Part One
GENERAL PROVISIONS

Chapter VII
EVIDENTIARY ACTIONS

4. HEARING OF THE ACCUSED PERSON

Instruction on the rights and the manner of Hearing of the Accused Person

Article 100
(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

Article 101
(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.

Confrontation

Article 102
(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

Article 103
(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

Article 104
(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

Article 105
(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

Article 106
(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.