Part I
GENERAL PROVISIONS
Chapter VI
DEFENSE COUNSEL
The right of the defendant to professional defense
Article 67
(1) The defendant may have a defense counsel during the entire criminal proceeding and at any time.
(2) The defense counsel may also be hired by his legal representative, spouse, person living with him in a common law marriage, blood relative in the direct line, adopted child, adopter, brother, sister and foster parent.
(3) Only an attorney can be retained as defense counsel, and he can be replaced by a trainee lawyer only in cases the prosecution is conducted for a criminal offence with a stipulated penalty of up to five years of imprisonment. Only an attorney can appear as defense counsel before the Supreme Court of Serbia.
(4) Defense counsel shall be obligated to submit the power of attorney to the authority before which the proceeding is being conducted. The defendant may grant the power of attorney to the defense counsel orally, which is recorded in front of the authority before which the proceeding is being conducted. The defense counsel shall be obliged to state in the power of attorney his place of business and the accurate address and all the other data needed by the authority conducting the criminal proceeding, for the purpose of summoning the defense counsel and serving him with written notices.
(5) The defense counsel shall have the obligation to inform the body conducting the proceeding in a timely manner of each change of address and residence.
(6) The authority conducting the proceeding may impose a fine of CSD 150,000 on the defense counsel who fails to perform duties stipulated in paragraphs 4 and 5 of the present Code and oblige him to cover all the costs which have arisen in connection with the failure to perform these duties.
(7) The defense counsel may file an appeal against the order stipulated in paragraph 6 of the present Article. The appeal is decided by the Chamber referred to in Article 24, paragraph 6 of the present Code and does not stay its execution.
Several defense counsels and a joint defense counsel
Article 68
(1) Several of the defendants may have a joint defense counsel only if this is not
contrary to the interests of their defense and if the authority conducting the proceeding has assessed that there was no potential conflict of interest between the defendants.
(2) A single defendant may at the same time have up to three defense attorneys, and in exceptional cases and subject to the approval of the court, the maximum of five defense attorneys. It shall be considered that the defense has been secured when at least one of the defense counsels is present during the proceedings.
Persons who cannot be defense counsel
Article 69
(1) A co-defendant, injured party, spouse of the injured party or of the prosecutor, nor their relatives that are related in the direct blood line up to any degree, in the collateral line up to the fourth degree and by marriage up to the second degree, cannot act as the defense counsel to the defendant.
(2) Defense counsel can neither be a person summoned as a witness, except if such person has according to the present Code been revealed of its duty to testify and has declared that he shall not testify.
(3) The defense counsel cannot be a person who has in the same case acted as a Judge or a Public Prosecutor or has undertaken activities in the preliminary investigation.
Exclusion of defense counsel from criminal proceeding
Article 70
(1) It the defense counsel has abused the contact with the defendant while he is in detention, with an aim to mediate in exerting the influence on witnesses, co¬defendants or aiders and abettors, i.e. if the defense counsel has in any other way by means of abuse of his right to contact the detainee, participated in the performance of a criminal offence, preparation of escape of the detainee or obstruction, i.e. frustration of the purpose of detention, the court shall issue an order by which he is excluded from this criminal proceeding and fined with CSD 300.000.
(2) In the circumstances stipulated in paragraph 1 of the present Article, the defendant shall be called to take another counsel, and in cases of mandatory defense, the defense counsel shall be appointed by the court in compliance with Article 71, paragraph 4 of the present Code.
(3) When there has been a change of defense counsels as provided for in paragraphs 1 and 2 of the present Article, the court shall leave enough time for the counsel to
get acquainted with the case ant prepare the defense.
(4) The court shall issue ruling from the paragraph 1 of the present Article upon hearing the defense counsel for whom the probable cause exists that he abused his position in the manner described in paragraph 1 of the present Article, in the presence of the prosecutor, the defendant and the representative of the Attorney Bar Association of which the defense counsel is a member, and upon examining other necessary evidence.
(5) An appeal may be taken from exclusion ruling, which shall be determined by the Chamber referred to in Article 24, paragraph 6 of the present Code and which shall stay the enforcement of the ruling.
(6) The Attorney Bar Association shall be notified of the exclusion ruling of defense counsel when the ruling becomes final and shall, within one month of the receipt of the notice, inform the President of the Court of the measures that it has undertaken.
(7) The exclusion order of defense counsel and the imposed fine stipulated in paragraph 1 of the present Article, shall not exclude the possibility of criminal prosecution of the defense counsel, if his actions constitute the significant elements of a specific criminal offence.
Obligatory defense in the criminal proceeding
Article 71
(1) If the defendant is mute, deaf, or is not able to successfully defend himself, or if the proceeding is conducted for a criminal offence with a stipulated penalty of more than ten years of imprisonment or a more severe penalty, the defendant must have a defense counsel from the moment of the first interrogation.
(2) The defendant who was placed in detention must have a defense counsel from the moment the custody is imposed and during the time he is held in detention.
(3) The defendant who is tried in absence (Article 328) must have a defense counsel from the moment of rendering a ruling on trial in absentia.
(4) If the defendant, in the event of obligatory defense stipulated in the previous paragraphs does not obtain a counsel himself, the President of the Court shall appoint a defense counsel ex officio for the further course of the criminal proceeding up to the final judgment, and if a jail sentence of over thirty years is imposed – the defense counsel shall also be appointed for the proceedings on extraordinary legal remedies. When the defense counsel is appointed ex officio to
the defendant after the indictment has been raised, the defendant shall be notified of this along with the service of the indictment. If in cases of obligatory defense, the defendant is left without a defense counsel during the trial, and he does not obtain another defense counsel himself, the President of the Court before which the proceeding is being held shall appoint a defense counsel ex officio.
