Assessment report on Mutual Legal Assistance in Criminal Matters in Serbia

Transcription

1 Assessment Report of the Mutual Legal Assistance (MLA) in Criminal Cases in Serbia Assessment report on Mutual Legal Assistance in Criminal Matters in Serbia IPA 2014 project International Cooperation in Criminal Justice: Prosecutors Network of the Western Balkans 2016

2 Serbia team: EU MS Seconded Prosecutor Gabriele Walentich National Legal Officer Stasa Lagumdzija All views and suggestions in this report are those of the author(s) and do not necessarily represent those of the European Union, GIZ, CILC or UNODC 2

3 Table of Contents I.1 Terms of reference... 5 I.2 Study procedure/process of preparation of the assessment reports... 6 I.3 Membership in relevant international association/bodies/organisations... 7 I.4 Reference, literature I.5 Legal framework II Short resume of findings in Prof. Klip report III.1 National legal framework III.2 International legal framework (see annex) III.3 Current legislative developments III.4 Additional literature (Guidelines, Manuals, Handbook, Templates/Standard Forms)17 IV. National MLA structure V Ministry of Justice V.1.1 Organisation (HR and IT capacities) V.1.2. HR and IT V IT V.2 Jurisdiction/tasks in international legal cooperation V.3 Practice, cooperation with other law enforcement agencies V.4 Challenges/shortcomings V.5 Improvements/recommendations VI. Public Prosecution of the Republic of Serbia VI.1 Republic Public Prosecutor s Office (RPPO) VI.1.1 Organization VI.1.2 Tasks in connection with international cooperation in criminal matters VI.1.3 Support (ICT) VI.1.4 Cooperation with chain partners VI.2. Public Prosecution Office for Organized Crime VI.2.1 Legal framework VI.2.2 Organization VI Tasks in connection with international cooperation in criminal matters VI Support (ICT)

4 VI Cooperation with chain partners VI.4 Miscellaneous VI.4.1 Building up knowledge VI.4.2. KRIS VI.5 Public Prosecution Office for war crime (WCPO) VI Organization VI Workload VI HR & IT VI.6 Responsibilities/tasks of PPOs in international legal cooperation VI.7 Practice, Cooperation with other Law Enforcement Agencies VI.8 Challenges/Shortcomings VI.8.1 Organizational structure VI.8.2 HR & IT VI.8.3 International cooperation VI.8.4 National cooperation among law enforcement authorities VI.9 Improvements/Recommendations VI.9.1 Organizational structure VI.9.2 HR and IT VI.9.3 National cooperation among law enforcement authorities VI.9.4 International Cooperation VI.9.5 Building up knowledge VII. Courts of the Republic of Serbia VII.1 Organizational set up VII.1.1 HR and IT VII IT VII.2 Responsibilities/Tasks in international legal cooperation VII.3 Practice, cooperation with other Law Enforcement Agencies VII.4. Challenges/Shortcomings VII.5 Improvements/Recommendations

5 I. Introduction/Background This is an assessment report with main observations and recommendations for improvement in line with the terms of Activity II.1.1 of the action plan of the Project IPA 2014 International Cooperation in Criminal Justice: The Prosecutors Network of the Western Balkans. The duration of this project comprises of 35 Months: 19 November October 2017 and is implemented by the Deutsche Gesellschaft fűr Internationale Zusammenarbeit (GIZ) GmbH in cooperation with the Center for International Legal Cooperation (CILC) and the United Nations Office on Drugs and Crime (UNODC). The target countries are the Western Balkans, including Albania, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Kosovo, Montenegro and Serbia. The target groups of the beneficiaries are Public Prosecutors Offices, Ministries of Justice and other law enforcement agencies in all target countries. The overall objective of the project is to prevent and combat serious and cross-border organized crime and linked corruption cases with cross-border implications, as well as to dismantle criminal organizations involved in illicit trafficking destined to the EU, in particular trafficking in firearms, drugs and human beings. Whereas specific objectives required by the contract refer to the strengthening the operational capacities of the prosecution offices in relation to investigation and prosecution of serious and cross-border organized crime. I.1 Terms of reference Component II: Strengthening of the institutional capacities, as well as coordination and cooperation mechanisms among beneficiaries to effectively prosecute and investigate serious and cross-border organized crimes, linked cases of illicit trafficking destined to the EU, in particular trafficking in firearms, drugs and human beings. Activity II.1.1 Conduct an assessment with main observations and recommendations for improvements (Baseline and guidance throughout the entire project). Description of the Action EU MS seconded prosecutors, possibly supported by STEs, prepare comprehensive assessment reports, based on the case-flow in actual prosecution files and elaborate 5

