1. SEARCH OF DWELLINGS, ARTICLES AND PERSONS
Reasons for Search of dwellings, other premises, movable articles and persons
(1) search of dwellings and other premises of the accused persons or other persons as well as their movable articles outside the dwellings may be carried out if grounds for suspicion exist that in the course of search the perpetrator would be caught or that traces of the criminal offence or objects relevant to the criminal procedure would be found.
(2) The search of movable articles within the meaning of Paragraph 1 of this Article shall include the search of computers and similar devices for automatic data processing to which the computer is connected. At the request of the Court, the person using a computer shall enable access to the computer and removable storage used for storing information relative to the object of the search (discs, USB flash discs, USB hard discs, diskettes, tapes and alike), as well as give necessary information on the use of the computer. Persons who refuse to do so although reasons referred to in Article 111 of the present Code do not exist may be punished pursuant to Article 85 paragraph 3 of the present Code.
(3) search of persons may be carried out if grounds for suspicion exist that in the course of search traces and objects relevant to the criminal procedure would be found.
Search Warrant and Request for a search warrant
(1) A search warrant shall be issued by the court at the request of the State Prosecutor or at the request of an authorized police officer granted authorization by the State Prosecutor, and it shall be enforced by the police.
(2) A request for the issuance of a search warrant shall be submitted in writing, and only exceptionally orally in line with Article 78 of the present Code.
Contents of the Request for a Search Warrant
The request for issuing a search warrant shall contain :
1) the name of the applicant,
2) the name of the court to which the request is addressed,
3) facts indicating the likelihood that reasons for search exist referred to in Article 75 of the present Code,
4) the first and the last name, and, if necessary, a description of the person to be apprehended during the search of dwellings or other premises, or expected traces and a description of objects that should be found by the search,
5) the designation of the location of the search, by indicating the address, information about the owner or the person in possession of the objects, dwellings or other premises and any other information of importance to establish the identity, and
6) signature of the applicant.
Verbal Request for a Search Warrant
(1) A verbal request for issuing a search warrant may be filed when risk of delay exists.
(2) The request from paragraph 1 of this Article may be communicated to the investigating judge also by telephone, radio or other means of electronic communication.
(3) When a verbal request for issuing a search warrant has been submitted, the investigating judge shall record the further course of conversation. If a voice recording device has been used or stenographic records kept, a transcription thereof shall be made within 24 hours, the identity of which shall be certified and kept with the original records.
(1) When the investigating judge receives the request for issuing a search warrant, if s/he agrees with the request, s/he shall immediately issue a search warrant containing :
1) the information provided for in Article 77 of the present Code ;
2) that the search will be conducted by the police ;
3) an instruction that the search is being done in accordance with Article 80 of the present Code ;
4) signature of the judge and the official stamp of the court.
(2) If the investigating judge determines that the request for issuing a search warrant is not justified, s/he shall immediately request the panel referred to in Article 24, paragraph 7 of the present Code to decide on the request. The panel shall make a decision within 24 hours.
Search Upon a Court Order
(1) Before the commencement of the search, the search warrant shall be given to the person to be searched or whose premises are to be searched. Before the search, the persons against whom the search warrant has been issued shall be asked to voluntarily hand over the wanted person or objects. Those persons shall be instructed that they are entitled to retain a lawyer i.e. a defense attorney who may be present during the search. If a person against whom a search warrant has been issued demands the presence of a lawyer or defense attorney, the commencement of the search shall be postponed until his/her arrival, but for no more than two hours.
(2) The search may commence without previously presenting a warrant or without a previous invitation to hand over the person or objects and without an instruction on the right to a defense attorney or lawyer, if it is necessary in order to prevent a criminal offence from being committed, for the purpose of outright capture of a criminal offender, saving of persons and property or if the search is to be carried out in public premises.
(3) The search shall be carried out by day from 6:00h until 21:00h. The search may be carried out by night as well, if it was commenced during the day and was not completed or if it was explicitly ordered so by the court because of risk of delay or if reasons referred to in Article 83 paragraph 1 of the present Code exist.
Rules of Search
(1) The occupants of a dwelling or other premises shall be summoned to attend the search, and if they are absent, their representative, adult members of his family or neighbors shall be summoned to attend.
(2) Premises that are locked, furniture and other things shall be opened by force only if their occupant is absent or if the occupant is refusing to open them voluntarily. Unnecessary damage shall be avoided in the course of opening.
(3) The search of a dwelling or person shall be attended by two citizens of age in the capacity of witnesses, unless reasons referred to in Article 83 paragraph 4 of the present Code exist. The search of persons shall be carried out by a person of the same sex, and a person of the same sex shall be taken as a witness. Before the commencement of the search, witnesses shall be admonished to pay attention to the course of the search, as well as that they have the right to raise their objections before the signing of the record on the search, should they consider that the contents of the record are incorrect.
(4) When conducting a search of premises of state authorities, enterprises or other legal entities, a head of such authorities, enterprises or other legal entities shall be summoned to be present at the search.
(5) Search and inspections of military facilities shall be carried out upon the permission of the competent military officer and in the presence of a person designated by him/her.
(6) If a search needs to be carried out aboard a ship or aircraft the search warrant shall be delivered to the captain of the ship or person in charge of the aircraft. The captain of the ship or the person in charge of aircraft, or a person designated by them shall witness the search.
