarding any fine(s).
(3) The Public Prosecutor, Investigative Judge, President of the Trial Chamber or the President of the Court may request from police to take special measures for the protection of the witness and injured party.
Examination of a protected witness
(1) If there are circumstances that clearly indicate that the life, health, physical integrity, freedom or any considerable assets of a witness in a criminal proceeding punishable by imprisonment of ten years or any stricter penalty, or persons close to him, would be seriously threatened due to his testimony and answers to some questions, the court may decide to grant this person the status of a protected witness and order a special method of examination of this witness in the criminal proceedings in order to prevent his identity from being disclosed during the proceedings.
(2) The decision referred to in paragraph 1 of the present Article may exceptionally be made in the case of criminal proceedings for a criminal offense punishable by imprisonment of four years or any stricter penalty, if special circumstances indicate that the witness or persons close to him may be exposed to the threat referred to in paragraph 1 of the present Article, and an alternative method of protection of a witness would be either impossible or considerably more difficult.
(3) The special way of examination of a protected witness includes one or several special protective measures:
1) closed trial;
2) alteration, removal from the record or ban on the disclosure of any data referring to the witness’s identity;
3) withholding of any data referring to the witness’s identity;
4) examination of the witness under a pseudonym;
5) concealment of the face of the witness;
6) testifying from a separate room through voice-distortion devices;
7) examination of the witness in a room outside the courtroom, in another place in the country or abroad, communicated to the courtroom by means of the picture and sound transmission devices, with the possibility of using voice- and image-distortion devices.
(4) When special protection measures include the use of technical devices, a skilled professional person shall handle these devices under the supervision of the authority in charge of criminal proceedings.
(5) Examination in the way referred to in paragraph 3, item 7 of the present Article may be also carried out when the presence of the witness or injured party at the trial cannot be ensured, and such an examination may be carried out also through international legal assistance in criminal matters.
Ruling on granting a person the status of a protected witness
(1) The court may rule to grant the status of a protected witness at the request of a person who either should be examined as a witness or has already been examined as a witness in the previous stages of the proceedings, or ex officio, i.e. at the request of a party and with the consent of the person who should be granted such a status. The request must be in writing and substantiated and, exceptionally, upon the commencement of the trial, a witness may make such a request verbally, at the time
the court decides on the exclusion of public on which a special record shall be made.
(2) The request referred to in paragraph 1 of the present Article shall be filed in a sealed envelope bearing the marking: “witness protection – official secret – confidential.” The request shall contain: personal data on the person who should be examined as a witness, or on the witness; description and statutory title of the criminal offense which constitutes the subject matter of the proceedings in connection with which the person should be examined; circumstances to which the testimony would most likely refer; circumstances that result in the serious threat referred to in Article 117, paragraph 1 of the present Code, or due to which the condition referred to in Article 117, paragraph 2 of the present Code has been met.
(3) The court shall make the decision referred to in paragraph 1 of the present Article after assessing the probable importance of witness’s testimony for the proceedings and seriousness of the threat referred to in Article 117, paragraph 1 of the present Code, or fulfillment of conditions referred to in Article 117, paragraph 2 of the present Code, and for this purpose the court shall schedule a separate hearing which shall be attended by the witness to whom the request refers and the parties. Immediately upon the conclusion of this hearing, the court shall decide on the status of protected witness and inform the persons who have attended the hearing verbally about the contents of its decision. Once the court renders a ruling granting the protected witness status, it shall explicitly warn the present persons of their obligation to keep the information on the identity of the witness a secret and of the consequences of violation of this obligation.
(4) In its ruling on awarding the status of protected witness, the court shall specify one or several special protection measures referred to in Article 117, paragraph 3 of the present Code and the way for protecting the information on the identity of the witness in the documents.
(5) The Court shall serve its ruling denying the request referred to in paragraph 1 of the present Article on the person who has filed the request and shall not communicate it verbally.
Keeping a protected witness’s identity secret during the criminal proceedings
(1) Before the examination begins, the protected witness shall be informed that the data referring to his identity shall not be disclosed to anyone, except to the court and the parties, i.e. the authority in charge of the proceedings, and he shall be informed about the special protection measures which shall be applied during his examination.
