6. Expert analysis
Order for an expert analysis
An expert analysis shall be ordered when the determination or assessment of an important fact calls for the finding and the opinion of a specialist possessing the necessary professional knowledge.
Order for the engagement of an expert witness
(1) The authority in charge of the proceedings shall order an expert analysis in writing. The order shall specify the facts for which the expert analysis is required and the persons to whom the expert analysis shall be entrusted. The order shall also be delivered to the parties.
(2) If a particular kind of expert analysis falls within the domain of a professional institution or the expert analysis can be performed within particular government authority, the task, especially if it is a complex one, shall as a rule be entrusted to such professional institution, i.e. government authority. The professional institution, i.e. government authority shall designate one or several experts to provide the expert analysis.
(3) When the authority in charge of the proceedings designates an expert witness, it shall as a rule designate one expert witness, but if the expert analysis is complicated it shall designate two or more expert witnesses.
(4) If there are at the court certain expert witnesses who have been permanently designated for some kind of expert analysis, other expert witnesses may only be designated if there is a danger in delay or if the permanent expert witnesses were prevented, or if other circumstances demand it.
(5) A person whose place of residence is abroad may be designated as an expert witness only exceptionally, when this is obviously justified by the nature of the expert analysis and, especially because of an insufficient number of domestic experts or professional institutions for the specific type of expert analysis, or if other very important circumstances demand it.
(6) Upon a written approval of the President of the Supreme Court of Serbia, an expert analysis may, under the conditions referred to in paragraph 5 of the present Article, be entrusted to a foreign professional institution, i.e. particular authority of some other state only in the case of a proceeding for a criminal offense punishable by imprisonment of more than ten years and when this is obviously justified by the particular complexity of the case, nature of the expert analysis or some other important circumstances.
Duties of an expert witness
(1) A person summoned as an expert witness shall have a duty to comply with the summons and give his findings and opinion within the time period specified in the order. The time period from the order may be extended at the request of the expert witness for justified reasons.
(2) If an expert witness who has been duly summoned fails to appear and does not justify his absence or if he refuses to perform an expert analysis, i.e. if he fails to give his findings and opinion within the time period specified in the order, he may be fined up to CSD 300,000 and in the case of a professional institution the fine may be up to CSD 3,000,000. If his failure to appear is unjustifiable, an expert witness may be compelled to appear.
(3) The chamber (Article 24, paragraph 6) shall decide on an appeal against the ruling by which a fine has been imposed.
Recusal of an expert witness
(1) A person who may not be examined as a witness (Article 103) or who has been exempted from the duty to testify (Article 104), or against whom the criminal offense has been committed may not be appointed as an expert witness, and if he has been appointed, a judicial decision may not be based on his findings and opinion.
(2) Another reason for the recusal of an expert witness (Article 44.) is also in the case of a person employed by the injured party or the defendant, or a person who has the same employer as one or both of them.
(3) As a rule, a person examined as a witness shall not be appointed as an expert witness.
(4) Where a special appeal has been allowed against the ruling denying the request for the recusal of an expert witness (Article 42, paragraph 4), the appeal shall stay the execution of the expert analysis, except where there is danger in delay.
Proceeding of expert analysis
(1) Before the beginning of the expert analysis, the expert witness shall be instructed that he has a duty to study the object of the expert analysis, indicate precisely whatever he observes and finds and give an unbiased opinion thereon in accordance with the rules of science and professional expert analysis. He shall be warned in particular that false testimony is a criminal offense.
(2) The expert witness shall be requested to take an oath before the expert analysis. Before the expert analysis, a permanent expert witness shall be only reminded of the oath already taken.
(3) Prior to the trial, an expert witness may take an oath only before the court and only where there is a danger that he might fail to appear at the trial because of illness or some other reason. The reason why he has taken an oath at that time shall be entered in the record.
(4) The text of the oath goes as follows: “I swear by my personal and professional honor that I shall perform my expert analysis conscientiously and to the best of my
knowledge and that I shall state my findings and opinion accurately and completely.”