(7) The search of dwellings and persons shall be carried out carefully, while respecting human dignity and the right to privacy, without unnecessary disturbance of the house rules and without causing nuisance to the citizens.
(8) A record shall be made on the search signed by the person whose premises have been searched or who has been searched and by persons whose attendance at the search is mandatory. The course of the search may be audio and audio-visually recorded while paying special attention to the places where certain persons and objects have been found. The venue of the search and its individual parts, as well as the persons or objects found during the search may be photographed. Audio or audiovisual recordings and photographs shall be enclosed to the record on the search and may be used as evidence.
(9) Only those objects and documents that relate to the purpose of the search shall be provisionally seized in the course of the search. The records shall include and clearly specify the objects and documents that have been seized, which shall also be indicated in a receipt to be given immediately to the person from whom the objects or documents have been seized.
Seizure of Other objects on basis of a search warrant
(1) If a search of a dwelling or a person reveals objects that are unrelated to the criminal offence for which the search was ordered, but indicate the commission of another criminal offence that is prosecuted by virtue of office, they shall be described in the record and provisionally seized, and a receipt confirming seizure shall be issued immediately.
(2) If the search was not attended by the competent State Prosecutor, s/he shall immediately be informed about the discovery of objects referred to in paragraph 1 of this Article for the purpose of initiating criminal procedure. These objects shall be returned immediately if the State Prosecutor establishes that there are no grounds to initiate criminal proceedings and if no other legal grounds for the seizure of these objects exist.
(3) If certain objects are seized during the search of computers and similar devices for automatic data processing, they shall be immediately returned to their users, if they are not needed for further procedure. Personal information obtained during the search may be used only for the purposes of conducting a criminal procedure and shall be erased as soon as that purpose ceases.
Entering Another Person's dwellings without a search warrant and searching
(1) An authorized police officer may enter another person's dwelling or other premises without a search warrant and, if necessary, carry out the search, provided that the tenant so requires or if it is necessary or for the purpose of preventing the commission of a criminal offence or outright capturing a criminal offender or for the purpose of saving people and property.
(2) The tenant, if present, shall have the right to object to the procedure of the authorized police officer referred to in Paragraph 1 of this Article. The authorized police officer shall inform the tenant about this right and shall include his/her objections in the receipt on entering the dwelling or in the search record.
(3) In case referred to in Paragraph 1 of this Article, if another person's dwelling was only entered without search, the tenant shall be issued a receipt stating the reason for entering the dwelling or other premises as well as the tenant's objections. If search was also carried out in another person's dwelling or other premises, the procedure shall be the one referred to in Article 81, paras. 3, 7 and 8 and Article 82, paragraph 1 of the present Code.
(4) A search may be carried out without the presence of witnesses if it is not possible to arrange their presence immediately, and risk of delay exists. The reasons for the search without the presence of witnesses shall be specified in a record.
(5) Authorized police employees may, without a search warrant and without the presence of witnesses, carry out a search of persons when enforcing a warrant on compulsory apprehension or when depriving of liberty, if suspicion exists that the person owns weapons or dangerous tools, or if suspicion exists that the person would reject, hide or destroy the objects that need to be taken from him/her as evidence in a criminal procedure.
(6) If there are grounds for suspicion that criminal offence was committed that is prosecuted by virtue of office, authorized police employees may, without a court warrant and without the presence of witnesses, carry out the search of transport means, passengers, luggage and other movable objects, with the exception of things referred to in Article 75 paragraph 2 of the present Code.
(7) When conducting a search without a search warrant, authorized police officers shall immediately submit thereon a report to the investigative judge.
Legally invalid evidence
If the search was conducted in contravention to the provisions of Article 76, Article 80 Paragraph 1, Article 81 Paragraph 3 and Article 83 of the present Code, search records and evidence collected during the search may not be used as evidence in the course of criminal procedure.
2. PROVISIONAL SEIZURE OF OBJECTS, PROPERTY GAIN AND PROPERTY
Provisional Seizure of Objects and Property Gain
(1) Objects which have to be seized according to the Criminal Code or which may be used as evidence in the criminal procedure, shall, at the proposal of a State Prosecutor, and by way of a court ruling, be provisionally seized and delivered for safekeeping to the court or their safekeeping shall be secured in another way.
(2) The ruling on the provisional seizure of objects shall contain :
1) the name of the court rendering the ruling,
2) legal grounds for the seizure of objects,
3) indication and description of objects that are to be provisionally seized, and
4) the first and the last name of the person from whom the object is provisionally seized and the place at or in which a certain object should be provisionally seized.
(3) Anyone who is in possession of objects referred to in paragraph 1 of this Article shall hand them over. Persons refusing to hand over the objects may be punished by a fine of up to €1.000, and in case of further rejection, they may be detained. Detention shall last until the object is handed over or until the criminal procedure is completed, and at the longest for two months. The procedure as regards a person in an official capacity or a responsible person in a public authority, enterprise or another legal entity shall be the same.
(4) Provisions of paras. 1 and 3 of this Article shall be applied to the data saved in devices for automatic or electronic data processing and media wherein such data are saved, which shall, upon the request of the court, be handed over in a legible and comprehensible form. The court and other authorities shall abide by the regulations on maintaining data secrecy.