(2) The authority in charge of the proceedings shall warn all present persons of their obligation to keep secret all information they directly or indirectly learn about the protected witness and persons close to him and of the fact that to divulge this secret constitutes a criminal offense. This warning shall be entered in the record together with the names and surnames of all present persons.
(3) The authority in charge of the proceedings shall forbid any question the answer to which might directly or indirectly disclose the identity of the protected witness.
(4) The protected witness shall sign the record using his pseudonym.
(5) Exceptionally, in especially justified cases, if the authority in charge of the proceedings assesses that the life, health or freedom of the witness have been seriously threatened and that the witness is convincing, the defendant and his lawyer may be denied temporarily and at the latest until the scheduling of the trial all or some information about the identity of the protected witness.
(6) The defendant and his lawyer must be given the opportunity in the proceedings to contest the justifiability of the measure referred to in Article 117, paragraph 3 of the present Code.
Keeping the identity of a protected witness secret in the documents
(1) Data on the identity of a protected witness and persons close to him as well as of some other facts that may directly or indirectly lead to the disclosure of their identities shall be placed in a special envelope bearing the marking “witness protection – official secret – confidential,” sealed by the official seal of the court and given to the Investigative Judge for safekeeping.
(2) The sealed envelope may be opened only by the second instance court when deciding on an appeal against the decision of the first instance court that ended the criminal proceeding. The date and hour of the opening and names of the members of the trial chamber of the second instance court who are familiar with its content shall be written on the envelope. After that, the envelope shall be resealed and returned to the Investigative Judge of the first instance court.
(3) Service on a protected witness shall be made in such a way as to ensure that his identity remains a secret.
(4) Data on the protected witness and persons close to him represent an official secret which must be kept by all persons who learn it in any way and in any capacity.
Protection of data on a protected witness in criminal proceedings instituted as a
result of his testimony
In criminal proceedings instituted as a result of the testimony of a protected witness, the secrecy of information on the protected witness shall be ensured.
Appropriate implementation of some provisions on the protected witness
Provisions of Articles 117 to 121 shall apply, as appropriate, to a suspect, defendant and injured party who also appears as a witness in criminal proceedings.
THE COURSE OF PROCEEDINGS
A. CRIMINAL OFFENSE REPORT, PRELIMINARY INVESTIGATION AND NOTIFICATION OF CRIMINAL OFFENCE
PRELIMINARY INVESTIGATION AND SUBMISSION OF NOTIFICATION ON CRIMINAL OFFENCE
The activities of the police authority during preliminary investigation
(1) If there are grounds for suspicion that a criminal offense subject to ex officio public prosecution was committed, the police authorities shall be obligated to take necessary measures aimed at identifying, locating and capturing the perpetrator of the criminal offense, preventing the perpetrator or accessory after the fact from going into hiding or fleeing, discovering and securing traces of the criminal offense and objects which may serve as evidence as well as gathering all information which could be useful for successfully conducting criminal proceedings.
(2) In order to fulfill the duties referred to in paragraph 1 of the present Article, the police authorities may conduct the following preliminary investigation activities: seek information from citizens; carry out the necessary inspection of the means of transportation, passengers and luggage; restrict movement of people and vehicles in a certain territory for a necessary period of time, no longer than for six hours; undertake necessary measures regarding the establishment of the identities of persons or objects; issue a wanted notice for a person or warrant for objects searched for; carry out in the presence of the authorized person an inspection of objects and premises of government authorities, enterprises, firms and other legal entities; review their documentation and seize it temporarily if necessary, as well as undertake other necessary measures and actions.
THE COURSE OF PROCEEDINGS
A. CRIMINAL OFFENSE REPORT, PRELIMINARY INVESTIGATION AND NOTIFICATION OF CRIMINAL OFFENCE
PRELIMINARY INVESTIGATION AND SUBMISSION OF NOTIFICATION ON CRIMINAL OFFENCE
Gathering evidence from citizens in preliminary investigation
(1) In order to collect information about criminal offense and a perpetrator and other relevant circumstances pertaining to the criminal offense, the police authorities may also summon citizens. The reason for the summoning and a capacity in which a citizen is summoned must be noted in the summons. A person who fails to appear may be brought in by force only if he was warned of it in the summons.
