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Support to implementation of the new Criminal Procedure Code (CPC)

1. 1.1 1.2 1.3 1.4 1.5 2. 2.1

Basic Information Programme: IPA 2009 component 1 Twinning Number: MN09/IB/JH/02 Title: Support to implementation of the new Criminal Procedure Code (CPC) Sector: 01.24 Beneficiary country: MONTENEGRO Objectives Overall Objective(s):

High effectiveness in the fight against corruption, organized crime and other types of crime and protection of human rights.


Project purpose:

To strengthen the capacity of the law enforcement bodies for the implementation the new CPC in line with European standards

Contribution to National Development Plan/Cooperation agreement/Association Agreement/Action Plan All strategic programming documents highlight the need to strengthen the efficiency of the Judiciary to fully play its role as a guarantor of the rule of law The European Partnership (EP) was adopted following the independence of Montenegro in June 2006. The EP stresses the need to strengthen judiciary independence, rationalize the court system, modernize proceedings and improve administration, provide adequate and sustainable financing for the judicial system. The key priorities of EP indicate the need to reform the judicial system. Within the framework of political criteria specific attention will be given to good management, justice reform, strenghtening and implementation of the rule of law. The SAA states under art 80 that in their co-operation on justice, freedom and security, the Parties shall attach particular importance to the consolidation of the rule of law, law enforcement and the administration of justice in particular. The article stresses that cooperation will aim at strengthening the independence of the judiciary and improving its efficiency. Judiciary Reform Strategy (2007 2012). The Judiciary Reform Strategy was adopted by the Montenegrin Government in June 2007. The Strategy defines main objectives of the further judiciary reforms for the following five-year period. Key objectives of the reforms are: strengthening of independence, efficiency and availability of judiciary, and the increase of the public confidence in the judiciary. The Action Plan for implementation of the Judiciary Reform Strategy envisages specific measures that should be undertaken for the



implementation of these objectives and responsible bodies and implementation deadlines. Action Plan was adopted by the Government in December 2007 (See Annex IV) The Action Plan for the implementation of the reform of Judiciary (2007 2012). The Action Plan for the implementation of the reform of Judiciary indicated following objectives: Independence and autonomy of the judiciary system, strengthening of the public’s confidence in the judiciary system, staff education in the judiciary organisations, strengthening of the international and regional cooperation, alternative solving of disputes, fight against crime, and namely corruption, terrorism and organised crime, strengthening of human capacities, the penitentiary system, launch and use of the judiciary information system PRIS. The Action Plan for the implementation of the reform of Judiciary highlited the need to combat corruption at national and local level and through an inter-agency cooperation between judicial bodies and other institutions. The Action Plan stipulated also the need to foster the participation of CSO. The Government of Montenegro passed the Programme of the Fight against Corruption and Organized Crime (August 2005) and the Action Plan for Implementation of the Programme of the Fight against Corruption and Organized Crime and it formed a body to monitor implementation of the Action Plan – National Committee for Implementation of the Action Plan for Implementation of the Programme of the Fight against Corruption and Organized Crime (February 2007), which includes highest-ranking representatives of the legislative, executive and judicial power, as well as representatives of the non-government sector. The Action Plan for Implementation of the Programme of the Fight against Corruption and Organized Crime is a mid-term document projected for the period of three years. It constitutes specific measures and activities, responsible bodies and institutions, deadlines, success indicators and risk factors. Representatives of the non-government sector were involved in development of both the Programme and the Action Plan for its implementation. All above-mentioned strategic documents and Action Plans of Montenegro attribute high importance to the adoption and implementation of the new Criminal Procedure Code (expected to be adopted in July 2009). 3. 3.1 Description Background and justification:

The Strategy for the reform of judiciary (2007-2012) has a specific chapter dedicated to the fight against crime, corruption, terrorism and organized crime. The Strategy, among other things, foresees further normative reform activities focused on the revision of the criminal procedure system, by means of which the concept of a court investigation will be abandoned and its leading will be entrusted to the State Prosecutor in the aim of simplification of the previous criminal proceedings. The Action plan for the implementation of the Strategy for the reform of judiciary provides for the obligation to adopt the Criminal Procedure Code, which is in line with the documents of the European Union and Council of Europe. The two most important objectives of the new Code are the following ones. First, CPC establishes the normative basis for a more efficient criminal procedure which will also be cheaper. Secondly, it is aiming at providing a complete protection of human rights and fundamental freedoms, guaranteed by the Constitution and international documents, i.e. to make a balance between two requirements in every procedure – the efficiency of a criminal


procedure, on the one hand and as good protection of human rights and fundamental freedoms as possible, on the other hand. Beside the stated reasons for the adoption of the new Code, there are some other solutions to which the practice and criminal-procedure theory indicated in the course of the implementation of the valid Code so far, since some previous solutions did not sustain the trial of time and their change was necessary. Respecting modern European developments in the area of criminal process law and at the same time maintaining the specificities of the domestic legal system, the Criminal Procedure Code created a new model of criminal procedure, introducing significant novelties compared to the existing criminal procedures. The major change is the concept of prosecutor-led investigation in which the State Prosecutor as a state authority directs the work of police in the fact-finding effort, issues order on conducting investigation and conducts investigation. Only upon the proposal of the State Prosecutor may an investigative judge perform certain evidence actions. Fact-finding (police investigation) and investigation (prosecutor’s investigation) are functionally connected and collectively represent the investigative phase of the procedure which precedes the bringing of indictment. However, the investigation is no longer an obligatory stage of a criminal proceeding and is undertaken only if found necessary by the State Prosecutor. By connecting the fact-finding and investigation into one investigative phase, which is conducted by the State Prosecutor, conditions have been created to expedite the criminal procedure considerably. It is important to note that, in the fact-finding and investigation, the State Prosecutor is not a process party, but a state authority which is obliged to examine and establish with equal care and attention all facts, both burdening and extenuating ones for the suspect. Although the investigation is primarily the task of prosecutors, a number of evidence procedures at this stage of the procedure is entrusted to the investigative judge. Those are few process actions that encroach on human rights guaranteed by the Constitution. In connection to that, the Code prescribes that the order for search of an apartment, other premises and persons, provisional seizure of assets and dead body exhumation is the sole responsibility of an investigative judge. Detention order is also issued by the investigative judge. During the custody ordered by the State Prosecutor at the phase of fact-finding or after a decision to conduct investigation has been made, investigative judge will interrogate the suspect, or the accused, but only regarding the circumstances that point to the existence of reasons for ordering detention. The most important changes introduced via the Criminal Procedure Code relate to the investigation phase. The idea of the legislator is to accelerate the conduct of search and evidence actions exactly at this stage in the process and to reduce it to the collection of only such data and evidence that the State Prosecutor needs in order to decide to bring an indictment or to dismiss suspect from criminal prosecution. According to the Code, the police can no longer interrogate persons in the process capa city (as suspects or as witnesses); such right now belongs to State Prosecutor only, which will, together with other novelties largely contribute both to efficiency of the investigative stage in the process and efficiency of criminal procedure in general.


Measures of secret surveillance, as separate evidence procedures, may in future be applied not only during the fact-finding but also in the investigation. An important change in relation to the existing Criminal Procedure Code is the provision that contains a “catalogue” of criminal offences that may be subjected to secret surveillance order. Importantly, this “catalogue” has enough room to include criminal offences with elements of corruption that are hard to prove without the application of these measures. A completely new institute is the Guilt admission agreement (plea bargaining). Although it is an institute of Anglo-Saxon criminal procedure, an increasing number of continental European criminal jurisdictions include it in their criminal procedure systems. The agreement is possible for all criminal offences for which the prescribed penalty is below 10 years of imprisonment. The accused and the prosecutor agree on the amount of penalty and other sanctions that will be imposed on the defendant, on costs of the criminal procedure, financial claim, and waiver of objection – all under the condition that the defendant has fully admitted the criminal offence that he has been charged with. The guilt admission agreement is decided in the presence of State Prosecutor, defendant and the defence attorney. The agreement may also be attended by the aggrieved party and his attorney. The agreement is decided by the court, which can accept or reject the agreement by its order. The provisions on shortened procedure known in the existing Criminal Procedure Code will be possible to apply to all criminal offences punishable by less than 5 years, and the procedure for bringing sentence without main hearing will be possible for all criminal offences subject to prescribed prison sentence up to 3 years. The State Prosecutor is entitled to suspend criminal prosecution for criminal offences subject to prescribed fines or prison sentence up to 5 years when it has been found that conducting criminal proceeding would not be meaningful, but only when conditions prescribed by the law have been met, and the suspect accepts to meet one or more obligations prescribed by the law. The State Prosecutor is also authorised to reject the criminal charges for reasons of equity, when criminal offences for which fines or prison sentence up to 3 years are prescribed are concerned, if circumstances of the case give rise to the evaluation that the imposition of criminal sanctions is not necessary. In conclusion, the Criminal Procedure Code foresees new criminal law institutes and modifies many of the existing ones, in view of creating legal environment for a more efficient criminal procedure. The implementation of the new CPC will require substantial efforts for preparation of the prosecutors, police officers and judges. Training is therefore the key need in the period before the entry into force of the Code and also for some time after the entry into force. The planned 40-50% increase of the prosecutors is an additional challenge as is the supply of equipment and ensuring working space and good working conditions for the newly recruited staff. The Twinning Project aims at supporting the Montenegrin authorities by providing training to the prosecutors, judges, police officers as well as the bar association on the CPC and advisory support to the Commission on monitoring the CPC implementation and to the Special Prosecutor for Fighting Organised Crime, Corruption, Terrorism and War Crime.



