Part I
GENERAL PROVISIONS
Chapter VII
EVIDENTIARY ACTIONS
6. Expert analysis
Order for an expert analysis
Article 126
An expert analysis shall be ordered when the determination or assessment of an important fact calls for the finding and the opinion of a specialist possessing the necessary professional knowledge.
Order for the engagement of an expert witness
Article 127
(1) The authority in charge of the proceedings shall order an expert analysis in writing. The order shall specify the facts for which the expert analysis is required and the persons to whom the expert analysis shall be entrusted. The order shall also be delivered to the parties.
(2) If a particular kind of expert analysis falls within the domain of a professional institution or the expert analysis can be performed within particular government authority, the task, especially if it is a complex one, shall as a rule be entrusted to such professional institution, i.e. government authority. The professional institution, i.e. government authority shall designate one or several experts to provide the expert analysis.
(3) When the authority in charge of the proceedings designates an expert witness, it shall as a rule designate one expert witness, but if the expert analysis is complicated it shall designate two or more expert witnesses.
(4) If there are at the court certain expert witnesses who have been permanently designated for some kind of expert analysis, other expert witnesses may only be designated if there is a danger in delay or if the permanent expert witnesses were prevented, or if other circumstances demand it.
(5) A person whose place of residence is abroad may be designated as an expert witness only exceptionally, when this is obviously justified by the nature of the expert analysis and, especially because of an insufficient number of domestic experts or professional institutions for the specific type of expert analysis, or if other very important circumstances demand it.
(6) Upon a written approval of the President of the Supreme Court of Serbia, an expert analysis may, under the conditions referred to in paragraph 5 of the present Article, be entrusted to a foreign professional institution, i.e. particular authority of some other state only in the case of a proceeding for a criminal offense punishable by imprisonment of more than ten years and when this is obviously justified by the particular complexity of the case, nature of the expert analysis or some other important circumstances.
Duties of an expert witness
Article 128
(1) A person summoned as an expert witness shall have a duty to comply with the summons and give his findings and opinion within the time period specified in the order. The time period from the order may be extended at the request of the expert witness for justified reasons.
(2) If an expert witness who has been duly summoned fails to appear and does not justify his absence or if he refuses to perform an expert analysis, i.e. if he fails to give his findings and opinion within the time period specified in the order, he may be fined up to CSD 300,000 and in the case of a professional institution the fine may be up to CSD 3,000,000. If his failure to appear is unjustifiable, an expert witness may be compelled to appear.
(3) The chamber (Article 24, paragraph 6) shall decide on an appeal against the ruling by which a fine has been imposed.
Recusal of an expert witness
Article 129
(1) A person who may not be examined as a witness (Article 103) or who has been exempted from the duty to testify (Article 104), or against whom the criminal offense has been committed may not be appointed as an expert witness, and if he has been appointed, a judicial decision may not be based on his findings and opinion.
(2) Another reason for the recusal of an expert witness (Article 44.) is also in the case of a person employed by the injured party or the defendant, or a person who has the same employer as one or both of them.
(3) As a rule, a person examined as a witness shall not be appointed as an expert witness.
(4) Where a special appeal has been allowed against the ruling denying the request for the recusal of an expert witness (Article 42, paragraph 4), the appeal shall stay the execution of the expert analysis, except where there is danger in delay.
Proceeding of expert analysis
Article 130
(1) Before the beginning of the expert analysis, the expert witness shall be instructed that he has a duty to study the object of the expert analysis, indicate precisely whatever he observes and finds and give an unbiased opinion thereon in accordance with the rules of science and professional expert analysis. He shall be warned in particular that false testimony is a criminal offense.
(2) The expert witness shall be requested to take an oath before the expert analysis. Before the expert analysis, a permanent expert witness shall be only reminded of the oath already taken.
(3) Prior to the trial, an expert witness may take an oath only before the court and only where there is a danger that he might fail to appear at the trial because of illness or some other reason. The reason why he has taken an oath at that time shall be entered in the record.
