Post by radovic on May 9, 2008 9:48:31 GMT -5
New CPC most important legislation since Constitution
Friday, 02 May 2008 23:18
!Legal experts say the adoption of a new Criminal Procedures Code (CPC) is the most important work tackled by the Ministry of Justice since the passing of the Constitution last year.
Drago Raduloviæ, a professor of law at the state owned university in Podgorica, chairs the working group charged with developing the new law. Raduloviæ told an audience of academics, legal officials, bureaucrats, activists, concerned citizens and government officials that a German colleague of his regards the CPC as second only to the Constitution in terms of protecting human rights and freedoms. Raduloviæ shared his colleague’s opinion during a round table convened in Podgorica on April 21 to introduce and discuss the first draft of the proposed law to be produced by his working group.
One of the most important and delicate balancing acts the working group has to manage is protecting an individual’s rights while still making it possible for law enforcement authorities to gather the evidence needed to produce convictions in a criminal court of law. Raduloviæ said his group was using the new Constitution as a framework for the CPC, especially where human rights and privacy rights are concerned.
Article 159 of the draft law sets down the terms and conditions by which investigators may conduct secret surveillance on individuals. Secret surveillance may only be conducted on individuals suspected of:
1) criminal offences for which a prison sentence of ten years or a more severe penalty may be imposed;
2) criminal offences with elements of organized crime.
3) abduction; extortion; blackmail; meditation in prostitution; displaying pornographic material; usury; money laundering; causing false bankruptcy; abuse of assessment; unlawful processing, taking away and storing of dangerous substances; attack on a person acting in an official capacity during performance on an official duty; obstruction of evidences; criminal association; unlawful keeping of weapons and explosions; illegal crossing of the state border and smuggling of people; trading in influence; passive bribery and active bribery.
Article 158 of the draft law stipulates that secret surveillance - including recording of conversations, monitoring of electronic communications, photographic and video surveillance and simulated purchases of goods, information or services - can only be conducted: “If evidence cannot be obtained in another way or its obtaining would be accompanied by disproportional difficulties or endangering the lives of others, the following special evidentiary measures may be ordered with respect to a person against whom there are grounds for suspicion that he has committed or has along with other persons taken part in committing criminal offences referred to in Articles 159.”
Another major change in the CPC, as proposed in the draft law, would see the prosecuting attorney conducting investigations into criminal cases. In the current CPC that duty falls to the investigating judge. Critics have called for this change, saying that it is fundamental to the pursuit of justice.
Montenegro’s Minister of Justice, Miraš Radoviæ, agrees that the change is necessary, “Investigation led by the Prosecutor implies better division of roles and better organisation of criminal proceedings, especially in regard to complex crimes.” Radoviæ elaborated, “There is an increased need for international cooperation with more countries in the domain of organised crime and corruption, which requires harmonisation of the Criminal Code. The question is whether there can be efficient investigative work (in cases that requires parallel investigations in more than one country) if in one country the investigation is led by the court and in another where it is led by the prosecutor.”
Waldemar Figaj, Deputy Head of the Oranisation for Security and Cooperation in Europe’s (OSCE) Mission to Montenegro - which organised the meeting along with the Montenegrin government and the United Nations Development Programme (UNDP) - concurred with the Justice Minister, “By moving the investigative responsibilities from the judicial side to the prosecutor’s side, the justice system is expected to become more effective in handling criminal cases.”
Professor Raduloviæ said that his working group looked to Bosnia-Herzegovina and Serbia, which have both recently undertaken similar legislative reforms, for guidance. Raduloviæ said Montenegro was fortunate to have the cooperation of the two states because it could learn from and avoid mistakes made by its neighbours in the drafting and implementation of the new CPC.
Mirsad Biboviæ, the UNDP Institutional and Judicial Reform Cluster Leader, said that drafting of a new law is only the first step, “Behind this technocratic phase there is a simple fact that adopting of various laws and plans always represents just the beginning, and practical results are what matters.” Biboviæ added, “the results depend on political will, structures and people who are responsible for achieving those results.”
Biboviæ added, “There have been a small number of final verdicts in corruption cases, and the situation is not better when it comes to the verdicts reached in the domain of organized crime. That is why we expect this new Draft Criminal Procedure Code to strengthen the role of Prosecutor in pre-criminal and criminal justice, and that the anticipated measures of secret surveillance on corruption and other criminal acts listed in the Draft to be adopted and implemented.”
The draft law includes conditions for plea bargaining, a tactic that has seldom been used in Montenegrin jurisprudence. Article 299 of the draft law stipulates that the state may enter into plea bargaining negotiations with defense attorneys only in cases where the accused would receive a sentence of ten years or more, if found guilty. Raduloviæ told his audience that in some American states as much as 90% of all criminal proceedings are concluded by plea bargaining where the accused waive their rights to a trial and plead guilty in exchange for lesser sentences than they would receive if convicted.
Professor Raduloviæ stated that it may have been possible to simply amend the CPC but, “there is an unwritten rule,” that holds that a complete rewrite is necessary, “in cases where more than 30% of the legislation needs to be changed.”
The professor expressed his hopes that the Montenegrin public would show more interest in the attempt to overhaul the CPC now that a draft law has been tabled. Public debates on the CPC reform process will be held in Kotor on May 5 and Bijelo Polje on May 7.
Friday, 02 May 2008 23:18
!Legal experts say the adoption of a new Criminal Procedures Code (CPC) is the most important work tackled by the Ministry of Justice since the passing of the Constitution last year.
Drago Raduloviæ, a professor of law at the state owned university in Podgorica, chairs the working group charged with developing the new law. Raduloviæ told an audience of academics, legal officials, bureaucrats, activists, concerned citizens and government officials that a German colleague of his regards the CPC as second only to the Constitution in terms of protecting human rights and freedoms. Raduloviæ shared his colleague’s opinion during a round table convened in Podgorica on April 21 to introduce and discuss the first draft of the proposed law to be produced by his working group.
One of the most important and delicate balancing acts the working group has to manage is protecting an individual’s rights while still making it possible for law enforcement authorities to gather the evidence needed to produce convictions in a criminal court of law. Raduloviæ said his group was using the new Constitution as a framework for the CPC, especially where human rights and privacy rights are concerned.
Article 159 of the draft law sets down the terms and conditions by which investigators may conduct secret surveillance on individuals. Secret surveillance may only be conducted on individuals suspected of:
1) criminal offences for which a prison sentence of ten years or a more severe penalty may be imposed;
2) criminal offences with elements of organized crime.
3) abduction; extortion; blackmail; meditation in prostitution; displaying pornographic material; usury; money laundering; causing false bankruptcy; abuse of assessment; unlawful processing, taking away and storing of dangerous substances; attack on a person acting in an official capacity during performance on an official duty; obstruction of evidences; criminal association; unlawful keeping of weapons and explosions; illegal crossing of the state border and smuggling of people; trading in influence; passive bribery and active bribery.
Article 158 of the draft law stipulates that secret surveillance - including recording of conversations, monitoring of electronic communications, photographic and video surveillance and simulated purchases of goods, information or services - can only be conducted: “If evidence cannot be obtained in another way or its obtaining would be accompanied by disproportional difficulties or endangering the lives of others, the following special evidentiary measures may be ordered with respect to a person against whom there are grounds for suspicion that he has committed or has along with other persons taken part in committing criminal offences referred to in Articles 159.”
Another major change in the CPC, as proposed in the draft law, would see the prosecuting attorney conducting investigations into criminal cases. In the current CPC that duty falls to the investigating judge. Critics have called for this change, saying that it is fundamental to the pursuit of justice.
Montenegro’s Minister of Justice, Miraš Radoviæ, agrees that the change is necessary, “Investigation led by the Prosecutor implies better division of roles and better organisation of criminal proceedings, especially in regard to complex crimes.” Radoviæ elaborated, “There is an increased need for international cooperation with more countries in the domain of organised crime and corruption, which requires harmonisation of the Criminal Code. The question is whether there can be efficient investigative work (in cases that requires parallel investigations in more than one country) if in one country the investigation is led by the court and in another where it is led by the prosecutor.”
Waldemar Figaj, Deputy Head of the Oranisation for Security and Cooperation in Europe’s (OSCE) Mission to Montenegro - which organised the meeting along with the Montenegrin government and the United Nations Development Programme (UNDP) - concurred with the Justice Minister, “By moving the investigative responsibilities from the judicial side to the prosecutor’s side, the justice system is expected to become more effective in handling criminal cases.”
Professor Raduloviæ said that his working group looked to Bosnia-Herzegovina and Serbia, which have both recently undertaken similar legislative reforms, for guidance. Raduloviæ said Montenegro was fortunate to have the cooperation of the two states because it could learn from and avoid mistakes made by its neighbours in the drafting and implementation of the new CPC.
Mirsad Biboviæ, the UNDP Institutional and Judicial Reform Cluster Leader, said that drafting of a new law is only the first step, “Behind this technocratic phase there is a simple fact that adopting of various laws and plans always represents just the beginning, and practical results are what matters.” Biboviæ added, “the results depend on political will, structures and people who are responsible for achieving those results.”
Biboviæ added, “There have been a small number of final verdicts in corruption cases, and the situation is not better when it comes to the verdicts reached in the domain of organized crime. That is why we expect this new Draft Criminal Procedure Code to strengthen the role of Prosecutor in pre-criminal and criminal justice, and that the anticipated measures of secret surveillance on corruption and other criminal acts listed in the Draft to be adopted and implemented.”
The draft law includes conditions for plea bargaining, a tactic that has seldom been used in Montenegrin jurisprudence. Article 299 of the draft law stipulates that the state may enter into plea bargaining negotiations with defense attorneys only in cases where the accused would receive a sentence of ten years or more, if found guilty. Raduloviæ told his audience that in some American states as much as 90% of all criminal proceedings are concluded by plea bargaining where the accused waive their rights to a trial and plead guilty in exchange for lesser sentences than they would receive if convicted.
Professor Raduloviæ stated that it may have been possible to simply amend the CPC but, “there is an unwritten rule,” that holds that a complete rewrite is necessary, “in cases where more than 30% of the legislation needs to be changed.”
The professor expressed his hopes that the Montenegrin public would show more interest in the attempt to overhaul the CPC now that a draft law has been tabled. Public debates on the CPC reform process will be held in Kotor on May 5 and Bijelo Polje on May 7.