(5) The following objects cannot be provisionally seized :
1) papers and other documents of public authorities, publication of which would violate the obligation to keep data secret in terms of regulations laying down data secrecy, until the competent authority decides otherwise ;
2) the accused persons' letters to their defense attorney or the persons referred to in Article 109, paragraph 1, items 1, 2 and 3 of the present Code unless the accused decide to hand them over voluntarily ;
3) recordings, extracts from the register and similar documents that are in possession of persons referred to in Article 108, item 3 of the present Code and that are made by such persons in relation to the facts obtained from the accused person while performing their professional service, if publication thereof would constitute violation of the obligation to keep a professional secret.
(6) The prohibition referred to in paragraph 5, item 2 of this Article shall not apply to the defense attorney or persons exempted from the duty to testify pursuant to Article 109, paragraph 1 of the present Code if reasonable doubt exists that they aided the accused parties in committing the criminal offence or they helped them after the criminal offence was committed or if they acted as accomplices by virtue of concealment.
(7) The ruling referred to in paragraph 3 of this Article shall be made by the investigative judge during the investigation and by the Chair of the Panel after an indictment has been brought.
(8) The panel referred to in Article 24, paragraph 7 of the present Code shall decide on the appeal against a ruling referred to in paras. 2 and 3 of this Article. An appeal against the ruling on imprisonment shall not stay the execution.
(9) Authorized police employees may seize objects referred to in paragraph 1 of this Article when proceeding pursuant to Articles 257 and 263 of the present Code or when executing a court warrant.
(10) When seizing objects it shall be indicated where they were found and they shall be described, and where appropriate, their identity shall be established in another way as well. A receipt shall be issued for the seized objects.
(11) Measures referred to in paragraph 3 of this Article may not be enforced against the suspects or accused parties or persons relieved of duty to testify.
(12) Provision of Article 481 of the present Code shall be applied on the provisional seizure of property gain.
Denial of Disclosure or Issuing of Files
(1) State authorities may refuse to disclose or issue their files and other documents if they deem that disclosure of their contents would cause damage to the public interests, with the exception of case referred to in Article 90 of the present Code. If disclosure or handover of files and other documents was denied, the final decision shall be made by the panel referred to in Article 24, paragraph 7 of the present Code.
(2) Enterprises or other legal entities may request that data related to their business operations are not publicly disclosed. The panel referred to in Article 24 paragraph 7 of the present Code shall decide on the request.
Inventory and Sealing of Files
(1) An inventory of provisionally seized files that may be used as evidence shall be made. If that is not possible, the files shall be put in a cover and sealed. The owner of the files may put his/her seal on the cover.
(2) The person from whom the files have been seized shall be summoned to attend the opening of the cover. If this person fails to appear or is absent, the cover shall be opened, the files examined and a list of them made in his/her absence.
(3) During the examination of files, attention shall be paid that their contents are not be disclosed to unauthorized persons.
Provisional Seizure of Letters, Telegrams and Other Parcels
(1) The investigating judge may order, upon the motion of the State Prosecutor, that postal agencies, other enterprises and legal entities registered for the transfer of information retain and deliver to him/her, with the acknowledgement of receipt, letters, telegrams and other parcels sent to the suspect or accused person or sent by them if circumstances exist due to which it is reasonable to expect that these parcels would serve as evidence in the procedure.
(2) The investigating judge shall open the consignments in the presence of two witnesses . When opening, care shall be taken not to damage the seals, while the covers and addresses shall be preserved. A record shall be made on the opening.
(3) Investigating judges shall inform State Prosecutors about the contents of letters, telegrams and other parcels and upon their request provide them with copies thereof and of the record referred to in paragraph 2 of this Article.
(4) If the interests of the procedure allow so, the suspects or the accused parties, i.e. the addressees may be fully or partially informed on the contents of the shipment, which may be also delivered to them. If the suspects or the defendants are absent, the shipment shall be returned to the sender unless that is not in breach of interests of the procedure.
Obtaining Information from the Competent Public Authority for Temporary Suspension of Monetary
(1) State Prosecutors may request that the competent public authority performs control over the financial operations of certain persons and to submit them documentation and information which can be used as evidence of a criminal offence or of the proceeds of crime, as well as information about suspicious monetary transactions.
(2) State Prosecutors may request that the competent authority or organization temporarily suspends the payment, or the issuing of suspicious money, securities and objects, at the longest for six months.
(3) State Prosecutors shall specify in the motion referred to in paragraphs 1 and 2 of this Article in more detail the contents of measure of action they are requesting.
(4) At the proposal of State Prosecutors, the court may issue a ruling ordering a temporary suspension of a certain monetary transaction when reasonable doubt exists that it constitutes a
criminal offence or that it is intended for the commission or concealment of a criminal offence or proceeds of crime.
(5) By way of the ruling referred to in paragraph 4 of this Article, the court shall order that funds in check or cash form be provisionally seized and deposited into a special account where they will be kept until the completion of the proceedings with final force and effect or until conditions for their return are met.
(6) An appeal against the ruling referred to in paragraph 4 of this Article may be filed by the parties and the defense attorney, or the owner of funds or his/her proxy or the legal person from whom the funds have been provisionally seized. Such an appeal shall be decided upon by the panel referred to in Article 24, paragraph 6 of the present Code.
