Part I
GENERAL PROVISIONS
Chapter VII
EVIDENTIARY ACTIONS
3. Examination of the defendant
Basic rules for the examination of the defendant
Article 95
(1) At the first examination of a defendant, he shall be asked for his first name and surname; personal identification number; nickname, if any; the first names and surnames of his parents, maiden name of his mother or family name of a parent that was changed after marriage; place of his birth; address; day, month and year of birth; citizenship; occupation; employment status and employer’s name; financial standing; family situation; if he is literate; his educational background; if he has served the army and if so where and when, if he has the rank of a reserve non¬commissioned officer, officer or military official; if he is listed in the military records and if so at which authority in charge of defense; if he has been decorated; if he has ever been convicted and if so when and for which criminal offense; if he has ever been sentenced and if he has served the sentence and when; if a criminal proceeding is underway against him for another criminal offense; and if he is a minor, who his legal representative is.
(2) The defendant shall be instructed that he shall be bound to appear upon a summons and immediately notify the court of any changes of his address or of intention to change his place of residence, and shall be warned of the consequences if he does not act accordingly. Thereafter, the defendant shall be informed of his rights referred to in Article 5 paragraphs 1, 6 and 7 of the present Code as well as of:
1) why he is being charged and which criminal offense he is being charged with;
2) facts which serve as the basis for reasonable suspicion that he has committed the criminal offense;
3) that he is under no obligation to present his defense or answer any of the questions;
4) that if he decides to present his defense he is under no obligation to incriminate his close relatives, spouse or person living with him in a lasting common-law marriage.
(3) Upon having received the instruction in accordance with paragraph 2 of the present Article, the defendant shall be called on to present his defense if he wishes to.
(4) At his request, the defendant shall be allowed to read the criminal charges, i.e. notification on criminal offense immediately before the first hearing, but after reading it, and before the hearing, the defendant may not consult his defense counsel until the examination has been completed.
(5) The defendant shall be examined verbally, and during the hearing he shall have the right to use his notes.
(6) During the hearing, the defendant should have the opportunity to speak about all incriminating circumstances and state all facts in favor of his defense and his position in criminal proceedings without any interruptions.
(7) Once he has completed his statement, the defendant shall be asked questions if it is necessary to fill the gaps or remove contradictions and ambiguities in his story.
(8) The defendant shall be examined decently and with full respect for his dignity.
(9) Force, threat, deceit, promises, coercion, wearing-out tactics or similar means (Article 143, paragraph 5) must not be used to obtain a statement or confession or a particular action by the defendant that may be used as evidence against him or to achieve any other goal.
(10) The defendant may be heard in the absence of a defense counsel if he has expressly waived this right and defense is not mandatory, if the defense counsel is not present although he has been notified about the examination (Article 278, paragraph 8) and there is no possibility for the defendant to take another defense counsel, or if the defendant has not secured a defense counsel for the first hearing
within 24 hours from the time he has received the instruction on this right (Article 5, paragraphs 6 and 7), except in the case of mandatory defense.
(11) If any actions have been taken in violation of the provisions of paragraphs 9 and 10 of the present Article, or if the defendant has not been instructed about his rights referred to in paragraph 2 of the present Article, or if the defendant’s statements pursuant to paragraph 10 of the present Article regarding the presence of a defense counsel have not been entered into the record, a judicial decision may not be based on the defendant’s statement.
Questioning of the defendant, prohibition to assume admission, and change of the
defendant’s statement
Article 96
(1) Questions shall be put to the defendant in a clear, comprehensible and precise manner so that he can perfectly understand them. The hearing must not be based on the assumption that the defendant has admitted to something that he has not, nor must leading questions be asked.
(2) If subsequent statements made by the defendant differ from the previous ones, and particularly if the defendant revokes his admission, the authority in charge of his hearing shall invite the defendant to present his reasons for giving different statements, i.e. revoking his admission.
Confrontation of the defendant with other persons
Article 97
(1) The defendant may be confronted with a witness or another defendant if the important facts in their statements differ and if the authority in charge of the proceedings believes that this difference may be clarified through confrontation.
(2) The confronted persons shall be placed facing one another and shall be requested to repeat to one another, while maintaining eye contact, their statements regarding each disputable fact and to argue the truthfulness of their respective statements. The authority supervising the confrontation may question the
confronted persons. The course of the confrontation, the conduct and statements of the confronted persons shall be entered in the record and, if the authority in charge of the proceedings finds it opportune, an audio and video recording may be made. The recording of the confrontation shall be attached to the record as its integral part and may be used as evidence.
Identification of objects by the defendant
Article 98
(1) The objects that are in connection with the criminal offense or those that serve as evidence, i.e. those for which it needs to be established whether the defendant recognizes them, shall be presented to the defendant for identification after he has previously described them. If such objects cannot be brought to the defendant, he may be taken to the place where they are located so that they can be shown to him.
(2) Record shall be made on the course of the identification and statements of the defendant and, when the authority in charge of the proceedings finds it opportune, an audio and video recording of the process of identification and statement by the defendant may be taken. If identification is carried out at the location where the objects are, an audio and video recording shall be made as a rule. The recording of the identification shall be attached to the record as its integral part and may be used as evidence.
Recording of the defendant’s statement
Article 99
(1) The defendant’s statement shall be entered into the record as a first-person narrative, while the questions and answers shall be entered into the record only when they refer to a criminal matter.
(2) The defendant may be permitted to dictate his own statement into the record.
(3) As a rule, the defendant’s statement shall be recorded with the audio or audio and video recording equipment, unless when this is impossible for important reasons. The recording of the defendant’s statement constitutes an integral part of the record on the hearing of the defendant and may be used as evidence.
The defendant’s confession
Article 100
When a defendant confesses that he has committed a criminal offense, the authority in charge of the proceedings shall have the obligation to continue gathering evidence on the criminal offense only if the confession has obviously been false, incomplete, contradictory or ambiguous or if the confession is not supported by other evidence, i.e. if there is suspicion that the confession has been made in order to conceal other perpetrators or other criminal offenses.
Examination of a defendant with a disability and examination of a defendant
through an interpreter
Article 101
(1) The defendant shall be examined through an interpreter in the cases envisaged in the present Code.
(2) If the defendant is deaf, questions shall be posed in writing, and if he is mute, he shall be asked to answer in writing. If the examination cannot be carried out in this way, a person with whom the defendant is able to communicate shall be summoned to act as an interpreter.
(3) If the interpreter has not previously taken an oath, he shall swear that he shall faithfully communicate the questions put to the defendant as well as statements made by the defendant. If the interpreter refuses to take the oath, his statement to that effect shall be entered into the record and the authority in charge of the proceedings shall summon another interpreter.
(4) The provisions of the present Code on expert witnesses shall be applied to interpreters as appropriate.
Fair trial standards
Questioning of persons - national proceedings
EDIT.