(5) The authority in charge of the proceedings shall direct the expert analysis, indicate to the expert witness the objects he is to inspect, ask him questions and, if necessary, request explanations regarding his findings and opinion.
(6) The expert witness may be provided with clarifications and may be allowed to inspect the case file. The expert witness may propose that evidence be collected or that objects and data material to his analysis and opinion be secured. If he attends a site inspection, a reconstruction or some other evidentiary action, the expert witness may propose that specific circumstances be clarified or that the person being examined be asked specific questions.
Examination of the objects of expert analysis
(1) The expert witness shall examine the objects of the expert analysis in the presence of the authority in charge of the proceedings and the recording clerk, except where an extensive examination is necessary, or where the examination is conducted in a professional institution, i.e. government authority, or where ethical considerations render it inappropriate.
(2) If an analysis of a specific substance is necessary in order to arrive at an expert analysis, the expert witness shall be given, if possible, a sample of this substance and the remainder shall be kept in case later analyses appear necessary.
Entry of findings and opinions in the record or subsequent filing of written findings
Expert’s findings and opinion shall immediately be entered in the record. The expert witness may be allowed to submit his findings and opinion in writing within a prescribed period of time determined by the authority in charge of the proceedings.
Expert analysis by a professional institution or government authority
(1) If an expert analysis is entrusted to a professional institution or a government authority, the authority in charge of the proceedings shall issue a warning that a person referred to in Article 129 of the present Code or a person who for some other reason provided for in the present Code is exempt from being an expert witness may not participate in giving findings and opinions, as well as warning them of the consequences of presenting a false finding and opinion.
(2) The professional institution, i.e. government authority shall be provided with the material necessary for the expert analysis, and, if necessary, shall proceed in accordance with provisions under Article 130, paragraph 4 of the present Code.
(3) The professional institution, i.e. government authority shall present its findings and opinion in writing, signed by the persons who carried out the expert analysis.
(4) The parties may request from the head of the professional institution i.e. government authority the names of the experts who will perform the expert analysis.
(5) Provisions under Article 130, paragraphs 1 to 5 of the present Code shall not be applied when the expert analysis has been entrusted to a professional institution, i.e. government authority. The authority in charge of the proceedings may request the professional institution or government authority to provide explanations regarding their findings and opinion.
Record of the expert analysis and right to inspect it
(1) The record of the expert analysis or the written result of the findings and opinion shall indicate the name, occupation, professional training and specialty of the expert witness who performed the analysis.
(2) When the expert analysis is completed in their absence, the parties and the defense lawyer shall be notified that the expert analysis was completed and that they may inspect the record of the expert analysis, or the written findings and opinion.
Additional expert analysis
If the opinion of an expert witness contains contradictions or deficiencies, or if a reasonable suspicion arises about the accuracy of the presented opinion, and if these deficiencies or suspicion cannot be removed by a new examination of the expert witnesses, the opinion of other expert witnesses shall be sought or a new expert analysis carried out by other expert witnesses.
Post mortem examination and autopsy
(1) A post mortem examination and autopsy shall always be performed when there is a suspicion or it appears obvious that death was caused directly or indirectly by a criminal offense or is in connection with the commission of a criminal offense. If the body has been buried, an exhumation shall be ordered to view the body and perform an autopsy.
(2) Before the examination and post mortem of a body, and especially in order to assess whether there is reason to suspect that the person died as a result of a criminal offense, the authority in charge of proceedings may request the professional opinion of the doctor who has physically examined the body for the purpose of establishing the cause and time of death.
(3) In carrying out an autopsy, special measures shall be taken to establish the identity of the body and for this purpose, information on its external and internal physical characteristics shall be described in particular.
(4) When necessary, professional and scientific identification methods shall be used – fingerprinting of the body, analysis of a DNA sample and comparison of the
obtained DNA profile with the DNA profile of a missing or other person, blood relatives of the person thought that he might be identified and, if necessary, other analyses and other professional and scientific methods with the aim of establishing the identity of the body.
