Part I
GENERAL PROVISIONS
Chapter VIII
SPECIAL INVESTIGATIVE TECHNIQUES
6. Examination of cooperating witnesses
A person who may become a cooperating witness
Article 156
(1) The Public Prosecutor may propose to the court to examine in the capacity of a witness a person for whom there are grounds for suspicion that he is a member of a criminal organization and who has explicitly admitted to this (hereinafter referred to as: cooperating witness), against whom an order of inquiry has been adopted or a direct indictment has been raised for an organized crime offense referred to in Article 21 of the present Code, which he has confessed in its entirety and his confession is corroborated by other evidence.
(2) In order for a person referred to in paragraph 1 of the present Article to become a cooperating witness, he must satisfy the following conditions:
1) that this is opportune in view of the nature and circumstances of the criminal offense for which he is suspected of having committed;
2) that there is reason to expect that the importance of his testimony for detecting, proving or preventing other criminal offenses by the criminal
organization shall be greater than the damaging effects of the criminal offense which he is suspected of committing;
3) that in view of the existing facts, there is reason to believe that the determination of important facts in criminal proceedings would be impossible or very difficult if the cooperating witness were not examined.
(3) Under the condition referred to in paragraph 1 of the present Article a person against whom an order of inquiry has been adopted or a direct indictment has been issued for a criminal offense against the Constitutional order and security of the Republic of Serbia and SCG, or a criminal offense against humanity and other goods protected by international law, which has been committed by three or more persons who have organized to commit criminal offenses, may become a cooperating witness.
Obligations of a cooperating witness
Article 157
(1) Before the proposal referred to in Article 156, paragraph 1 of the present Code has been made, the Public Prosecutor shall instruct the cooperating witness regarding his obligations referred to in Article 109, paragraph 2 and Article 113 of the present Code. The cooperating witness may not be exempted from the obligation to testify referred to in Article 104 of the present Code, and from the obligation to respond to certain questions referred to in Article 106 of the present Code.
(2) The Public Prosecutor shall include in the record, which shall also be signed by the cooperating witness, the instruction referred to in paragraph 1 of the present Article, cooperating witness’s answers and his statement saying that he will testify about everything he knows and that he will not omit anything. The record shall be attached to the proposal to the court referred to in Article 156, paragraph 1 of the present Code.
Joinder of cases in the case of examination of a cooperating witness
Article 158
(1) If a criminal offense report or notification of criminal offense has been submitted against a person who the Public Prosecutor believes should be examined as a cooperating witness, the Public Prosecutor shall, before filing a motion for the examination of this person as a cooperating witness, render a Ruling on Instigating of Investigation or raise an direct indictment for an act or organized crime against this person (Article 21) and request a joinder of this proceeding with the proceeding in which this person should be examined as a cooperating witness.
(2) If prosecution has already started against the person whom the Public Prosecutor has proposed as a cooperating witness, and if joint proceedings are not already held, the Public Prosecutor shall request the joinder of criminal proceedings against this person with the proceedings in which he should be examined as a witness.
Persons who may not become cooperating witnesses
Article 159
A person for whom there are grounds for suspicion that he has organized a criminal group on his own or together with other persons in such a way that his contribution has been considerable, or a person who led a criminal offense group in a long period of time may not be a cooperating witness.
Ruling on the Public Prosecutor’s motion
Article 160
(1) The Chamber referred to in Article 24, paragraph 6 of the present Code shall decide on the proposal of the Public Prosecutor referred to in Article 156, paragraph 1 of the present Code during the investigation and until the beginning of the trial, and at the trial this shall be done by the Chamber before which the trial is held. The Chamber shall decide to grant or to deny the Public Prosecutor’s motion, and shall notify of its decision within 24 hours the party to whom the proposal refers and the victim of the criminal offense of which this person is suspected. In the ruling granting the Public Prosecutor’s motion, the Chamber shall note that the proposed person has been granted the status of cooperating witness and, together with this ruling, it shall also render a ruling on the joining of criminal proceedings in accordance with Article 158, paragraph 1 of the present Code.
