LEGAL ANALYSIS OF THE FEDERAL GOVERNMENT'S DECREE ON APPLICATION OF THE CRIMINAL PROCEDURE DURING THE STATE OF WAR (Official Gazette of FRY No 21/99)

According to the federal government's decree, the articles of the Law on Criminal Procedure (Official Gazette of SFRY No 4/77, 14/85, 74/87, 57/89, 3/90 and Official Gazette of FRY No 27/92 and 24/94) are to be applied during the state of war unless otherwise determined by this decree. The federal government's decree is in accordance with its competencies under article 99, paragraph 11 of the Constitution of FRY according to which the federal government is authorised to pass decrees regarding the issues under federal assembly's jurisdiction if the sessions of the federal assembly itself cannot be convened during the state of war. The changes in the Law on Criminal Procedure as determined by this decree are as follows:

I Extending the local jurisdiction of the court where the defendant has been arrested or turned himself in.

The article 2 of the decree determines the territorial jurisdiction of the COURT WHERE THE ACCUSED HAS BEEN ARRESTED OR TURNED HIMSELF IN regarding the opening of the criminal proceedings against the accused who is in flight or beyond jurisdiction of the local court which would otherwise be authorised to act as determined under the Law on Criminal Procedure. This represents an extension of the jurisdiction of a local court where the accused has been arrested or turned himself in as compared to its jurisdiction under article 29, paragraph 3 of the Law on Criminal Procedure according to which the court has jurisdiction if neither the scene of the crime nor the residence of the accused is known, or if these are both located beyond the borders of FRY.

II Changes regarding the obligation to obtain the authorisation for conducting criminal proceedings as well as the warrant to make a search of an apartment, other premises and individuals.

The article 3 of this decree determines that the regulations contained within the Law on Criminal Procedure regarding the OBLIGATION TO OBTAIN AUTHORISATION for conducting criminal proceedings shall NOT BE APPLIED

1. if the accused has perpetrated a crime:

- against the constitutional order and security of FRY (Chapter 15, Criminal Code of FRY),

- against humanity and international law (Chapter 16, Criminal Code of FRY),

- against the Yugoslav army (Chapter 20, Criminal Code of FRY);

2. if the crime perpetrated by the accused entails at least 5-year prison sentence.

Thereby, in this case, the regulation contained in the article 139 of the Law on Criminal Procedure is effectively revoked, according to which the public prosecutor cannot either demand an investigation to be conducted or charges brought i.e. submit the proposal to bring charges unless presenting evidence beforehand that the authorisation by the competent state organs has been given (e.g. authorisation by the federal assembly to initiate criminal court action against MPs as well as against the assembly as a perpetrator of some criminal offences). Also the article 7 of the decree, authorises law enforcement officers to make a search of an apartment, other premises and individuals WITHOUT A WRITTEN JUDICIAL WARRANT AND WITHOUT THE CONSENT OF THAT INDIVIDUAL if there is a reasonable doubt that the person has committed one of the above-mentioned criminal offences. Thereby, in this case, the regulation contained within the article 207, paragraph 1 of the Law on Criminal Procedure, according to which the court orders a search by means of a search warrant, as well as the regulations contained in the article 207, paragraph 2 of the Law on Criminal Procedure according to which the court order to make a search is to be delivered to the person to be searched or whose premises are to be searched before the search itself commences, are effectively revoked. This also includes the regulation according to which the person, whom this court order to make a search refers to, is to be summoned before the search itself and demanded to voluntarily give information about the person in question, i.e. the objects which are being searched for.

III Changes regarding the regulations on disqualification of judges

The article 4 of the Decree determines that regulation contained in the article 39, paragraph 6 of the Law on Criminal Procedure, according to which a judge or members of the jury may be disqualified if the circumstances indicate his/her possible prejudice, is NO LONGER TO BE APPLIED.

IV Changes regarding the jurisdiction and the structure of the court

The article 5 of the Decree determines that a judge as an individual in the court of first instance is to conduct the proceedings for criminal offences for which fines or sentences of up to 5 years in prison are prescribed (thus changing the regulations according to which a council consisting of a judge and two jurists are intended to conduct such proceedings, article 23, Law on Criminal Procedure).

V Changes regarding the extension of the authority of some state bodies

According to the article 6 of the Decree, an EXTENDED AUTHORITY is given to:

- the public prosecutor in terms of CONDUCTING AN INVESTIGATION. (According to the article 16, paragraph 1, of the Law on Criminal Procedure, the investigation is to be conducted by an investigative judge of the competent court.);

- the investigative judge so that he/she may conduct investigation and undertake certain investigative measures in case of an emergency EVEN WITHOUT PRIOR REQUEST ON THE PART OF THE PUBLIC I.E. STATE PROSECUTOR (According to the article 158, paragraph 1, of the Law on Criminal Procedure, the investigation is being conducted at the public prosecutor's request.);

- law enforcement officers so that they may undertake investigative measures in case of an emergency EVEN WITHOUT PRIOR DECISION BY THE PUBLIC PROSECUTOR I.E. STATE PROSECUTOR, but the investigative judge and law enforcement officers are OBLIGED TO NOTIFY immediately public prosecutor i.e. state prosecutor of the measures.

 

VI Changes regarding the organs which may impose temporary arrest and determine the duration of the confinement

The article 8 of the Decree changes the regulations contained within the Law on Criminal Procedure regarding the authority of the organs to impose temporary confinement [up till now, according to the Law on Criminal Procedure, only the investigative judge of the competent court was in charge of this matter (article 192, paragraph 1, Criminal Law), and in special cases, this could be done by the organ of internal affairs as well before the investigation is initiated under conditions as determined by the article 196, paragraph 1 and 2 and the article 191, paragraph 1 and paragraph 2, items 1 and 3, of the Law on Criminal Procedure (imposing temporary confinement on individuals suspected of having committed a criminal offence which entails, according to the law, a capital punishment)].

The following organs now may reach a decision on temporary arrests:

- INVESTIGATIVE JUDGE

- PUBLIC PROSECUTOR I.E. STATE PROSECUTOR AND

- THE ORGAN OF INTERNAL AFFAIRS.

Also the regulations of the Criminal Law concerning the duration of temporary arrest have been changed so that now:

- the TIME LIMIT IS 30 DAYS (up till now the temporary arrest enforced by the organ of internal affairs could not last more than 3 days according to the article 196, paragraph 3);

- temporary arrest as determined by these organs may be EXTENDED by the court of first instance (article 23, paragraph 6, Criminal Law) for ANOTHER 3-MONTH PERIOD (according to the regulations which have been in force up till now, article 197, paragraph 2, temporary arrest could be extended by means of a ruling of the court of first instance for maximum 2 months);

- the council of a higher court directly reaches a decision on extending temporary arrests (according to the article 197, paragraph 2, of the Criminal Law, if the proceedings are being conducted for a criminal offence which entails sentences of more than 5 years in prison or even harsher punishment, then the Council of the Supreme Court of the Republic of Serbia may further extend the temporary arrest for additional 3-month period);

- also, the article 8 of the Decree does not provide for the obligation of the organs of internal affairs, in the case of temporary arrest, to notify public prosecutor i.e. investigative judge which in turn could demand that the organ of internal affairs immediately bring the arrested person to the public prosecutor etc. (article 196, paragraph 4, Criminal Law).

VII Changes regarding the authority of the public prosecutor to bring charges without prior investigation and consent of the investigative judge

The article 9 of the Decree provides for extending the authority of the public prosecutor i.e. state prosecutor to bring charges without prior investigation and consent of the investigative judge if the evidence gathered so far offer a basis for bringing charges IN THE CASE OF A CRIMINAL OFFENCE WHICH ENTAILS A PRISON SENTENCE OF UP TO 10 YEARS. The article 160, paragraph 6, which has been in force until now, provided for the authority of the public prosecutor to bring charges without prior investigation, if the evidence gathered concerning the criminal offence and the offender does form the basis for prosecution, but this relates to the criminal offences for which sentences of up to 5 years in prison are prescribed. Regarding the disagreement of the investigative judge with the indictment without prior investigation the article 160, paragraph 5, determined, up till now, that the course of action must incorporate an investigation before the indictment.

VIII Introduction of the shortest possible time limit for determining the date of the main hearing from the date of delivering the indictment

The article 10 of the Decree PROVIDES FOR A 48-HOUR TIME LIMIT starting from the moment of delivering the indictment to the accused until the main hearing. So far the article 279, paragraph 2, Criminal Law, determined that the president of the judicial council must schedule the main hearing within the 2-month time limit starting from the date of receipt of the indictment in court. Consequently, the article 10 of the Decree determines the shortest possible time limit for scheduling the main hearing so as to accelerate the criminal proceedings.