Post mortem examination and autopsy of a body outside an institution and recusal
of the doctor who treated the deceased
(1) Whenever an expert analysis is conducted outside a professional institution, the post mortem examination and autopsy of the body shall be performed by one, or if necessary, two or more forensic doctors. The Public Prosecutor or Investigative Judge assigned to the preliminary investigation or investigation, i.e. the President of the Trial Chamber president after the conclusion of the investigation or after an indictment has been raised, shall direct this expert analysis and shall enter the findings and opinion of the expert witness in the record.
(2) The doctor who treated the deceased cannot be designated as an expert witness. The doctor who treated the deceased may be examined as a witness during the autopsy in order to give explanations about the course and circumstances of the disease.
Contents of the expert witness’s opinion and his obligations during the post mortem
examination and autopsy of a body
(1) In giving their opinion, the expert witnesses shall indicate in particular the immediate cause of death, what brought that cause about and the time of death.
(2) If an injury is found on the body, the examination should establish whether the injury has been inflicted by someone else and, if so, with what, how, how long before death occurred and whether that injury caused death. If several injuries are discovered on the body, the examination should establish whether each one was inflicted by the same instrument and which of them caused death, and in case of several fatal injuries, which one or which of them by their combined effect caused death.
(3) In the case provided for in paragraph 2 of the present Article it should be established in particular whether death was caused by the very type and general nature of the injury, by the personal characteristics or the particular condition of the injured person, by accidental circumstances or by circumstances in which the injury was inflicted. It should also be determined whether timely assistance might have prevented death from occurring.
(4) The expert witness has the obligation to pay attention to any biological traces found (blood, saliva, sperm, urine, etc.), to describe and preserve them for the purpose of biological analysis, if ordered.
Post mortem examination and autopsy of a fetus and newborn child
(1) During a post mortem examination and autopsy on a fetus, its stage of development, its capacity to survive outside the womb and the cause of its death should be established.
(2) During a post mortem examination and autopsy on a newborn child, it must be established in particular whether the baby was delivered alive or dead, if he was capable of living, how long he lived, when he died and the cause of death.
Suspicion that death was caused by poisoning
(1) If poisoning is the suspected cause of death, suspicious substances (blood, urine, vitreous body fluid, organs of the body, etc.) which have been found in the body or elsewhere shall be sent for expert analysis to an institution in charge of carrying out toxicological research.
(2) In analyzing suspicious substances, the expert witness shall focus in particular on establishing the kind, quantity and effect of the poison discovered, and in case of
an analysis of substances found in the body, he shall also establish the quantity of the poison used, wherever possible.
(3) The institution in which the toxicological analysis is being carried out shall have the obligation to keep the remainder of the analyzed material in the appropriate way for the purpose of another analysis, or repeated or additional analyses, if ordered.
Expert analysis of bodily injuries
(1) The expert analysis of bodily injuries is as a rule carried out by a physical examination of the injured person, but if this is not possible or necessary, as an exception, it is conducted on the basis of medical documentation or other information in the files.
(2) After the expert witness describes the injuries exactly, he shall give an opinion, especially on the nature and severity of each individual injury and their total effect with regard to their nature and the special circumstances of the case, the usual type of effect of these injuries, their specific effect in the particular case, the instrument used in inflicting the injuries and the manner of their infliction.
(3) In the expert analysis, the expert witness has the duty to act in accordance with the provisions under Article 138, paragraph 4 of the present Code.
Expert analysis of the defendant’s mental state
(1) In case of suspicion that the mental competence of the defendant has been lost or diminished, the expert analysis of the defendant’s mental state shall be ordered.
