Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Scope and Objective of the Code

Article 1
The present Code sets forth the rules with the objective to enable a fair conduct of the criminal proceedings and ensure that no innocent person be convicted and that a criminal sanction be imposed on a criminal offender under the conditions provided for in the Criminal Code and on the basis of legally conducted proceedings.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Presumption of innocence and in dubio pro reo

Article 3
(1) A person shall be considered innocent of a crime until his/her guilt has been established by the final judgment.

(2) Public authorities, media, associations of citizens, public figures and other persons shall respect the rule referred to in Paragraph 1 of the present Article and shall not violate other procedural rules, rights of the accused person and the injured party and the principle of independence of judiciary by their public statements regarding the criminal proceedings that is in progress.

(3) The court shall render a decision that is more favourable for the accused person if once all available evidence are provided and presented in the criminal proceedings, only A suspicion remains with respect to the existence of a significant feature of a criminal offence or as regards facts on which depends an application of a provision of the Criminal Code or the present Code.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Rights of Suspects i.e. Accused Persons

Article 4
(1) At the first hearing, the suspects shall be informed about the criminal offence they are charged with as well as the grounds for suspicion against them.

(2) Suspects shall be provided with an opportunity to make a statement regarding all the facts and evidence incriminating them and to present all facts and evidence in their favour.

(3) During the first hearing, the suspects and the accused parties shall be informed that they are not obliged to give any statements whatsoever nor answer the questions they are asked and that all statements they make may be used as evidence .

Rights of Detained Persons

Article 5
(1) Persons deprived of liberty by a competent public authority shall be immediately informed in their language or in a language they understand about the grounds for their apprehension and, at the same time, informed that they are not obliged to make a statement, that they have a right to a defence attorney of their own choice and to request that a person of their choosing be informed on their deprivation of liberty as well as a diplomatic consular representative of a state whose nationals they are or a representative of appropriate international organization if they are stateless persons or refugees.

(2) Persons deprived of liberty without a judgment shall be brought immediately before the competent State Prosecutor with the exception of cases provided for in the present Code.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Right to Use One’s Own Language in Criminal Proceedings

Article 8
(1) The criminal proceedings shall be conducted in the Montenegrin language.

(2) Parties, witnesses and other persons participating in the proceedings shall have the right to use their own language or the language they understand in the proceedings. If proceedings are not conducted in a language those persons understand, interpretation of statements and translation of documents and other written evidence shall be provided.

(3) Persons referred to in paragraph 2 of this Article shall be instructed of their right to interpretation, and they may waive that right if they understand the language in which the proceedings are being conducted. A note shall be made in the record that the participants of the proceedings have been so instructed, and their statement thereto shall also be recorded.

(4) Interpretation shall be entrusted to an interpreter.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Language Used for Presenting Submissions to Courts and for

Remitting Submissions by Courts
Article 9

(3) Court shall issue summonses, decisions and other writs in the Montenegrin language.

(4) If the language of a minority is also in the official use in the court, the court shall deliver writs in that language to persons belonging to the respective national minority if they have used that language in the course of the proceedings. Those persons may request that writs be delivered to them in the Montenegrin language.

(5) An accused person in detention, a person serving a sentence or a person against whom a security measure in a medical institution is being enforced, shall also receive a translation of the writs referred to in paras. 1 and 3 of this Article in the language used by this person during the proceedings.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Prohibition of Use of Force and Extortion of a Confession

Article 11
(1) It shall be forbidden to threaten or exert violence over a suspect, accused person or another person participating in the procedure, as well as to extort confession or another statement from such persons.

(2) No judgment shall be based on any confession or other statement obtained by extortion, torture or inhuman or degrading treatment.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Right to Defense

Article 12
(1) Accused persons shall have the right to defend themselves in person or with the professional assistance of a defence attorney of their own choice from the ranks of attorneys-at-law.

(2) Accused persons shall have the right to have a defence attorney present during their hearing.

