In Serbia, at the end of the week, the public debate on changes to the set of laws: the Code of Criminal Procedure, the Criminal Code and the Law on the Judicial Academy will end.
Justice was said to be blind, and now it seems she has become deaf. Namely, in the middle of a public discussion, the Minister of Justice turned a deaf ear to all criticisms or called them malicious.
None of the members of the working groups that worked on the current amendments to the Criminal Procedure Code have so far said a word to explain and defend the proposals. Praises are pouring in from the ruling politicians, although the proposal is so far-fetched that abuses are inevitable. At the same time, independent legal experts, judges, lawyers, prosecutors... there is no one who does not criticize the changes.
The prosecutor of the Higher Public Prosecutor's Office in Belgrade, Milena Božović, explains to the weekly "Vreme" why she is worried about the future role of prosecutors in investigations and proceedings. He also adds that, if the Criminal Procedure Code is adopted in its entirety, the defendant will be in a better position than ever.
WEATHER: Why are you concerned about the role of the prosecutor in the future??
MILENA BOŽOVIĆ: Part of the authority previously held by the public prosecutor is transferred to the judge for preliminary proceedings. It's like going back in time to the era of investigative judges. Who did or did not do what in an investigation - this kind of system will help to move the balls of responsibility more easily. As for the public, it can only be more confused than before when it comes to the proceedings, because it is also possible that we do not know who is doing what and who is leading the investigation, the prosecutor or the judge.
Judges will be able to interfere in the current work of the prosecution?
Whether an investigation is founded, whether the proposal for detention is founded - the final word will be given by the judges, not the prosecutors as before. Judges will also decide on the questioning of a witness who, for example, is not important for the prosecutor.
Court intervention will be possible in other cases as well. Namely, the fundamental right for a defendant who does not understand the language of criminal proceedings is the right to interpretation and translation. This right is prescribed by the current code, and it is the duty of the procedural authority to provide the defendant with a court interpreter or translator.
The novelty is that the defendant will have the right to choose and propose to the procedural body (court or prosecutor's office) the interpreter or translator he wants, and the defendant will have the right to file an appeal against the decision of the procedural body rejecting such a proposal, which greatly delays procedure and it is very controversial from the aspect of feasibility when the person is arrested. All this affects the delay of the procedure and the increase in the costs of the procedure.
Too, the court will also decide on the status of a particularly vindictive witness?
These are usually victims of crimes such as rape, serious intimidation, young people or those in subordinate positions who are usually psychologically sensitive and exposed to stress. The amendments stipulate that the defendant will be able to appeal the decision of the prosecutors to grant someone the status of a particularly sensitive witness. And if the judge accepts the defendant's appeal and revokes the special sensitivity status of the witness, that's it, the witness can no longer appeal against such a court decision.
If a particularly sensitive witness is revoked by a judge's decision, then the final decision is prejudiced in some way because the victim's victim status is actually taken away.
The sole aim of this institute is to protect the victim from secondary victimization and to testify without hindrance, without fear, and in no way infringes on the rights of the accused. Namely, the defendant has the right to ask questions of the witness, only via video link, and now this will be subject to review. It is not clear why the defendant is given the right to appeal when this right of the victim does not diminish the defendant's rights in any way.
And that is not the end for better rights of the accused?
According to the defendant, it will no longer be possible to order custody if the way the act was committed and the severity of the consequences caused the public to be disturbed. We are talking about all those cases that were given special attention when the media as the seventh force rose to its feet... Everything leads to ignoring the old one "in the name of the people". The public prosecutor will have to inform the defendant and the defense attorney about the time and place of the questioning of witnesses or experts, and until now it was enough just to send such a summons, without the obligation to request proof of service. Defendants will not have the obligation to provide us with their email address. And if I do find out, and send an invitation by email, if the lawyer does not reply that he has received the email, nothing again. All this leads to an endless delay of the proceedings if it is in the interest of the defendant.
Expert opinions will also be questioned?
Until now, prosecutors and judges have determined expert opinions performed by people who have taken an oath to give an accurate report and those persons are officially registered with the Ministry of Justice. In the future, as before, the defense can hire or pay expert advisors to challenge the findings and opinions, and they do not have to be in the official register, nor do they have to swear that they will give a true opinion, but only based on the best of their knowledge. However, in the future, the status of experts hired by the prosecution and the court will be equated to the status of those paid by the defense, who are not obliged to give a true opinion.
In the event that the opinions of experts and expert advisors differ, the judge will be able to determine new expert opinions. These are new costs, new delays, but also new controversies. Namely, if someone has been on trial for rape or drugs for years, the long passage of time can affect the expert's findings.
And as much as everything seems to be better for the accused, it seems that the defendant will not have the same status?
Exactly. We will have privileged defendants. Those will be the ones the prosecutor decides to hear first. The first defendant will be heard without the presence of the other defendants and their lawyers. In the case of the second defendant in the order of hearing, only the first defendant who was heard with his lawyer will be able to be present during the testimony. So, when the last one comes to testify at the prosecutor's office, all those who have already been heard with their defense attorneys will be able to follow his presentation and ask him questions, and he had no right to ask them those questions. How the prosecutor will determine and according to which criteria which defendant will be heard first, and who will be heard second or third or last, is not prescribed, which can lead to manipulation of the procedure at the start.
Apart from these objections to the amendments to the Criminal Procedure Code, How do you feel about the changes from the Law on the Judicial Academy??
The Judicial Academy serves the professional training of future candidates for judges and prosecutors. It is not clear why, in addition to judges and prosecutors, there is also a member appointed by the Government of Serbia in the Management Board of the Academy under the new law. This may point to the danger that the executive power, even during training, is recruiting future judges and prosecutors.
The same Board of Directors elects the committee before which new candidates take the entrance exam, which consists of three parts: written, oral and personality test. And the legislator did not set clear criteria for taking the oral part of the exam, so personal impression can prevail, that is, manipulating it.