(2) In the course of application of the provisions of the present Article the police authorities may not interrogate citizens in the capacity of a defendant or witness, except in the case referred to in Articles 258, 260 and 261 of the present Code.
(3) Collecting information from the same person may last as long as it is necessary to obtain the necessary information, but not longer than four hours.
(4) Information from citizens must not be collected by the use of force, nor by means of deception or exhaustion, and the police authority must respect the personality and dignity of each citizen. If the citizen refuses to provide information he may not be detained and in this case the rule about the time limitation from the paragraph 3 of the present Article is not applicable.
(5) If summoned citizen comes with his counsel to the police premises, the police shall allow the counsel to be present while information is being given by the citizen.
(6) An official note or a record made on given information shall be read to the person who provided the information. This person may raise objections and the police authorities are obligated to note them in the official note or the record. A copy of the official note or record on given information shall be issued to the citizen upon his request.
(7) The citizen may be summoned again for collecting information on circumstances related to other criminal offense or perpetrator, but in cases of collecting information related to the same criminal offense the citizen may exceptionally be summoned only one more time for very important reasons.
The interrogation of a witness in the preliminary investigation
(1) If the police authority in the course of collecting information assesses that a summoned citizen should be interrogated as a witness, it is obligated to immediately inform of it the Public Prosecutor, who may interrogate the person in accordance with the Article 109 of the present Code.
(2) The Public Prosecutor may entrust police authority to conduct interrogation of a witness, and may be present during this interrogation.
(3) If during the course of undertaking the activity referred to in paragraph 1 of the present Article, the identity of a suspect for the criminal offense regarding which the citizen is being interrogated as a witness is known, it shall be made possible for a suspect and his defense counsel, save for cases when the danger of delay exists or when it is not possible due to other important reasons, to be present during interrogation, throughout which they question a witness ions and state their own remarks.
(4) The interrogation of a citizen as a witness must commence before the expiration of the time limitation set forth in the Article 257, paragraph 3 of the present Code, but that deadline may be extended upon the consent of the citizen.
(5) The official record shall be made on the interrogation of a witness interrogated by the Public Prosecutor or police authority and said record shall be signed by the interrogated witness. The entire course of the interrogation shall be recorded by the video and audio recording device. Audio-video recording shall be attached to the official record on the interrogation of a witness.
(6) If there is a danger that it will not be possible to interrogate a citizen in case of a trial, due to his old age, illness or other important reasons, or when the Public Prosecutor deems that it is necessary for other important reasons that an Investigative Judge conducts this activity, he shall recommend to the Investigative Judge to interrogate a citizen as a witness in accordance with Article 109 of the present Code.
(7) If the Investigative Judge fails to consent to the recommendation from Paragraph 5 of the present Article, the chamber as per Article 24 paragraph 6 of the present Code shall decide on the issue.
(8) The official record of interrogation of a witness during preliminary investigation as well as the recordings from the paragraph 5 of the present Article shall not be excluded from the record and may be used as evidence during criminal proceedings.
Gathering of information from persons in detention during the preliminary
(1) With the permission of Investigative Judge, Single Judge, i.e. the President of the Chamber, the Public Prosecutor or exceptionally police authorities in cases of duty delegated by Public Prosecutor, may collect information from persons in detention, if this is necessary for discovering or clarifying other criminal offenses and perpetrators.
(2) Information from paragraph 1 of the present Article shall be collected in the institution in which the defendant is detained at the time ordered by the Investigative Judge, Single Judge or the President of the Chamber and in his presence or the presence of a judge designated by him. Upon the request of a detainee, his defense counsel is entitled to be present during the course of this collection of information.
(3) Gathering of information shall be postponed until the defense counsel arrives, but no longer than for four hours and if within that time frame, defense counsel does not arrive, information may be collected even without the presence of the defense counsel.
