During 21 and 22 May 2014, with the support of OSCE Mission in Kosovo the Kosovo Judicial Institute in cooperation with the Academy of Judges and Prosecutors “Pavel Shatev” of Macedonia organized a regional conference on “Criminal justice reform in the region – challenges, trends and transition to adversarial system of the criminal procedure”. The conference took place in Skopje, Macedonia.
Main purpose of this conference was to exchange experiences and ideas promoting regional cooperation about the criminal procedure, aiming to overcome challenges faced in this process.
Main focus of presentations and discussions of this conference was about the following topics: investigation in the preliminary procedure and accelerated procedure, evidence in the main hearing focusing on new examination techniques (direct examination, indirect and re-examination), as well as the plea bargaining agreement. These topics were introduced by representatives of participating countries, and they were preceded by distinguished experts of the area.
On the second day of conference, participants discussed about the training methodology and curriculum on implementation of the Criminal procedure Code, in which case they provided concrete ideas for drafting a joint training curriculum, based on which common training activities will be organized in the future.
The conference was attended by judges, prosecutors, lawyers and training institutions representatives from: Croatia, Slovenia, Bosnia and Herzegovina, Serbia, Macedonia and Kosovo. Guests at this conference were experts from the US Embassy in Kosovo and Macedonia, as well as project representatives supported by the European Union.
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Conference Outcome Document
Based on joint recommendations outlined at the Regional Judicial Training Conference “Regional Criminal Justice Reform: Challenges, Trends and the Shift to Adversarial Forms of Criminal Procedure”, held on 21 - 22 May 2014, in Skopje.
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Background: On 21-22 May 2014 a Regional Conference organized by the Academy for Judges and Public Prosecutors “Pavel Shatev” of the Republic of Macedonia and the Kosovo Judicial Institute was held in Skopje. The Conference was supported by the OSCE Mission in Kosovo and OSCE Mission to Skopje. The Conference brought together justice actors (Judges, Prosecutors, Defence Lawyers and Academy Directors) from different jurisdictions of the region, to discuss the new challenges, trends and the shift to adversarial forms of Criminal Procedure. The above-referenced justice actors addressed, during the two-day Conference, the needs for cooperation between the regional Training Academies with regard to training of the justice actors in the area of new adversarial criminal procedure. Members of the international community present at the Conference agreed to support the Academies in their endeavours to foster the regional cooperation and work on a joint training programmes and a joint training curricula.
The following are the recommendations, in three categories, that parties agreed upon:
I. Proposals for Joint Training Topics:
II. Proposals for Joint Activities/Curricula:
III. Proposals for financial support for the above recommendations:
Based on the above recommendations the regional Academies/Centres/Institute shall undertake to initiate future joint activities/projects.
An annual meeting conference will be organized by the Academies/Centres/Institute funded by the means allocated individually for this purpose .
REPORT OF THE REGIONAL JUDICIAL TRAINING CONFERENCE
“Regional Criminal Justice Reform: Challenges, Trends and the Shift to Adversarial Forms of Criminal Procedure”
21-22 May 2014, Hotel ARKA, Skopje
Summary: The above referenced Conference organized by the Academy for Judges and Public Prosecutors of the Republic of Macedonia and Kosovo Judicial Institute, supported by the OSCE Mission in Kosovo and OSCE Mission to Skopje, was held on 21-22 May 2014, in Skopje. The Conference brought together the Justice Academies/Institutes of Kosovo, Macedonia, Serbia, Croatia, Slovenia and Federation of Bosnia and Herzegovina. Montenegro was invited but did not attend due to a Montenegrin State Holiday. In addition, a significant participation by the international community, residing both in Pristina and Skopje, was present at the Conference.
The Conference project’s aim was two-angled: to bring the Justice Academies of all former-Yugoslav countries together with a view of fostering mutual cooperation, as well as to tackle the trends and challenges of the new adversarial criminal procedure that is introduced in all former-Yugoslav countries (except Slovenia). Both aims of the Conference were satisfactorily reached and we are hopeful that a follow-up will occur in the future, based on participant’s commitment at the conclusions of the Conference. The following is a comprehensive Report of the two-day Conference.
21 May (Day I)
Opening of the Conference:
The Conference was opened by the hosts Judge Aneta Arnaudovska and Lavdim Krasniqi. Judge Arnaudovska at the beginning welcomed the participants and presented the expert/moderators. She, on behalf of the group, expressed condolences to Bosnia and Herzegovina and Serbia for their losses due to recent floods. The Macedonian’s Academy name was changed few days before the Conference, so she introduced the new name - “Pavel Shatev” - explaining the background and history. She further referred to the work that was done by the Academy during the process of drafting of the Macedonian new Criminal Procedure Code (CPC). She expressed gratitude to the international community assisting the Academy on trainings for the new CPC, in particular OSCE Mission to Skopje and the US Embassy Skopje. The trainings on the new CPC are the forum to identify the dilemmas, where the educators come out with proposals for the Ministry of Justice on how to draft/amend the law. Judge Arnaudovska in closing called for an open discussion given that participants come from a common history and common tradition.
Lavdim Krasniqi, on behalf of the Kosovo Judicial Institute (KJI), also thanked Serbia and Bosnia and Herzegovina that notwithstanding the floods they joined the Conference. He explained how the idea of organizing such a regional event came up jointly with Ralph J. Bunche last year, and how great it was to see that idea coming together at this conference. He further thanked Judge Aneta and the Macedonian Academy, as well as OSCE Mission in Kosovo, for making this event possible and bringing together all the participants to discuss the novelties of the new CPCs throughout the region. He further emphasized that the novelties to be discussed at the conference are only few, and that this should serve as an initiative for future cooperation between regional Academies in order to share experiences and exchange knowledge. They would count on the international support for such initiatives. Lastly, he called upon other Academy Directors to take similar initiatives and organize similar events in the region.
Mile Mojkovski, Member of the Public Prosecutors Council of Macedonia, was present at the opening and said that the adoption of the new CPC came after so many years of implementation of the old one, initiating new arrangements for strengthening the fight against corruption and crime, and ensuring basic Human Rights guaranteed by the Macedonian Constitution. The new CPC changed the criminal procedure by strengthening the role of the Prosecutor, providing application of shorter procedure, plea bargaining etc. New activities foreseen by new CPC were completed both theoretically and practically and now it is waiting to give results. The knowledge of judges and prosecutors is if crucial importance for giving effect to this reform. This event is very important to share experiences on these new CPCs and discussing their harmonization with the EU laws. The Conference should ensure the sharing of best practices, but also dilemmas, through an interactive discussion.
