Navigating the Regular Criminal Procedure in Serbia: A Comprehensive Guide

Regular Criminal Procedure Course in Serbian Law

Understanding the regular criminal procedure in Serbia is essential for anyone involved in the legal process, from legal professionals to individuals facing criminal charges. This comprehensive guide delves into the intricacies of Serbia’s criminal justice system, explaining the phases of criminal proceedings, the roles of various legal entities, and the procedural steps mandated by law. Whether you’re seeking to grasp the fundamentals or need detailed insights into specific stages like investigation and indictment, this article offers valuable information to help you navigate the complexities of Serbian criminal law.

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Authorized Prosecutor

For criminal offenses prosecuted ex officio, the authorized prosecutor is the public prosecutor, while for criminal offenses prosecuted by private action, the authorized prosecutor is the private prosecutor. Depending on this, criminal prosecution can begin by:

  1. The first action of the public prosecutor, or authorized police officers based on the public prosecutor’s request, undertaken in accordance with the CPC to verify the grounds for suspicion that a criminal offense has been committed or that a certain person has committed a criminal offense;
  2. Filing a private lawsuit.

If the public prosecutor declares that they withdraw from the prosecution, the injured party may take their place as a prosecutor under the conditions prescribed by the CPC.

What is the Regular Criminal Procedure Course?

The course of criminal proceedings involves undertaking legally prescribed, distinct criminal procedure actions by criminal procedure entities in a legally determined order, through which a specific criminal matter is discussed and resolved. Since the order of actions is strictly legally determined, it cannot be changed in practice, and any deviations must be legally grounded. Given that regular criminal proceedings are envisaged for most criminal offenses, especially the most serious ones, their structure is particularly detailed, and the legal regulation of other proceedings comes down to prescribing exceptions from the regular procedure and introducing some specificities characteristic of each special, auxiliary procedure.

Stages of Criminal Proceedings

In general, the regular criminal procedure can be divided into:

  • First-instance criminal procedure
  • Legal remedies procedure (second-instance criminal procedure)

First-instance Criminal Procedure

The first-instance criminal procedure takes place before the first-instance court that clarifies and resolves the criminal matter. This procedure has two stages:

  • Preliminary stage
  • Main criminal procedure

Preliminary Criminal Procedure

The preliminary criminal procedure is the first stage, comprising three phases: pre-investigation procedure, investigation, and indictment.

Pre-investigation Procedure

As the first phase of the preliminary criminal procedure, this process has characteristics of an informal (pre-criminal) procedure. It is not legally defined and involves activities by the public prosecutor (as the head) and the police when there are grounds for suspicion that a criminal offense prosecuted ex officio has been committed. Activities include operational-tactical measures, evidence collection, ensuring the suspect’s presence, and filing a criminal complaint. The purpose is to investigate a potential criminal event to the extent of suspicion allowing the public prosecutor to decide on formally initiating or not initiating an investigation – a criminal procedure. This phase can also involve applying the principle of prosecutorial discretion, potentially avoiding the initiation and conduct of criminal proceedings. The pre-investigation phase can end with initiating a criminal procedure (usually by issuing an investigation order) or dismissing the criminal complaint.

Investigation

Investigation is the second phase, initiated when there are grounds for suspicion of a criminal offense, conducted against known or unknown perpetrators (Art. 295 CPC). It starts with an order from the competent public prosecutor before or immediately after the first evidence-gathering action by the prosecutor or police during the pre-investigation phase, no later than 30 days from when the prosecutor was informed of the first evidence-gathering action (Art. 296, paras 1 and 2 CPC). The investigation aims to collect evidence and information necessary to decide on filing an indictment or terminating the criminal procedure (Art. 295, para 2 CPC). The investigation concludes with the prosecutor’s order to end the investigation. Investigation is not mandatory and can be skipped if direct indictment is possible based on sufficient evidence about the offense and the perpetrator (Art. 331, para 5 CPC).

Indictment

Indictment is the third phase, involving the filing of an indictment and its review by the defendant or their defense attorney and by the court ex officio. It starts with the filing of an indictment and ends with its legal effect or termination of the criminal procedure. The public prosecutor files an indictment when there is reasonable suspicion that a specific person committed a criminal offense (Arts. 331-343 CPC).

Preparing the Main Trial

The main criminal procedure, the second stage of regular criminal procedure, begins with the indictment’s legal effect and ends with the first-instance judgment. This stage includes three phases: preparing the main trial, the main trial, and judgment delivery. All activities in this stage aim to establish the truth and adjudicate the criminal matter.