(5) An attorney who is capable of providing adequate legal assistance to the defendant in the criminal case which is the subject of the proceedings, shall be appointed as the defense counsel, according to place on the list of the attorneys that has been compiled upon the proposal of the relevant Attorney Bar Association, by the President of the first instance Court, i.e. Public Prosecutor or Chief of Police who has jurisdiction in cases when the defense counsel is appointed to the defendant during the preliminary investigation or investigation, and the interrogation of the defendant is conducted by the Public Prosecutor or the Police in compliance with the provisions of the present Code.
Appointment of defense counsel to an indigent defendant
Article 72
(1) When the conditions do not exist for an obligatory defense, and the proceeding is conducted for a criminal offence with a prescribed sentence of over three years of imprisonment and in other cases when this is in the interest of justice, a defense counsel shall be appointed upon the request of the defendant who is not able to bear the costs of his defense due to his financial status.
(2) The ruling on this request shall be rendered by the Investigative Judge, President of the Chamber, i.e. Single Judge and the defense counsel shall be appointed by the President of the Court. The provision stipulated in paragraph 5 Article 71 of the present Code shall be applied when appointing the defense counsel
Release of defense counsel
Article 73
(1) The defendant, i.e. another authorized person (Article 67, paragraph 2) may take another defense counsel instead of the appointed defense counsel (Articles 71 and 72). In that case the appointed counsel shall be released of his duties.
(2) The defense counsel appointed in compliance with Article 71 paragraph 2 of the present Code is released of his duties when the Ruling on discontinuance of detention becomes final.
(3) The appointed defense counsel can request to be released for justified reasons.
(4) Regarding the release of the defense counsel in circumstances provided for in paragraphs 1 and 2 of the present Article, prior to the commencement of the trial the ruling is rendered by the Investigative Judge, i.e. President of the Chamber, during the trial the ruling is rendered by the Trial Chamber, and during the appeal proceedings by the President of the first instance trial chamber, i.e. Chamber that has jurisdiction to rule on the appeal. Against such ruling the appeal is not allowed.
(5) The Public Prosecutor shall be obliged to inform the Investigative Judge, during the investigation, if the defense counsel is performing his duties unprofessionally, and the Investigative Judge may render a ruling on the release of the defense counsel in compliance with paragraph 4 of the present Article.
(6) The President of the Court, upon obtained opinion of the authority before which the criminal proceeding is being conducted, may release the appointed defense counsel who is performing his duties unprofessionally. The President of the Court shall appoint another defense counsel instead of the released defense counsel. The Attorney Bar Association shall be notified about the release of the defense counsel, and it shall be obliged to inform the President of the Court within two months, of the measures it has taken.
The right of the defense counsel to examine the evidence
Article 74
(1) After the Order on instigating the investigation has been issued or right after the direct indictment has been raised (Article 285), and even prior to this, if the suspect has been interrogated in compliance with the provisions provided for the interrogation of the defendant, the defense counsel has the right to examine the documentation and the collected items used as evidence, in the presence of an official person of the Clerk's office of the Public Prosecutor or Clerk of Court, who shall prepare an official note on this.
(2) The defense counsel does not have a right to copy the transcripts referred to in Article 147, paragraph 2 of the present Code.
(3) Immediately prior to the first interrogation of the suspect, the defense counsel shall have the right to read the criminal offense report, i.e. notification on the criminal offence.
The right of defense counsel to have contact with the defendant held in
detention
Article 75
(1) If the defendant is held in detention, the defense counsel may exchange letters or talk with him.
(2) The defense counsel has the right to a confidential conversation with the suspect who has been detained even before the interrogation of the suspect, as well as with the defendant who is in detention. The only control allowed of this conversation prior to the fist interrogation and during the investigation shall be visual control, while audio control shall not be allowed.
(3) The defense counsel and the defendant may not confer on how the defendant should reply to question that has already asked.
(4) The Investigative Judge may ex officio or upon the request of a Public Prosecutor, order that the letters, sent by the defendant who is held in detention to his defense counsel or sent by the defense counsel to the defendant in detention, be handed over only after he has examined them, if there is reasonable cause to believe the they have been used in an attempt to organize escape, influence the witnesses, intimidate the witnesses or some other obstruction of the investigation. The Investigative Judge shall make an official note on retaining and examining of the letters.
(5) When the investigation is concluded or when the indictment, i.e. motion to indict without prior conducting of the investigation have been raised, the unsupervised correspondence and conversations between the defendant and defense counsel may no longer forbidden.
General authority of defense counsel and the termination of defense counsel
Article 76
(1) The defense counsel shall be authorized on behalf of the defendant to undertake all actions which the defendant is allowed to undertake, with the exception of those actions which, due to their nature and in compliance with the provisions of the present Code, may be performed only by the defendant personally.
(2) The defense counsel may not undertake actions which are contrary to the explicitly expressed will of the defendant, except in cases stipulated in Article 388, paragraph 6 of the present Code.
(3) The rights and obligations of the defense counsel cease when the defendant revokes or cancels the power of attorney, i.e. when he is released from duties or within a month from the date when the defense counsel has in compliance with the Code cancelled the power of attorney granted to him by the defendant, except when the defendant already has another defenses counsel or has obtained one.
Rights during trial - legal assistance
Rights during investigation - legal assistance
EDIT.