(2) If the expert witness believes that longer observation is necessary, the defendant shall be sent to an appropriate health care institution for observation. The relevant decision is made by the Investigative Judge, Individual Judge or the Trial Chamber. The observation may be extended and last for more than two months only upon a substantiated proposal of the manager of the health care institution, after the receipt
of the expert witness’s opinion, but it may not last longer than six months under any circumstances.
(3) The defendant and his defense lawyer may appeal the decision referred to in paragraph 2 of the present Article within 24 hours after the moment when the decision was served on the defendant or his defense attorney. The Chamber referred to in Article 24, paragraph 6 of the present Code shall decide on the appeal within 48 hours and if this Chamber has already rendered the ruling which is subject to an appeal, the Ruling is then made by the Chamber of the directly superior Court. The appeal shall not stay the execution of the ruling.
(4) If the expert witnesses determine that the defendant has a mental disorder, they shall establish the nature, type, degree and duration of the disorder and present their opinion on the past and present effects of such mental state on the perception and actions of the defendant, his competence and will and if and to what extent the mental disorder existed at the time of commission of the criminal offense.
(5) If a defendant, who is in detention, is to be sent to a health care institution, the Investigative Judge, Individual Judge or the President of the Trial Chamber shall inform this institution about the reasons due to which this person has been detained in order to take the necessary measures to ensure the purpose of the detention.
(6) The time spent in the health care institution shall be included in length of the defendant’s detention or sentence, if imposed.
Physical examination of a suspect or defendant
(1) A physical examination of a suspect or defendant shall be conducted without his consent if this is necessary to establish facts of importance for the criminal proceedings. The physical examination of other persons may be conducted without their consent only if there is a need to establish whether a particular trace or consequence of a criminal offense can be found on their bodies.
(2) Taking of a blood sample and other medical steps which, under the rules of medicine, are necessary for the purpose of analyzing, identifying persons and establishing other facts of importance for criminal proceedings may be carried out
without the consent of the person who is to be examined, except if this might be detrimental to his health.
(3) Samples of saliva may always be taken for the purpose of conducting a DNA analysis, whenever this is needed in order to identify a person, or in order to make a comparison with other biological traces and other DNA profiles. This neither requires the consent of the person in question, nor is it regarded as an activity that might be detrimental to one’s health.
(4) Activities referred to in paragraphs 1, 2 and 3 of the present Article shall be taken only upon the order of the court having jurisdiction, except in the case referred to in Article 255, paragraph 10 of the present Code.
(5) No medical interventions may be carried out or substances given to a suspect, defendant or witness that might affect their conscience and will during their testimonies.
Expert audit of business books
(1) When an expert audit of business books is necessary, the authority in charge of the proceedings shall instruct the expert witness as to the aim and scope of the audit and the facts and circumstances which have to be ascertained.
(2) If an expert audit of business books of an enterprise or entrepreneur requires that the accounts should first be regularized, the costs of such task shall be borne by the person who owns the business books.
(3) The ruling on regularizing accounts shall be rendered by the authority in charge of the proceedings, upon a written and substantiated report by the expert witness appointed to examine the business books. The ruling shall also specify the amount to be deposited with the court by the enterprise, some other legal person or entrepreneur as an advance on the costs entailed in regularizing the accounts. No appeal shall be permitted against this ruling.
(4) After the accounts have been regularized, the authority in charge of the proceedings shall, on the basis of the report of the expert witness, render a ruling by
which it shall determine the amount of the costs incurred thereby and order the person whose accounts were the subject of regularization to pay this amount. This person may appeal against the decision on refunding the costs. The chamber of the first instance court (Article 24, paragraph 6) shall decide on the appeal.
(5) The payment of the costs and remuneration, if their amount has not been advanced, shall be credited to the authority that has already paid the costs and remuneration in advance to the expert witness.
(6) Before the expert analysis referred to in paragraph 1 of the present Article, an inventory of business books and other business documents in connection with business books shall be made in the presence of the Public Prosecutor or authorized police official.
