LEGAL RESOURCES FOR SERBIA
LEGAL TRAINING RESOURCE CENTER
Serbia became a stand-alone country in 2006, following a referendum in which Montenegro voted to become an independent state, separate from the earlier State Union of Serbia and Montenegro. This represented the end of a long history of political union between Serbia and its Balkan neighbors. Setting aside the Second World War, Serbia and the lands constituting the six other Balkan states had long been part of a Yugoslav nation, united to varying degrees since the dissolution of Austria-Hungary in 1918. Today, every one of the nations formerly constituting Yugoslavia has achieved independence. In the decades since the Yugoslav wars, issues related to Serbia and the dissolution of Yugoslavia have been a relatively constant complication in international relations. Today, over twenty years since the conclusion of the Kosovo War, relations with newly independent Kosovo remain tense, often proving to be a stumbling block in negotiations about Serbian membership in the European Union. Serbia’s current constitution (its fourteenth since 1219) was adopted in 2006, when the dissolution of the State Union of Serbia and Montenegro required the replacement of the earlier 1990 constitution. It contains some 206 articles in total, including, among other changes, a new reference to “European values and standards,” and it is regarded as a modern, liberal document, complete with references to human rights and freedoms as well as protections for Serbia’s minority populations. It does, however, contain a reference to Kosovo as one of Serbia’s two autonomous provinces (alongside Vojvodina), which has resulted in some friction between the two nations. In addition to the two named autonomous provinces and Central Serbia, the Republic of Serbia is further divided into 29 districts (though 5 of these are in now-independent Kosovo), and then into 174 cities and municipalities.
Type of system
Serbia employs a civil law system, meaning that the law is codified into constantly updated written statutes and codes. In a civil law system, judges establish the facts of a case and then apply penalties in accordance with the written law, placing practically no emphasis on precedent unlike in a common law system. The criminal justice system of Serbia is governed by the Constitution of 2006 (“Const.”), the Criminal Code of 2005 (“CC”), the Criminal Procedure Code of 2011 (“CPC”), and the Law on the Execution of Criminal Sanctions of 2014 (“ECS”). The judicial system is composed of provincial and republic-level regular courts, possessing civil and criminal jurisdiction, as well as separate economic courts. The court of first instance for civil and criminal matters is the basic court, which has jurisdiction over the municipality in which it sits. Appeals can be made from there to a higher court (which also serves as a court of first instance for more serious matters), and from there to an appellate court maintained in four districts. Serbia’s Federal Court and later-created Constitutional Court ceased operation following the secession of Montenegro.
Legal Aid Situation in the country
State Sponsored Legal Aid
i. Serbian law can stipulate the conditions for the provision of free legal assistance. (Const. Art. 67). If the defendant falls into the group of those defendants for whom a defense counsel is mandated under CPC Art. 74 and they are unable to afford a defense counsel, if they are being charged with a crime with the potential to result in over three years’ imprisonment and they cannot afford one, or if “reasons of fairness demand it” then the court must appoint a defense council from the list of lawyers provided by the Bar Association at the court’s expense. (CPC Arts. 76, 77).
ii. If no State Sponsored Legal aid exist, mention existing NGOs providing pro bono legal aid Refugee Aid Serbia (RAS); Humanitarian Center for Integration and Tolerance (HCIT); Helsinki Committee for Human Rights in Serbia; Asylum Protection Center; Belgrade Center for Human Rights; Group 484; Initiative for Development and Cooperation (IDC); International Aid Network; MPDL SE Europe; Novi Sad Humanitarian Center; Praxis
iii. Number of lawyers (criminal/civil) if known While the exact number of Serbian Bar Association members cannot be readily determined, there are an estimated 10,000 members as of July 2020 .