IX Changes of time limits within which the accused has the right to object against the indictment

The article 11, paragraph 1, of the Decree determines that the accused has the right to object against the indictment WITHIN 24-HOUR TIME LIMIT since the delivery of the indictment. Thereby, the time limit under the article 267, paragraph 1, of the Law on Criminal Procedure has been changed (8 days from the moment of the receipt of the indictment). Also the same article, paragraph 2, of the Decree determines that the OBJECTION MADE DOES NOT AFFECT THE SCHEDULED MAIN HEARING WITHIN THE TIME LIMIT UNDER THE ARTICLE 10 OF THE DECREE, which practically means that the objections of the accused does not affect the indictment being put into effect in legal terms. Consequently, the indictment may come into effect despite the objection against the indictment itself on the part of the accused i.e. there is no major violation of the criminal proceedings' provisions in the case when the main hearing is scheduled and sentence brought according to the indictment which has not been put into effect since the objection in the written form of the accused has been previously submitted. Also the article 271, paragraph 1, of the Law on Criminal Procedure provides for the possibility of presenting an objection against the indictment by the public prosecutor, and the article 277, paragraph 1 determines that if the objection against the indictment has not been submitted or has been rejected, then, the council of the court of first instance (article 23, paragraph 6), at the request of the president of the council before which the main hearing is to take place, may reach decision on any issue which is being resolved on the basis of this law and with respect to this objection. However, since the article 11, paragraph 1 of the Decree does not explicitly state that these objections do not affect the scheduled main hearing within the time limit as determined in the article 10 of the Decree, one could presume that the provision from the article 11, paragraph 2 of the Decree does not refer to the cases from the articles 271, paragraph 1 and the article 277 of the Law on Criminal Procedure.

 

X Changes regarding the delivery of the appeal against the reply

The article 12 of the Decree effectively revokes the regulations of the Law on Criminal Procedure which refer to the delivery of the appeal against the reply of the court. This means that a major violation of the regulations of the criminal proceedings does not exist anymore when the court of second instance reaches a decision, thus accepting the appeal of the public prosecutor and altering the sentence of the court of first instance so as to pass a more severe punishment, even though the copy of the prosecutor's appeal has not been previously delivered by the court of first instance to the accused as determined by the article 369 of the Law on Criminal Procedure.

 

XI Changes regarding the adjournment of the main hearing and/or changes of the judicial council i.e. an individual judge

The article 13 of the Decree provides for the possibility that the Council i.e. the judge as an individual MAY DECIDE NOT TO INITIATE THE PROCESS OF HEARING AGAIN if the following conditions are met:

- if the main hearing was adjourned, and the adjournment lasted for more than a month, or

- if the adjourned main hearing takes place before the altered council or another judge.

If that were the case, the court proceeds with hearing and the president of the judicial council i.e. the judge as an individual gives the account of the first part of the hearing. This represents an alteration of the article 305, paragraph 3 of the Law on Criminal Procedure, according to which the main hearing has to be initiated and all the evidence presented once again if the adjournment of the main hearing has lasted for more than a month or if the main hearing is taking place before another president of the judicial council.

 

XII Changes regarding the delivery of the written copy of the verdict

The article 14 of the Decree determines that a written copy of the verdict is to be delivered ONLY AT THE EXPLICIT REQUEST OF THE INTERESTED PARTY. Thus, the article 356, paragraph 3 and the article 123 of the Law on Criminal Procedure concerning the delivery of the verdict which is in the authority of the judge as an individual, have been altered so that the obligation to deliver copies of the verdict to both the defendant and his/her lawyer does not exist.

XIII Changes of time limits for appealing against the verdict

The article 15 of the Decree determines that the regulations of the Law on Criminal Procedure concerning the PRESENCE OF THE PARTIES during the process of the appeal are to be applied only when the president of the judicial council or the council itself rules that the presence of the parties, or one of the parties, or of the defendant's lawyer, WOULD BE USEFUL TO EXPLAIN THE MATTER. Consequently, the regulations from the article 373, paragraph 2 and 3 of the Law on Criminal Procedure, in their part which determines the obligation to summon the defendant and his/her lawyer for the hearing before the court of second instance, shall not be applied if the court rules that their presence has no bearing on further clarifying the matter.

XIV Extending the application of the regulations of the Law on Criminal Procedure regarding the summary proceedings and temporary confinement in summary proceedings

The article 17, paragraph 1, of the Decree determines the application of the regulations of the Criminal Law regarding the SUMMARY PROCEEDINGS before the court of first instance for all the criminal offences for which the major punishment that may be imposed is either a fine or a sentence of UP TO FIVE YEARS in prison, thus extending the number of criminal offences for which three-year prison sentences are prescribed according to the article 430 of the Criminal Law. The article 17, paragraph 2 of the Decree determines that the temporary confinement in a summary proceeding may LAST FOR ONLY THE PERIOD NEEDED TO CONDUCT INVESTIGATION, BUT NOT MORE THAN THIRTY DAYS. Thus, the regulations under article 433, paragraph 2, of the Law on Criminal Procedure are effectively revoked, and they determine that the temporary confinement in summary proceeding before indictment may last as long as needed to conduct the investigation, but not more than eight days, Also the article 433, paragraph 3 and the article 199 concerning the imposing of temporary confinement in a summary proceeding from the moment of submitting the indictment to the conclusion of the main hearing are no longer in force as one single regulation has been put into effect for the both phases of the summary proceeding.

 

 

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