- Government of Montenegro
Ministry of Justice Report on the needs to amend criminal procedure ...
Report on the needs to amend criminal procedure code
- Introduction
Criminal Procedure Code came into effect on 26 August
2009. A year later (on 26 August 2010) its implementation started in the
prosecution of the criminal offences of organized crime, corruption, terrorism
and war crimes, while its full implementation started on 1 September 2011. Vacatio legis of a year (i.e. two years)
was envisaged in order to ensure more efficient implementation of the Code. In
such a way an opportunity was created for all the parties that participate in
the criminal procedure to prepare for new legislation and for the conditions
for better acceptance of the legislation to be created.
The key features of the new criminal procedure included
the shift to state-prosecutorial investigation, inexistence of jurors, efforts
to improve the position of injured parties, introduction of the institute of
plea bargaining, extending the range of criminal offences that secret surveillance
measures can be used for, introduction of the procedure for seizure of illicit
proceeds, and financial investigations for the extended confiscation of the
assets the legal origin of which was not proven in the criminal proceedings,
while the burden of proof is transferred to the defendant.
Since
the Criminal Procedure Code envisages numerous new criminal procedure
institutes that did not exist earlier in our legal system, and many existing
institutes were significantly modified, in 2009 the Government of Montenegro
adopted the Plan of Implementation of the Criminal Procedure Code. This created
the conditions for successful undertaking of the first steps in the
implementation of the CPC and for overcoming the first problems that always
occur in the implementation of a reform law. The basic activities of the Plan
for the implementation of the CPC were: development of the necessary secondary
legislation, activities on informing the public of the key legislative
solutions, education and training of the officials and other participants in
the new criminal procedure, development of the training plan, purchase of
necessary technical equipment and training of experts for its use, recruitment
of new prosecutors, solving the issue of the needed number of judges, establishing
the appropriate state body to follow the implementation of the plan and setting
the framework timetable for the implementation of the plan. In the same year
the Government established the Commission for monitoring the implementation of
the Criminal Procedure Code, the task of which was to coordinate activities on
the implementation of the Plan of implementation, to evaluate the achieved
results, to propose measures to eliminate the identified deficiencies in the
implementation of the Plan and to inform the public on the implementation of
the Plan. In the period 2009-2012 the Commission had eight meetings, and
adopted five reports on the implementation of the activities from the
Implementation plan. In January 2012 the Commission ceased to operate since all
the activities defined in the Implementation Plan were implemented. The
Analytic-operational team was established as a body to support the operation of
the Commission. This team handled the reports about the implementation of the
CPC that the Commission received. In December 2011 the team completed its work
with the development of the Final report on the implementation of the Plan for
Implementation of the Criminal Procedure Code.
The issues and practical
problems important and topical for the implementation of the Criminal Procedure
Code were discussed in 2012 in the regional conference "Models of
Legislative Solutions in the Field of Fighting Organized Crime and
Corruption" and three expert discussions that were organized with the view
to continuing the monitoring of the implementation of the CPC.
On the basis of the above
activities the Ministry of Justice prepared the Information on the
implementation of the CPC, which the Government adopted in its meeting of 17 January
2013 and concluded that the implementation of the new institutes defined in the
CPC shows that the criminal proceedings are conducted in a more efficient way
and that the cooperation of all participants in the procedure is good. The
Government gave the task to the Ministry of Justice to establish a working
group to report to the Government on the scope of the amendments that are
needed. It was also recommended that the bodies that are in charge of training
the entities that implement the CPC should continue with the additional
trainings in 2013.
- Overview of the needed amendments
In February this year the
Ministry of Justice established a work group with the task to identify the
scope and the needs for amending the CPC. The work group, composed of the
representatives of the Ministry of Justice, Supreme Court of Montenegro,
Supreme State Prosecution, Bar Chamber, Police Directorate, and the School of
Law of the University, discussed in details all the materials related to the
process of amending the CPC (enclosed in the Annex) and identified the scope of
the needed amendments as follows:
Chapter
I – BASIC RULES
No amendments needed.
Chapter
II – JURISDICTION OF COURTS
There is the need to
change the functional composition of the court in the first instance and in the
appeal procedure for the criminal offences with corruption elements and in the
procedure for deciding on extraordinary legal remedies.
Chapter III – RECUSATION
More precise definition
of the following is required:
- reasons for recusation of an investigative judge
- the procedure to be
followed by the president of the court after he has received the notification
from the judge that there are circumstances that might cause doubts into his
impartiality,
- the authority to decide
on the recusation of the Supreme State Prosecutor
Chapter IV – STATE PROSECUTOR
Consider the need to
define the reasons for liability of a police officer or any other officer of
the state administration for omission to act upon the orders of the state
prosecutor.