Sources of defendant’s rights
i. National Sources of Defendant’s Rights A defendant’s rights are protected by the Serbian Constitution and the Criminal Procedure Code. The rights of a convicted defendant can be found in the Law on the Execution of Criminal Sanctions.
ii. International Sources of Defendant’s rights International law is a legitimate source of legislation in the Serbian legal system and above other legal sources under the Serbian Constitution. (Const. Art. 16). Serbia is a state party to the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the United Nations Convention against Torture. It is also subject to the Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). Serbia is also subject to the European Convention on Human Rights. Nonetheless, Serbian Constitutional law is superior to international law, and therefore, trumps any legal obligations arising under international law. (Const. Art. 194).
Complaint/information Under CPC Art. 280, state and other bodies as well as legal and natural persons can report prosecutable criminal offences. In circumstances defined by the Criminal Code, the failure to report a criminal offence may itself constitute a criminal offence (see, e.g., CC Arts. 331, 332).
Arrest, Search and Seizure Laws
● Stops and Frisks CPC Art. 152 covers personal searches, which may be performed if it is probable that the search will result in finding traces of the criminal offence or objects of importance for the proceedings. A search may also be performed on the basis of a court order or exceptionally without an order, on the basis of a legal authorization. Seizure of objects of documents is covered in CPC Art. 153 and with the Law on Seizure and Confiscation of Criminal Proceeds of 2013. Searches executed against someone during detention or arrest may be done without a warrant if there is suspicion that the individual being searched possesses a weapon or an item that may be used as a weapon, possesses evidence, or will seek to conceal or destroy evidence against them. (CPC Art. 159).
● Arrests Under CPC Art. 291, the police may arrest an individual if they have a basis for believing the individual is detainable under CPC Art. 211 (governing reasons for ordering detention). Upon arrest, officers are required to take the arrested individual to a competent public prosecutor without delay and report on the time of and reasons for the arrest. Arrested individuals must be informed of their rights under CPC Art. 69, Para. 1. If there is a delay of over eight hours in bringing the arrested individual before a prosecutor, the police are required to explain why to the public prosecutor, who will draft an official note containing this information.
● Pre-trial detention An individual may be remanded to detention only upon a decision by the court that detention is necessary to conduct criminal proceedings. (Const. Art. 30). The defendant cannot be held in custody for more than 48 hours from the time of the arrest or the response to a summons. (Const. Art. 30; CPC Art. 294). A written decision of the court with the explanation of reasons for detention must be delivered to detainees no later than 12 hours after it is pronounced. The court’s response to an appeal against a detention decision must be delivered to a detainee in writing, within 48 hours. (Const. Art. 30). A detainee must be released as soon as the reasons for detention cease to exist. (Const. Art. 31).
● Searches CPC Art. 152 establishes generally that premises or individuals may be searched under court order if it is probable that the search will result in finding the defendant, traces of the criminal offence, or objects of importance to the proceedings. It also establishes that searches of electronic data require a court order. CPC Art. 153 allows for the seizure of objects connected to the purpose of a search and stipulates that police will seize, report, and issue a receipt for any items that point to additional unforeseen offenses. When the public prosecutor is not undertaking or attending the search, the authority conducting it must inform them immediately. If no grounds for criminal charges are found or the reason for the seizure of objects ceases to exist, they must be returned, CPC Art. 154 governs how the police treat objects when their ownership is unknown. CPC Art. 155 governs the required content of search orders. They must contain: the name of the court issuing the order; the subject-matter of the search; the reason for the search; the name of the authority performing the search; and any other relevant information. A search cannot be conducted if eight days have elapsed since the issuance of the order. CPC Art. 156 governs the preconditions for a search and the rights of the person being searched or the owner of a dwelling being searched. Those being searched or whose premises are being searched will be advised of the right to retain a lawyer or defense counsel during the execution of the search (which will be postponed no more than three hours to allow for their arrival). The article also contains provisions specific to the searches carried out in dwellings or other premises, military or state facilities, and lawyers’ offices. Searches are to be attended by two citizens of adult age unless it is conducted without a court order under CPC Art. 158, Para. 1. CPC Art. 157 governs the procedure authorities must generally follow during a search. It mandates that searches are to be performed carefully, in a manner that respects the rights to dignity and intimacy and that searches are to be conducted during the daytime (with exceptional allowing for night-time searches). Locked rooms, furniture, etc. may be opened by force if their owners are not present or if the present person refuses to do so. Other provisions govern the manner in which authorities must record their search. CPC Art. 158 governs searches executed on dwellings and other premises in the absence of a search order. CPC Art. 159 governs searches of individuals executed without a search order or witnesses. Authorized police may perform such a search during detention or during arrest if there is a suspicion that the individual bears a weapon or an item that can be used as a weapon, or if it is suspected they may attempt to destroy or otherwise conceal potential evidence. CPC Art. 160 mandates that those undertaking searches without a warrant must immediately submit a report to the judge for preliminary proceedings who will assess whether it met the requirements of a search.