6 recommendations for organisational and procedural improvements. In preparing the assessment, they will also analyse the process of how the judgement is finally handed down and they will make recommendations on legislation, investigation, prosecution and make solutions in line with European standards. Expected Outputs Six comprehensive assessment reports with recommendations for improvements. I.2 Study procedure/process of preparation of the assessment reports The data presented have been recorded by different methodologies, i.e.: data transmitted by the relevant authorities upon request; exchange with stakeholders as to particular issues; interviews conducted during the timespan of IPA 2014 project; extensive desk research for data which were not available on the official web sites of stakeholders etc. This report takes also into consideration outputs of the IPA 2010 project on Strengthening the Prosecutors` Network in the Western Balkans and interviews with relevant authorities in processing MLA requests. Even if changes have occurred since the end of the IPA 2010 project, remarks and recommendations made by the experts in the IPA 2010 project remain relevant. In addition this report follows essentially the EU progress reports on Serbia from 2014 and 2015 as well as the findings in the World Bank report Serbia Judicial Functional Review 1 because of the lack of own generated data by interviews etc. due to the recent changes in the project team. 2 Moreover, Serbia has started negotiations on joining the European Union in December 2013, has drafted Action Plans on Chapter 23 and 24 and benchmarks for Chapter 24 were opened in October Since the draft Action Plan on Chapter 24 (and partially on Chapter 23) also deals with the subject on MLA and activities are foreseen to make improvements, special attention was concentrated on these documents as it makes sense that the IPA 2014 project will act in line with and will support the activities described in the Action Plan The new EU seconded prosecutor started working in Serbia 15 January

7 Nevertheless it has to be noted, that the information presented in this baseline study might not be complete and needs additional input by the foreseen assessment of the stakeholders to finalise the state of affairs regarding MLA. I.3 Membership in relevant international association/bodies/organisations The Serbian authorities are members of: EUROJUST: Regarding the conclusion of an agreement with EUROJUST, Republic of Serbia needs to amend the legislation on personal data protection. Also training for prosecutors and judges is needed on this topic. 3 The Republic of Serbia must also decide on the scope of powers conferred on its national member in accordance with Articles 9-9f of the Decision and to determine financial consequences of the secondment of a national member to EUROJUST. EUROPOL: On the basis of the Law on Ratification of the Agreement on Operational and Strategic Cooperation 4 between the Republic of Serbia and the European Police Office EUROPOL 5, a special department formed in the Ministry of Interior continuously exchange information relating to the commission of offenses, information on routes of smugglers or those involved in crimes, forensic police methods and investigative procedures, methods of training officers, criminal intelligence analytical methods, etc. 6 INTERPOL: The Republic of Serbia holds the membership in INTERPOL as the successor of the Federal 3 IPA 2014 project supported 2 trainings for judges/prosecutors on data protection in "Official Gazette of the RS", No. 5/14 5 According to the decision of the Council of the European Union of 27 March 2000 (amended by the decisions of 6 December 2001 and of 13 June 2002) the Director of Europol is authorised to enter into negotiations on cooperation agreements with third states and non-eu related bodies. The nature of the cooperation agreements can vary, ranging from operational cooperation, including the exchange of personal data, to technical or strategic cooperation; EUROPOL 7

8 Republic of Yugoslavia, which acquired the status within the INTERPOL General Assembly 24 th September 2001 in Budapest (Hungary). 7 SELEC/SEEPAG: Serbia is member of SELEC (Southeast European Law Enforcement Centre) since 2011 and SEEPAG (Southeast European Prosecutors Advisory Group) since WESTERN BALKAN PROSECUTORS`NETWORK: The Western Balkans Prosecutors` Network, based on a Memorandum of Understanding, was signed by Serbia and additional 5 member states EUROPEAN JUDICIAL NETWORK (EJN): Following an advice of the project National Contact Points of the Republic of Serbia for the EJN 10 were appointed in March 2016 in the MoJ 11 and in the Public Prosecutor s office. 12 Already in October 2014 a National Contact Point was appointed in the Appellate Court in Belgrade, according to MoJ. 13 REGIONAL COOPERATION COUNCIL (RCC): The Regional Cooperation Council (RCC) 14 consists of 46 countries, organizations and international financial institutions. The Republic of Serbia is participant of the RCC and of the RCC Board INTERPOL 8 The objective of SELEC (successor of SECI center as of 2011, SECI agreement signed 1999, center became functional 2001), within the framework of cooperation among Competent Authorities, is to provide support for Member States and enhance coordination in preventing and combating crime, including serious and organized crime, where such crime involves or appears to involve an element of trans-border activity. 9 See details in: R.J. Steblyj, Assessment of existing co-operation networks, contact points and legal frameworks for their operating; pg. 8 ff. 10 The European Judicial Network in criminal matters (EJN) is a network of national contact points in EU Member States for the facilitation of judicial cooperation in criminal matters 11 Katarina Nikolic, Ministry of Justice of the Republic of Serbia, Sector for Mutual Legal Assistance (note: the first contact point for EJN in Serbia was appointed in October 2014) 12 Branka Milosavljevic, Deputy Higher Prosecutor seconded to Apellate Prosecutor s Office in Novi Sad 13 from former National Contact Point in MoJ on 25 March 2015; Jasmina Vasovic, judge in the Appellate court in Belgrade (appointed in October 2014) 14 The Regional Cooperation Council (RCC) was officially launched at the meeting of the Ministers of Foreign Affairs of the South-East European Cooperation Process (SEECP) in Sofia, on 27 February 2008, as the successor of the Stability Pact for South Eastern Europe. Through a regionally owned and led framework, the RCC focuses on promotion and enhancement 8

9 POLICE COOPERATION CONVENTION FOR SOUTH EAST EUROPE (PCCSEE): On 5 May 2006 in Vienna, during the Austrian presidency of the EU, the Ministers of Interior from Albania, Bosnia and Herzegovina, Macedonia, Moldova, Montenegro, Romania and Serbia, signed the Police Cooperation Convention for Southeast Europe. After ratification by all seven signatory states, the Convention entered into force on 10 October In addition, Bulgaria acceded to the Convention on 25 September 2008, Austria on 24 May 2011, Hungary on 6 July 2012 and Slovenia on 14 December NETWORK OF THE GENERAL PROSECUTORS OF THE SUPREME JUDICIAL COURTS OF THE EUROPEAN UNION: After efforts to receive the observer status in spring 2015 the Republic Public Prosecutor's Office of Serbia is observer since the end of 2015, and starting in 2016 will participate in the work of this network, which will contribute to the further development of direct contacts and international cooperation. NETWORK FOR LEGISLATIVE COOPERATION BETWEEN THE MINISTRIES OF JUSTICE OF THE EUROPEAN UNION: Serbia has approached the network in spring 2015 to acquire observer status. COUNCIL OF EUROPE: In 2015, the Republic Public Prosecutor's Office continued to participate in the work of the Council of Europe, including the CCPE - Consultative Council of European Prosecutors. Head of the delegation of the Republic of Serbia in the T-CY Committee 17 who is the Special Prosecutor for High-tech Crime participated in the work of that Committee of the Council of Europe in February, June, September and December Participation in further activities of the T-CY Committee was continued during of regional cooperation in South East Europe (SEE) and supports European and Euro-Atlantic integration of the aspiring countries Cybercrime Convention Committee 18 Draft Annual report of RPPO for 2015, Department for International Cooperation and Mutual Legal Assistance 9

10 I.4 Reference, literature Please see the Annex: Reference literature, attached at the end of the document I.5 Legal framework For details as to the legal acts applicable in this field, the IPA 2010 Project Fight against Organized Crime and Corruption: Strengthening the Prosecutors' Network on the Western Balkans had compiled all relevant legal texts and provided an overview of the relevant authorities involved in international cooperation in criminal justice. This so called Compendium is going to be updated soon. It is accessible through the following web site ( or as Annex: Compendium attached at the end of this report. 10

11 II Short resume of findings in Prof. Klip report 19 Prof. Klip highlights: The legislation on mutual legal assistance in criminal matters of Serbia is generally up to date, consistent, inherently logical and provides for possibilities to assist other states and to be assisted in all forms of international cooperation at all stages of criminal proceedings. The degree of ratification of the relevant treaties of the Council of Europe is very high. However, Prof. Klip refers to some legal and practical issues, which should be considered to be amended/changed and/or provided. Not to reiterate them all, the main ones linked to the project are incorporated below and/or in the shortcomings/recommendations. The ones especially concerning legislation should be revised by the Serbian authorities, to whom the report was forwarded in the course of the previous project. The general remarks of Prof. Klip in his report highlight the following: The legislation on mutual legal assistance in criminal matters of Serbia is generally up to date, consistent, inherently logical and provides for possibilities to assist other states and to be assisted in all forms of international cooperation at all stages of criminal proceedings. The degree of ratification of the relevant treaties of the Council of Europe is very high. The direct application of treaties as such is not problematic. However, the authentic texts of the conventions are not available to practitioners or they cannot read them as most treaties applicable to Serbia in the field are from the Council of Europe for which only the French and English text is legally binding. The practice to publish a translation into Serbian in the national Gazette of RS is insufficient, as these translations are not the legally binding texts. The comment of Serbian experts: All versions, French, English and Serbian language, are legally binding, but the Serbian translations sometimes could be improved. Despite direct applicability of treaties, further national legislation might still be necessary. Some minor amendments to the national legislation or with regard to reservations to conventions need to be made. 19 André Klip, Facilitating Mutual legal Assistance in the Western Balkans: Towards removing obstacles in international cooperation in criminal matters, March 2014; Please find the Report as an Annex to this document. 11

12 The adjustment of the law on international cooperation to the new roles of authorities (judges, prosecutors, courts and police) after the change from an inquisitorial to accusatorial system in criminal procedure has to be taken into account (as well as the adjustment of other laws, e.g. law on jurisprudence, law on prosecutors) as competences are in dispute and roles ambiguous. The law on international cooperation should provide both for cooperation based on a treaty for cooperation without such a basis. The comment of experts: Article 1 of the Law on Mutual Legal Assistance in Criminal Matters (MLA Law) 20 stipulates that MLA is provided pursuant to the ratified international treaties; only in case there are no such treaties or some issues are not regulated by them the MLA Law is applicable. No website is existent which makes accessible all legal and practical information concerning international cooperation for practitioners. All have to re-invent the wheel themselves. The quality of translations (of laws and other legal documents) should be improved. The Serbian legislation does not provide for the extradition of nationals (Art. 16 MLA Law), although Serbia has concluded bilateral extradition treaties with Croatia and Montenegro that provide for the extradition of nationals. The general absence of extradition of nationals could cause problems with regard to certain cases, and constitutes an obligation that must be taken away should Serbia want to become a member of the European Union. 21 It has been considered to make extradition of nationals conditional on the transfer of the execution of the judgement. 22 The experts comment: Meanwhile, bilateral agreements have been signed with Bosnia and Herzegovina and F.Y.R.o. Macedonia. Also, the Republic of Serbia has withdrawn the reservation 23 from the Convention on Extradition, whereby conditions were met to expand possibilities of extradition of own nationals to other Convention signatories. 20 Official Gazette of RS No. 20/ Official Gazette of RS, No. 20/2009; Answers to questions to the contact point were received on 13 December 2013 report the following: This is not a problem, as the Constitution does not prohibit the extradition of nationals and this could be stipulated in an international treaty. The MLA Law applies only when there is no ratified international treaty or when certain issues are not regulated by the treaty (Article 1 of this Law). 22 See Klipp report, pg. 152: Ministry of Justice, Department for Mutual legal Assistance in Criminal Matters, 25 February Article 5 paragraph 1 related to Article 21 paragraph 2 of the Convention; Law on Amendments of the Law on Ratification of the European Convention on Extradition with Additional Protocols, Official Gazette of RS, No. 12/2010, which entered into force on 25 December

13 Due to a misunderstanding of the agreement to establish for Joint Investigation Teams, the competence to conclude such agreements has been given to the Ministry of Justice, although the MoJ has not task at all within such an operative function. The competence should be allocated with the prosecution More operational facilities for video-link testimony are needed to be placed in court rooms that are not predominantly used for other purposes. Language training in English in order to be able to request and answer international requests. Courses on international cooperation for all personnel involved in the matter should be set up as to the content as well as to the form. III.1 National legal framework According to the Constitution 24, treaties prevail over national law and are directly applicable. 25 In practice there are some ambiguities, given that the MLA Law still does not comply with the new CPC and forthcoming amendments and changes as well as alignments among these laws and other relevant legal acts are expected. The national legal framework shaping the international cooperation in criminal matters is based on several directly applicable legal acts, as it is the practice in most countries. The two main legal acts are the Law on Mutual Legal Assistance in Criminal Matters 26 and the Criminal Procedure Code 27 (CPC). The MLA Law forms a modern act on international cooperation in criminal matters with a classical structure. It provides common provisions for various modalities of international cooperation (extradition, mutual assistance etc.) both in situations where a treaty applies and in situations where no international convention is applicable. 28 In accordance with the Serbian regulations, the underlying law in the area of providing mutual legal assistance in criminal matters is the MLA Law, whereas in the procedure of providing mutual legal assistance, if this 24 Article 16 paragraph 2 of the Constitution of RS, Official Gazette of RS, No. 98/ It is reported that in practice not all practitioners understand the relationship and that the MLA Serbia is applied, even in situations where the treaty would prevail. Courts have the tendency to be national law oriented (Judge, 24 February 2014) 26 Official Gazette of RS, No. 20/ Effective as of October 1st 2013; January 15th 2012 its implementation already started in proceedings for criminal offences related to organized and war crimes in front of the special department of the competent court; Official Gazette of the Republic of Serbia, no. 72/2011, 101/2011, 121/2012, 32/2013, 45/2013 and 55/ See Klip report, pg

14 Law does not stipulate otherwise, the provisions of Criminal Prodecure Code and other regulations shall be applied accordingly. 29 The report also includes sublegal framework (where available) that is currently applicable for the relevant institutions for the purpose of assessing their working capacities and possibilities to perform the tasks related to international cooperation in criminal matters. As a rule, the sublegal framework outlining the human resource and the capacities foreseen, rarely reflects the actual situation on the ground where the filed actors preform. Therefore the scarce capacities of the majority of the institutions directly affect the performance of the staff working in the field and the possibilities for improvements. It is very common that even though the regulation foresees a sufficient number of personnel, due to lack of budget, some positions remain vacant. Nevertheless, the MLA and the CPC together with the wide spectrum of ratified international and regional instruments, as well as together with bilateral agreements and memoranda for cooperation provide a solid ground for a dynamic international cooperation in criminal matters. Related to the EU regulations, Serbia in plenty of cases has already aligned its legal framework. However the full alignment with the EU regulations applicable has still to be achieved, which is pending due to the process regarding the membership to the EU and will be matter of fact within the negotiations of Chapter 23/ III.2 International legal framework (see annex) III.3 Current legislative developments By signing the Stabilization and Association Agreement (SAA) in 2008, the Republic of Serbia started a new phase in relations with the EU. For the first time, relations with the EU are based on contractual obligations. By signing the SAA, Serbia committed to gradual 29 Article 12 of the MLA Law 30 See recommendations in report Ostropolski, Darkowski Implementation of Acquis in the Field of Judicial Cooperation in Criminal Matters, Warsaw, December

15 harmonization of domestic legislation with the acquis communautaire (hereinafter: acquis), as well as its consistent application. 31 As already mentioned above, the Republic of Serbia has to transpose the acquis into national legislation and implement it from the moment of its accession. These rules are divided into 35 different policy fields, commonly known as chapters. 32 Chapters 23 - Judiciary and Fundamental Rights and 24 - Justice, Freedom and Security are particularly important, because they establish the basic values of the European Union. Chapter 23 (Judiciary, Fight against Corruption, Fundamental Rights): The EU's founding values include the rule of law and respect for human rights. A proper functioning judicial system and effective fight against corruption are of paramount importance, as is the respect for fundamental rights in law and in practice. 33 The Republic of Serbia is fully committed to the process of European integration and aware that this process requires substantial and fundamental changes in the judiciary, the anticorruption system and the protection of fundamental rights, both at the normative and the implementation level. In this sense, in the process of developing the reform steps in Chapter 23, Serbia was primarily guided by the EU acquis. In areas where there is no acquis or it does not cover the whole area, the established standards and best comparative practices were used as a guide for creating reforms, particularly considering the legal heritage of the Republic of Serbia as well as socio-economic factors conditioning the applicability of the solutions that provide good results in other legal systems www.seio.gov.rs/upload/documents/nacionalna_dokumenta/npaa/npaa_eng 2014_2018.pdf; National Programme for the Adoption of the EU Acquis , pg. 1-2: Pursuant to Article 72 of the SAA, Serbia undertook the commitment to prepare, in agreement with the European Commission special Programme for implementation of the obligations under the SAA. The EU monitors harmonization of legislation and implementation of laws from that programme. The adapting, pursuant to Article 72, started as from the date of the signing of the SAA, in accordance with agreed transition timeframes. In order to fulfil the obligations under the SAA and to establish a comprehensive and systemic multiannual programme for the harmonization with EU law, thus showing the existence of the required administrative capacity, on 9 October 2008, Serbia adopted the National Programme for Integration of the Republic of Serbia into the EU (NPI). 32 europa.rs/images/publikacije/07-35_steps_toward_eu.pdf 33 Progress Report for the Republic of Serbia 2015, pg Draft Action Plan for Chapter 23 of the Republic of Serbia, pg. 3: In the process of drafting the Action Plan, it was helpful that priorities and courses of action were previously defined through a series of strategic documents in the areas such as the judiciary, anti-corruption, anti-discrimination, Roma rights, media freedom and the like. The Action Plan for Chapter 23 follows the course mapped out in these strategic documents, but also advances the process by defining objectives and activities for which the subsequent need arose or it was necessary to identify more detailed evaluation. In this sense, the Action Plan for Chapter 23 represents the overarching strategic document with which all the other strategic documents shall be aligned upon its approval. This shall enable precise definition of the public policy in this area, whereas implementation, coordination, timing and funding of the reforms shall be significantly improved. 15

16 The National Assembly of the Republic of Serbia enacted the National Judicial Reform Strategy 35 for the period on July 1st 2013, which has determined priorities, strategic goals and strategic guidelines of reform measures. The Action plan for implementation of the National Judicial Reform Strategy 36 for the period adopted by the Government of the Republic of Serbia on July 31 st envisages concrete measures and activities for implementation of strategic objectives, defines the deadlines and competent authorities for its implementation and financial sources. The Strategy envisages independence, impartiality, competence, accountability and efficiency of the judiciary, as five basic principles and defined priorities, strategic objectives and strategic guidelines of reform measures. 37 From October 1 st 2013 the implementation of the Criminal Procedure Code from 2011 has commenced in all courts and public prosecutors offices of general jurisdiction, which has introduced prosecutorial investigation as the most important novelty. 38 Chapter 24 (Migration, Asylum, Visa Policy, External Borders and Schengen, Judicial Cooperation in Civil, Commercial and Criminal Matters, Police Cooperation and Fight Against Organized Crime, Fight Against Terrorism, Cooperation in the Field of Drugs, Customs Cooperation, Counterfeiting of the Euro): The foreseen activities in the Draft Action for Chapter 24 are aimed at normative harmonization, strengthening institutional and legislative frameworks, and staff training, for the purpose of better implementation of the legislative framework and achievement of appropriate operating standards. 39 The Ministry of Interior (MoI) is fully committed to improve the overall efficiency and effectiveness of its main functions in order not just to fulfill Chapter 24 requirements, but also to deliver a better service to the citizens of Serbia. 40 The new Law on Police 41 was enacted at 26 th January 2016 and came into force on 5 th February 2016: The adoption of the new Law on Police in the legal system introduces a number of innovations that are expected to significantly contribute to the improvement of 35"Official Gazette of the RS", No. 57/13; godine.pdf 36"Official Gazette of the RS", No. 71/13 and 55/14 37 Draft Action plan for Chapter 23 of the Republic of Serbia, pg Draft Action plan for Chapter 23 of the Republic of Serbia, pg Draft Action Plan for Chapter 24 of the Republic of Serbia, pg Draft Action Plan for Chapter 24 of the Republic of Serbia, pg Official Gazette of RS, No. 6/

17 quality in the performance of police and other affairs in the Ministry of Interior. The most important novelties are the following: the reorganization of the MoI; separation into internal and police affairs; division into police, state and executive officers; the use of new means of coercion 42 by police officers replacing the use of firearms; the introduction of integrity tests; career progression based on basic parameters as vocational training, education and more. In December 2014, Serbia adopted a National Strategy for the Fight Against Money Laundering and Terrorism Financing 43. A Financial Investigation Strategy 44 was adopted in May The draft Anti-trafficking Strategy and action plan are still pending adoption. 45 Serbia s first Serious and Organized Crime Threat Assessment (SOCTA) was published on the website of the Serbian Ministry of Interior on 30 December The document, developed with the support of the OSCE Mission to Serbia, is a strategic overview of serious and organized crime in the country, including drugs, irregular migration, human trafficking, money laundering, corruption and cybercrime. 46 III.4 Additional literature (Guidelines, Manuals, Handbook, Templates/Standard Forms) Regarding the additional literature in international cooperation in criminal matter, through support of Council of Europe in 2013 a Manual on MLA 47 was developed which also includes templates. This manual was distributed all over Serbia. However, it seems not be often used by practitioners. 42 Various hot and stunning sprays 43 Official Gazette of RS, No. 3/ Official Gazette of RS, No. 43/ Progress Report for the Republic of Serbia 2015, pg www.coe.int/t/DGHL/cooperation/economiccrime/corruption/Projects/CAR_Serbia ENGLISH VERSION English version available only as a Draft; SERBIAN VERSION 17

18 IV. National MLA structure The national MLA structure in Serbia resembles the structures of all the countries whose framework is based on the internationally ratified treaties in the field. According to Art. 4 of the Law on Mutual Legal Assistance in Criminal Matters 48, the authorities responsible for providing mutual legal assistance are domestic courts and prosecutor s offices determined by the law. Certain actions pertinent to communication with relevant foreign agencies are performed by the Ministry of Foreign Affairs and the Ministry of Interior, while under Article 6 of the Law 49 it is envisaged that the Ministry of Justice is the central authority for transmitting the incoming and outgoing requests for mutual legal assistance. 48 Official Gazette of RS No. 20/ Letters rogatory and other writs of the national judicial authority shall be submitted to the foreign authority through the Ministry of Justice" 18

19 V Ministry of Justice V.1.1 Organisation (HR and IT capacities) Art. 9 of the Law on Ministries 50 determines the jurisdiction of the Ministry of Justice (MoJ) of the Republic of Serbia, which covers mutual judicial assistance and extradition, passing a decision on surrender of accused persons to the International Tribunal for the Prosecution of Persons responsible for serious Violations of international humanitarian Law committed in the Territory of the Former Yugoslavia since 1991, etc. The Ministry of Justice of the Republic of Serbia comprises of 5 sectors, which perform the tasks on behalf of the Minister: 1) Sector for the Judiciary, 2) Sector for European Integration and International Projects, 3) Sector for Normative Affairs, 4) Sector for Material and Financial Affairs and 5) Sector for Mutual Legal Assistance (MLA). The Sector for MLA is comprised of: 1) Department for Mutual Legal Assistance and 2) Group for Cooperation with the International Criminal Tribunal (ICTY) and is in charge of the following tasks: Mutual legal assistance in civil and criminal matters and international cooperation in the field of judiciary; Development and promotion of international legal assistance; Monitoring the status and implementation of regulations related to international legal assistance and preparation of decisions; Providing information and opinions in the field of international legal assistance; Monitoring the implementation of regulations and international agreements and indication of the need for normative regulation of particular issues of international legal assistance and cooperation with international courts and international organizations; Monitoring EU regulations and their compliance with national regulations; Performing analytical and information activities in the field of mutual legal assistance and international cooperation; 50 "Official Gazette of the RS", No. 44/2014, 14/2015, 54/2015 and 96/2015 other law 19

20 Participation in drafting laws and other regulations, the conclusion of bilateral international agreements and accession to multilateral international conventions. The Department for Mutual Legal Assistance is comprised of the following internal units: 1) Division for Mutual Legal Assistance in Civil Matters and 2) Division for Mutual Legal Assistance in Criminal Matters 51 and copes with the following functions: Issuing international arrest warrants and extradition of accused and convicted persons; Transfer of the criminal proceedings of accused persons; Enforcement of foreign criminal judgments and the transfer of convicted persons; General (other) forms of mutual legal assistance; Providing judicial authorities with opinions of requirements met for provision of mutual legal assistance; Mutual legal assistance in civil and criminal matters; Providing explanations of reciprocity; Performing tasks of cooperation with international organizations; Performing tasks related to the preparation and conclusion of the preservation of international agreements in the area of mutual legal assistance and accession to international multilateral agreements; Certification of documents for use abroad; Giving notice of regulations; Acting in cases of civil and legal aspects (of international child abduction); Performing other tasks in the area of judiciary and mutual legal assistance. According to Art. 4 MLA Law Serbia three different ministries are charged with the execution or requests for mutual assistance. Interviews conducted by Prof. Klip 52 gave reason, that the Ministry of Justice as the central authority for submission and receipt of the requests (Art. 6 MLA Law Serbia) formally reviews all incoming requests, assesses whether the conditions for providing international legal assistance are met, and renders the final decision in transfer of sentenced persons and extradition proceedings, while the competent authority for execution of the requests are the courts and public prosecutor s offices within the respective scope of their jurisdiction. The Ministry of Foreign Affairs plays a role when the MLA requests and mail See Prof. Andre Klip, Facilitating Mutual Legal Assistance in the Western Balkans, March 2014, pg

21 are submitted through diplomatic channels (in accordance with Article 6, paragraph 1 of the MLA Law). The Ministry of Interior is involved as the National Central Bureau of Interpol is part of the Ministry of Interior, and has a role in submission of MLA requests in urgent cases (in accordance with Article 6, paragraph 2, point 2 of the MLA Law). Even if the possibility for direct communication and information exchange among the relevant authorities (e.g. investigative authorities) is existent and in practice not frequently used, as a legal obligation, copies of the MLA request have to be sent to MoJ. There is a noticeable tendency for establishing direct cooperation. 53 V.1.2. HR and IT The Rulebook on Internal Organization and Systematization of Job Positions in the Ministry of Justice from January 2016 determines inter alia the human resources for internal organizational units within the MoJ. 54 The MLA Department consists of the Head of the Department, two chiefs of the (2) divisions, 10 legal experts and 4 clerks 55. The Division for MLA in Criminal Matters consists of Chief of the Division and 6 legal experts. Some of these legal experts have a specific portfolio/specialism, e.g. extradition cases. Besides, the Department is supported by administrative staff. All legal experts have a university degree and are highly experienced since they have already been working at the Ministry of Justice for years. Some of these legal experts had worked as judges before. All are not specifically trained on MLA. Only the two chiefs of the criminal and civil division speak English. The Head of the Department is a very experienced and well-schooled lawyer. He does not speak English. Unfortunately, he will retire by the end of the second quarter of The successor is not known yet. The case load is immense: a total of approximately 14,000 cases (both criminal and civil: incoming and outgoing for 2015), which need to be registered in the MLA data base LURIS 53 Meeting with the Head of the Division for Mutual Legal Assistance in Criminal Matters on 8 March Head of Department is a senior advisor, while heads of divisions and one other staff member are independent advisors, and all other lawyers are advisors 21

22 and then sent on to the appropriate institutions. Solely the Division for Criminal Matters has 7,000 cases per year. 56 V IT With the assistance of the Netherlands, a registration system, LURIS, has been installed in MoJ. This IT-system allows registration, handling and monitoring of international legal assistance requests in civil and criminal cases and meets the majority of EU required features and functionalities. The Serbian MoJ uses LURIS for collecting statistics in the area of mutual legal assistance. However, currently the system does not monitor accurately all requests and does not provide complete information, since it so far the prosecutorial and court phase of the workflow is not included yet. Moreover, there are the following shortcomings: the staff once trained to use this LURIS system has been replaced. The new one never received a proper skill adoption training on the system. The legal staff are of the opinion to spend too much time on registering the information concerning requests in the system. They would like to be able to devote a greater part of their time to assessing requests for international assistance and they wonder whether the tasks of the administrative staff could be expanded to enable them to do so. 57 It seems that the legal requirements are not properly mirrored in the IT base, so that reliable statistics cannot be produced. Therefore further improvements of the system might be taken into consideration from MoJ. The quality of the data, generated by the system will enhance after access to the system by the Republic Public Prosecutor s Office. 58 Currently the authorities are working on making the system more adapted to the needs in Serbia. They very much would appreciate the support of the project to amend the Serbian system analogue to the one in Montenegro, which they find more appropriate 59 (and they might be right as it seems that in Montenegro e.g. no difficulties exist regarding statistical issues). 56 Meeting with the Head of Division for Mutual Legal Assistance in Criminal Matters on 8 March Meeting with the Head of Department for Mutual Legal Assistance on 23 February The amendments to the internal organization act from August 2015 eliminated the possibility for administrative staff to perform any legal tasks 58 Ph.D.Tomasz Ostropolski, Tomasz Darkowski: Implementation of Acquis in the field of judicial cooperation in criminal matters, Dec 2015, pg Meeting with the Head of Department for Mutual Legal Assistance on 23 February