SPECIAL INVESTIGATIVE TECHNIQUES
6. Examination of cooperating witnesses
A person who may become a cooperating witness
(1) The Public Prosecutor may propose to the court to examine in the capacity of a witness a person for whom there are grounds for suspicion that he is a member of a criminal organization and who has explicitly admitted to this (hereinafter referred to as: cooperating witness), against whom an order of inquiry has been adopted or a direct indictment has been raised for an organized crime offense referred to in Article 21 of the present Code, which he has confessed in its entirety and his confession is corroborated by other evidence.
(2) In order for a person referred to in paragraph 1 of the present Article to become a cooperating witness, he must satisfy the following conditions:
1) that this is opportune in view of the nature and circumstances of the criminal offense for which he is suspected of having committed;
2) that there is reason to expect that the importance of his testimony for detecting, proving or preventing other criminal offenses by the criminal
organization shall be greater than the damaging effects of the criminal offense which he is suspected of committing;
3) that in view of the existing facts, there is reason to believe that the determination of important facts in criminal proceedings would be impossible or very difficult if the cooperating witness were not examined.
(3) Under the condition referred to in paragraph 1 of the present Article a person against whom an order of inquiry has been adopted or a direct indictment has been issued for a criminal offense against the Constitutional order and security of the Republic of Serbia and SCG, or a criminal offense against humanity and other goods protected by international law, which has been committed by three or more persons who have organized to commit criminal offenses, may become a cooperating witness.
Obligations of a cooperating witness
(1) Before the proposal referred to in Article 156, paragraph 1 of the present Code has been made, the Public Prosecutor shall instruct the cooperating witness regarding his obligations referred to in Article 109, paragraph 2 and Article 113 of the present Code. The cooperating witness may not be exempted from the obligation to testify referred to in Article 104 of the present Code, and from the obligation to respond to certain questions referred to in Article 106 of the present Code.
(2) The Public Prosecutor shall include in the record, which shall also be signed by the cooperating witness, the instruction referred to in paragraph 1 of the present Article, cooperating witness’s answers and his statement saying that he will testify about everything he knows and that he will not omit anything. The record shall be attached to the proposal to the court referred to in Article 156, paragraph 1 of the present Code.
Joinder of cases in the case of examination of a cooperating witness
(1) If a criminal offense report or notification of criminal offense has been submitted against a person who the Public Prosecutor believes should be examined as a cooperating witness, the Public Prosecutor shall, before filing a motion for the examination of this person as a cooperating witness, render a Ruling on Instigating of Investigation or raise an direct indictment for an act or organized crime against this person (Article 21) and request a joinder of this proceeding with the proceeding in which this person should be examined as a cooperating witness.
(2) If prosecution has already started against the person whom the Public Prosecutor has proposed as a cooperating witness, and if joint proceedings are not already held, the Public Prosecutor shall request the joinder of criminal proceedings against this person with the proceedings in which he should be examined as a witness.
Persons who may not become cooperating witnesses
A person for whom there are grounds for suspicion that he has organized a criminal group on his own or together with other persons in such a way that his contribution has been considerable, or a person who led a criminal offense group in a long period of time may not be a cooperating witness.
Ruling on the Public Prosecutor’s motion
(1) The Chamber referred to in Article 24, paragraph 6 of the present Code shall decide on the proposal of the Public Prosecutor referred to in Article 156, paragraph 1 of the present Code during the investigation and until the beginning of the trial, and at the trial this shall be done by the Chamber before which the trial is held. The Chamber shall decide to grant or to deny the Public Prosecutor’s motion, and shall notify of its decision within 24 hours the party to whom the proposal refers and the victim of the criminal offense of which this person is suspected. In the ruling granting the Public Prosecutor’s motion, the Chamber shall note that the proposed person has been granted the status of cooperating witness and, together with this ruling, it shall also render a ruling on the joining of criminal proceedings in accordance with Article 158, paragraph 1 of the present Code.
(2) The Chamber session shall be attended by the Public Prosecutor, person who has been proposed to become a cooperating witness and his defense attorney and the session shall be closed to the public.