● Enforcing the Rules (Exclusionary Rule, Nullity and other procedures to protect against illegal police procedures) CPC Art. 16 stipulates that court decisions may not be based on evidence which is, directly or indirectly, in itself or by the manner in which it was obtained, in contravention of the Constitution, the CPC, other law, or universally accepted rules of international law and ratified international treaties, except in court proceedings in connection with the obtaining of such evidence. Const. Art. 25 and CPC Art. 9 prohibit the use of torture and cruel, inhuman, or degrading treatment, and any evidence obtained through such conduct is inadmissible under CPC Art. 16. Parties are permitted to raise the issue of unlawful evidence at any stage of the proceedings (investigation, indictment, pre-trial hearing, trial, and appeal) and the judge may declare evidence inadmissible sua sponte.
Lineups and other identification procedures
● Line-ups CPC Art. 100 governs the use of witnesses to identify a person or object. If a lineup is used during pre-investigation proceedings or during an investigation, it must be conducted in the presence of a public prosecutor and in such a way as to prevent the person being identified from seeing the witness and the witness from seeing that person before the procedure. Specifics of the procedure are further governed by CPC Art. 90, which establishes inter alia that if it is necessary to establish whether a witness recognises a certain person, he will be shown that person together with other persons not known to him. The witness will then be asked to state whether he can recognise that person or object with full certainty or with a degree of certainty, and, if so, to point to the person recognised.
● Other identification procedures CPC Arts. 100 and 90 govern the identification of persons or objects by witnesses and defendants. Where the entity in question is an object, procedures will nevertheless be substantially similar to those where the entity in question is a person.
● Before formal charge in court CPC Art. 85 lays out preconditions for interrogation of a defendant. When interrogated for the first time, a defendant will be asked to identify and provide background information about themselves as well as explain any prior criminal history. The defendant will be advised of their CPC Art. 68 Para. 1 rights and permitted to exercise them, in addition to their duties under CPC Art. 70. The defendant will be asked to state directly whether they will retain a defense counsel or their choosing and be informed that the court will appoint one if it is a case warranting mandatory defense. Interrogation may occur in the absence of a defense council if the defendant has expressly waived that right; if counsel is summoned with notification of an interrogation but is nevertheless absent (and there is no possibility to hire additional counsel); or if the defendant has failed to secure the presence of a defense counsel for 24 hours after being informed of the right to (except in cases of mandatory defense). CPC Art. 86 delineates the rules of interrogating defendants. A defendant must be interrogated orally, with respect for their decency and regard for their humanity. A defendant is entitled to use notes during interrogation. The defendant will be given an opportunity to state without interruption their position in relation to the circumstances of the case and relate and facts supporting their defense. Following the defendant’s explanation, any questions necessary to fill gaps or clarify must be clear, unambiguous, and understandable. They cannot contain deception, be based on an assumption that the defendant has admitted to something when they have not, or be leading. If statements given differ from previous statements, the interrogating authority may ask the defendant to explain these discrepancies. CPC Art. 87 governs interrogation through interpreters or translators. In general, where it is necessary, an interpreter or translator will be used to communicate questions and answers. If they have not previously been sworn in, they will swear that they will do so faithfully. CPC provisions applying to experts apply equally to interpreters and translators. Measures will also be taken to ensure communication with the deaf or blind, or those otherwise unable to communicate successfully in some regard. CPC Art. 88 governs the consequences of a confession by the defendant. If the defendant confesses to having committed a criminal offense, the authority is only required to continue collecting evidence about the crime where there exists grounded suspicion that the confession is false, incomplete, contradictory, or unclear and contrary to other evidence.