Faik Arslani, Deputy President of the Supreme Court of Macedonia, was present at the opening and addressed the conference also on behalf of the President of the Supreme Court. He said that Macedonia took an important step in reforming the CPC, which was enforced only last year. They are still in the very initial phase of implementing the new CPC. The reform changed the entire concept of the law, by abandoning the inquisitorial system, and introducing the adversarial system. This new concept is completely different from the old law that was applied for 50 years.
Nikola Dodevski, President of the Bar Association of Macedonia, was present at the opening and started by congratulating the Academy on the new name. Pavel Shatev is the founder of the Macedonian Bar Association. He emphasized the importance that the lawyers be in focus of trainings on the new CPC, given the important changes that occurred, in particular, ensuring the equality of arms, rights of the defendants, parties providing equal contribution to verify the guilt. He further said that there is a good theoretical base – the law – however it is important to ensure the right application of it. He further emphasized the importance of experience sharing and best-practices, such as right to freedom of the defendant and use of alternative measures such as bail, deprivation of liberty as the last resort, alternative sanctions that are neglected categories – these are topics for discussion that I am looking to hear at the conference, he concluded.
Session I: Pre-trial investigation and accelerated procedures:
Expert/moderator: Prosecutor Diana Kajmakovic (Federation of Bosnia and Herzegovina)
Kajmakovic started her presentation by emphasizing the importance of the sharing of experiences, challenges and dilemmas. Bosnia and Herzegovina has the longest experience in implementation of the adversarial system - since 2003 - and they want to help other colleagues from the region. She talked about her most recent experience in Belgrade where she talked about examination: direct, cross and redirect. She further referred to the challenges she faced at the beginning when the law was enforced. It was “imposed” on them and they had to implement it immediately. The new CPC was published in the Official Gazette on July 29th, and on August 1st, she was on duty implementing it, with criminals knowing the law better than the prosecutors themselves. The Public Prosecutors were flooded with huge amount of cases at the time, as Serbia is facing the same experience now.
Kajmakovic continued by explaining the Rights and Duties of the Prosecutor according to the Bosnia and Herzegovina CPC, emphasizing that the Public Prosecutor is a kind of “Director of the investigation” and decides how speedily and economically the investigation process must be. The prosecutor must start thinking early on how he or she will raise the indictment.
On witness examination, she referred to high profile cases (involving media), saying that the prosecutor should find the witness who gives you the best data, and then the prosecutor needs to find evidence to corroborate the witness’ testimony.
On the issue of search, she said that her power-point presentation provides many ways how to do a search.
Prosecution-led investigations are observed by the Court, and based on a Court order. This helps avoiding possibility of any manipulation. In Bosnia and Herzegovina it is important that the Public Prosecutor - who is a director of investigation - finishes it in a speedy manner.
Deadlines in Bosnia and Herzegovina are very short. There is always possibility of exciding deadlines of pre-trial, only if you have a good team, and a judge who understands what you want to achieve. Judges may not like this, but it is important. Court orders are very important as any delay is detrimental to the case.
Special investigation measures – were enforced in Bosnia and Herzegovina in 2003. Prosecutors were reluctant to use these measures at the beginning. Now Bosnia even uses covert agents. Application of them was not looked high upon by Prosecutors.
International cooperation – at the beginning was done in a poor manner. She explained the issue of cooperation of undercover agents in the EU, Austria and the Bosnia and Herzegovina territory.
Criminal offences that destroy the identity of the Bosnia and Herzegovina – this application was postponed for continuously, along with cases of theft with international character.
She further elaborated the Prosecutor’s right/obligation to include request of international legal aid. It should not be done based on friendships, she emphasized, but should go through proper channels, through Ministries and respective institutions. Serbia and Croatia have such teams and it is very productive and cost effective, obtaining all info related to the investigation.
At the beginning of application of the new CPC there was lack of knowledge and that created a problem, the expert said, however with experience, it was concluded that the new CPC is indeed cost effective.
This was a general elaboration of the expert presentation, which otherwise was structured as follows: i) Rights and duties of the Prosecutor in accordance with the Bosnia and Herzegovina CPC; ii) Investigation (the obligation to report the criminal act; ruling to conduct the investigation; ruling not to conduct the investigation; order on suspension of the investigation; completion of the investigation – Charges; Prosecutor supervising the work of the authorized persons); iii) Prosecutor (manage the investigation and actions of the investigation; coordinate the cooperation of the police and other authorities; refers requests for international legal assistance; creates a joint investigation teams; ‘directs’ his own investigation); iv) Obtaining Evidences (search of premises and persons; temporary seizure of objects and property; temporary seizure without order; treatment of suspicious objects; questioning of the suspect; examination of the witnesses; investigation and reconstruction – reconstruction of events; expert testimony – types of expertise); v) Special investigative measures by the Bosnia and Herzegovina CPC (which are the special investigations; Crimes for which the specific investigations can be determined);
Discussion and presentation by the delegations:
Bosnia and Herzegovina - Marin Zadrić, Judge, stated that though it’s been 11 years now since application of the new CPC there are still technical problems at stake. The novelties were received by Courts and Prosecution Office on the first day after entry into force. It was difficult to immediately change the system, but Bosnia and Herzegovina received tremendous support by the EU and the US. When the new CPC was enacted some kind of ‘lustration’ was enforced – all have to enter the ‘machine’ of trainings. But we can conclude after 10 years of its application that when it comes to reform in judiciary, the most affected is the criminal section. All Courts accelerated their process. Certainly there is a benefit in shortening the summary proceedings. No judges see this as lack of confirming indictments. Police uses the same methods – American methods. It required a lot of trainings for the Police. Diana mentioned the lack of fulfilment of requirements, and the law requires that this be done in speedy procedure. As to search order – focus is on the work of Police, they prepare everything for the Prosecutor to appear in the Court. There is a need to train the Police, they are important actors in the proceedings. Many mistakes were done, but you should learn from our mistakes.
A particular problem posed the special investigative measures and search – we have to go through many institutions in the Bosnia and Herzegovina. We believed there was no need for this, and the Constitutional Court ruled that no measures be taken - you might face that too. Bosnia and Herzegovina Constitutional Court ruled that there should be no search until there is a court order for it.
Special investigative measures are useful for the Prosecution to collect evidence for a concrete act – this shapes everything else. The Court approves Special investigative measures, and a skilled Defence always might have remarks, as every CPC is formalistic in nature. However, all these norms provide for speedier procedure. Plea bargaining also helps expediting the procedure.