Interrogation of a suspect in preliminary investigation
(1) If the police authority in the course of collecting information assesses that a summoned citizen may be deemed as a suspect, it is obligated immediately to inform him that he is considered a suspect, of a criminal offence he is charged with and the grounds for suspicion, that he does have the right to remain silent and not provide answers to the questions asked, as well as that anything he says may be used as evidence against him in the criminal proceeding. The suspect is informed of his right to retain a defense counsel who shall be present in the course of his further interrogation, that if he had retained defense counsel or in cases of mandatory professional defense he is not obligated to provide answers to questions asked without presence of the defense counsel, and shall in case of confinement (Article
264) be notified of the rights referred to in Article 5 of the present Code and be allowed to invoke the rights referred to in Article 263 paragraph 1 of the present Code.
(2) It will be made possible for the citizen who in the course of collecting information became a suspect to establish a contact with the defense counsel by telephone, or other electronic message transmitter, either directly or with a help of his family members or third person whose identity must be known, and the police authority or Public Prosecutor may assist the suspect to retain a defense counsel.
(3) Public Prosecutor or police authorities may also summon the suspect, and the summons shall contain a warning from the paragraph 1 of the present Article.
(4) In the case referred to in paragraph 1 of the present Article, the police authorities shall immediately notify the Public Prosecutor. Public Prosecutor shall request from the police authorities to postpone interrogating the suspect until his arrival and to provide him with the opportunity to interrogate the suspect, but can also delegate this interrogation to the police authority alone, and the Public Prosecutor may be present during such interrogation.
(5) If the suspect is dumb, deaf or incapable of defending himself successfully, as well as in cases he is charged with the criminal offense with the stipulated penalty of more than 5 years and does not retain a defense counsel, and the defense counsel does not appear within four hours after the suspect established a contact with him as per paragraph 2 of the present Article, Public Prosecutor or Police shall appoint a defense counsel to the suspect ex officio from the list of counsels compiled by the Public Prosecutor at the suggestion of the Attorney Bar Association.
(6) The provisions of the present Code on the interrogation of a defendant shall be applied in cases of interrogation of a suspect by the Public Prosecutor or Police.
(7) The official record shall be made on the interrogation of a suspect interrogated by the Public Prosecutor or police authority and said record shall be read to the suspect and signed by him, and all the objections made by the suspect shall also be entered into the record. The entire course of the interrogation conducted by the Police and without the presence of Public Prosecutor shall be recorded by video and audio recording device. Audio-video recording must contain the entire course of the interrogation while faces of all persons present during the interrogation must be clearly visible. The audio-video recording shall be attached to the official record on the interrogation of a suspect, and the official record of this interrogation shall not be excluded from the record and may be used as evidence during criminal proceedings.
(8) If the interrogation of a suspect was conducted by the Public Prosecutor who determined that reasonable suspicion exists that the suspect committed the criminal offense charged with, he may issue an Ruling on instigating the investigation pursuant to Article 273, paragraph 3 of the present Code.
(9) The Public Prosecutor may upon issuing a decision from the paragraph 8 of the present Article and determining that the conditions set forth in Article 264, paragraph 1 of the present Code are met, also issue an Order on temporary confinement, in which case the Public Prosecutor shall pursuant to Article 265, paragraph 1 recommend detention to the Investigative Judge. Investigative judge shall act pursuant to the provisions of Article 274 of the present Code.
(10) The provisions from Article 275 shall be accordingly applied on an Ruling on instigating the investigation issued by the Public Prosecutor pursuant to paragraph 8 of the present Article.
The interrogation of a suspect by using the device for registering physiological
reactions of the interrogated person
(1) Authorized police official may at the request or with the consent of the person that became a suspect during the collection of information pursuant to Article 260, paragraph 1 of the present Code, i.e. who was summoned pursuant to Article 260, paragraph 3 of the present Code to be interrogated as a suspect, conduct his interrogation with the use of a device for registering physiological reactions.
(2) Prior to interrogation from paragraph 1 of the present Code the suspect must be read his rights from Article 260 of the present Code, and authorized police official shall explain the method of operation of this device for registering physiological reactions and the suspect shall give his written consent to be interrogated with the use of this device prior to commencement of interrogation.