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Main Trial

The main trial is the central phase, starting with the reading of the indictment. It represents the actual trial, discussing all evidence relevant to the judgment. Key activities include:

  • Opening the main trial by the presiding judge, stating the trial’s subject and the court composition.
  • Beginning the main trial with the reading of the indictment.
  • Conducting the first evidence-gathering action, usually the defendant’s examination.
  • Conducting the evidence procedure (examining witnesses, experts, presenting material evidence, etc.).
  • Giving closing statements by the authorized prosecutor, injured party, defense attorney, and defendant (Arts. 353-415 CPC).

Judgment Delivery

The last phase of the main criminal procedure is delivering the judgment, including its pronouncement (in a private session after deliberation and voting by the court panel), publication, written drafting, and delivery of the judgment.

Second-instance Criminal Procedure

The second-instance criminal procedure is optional, conducted before a higher court, contingent on using regular legal remedies by authorized entities to discuss and decide on the correctness and legality of the first-instance court’s trial. When the possibilities for regular legal remedies are exhausted, or the statutory deadlines for their filing expire, the first-instance judgment becomes final. The procedure with extraordinary legal remedies (request for reopening the criminal procedure and request for protection of legality) is conducted against final court decisions, i.e., decisions no longer subject to regular legal remedies.

When is a Criminal Procedure Considered Initiated?

A criminal procedure is considered initiated by:

  1. Issuing an investigation order.
  2. Confirming an indictment without prior investigation.
  3. Issuing a detention order before filing an indictment proposal in a summary procedure.
  4. Scheduling the main trial or a hearing for imposing criminal sanctions in a summary procedure.
  5. Scheduling the main trial in a procedure for imposing a security measure of mandatory psychiatric treatment (Art. 7 CPC).

When Does a Criminal Procedure End?

A criminal procedure can end by:

  1. Judgment (conviction, acquittal, or dismissal).
  2. Conclusion of a plea agreement (judgment accepting the agreement).
  3. Termination of the investigation (prosecutor’s order).
  4. Termination of the procedure (ruling by the non-trial panel or the presiding judge).
  5. Dismissal of the indictment (ruling by the non-trial or trial panel).

Territorial and Subject-matter Jurisdiction of the Court

Jurisdiction is the legally established right and duty of a specific court to exercise judicial power in a particular case. It is the scope of the court’s work determined by law. Judicial jurisdiction in criminal matters can be subject-matter, territorial, and functional.

Subject-matter Jurisdiction (Arts. 22-24 and Art. 30 LCA)

Subject-matter jurisdiction is the right and duty of a court to conduct and conclude a procedure based on the seriousness of the criminal offense, expressed in the prescribed penalty, and the characteristics of the perpetrator. It is determined by the Law on Court Organization (LCA).

  • The Basic Court adjudicates in the first instance for criminal offenses punishable by fines or imprisonment of up to ten years, unless another court has jurisdiction over specific offenses.
  • The Higher Court adjudicates in the first instance for criminal offenses punishable by imprisonment over ten years and specific, statutorily listed offenses that would otherwise fall under the Basic Court’s jurisdiction (Art. 23 LCA).
  • The Higher Court also handles criminal procedures involving minors, decides on requests for the termination of security measures or the consequences of convictions, rehabilitation requests, bans on the dissemination of press and public information, extradition procedures, international legal assistance in criminal matters, and executes foreign court judgments.

Territorial Jurisdiction (Arts. 23-29, Arts. 32-33 CPC)

Territorial jurisdiction is the right and duty of the court with subject-matter jurisdiction to resolve a specific criminal matter based on the territory for which it is established. The CPC regulates the criteria for determining territorial jurisdiction, which can be regular or extraordinary.

  • Regular territorial jurisdiction is based on the place of the criminal offense (forum delicti commissi), the place of the defendant’s residence (forum domicilii), or the place of arrest or self-reporting (forum deprehensionis).
  • Extraordinary territorial jurisdiction includes precedence jurisdiction (forum praeventionis), jurisdiction by connection (forum connexitatis), delegated jurisdiction (forum delegationis), and designated jurisdiction (forum ordinatum).

So, the regular criminal procedure in Serbia is structured to ensure legal compliance and efficiency in handling criminal matters. Understanding the phases and jurisdictional aspects is crucial for navigating the complexities of the Serbian legal system.

Finally, navigating the regular criminal procedure in Serbia can be complex, but understanding its phases and legal intricacies is crucial for ensuring fair and efficient justice. From the initial investigation to the final judgment, each stage plays a vital role in the criminal justice system. By familiarizing yourself with the procedural steps and legal requirements, you can better prepare for what lies ahead, whether you’re a legal professional, a defendant, or an interested observer. Stay informed and equipped to handle the challenges of criminal proceedings with confidence and clarity.

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