● After Defendant is formally charged The articles of the CPC govern interrogation of defendants generally, without differentiation between pre-charge and post-charge interrogation.
● Enforcing the Rules (procedures to protect against illegal interrogation) CPC Art. 16 stipulates that court decisions may not be based on evidence which is, directly or indirectly, in itself or by the manner in which it was obtained, in contravention of the Constitution, the CPC, other law or universally accepted rules of international law and ratified international treaties, except in court proceedings in connection with the obtaining of such evidence. Const. Art. 25 and CPC Art. 9 prohibit the use of torture and cruel, inhuman, or degrading treatment, and any evidence obtained through such conduct is inadmissible. CPC Art. 85 states that, if the defendant has not been informed of their rights under CPC Art. 68, Para. 1; if there is no record of the defendant’s statement as to whether or not they will retain counsel; if a statement by the defendant was obtained without the defence counsel or waiver of the right to have one present; or if a statement by defendant was obtained contrary to CPC Art. 9, then the court’s decision may not be based on the defendant’s statement. Parties are permitted to raise the issue of unlawful evidence at any stage of the proceedings (investigation, indictment, pre-trial hearing, trial, and appeal) and the judge may declare evidence inadmissible sua sponte. Right to Counsel The defendant has the right to legal counsel. (CPC Art. 68(3)).
Rights of the Accused at all time
Criminal Law system
i. Double jeopardy Defendants have a right to be protected against double jeopardy, meaning a person cannot be prosecuted twice for the same crime. (CPC Art. 4).
ii. Legality principle Public prosecutors must prosecute crimes where there are grounds to believe that a criminal offense has been committed, unless otherwise stipulated by law. (CPC Art. 6).For instance, it is noted that prosecutors may be precluded from pursuing some offenses without the motion of an injured party. (CPC Art. 6).
iii. Presumption of Innocence All people accused of a crime are innocent until proven guilty. (Const. Art. 34; CPC Art. 3).
iv. Burden of Proof and Standards for Conviction The burden of proof is on the prosecutor. (CPC Art. 15). Serbian courts must rule in favor of the defendant if they have any doubts about the facts of the case, the existence of an element of the offense, or which law should apply. (Const. Art. 16).
v. Procedure with Witnesses CPC Arts. 91-110 regulate the presentation of witness testimony. CPC Art. 91 defines a witness as a person for whom it is probable they will provide information about a criminal offense, the perpetrator, or other facts being determined in proceedings. CPC Art. 92 concerns the capacity and duty to provide testimony. All persons capable of presenting relevant knowledge or impressions have the capacity to give evidence. The injured party, subsidiary prosecutor, or private prosecutor may be questioned as witnesses. All persons summoned as witnesses are required to respond to the summons and to testify unless otherwise specified under CPC Arts. 93 and 94. CPC Art. 93 describes circumstances under which a person may be excluded from the duty to testify. Persons excluded include: those whose testimony would violate a duty to preserve state secrets, where secrecy has not been revoked or the person released from that duty; those whose testimony would violate the duty of maintaining confidentiality of information acquired in a professional capacity (e.g., as religious confessor, lawyer, physician, etc.) unless released from that obligation by regulation or by the person for whose benefit the confidentiality was established; the defense counsel when asked to testify as to what they have been told by the defendant. The court may nevertheless decide to examine a person excluded from the duty to testify, except where state secrets are concerned. CPC Art. 94 releases select individuals from the duty of giving evidence: 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; the defendant’s blood relatives in the direct line, collateral relatives to the third degree, and in-laws to the second degree; adoptive children or parents. Juveniles may not be questioned as witnesses unless it is demanded by the defendant. The court is required to caution spouses or partners that they need not testify before questioning begins or as soon as that association becomes known. Both the cautioning and the reply are to be entered into the court 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. CPC