(3) The Public Prosecutor may appeal the ruling referred to in paragraph 1 of the present Article under which his proposal is rejected, within 48 hours after having received the ruling. The decision on the appeal shall be rendered by a higher court within three days upon the receipt of the appeal and documents from the first- instance court. The higher court may dismiss the complaint as untimely or not permitted, grant it when it establishes that there exist conditions referred to in Article 156 of the present Code or deny it as unfounded. If the higher court grants the appeal, it shall state in its ruling that the proposed person has been granted the status of cooperating witness.
(4) If it grants the motion of the Public Prosecutor, the Chamber shall order the separation from the documents of records and official notes on the previous statements of the cooperating witness which he has given in the capacity of a suspect or defendant and these may not be used in the criminal proceedings, except in the case referred to in Article 164 of the present Code.
Appeal of the injured person
The person injured by the criminal offense which cooperating witness is suspected of committing may file an appeal within 48 hours upon receiving the ruling.. The decision on the appeal shall be brought by a higher court within three days after the receipt of the appeal and documents of the first-instance court. The higher court may dismiss the appeal as untimely or not permitted, grant it when it determines that conditions referred to in Articles 156 and 159 of the present Code have not been met or deny it is as unfounded.
Examination of witnesses in closed sessions
(1) The examination of a cooperating witness shall be closed to the public, unless the Chamber, upon the proposal of the Public Prosecutor and with the consent of the witness, decides otherwise.
(2) Before the decision referred to in paragraph 1 of the present Article is brought, the chamber president shall inform the cooperating witness in the presence of his defense attorney about the proposal of the Public Prosecutor and inform him about his right to be examined in a closed session. The cooperating witness’s declaration stating that he consents to being examined in the open court shall be included in the record.
Fulfillment of obligations of the cooperating witness
(1) A cooperating witness who has testified before the court in accordance with his obligations referred to in Article 157 of the present Code shall be sentenced within the limits envisaged in the Criminal Code for the act of organized crime which represents the subject matter of the proceedings, which he has confessed and which is proved to have been committed by him, and such a sentence shall then be reduced by half.
(2) The judgment referred to in paragraph 1 of the present Article may be appealed only as far as the sentence is concerned by the cooperating witness, all persons who may appeal to the benefit of the defendant in keeping with Article 388, paragraph 2. of the present Code, as well as the Public Prosecutor to the benefit of the cooperating witness.
(3) At the proposal of the Public Prosecutor, the court, taking into account the importance of the evidence presented by the cooperating witness, behavior of the cooperating witness before the court, his previous life and all other relevant circumstances, may exceptionally declare the cooperating witness guilty, but decide not to impose a sentence on him. This decision may not be appealed.
Failure of the cooperating witness to fulfill his obligations
(1) If the cooperating witness fails to act in keeping with his obligations referred to in Article 157 of the present Code, he shall lose the status of cooperating witness, prosecution against him shall continue, and he shall receive a sentence within the limits envisaged in the Criminal Code.
(2) Once a person referred to in paragraph 1 of the present Article loses the status of cooperating witness, the records of all testimonies he has given as a cooperating witness shall be struck out from the case files and they may not be used as evidence in criminal proceedings.
(3) If the cooperating witness commits another act of organized crime offense (Article 21) before the final end of proceedings, the Public Prosecutor shall raise the indictment for this criminal offense and request the joinder of criminal proceedings, and this person shall lose the status of cooperating witness and receive a sentence within the limits envisaged by the Criminal Code.
(4) If an act of organized crime previously committed by the cooperating witness is detected during the proceedings (Article 21) the Public Prosecutor shall act in keeping with the provisions of Article 156 of the present Code.
(5) If a previous criminal offense committed by the cooperating witness, who does not represent an act of organized crime offense (Article 21), is detected in the proceedings, the Public Prosecutor shall act in keeping with the general rules of the present Code.
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.
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: