Contents of a Plea Agreement

The Code lays down two types of elements which make up a plea agreement: mandatory and op-tional. There are six mandatory elements (those which must be included in every plea agreement regardless of a criminal offence to which it pertains) and five optional elements stipulated under the Code. They include:

Particulars of the offence which is the subject matter of the charges - This is the first mandatory ele-ment and it is necessary that it is included in each and every plea agreeele-ment regardless of the type of a criminal offence. Without “the particulars” as it is phrased in the Code, or to put it more correctly, a factual description, it cannot be judged if acts of any defendant include all the facts and circumstances which pertain to a criminal offence and its perpetrator. A factual description should be comprehensive and should include a detailed account of the incident(s) from which it can be established if such a comprehensive account mentions all the general and all the particu-lar elements of a crime to which the agreement pertains or more crimes in cases of concurren-ce of offenconcurren-ces.

Defendant’s guilty plea with regard to the criminal offence which is the subject matter of a plea agreement - As opposed to the 2009 Code, which required that a defendant should “fully admit commission of a criminal offence,” such a provision is now gone, but it is prescribed that a plea agreement must, as a special element, include a defendant’s guilty plea – admission that he did commit the offence which is the subject matter of the agreement. This element must be agreed upon and described as an independent part of the agreement.⁷

An agreement on the type and extent of a penalty or other criminal sanction, the manner in whi-ch that penalty will be enforced or on a single penalty for concurrent offences - The 2011 Code pro-vides that a mandatory element shall be “an agreement on the type, extent, or scope of the

pe-7 Kiurski,J.,Sporazumopriznanjukrivičnogdelaiizvršenjekrivičnesankcijeutvrđeneusporazumu,ProceedingsoftheConference

“Aktuelna pitanja krivičnog zakonodavstva  (Normativni i praktični aspekt)”, Srpsko udruženje za krivičnopravnu teoriju i praksu,

Beograd,2012,str.166-180

nalty…” Thus, it was allowed to negotiate on a penalty in approximate terms. The new Working Group assessed that such a provision on negotiating on the scope of penalty did not serve the purpose or legal nature of a plea agreement and that it was not in line with the manner in which our Criminal Code regulated sentencing, so we turned to the provision from the 2009 Code un-der which not only the type of penalty must be defined, but its duration as well.

To agree on the type and extent of a penalty means that a prosecutor who is a prosecuting attor-ney and a defendant, after having established that the latter committed a criminal offence, pro-vide for the type and duration of penalty which shall be imposed on the defendant after a plea agreement has been confirmed. This is an example of how the so-called judicial sentencing is applied based on the rules on sentencing and a statutory penalty for the offence which is the su-bject matter of the plea agreement.⁸

When negotiating the type and duration of penalties, prosecutors assume a role otherwise per-formed by the Court in regular criminal proceedings and in doing so, they actually perform the role of the Court with regard to sentencing – its individualisation in that specific case. When pro-viding for the type and duration of penalties, prosecutors are obligated to abide by all the rules from the Criminal Code which regulate this specific area. Article 43 of the Criminal Code stipu-lates the types of penalties, while Art, 64 and 77 provide for precautionary measures and Article 79 provides for security measures. Thus, types and duration of criminal sanctions are specified in the Code. A prosecutor may agree with a defendant only on the type of penalty or criminal san-ction prescribed in the Criminal Code or the Court will not accept their plea agreement.

Efforts to provide for the type of penalty or criminal sanction are not the difficult part of the ne-gotiation process for prosecutors and defendants. Deciding on the duration of penalty is much more difficult and complex.⁹

When negotiating on the type and duration of penalties prosecutors must observe statutory ru-les on principal and secondary penalties. Thus, imprisonment may only be imposed as a princi-pal penalty. A fine, community service, and revocation of driver’s licence may be imposed both as principal and secondary penalties. The statute may prescribe several penalties for one offence, but only one of them may be agreed upon and imposed as the principal penalty.

Agreement on any other criminal sanction must be in full accordance with the provisions con-tained in the Criminal Code which govern that particular sanction and specify conditions for its imposing.¹⁰

Sentencing requirements for imposing a single penalty for concurrent offences are provided for in Article 60 of the Criminal Code and they must be understood as imperative provisions, mea-ning that a single penalty may be imposed only pursuant to the above regulation.

8 Đurđić,V.,Stranačkisporazumopriznanjukriviceukrivičnompostupku,Revijazakriminologijuikrivičnopravo,br.3/2009 9 Škulić, M., Main Hearing as Provided for in the New Serbian CPC, Proceedings of the ConferenceNew Trends in Serbia’s Criminal

Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,Belgrade,2012,pp.88-124

10 Bejatovic,S.,“PleaAgreement:Serbia’sNewCPCandaComparativeAnalysisofRegionalLegislation”,ProceedingsoftheRegional

ConferenceNew Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,

Belgrade,2012,p.116

Provisions governing the mitigation of penalties contained in Art. 56 and 57 of the Criminal Code must be correctly applied since their incorrect application constitutes grounds for a denial of a submitted plea agreement by the Court.

Agreement on the costs of criminal proceedings, confiscation of the proceeds from crime which is co-vered by a plea agreement - Provisions governing the costs of criminal proceedings are contained in Articles 261- 267 of the CPC.

Unlike the previous solution, it should be noted that this one does not include only costs incu-rred in the course of preliminary investigation and investigation, but also the costs incuincu-rred at a main hearing given the rule that a plea agreement may be concluded before the conclusion of a main hearing. A prosecutor may agree that a defendant is released from the duty to defray those costs only under the terms stipulated in Art. 264, para. 3 of the CPC.

Statement by which the parties and a defence attorney waive the right to appeal against a decision by which the Court accepts a plea agreement in its entiretly, except in the case referred to in Art. 310, para. 3 - The right to appeal ranks very high among defendant’s rights in criminal proceedings.

Thus, Art. 36, para. 2 of the Constitution of the Republic of Serbia guarantees the right to appeal or other legal remedy against any decision on his rights or lawful interests.

Consequently, in a plea agreement, the parties agree to give up their right to appeal a judgment passed based on the plea agreement which has been accepted following a proper procedure. A prosecutor and a defendant and his defence attorney are bound to provide for such a statement in the plea agreement. Thus, the three parties entering into a plea agreement waive their right to appeal a judgment of conviction which is to be passed based on the agreement. A question ari-ses: do other persons referred to in Art. 433 (defendant’s spouse, his next of kin, etc.), who are permitted under the law to file an appeal on behalf of a defendant, still retain the right of appeal.

When a defendant and his defence attorney have individually waived the right to appeal, provi-sions contained in Art. 434, para. 5 are to be applied to persons authorized to file appeals under Art. 433 and a waiver of appeal may not be revoked. Such an appeal or any inadmissible appeal by a defendant or his attorney shall be dismissed by the Court pursuant to Art. 443.

There is a single exception to this rule, only if a judgment which has been passed is not in accor-dance with a signed and finally accepted agreement.

Whether or not a judgment is in accordance with a plea agreement is an issue of fact. In any case, a judgment must be in full accord with a plea agreement in terms of the type and duration of a penalty or other sanction as well as with other elements including: how the offence has been cla-ssified, the amount of costs, decision on a restitution claim, confiscation order for the proceeds from crime, etc. Thus, after accepting a plea agreement, the Court has no authority to amend ele-ments which have been provided for therein. Neither is the Court empowered to leave out any of the elements of a plea agreement from its judgment. If there have been any irregularities in the agreement, the Court should not have accepted it, i.e. was obligated to deny it.¹¹

11 See:ProceedingsoftheRegionalConferenceNew Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,Belgrade,2012

Signatures of the parties and defence attorney - Rightfully, the Code provides that a plea agree-ment must include signatures of the parties, i.e. a public prosecutor and a defendant, which form an important and mandatory element thereof. When a plea agreement is being concluded, defendant’s attorney must be present since he will guarantee that correct procedure has been fo-llowed and that all the advantages and disadvantages of the agreement have been explained to the defendant. By signing the agreement, the defence attorney confirms that its contents are correct and lawful. He guarantees that the defendant is aware of all the consequences of a signed plea agreement. His signature is a guarantee to the defendant that the agreement has not been made to his prejudice.

Optional elements include:

Prosecutor’s statement on desisting from prosecution for offences not covered by a plea agreement - The Code permits that a plea bargaining process includes negotiations with a defendant and his attorney on desisting from prosecution for an offence or offences not covered by a plea agree-ment. Except for providing for such a possibility, the law does not stipulate conditions under whi-ch a prosecutor may act in suwhi-ch a way. Thus, it is an issue of fact and it depends on prosecutor’s discretion when and under which conditions he might include this element into a plea agree-ment. Nevertheless, prosecutors are at least obligated to keep in their files official notes stating reasons for which they decided to abandon prosecution for some other offences. Those reasons may include defendant’s cooperation in the detection or proving of some other crimes against other defendants. In any case, it could be any form of defendant’s cooperation with a prosecutor.

Defendant’s statement by which he accepts obligations referred to in Art. 283, para.1 - Article 283, para. 1 of the CPC provides that a public prosecutor may stay criminal proceedings for criminal offences punishable by a fine or a term of imprisonment of up to five years and prosecuted ex of-ficio provided a suspect accepts one or more measures prescribed in the same Article. Therefore, this is an optional right of the prosecutor’s to stay proceedings, which is clearly expressed by the modal “may”. Thereby, the principle of prosecutorial discretion was introduced into our legal sy-stem in 2002.

The law enumerates the type of measures whose enforcement may be requested and public pro-secutors may not exceed the scope of those measures. They include as follows:

1) A suspect shall rectify a detrimental consequence caused by commission of an offence or indemnify the damage caused

It should be mentioned that the consequence in question is not a consequence in the sense of conduct which leads to a certain consequence. It is not the consequence of a crime which constitutes an element thereof. It is another type of consequence, the one in relation to the protected object of a crime. Namely, in order for a crime to exist, it has to have a consequence. However, a detrimental consequence can follow from certain crimes and it reflects on or additionally damages the object of protection. This is a case of damage caused to the object of protection which is a motive for prosecution. Often, such consequences are an objective condition for prosecution. Such a consequence – damage – can arise both in cases of crimes which cause damage and criminal endangerment.

2) payment of a certain amount of money to the benefit of a humanitarian organization, fund, or public institute

Two aspects of this requirement are interesting from the point of view of its practical use. Firstly, what entities should be regarded as belonging to these legal persons whose activities are public and which work in the public interest? This question needs to be answered and it needs to be determined what constitutes a humanitarian organisation or fund, because in practice we need to be very cautious when it comes to numerous pseudo-humanitarian organisations and funds. Namely, there are a lot of organizations both in Serbia and around the world whose activities are allegedly humanitarian, but in reality these organisations and funds are suspect, not only because of their founders, but because they do not perform activities for the purpose of which they were established.

Many of them, both domestic and foreign are used to launder money and engage in other criminal activities. Consequently, in our opinion, when setting down this requirement, we should concentrate on humanitarian organisations which are universal in time and space and established in the society, such as the Red Cross, Commissariat for Refugees, funds for preventing fatal diseases, foundations of Ivo Andric, Vuk Karadzic, research medical centres, and hospitals.

As regards public institutions, such payments should be made towards the National Library of Serbia, town, university, faculty, school, and other libraries; or towards funds used to restore houses or establish foundations of distinguished persons, etc. In any event, public prosecutors are bound to exercise caution and be informed in order not to discredit themselves or this procedural institute by making a wrong selection with regard to a beneficiary.

As regards the sum of money to be paid by a defendant, the criteria which apply to determination of a fine under Article 54, para. 2 of the CC should be used. In our opinion, the sum should be significantly higher than an expected fine for several reasons.

In this instance, a defendant is privileged in many respects. Namely, he is not subject to prosecution and he is spared from all the inconveniences immanent to criminal proceedings. He does not have to hire a defence counsel nor does he incur any similar expenses; he does not waste his time because he must appear at a main hearing nor does he have to pay any fares; he does not have to bear any of the consequences suffered by a convicted person nor does he come up as a recidivist when a new offence is committed because his name is not entered into criminal records of convicted persons, etc.

3) community service or humanitarian work

This measure is not specific to our legislation. Namely, after learning that prison sentences, in particular short-term custodial sentences, achieve quite the opposite, efforts were devoted to looking for alternative measures both abroad and in Serbia. At first, efforts were made to find an alternative to short-term incarceration, but presently, it is a general trend in contemporary criminal law. Alternatives to custodial sentences are no longer the only ones which are being sought, but alternatives to punishment in general are being sought as well. One of the most successful alternatives to custodial sentences is community service.

4) fulfilment of maintenance obligations which have fallen due

This measure is in connection with commission of the crime “avoiding maintenance payments” from Art. 195 of the CC, even though the Code does not formulate it. By using the phrase “fulfil maintenance obligations which have fallen due”, the legislator actually says that those obligations had first been imposed and then fell due. Thus, a suspect has defaulted on his payment(s) for maintenance which was awarded by a valid titulus executionis (title of execution) – a judgment, settlement, etc, but it can be done without

those writs of execution, in other words, only based on a criminal complaint. If there is no title of execution, a competent prosecutor shall summon a suspect and the injured party and attempt to establish which payments are due and for which period; naturally, he has to have full consent from the summoned persons and in such case, he may stay criminal proceedings.

5) submitting to an alcohol or drug treatment programme

Among other security measures, the Criminal Code also provides for a) compulsory drug addiction treatment and b) compulsory alcohol addiction treatment. These two measures used to be known as one measure before the Code was passed. At present, they are governed by Art. 83 and 84 of the Criminal Code as two separate measures.

If it is established in the course of plea bargaining that a suspect or a defendant committed the offence which is the subject matter of plea negotiations due to constant addiction to narcotics or that he committed the offence due to addiction to alcohol and that there is a serious threat that the offender might continue to commit criminal offences due to either addiction, it is in the public interest to eliminate the cause which leads to commission of crimes. Since their abuse of alcohol or narcotics to which they are addicted is the reason why such offenders commit crimes, it is necessary that they undergo appropriate treatment.

Both alcoholism and abuse of narcotic drugs mostly lead to commission of offences against property: thefts, embezzlement, misuse of funds, fraud, and other crimes committed for gain as motive, for the purpose of providing financial resources for purchasing alcohol or narcotics. Also, those two are common causes not only of domestic violence, but of other offences as well. In the process of negotiating on this measure, a prosecutor should comply with the provisions contained in Art. 83 and 84 of the Criminal Code and observe the conditions under which it may be imposed. Thus, whether or not a plea agreement will stipulate compulsory alcoholic or drug addiction treatment at a healthcare institution or undergoing such treatment programme at liberty should be subject to evaluation in each specific case. Duration of the treatment on which the parties have agreed cannot exceed the time limits stipulated under Art. 84 and 85 of the Criminal Code.

6) submitting to psycho-social treatments

This measure will be rarely used in practice. It has no tradition in our criminal law or jurisprudence. It should be stipulated under a plea agreement in cases of offenders who commit crimes because of the structure of their personalities and their antisocial

This measure will be rarely used in practice. It has no tradition in our criminal law or jurisprudence. It should be stipulated under a plea agreement in cases of offenders who commit crimes because of the structure of their personalities and their antisocial