Art. 95 sets out the preconditions for questioning witnesses. CPC Art. 96 establishes the procedure by which witnesses are sworn in. CPC Art. 97 releases those who have not come of age and those unable to comprehend the significance of the oath due to the state of their mental health from the necessity to swear an oath. CPC Art. 98 contains the rules for questioning witnesses. They are required to be questioned individually and without other witnesses present. They are required to give oral testimony. After general questions, a witness will be asked to state everything known to them about the case. When their statement concludes and there are still gaps or points requiring clarification, the witness will be asked questions that must be clear, unambiguous, understandable, not deceptive, and not based on an assumption that they have admitted to something they have not. Questions may not be leading except during cross-examination. Witnesses will always be asked for the origin of their knowledge. If an injured party is questioned, they will be asked whether they wish to realize their restitution claim during the proceedings. Use of translators or interpreters is governed by CPC Art. 87. CPC Art. 99 governs confrontation of witnesses. They may be confronted by the defendant or by other witnesses if their statements are not in agreement regarding facts being proved. Confrontations are further governed by CPC Art. 89, Para. 2. CPC Art. 100 regulates recognition of persons or objects by witnesses. (see section re: lineups and other identification procedures). CPC Art. 101 governs the punishment of witnesses for failure to appear or refusal to testify. The penalty for either offense may be a fine, and the ruling issuing such fine can be appealed against by the witness, though this does not stay execution of the ruling. CPC Art. 102 governs the obligation of state authorities to protect injured parties or witnesses from insults, threats, and other attacks. CPC Art. 103 regulates the obligations of state authorities towards particularly vulnerable witnesses. Parties or the witness in question may request that the individual in question be designated as especially vulnerable. After a ruling from the relevant public authority that the individual qualifies, the court will appoint a proxy for the witness if deemed necessary. A ruling approving or denying qualification as especially vulnerable cannot be appealed. CPC Art. 104 determines the rules for questioning an especially vulnerable witness. CPC Arts. 105-110 govern the designation and treatment of protected witnesses. The circumstances warranting special protection are covered generally in CPC Art. 105. CPC Art. 106 regulates the measures of special protection that can be undertaken for the sake of protecting a witness’s identity. CPC Art. 107 covers the process by which the public prosecutor or witness may request protected witness status. CPC Art. 108 regulates the court’s determination that a witness has protected status as well as the contents of the court’s ruling. The decision to give or withhold such status may be appealed by the parties or the witness. CPC Art. 109 delineates the means by which a protected witness is to be questioned, while CPC Art. 110 governs the protection of data related to the witness. CPC Arts. 113-126 regulate the use of expert witnesses or professional consultants. Expert witnesses may be ordered by the court ex officio or on a motion by a party or defence counsel (CPC Art. 117). If the motion is made by a party or defense counsel, the court authority may invite them to propose a person, professional institution, or public authority to whom the expert examination should be entrusted and to pose the questions to which the expert witness should reply. A denial of a request for an expert examination can be appealed and this will be decided within 48 hours. The court may request payment of a deposit to cover the costs of examination if the request is made by the defendant and their defense counsel or a subsidiary or private prosecutor. CPC Arts.127-132 govern some circumstances in which expert testimony may be called for, such as psychiatric evaluations and the examination of cadavers.
vi. Capital Punishment The death penalty is prohibited. (Const. Art. 24(2)).
vii. Ex Post Facto Punishment In general, retroactive application of the law is prohibited. (Const. Art. 197(1)). As an exception, laws that promote the general public interest and are to the benefit of the defendant can apply retroactively, while those applied retroactively at the expense of the defendant remain prohibited. (Const. Art. 197(2)-(3)).