Bosnia and Herzegovina - Miralem Porobić, Defense Lawyer, stated that the new CPC created problems due to Bosnia and Herzegovina having several levels of laws on criminal procedure, at the level of the State, the level of the Federation, the level of the Republika Srpska and the level of the Brcko District. I represent clients from all the areas. On Special investigative measures, search of computers and mobile phones etc., all four laws are identical and have loopholes. For instance, searching of a computer (as special investigative measure), searching of an apartment (there has to be 2 witnesses). Our position on searching the computer data is that those dealing with digital forensics should not do a search on a seized computer; search needs to be done on a copy of the data. Another is the issue of expert investigation. If the defence has the right to conduct an investigation, no lawyer in Bosnia and Herzegovina has the required softwares for that. Only Police departments have good quality digital forensics. This raises an issue of equality of arms. Duration of investigation is 6 months, but the question is what happens when investigation is completed?
Kosovo – Besim Kelmendi, Prosecutor, talking about the CPC novelties stated that Kosovo faces the same CPC dispositions which are challenging, as well as effective, in order to have a righteous process. Kosovo CPC foresees 4 phases: investigation stage, indictment stage, trial stage, and legal remedies. This all is preceded by the information gathering phase. The Police have authority to collect the information, during which phase the Prosecutor has also access to it. The deadline for the Police to report to the Prosecutor is 24 hours from the moment when Police reaches the information.
Another is the issue of the injured party; the CPC gave importance to that. The injured party has many rights, including the right to ask the Prosecutor to extend the detention. There is a special unit within the State Prosecutor’s office – the only one in Balkans – that deals with protection of victims in the criminal process.
The deadline to make a decision on a criminal report is 30 days. The intrusive covert and technical measures are similar to those in the region. Every information reached through that is acceptable. The investigation is conducted within 2 years, on special cases we can request up to 6 months additional time, so the rule is 2 years, and the exception is 2 years and 6 months.
Another is the issue of obligation to review the case file and pre-trial examination of the Defendant, which is new, and, in case of criminal offence punished by no more than 3 years, it is sufficient to give a written statement only. Next is the special investigative opportunity.
The decision to engage an expert is taken by the Prosecutor and not the Judge, and the Defendant has the right to propose a specific expert to the Prosecutor, or to engage one by his own means.
Effective novelties are issues of confiscation. The confiscated assets can be sold in order for victims to be compensated, and the remainder with go to the state budget; the confiscated arms/ammunition is destroyed; the confiscated vehicles, airplanes etc., are transferred to the Government.
The deadlines of the detention on remand before the indictment is filed have changed: the Prosecutor can make a request for 1 month, or 4 months, or 8 months (in cases punishable over 5 years). An additional exception is that the Court may decide for extension of detention on remand up to 18 months.
Lastly, the issue of international cooperation involves all evidence gathered not through the international legal aid, based on condition that the state providing the evidence accompanies them with a written note, ensuring that such evidence is collected based on the respective state’s law.
Moderator Kajmakovic asked if the Kosovo Prosecutors are leading the investigation, to which Mr. Kelmendi replied that Police and Prosecutors have good relations, and that approach is changed since the Police have become part of the investigation team. The moderator stressed that the involvement of the prosecutor is very important even early on during the investigation.
Macedonia, Aleksandar Markovski, Public Prosecutor, stated that if we wish to present all tricks and dilemmas we would need a conference lasting for a few weeks. Macedonian CPC was drafted with high involvement of the theorists. The CPC came into force 5-6 months ago and presents a total revolution as opposed to the old one which was of a mixed character with inquisitorial technics. The aim of the new procedure is to accelerate the mechanism and the experience of those who have gone through it is very important to us. We currently face problems with implementation, but will be better later on. I can say that the scope of my work as Public Prosecutor doubled since the new CPC entered into force. Moderator Kajmakovic mentioned the Prosecutor-Police relation as a weak point and we should use the experiences of Bosnia and Herzegovina. Certainly we should aim to improve the area of Police-Prosecutor relation. The Police are undertaking many actions now, but an oversight by the Prosecutor is needed. With regard to the relations with the Police a Protocol of Cooperation was signed with Police and Customs. We hope that such Protocol will change the relation between the Public Prosecutors and the Police. The Judge guarantees the Human Rights in many investigative activities (search etc.), but in my opinion the Judge is not involved and the Prosecutor is the entity to guarantee the Human Rights. Lastly, the new special investigative measures are as new means.
Moderator Kajmakovic noted that everybody is tackling the issue of special investigation measures, and suggested that OSCE organizes another Conference on this topic.
Croatia, Andrea Šurina Marton, Deputy General State Attorney, stated that the CPC was passed in December 2008, but enacted only on the Organized Crime on 1 July 2009, with investigation led by the State Prosecutor and with an Investigative Judge, as a new role. The Croatian Constitutional Court (CC) has declared unconstitutional many provisions of the new CPC considering them as not pursuant to Human Rights standards and the ECHR.
Based on the CC abolished provisions a decision was taken in 2012, and new novelties were provided in December last year. Croatia has amended its CPC five times in the last few years.
The new concept was significantly changed and Croatia tried to harmonize it with the ECHR standards. The reform aimed to strengthen the investigation. The new law provides sanctions with regard to deadlines as a novelty (new institute).
Within 3 days the suspect should be informed that investigation is raised. The law regulates investigation (full procedure) offenses up to 5 years, in cases of 5-15 years, direct indictment. Investigations carried out on criminal offences over 15 years. Entitlement of complaint – the investigative judge is the one who decides on that. Parties must abide by the deadline. The examination of witnesses is to be done by the investigative judge.
Public Prosecutors are obliged to complete investigation within 6 months and if not they need to inform the High State Prosecutor. On complicated cases the High State Prosecutor can extend deadline for 6 months. The law doesn’t foresee measures for consequences if the deadline is not respected.
Legal aid is a novelty partly regulated, partly modified. A series of means dealing with the suspect and injured party are introduced.
The injured party can ask about a record and Prosecutor is obliged to inform them, otherwise the victim has the right to go to higher authorities. Main deadline is 6 months. The suspect and injured party can address the State Prosecutor for unnecessary extension of deadline.
Moderator Kajmakovic asked again about the relation between Police and Prosecutor in Croatia, and Ms. Surina Marton answered that that is generally alright and there was a Protocol signed between Police and Prosecution to regulate in details the activities between the two.
Slovenia, Drago Šketa, State Prosecutor and Head of State Prosecutor`s Office in Maribor, stated that in Slovenia the investigation goes in two phases: Police investigations (no judicial criminal proceedings) and judicial investigations led by an investigation judge. So there are three institutions in-charge with legal duties: Police, State Prosecutor and Investigative Judge. There is a division between the Police and the State Prosecutor. The State Prosecutor starts the responsibility on investigating of pre-trial the moment the Police informs him that a crime is being committed. The State Prosecutor is responsible for proposals and instructions he gives to the Police. The State Prosecutor directs to the Police by giving instructions. The State Prosecutor directs the work of the Police and their operative methods. The State Prosecutor instructions to Police are binding by law, but the State Prosecutor cannot apply any sanctions to the Police. The State Prosecutor and the Police are dependent on each-other.
On Pre-trial proceedings, the State Prosecutor decides and proposes use of special measures. After Pre-trial investigations, and if there is reasonable ground, the State Prosecutor files criminal charges.
The CPC had several amendments, namely 8 main ones: judicial driven investigation rather than the Prosecutor driven investigation; role of the investigative judge; law enforcement agencies included (FIU, Anti-money laundering Directorate etc.); special department in the Customs; etc.
Why not a Prosecutor-led investigation? With the judicial-led investigation we have all guarantees of Human Rights and freedom etc. Every citizen that is not happy with the accelerated procedures can file a complaint. There are several judgments of ECHR on this. We implement watch-dogs for duration of trials. The temporary confiscated means/wealth reaches around 419 million.
As to deadlines, there is pre-trial 3 months, plus 3 more months, indictment filed. In 2 years the decision of jury needs to be rendered.
Serbia, Sasa Boskovic, Deputy Public Prosecutor from the I Basic Public Prosecution Office, said that the new CPC was enacted in Serbia in September 2013. The new law applied on special department of organized crime. Serbia faces same problems as other colleagues with its application. A lot of problems, some of technical level given the CPC is based on American system. It takes time to get in full capacity.
Cooperation between Prosecutor and the Police is of utmost importance. The Police still have to understand that they do not ask questions.
All work regarding Pre-investigation procedure is done in compliance with the law. Plea bargaining and postponing criminal prosecution limits moved from 5 to 8.
Moderator Kajmakovic concluded this session stating that all participants are facing the same problems with implementation of the new CPC’s. The moderator lastly stated that unfortunately the regional countries do not invest a lot in their justice system, and if it wasn’t for the support of OSCE and the bilateral Embassies the situation could have been even worst.
Session II: Evidence on the main hearing with a focus on the new techniques of examination (direct, cross and redirect):
Expert/moderator: Judge Marin Mrčela (Croatia)
Judge Mrcela provided an outstanding presentation on the Evidence on the main hearing and the new techniques of examination (direct, cross and redirect).
His presentation was focused on Criminal Procedure, Presentation of Evidence on the Main Hearing (cross examination), Confrontational Right, Refusal of Taking evidence with the Conclusions at the end.
On the Criminal Procedure he emphasized that there are two conflicting tendencies: efficiency and protection of defendant’s rights, to continue further with the purpose of criminal procedure being: to ascertain the truth, or to resolve the dispute? The latter question he elaborated before the audience.
He continued with the issue of presentation of evidence in the main hearing by answering the question what encompasses presentation of evidence? And referring to accusatorial principle and restricted inquisitorial power of the court.
On the presentation of evidence he elaborated the modes of witness examination: direct, cross and redirect examination. The court may interrogate witnesses, whether called by itself or by a party.
On direct examination he explained that the scope is not limited but: disputable, effective to ascertain the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment. He continued by leading questions that are possible: as may be necessary to develop testimony; if they are related to general or personal non-disputable issues (ICTY model); regarding circumstances that serve to refresh memory provided they do not affect the credibility (again the ICTY model).
On cross examination he first explained the purpose as i) to ascertain the truth; and ii) to diminish the credibility, and he continued with three models: i) Bound (Cro), Unbound (GB) and “compromise” (SAD). Generally, only to the subject matter of the direct examination and matters affecting the credibility of the witness and the court may permit inquiry into additional matters as if on direct examination. He further explained the cross examination leading questions by referring to ordinarily permitted, Croatian model: First-bound, second-compromise and abandoned.
The presentation continued with cross examination objections. Most frequent in the region being: Leading, but not permitted “kapciozno”, Asked-answered and not permitted or irrelevant. And further continuing with some objections in the US: Argumentative (argues with witness), Badgering (repeated questions), Indefinitive (vague or to broad question), Speculation (calls for speculation), and Inflammatory (intended to cause prejudice).
On re-direct examination he explained that it is performed by party that proposed witness (after opposing party’s cross) and is limited to the issues raised during cross. It refers to explanation of the answers given to questions asked during cross-examination (especially if “yes-no” answers were given, and to do damage control).
The presentation continued with issue of Judges interference with examination. This raised the question if the judge is allowed to ask leading question? And referring the threat to the perception of judges impartiality. He explained that in FRE there is no rule, and in CRO it was expressly forbidden.
The presentation further discussed about confrontational rights of defence, referring to confrontational clause of the ECHR, Constitutions etc., and the autonomous interpretation of the term witness (co-defendant). It was further asked whether it is “Sole or decisive” rule – golden or crystal clear criteria? It further continued with issue of reading of the uncomforted testimony and court’s task: actions taken for immediate questioning; counterweight process elements analysis: such as credibility and corroborating evidence, using option to challenge (objections, proposing contradictory evidence etc.), no sole or decisive evidence, no breach, counterbalancing elements.
The presentation continued with the refusal of taking evidence by saying that everyone charged with a criminal offence has the following minimum rights: to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Judge Mrcela elaborated and concluded this based on two cases: Topic v. Croatia case, and Horvatic v. Croatia case.
Discussion and presentation by the delegations:
Serbia, Sasa Boskovic, Deputy Public Prosecutor from the I Basic Public Prosecution Office, referring to the right to confront witnesses said that under the old CPC it was up to investigating judge to inform the party, and under the new CPC it is the obligation of the Public Prosecutor to inform the defendant. On cross examination he considered the problem as not existing because defendants usually have the chance to ask questions at an early stage in the proceedings and if they did not do so, it was their problem. In his view, cross examination is done by opposite party; the judge cannot ask the questions (it is not stipulated in law but it is a practice). The problems with cross examination raised more at the Basic and Higher level. Dijana Kajmakovic intervened saying that cross examination is key in Bosnia and Herzegovina and serves as an excellent tool, and Judge Mrcela said that cross comes from a model where a jury decides on the verdict.
Slovenia, Drago Šketa, State Prosecutor and Head of State Prosecutor`s Office in Maribor, said that they don’t recognize the Anglo-American system but they can still ask the questions pursuant to law; everyone can ask questions with or without the approval of the judge. We have some Supreme Court rulings and the ECHR rulings referring to Article 6 of Human Rights Convention on the right to defence. Delivery of urgent examination is quite sufficient to subpoena when there are witnesses that are foreigners.
Croatia, Oliver Mittermayer, Judge County Court in Zagreb, said that Judge Mrcela discussed about American and Croatian models, but Croatia did hurry-up with introduction of cross examination without having the courts ready for audio-recording. Therefore the Constitutional Court abolished the provisions on cross-examination. The old-fashioned system of taking minutes cannot be combined with cross examination. He further referred to two novelties, returning of the inquisitorial maxim asking questions to witness, court cannot ask question to defendant.
Croatia, Laura Valkovic, Defence Lawyer from Croatia, said that she was the initiator of the Constitutional Court abolishment. What was the reason to abandon cross? It was the reason to have efficient court proceedings, cross led to extended trials. In cases with several defendants, on the direct examination, certain criteria need to be established, we have results in Zagreb that we have a case to question the witness for 6 days. A significant ruling was on confrontation.
Macedonia, Sofija Lalichikj, Judge in the Basic Court Skopje, said that since the new CPC is applied for only 6 months it is not yet the time to speak about good or bad about it. Experts however address the loopholes, but judges are very happy with adversarial system, as it removes the burden from them. We have quality of arms in the main proceedings, examination, direct, cross and re-direct. There is a need for not leaving any unanswered question. Judge should control what questions are asked, judge is the manager of the trial. In 6 months application of the new CPC, honestly, I haven’t seen any cross done in the Court. Examiners should be trained on these new skills (cross, direct, re-direct). We haven’t seen it yet in Macedonia, but it is very important to share experiences. Here we are used to have the defendant testify. This would be very surprising in the US because the defendant cannot be considered to be a witness. We have started to understand that other evidence should be used to prove the guilty of the defendant.
Kosovo, Florin Vertopi, Defense Lawyer, said that in Kosovo there is an experience with trials run by international judges (UNMIK and EULEX), and therefore there was no problem to implement the adversarial system, given that there are English-American experiences brought by international judges, however judges coming from the Eastern Communist Block are facing problems with the new system. The issue of international legal cooperation presents a problem, in particular legal cooperation with Bosnia and Herzegovina. Cross examination is a novelty. The previous provisional CPC (UNMIK) of 2004 prevented only “kapcioz” questions (they were considered suggestive questions). Whereas the new CPC determines clearly through strict dispositions the new methods: cross, direct and re-direct. The Kosovo Judicial Council, the US Department of Justice and USAID are for three years now helping the justice and prosecutorial system in Kosovo. However, some judges do not go to the training. There are still people who believe that cross is a suggestive question, but it is important not to be “kapcioz”. On the issue of re-direct, the witness of the Prosecutor is an enemy of the deference lawyer. Some provisions remain ambiguous, for instance, with regard to experts: if the court calls an expert, who will do the direct examination and then the cross-examination?
Bosnia and Herzegovina, Marin Zadrić, Judge and President of Municipal Court of Mostar, the issue of material truth is the same as adversarial truth – chicken or egg. There is a need to record everything. As to video recording, we need to provide anything that we have at our disposal if the party requests it. Some evidence simply cannot be read – it must be listened or seen. The new CPC is not an issue of finances but it is important for Judge not to be involved. It is in the interest of justice that the defendant gets an ex-officio defence lawyer and the Court has the duty to protect the lawfulness of the procedure and basic Human Rights.
Michelle Lakomy, US Embassy, stated that there is fundamental difference between your (regional) and the US approach to cross. Prosecutor is obliged to bring facts to the table. The US system acquires to resolve the question, to determine the guilt. The purpose of direct is to elicit those facts; cross to question or opposing the case.
Judge Aneta Arnaudovska concluded that training is mandatory in Macedonia. The problem of cross came up during the training. It is important to have equalized methodology and develop our own base of educators to train judges and prosecutors. We cannot always count on the US expertise.
Moderator Judge Mrcela concluded that cross is an Anglo-Saxon methodology and foreign to our sort. But it can give great results. Trainings on technics of examination should be in place.
Session III: Plea bargaining according to the CPC:
Expert/moderator: Michelle Lakomy (U.S.)
Lakomy started her presentation by introducing her work as a Prosecutor and some facts from Hudson County of 2011 and June 2012 - July 2013. She further elaborated on a plea bargaining concept saying that judges have independence with plea bargaining as they can accept or reject it in the Court. Predictability is a corner stone for the plea bargaining.
She further explained that there are various systems in the US, as there are 51 judicial systems. There are clear guidelines to ensure predictability in the sentence. For cases 3-5 years sentencing guidelines advises the judge on how to weigh the evidence. Sentencing guidelines are predictable for all the judges. Predictability and transparency are both important.
She further stated that sometimes the system is more adversarial than other times. She explained that by saying that adversarial system and plea bargaining is like a 3-legged race. Trial is like a tug-of-war. At trial the judge is the referee, and for plea bargaining the judge is the camp counsellor.
She continued her presentation by talking about plea bargaining in the region, with a focus in Kosovo. She gave a brief history of plea bargaining in Kosovo, and continued with its options in Kosovo (Negotiated Plea of Guilty, Article 233; Recommend waiver of punishment, Article 234; Apply for declaring defendant a ‘cooperative witness’, Article 235; Mediation proceedings, Article 232; Diversion, Article 184). The presentation continued by making several observations: 1. defence attorneys too often defer to prosecutors, thinking that prosecutors are “very nice and helpful”; 2. Prosecutors need to be more confident; they are too often reluctant to take on their role and think, for instance, that it is the role of the judge to decide on sentencing. 3. During plea bargaining, the CPC says that judges shall not engage during negotiations. This does not mean that they should not facilitate the negotiations. Judges are important and necessary to the process. Judges should take on a role as “facilitators”, by asking for instance whether the Prosecutors and the Defence have started negotiating.
Lakomy’s presentation further elaborated on Mediation Proceedings (Article 232), Cooperative witness (Articles 235-239), Waiver of punishment (Article 234), Negotiated Pleas of guilty (Article 233- Plea Bargaining can be initiated by either side; Plea bargaining can begin pre-indictment; Plea Bargaining allows for a percentage off of the minimum based on the timing and amount of cooperation), Article 233(7) – 10% discount for pleas during the main trial; 20% discount for pleas before the main trial; 40% discount for pleas with cooperation; 60% discount for pleas with covert cooperation.
She further continued with Prosecutorial Administration of Plea Agreements (Article 233 – Prosecutors must submit a written plea agreement proposal to the Chief prosecutor for region; Negotiation with defence counsel may be written or oral), Rights of Injured Party (Article 233(8)), Court involvement (Article 233(10)), Immunity for accused (Article 233(11)), Plea agreement requirements (Article 233(12)), Potential range of punishment (Article 233(13)), and Agreement prior to indictment (Article(15)).
Discussion and presentation by the delegations:
Kosovo, Florin Vertopi, Defense Lawyer, said that the clients do not tell the truth, and asked if the defence lawyers have access to the files of the accused to see whether the defence should start negotiating a plea agreement with the prosecutor? In Kosovo it is a real fight to get access to the prosecution’s file.
Moderator answered that it is crucial plea bargaining technique that the accused need to have equal access to evidence as the Prosecutor. The difference is that the judge has no access during the process, only when the file is submitted to him.
US Embassy Pristina, Constantine Soupios, Legal Advisor, intervened mentioning the change in testimony and interviewing one person more than ones. If the information changes during the process, the change needs to be submitted. You are informed of any change as the Prosecutor is.
Macedonia, Boro Tasevski, Attorney at Law, said that we are all satisfied with implementation of the new CPC, as the previous one was slow and expensive. Macedonia has gone through many reforms in past 10 years, but reform of the CPC is cherry on top of the cake, particularly with plea bargaining. Important one is the transfer competences to the notary public. However it is early to speak about concrete procedures. The new system aims to release the burden of the caseload. Some shifting of competences is done to entities that are not judges. Public Prosecutor has authorization and obligation not only to provide evidence to the case but also in favour of the defendant, plea bargaining basic protection of law regarding Human Rights. He complained that often training is provided to prosecutors and judges but not to lawyers.
However protection and promotion of Human Rights competencies are shifted to institutions not in-charge of Human Rights. In Macedonia we need to avoid it by giving more authority to defence counsel. However we do not have much experience and I appeal to all institutions involved in the reform that there is need to foster the role of defence attorney.
Kosovo, Hamdi Ibrahimi, President of Basic Court Pristina, said that he feels competent to talk about this matter as he runs a court with large territory coverage and where the plea bargaining is applied. This falls under alternative procedure within the CPC. In Kosovo there were 3 Codes in force, the 1999 law applicable, the UNMIK Code, and the new Code. All codes provided for alternative procedures: diversity, suspension of procedure and plea bargaining agreement.
Through the institution of mediation the issue ends before the process of filing of the indictment, through which we have managed to reduce the caseload. Plea bargaining exists before 2013 CPC, in the UNMIK CPC, but both parties (defence and prosecution) hesitate or lack readiness to negotiate. Lawyers seem to be thinking “the worst, the better” and prosecutors might lack professional courage or simply do not want to bother because in order to reach a plea agreement a lot of approvals much be obtained. However, once a plea agreement has been reached, we do not have many problems with it. The plea will be accepted. But it did happen in one case that I had to intervene and did not accept a plea. We need additional training.
Article 233, on negotiated pleas of guilty, paragraph 13 specifies that the Court is not connected with the range of punishment that parties have agreed to. However, if the Court decides on a sentence outside of this range the party is entitled to appeal.
The defence lawyers should be trained and advance their capacities so that they can request the Prosecution about plea bargaining. Whereas the Prosecutors should feel more secure.
Bosnia and Herzegovina, Marin Zadrić, Judge and president of Municipal Court of Mostar, said I don’t think any judge would agree on sentence as agreed in the plea. However shortened procedure and consensual order contributes to an effective procedure. There is an important academic debate in Bosnia and Herzegovina if the Court is allowed to reject the plea agreement if not satisfied with it (in terms of sentence). If the judge actively participates in negotiations of the two parties, he could be in position that both sides can complain about his impartiality. Plea agreement is to be accepted in good will, and it is very important to be aware of the consequences. Psychologically – especially in cases of alcohol abusers and drug addicts - it is important that Judges and Prosecutors are careful with plea agreements. Many of us in daily practice with regard to plea bargaining we check if the defendant was provided full adequate legal assistance (I always ask them if they are happy). Even the smallest doubt I have, I reject plea agreement.
As to the application of this legal institute, on the very agreement, the Public Prosecutor will include a clause on testimony. After entering into the plea agreement, he can be used as witness on other criminals (this is the main point of the plea agreement).
As to sentencing, I don’t know of any written guidelines, I think every Public Prosecutor has its own rules. He further explained specific cases where he rejected plea agreements.
Bosnia and Herzegovina, Miralem Porobić, Defense Lawyer, said that the law doesn’t prescribe the manner of signing the plea agreement. When the Prosecutor presents it the lawyer thinks there is not enough evidence for it. We have to write pre-adjudications that the defendant is not guilty. However there is a need to carefully consider this issue. The very acceptance of guilt does not mean conviction.
Prosecutor Diana Kajmakovic intervened saying that Prosecutor is the one who initiates the plea agreement: “Don’t wait for the lawyer to take the initiative!” Only last year I have signed 45 agreements, she said. This is a heavenly method and very beneficial; in the beginning we were criticized too. Victims should not be forgotten in the negotiation process.
Serbia, Goran Svilar, Deputy Public Prosecutor from the I Basic Public Prosecution Office, plea bargaining was introduced in 2009 as a complete novelty in Serbia. I agree that it is a useful tool to combat the crime. Several of those are before judges now. We use some tricks when it comes to it, not in a negative sense. My experience is different from the others; I think it puts us on the judges shoes. We use consultations with judges. I focus more on plea agreement and pressure that come from the public (there is a case of a famous Serbian singer who was put in house detention for 1 year and we faced great pressure from the public). Second pressure comes from the lawyer/attorneys. I am referring to the Basic court level, and can say that this instrument is useful. We have only applied it for a short time and need more experience about it. In Serbia there are 750 prosecutors and we are working on unifying the judicial practice.
Serbia, Nenad Vujic, Director of the Judicial Academy, said that there is no statistical increase in Serbia. The shift to prosecutor-led investigation and plea agreement is the only way to get prosecutorial investigation functioning properly. The issue in Serbia is that too many cases are received and not enough prosecutors to deal with them. We are working to have in Serbia a judicial sentence uniformed. We are working on issues to be resolved, situations where Prosecutors will offer plea agreements and on the other hand defendant will get minimum sentencing. Statistics show a good application of the new CPC.
The plea bargaining is also financially better, as trials are costly too. This raises the issue of attorneys, and not only from a financial aspect. There is a way of finding through the DNA as well, we had a case found not guilty through this way, though he plead guilty.
He also said that prosecutors are reluctant to negotiate plea agreements because they are put in the shoes of the judge. They also have pressure from the public; the public might say that prosecutors are not doing their job properly. Michelle Lakomy reiterated, in this regard, that “predictability” and “consistency” are two important concepts. If the public complains that the sentenced reached is not sufficient, the prosecutor can point to the prosecution office’s history and stress that all defendants get a similar sentence for this type of criminal offence. The sentence will then look fair. “Advertising” is important too: prosecutors need to talk to the public!
Croatia, Andrea Šurina Marton, Deputy of General State Attorney, we are applying this instrument since 2009, mainly in cases of organized crime and corruption. We had backlog of cases for 3 years, but this is a good instrument that helps with that. We can have plea agreements for any criminal offence except for offences against life and sexual freedom – in such case Prosecutor needs to have acceptance of the victim as well.
The accused must have a defence from the very beginning, even in cases not required by law. If the accused cannot afford a private one, the Court has to appoint one for him.
Such agreement needs to be signed by parties, agreement concluded, statement signed then given to the judge who makes a decision. Judges do not participate in the agreement. If the agreement is reached judge has to accept it, but he can also reject the plea agreement.
The State Prosecutor is obliged to act upon the Guidelines adopted in 2010, which contain the form and the content of the agreement. Michelle Lakomy stressed that such guidelines are a key factor to build “predictability” and “consistency”. Cases when State Prosecutor should not enter into agreement are serious crimes and those involving children. When there is public interest, it is important to pronounce the sentence in an open Court.
Plea bargaining shortens the time of the procedure, and victims are speared (not faced with re-victimization).
Slovenia, Drago Šketa, State Prosecutor and Head of State Prosecutor`s Office in Maribor, we had plea bargaining for two years, but we also have similar institute that is entered in minutes and is similar to court/judicial settlement. In Slovenia the Prosecutor should not enter into an agreement, but the agreement is to be reached before the Judge and noted in the minutes. In 2013 there are total of 500 agreements signed. Out of 12.000 verdicts, 30% were using this instrument. It is a good instrument. Agreement signed before the Judge is obligatory for cases of more than 3 years. This can apply when Judge decides individually. As to Guidelines, there is a scope presented, it cannot be less than 2/3 of cases, with a need to abide by principle of proportionality. However as an instrument it was criticized a lot by the public, especially in cases of economic crime. In a case of a cyber-crime for instance a Prosecutor suggested 22 years and that was over the top. In sum Prosecutors are satisfied with this legal instrument, and judges are having an easier job.
End of day I.
22 May (Day II)
Session I: Training methodologies and curricula for implementation of the CPC
Moderator: Aneta Arnaudovska and Lavdim Krasniqi
The moderators presented at the beginning the concept of the session, which due to traveling of some of participants had to merge in the morning session. Initially the Academies provided individual presentations, followed by the work in groups, and concluded with a presentation of draft curricula.
Croatia, Marija Fuchs, Secretary General of the Judicial Academy, provided an overview of the Academy. It is a public institution and was part of Ministry of Justice until 2004. The Academy has three main programs. It does initial trainings, which are part of the state school, and it has five supporting centres throughout Croatia that are bodies of the Academy. Two programs provide guidelines for judges taking into account application of principle of control, experience, age, respect etc. The work is being done through interaction between trainer and learner and through role-play questions, exercises etc. The workshops are usually 4-5 days. Attendees include judges, prosecutors, and police. It is a face-to-face methodology of work. There also an e-learning or distance learning course on criminal justice law. The Director of the Academy is a Supreme Court Judge. The CPC in Croatia has undergone seven amendments and they were all addressed by the Academy, through workshops and simulation. She further provided statistics like they conducted 87 workshops and 2009 through 2014 they had 2260 learners from the district court, municipal level etc. In 2012 the Academy conducted a workshop with participants from Macedonia attending as well.
As to materials, they are drafted by the Supreme Court judges. Lectures are considered useful and didactic. The evaluation of the overall assessment is that trainings are conducted successfully and participants improved knowledge on the novelties. They systematically acquire training on the new CPC.
Activity during the workshop and self-assessment process is 75% excellent and 25% good/very good.
In 2012 the seminars dealt with criminal offenses on sexual freedom, in 2013 with criminal offenses against life and body, property, misconduct of the official duty etc.
Slovenia, Drago Šketa, State Prosecutor and Head of State Prosecutor`s Office in Maribor, stated that the novelties and a new terminology was introduced in Slovenia two years ago. Last year training events included prosecutors, department for professional education of judges and they are organized internally. In Slovenia the Academy puts a lot of efforts on education of the young staff as they have to apply new measures, especially in the area of economic crime (we have new amendments on this in the law). We get great financial assistance in special cases. EU provides great support with assistance of training of the staff. Various conferences are held in the country and abroad to train the staff, inside and international experience in EU (also in the US on cyber-crime and trafficking of human beings). The last seminar on cyber-crime was held last month in Ljubljana in the US Embassy.
Two seminars were held last year on criminal proceedings with judges and prosecutors from Slovenia, as well as from the US to tune in the methodology. There can never be enough education, but we do have enough programs for trainings. We had one problem however on illegally acquired of property/assets and the law was amended on this one year after adoption.
Publications are drafted by the Supreme Court and Prosecution Office and they are aimed to assisting judges and prosecutors working with special subjects, particular issues.
Serbia, Nenad Vujic, Director at the Judicial Academy, said that the Serbian Academy is an autonomous institution under the competence of the supervisory board of nine members (six judges included). The Academy is a direct budget beneficiary and not through the Ministry of Justice.
The training program is a two-fold - initial and permanent - and it includes judges, prosecutors, court officials, notary public, and private enforcement officers.
As to the Program/Strategy, he referred to the strategy until 2018 saying that professionalism is key to this strategy. Mentors/lecturers are 95% judges and prosecutors. Permanent training can be initiated upon the request at a higher Council.
CPC had many amendments, in 2006 we had a law adopted but was never enacted. The old CPC was used with some amendments made. In 2012 the new CPC entered into force only for organized crimes. Then we had the first wave of trainings, 107 seminars on a five months period, supported by OSCE and the US Embassy.
Then on October 1st the law came into effect and we took two directions for training the Prosecutors: one training on CPC, and two fast courses where every Prosecutors and his Deputy were to be trained, for onward spreading of knowledge to their colleagues. This training included the Police. The idea was also to harmonize the theory with practice.
The second phase of preparations went through a process where Prosecutors working on different issues organized simulation of trials. This training was assisted by Dijana Kajmakovic of Bosnia and Herzegovina. In 2014 we are planning for the Academy to become a direct partner of USAID.
Under the new CPC we had introduced amendments to improve the CPC with the Prosecutor-led investigation, and involving Police officers more actively. Police has the Prosecutor as supervisor, but also the Head of his Department, so this is one issue that needs to be clarified. Training events are needed to strengthen this relationship. Some similar hick-ups were noted at the beginning, like Prosecutor not coming to the crime scene, or coming all dressed-up; this is a skill that needs to be developed through training.
Another issue is the relation with victims and witnesses, this needs a lot of attention and we are getting support from the EU and US to develop these skills. Another program we are working on together with the US Department of Justice is on Plea agreement (to remove the burden from Prosecutors).
Initial training are done by mentors, the second part is done through joint seminars, then monitor the practice, and try to avoid theoretical lectures. We also apply methodology of adult learning through simulation, and it is the best way to learn.
Bosnia and Herzegovina, Marin Zadrić, Judge and president of Municipal Court of Mostar, stated the existence of two Centres of Federation of Bosnia and Herzegovina and Republika Srpska, with a Judicial Commission in Brcko District. Directors of the Centres are appointed through competition. The Curriculum is approved by the High Prosecutorial Council, but judges and prosecutors may propose topics, and three entities are harmonized. Trainings are divided on initial training and training for associates.
Working methods are based on thematic trainings: Human Rights, criminal law, civil law. Trainings are conducted on a seminar type, and are often regional trainings. There were two big symposiums on criminal law with 400-500 judges undergoing trainings, and such symposiums are organized for 11 years now.
Trainers are appointed by the High Prosecutorial Council and are prominent judges, prosecutors, law professors. Their term of office is four years. The trend of trainings consists of roundtable and workshops, but distance-learning is being introduced as well.
Training on the new CPC methods are usually focused on investigation and the new rules in the main hearing (direct, cross and re-direct). The best way to learn is not through ex-cathedra. The trainings are done also though simulation and role-plays. A special training is needed for Juvenile justice and that requires trainers to be certified.
Macedonia, Aneta Arnaudovska, Director, AJPP, stated that when the new CPC was drafted at the Working Group level in the Ministry of Justice, the Academy started with preparations for trainings. Then after adoption an Action Plan on implementation of the new CPC was created and I was Director of that task-force. We have coordinated the target-groups, which also included the judicial police, and preparation of all the parties involved. We followed a concept of inter-disciplinary trainings, with support by Ministry of Interior, Public Prosecutors office, BAR Association, OSCE, US Embassy, EU etc.
Target Groups were Police, Financial Police, Customs Administration, and a 4-day trainings and workshops were held for all of them. Training of Trainers (ToT) went through ten topics. We also organized study visits for judges, prosecutors, lawyers, police etc., to Croatia. Further training was done through TAIEX, and a visit to the ECHR.
We had four groups of educators designing the manuals. The Basic training has four modules, plus a specialized training. Judge and Prosecutors have gone through advanced trainings modules, and OSCE and US Embassy supported that.
Publications: we are not only a training institution. Academy should do analysis, research, statistics etc. We have translated more than 200 judgments of the ECHR. Now we face the issue of publication, including that of training programs, materials etc., so that the trainings are running smoothly.
Training is not just a forum to learn the new CPC, but to discuss dilemmas. Educators should propose changes to the CPC, draft changes, as it’s during the trainings that inconsistencies are noted. Evaluation is very important.
Four groups of trainers on CPC were composed, as a task-force to react immediately on all problems arising quickly, as well as conduct trainings for practitioners. The Council should decide on special needs, and we need support from US Embassy, OSCE, ICITAP, ABA ROLI etc.
Kosovo, Lavdim Krasniqi, Director Kosovo Judicial Institute, stated that KJI is an independent institution which was established by OSCE in 2000. It was then establish by law in 2006 and is given the mandate to train judges and prosecutors, candidates for judges and prosecutors and the staff.
As to the novelties on the CPC, the new Kosovo CPC entered into force in 2013, and we had three days to prepare for it. What we did as KJI to prepare for it?
First of all, with the support of US Embassy, Supreme Court, Kosovo Judicial Council and Kosovo Prosecutorial Council we established a Working Group which included President of the Supreme Court and the State Prosecutor. Then an Action Plan was prepared setting out organization of expert roundtables among those who have drafted the new CPC. The roundtable lasted several days and aimed to identify the deficiencies in the new CPC, as well as propose solutions.
The Working Group prepared recommendations to be discuss during trainings, for the Ministry of Justice to draft amendments to the CPC, and/or for the SC and PO to issue legal opinions or guidelines.
Second of all, a Group of Expert drafted an intensive training plan (6 months). Between January and June 2013 several training sessions were held. They were attended by almost all judges/prosecutors, implementing intensive trainings for judges, prosecutors. Through e-learning platform were taken questions and comments by judges and prosecutors.
Impact of the new CPC in training program was on continues training program for judges and prosecutors, preparatory/entry exam (structure), initial training for candidate judges and prosecutors, training of trainers.
Continues training on new CPC included: 2009 - 2013 – trainings on developing trial advocacy skills (NITA). During 2013 KJI organized 4 (two days) expert roundtable discussions, 18 training sessions (continues and training for promotion) centralized and regional. During 2014 KJI organized 14 training sessions: different topics (most challenging chapters). Beneficiaries were judges and prosecutors of all levels; lawyers, police, custom and correction officers.
The Initial Legal Education Program (ILEP) had to be changed too: several modules had to be changed to reflect changes that resulted from the entry into force of the CPC. The real challenge now is to identify the training needs. We also need to assess whether the training provided is efficient.
Preparatory Exam Structure was based on legal multiple choice and written cases civil and criminal.
Other activities related to CPC included Bench book on criminal procedure and Training of trainers (trial advocacy skills).
Discussion:
One of the questions asked was: what if the trainer gives wrong answers to the trainees during a training session? Everybody agreed that trainers should be careful and should refrain from providing answers if they know that there are different opinions on one issue.
Bosnia and Herzegovina, Marin Zadrić, Judge and president of Municipal Court of Mostar, stated that 5-6 new modules were prepared for the new CPC and they are available to everyone and very useful. He made reference to the judicial practice in Strasbourg and the application of it in Bosnia and Herzegovina, by asking the question can we apply the EU Convention and not the domestic law (which is somewhat contrary to the Convention)? The Constitutional Court may proclaim certain law is contrary to the Convention, he concluded.
Dijana Kajmakovic, Expert/Moderator from Bosnia and Herzegovina, said that she goes to Serbia to train the special investigators and there is no need for that, as Conferences like this may better address those needs.
Macedonia, Boro Tasevski, Attorney at Law, stated that in trainings for the new CPC all lawyers should be actively involved. Many lawyers must be/are educators and trainers.
Aneta Arnaudovska closed the discussion saying that there is a need to design trainings, appreciate time of the trainer, trainings must be efficient, training materials should be of high quality, there is a need to exchange materials. Methodology should be practical, with active participation. We need to increase the quality of trainings. Permanent trainers are also needed on continues basis, particularly on technics of examination.
Working in Groups, four groups divided.
FINAL RECOMMENDATIONS:
Group I (topics for training recommended)
Group II (topics for training recommended)
Duration of trainings: at least 2 days; Target Groups: Police, State Prosecutors, Judges, Lawyers.
Group III (topics for training recommended)
Group IV (topics for training recommended)
Lastly, Judge Aneta recommended that an exchange of candidates on the CPC trainings takes place within the region. Croatian Academy representative suggested that from these recommendations a good European project arises, therefore Slovenia and Croatia - as EU members - to apply on behalf of the group for funds within EU. Director of KJI agreed with the idea to advance the regional cooperation level, and finally suggested that:
The above recommendations of four groups be used as a framework, shared among the participants, and be sent to donors as a future project.
26-06-2014