(3) Prior to the first hearing the accused persons shall be instructed of their right to retain a defence attorney, to agree with the defence attorney on the manner of defence and told that a defence attorney may be present during their hearing. They shall be cautioned that everything they state may be used as evidence against them.

(4) If the accused persons do not retain a defence attorney by themselves, they shall be appointed an ex officio defence attorney by the court, when stipulated so by the present Code.

(5) Accused persons shall be ensured enough time and possibilities to prepare their defence.

(6) The suspects shall have the right to a defence attorney in accordance with the present Code.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Right to a Prompt Trial

Article 15
(1) The accused persons shall have the right to be brought before the court in the shortest possible time and to a prompt trial.

(2) The court shall be obliged to conduct the proceedings without delays and to prevent all abuses of rights that are vested in participants in the proceedings.

(3) The duration of detention and other forms of restrictions of freedom shall be reduced to the shortest necessary time.

Part One
GENERAL PROVISIONS

Chapter I
BASIC RULES

Principle of Truth and Fairness

Article 16
(1) The court, State Prosecutor and other public authorities participating in the criminal proceedings shall truthfully and completely establish all facts relevant to render a lawful and fair decision, as well as examine and establish with equal attention facts that incriminate the accused person and the ones in his/her favour.

(2) The court shall ensure equal terms to the parties and to the defence attorney as regards the offering, accessing and presenting of evidence.

Part One
GENERAL PROVISIONS

Chapter VI
DEFENSE ATTORNEY

Right to a Defense Attorney

Article 66
(1) Accused persons shall have the right to a defense attorney.

(2) The accused person’s legal representative, spouse, direct blood relative, adoptive parent, adopted child, siblings or fosterparent as well as his/her extramarital partner may engage a defense attorney on behalf of the accused person.

(3) Only a member of the Bar may be engaged as defense attorney.

(4) Defense attorneys shall submit their power of attorney to the authority before which the procedure is being conducted. The accused person may also submit power of attorney to the defense attorney orally before the authority conducting the procedure.

Part One
GENERAL PROVISIONS

Chapter VI
DEFENSE ATTORNEY

Cases When the Accused Person Shall Have a Defense Attorney

Article 69
(4) The accused persons which are tried in absence within the meaning of Article 324 paragraph 2 of the present Code shall have a defense attorney as soon as the court renders a decision on the trial in absence.

Part One
GENERAL PROVISIONS

Chapter VI
DEFENSE ATTORNEY

Appointment of Defense Attorney Due to Adverse Financial Situation

Article 70
(1) When conditions for mandatory defense are not met, but it is required so by the interests of fairness, at the request of the accused persons, they may be appointed a defense attorney if they are not able to bear the costs of defense under their financial situation.

(2) The decision on the request shall be rendered by the competent State Prosecutor in the preliminary investigation and in the investigation and after the indictment is brought, the President of the Court in accordance with the order on the list of the Bar Chamber.

Part One
GENERAL PROVISIONS

Chapter VI
DEFENSE ATTORNEY

Right of the Defense Attorney to Inspect Files and Examine Objects

Article 72
(1) The defense attorney shall be entitled to inspect and copy files and to examine collected objects which serve as evidence.

(2) The defense attorney shall be entitled to be informed about the content of the criminal charge before the first hearing of the suspect.

(3) By way of exception, the defence attorney may be denied the right to inspect and copy certain files in the preliminary investigation or investigation, if the purpose of investigation, national security or the protection of witnesses would thereby be endangered, which may not compromise the right to defense in further proceeding.

Part One
GENERAL PROVISIONS

Chapter VI
DEFENSE ATTORNEY

Right of the Defense Attorney to Inspect Files and Examine Objects

Article 72

(4) When defense attorneys establish that they were unlawfully deprived of the right to inspect and copy files, they may ask the investigative judge to render a ruling so as to allow the defense attorney to inspect and copy files. An appeal shall not be allowed against the ruling of the investigative judge.