Provisional Seizure of Property Gain and Financial Investigation for the Purpose of Extended Seizure of
(1) In the procedure conducted for the criminal offence for which the Criminal Code provides for a possibility of extended seizure of property from the sentenced persons, their legal successors or persons to whom the sentenced persons have transfered their property who are not able to prove the legality of its origin, and grounds of suspicion exist that the property in question was illicitly acquired, the court may, at the proposal of a State Prosecutor, order the property to be provisionally seized.
(2) The State Prosecutor shall initiate a financial investigation by way of an order against the suspects or accused persons for the criminal offence referred to in paragraph 1 of this Article, their legal successors or persons to whom the suspects or accused persons have transfered certain property.
(3) During the financial investigation, evidence shall be collected on the property and revenues of suspects or accused persons, their legal successors or persons to whom the accused persons have transferred property that was acquired in the period prescribed by the Criminal Code.
(4) In the procedure of provisional seizure of property referred to in paragraph 1 of this Article, provisions of the law regulating enforcement proceedings shall be applied accordingly, if provisions of the present Code do not prescribe otherwise.
Contents of the Request and Decision Making on the Request for Ordering Seizure of Objects, Property Gain or Property
(1) The provisional seizure of objects, property gain or property shall be decided by the investigative judge immediately or within eight days as of the receipt of request, or the Chair of the Panel before which the main hearing is conducted. The panel referred to in Article 24, paragraph 7 of the present Code shall decide on appeals filed against such rulings.
(2) The State Prosecutor shall institute proceedings for ordering the provisional seizure of objects, property gain or property referred to in paragraph 1 of this Article.
(3) The request of the State Prosecutor referred to in paragraph 2 of this Article shall contain the following : a description of objects, property gain and property ; information on the person who is in possession of those objects, property gain or property ; reasons for suspicion that the objects, property gain and property were illicitly acquired and reasons to believe that by the time criminal proceedings are completed it would be significantly difficult or hardly possible to confiscate objects or property gain or property obtained through the commission of a criminal offence.
(4) If the court rejects the request referred to in paragraph 1 of this Article, the ruling on rejection shall not be furnished to the person referred to in paragraph 3 of this Article.
Contents of the Ruling on the Provisional Seizure of Objects, Property Gain and Property and Appeal against the Ruling
(1) In the ruling on the provisional seizure of objects, property gain and property, the court shall specify the type and value of the objects, property and the amount of property gain, as well as the period for which they shall be seized.
(2) In the ruling referred to in paragraph 1 of this Article, the court may decide that the provisional seizure does not cover objects, property gain or property which should be excluded by virtue of the rules on innocent title transferees.
(3) An appeal against the ruling referred to in paragraph 1 of this Article shall not stay execution.
(4) The ruling with a statement of reasons referred to in paragraph 1 of this Article, shall be delivered by the court to the persons to whom the ruling refers, to the bank or other organization competent for payment transactions, and, where appropriate, to other persons and public authorities.
Scheduling a Hearing and Decisions on Appeal
(1) When an appeal against the ruling on the provisional seizure of objects, property gain or property is filed, the panel referred to in Article 24, paragraph 7 of the present Code shall schedule a hearing
and summon the person to whom the ruling relates to, his/her defense attorney and the State Prosecutor.
(2) The hearing referred to in paragraph 1 of this Article shall be held within 30 days from the date of the filing of the appeal. Summoned persons shall be heard at the hearing. Their failure to appear shall not preclude holding of the hearing.
(3) The panel shall revoke the ruling referred to in paragraph 1 of this Article if the suspect or the accused proves the lawfulness of the origin of objects, property gain or property by plausible documents, or if, in the absence of plausible documents, s/he presents prima facie evidence that the objects, property gain or property were lawfully acquired.
(4) The panel shall reverse the ruling referred to in paragraph 1 of the present Article if, in line with paragraph 3 of this Article, proof has been produced or prima facie evidence established that the object, a part of property gain or property that were provisionally seized are of lawful origin.
Duration of the Provisional Seizure of Objects, Property Gain and Property
(1) The provisional seizure of objects, property gain or property may last at the most until the panel referred to in Article 24, paragraph 7 of the present Code renders a decision on the request of the State Prosecutor referred to in Article 486 of the present Code.
(2) If the provisional seizure referred to in paragraph 1 of this Article is ordered during the preliminary investigation, it shall be revoked ex officio if the investigation has not been instituted within a term of six months as of the date of issuing the ruling on provisional seizure.
(3) The ruling on the provisional seizure of objects, property gain or property may be revoked before the lapse of the period of time referred to in paragraphs 1 and 2 of this Article, by the court’s virtue of an office or upon request of the State Prosecutor or the interested party if it is proved that the measure is not needed or justifiable taking into consideration the gravity of the criminal offence, financial situation of the person the measure is imposed on or the situation of persons s/he is legally bound to support, as well as the circumstances of the case which indicate that seizure of objects, property gain and property will not be prevented or considerably aggravated until the completion of the criminal proceedings.
Enforcement of the Ruling on the Provisional Seizure of Objects, Property Gain and Property
(1) The ruling on the provisional seizure of objects, property gain and property shall be enforced by the court competent for conducting the enforcement, in line with the law regulating the enforcement proceedings.
(2) The court referred to in paragraph 1 of this Article shall be competent to decide on disputes in connection with enforcement.
(3) On the date of opening of bankruptcy proceedings against a legal person who is in possession of objects, property gain or property that was provisionally seized, terms shall be met to file an interpleader in respect to these objects, property gain or property, as on mature amounts.
Temporary Administration of Property and Assets
The competent public authority shall manage the provisionally seized property and assets in accordance with the law regulating the care on provisionally seized and confiscated property.
Return of Provisionally Seized Objects
The objects which were provisionally seized in the course of criminal procedure shall be returned to the owner or holder if the procedure is discontinued and grounds for their seizure referred to in Article 477 of the present Code do not exist. The objects shall be returned to the owner or holder even before the completion of the criminal procedure if reasons for their seizure cease to exist.
4. HEARING OF THE ACCUSED PERSON
Instruction on the rights and the manner of Hearing of the Accused Person
(1) When the accused persons are interrogated for the first time, they shall be asked for their first name and surname, personal identification number, nickname if there is one, the first name and surname of their parents, the maiden name of their mother, place of birth, address, the day, month and year of birth, nationality, whether they understand the Montenegrin language and what their language is, occupation, family situation, whether they are literate, their educational background, what their financial situation is, whether they have ever been convicted and if so when and why, whether they have served the imposed sentence and when, whether criminal procedure against them for another criminal offence is in progress, and if they are minors, who their legal representative is.
(2) The accused persons shall be admonished that they are obliged to answer the summons and immediately notify of all changes of address or of intention to change their place of residence and shall be warned of the consequences if they do not act accordingly. Thereafter, the accused persons shall be informed on the rights referred to in Article 8, paragraph 2 and Article 12 Paragraph 3 of the present Code, of the offence they are charged with, grounds for suspicion against them, they shall be instructed that they are not obliged to present their defense or answer questions asked, and that their statement may be used as evidence in the procedure even without their consent and they shall be invited to present their defense.
(3) The statement of the accused persons on the rights referred to in paragraph 2 of this Article shall be entered in the record and confirmed by the accused persons' signatures.
(4) The accused person shall be interrogated verbally. During hearing, the accused persons shall have the right to use their notes.
(5) During hearing the accused person shall be enabled to present without hindrance on all incriminating circumstances against them and to present the facts serving for their defense.
(6) After completing their statements, the accused persons shall be asked questions if it is necessary to fill gaps or remove contradictions and ambiguities in their presentation.
(7) The accused persons shall be interrogated with full respect for their personalities.
(8) Force, threat, deceit, extortion, exploitation or other means referred to in Article 154, paragraph 5 of the present Code may not be used against the accused person in order to obtain their statement, confession or commission that may be used as evidence against them.
(9) Accused persons may be interrogated in the absence of a defense attorney if they have expressly waived that right, provided that defense is not mandatory, if a defense attorney who has been informed on hearing in line with Article 282 of the present Code fails to appear and there is no possibility for the accused persons to choose another defense attorney, or if the accused person failed to secure the presence of a defense attorney at the first hearing even within 24 hours from the time they have been instructed of this right in line with Article 12, Paragraph 3 of the present Code, except in the case of mandatory defense.
(10) In the case of a failure to comply with the provisions of Paragraphs 8 and 9 of this Article or if the accused person has not been instructed of the rights referred to in Paragraph 2 of this Article, or if the accused person's statements referred to in Paragraph 9 of this Article on the need for the presence of a defense attorney have not been entered in the record, such a statement may not be used as evidence in the criminal procedure.
Manner of Hearing
(1) Questions shall be put to the accused persons in a clear, comprehensible and precise manner so that they can fully understand them. The hearing may not be based on the assumption that the accused persons have confessed something that they have not confessed, nor should leading questions be asked.
(2) If the subsequent statements of the accused persons differ from previous ones, and especially if accused persons revoke their confession, the court may summon them to give an explanation why they have given different statements, that is, revoked their confession.
(1) The accused person may be confronted with a witness or another accused person if their statements regarding relevant facts do not correspond.
(2) The confronted persons shall be placed one towards the other and shall be requested to repeat to each other their statements regarding each disputable circumstance and to argue whether their statements are true. The court shall enter in the record the course of confrontation as well as the final statements of the confronted persons.
(3) Confrontantion may be recorded in an audio or audiovisual form, in which case a transcript of audio recording shall be made.
Identification of Persons or Objects
(1) If it is needed to establish whether the accused persons recognize a certain person or object that they have previously described, that person shall be presented to them, together with other unknown persons whose basic physical characteristics are similar to the ones they have described, or that object, together with other objects of the same or similar kind. Afterwards, the accused persons shall be asked to state whether they identify the person or object with certainty and if positive, to indicate the identified person or object.
(2) In the preliminary investigation and in the investigation, identification shall be conducted by the State Prosecutor who shall previously instruct the accused person on the rights referred to in Article 100 paragraph 2 of the present Code.
(3) Identification shall be conducted so that the person who is the object of identification may not see the accused person, nor may the accused person see that person before idetification commences.
(4) Record shall be composed on the course of identification and on the statements of the accused person and a joint photo taken of persons or objects being identified, and where appropriate, audio or audiovisual recording may be carried out.