(3) If the suspect during the course of interrogation declares that he withdraws his consent the authorized police official shall stop the interrogation with the use of device for registering physiological reactions.
(4) The interrogation with the use of device for registering physiological reactions cannot be applied towards the suspect who:
1) is under the influence of alcohol or under the influence of other psychoactive substances
2) suffers from serious heart condition or severe respiratory problems
3) is under an extremely great stress
4) takes sedatives
5) shows visible signs of mental illness, permanent or temporary mental disturbance or is in another condition of illness that prevents interrogation
6) is significantly mentally incompetent
7) suffers severe physical pain
8) is pregnant or recently gave birth
(5) The interrogation with the use of device for registering physiological reactions may not be applied towards a person that has not reached the age of 16, while older minor may be interrogated only with the consent of a parent or a legal guardian, and by an expert specially trained to work with minors.
(6) After the completed interrogation referred to in paragraph 1 of the present Article, the authorized police official or Public Prosecutor may conduct interrogation from the Article 260 of the present Code.
(7) Defense counsel of the suspect, i.e. counsel of the persons subject to collection of information from Article 260, paragraph 1 of the present Code and the Public Prosecutor may be present during the interrogation referred to in paragraph 1 of the present Article, and may observe the interrogation but have no right to ask questions during the interrogation and influence its course, and as a rule they shall be in a different room that shall be connected via video link to the room where the interrogation with the use of the device for registering physiological reactions is being conducted.
(8) The whole course of interrogation from paragraph 1 of the present Article may be recorded by the video and audio recording device and in cases of such audio- video recording these recordings shall be attached to the expert report of an expert for interrogation with the use of device for registering physiological reactions.
(9) The record shall not be made on the statement given during the interrogation referred to in paragraph 1 of the present Article, as it represents integral part of the expert report of an expert for interrogation with the use of device for registering physiological reactions that cannot be used as evidence in the criminal proceeding, but has a significance as an appropriate basis for caution about the possible link of a suspect, i.e. a person subject to collection of information from Article 260, paragraph 1 of the present Code, to the criminal offense being investigated in the preliminary investigation.
THE COURSE OF PROCEEDINGS
B. PRELIMINARY PROCEEDINGS
Conduct of Public Prosecutor upon the receipt of criminal offense report or
notification by the police authorities – dismissal of the criminal offense report
or issuing an Ruling on instigating the investigation
(1) Upon receiving the criminal offense report or the police notification about committed criminal offense (Article 256), the Public Prosecutor shall examine the allegations from the criminal offense report or the notification, and shall interrogate the suspect before deciding on the report or the notification, except in the case when he had personally interrogated the suspect in a preliminary investigation in accordance with the Article 260 of the present Code, or if there is a significant danger in delay, or if he, by reviewing the interrogation report prepared by the police and the tape or other audio\video recording about it (Article 260 paragraph 7 of the present Code), finds that there is no need of interrogating suspect who had been interrogated in a preliminary investigation by the police.
(2) Exceptionally, before deciding on the criminal offense report or on the notification, the Public Prosecutor may interrogate the suspect whom he had already interrogated in the preliminary investigation, if particular circumstances of the case so request, or the repeated interrogation is necessary for gathering exculpatory evidence.
THE COURSE OF PROCEEDINGS
C. TRIAL AND JUDGMENT
PREPARATIONS FOR THE TRIAL
Examination of witnesses outside the trial
(1) A witness not yet examined who is unable to appear at the trial due to old age, long-term illness or for other reasons may be examined at his current location.
(2) The witness referred to in paragraph 1 of the present Article shall be examined by the President of the Trial Chamber or a judge-member of the Trial Chamber, or by the Investigative Judge of the court on whose territory the witness is located.
(3) The witness referred to in paragraph 1 of the present Article may also be examined in the manner referred to in Article 117, paragraph 3, item 7 hereof.
(4) The parties and the injured person shall be notified of the time and place of the examination if this is possible regarding the urgency of the proceedings. If the defendant is in detention, the President of the Trial Chamber shall decide on the need for his presence at the examination. When the parties and the injured person are present at the examination, they shall be entitled to the rights specified in Article 278 paragraph 9 hereof.
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.
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.
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: