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Greater Powers for Attorneus at Law

Draft of the New Code on Criminal Procedure

In the future, during expert forensic evaluation, the defense attorney and the accused will be allowed to engage an expert advisor.
Belgrade – “When working on the new Code on Criminal Procedure (CCP) we have especially given attention to keeping the existing scope of rights of the defense intact and even extending these rights in certain segments, while keeping the desired level of efficiency and preventing, as much as possible, the possibility of procedural abuse,” stated Slobodan Beljanski, PhD, Attorney at Law and member of the working group for drafting the CCP for the Blic newspaper.

The new legislative project stipulates the public prosecutor’s duty during the investigation to call the suspect and his/her defense attorney to be present at the crime scene investigation and during witnesses questioning, to provide access to documents and objects related to the case and to inform them of their right to offer suggestions regarding evidence collection.

“Moreover, during the investigation, the suspect and his/her defense attorney will have the right to independently collect evidence benefiting the defense as well as to propose certain activities related to evidence collection to the public prosecutor. If the public prosecutor should reject or overlook these suggestions the defense, i.e. the suspect, may ask that the decision on this matter be made by the judge who has jurisdiction in the preliminary proceedings, and even that the judge should carry out these activities instead of the public prosecutor,” Beljanski explains.

- In the future, the defense attorney and the accused will be able to hire an expert advisor during expert forensic evaluation. The expert advisor is entitled to be informed of the day, time and location where the expert forensic evaluation is to take place, to review documents and the object of evaluation and to propose certain activities to the forensic specialist. The expert advisor will also be allowed to give comments on the findings and the opinion given by the forensic specialist, to pose questions to the forensic specialist, i.e. the expert witness at the main hearing, and to give testimony regarding the object of expert forensic evaluation.

“In order to provide for an effective defense, the law stipulates that in first instance proceedings before a superior court and in proceedings before the Court of Appeals, the defense counselor can only be an attorney at law with at least five years of experience at the bar, in court or in a public prosecutor’s office as an elected officer.  In the case of proceedings before the Supreme Court of Cassation, it is necessary that the defense attorney have at least seven years of such experience,” states Beljanski.

For the first time the law also regulates the protection of the accused when he/she decides to represent his/her own defense in a situation where defense is mandatory. In such cases a stand-by defense attorney is stipulated by law. The provisions of the new CCP reduce the possibility of extending detention due to the danger of a repeated offense, which was, in practice, to a great extent and without valid justification, used to extend detention to the maximum.

“All of this will not weaken the instruments aimed at preventing obstruction of justice, which include the possibility of excluding a defense attorney who is himself/herself the subject of criminal proceedings due to reasonable suspicion that he/she has committed a criminal offense in relation to the case, in the sense of preventing and obstructing evidence or enabling the escape of a detainee,” says Beljanski, Attorney at Law.