Communication between the Accused Person in Detention and the Defense Attorney

Article 73
(1) If the accused persons are in detention, the defense attorney may correspond with them and have conversations without supervision.

(2) The defence attorney shall enjoy the right to have a private conversation with the suspect who is deprived of liberty even before the suspect is interrogated. The control of this conversation before the first hearing shall be allowed only by observing and not by listening.

Part One
GENERAL PROVISIONS

Chapter VII
EVIDENTIARY ACTIONS

4. HEARING OF THE ACCUSED PERSON

Instruction on the rights and the manner of Hearing of the Accused Person

Article 100

(2) The accused persons shall be admonished that they are obliged to answer the summons and immediately notify of all changes of address or of intention to change their place of residence and shall be warned of the consequences if they do not act accordingly. Thereafter, the accused persons shall be informed on the rights referred to in Article 8, paragraph 2 and Article 12 paragraph 3 of the present Code, of the offence they are charged with, grounds for suspicion against them, they shall be instructed that they are not obliged to present their defense or answer questions asked, and that their statement may be used as evidence in the procedure even without their consent and they shall be invited to present their defense.

(3) The statement of the accused persons on the rights referred to in paragraph 2 of this Article shall be entered in the record and confirmed by the accused persons’ signatures.

(4) The accused person shall be interrogated verbally. During hearing, the accused persons shall have the right to use their notes.

(5) During hearing the accused person shall be enabled to present without hindrance on all incriminating circumstances against them and to present the facts serving for their defense.

(6) After completing their statements, the accused persons shall
be asked questions if it is necessary to fill gaps or remove contradictions and ambiguities in their presentation.

(7) The accused persons shall be interrogated with full respect for their personalities.

(8) Force, threat, deceit, extortion, exploitation or other means referred to in Article 154, paragraph 5 of the present Code may not be used against the accused person in order to obtain their statement, confession or commission that may be used as evidence against them.

Part One
GENERAL PROVISIONS

Chapter VII
EVIDENTIARY ACTIONS

5. WITNESS

Persons Exempted from the Duty to Testify

Article 109
(1) Unless otherwise prescribed by this Code the following persons shall be exempted from the duty to testify :

1) the accused persons’ spouses and their extra-marital partners ;
2) accused persons` direct blood relatives, collateral blood relatives up to the third degree as well as and their relatives by marriage up to the second degree ;
3) accused persons` adopted children or adoptive parents.

(2) Exemption from the duty to testify referred to in paragraph 1 of this Article shall not relate to persons that were invited to testify in the procedure for the criminal offence of neglecting and abusing a minor, domestic violence or violence in a family community and incest, when a minor person is the injured party.

(3) The court conducting the procedure shall instruct the persons referred to in paragraph 1 of this Article prior to their hearing or as soon as the court learns about their relation with the accused
person that they are not obliged to testify. The instruction and the answer shall be entered in the record.

(4) If grounds exist for a person to refuse to testify with regard to one of the accused persons, that person shall be exempted from the duty to testify with regard to other accused persons as well if his/her testimony may not, by nature of the matter, limited only to other accused persons.

Part Two
COURSE OF THE PROCEEDINGS

B. PRE-MAIN HEARING PROCEEDINGS

Chapter XVIII
INVESTIGATION

Openness of Investigation

Article 282

(4) The accused person, defense attorney, injured party, and proxy of the injured party may be present at witness hearings.

(5) The State Prosecutor shall notify in a convenient manner the defense attorney, the injured party, proxy of the injured party, and the accused person of the time and place of taking evidence gathering actions they are entitled to attend, unless there is a risk of delay. If the accused person retains a defense attorney, the State Prosecutor shall, as a rule, notify only the defense attorney. If the
accused person is in detention and the evidence-related action is to be performed outside the court seat, the State Prosecutor shall decide whether the presence of the accused person is needed.

(6) The evidence gathering action may be carried out even in the absence of a duly notified person who fails to appear.

