Until recently, Serbia had a typical inquisitorial code. Nevertheless, with the assistance of US Department of Justice Office of Overseas Prosecutorial Development Assistance and Training, there has been a significant change in a criminal procedure legislation. These changes encountered a strong opposition from the majority of the Serbia's legal community and been seen as interfering with its legal tradition, due to the said shift from traditional inquisitorial towards adversarial system.
Evidence and Fact-finding by the Court
Under the old Inquisitorial Code, the court and the public authorities participating in criminal proceedings were required to truthfully and fully establish the facts essential for rendering a lawful decision. Accordingly, the court and public authorities were required to afford equal treatment in examining and establishing both incriminating and exculpatory facts. Currently, Serbian Adversarial Code explicitly states that the burden of proof lies on the prosecutor and that the court examines evidence upon motions by the parties, whereby it has no duty to examine evidence ex-officio.
However, the court may order a production of additional evidence, or, exceptionally, order examination of such evidence, if it finds that the evidence that has been examined is: (i) contradictory or unclear, and (ii) finds such action necessary in order to comprehensively examine the subject matter of the evidentiary action. This feature has raised numerous uncertainties as to which particular situations enable the court to take this course of action, but nevertheless should not, be used to support the prosecution case by ordering the production of new additional evidence. On the other hand, the court may at any time during the examination of the accused and witnesses put any question it deems appropriate, thus seriously undermining its rather passive role under the new Adversarial Code. This is used extensively by judges used to inquisitorial tradition inter alia to avoid the quashing of judgements by the appeals court due to errors incomplete fact finding of the trial court. As it currently stands, the practical shift from inquisitorial towards adversarial system is far from over.
Collecting Evidence by the Defence
In cases of parallel investigations (internal and external by the authorities), counsel has the right to seek information from a company, organ and other organisation and these are obliged, in accordance with the law, to provide the required information to the counsel. During an internal investigation (i.e. for the purposes of detecting fraud/corruption), counsels may collect evidence and materials, i.e. to: i) talk to a person who can provide them relevant case data and obtain from that person written statements and information, with their consent – i.e. taking interviews or depositions; ii) enter private premises or areas (with the consent of their holder) which are not open to the public, a dwelling or premises linked with a dwelling; iii) take over from a legal or natural person (with their consent) objects and instruments and obtain information possessed by that person.
These rights are generally reserved for a local counsel, meaning that an internal investigation of a foreign company should always be coordinated this way.
Confidentiality - Legal Privilege
The law does not contain a specific provision that all communications between lawyer and client should be regarded as privileged, and consequently not subject to disclosure. This communication should be protected in principle (as there are general provisions in professional advocacy law and by-law), but there are no mechanisms to prevent the authorities to obtain this information and potentially use it as a reference point for directing the case. The same goes for reports and interviews.
This evidence could not be, however, used in proceedings and consequently a court decision should not be based on it. For these purposes, the judge for preliminary proceedings should issue a ruling on excluding these from the file immediately, or no later than the conclusion of the investigation.
Also, companies should not rely on the protection offered by business secrecy legislation - such protection is exempted by the same legislation, meaning that certain data can be obtained by the authorities if they directly relate to the perpetration of the offence.
The Public Prosecutor assess whether any data/object is related to the commission of a particular offence and consequently whether these could be temporary seized. If the responsible person in the company (i.e. director) refuses to provide the objects that could serve as evidence in the proceedings, he/she could be charged with monetary fines. Also, the Public Prosecutor might find that this action constituted the elements of some other offence (i.e. if someone by force or threat of force prevents an official in discharge of duty undertaken within his competencies).
Personal data of the employees are protected from unauthorised access by third parties, provided that such access is related to labour rights and obligations. Therefore, if an employee is under criminal investigation, he/she could not rely on the provisions of the labour/data protection legislation.
Plea Bargaining
It is possible to decline to contest criminal charges in exchange for an agreed-upon sentence, by entering into plea agreement with the prosecutor. The court shall accept the agreement by rendering a judgement provided that: 1) the defendant has knowingly and voluntarily confessed the criminal offence or criminal offences which are the subject matter of the charges; 2) the defendant was aware of all the consequences of the agreement (especially that he has waived his right to a trial and that he accepts a restriction of his right to file an appeal); 3) the other existing evidence does not run contrary to the defendant's confession of having committed a criminal offence; and 4) the penalty, other criminal sanction or other measures, is in line with criminal and other law.
There has been a significant increase of application of plea agreements as they should contribute towards efficiency of criminal proceedings, faster resolution of cases, reduction in costs and time savings although their application still has not gained a full scope, as seen in traditional adversarial systems.
Disclosure - Access to Case File
The practice also shows that it is crucial to preserve the protection fundamental rights especially those relating to access to case file guaranteed by the ECHR and Right to Information Directive (although formally not binding to Serbia yet). In this manner, if the case is in the very early stage i.e. shortly after the issuance of the investigation order, the disclosure issues usually occur so defendant cannot fully assess the case against him and as a corollary cannot fully ascertain whether to enter into the plea agreement. Similarly, it is somewhat questionable (and the practice has not been entirely consistent) whether the court's judgement on accepting the plea agreement can be used in a different criminal proceedings by simply accepting its content into evidence or the court should allow a challenge of this evidence by a cross-examination of the person who originally entered into the plea agreement.
Therefore, it is crucial to disclose all relevant materials (both inculpatory and exculpatory) before submission of the plea agreement to the court so all parties are fully aware of all aspects of its impact.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