Fair Trial Rights
i. Freedom from prolonged pre-trial detention Any person deprived of liberty without a ruling from a court cannot be detained longer than 48 hours. (Const. Art. 29(2); CPC Art. 69(4)).
ii. Freedom from punishment Deprivations of liberty must be proclaimed by a court of law. (Const. Art. 27(4)). Punishment may only be imposed on people who are guilty of a crime. (CC Art. 2).
iii. Right to counsel Defendants have a right to counsel free of charge if it is a case of mandatory defense, if the defendant is unable to bear the costs of legal representation, or if representation is required in the interest of justice. (Const. Art. 33(3); CPC Art. 68(4)).
iv. Right to habeas corpus Any person deprived of liberty has the right to initiate legal proceedings to determine if their detention is lawful. (Const. Art. 27(3)).
v. Right to a Fair Trial Defendants have a right to a fair trial. (Const. Art. 32; CPC 68(5)). Specifically, Serbian courts must weigh evidence for and against the defendant impartially. (CPC Art. 16). vi. Right to Notice of Charges
The defendant has the right to be informed of the charges against him/her in a timely manner, before the first interrogation, and in a language he/she understands. (CPC Art. 68(1)).
vii. Right to Non Self-incrimination Defendants have a right to not incriminate themselves. (CPC Art. 68(2)).
viii. Right to a Speedy Trial Trials must occur within a reasonable time. (CPC Art. 14).
ix. Right to a Trial by Jury Under Const. Art. 142, jurors shall participate in trials in a manner stipulated by the law. Presently, there is no provision in Serbian law for an adversarial trial system. Instead, the High Judicial Council elects “jurors” (nominated by the Minister of Justice) who function as lay judges working alongside professional judges.
x. Right to Impartial Judge It is a fundamental right to have an impartial judge during a trial. (Const. Art. 32(1); CPC Art. 68(5)).
xi. Right to Appeal All people have a right to appeal a legal decision. (Const. Art. 36(1)).
Ways to protect rights
i. Exclusionary Rule or Nullity of Procedure It is forbidden to use an unlawful measure to obtain a confession. (CPC Art. 9).
ii. Civil Action Wrongfully convicted individuals are entitled to compensation of damages by the state and other rights prescribed by law. (CPC Art. 18).
iii. Motions Parties to the proceeding have the power to motion for expert examination of the evidence if they feel it is appropriate. (CPC Art. 117). Parties to the proceedings can motion to obtain records. (CPC Art. 139). Parties can motion for the judge to set bail. (CPC Art. 204). Parties can motion to defer a trial up to 30 days. (CPC Art. 360). In the Serbian legal system, parties can motion for a private trial (excluding the public) under some circumstances. (CPC Art. 363). The defendant has a right to propose evidence on a motion and repeat motions over the course of the trial. (CPC Art. 395).
Rights in Prison
i. Conditions of confinement The dignity and personality of a detainee cannot be insulted. (CPC Art. 217). Detainment institutions may include treatment services (with specific services for women where appropriate and isolated units for the ill), security services, education and employment services, healthcare services, general affairs services. (ECS Art. 19).
ii. Immigrant detention Detainees cannot be discriminated against in detention. (ECS Art. 7).
iii. Right to medical care in prison The Health Care Service must administer health care to detainees. (ECS Art. 24).
iv. Mental health care Detention centers are required to address mental illness among detainees. (ECS Art. 115).
v. Restriction of rights ECS Art. 156 defines the assumptions for the application of disciplinary measures to those in detention. ECS Art.196 ensures that those subject to compulsory psychiatric treatment and confinement retain the same rights and obligations as those serving prison sentences, unless required by the necessities of the treatment.
vi. Women’s rights in prison ECS Arts. 119-120 regulate the treatment of convicted women accompanied by children.
Article 2 of Basic Law states that “everyone has the right to life and to bodily integrity. The freedom of the person is inviolable. These rights can be abridged only on the basis of a statute”.  Additionally, article 104 of Basic Law forbids the maltreatment, either physically or mentally, of prisoners or detainees. 