(7) Persons attending the evidence gathering actions may suggest that the State Prosecutor poses certain questions to the accused person, witness or expert witness for the purpose of clarification,
and, upon the permission of the State Prosecutor, may pose questions personally. These persons are entitled to request that their objections as to carrying out certain actions be entered in the records
and may propose that certain evidence be examined.

(8) In order to clarify certain technical or other expert issues which arise in relation to the evidence gathered or at the interrogation of the accused person or in the course of undertaking other evidencerelated actions, the State Prosecutor may require that an expert in the relevant field give necessary explanations in regard to those issues. If the parties are present while the explanation is being conveyed, they may request that the expert provide a more detailed explanation. Where necessary, the State Prosecutor may require a specialized institution to provide an explanation.

(9) The provisions of paragraphs 1 through 8 of this Article shall also be applied if the evidence-related action is undertaken before the order of investigation is rendered.

Part Two
COURSE OF THE PROCEEDINGS

V THE MAIN HEARING AND JUDGMENT

Chapter XXII
THE MAIN HEARING

3. PREREQUISITES FOR HOLDING A MAIN HEARING

Failure of the defendant to appear at the Main Hearing and trying in absence

Article 324
(1) If a duly summoned defendant fails to appear at the main hearing without justifying his/her absence, the Panel shall issue a warrant to bring him/her to the Court by force. If bringing him/her cannot be effected immediately, the Court shall decide not to hold the main hearing and that the accused be brought to the Court by force for the next session. If the defendant justifies his/her absence before being brought to the Court, the Chair of the Panel shall revoke the warrant for apprehension.

(2) The defendant may be tried in absence only if s/he is a fugitive or otherwise unavailable to public authorities and if especially important reasons exist for trying him/her, although s/he is absent.

(3) Upon a motion of the State Prosecutor, the Panel shall render a ruling on the trial in absence of the defendant. The appeal shall not stay the execution of the ruling.

Part Two
COURSE OF THE PROCEEDINGS

V THE MAIN HEARING AND JUDGMENT

Chapter XXII
THE MAIN HEARING

6. COMMENCEMENT OF THE MAIN HEARING AND EXAMINATION OF THE DEFENDANT

Clarification of the indictment and Statement of Guilt

Article 339
(1) After the indictment or the private complaint is read or its contents are orally presented, the Chair of the Panel shall ask the defendant if s/he understands the charge. If the Chair of the Panel is convinced that the defendant has not understood the charge, s/he shall present its contents to him/her once again in a manner that is the easiest for the defendant to understand.

(2) Thereafter, the Chair of the Panel shall call on the defendant to, if s/he wish, enter his/her plea on each account of the charge, to state whether s/he admits that s/he has committed the crime s/he is being charged with and whether s/he pleads guilty, and if s/he pleads guilty to present all facts and if s/he pleads not guilty to present his/her defense.

(3) The defendant is not bound to enter his/her plea or to present his/her defense.

(4) Co-defendants who have not been examined cannot be present during the examination of the defendant.

Part Two
COURSE OF THE PROCEEDINGS

V THE MAIN HEARING AND JUDGMENT

Chapter XXII
THE MAIN HEARING

7. EVIDENTIARY PROCEDURE

Putting questions to witnesses and expert witnesses

Article 350
(1) After the witness or expert witness has been heard, the parties, Chair of the Panel and members of the Panel may put questions to him/her directly, in the consecutive order as determined in Article
342, Paragraph 1 of the present Code. The Injured party, proxy, legal representative and expert witnesses may ask questions directly, subject to the approval of the Chair of the Panel.

(2) The Chair of the Panel shall forbid a question or reject the answer to the question that has already been asked if the question is impermissible (Article 101), or if it does not relate to the case. If the Chair of the Panel forbids a certain question or an answer, the parties may request that a decision on it is taken by the Panel.

Article 55
Rights of persons during an investigation
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.

Article 63
Trial in the presence of the accused
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.

Article 66
Presumption of innocence
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.

Article 67
Rights of the accused
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.