(4) The text of the oath goes as follows: “I swear by my personal and professional honor that I shall perform my expert analysis conscientiously and to the best of my
knowledge and that I shall state my findings and opinion accurately and completely.”
(5) The authority in charge of the proceedings shall direct the expert analysis, indicate to the expert witness the objects he is to inspect, ask him questions and, if necessary, request explanations regarding his findings and opinion.
(6) The expert witness may be provided with clarifications and may be allowed to inspect the case file. The expert witness may propose that evidence be collected or that objects and data material to his analysis and opinion be secured. If he attends a site inspection, a reconstruction or some other evidentiary action, the expert witness may propose that specific circumstances be clarified or that the person being examined be asked specific questions.
Examination of the objects of expert analysis
Article 131
(1) The expert witness shall examine the objects of the expert analysis in the presence of the authority in charge of the proceedings and the recording clerk, except where an extensive examination is necessary, or where the examination is conducted in a professional institution, i.e. government authority, or where ethical considerations render it inappropriate.
(2) If an analysis of a specific substance is necessary in order to arrive at an expert analysis, the expert witness shall be given, if possible, a sample of this substance and the remainder shall be kept in case later analyses appear necessary.
Entry of findings and opinions in the record or subsequent filing of written findings
and opinion
Article 132
Expert’s findings and opinion shall immediately be entered in the record. The expert witness may be allowed to submit his findings and opinion in writing within a prescribed period of time determined by the authority in charge of the proceedings.
Expert analysis by a professional institution or government authority
Article 133
(1) If an expert analysis is entrusted to a professional institution or a government authority, the authority in charge of the proceedings shall issue a warning that a person referred to in Article 129 of the present Code or a person who for some other reason provided for in the present Code is exempt from being an expert witness may not participate in giving findings and opinions, as well as warning them of the consequences of presenting a false finding and opinion.
(2) The professional institution, i.e. government authority shall be provided with the material necessary for the expert analysis, and, if necessary, shall proceed in accordance with provisions under Article 130, paragraph 4 of the present Code.
(3) The professional institution, i.e. government authority shall present its findings and opinion in writing, signed by the persons who carried out the expert analysis.
(4) The parties may request from the head of the professional institution i.e. government authority the names of the experts who will perform the expert analysis.
(5) Provisions under Article 130, paragraphs 1 to 5 of the present Code shall not be applied when the expert analysis has been entrusted to a professional institution, i.e. government authority. The authority in charge of the proceedings may request the professional institution or government authority to provide explanations regarding their findings and opinion.
Record of the expert analysis and right to inspect it
Article 134
(1) The record of the expert analysis or the written result of the findings and opinion shall indicate the name, occupation, professional training and specialty of the expert witness who performed the analysis.
(2) When the expert analysis is completed in their absence, the parties and the defense lawyer shall be notified that the expert analysis was completed and that they may inspect the record of the expert analysis, or the written findings and opinion.
Additional expert analysis
Article 135
If the opinion of an expert witness contains contradictions or deficiencies, or if a reasonable suspicion arises about the accuracy of the presented opinion, and if these deficiencies or suspicion cannot be removed by a new examination of the expert witnesses, the opinion of other expert witnesses shall be sought or a new expert analysis carried out by other expert witnesses.
Post mortem examination and autopsy
Article 136
(1) A post mortem examination and autopsy shall always be performed when there is a suspicion or it appears obvious that death was caused directly or indirectly by a criminal offense or is in connection with the commission of a criminal offense. If the body has been buried, an exhumation shall be ordered to view the body and perform an autopsy.
(2) Before the examination and post mortem of a body, and especially in order to assess whether there is reason to suspect that the person died as a result of a criminal offense, the authority in charge of proceedings may request the professional opinion of the doctor who has physically examined the body for the purpose of establishing the cause and time of death.
(3) In carrying out an autopsy, special measures shall be taken to establish the identity of the body and for this purpose, information on its external and internal physical characteristics shall be described in particular.