(2) The Chamber session shall be attended by the Public Prosecutor, person who has been proposed to become a cooperating witness and his defense attorney and the session shall be closed to the public.
(3) The Public Prosecutor may appeal the ruling referred to in paragraph 1 of the present Article under which his proposal is rejected, within 48 hours after having received the ruling. The decision on the appeal shall be rendered by a higher court within three days upon the receipt of the appeal and documents from the first- instance court. The higher court may dismiss the complaint as untimely or not permitted, grant it when it establishes that there exist conditions referred to in Article 156 of the present Code or deny it as unfounded. If the higher court grants the appeal, it shall state in its ruling that the proposed person has been granted the status of cooperating witness.
(4) If it grants the motion of the Public Prosecutor, the Chamber shall order the separation from the documents of records and official notes on the previous statements of the cooperating witness which he has given in the capacity of a suspect or defendant and these may not be used in the criminal proceedings, except in the case referred to in Article 164 of the present Code.
Appeal of the injured person
Article 161
The person injured by the criminal offense which cooperating witness is suspected of committing may file an appeal within 48 hours upon receiving the ruling.. The decision on the appeal shall be brought by a higher court within three days after the receipt of the appeal and documents of the first-instance court. The higher court may dismiss the appeal as untimely or not permitted, grant it when it determines that conditions referred to in Articles 156 and 159 of the present Code have not been met or deny it is as unfounded.
Examination of witnesses in closed sessions
Article 162
(1) The examination of a cooperating witness shall be closed to the public, unless the Chamber, upon the proposal of the Public Prosecutor and with the consent of the witness, decides otherwise.
(2) Before the decision referred to in paragraph 1 of the present Article is brought, the chamber president shall inform the cooperating witness in the presence of his defense attorney about the proposal of the Public Prosecutor and inform him about his right to be examined in a closed session. The cooperating witness’s declaration stating that he consents to being examined in the open court shall be included in the record.
Fulfillment of obligations of the cooperating witness
Article 163
(1) A cooperating witness who has testified before the court in accordance with his obligations referred to in Article 157 of the present Code shall be sentenced within the limits envisaged in the Criminal Code for the act of organized crime which represents the subject matter of the proceedings, which he has confessed and which is proved to have been committed by him, and such a sentence shall then be reduced by half.
(2) The judgment referred to in paragraph 1 of the present Article may be appealed only as far as the sentence is concerned by the cooperating witness, all persons who may appeal to the benefit of the defendant in keeping with Article 388, paragraph 2. of the present Code, as well as the Public Prosecutor to the benefit of the cooperating witness.
(3) At the proposal of the Public Prosecutor, the court, taking into account the importance of the evidence presented by the cooperating witness, behavior of the cooperating witness before the court, his previous life and all other relevant circumstances, may exceptionally declare the cooperating witness guilty, but decide not to impose a sentence on him. This decision may not be appealed.
Failure of the cooperating witness to fulfill his obligations
Article 164
(1) If the cooperating witness fails to act in keeping with his obligations referred to in Article 157 of the present Code, he shall lose the status of cooperating witness, prosecution against him shall continue, and he shall receive a sentence within the limits envisaged in the Criminal Code.
(2) Once a person referred to in paragraph 1 of the present Article loses the status of cooperating witness, the records of all testimonies he has given as a cooperating witness shall be struck out from the case files and they may not be used as evidence in criminal proceedings.
(3) If the cooperating witness commits another act of organized crime offense (Article 21) before the final end of proceedings, the Public Prosecutor shall raise the indictment for this criminal offense and request the joinder of criminal proceedings, and this person shall lose the status of cooperating witness and receive a sentence within the limits envisaged by the Criminal Code.
(4) If an act of organized crime previously committed by the cooperating witness is detected during the proceedings (Article 21) the Public Prosecutor shall act in keeping with the provisions of Article 156 of the present Code.
(5) If a previous criminal offense committed by the cooperating witness, who does not represent an act of organized crime offense (Article 21), is detected in the proceedings, the Public Prosecutor shall act in keeping with the general rules of the present Code.
Examination of witnesses - national proceedings
Facilitating voluntary appearance of persons - national proceedings
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