Article 13 of Basic Law upholds that the home is inviolable. Searches may only be conducted if they have been warranted by a judge. Nevertheless, in 1998 Article 13 of Basic Law was revised to allow the use of hidden microphones, etc. to survey houses in the investigation of a crime. 
Only a judge has the authority to determine the duration of a detention period. If an accused person has been detained without a judiciary order, the accused must be brought before a judge as soon as possible in order to determine the detention period. It is thus unlawful for the police to detain a suspect for longer than the end of the day following their arrest.  In order for a suspect to be detained, there must be reasonable suspicion that that person has committed a crime and that should he not be detained, the criminal process and evidence would be compromised. 
At the time of interrogation, the accused must be informed of the crime of which they are accused, that they have the right to either make a statement regarding the event or remain silent, that they have the right to counsel even before being interrogated, and that they have the right to ensure that officials take exonerating evidence.  At the time of detention, the suspect’s relatives must be informed of the suspect’s detention.  Additionally, the accused person’s lawyer must be informed of the time and place of an interrogation and has the right to be present at the interrogation.  Defendants nonetheless, do not have the right to have counsel appointed at the investigation stage of the criminal process. 
Pre-Trial i. Charging Instrument.
Criminal proceedings are initiated by a criminal indictment. (CPC Art. 7).
ii. Preliminary Hearing (Preparatory Hearing) During a preparatory hearing, the opposing parties must state their positions, present their evidence, and explain the factual and legal questions that will be discussed at trial. (CPC Art. 345). The Prosecutor’s declarations must include quotes from the indictment which describe an act that meets the legal elements of a crime, present evidence supporting the allegations in the indictment, and propose a sanction for the court. (CPC Art. 349). If the injured party is present and there is a formal restitution claim, then the injured party will read out a restitution claim, or the court will if the injured party is absent. (CPC Art. 349). After the defendant is advised of his rights and duties, and if the defendant challenges any part of the indictment, the defendant must state which parts of the indictment he/she is challenging and why those parts of the indictment should be challenged. (CPC Art. 349). At trial, the court will only admit evidence which is related to a contested portion of the indictment at trial. (CPC Art. 349). Parties must notify the court of all evidence they intend to raise at trial. (CPC Art. 350). However, the president of the panel may order evidence for the trial regardless. (CPC Art. 350). At the preparatory hearing the court may abolish pre-trial detention or replace it with a more lenient measure. (CPC Art. 351). The president of the panel will discontinue proceedings for the following reasons: (1) the prosecutor or private party has desisted from the charges; (2) the defendant has already been acquitted or convicted of that offense; (3) the charges against him have already been rejected or discontinued with a final decision; or (4) amnesty, pardon, statute of limitations or other circumstances barring further proceedings. (CPC Art. 352).
iii. Discovery CPC Art. 303 outlines how discovery should take place during criminal proceedings. Public prosecutors are required to allow suspects and their defense counsels to examine case-file documents and view objects that will be used as evidence within a time limit sufficient to allow the preparation of a defense. If there are multiple suspects connected to the same alleged crime, examination of case-files or evidentiary objects may be deferred until the last suspect has been questioned by the public prosecutor. After the suspect and defense counsel have carried out a review of the case-file and objects, the prosecutor will call on them to file a motion for conduct of certain evidentiary actions within a specified time limit. If a questioned suspect and their defense counsel collect evidence and materials for the defense (see CPC Art. 301), they are required to notify the public prosecutor of what they have gathered and enable them to examine the case-file documents and objects that will be used as evidence. If the defense counsel’s motion to conduct certain evidentiary actions is rejected or not decided, they can ask the judge for preliminary proceedings to respond to the motion. When the public prosecutor decides that the matter has been sufficiently clarified, the public prosecutor will decide on concluding the investigation (see CPC Art. 310).