23 Regarding the IT equipment, 17 employees have 17 computers (7 of them are old models with weak performance) on their disposal; 10 printers (6 old models), 3 fax machines and 3 scanners. V.2 Jurisdiction/tasks in international legal cooperation The relevant national legislation is the Law on Mutual Assistance in Criminal Matters of 18 March This act forms a modern act on international cooperation in criminal matters with a classical structure. It provides common provisions for various modalities of international cooperation (extradition, mutual assistance etc.) both in situations where a treaty applies and in situations where there is no international convention applicable. 61 The MLA Law also provides rules both for requests addressed to Serbia, as well as requests emanating from Serbia. The MoJ is only partly the designated authority for international cooperation in criminal matters. As already illustrated, three different ministries are involved in international assistance according to Art. 4 of the MLA Law, each playing a different role 62. The situation in practice takes away the positive effects of direct communication with foreign authorities by imposing new lines of internal communication. But this cases do not occur very often, since most of the requests are sent directly to the MoJ. 63 However, the MoJ is referred to as the central authority with the task to transmit requests for MLA requests for international cooperation in criminal matters. MoJ has the primary role in extradition matters and in transfer of convicted persons; its coordination role in other forms of MLA is also of significant importance. The MoJ is authority which assesses compliance of certain presumptions for providing MLA and then coordinates communication among the authorities of respective states involved in mutual legal assistance. There are countries whose legal system requires communication 60 The translation of MLA law into English is not on a acceptable level 61 Prof. Klip received answers to questions to the contact point on 13 December 2013 state: in cases when there is a ratified international treaty this treaty will have precedence over the law, and the MLASerbia will be applied only to the issues that are not regulated by the ratified treaty. In addition, in accordance with Articles 16 and 194 ratified international treaties are an integral part of the Serbian legal system and are applied directly. 62 As described on page 18 of this report 63 Meeting with the Head of the Division for Mutual Legal Assistance in Criminal Matters on 8 March

24 exclusively to be performed through the respective MoJs, 64 for the sake of a common practice to involve the MoJ and provide the MoJ with the relevant exchanged documents, files etc.; even in cases when direct communication among judicial authorities is possible. Thus, this does not interdict direct communication among the practicing authorities. Also, the relevant authorities send requests officially via the MoJ even when there is the possibility of direct communication, because they do not have sufficient knowledge of international cooperation in criminal matters when executing requests for international assistance and are not aware of the fact, that direct communication gains more and more importance and is becoming common practice, initially based on the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (1959). Situation is getting better related to this issue thanks to the letter of the Ministry of Justice no /15-08 from 3 rd February 2015 which was forwarded to all domestic courts, public prosecutor s offices and the MoI, explaining the possibility of direct communication with the countries that bilateral treaties have been signed with. 65 In cases of extradition, the MoJ acts as the central authority and must in any circumstance possess all documents related to the foreseen extradition. The main role of the MoJ in this field of extradition, beside the operational organization of the transfer, is the decision of the Minister of Justice to (dis-)approve the extradition in cases provided by law. Even if the MoJ by law does not have a proper advisory role in the whole spectrum of MLA, the MoJ plays that role in practice. Practitioners in the field, particularly from the courts, public prosecutor s offices and police, in urgent cases often request help from the head of the MLA department for advice and assistance. This notably concerns incoming requests (and their assessment) for international assistance relating to investigative acts or extraditions. On advice of the project for a short term the MoJ has a designated contact person for communication with EJN. Already since 2005 Serbia has a contact point for EUROJUST (at the MoJ 66 and Republic Public Prosecutor s Office), provides assistance on requests of EUROJUST and participates in coordination meetings at EUROJUST. Regarding a conclusion of an agreement with 64 For example, UK and Ireland have the requirement that the communication has to be channelled through the respective central authorities: The home offices for UKhttps:// and the Ministry of Justice for Ireland 65 Meeting with the Head of the Division for Mutual Legal Assistance in Criminal Matters on 8 March The MoJ has appointed a contact point for EUROJUST in the current year,

25 EUROJUST, Republic of Serbia needs to amend the legislation on personal data protection. Also training for prosecutors and judges is needed on this topic. 67 The action plan for Chapter 24 foresees insofar: a visit of EUROJUST experts to assess the degree of harmonization and give recommendations to meet conditions for signing the agreement as well as the amendment and supplement of the normative framework of Serbia in the field of personal data protection in line with tables of concordance (Chapter 23, subchapter: fundamental personal rights data protection). The amended law on personal data protection was drafted at the end of Due to new EU regulations it was put on hold to include the new requirements. As soon as the English version of the draft is available, it will be sent to EUROJUST data protection officer in order to have the EUROJUST view/comments included. Once this agreement is reached, the possibility to exchange personal data is provided and as a consequence better cooperation in investigation/prosecution of cross border crimes is enabled. Fifty-two bilateral treaties in criminal matters are reportedly concluded. 1 Serbia also ratified the fourth Protocol to the European Convention on Extradition, which took effect on 10 January Serbia has around 14,000 MLA requests per year, of which about half come from EU Member States. 68 The Department informs the courts of the compliance 69 of incoming requests under the competences of the MoJ before the courts will accept the request. As the MLA law provides the possibility to send MLA requests to Serbia in Serbian OR in English language delays and costs occur, as this department will order a translation in case the request is only sent in English. 70 The quality of the outgoing legal requests also need to be checked by the Department, which is demanding due to the lack of expertise of practitioners (especially at the courts). Outgoing requests originate from all courts and public prosecutor s offices from the whole territory of Serbia. 67 IPA 2014 project supported 2 trainings for judges/prosecutors on data protection in see report Prof. Klip 69 Article 7 litera. 4 and 5 of the MLA Law 70 It is stipulated in Article 5 that requests for mutual assistance shall be submitted and accompanied by translations into the language of the requested state or translations into English, Prof. Andre Klip, Facilitating Mutual Legal Assistance in the Western Balkans, March 2014, pg