New changes in Serbian criminal legislation are afoot whereby the notion of the cooperating witness ceases to exist and is to be replaced by the notion of cooperating defendant and cooperating offender. Namely, in order for someone to be granted the status of cooperating defendant, that person will first have to admit to committing the crime he/she is being charged with, but this will not exonerate him/her, as the offense stays under indictment until the end of the trial. The introduction of the notion of cooperating defendant and cooperating offender is, according to the idea of the legislators, aimed at achieving more efficient criminal proceedings for criminal offenses in the area of organized crime and war crimes, but also at making the charges in the proceedings easier to prove. The novelty is that the cooperating defendant is obliged to tell the truth in court as well as to provide concrete answers to every question instead of remaining silent or claiming not to know the answer. As opposed to the cooperating witness, the cooperating defendant will, in the future, reach an agreement with the public prosecutor on giving testimony, the issue of which the final decision will be made by the court. Professor Goran Ilić of the Law School in Belgrade, who is also a member of the working group for drafting the Code on Criminal Procedure, explains that the agreement between the cooperating defendant and the public prosecutor will have to clearly and precisely state the obligations of the defendant and the public prosecutor.
“If he/she fulfills his/her duty and testifies before the court to all that he/she has stated before the public prosecutor, the defendant is guaranteed the result he/she is already informed of when signing the agreement, i.e. the type and severity of the sentence, and possibly an acquittal. In cases where the first-instance proceedings are concluded with a conviction and in accordance with the agreement, the court of higher instance, i.e. the Court of Appeals, cannot annul or increase the penalty given by the first instance court,” Professor Ilić stated. Another novelty is the possibility for a person already serving a sentence to reach an agreement with the public prosecutor. Professor Ilić emphasizes that this possibility already exists in the existing Code, but that it had not been applied so far. “The public prosecutor may reach an agreement with a cooperating offender when he/she judges that the offender has knowledge of a criminal offense related to organized crime or war crimes which have not been cleared and that the cooperating offender’s statement is vital to proving the case,” Professor Ilić explains.
“Of course, the criminal offense in question is not the one that the cooperating offender is charged with, i.e. convicted of. If, during the proceedings, the public prosecutor manages to obtain an irrevocable acquittal, he/she is obliged, within a month, to submit a request to the court for the offender’s sentence to be reduced, as defined in the agreement. The Code does not limit the extent to which the penalty can be reduced, and the new provisions leave the possibility of an entire exoneration. This agreement must be approved by the court,” Professor Ilić emphasizes.
The Code also defines the status of cooperating offenders convicted for ordinary criminal offenses differently. Namely, when this new legislation is adopted, the engagement of cooperating witnesses from the population of convicted offenders will be changed in such a way that this status will be available not only in cases of organized crime and war crimes but also in cases of ordinary or classic criminal offenses. Of course, cooperating offenders cannot be found amongst the organizers of criminal groups nor amongst offenders sentenced to the maximum penalty of 40 years imprisonment.
As the Code is still in a draft phase, there is no definite information on when it will be adopted. When the draft is finalized it is submitted to the Government of Serbia, which, if it finds it sound, sends it to the National Assembly for adoption. Whether the Code will be adopted as promptly as announced, basically depends on when the National Assembly delegates give their last word.
Criminal Proceedings Soon in the Hands of the Prosecutors
The draft of the new Code on Criminal Procedure, which is currently being discussed by experts, stipulates an investigation led by the prosecutor as opposed to an investigation which was previously led by the investigative judge, and also introduces significant novelties and changes into criminal procedural law in Serbia, making it faster and more efficient.
“In order to render criminal proceedings as efficient as possible, the legislative novelties provide the public prosecutor with the powers which were, until now, in the hands of the investigative judge ,” stated Tanjug Goran Ilić, member of the working group for drafting the new Code on Criminal Procedure. “The public prosecutor will conduct the investigation, but for certain measures and activities, such as ordering and extending detention, searching a residence, he/she will have to obtain permission from the judge with jurisdiction in preliminary proceedings, who will, instead of the investigative judge, now take over control of protecting rights and freedoms. According to Ilić, the dominant role of the public prosecutor will also be reflected in the fact that the police will be under his/her direct supervision in performing their activities related to the pre-trial proceedings, evidence collection, and particularly “police custody”.
According to the new Draft CCP, police custody, i.e. police detention of up to 48 hours, can be imposed on a suspect with only the decision, i.e. approval, of the public prosecutor. The defense, i.e. the suspect, may file an appeal regarding the custody decision to the judge with jurisdiction in the preliminary proceedings who will, instead of the investigative judge, take over control of the respect of rights and freedom.