i. Nature of the Trial Serbian courts can reject the charges, pronounce the defendant not guilty of the charges (also called as an acquittal), or pronounce the defendant guilty (a conviction). (CPC Art. 421).
ii. Defendant CPC Art. 68 outlines the defendant’s rights. The defendant has a right to be informed of the charges against him/her; to not say anything at all, including a right to not self-incriminate; to receive legal counsel, to be taken to court in the shortest possible time, to receive a fair and impartial trial in a reasonable amount of time, to be given sufficient time and opportunity to prepare his defense, to examine evidence against him/her beforehand, to collect evidence beforehand, to present evidence that supports his or her position, to make use of legal instruments and remedies and to perform other actions allowed for the by the CPC Art. 68.
iii. Lawyers CPC Art. 71 outlines the rights of the defense counsel. The defense counsel has a right to a confidential conversation with the defendant before the first hearing, to know and examine the charges and evidence presented against the defendant, a right to confidential and unimpeded communication with a defendant, and a right to perform all actions which the defendant is entitled to under this code and other actions provided by this code specific to legal counsel. (CPC Art. 71).
iv. Expert Witnesses During a trial, the main role of an expert witness is to evaluate and establish a certain fact in the proceedings in a specific domain. (CPC Art. 113).
v. Judges CPC Art. 21 outlines which judges compose courts. CPC Art. 22 of the outlines the powers of judges in various cases.
vi. Victims CPC Art. 50 outlines the rights of victims. Victims have a right to submit a motion and evidence for restitution, to retain a proxy amongst attorneys, they have a right to observe evidence, to be informed and contest any prosecution decisions to dismiss or abandon prosecution, to be informed that they can supplant public prosecution, to attend preparatory hearings, to attend the trial and participate in examining evidence, to file an appeal against the costs of the criminal proceedings and the adjudicated restitution claim, to be notified of the outcome of the proceedings and be served the final judgment, and to perform other actions provided for in this code. (CPC Art. 50).
Sentencing CPC Art. 424 specifies the sentencing procedures to follow when a defendant is convicted. When a defendant is pronounced guilty the court must state the offense the defendant is guilty of, how the law applied to the facts and circumstances of the case to indicate guilt, the legal designation of the criminal offense, the penalty imposed on the defendant (or suspension of a sentence, if applicable), decisions on security measures and forfeiture of assets (if applicable to the crime), a decision on a restitution claim (if applicable), a notation on the amount of time served prior to conviction, and finally, a decision on how the criminal proceedings should be paid for. (CPC Art. 424).
i. Right to Counsel The right to counsel as described above applies in the same way to the appellate procedure.
ii. Ineffective Assistance of Counsel The CPC does not regulate the ineffective assistance of the counsel.
iii. Grounds for an Appeal CPC Art. 437 outlines the main grounds for an appeal, which include: (1) substantive violations of the law of criminal procedure; (2) violations of criminal law; (3) incorrect or incomplete finding of fact; (4) and the decision on criminal sanctions and other associated decisions.
- Basic Law, article 2
- Basic Law, article 104
- Basic Law, article 13
- Basic Law, article 104
- Code of Criminal Procedure, paragraph 112
- Code of Criminal Procedure, paragraph 136, section 1
- Code of Criminal Procedure, paragraph 114b
- Code of Criminal Procedure, paragraph 168c, section 1 and paragraph 163a, section 3
- Craig M. Bradley, Criminal Procedure A Worldwide Study 261 ( 2d ed., Carolina Academic Press 2007)
Serbian Criminal Procedure Code (“SPC”): https://www.legislationline.org/download/id/3560/file/Serbia_2011%20CPC%20English_.pdf Serbian Constitution (“Const.”): https://www.legislationline.org/documents/section/constitutions/country/5/San%20Marino/show Serbian Law on Execution of Criminal Sanctions (“ECS”): https://www.mpravde.gov.rs/en/tekst/1701/criminal-matter.php https://www.bbc.com/news/world-europe-17907947