Entering the Accused Person’s Statements in the Record
(1) The accused person’s statement shall be entered in the record in a narrative form while the questions asked and answers shall be entered in the record only when they relate to the criminal case.
(2) The accused persons may be permitted to dictate their statement into the record themselves.
(3) The accused person’s statement may be audio or audiovisually recorded, in which case a transcript of the audio record shall be made. A recording of the accused person’s statement shall constitute an integral part of the record on the hearing of the accused person and it may be used as evidence. A copy of the record or recordings shall be given to the accused persons if they requests so.
Confession of the Accused Person and Further Collection of Evidence
(1) In the case of confession of the accused person, the authority conducting the procedure shall continue collecting evidence on the criminal offence only if the confession is obviously false, incomplete, contradictory or unclear.
(2) By way of exception from paragraph 1 of this Article, the authority conducting the procedure may decide not to collect evidence on the criminal offence when the confession is full, clear and true.
Interrogation of the Accused Person through Interpreters
(1) The hearing of the accused person shall be carried out through an interpreter in cases envisaged by this Code.
(2) If the accused person is deaf, the questions shall be asked in writing, and if s/he is mute, s/he shall be asked to answer in writing. If the hearing may be performed in such a manner, a person with whom the accused person is able to communicate shall be summoned as an interpreter.
(3) If the interpreter has not previously taken an oath, s/he shall take the oath stating that s/he would faithfully communicate questions put to the accused person as well as statements given by the accused person.
(4) Provisions of the present Code referring to expert witnesses shall be applied accordingly to interpreters.
Persons who May Be Heard as Witnesses
(1) Persons who are likely to provide information regarding the criminal offence and the perpetrator and other relevant circumstances shall be summoned as witness.
(2) The injured party, subsidiary Prosecutor and private Prosecutor may be heard as witnesses.
(3) Every person summoned as witness shall answer the summons and, unless otherwise prescribed by this Code, shall testify as well.
Persons Who May Not Be Heard as Witnesses
The following persons shall not be examined as witnesses :
1) persons who would by giving testimony violate the duty of keeping the data secret within the meaning of regulations prescribing data secrecy, until the competent authority releases them from that duty ;
2) defense attorneys may not testify with regard to information accused persons have confided to them in their capacity as defense attorneys ;
3) persons who would by giving testimony violate the duty of keeping a professional secret (religious confessors, attorneysat-law, medical professionals and other health system employees, journalists, as well as other persons) unless they are relieved from this duty by a special regulation or statement of a person who benefits from the secret keeping.
4) minors who, taking into consideration their age and mental development, are not capable to comprehend the importance of the right that they are not obliged to testify.
Persons Exempted from the Duty to Testify
(1) Unless otherwise prescribed by this Code the following persons shall be exempted from the duty to testify :
1) the accused persons’ spouses and their extra-marital partners ;
2) accused persons` direct blood relatives, collateral blood relatives up to the third degree as well as and their relatives by marriage up to the second degree ;
3) accused persons` adopted children or adoptive parents.
(2) Exemption from the duty to testify referred to in paragraph 1 of this Article shall not relate to persons that were invited to testify in the procedure for the criminal offence of neglecting and abusing a minor, domestic violence or violence in a family community and incest, when a minor person is the injured party.
(3) The court conducting the procedure shall instruct the persons referred to in paragraph 1 of this Article prior to their hearing or as soon as the court learns about their relation with the accused
person that they are not obliged to testify. The instruction and the answer shall be entered in the record.
(4) If grounds exist for a person to refuse to testify with regard to one of the accused persons, that person shall be exempted from the duty to testify with regard to other accused persons as well if his/her testimony may not, by nature of the matter, limited only to other accused persons.
Testimonies on Which Judgments May Not be Based
If a person who may not be heard as a witness within the meaning of Article 108 of the present Code or a person who is not obliged to testify in line with Article 109 of the present Code was heard as a witness but was not cautioned thereof or has not expressly waived that right, or if the caution and the waiver were not entered into the record or if a witness’ testimony was obtained by torture or in a manner referred to in Article 154 paragraph 4 of the present Code, the judgment may not be based
on such witness testimony.
Denial of Answer to Specific Questions
Unless otherwise prescribed by this Code, witnesses have the right not to answer particular questions if it is likely that they would thus expose themselves or persons referred to in Article 109, paragraph 1 of the present Code to serious disgrace or criminal prosecution, and the court shall inform the witness
Summoning of Witnesses
(1) A witness shall be summoned by means of a written summons indicating the first name, surname and occupation of the person summoned, the time and place of appearance, the criminal case involved, a note that s/he is being summoned as a witness, and the instructions on the consequences of an unjustified failure to appear referred to in Article 119 of the present Code.
(2) The summoning of a minor under sixteen years of age as a witness shall be done through their parents or legal representatives, except where it is not possible due to a need to act urgently, or due to other circumstances.
(3) Witnesses who are in another country and witnesses who can not obey the summons due to their old age, illness or serious physical disabilities may be heard in their residence, and in exceptional cases by means of technical devices for the transmission of image or sound, so the parties can ask them questions even though they are not present in the same premises as the witness. For the needs of such a hearing, expert assistance referred to in Article 282, paragraph 8 of the present Code may
(4) The summoning of witnesses may be done over the phone and other electronic communication devices, if the witness agrees to obey such a summon.
Manner of Hearing of Witnesses and Cautions by the Court
(1) Witnesses shall be examined separately and in the absence of other witnesses. Witness shall give their testimony orally.
(2) Witness shall be previously warned that they are obliged to tell the truth and not to withhold anything, and also cautioned that giving false testimony constitutes a criminal offence. Witnesses shall be instructed of the right referred to in Article 111 of the present Code and such instruction shall be entered in the record.
(3) After the caution and warning referred to in paragraph 2 of this Article, witnesses shall be asked about their first name and surname, their father’s or mother’s name, occupation, place of residence, place and year of birth, and their relation to the accused and the injured party. Witnesses shall be admonished that they are bound to notify the court of changes of their address or residence.
(4) When a minor is heard, especially if a minor was injured by the criminal offence, special care shall be taken in order to ensure that the hearing would not have an adverse effect on the minor’s mental condition. When necessary, the minor shall be heard with assistance of a psychologist or another expert.
(5) Injured parties who are victims of a criminal offence against sexual liberty, as well as children being examined as witnesses, shall be entitled to testify in separate premises before a judge and
a court reporter, whereas the Prosecutor, accused person and defense attorney shall be given the possibility to view the course of hearing from other premises and to put questions to the witness, after having been duly instructed by the court thereon. The instruction shall be entered in the record.
(6) The court may decide that the provision of paragraph 5 of this Article be also applied to the testimony of the injured party who is the victim of dicrimination.
Hearing and Confrontation of Witnesses
(1) After general questions, witnesses shall be called upon to state everything known to them about the criminal case, whereupon questions shall be directed to them in order to check, complete or clarify the testimony. It shall be forbidden to deceive the witness or to ask leading questions during the hearing of witnesses.
(2) Witnesses shall always be asked how do they know the facts they are testifying about.
(3) Witnesses may be confronted if their statements do not match as regards important facts. Only two witnesses may be confronted simultaneously. Provisions referred to in Article 102, paragraphs 1 and 3 of the present Code shall be applied accordingly regarding the confrontation of witnesses.
(4) Injured parties heard in the capacity of witnesses shall be asked about their desires with respect to satisfaction of a property claim in the criminal proceedings.
Identification of Persons or Objects
(1) If it is needed to establish whether witnesses recognize a certain person or object that they have previously described, that person shall be presented to them, together with other unknown persons whose basic physical characteristics are similar to the ones they have described, or that object, together with other objects of the same or similar kind. Afterwards, witnesses shall be asked to state whether they identify the person or object with certainty and if positive, to indicate the identified person or object.
(2) In the preliminary investigation and in the investigation, identification shall be conducted by the State Prosecutor who shall previously warn and caution witnesses in line with Article 113 paragraph 2 of the present Code.
(3) Identification shall be conducted so that the person who is the object of identification may not see the witness, nor may the witness see that person before idetification commences.
(4) Record shall be composed on the course of identification and on the statements of witnesses and a joint photo taken of persons or objects being identified, and where appropriate, audio or audiovisual recording may be carried out.
Hearing of Witness Through an Interpreter
If witnesses testify through an interpreter or if witnesses are deaf or mute, they shall testify pursuant to Article 106 of the present Code.
Taking an Oath
(1) Witnesses may be required to take the oath before testifying.
(2) Before the main hearing, witnesses may take the oath only if concern exists that they will not be able to appear at the main hearing due to illness or other reasons. Reasons why the oath was taken then shall be entered into the record.
(3) The text of the oath is worded as follows: "I do swear to tell only the truth about everything I am asked before the court, and not to withhold anything which has come to my knowledge".
(4) Witnesses shall take an oath orally by reading its text or by answering affirmatively after the contents of the oath has been read to him by the authority before which the proceedings are conducted. Witnesses that are mute and literate shall sign the text of the oath, and those deaf or mute who are illiterate shall be sworn through an interpreter.
(5) The rejection of the witness to take an oath and the grounds thereof shall be entered into the record.
Persons Forbidden to Take an Oath
The following persons shall not take an oath :
1) who are not of age at the time of hearing ;
2) for whom it has been proved or grounded suspicion exists that they have committed or participated in the commission of an offence for which they are being heard ;
3) who due to their mental conditions are unable to comprehend the importance of the oath.
Measures to Provide for Appearance of Witnesses and Procedural Penalties
(1) If duly summoned witnesses fail to appear and do not justify their absence, or if they leave without authorization or justifiable reason the place where they are to testify, the court may order their compulsory apprehension as well as impose a fine in an amount not exceeding €1.000.
(2) If witnesses appear and after being warned and cautioned in line with Article 113, paragraph 2 of the present Code, refuse to testify without a legal cause, they may be punished by a fine in an amount not exceeding €1.000, and if thereafter they still refuse to testify, they may be imprisoned. Imprisonment shall last until witnesses agree to testify or until their testimony becomes irrelevant or until the completion of the criminal procedure, but not longer than two months.
(3) If witnesses offend the court and other participants in the procedure or threaten them, the court shall warn them and may impose a fine in an amount not exceeding €1.000.
(4) In the preliminary investigation and investigation, the fines referred to paragraphs 1, 2 and 3 of this Article shall be imposed by the court at the motion of the State Prosecutor.