Chapter V – PRIVATE PROSECUTOR AND INJURED PARTY
No amendments needed.
Chapter
VI – DEFENSE ATTORNEY
Amendments are needed in
the area of appointment of a defense attorney ex officio according to the order on the list of the Bar Chamber.
Chapter VII – EVIDENTIARY ACTIONS
Article 83 paragraph 1
should be amended - it should be added that the authorized police officer
cannot enter any dwelling owned by other person in order to enforce a court decision
on detention or summoning of a defendant or any other person or for the purpose
of depriving of liberty an escaped perpetrator of a criminal offence prosecuted
ex officio.
Consider the need to
regulate storing of evidence.
Legally invalid evidence
should be defined more precisely, i.e. connected to certain Articles of the CPC.
Provisions on
confiscation of illicit proceeds (property gain) and conducting financial
investigation should be separated into a different law.
There is a need to amend
provisions that regulate Secret Surveillance Measures in order to define types
of SSM, criminal offences they can be applied for, bodies to be imposing these
measures, persons they are applied to and their duration, as well as to
regulate suspension or termination of the application of SSM.
Chapter VIII – MEASURES FOR ENSURING THE PRESENCE OF
THE ACCUSED PERSON AND FOR A PEACEFUL CONDUCTING OF THE CRIMINAL PROCEDURE
Amendments are needed in
Article 175 paragraph 1 item 4 and Article 176 paragraph 6.
Chapter IX – RENDERING AND PRONOUNCING DECISIONS
No amendments needed.
Chapter
X – SERVICE OF DOCUMENTS AND EXAMINATION OF FILES
Provisions that regulate
service of documents should be amended in order to increase efficiency of
criminal proceedings.
Chapter
XI – SUBMISSIONS AND RECORDS
Chapter
XII – TIME LIMITS
Chapter
XIII – ENFORCEMENT OF DECISIONS
No amendments needed.
Chapter
XIV – COSTS OF CRIMINAL PROCEEDINGS
Consider the need to
amend Articles 230 and 236.
Chapter
XV – CLAIMS UNDER PROPERTY LAW (CLAIMS FOR DAMAGES)
Chapter
XVI – PREJUDICIAL ISSUES AND OTHER PROVISIONS
No amendments needed.
Chapter
XVII – CRIMINAL CHARGE
Provisions that regulate
authorities and actions of the police in preliminary investigation need to be amended.
The idea to give the police the opportunity to hear the suspect after the
approval of the state prosecutor and without the consent of the suspect should
be considered in particular, as well as the length of the terms for deprivation
of liberty by the police and the need to have the police making decisions in
the proceedings.
Consider the need to
amend the time period for the decision of the state prosecutor on holding the
suspect and to define the time period for the appeal against the decision on
holding the suspect. Consider the need to change the period of holding for
certain criminal offences (organized crime and corruption).
Chapter XVIII – INVESTIGATION
Provisions on offering
evidence in the investigation should be amended so that the following is added:
obligation of the state prosecutor to adopt the decision that is appealable.
Chapter XIX – INDICTMENT AND REVIEW OF INDICTMENT
The provisions that
regulate the control of the indictment need to be amended in the following
aspects: functional jurisdiction to confirm the indictment, time limits for
confirming the indictment in complex cases, as well as defining the obligation
of the state prosecutor to separate the inadmissible evidence and data from the
case file that the court decision cannot be based on.
Chapter XX – AGREEMENT ON ADMISSION OF GUILT (PLEA
BARGAIN)
Articles 300, 301, 302
and 303 should be amended in the following aspects: detention after judgment is
rendered on the basis of the plea bargain in relation to Article 376 should be
regulated, as well as the range of the criminal offences in relation to which
the plea bargain can be used.
Chapter XXI – PREPARATIONS FOR THE MAIN HEARING
Chapter XXII – MAIN HEARING
No amendments needed.
Chapter XXIII – JUDGMENT
Provisions related to
detention after pronunciation of the judgment in case of agreement for
admission of guilt (Article 376).
Chapter XXIV – REGULAR LEGAL REMEDIES
Consider the need to make
amendments with the effect of limiting the second instance court in their
ability to quash the first instance judgment several times as well as with the
effect of extending the deadline for the decision of the second instance court
in the cases of organized crime.
Article 392 paragraph 2
stipulates that "when the State Prosecutor returns the file, the Chair of
the Panel will schedule the session of the Panel and notify the State
Prosecutor, the accused and his/her defense attorney thereof". The words the accused and his/her defense attorney
should be omitted from this provision, since Article 393 paragraph 1 of the
Criminal Procedure Code stipulates that "the defendant and his defense
attorney, subsidiary prosecutor or private prosecutor who, within the term for
appeal or for a reply to an appeal, requested that they be notified of the
session or proposed that a hearing be held before the second instance court....
shall be notified of the Panel session". Notifying the defendant and his
defense council if they did not request to be present in the Panel session will
just slow down the proceedings upon appeal and will be pointless if they did
not request to be informed about the Panel session. On top of that, the
defendant and his/her defense attorney were not informed about the session
unless they explicitly requested so in the appeal or in the reply to the appeal.
Article 413 paragraph 2
of the CPC stipulates that "a third instance court shall decide on the
appeal filed against the second instance decision pursuant to the provisions of
the Criminal Procedure Code regulating the second instance proceedings".
This provision should be amended because the Code did not provide for the opportunity
for the parties to file appeals against the decision of the Supreme Court and
did not define who they can file the appeal to.
Chapter XXV – EXTRAORDINARY LEGAL REMEDIES
Article 438 paragraph 4
stipulates that the accused person and his/her defense attorney may file an
appeal with the Supreme Court against the decision of the Supreme State
Prosecution within eight days of the receipt of the decision. This provision
should be amended in such a way that the appeal is filed with the Supreme Court
through the Supreme State Prosecution, as it is done when the appeal is filed
against the first instance and second instance judgment to the immediately
higher court. In that way the appeal with the case file would be submitted to
the Supreme Court. Thus the procedure would be shortened and the Supreme Court
would not have to ask for the file separately from the Supreme State
Prosecution and separately from the courts whose decisions are quashed. It is
also necessary to regulate who is to decide if the appeal is inadmissible, i.e.
filed by a person who has no authorization to file it.
Chapter XXVI – SUMMARY PROCEEDINGS
Article 448 stipulates
the grounds for imposing detention in summary proceedings. On top of the two
existing grounds, we should add that the detention in the summary proceedings
can be imposed on the basis of Article 175 paragraph 1 item 5 of the CPC. The
detention should also be imposed on the accused in this stage of the
proceedings if there are circumstances that show that the accused will reoffend.
Article 449 paragraph 1
stipulates: "If a criminal charge was submitted by an injured party and the State
Prosecutor fails within a term of one month to prefer a motion to indict, or to
notify the injured party of the dismissal of the criminal charge, the injured
party shall be entitled to institute a prosecution in the capacity of a
prosecutor by submitting a bill of indictment to the court". This
provision should be amended because Montenegro can be faced with parallel
proceedings conducted by the court and by the prosecutor.
Chapter XXVII – PROCEDURE FOR ISSUANCE OF A PENAL
ORDER WITHOUT HOLDING A MAIN HEARING
No amendments needed.
Chapter XXVIII – SPECIAL PROCEEDINGS ON IMPOSITION OF
JUDICIAL ADMONITION
No amendments needed.
Chapter XXIX – PROCEEDINGS FOR IMPLEMENTATION OF
SECURITY MEASURES, FORFEITURE OR PROPERTY GAIN, CONFISCATION OF PROPPERTY WHOSE
LEGAL ORIGIN IS NOT PROVED AND REVOCATION OF A SUSPENDED SENTENCE
The provision that refers
to the forfeiture of property gain should be separated into a separate law.
- Conclusion
Analysing the proposal of
the needed amendments to the Criminal Procedure Code we concluded that the Code
should be amended as described above. We also concluded that the established
concept of the criminal procedure should not be changed.
After adoption of this Report in
July 2013, Montenegro should establish a working team to prepare the text of
the Proposal Law on Amendments to the Criminal Procedure Code. Adoption of the
Amendments can be expected in October 2014, given the time needed for
development of the amendments, procuring the expert opinions from the European
Commission and organizing expert discussions.
ANNEX
Comments, expert opinions and
suggestions related to the Amendments to the Criminal Procedure Code on the
basis of which the Report was prepared
Expert opinion of OSCE with the proposals for amending
the CPC obtained during thematic seminars on the implementation of the CPC
Comments and suggestions of the Supreme Court of
Montenegro
Comments and suggestions of the Supreme State
Prosecution Office
Comments and suggestions of the Ministry of Interior
Comments and suggestions of the Police Directorate
Suggestions of the High Court in Podgorica
Comments of the Agency for Protection of Personal Data
Expert opinions of the Institute Alternative
Initiatives of several attorneys at law for amendments
to certain CPC articles