(4) When necessary, professional and scientific identification methods shall be used – fingerprinting of the body, analysis of a DNA sample and comparison of the
obtained DNA profile with the DNA profile of a missing or other person, blood relatives of the person thought that he might be identified and, if necessary, other analyses and other professional and scientific methods with the aim of establishing the identity of the body.
Post mortem examination and autopsy of a body outside an institution and recusal
of the doctor who treated the deceased
Article 137
(1) Whenever an expert analysis is conducted outside a professional institution, the post mortem examination and autopsy of the body shall be performed by one, or if necessary, two or more forensic doctors. The Public Prosecutor or Investigative Judge assigned to the preliminary investigation or investigation, i.e. the President of the Trial Chamber president after the conclusion of the investigation or after an indictment has been raised, shall direct this expert analysis and shall enter the findings and opinion of the expert witness in the record.
(2) The doctor who treated the deceased cannot be designated as an expert witness. The doctor who treated the deceased may be examined as a witness during the autopsy in order to give explanations about the course and circumstances of the disease.
Contents of the expert witness’s opinion and his obligations during the post mortem
examination and autopsy of a body
Article 138
(1) In giving their opinion, the expert witnesses shall indicate in particular the immediate cause of death, what brought that cause about and the time of death.
(2) If an injury is found on the body, the examination should establish whether the injury has been inflicted by someone else and, if so, with what, how, how long before death occurred and whether that injury caused death. If several injuries are discovered on the body, the examination should establish whether each one was inflicted by the same instrument and which of them caused death, and in case of several fatal injuries, which one or which of them by their combined effect caused death.
(3) In the case provided for in paragraph 2 of the present Article it should be established in particular whether death was caused by the very type and general nature of the injury, by the personal characteristics or the particular condition of the injured person, by accidental circumstances or by circumstances in which the injury was inflicted. It should also be determined whether timely assistance might have prevented death from occurring.
(4) The expert witness has the obligation to pay attention to any biological traces found (blood, saliva, sperm, urine, etc.), to describe and preserve them for the purpose of biological analysis, if ordered.
Post mortem examination and autopsy of a fetus and newborn child
Article 139
(1) During a post mortem examination and autopsy on a fetus, its stage of development, its capacity to survive outside the womb and the cause of its death should be established.
(2) During a post mortem examination and autopsy on a newborn child, it must be established in particular whether the baby was delivered alive or dead, if he was capable of living, how long he lived, when he died and the cause of death.
Suspicion that death was caused by poisoning
Article 140
(1) If poisoning is the suspected cause of death, suspicious substances (blood, urine, vitreous body fluid, organs of the body, etc.) which have been found in the body or elsewhere shall be sent for expert analysis to an institution in charge of carrying out toxicological research.
(2) In analyzing suspicious substances, the expert witness shall focus in particular on establishing the kind, quantity and effect of the poison discovered, and in case of
an analysis of substances found in the body, he shall also establish the quantity of the poison used, wherever possible.
(3) The institution in which the toxicological analysis is being carried out shall have the obligation to keep the remainder of the analyzed material in the appropriate way for the purpose of another analysis, or repeated or additional analyses, if ordered.
Expert analysis of bodily injuries
Article 141
(1) The expert analysis of bodily injuries is as a rule carried out by a physical examination of the injured person, but if this is not possible or necessary, as an exception, it is conducted on the basis of medical documentation or other information in the files.
(2) After the expert witness describes the injuries exactly, he shall give an opinion, especially on the nature and severity of each individual injury and their total effect with regard to their nature and the special circumstances of the case, the usual type of effect of these injuries, their specific effect in the particular case, the instrument used in inflicting the injuries and the manner of their infliction.
(3) In the expert analysis, the expert witness has the duty to act in accordance with the provisions under Article 138, paragraph 4 of the present Code.
Expert analysis of the defendant’s mental state
Article 142
(1) In case of suspicion that the mental competence of the defendant has been lost or diminished, the expert analysis of the defendant’s mental state shall be ordered.