(5) The panel referred to in Article 24, paragraph 7 of the present Code shall decide on an appeal against the ruling ordering a fine or imprisonment. An appeal against a ruling on imprisonment shall not stay the enforcement.
Protection of Witnesses from Intimidation
(1) If reasonable concern exists that by giving a statement or answering certain questions witnesses would put in danger their, their spouse’s, close relative’s or a close person's life, health, physical integrity, freedom or property of great value, witnesses may withhold from giving the data referred to in Article 113, paragraph 3 of the present Code, answering certain questions or giving the statement altogether until their protection is secured. If it finds that the refusal to give a statement is manifestly illfounded, the authority conducting the proceedings shall caution witnesses that fines specified in Article 119 of the present Code may be imposed on them.
(2) Witness protection shall consist of special ways of participating and hearing witnesses in the criminal procedure.
(3) Protection of witnesses and other persons referred to in paragraph 1 of this Article may be secured beyond the criminal procedure as well, in line with the law regulating witness protection.
(4) The court shall inform the witness on the rights referred to in paragraphs 1, 2 and 3 of this Article.
Special Ways of Participating and Hearing Protected Witnesses
(1) Special ways of participating and hearing witnesses in the criminal procedure are: hearing of witnesses under pseudonym, hearing with assistance of technical devices (protective wall, voice simulators, devices for transmission of image and sound) and alike.
(2) If special way of hearing of witnesses in the procedure consists only of withholding data referred to in Article 113, paragraph 3 of the present Code, the hearing shall be done under pseudonym, while in other part of the procedure, the hearing shall be done in accordance with general provisions of the present Code on the hearing of witnesses.
(3) If special ways of participating and hearing witnesses in the procedure consists of withholding data referred to in Article 113, paragraph 3 of the present Code as well as of hiding the face of the witness, hearing shall be done through technical devices for transmission of image and sound. The specialist referred to in Article 282, paragraph 8 of the present Code shall operate a technical device. During the hearing, face and voice of the witness shall be changed. During the hearing, witnesses shall be in the room other than the one where the investigating judge and other persons present at the hearing are. The investigating judge shall ban all the questions which could lead to revealing the identity of witnesses.
(4) After the hearing has been completed, witnesses shall sign the record using pseudonym only in the presence of the investigative judge and court reporter.
(5) Persons who in whatever capacity, learn the details about the witness referred to in paragraphs 2 and 3 of this Article shall keep them secret.
Deciding on Special Ways of Participating and Hearing Witnesses and Protection of Data
(1) The ruling on the special manner of participation and hearing of the protected witness in investigation shall be issued by the investigative judge at the motion of witnesses, the accused person, the defence counsel or the State Prosecutor, whereas at the main hearing it shall be issued by the Panel. The motion shall contain a statement of reasons.
(2) The investigating judge shall, prior to issuing the ruling, ascertain as to whether the testimony of the witness is of such a relevance to be given the status of a protected witness. For the purpose of ascertaining these facts, the investigating judge may fix a hearing for the State Prosecutor and the witness to appear in court.
(3) Details of the witness who is to participate in a special way in the procedure shall be sealed in a special cover and kept by the investigative judge. A note shall be put on the cover saying "Protected Witness – Secret". The cover envelope may be opened only by the panel adjudicating at the main hearing and the second instance court in the appellate procedure, but the opening thereof shall be entered into the record together with the names of the members of the panel who came to the knowledge of its contents. After this the cover shall be sealed again and returned to the investigative judge.
Probative Value of the Protected Witness’s Statement
(1) Provisions of Articles 120, 121 and 122 of the present Code shall be applied to the hearing of protected witness at the main hearing as well.
(2) A judgment may not be based solely on the statement given by the witness in the manner set forth in Articles 120, 121 and 122 of the present Code.
Protection of the injured party while giving a statement
Provisions of Articles 120 to 123 of the present Code shall be applied accordingly to participation and hearing of the injured party in the criminal proceedings as well.
6. CRIME SCENE INVESTIGATION AND RECONSTRUCTION
Conducting Crime Scene Investigation
Crime scene investigations shall be conducted when direct observation is needed to establish or clarify some relevant facts in the procedure.
Reconstruction of Events
(1) In order to verify the evidence presented or to determine the facts relevant to the clarification of the matter, the authority conducting the procedure may order a reconstruction of the event which shall be conducted by reproducing the acts or situations under conditions that, according to the evidence presented, existed at the time when the event took place. If acts or situations were described differently in the statements of certain witnesses or accused persons, the events shall, as a rule, be separately reconstructed with each of them.
(2) The action referred to in paragraph 1 of this Article may be carried out in whole or partially by using adequate technical means.
(3) Reconstructions may not be performed in such a manner to breach public peace order and offend morality or endanger human life or health.
(4) Where necessary, certain evidence may be presented again during the reconstruction.
Assistance of an Expert and Expert Witness
(1) The authority conducting the crime scene investigation or reconstruction may ask for the assistance of an expert in forensics, traffic science or other expert who shall, where necessary, undertake measures to discover, secure or describe traces, execute the necessary measurements and recordings, make sketches or collect other data.
(2) Expert witnesses may also be summoned to be present at the crime scene investigation or reconstruction if their presence would be useful for providing findings and opinions.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.