Judgment based on a plea agreement

A judgment is a judicial decision by which court proceedings are concluded and the merits of charges from the accusatory instrument (a private prosecution, a motion to indict, or an indic-tment) are adjudicated. In criminal proceedings, judgments are mostly passed after the main hearing. There are proceedings for imposing punishment prior to the main hearing, procedu-re for imposing punishment and suspended sentence by an investigative judge, as well as the-se proceedings, but thethe-se are exemptions to the rule that any judgment is a result of an adversa-rial, direct, and as a rule public presentation and examination of evidence before a court of law.

Consequently, they are exemptions to the rule that there may be no judgment without a trial and no trial without a judgment.

The proceedings in which a judgment is passed based on a plea agreement are also specific in comparison with the regular proceedings for delivering a judgment. The prerequisite for delive-ring such a judgment is a final ruling on the adoption of a plea agreement. The judge who deci-ded on the plea agreement must state in the files that the ruling by which it was adopted was final.

We have already emphasised that a plea agreement may be concluded at the stage of an investiga-tion and be submitted to the Court for a preliminary proceedings judge to make a decision the-reon. When such an agreement is adopted by the Court and its ruling becomes final, a public prosecutor is bound to draft an indictment “in which he includes the plea agreement, providing the indictment has not been filed yet”. The legislator orders that the prosecutor “shall include” the plea agreement into the indictment which he files ex officio.

Judgment of conviction - A presiding judge (or a judge sitting alone) delivers a judgement of con-viction by which he pronounces a defendant guilty of the crimes cited in the accusatory instru-ment, as they were described and legally classified therein, and sentences him to a fixed penalty as provided for in a plea agreement. The judgment should also include in its operative part all ot-her terms from the agreement or issues provided for tot-herein, such as the damage claim, costs of criminal proceedings, the lump sum, other obligations of the defendant, etc.

Actually, the operative part of thus passed judgment has to be identical in terms of its contents to the plea agreement. We have already highlighted that it may be stipulated under a plea agreement that the Court will set the amount of the costs of criminal proceedings and the lump sum in its judgment. In addition to the contents of a plea agreement, a judgment passed on the basis there-of should include, as any other judgment there-of conviction, all the elements prescribed under Article 424 of the CPC. This primarily refers to a decision on crediting detention, potential deprivation of liberty, or a part of the sentence previously served, which implies an appropriate application of the rules of substantive law – the Criminal Code which governs this matter.

Provisions of Article 428 of the CPC should be applied to the contents of a judgment done in wri-ting. Naturally, in addition to the indication of the accusatory instrument which is decided on, the introductory part should state that it is passed in the proceedings based on a plea agreement, after which a regular introduction should follow, as in case of any judgment of conviction.²² Judgment of non-suit - Apart from a judgment of conviction and provisions for a guilty plea and a sentence, the subject matter of an agreement may include an arrangement under which a prose-cutor abandones prosecution for some other offences committed by a defendant because he has obtained from the defendant some important information about a criminal offence, accomplices to the offence, prevention of a criminal offence whose commission is in preparation, proving ot-her criminal offences. In our opinion, when a plea agreement is made with such a stipulation, a full admission of guilt should be obtained from the defendant. Thus made confession, which is

22 Nikolić, D., Sporazum o priznanju krivice i njegov doprinos efikasnosti krivičnog postupka, Proceedings of the Conference

”Pojednostavljeneformepostupanjaukrivičnimstvarimaialternativnekrivičnesankcije”,Srpskoudruženjezakrivičnopravnuteorijui

praksu,Beograd,2009,str.113

full and detailed, will ensure the filing of an accusatory instrument which contains a factual des-cription and a legal classification which are abandoned, as well as the precise citation of criminal offences for which the public prosecutor abandones prosecution.

In case when a plea agreement provides that a public prosecutor will desist from prosecution for criminal offences not covered by the agreement (but which pertain to the judgment of convic-tion), those offences should be included in the accusatory instrument and then, before the jud-gment is delivered, the prosecutor would file a special brief in which he states that he desists from prosecution, so the Court will rule in the same judgment or if the procedure allows for it, in a separate judgment, that charges are denied pursuant to Article 422 of the Criminal Procedure Code.

Therefore, a judgment of non-suit may be done separately or it may be part of the judgment of conviction, in the way it is usually done in regular proceedings when there is both a judgment of conviction and a judgment of non-suit in one single case. A judgment of non-suit done in wri-ting should be in accordance with Article 428, paragraph 7; it should not include evaluation of evidence, only a statement that a public prosecutor has abandoned prosecution pursunt to a pe-viously concluded plea agreement. The reason for this is that the criminal matter in respect of that defendant has finally been adjudicated when the judgment becomes final, regardless of the fact it is the judgment of non-suit.

A certified copy of the judgment shall contain a Court’s special instruction to the injured party advising him that he may not assume prosecution for offences covered by the agreement for whi-ch the prosecutor has abandoned prosecution. A judgment of non-suit does not encroawhi-ch upon the right of the injured party to put forward a restitution claim. When such a judgment is passed based on a plea agreement, it may not be appealed.

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2. Bejatovic, S., “Plea Agreement: Serbia’s New CPC and a Comparative Analysis of Regional Legislation”, Proceedings of the Regional Conference New Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects), OSCE Mission to Serbia, Belgrade, 2012

3. Bejatović, S., Sporazum o priznanju krivice i druge pojednostavljene forme postupanja u kri-vičnom procesnom zakonodavstvu Srbije kao instrumenat normativne efikasnosti krivičnog postupka, Zbornik, „Pravni sistem Srbije i standardi Evropske unije i Saveta Evrope”, Pravni fakultet Kragujevac,2009, knjiga IV

4. Bejatović. S., Imovinskopravni zahtev oštećenog, “Jugoslovenska revija za kriminologiju i krivično pravo”, br.2/99

5. Kiurski, J., Sporazum o priznanju krivičnog dela i izvršenje krivične sankcije utvrđene u spo-razumu, Zbor. “Aktuelna pitanja krivičnog zakonodavstva” (Normativni i praktični aspekt), Srpsko udruženje za krivičnopravnu teoriju i praksu, Beograd, 2012

6. Nikolić, D., Sporazum o priznanju krivice i njegov doprinos efikasnosti krivičnog postup-ka, Zbor. “Pojednostavljenje ostavljene forme postupanja u krivičnim stvarima i alternativ-ne krivičalternativ-ne sankcije”, Srpsko udruženje za krivičnopravnu teoriju i praksu, Beograd, 2009 7. Nikolić, D., Sporazum o priznanju krivice, Beograd, 2010

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10. Proceedings of the Regional Conference New Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects), OSCE Mission to Serbia, Belgrade, 2012 11. Đurđić,V., Stranački sporazum o priznanju krivice u krivičnom postupku, Revija za

krimi-nologiju i krivično pravo, br.3/2009

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Miljko Radisavljević¹ Predrag Ćetković²

ApplicationofPleaAgreements:

ExperienceofProsecutor‘sOffice

forOrganisedCrime

Introduction

For a number of years after the Second World War, our public prosecution service had been orga-nized on the Soviet model, from which it adopted numerous solutions.³ By taking over the Soviet solutions, prosecutor’s offices functioned for decades by strictly adhering to the principles of the civil law system without coming closer to the common law model in any way or having any op-portunity to acquire effective solutions therefrom. In the post-Cold War era, two of the above mentioned legal systems began to converge, more and more bridges were built across which ef-fective solution could be transferred from one system into the other.

Following the period of transition during the 1990s, which was characterized by changes taking place in the economic sphere and the system of economy of the then FRY, a specific kind of tran-sition of the Republic of Serbia’s criminal law system occurred in the early 21st century. Prior to this period, public prosecutors and defendants could not reach an agreement of any kind. Public prosecutors had a duty, pursuant to the principle of legality of criminal prosecution,⁴ to initiate and conduct prosecution against persons in connection with whom there were reasonable

gro-1 ProsecutorforOrganisedCrimeoftheRepublicofSerbia

2 SeniorAdvisorwiththeProsecutor’sOfficeforOrganisedCrimeoftheRepublicofSerbia

3 DrGoranIlićidr.,Položaj javnog tužilaštva u Republici Srbiji i uporedno pravna analiza,Udruženjejavnihtužilacaizamenikajavnih

tužilacaRepublikeSrbije,Beograd,2007,str.31-32.

4 Certainauthorsbelievethattheprincipleoflegalityofcriminalprosecutionshouldbeviewedonlytogetherwiththeprincipleof

officialityofprosecutionandtheyrefertoitastheprincipleoflegalityofofficialcriminalprosecution.SeedrMilanŠkulić,Krivično procesno pravo opšti deo,PravnifakultetUniverzitetauBeograduiSlužbeniglasnikRS,Beograd,2007,str.69.

unds to suspect that they had committed a crime, except for in criminal proceedings against ju-venile offenders.⁵

The plea agreement is a legal institute typical of common law systems, but nowadays it is gaining more and more acceptance in the criminal procedure laws of the civil law jurisdictions to the extent that sometimes in theory we can read about some sort of a “plea bargain infection”.⁶ A li-teral interpretation of the expression “plea bargaining” would be haggling, deal-making, or bar-tering between a prosecutor of the one part and a defendant and his defence attorney of the ot-her part, in which process their agreement does not have to pertain strictly to defendant’s guilty plea, but it can also pertain to some other elements which can be included in the agreement as an integral part thereof. The simplification of ordinary criminal proceedings through the legisla-tion of institutes which previously used not to be representative of the civil law systems, and the plea agreement could be included in the lot, has been a feature of the modern criminal procedu-re laws of the countries in the procedu-region.⁷

To put it very briefly, the agreement on the admission of guilt (plea agreement) could be defined as a meeting of the minds of a public prosecutor of the one part and a defendant and his defence attorney of the other part, which is made in writing and by which the defendant knowingly, vo-luntarily and excluding any possibility of his error in judgment fully pleads guilty to one or more counts in an indictment.⁸

It should be stressed that before the plea agreement was introduced by the amendments to the Criminal Procedure Code in September 2009,⁹ which provided for this institute in Art. 282a-d, there had already been certain institutes which provided for negotiations between public prose-cutors and defendants.¹⁰

There was a range of factors which influenced Serbian lawmakers to decide to take such a seri-ous step in 2009 and introduce the plea agreement into the system of the current law which go-verns criminal procedure in the Republic of Serbia. The following reasons could be highlighted as principal: rise in the number of criminal cases; lengthy and strenuous criminal proceedings which were the result of the fact that courts could not schedule hearings within a short time; par-ties’ dissatisfaction with the fact that their cases had not been concluded and an increasing num-ber of judgments on procedural issues instead of judgments on the merits; numerous petitions to the Court in Strasbourg; as well as the limits of the state treasury no longer able to fund a judici-al system which was thus organised. The synergy of these factors had created a need for finding alternative methods of improving the efficiency of the judiciary.

5 Priortotheintroductionofdeferringofprosecutionintoourlegalsystem,prosecutorialdiscretioncouldbeexercisedinourcriminal

procedureonlyinproceedingsagainstjuvenileoffenders,whileitdidnotexistincriminalproceedingsconductedagainstadult

persons.

6 DrStankoBejatovićidr.,Primena načela oportuniteta u praksi izazovi i preporuke,UdruženjejavnihtužilacaizamenikajavnihtužilacaRS,

Beograd,2012,str.52-53.

7 DrStankoBejatović,Plea Agreement: Serbia’s New CPC and a Comparative Analysis of Regional Legislation (quotedfromNew Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,Belgrade,2012),p.103 8 EmilijaTončić,Javni tužilac kao subjekt zaključenja sporazum o priznanju krivice(citiranopremazbornikuradovaZakonik o krivičnom

postupku i javno tužilaštvo,UdruženjejavnihtužilacaizamenikajavnihtužilacaRS,Beograd,2009.godine),str.213.

9 OfficialGazetteoftheRS,No.72/09

10 Thisreferstodeferringofprosecution(Art.236ofthe2001CPC)andthewitnesscollaborator(Art.504о-ćofthe2001CPC),which

havevirtuallypavedthewayfortheagreementontheadmissiononguilt.VeskoKrstajić,Sporazum o priznanju krivičnog dela,Bilten

Vrhovnogkasacionogsudabr.2/2012,Beograd,2012.godine,str.54.

From the aspect of human rights, it was necessary to ensure that trials were held without undue delay, which then-current legislative solutions could not provide for. The right to a trial witho-ut undue delay (within a reasonable time) is not only one of the elements of the fair trial in cri-minal matters, but it is also a very important right of defendant’s which is governed both by the Constitution (Art. 33 of the Republic of Serbia’s Constitution) and international standards (Art.

6, para. 1 of the European Convention on Human Rights).¹¹ The defendant’s right guaranteed un-der the Constitution and the law to have criminal proceedings against him begin and end within a reasonable time is embodied in the quintessence of this right. It would be possible to promo-te the right to a trial without undue delay by proper application of the plea agreement, without it running contrary to the right to a fair trial.

The average duration of criminal proceedings in the Republic of Serbia before the agreement of the admission of guilt began to be applied in our criminal procedure law implied a profound lack of economy of our criminal procedure. In as many as 73.94% of criminal cases it took more than six months for judgments to become final, whereas nearly half the criminal proceedings in the Republic of Serbia lasted more than a year before they were adjudicated by a final judgment.¹² Certainly, all those who have been involved in criminal proceedings in the Republic of Serbia would be astonished to learn that each criminal proceeding which lasts over a year in the UK stands good chances of becoming a scandalous criminal case.¹³ In addition to implementing the right to a trial without undue delay trough the plea agreement, this institute could also be used to further the general interest of the society whose aim is to fight crime as successfully as possible.¹⁴ The judicial circles received with great scepticism the introduction of the plea agreement in our criminal procedure law as an institute of the current criminal law. Compelling evidence of that is the fact that over the first full year during which the institute was applied, namely in 2010, the First Basic Public Prosecutor’s Office in Belgrade registered a total of 12 cases in which plea agreements were signed with 21 indictees.¹⁵ Considering it is the biggest prosecutor’s office in the Republic of Serbia, which on a yearly basis has over 10,000 criminal cases with at least twice as many defendants, it is clear how much the effects of the institute were minimized over the first year by its non-application. Nevertheless, a rising trend in the number of signed plea agreements could be noticed in the next 2011, so the First Basic Public Prosecutor’s Office registered 77 ca-ses in which plea agreements were signed with 112 defendants and in 2012 that number went to 167 cases in which plea agreements were signed with 231 defendants.

Undoubtedly, the plea agreement is a powerful weapon in the hands of public prosecutors, but it only needs to be used properly and it will certainly yield even better results in the futu-re. Information from the US case law is clear evidence of the plea agreement’s significance for any legal system since it shows that as many as 95.7% of the cases were disposed through the plea agreement in 2004, while this number usually does not fall below 90% of the cases settled

11 Mr Jasmina Kiurski,Zloupotreba prava i njen uticaj na efikasnost rada (citirano iz zbornika radovaUloga javnog tužioca u pravnom sistemu,UdruženjejavnihtužilacaizamenikajavnihtužilacaRS,Beograd,2010.godine)str.355.

12 DrSnežanaBrkić,Pojednostavljene forme krivičnog postupanja i postupak njihovog ozakonjenja u Republici Srbiji,Revijazakriminologijui

krivičnopravobr.1/2009,Beograd,2009,str.86.

13 RankoSokolović,Policija i krivični postupak – suprotstavljanje organizovanom kriminalu,SlužbeniglasnikRS,Beograd,2005,str.183.

14 ItwasBeccariawhopointedoutasearlyasinthe18thcenturythatthequickerapunishmentthatwasenforcedfollowingacrime,

themorejustandbeneficialitwouldbe.ŽanPradel,Istorijat krivičnih doktrina,PravnifakultetUniverzitetauBeogradu,Beograd,2008,

str.31.

15 Source:Clerk’sOfficeattheFirstPublicProsecutor’sOfficeinBelgrade.

through the plea agreement per year.¹⁶ From the above information it can only be concluded that without this institute, the US criminal justice system would soon reach a total impasse and then it would collapse.

Consequently, we hope that in the future the use of the agreement on the admission of guilt (plea agreement) as a simplified form of criminal procedure in the Republic of Serbia would gather even more momentum and that it would contribute to the acceleration of work process both at public prosecutor’s offices and at courts.

Experience of the Organized Crime Prosecutor’s Office of the Republic of Serbia

When the plea agreement was first introduced into our legal system in September 2009, it was not used in the Prosecutor’s Office for Organized Crime to any great extent either. During 2010, the Prosecutor’s Office for Organized Crime concluded a total of 3 plea agreements with 3 defen-dants.¹⁷ However, unlike basic prosecutors’ offices, the Prosecutor’s Office for Organised Crime

When the plea agreement was first introduced into our legal system in September 2009, it was not used in the Prosecutor’s Office for Organized Crime to any great extent either. During 2010, the Prosecutor’s Office for Organized Crime concluded a total of 3 plea agreements with 3 defen-dants.¹⁷ However, unlike basic prosecutors’ offices, the Prosecutor’s Office for Organised Crime

Im Dokument Simplified forms of procedure in criminal matters (Seite 166-190)