(2) If the expert witness believes that longer observation is necessary, the defendant shall be sent to an appropriate health care institution for observation. The relevant decision is made by the Investigative Judge, Individual Judge or the Trial Chamber. The observation may be extended and last for more than two months only upon a substantiated proposal of the manager of the health care institution, after the receipt
of the expert witness’s opinion, but it may not last longer than six months under any circumstances.
(3) The defendant and his defense lawyer may appeal the decision referred to in paragraph 2 of the present Article within 24 hours after the moment when the decision was served on the defendant or his defense attorney. The Chamber referred to in Article 24, paragraph 6 of the present Code shall decide on the appeal within 48 hours and if this Chamber has already rendered the ruling which is subject to an appeal, the Ruling is then made by the Chamber of the directly superior Court. The appeal shall not stay the execution of the ruling.
(4) If the expert witnesses determine that the defendant has a mental disorder, they shall establish the nature, type, degree and duration of the disorder and present their opinion on the past and present effects of such mental state on the perception and actions of the defendant, his competence and will and if and to what extent the mental disorder existed at the time of commission of the criminal offense.
(5) If a defendant, who is in detention, is to be sent to a health care institution, the Investigative Judge, Individual Judge or the President of the Trial Chamber shall inform this institution about the reasons due to which this person has been detained in order to take the necessary measures to ensure the purpose of the detention.
(6) The time spent in the health care institution shall be included in length of the defendant’s detention or sentence, if imposed.
Physical examination of a suspect or defendant
Article 143
(1) A physical examination of a suspect or defendant shall be conducted without his consent if this is necessary to establish facts of importance for the criminal proceedings. The physical examination of other persons may be conducted without their consent only if there is a need to establish whether a particular trace or consequence of a criminal offense can be found on their bodies.
(2) Taking of a blood sample and other medical steps which, under the rules of medicine, are necessary for the purpose of analyzing, identifying persons and establishing other facts of importance for criminal proceedings may be carried out
without the consent of the person who is to be examined, except if this might be detrimental to his health.
(3) Samples of saliva may always be taken for the purpose of conducting a DNA analysis, whenever this is needed in order to identify a person, or in order to make a comparison with other biological traces and other DNA profiles. This neither requires the consent of the person in question, nor is it regarded as an activity that might be detrimental to one’s health.
(4) Activities referred to in paragraphs 1, 2 and 3 of the present Article shall be taken only upon the order of the court having jurisdiction, except in the case referred to in Article 255, paragraph 10 of the present Code.
(5) No medical interventions may be carried out or substances given to a suspect, defendant or witness that might affect their conscience and will during their testimonies.
Expert audit of business books
Article 144
(1) When an expert audit of business books is necessary, the authority in charge of the proceedings shall instruct the expert witness as to the aim and scope of the audit and the facts and circumstances which have to be ascertained.
(2) If an expert audit of business books of an enterprise or entrepreneur requires that the accounts should first be regularized, the costs of such task shall be borne by the person who owns the business books.
(3) The ruling on regularizing accounts shall be rendered by the authority in charge of the proceedings, upon a written and substantiated report by the expert witness appointed to examine the business books. The ruling shall also specify the amount to be deposited with the court by the enterprise, some other legal person or entrepreneur as an advance on the costs entailed in regularizing the accounts. No appeal shall be permitted against this ruling.
(4) After the accounts have been regularized, the authority in charge of the proceedings shall, on the basis of the report of the expert witness, render a ruling by
which it shall determine the amount of the costs incurred thereby and order the person whose accounts were the subject of regularization to pay this amount. This person may appeal against the decision on refunding the costs. The chamber of the first instance court (Article 24, paragraph 6) shall decide on the appeal.
(5) The payment of the costs and remuneration, if their amount has not been advanced, shall be credited to the authority that has already paid the costs and remuneration in advance to the expert witness.
(6) Before the expert analysis referred to in paragraph 1 of the present Article, an inventory of business books and other business documents in connection with business books shall be made in the presence of the Public Prosecutor or authorized police official.
Examination of witnesses - national proceedings
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