Linked activities (other international and national initiatives):

This project will take in to consideration experiences and results obtained from the implementation of EU funded projects and assistance by other international and bilateral donors. EU funded projects: In the context of judicial reform, the CARDS programme has focussed on developing initial and in-service training for judges, prosecutors and court support staff. The following CARDS and IPA projects are of relevance:  Justice Reform, Twinning, IPA 2007. There is a need to coordinate with this project as it aims at establishing forms and criteria for reorganisation of the courts network and the public prosecution office according to the workload and the forthcoming tasks stemming from the soon to be adopted new CPC and other legislation. This project will provide a training manual on CPC as well as a series of training events for young prosecutors. Fight against organised Crime and Corruption, Twinning, supply and works IPA 2007 – provides training to 3 Montenegrin institutions, including the Criminal Police and upgrading, inter alia, its capacity to apply special measures of surveillance and financial investigations; supply of specialised surveillance equipment for the police (these measures' implementation is enhanced by the new CPC); construction of additional facilities of the Police Academy. Support to the Prosecutor’s Network in South-Eastern Europe, CARDS, PROSECO regional Project, April 2008 -April 2010: The project focuses on strengthening the legislation and institutional capacities of General Prosecutor’s Office Advisory Support for prosecutors training, CARDS 2005 Twinning light project was implemented by the Judicial Training Centre from 1 July 2008 until 31 December 2008. It provided a first training on the novelties in the draft CPC. Development of monitoring instruments for judicial and law enforcement institutions in the Western Balkans, CARDS, Regional Programmes 2006. Communication environment for Judicial European network in Western Balkans, EC Development of a reliable and functioning judicial systems and enhancing of international judiciary cooperation, CARDS 2003. This project contributed significantly to the development of the draft strategy for the Montenegrin judiciary and the new project will build upon its results as well by developing the action plan for the implementation of the mentioned strategy.




  

This twinning project is related to a supply component (a separate project). The Twinning experts will have to produce a needs assessment for the equipment to be provided to the Office of the Special Prosecutor for fighting organised crime, corruption, terrorism and war crime. Other donor’s activities:  Institutional and Judicial Reform Cluster, UNDP Judicial Portfolio. Strengthening Capacities of Judiciary in Montenegro to Fight Corruption and Organised Crime (January 2008-December 2008) (224,197.61 USD) Donor funds, Government of


Norway. The project activities are divided into 3 components: Support to the Ministry of Justice in its legislative efforts, Support to the Judicial Training Center,Supply of the sophisticated electronic equipment to the Judiciary. The project focus is support the Judicial operators in their daily duties on the two main procedures preceding the request for warrant of arrest. Project results aim to improve the fight against organised crime  USAID supported mainly court computerisation, court management and introduction of mediation. As far EU Member States are concerned specific inputs have been provided. France funded training for prosecutors. The Netherlands and Luxembourg supported a court monitoring project implemented through OSCE. Training on CPC, preparation of a commentary on the CPC and of the Implementation Plan for the CPC is already supported or has been planned to be supported by several donors (US, OSCE, UNDP). Results: The results described here must correspond to the results recoded in the logframe, describe what will be achieved by the end of the project or each phase of the project and how this will contribute to attaining the project purpose. The indicators of achievement should be quantified, verifiable and time-bound.



Result 1: Capacities of the Special Prosecutor’s Office to combat organised crime and corruption enhanced Measurable indicators:  at least 80% of the prosecutors, assistants and staff in the Special Prosecutor's Office trained and efficiently investigating organised crime and corruption cases.

Result 2: Capacity of the Prosecution Service, the Courts and the Police Directorate in identification and processing criminal acts in accordance with the new CPC enhanced Measurable indicators:        a pool of trainers (and a manual for trainers) on the CPC established and supporting the activities of the Judicial Training Centre 60 to 90 prosecutors trained on the new CPC At least 50 judges trained on the CPC At least 30 assistants of prosecutors trained on the CPC At least 50 assistants of judges trained on the CPC Up to 40 employees of Police Directorate trained on the CPC Interaction in the pre-trial phase of the police, the Prosecution Service and the courts functioning efficiently in line with the CPC.

Result 3: Operation of the Commission for monitoring the implementation of the CPC enhanced Measurable indicators: 6


Methodology for monitoring of the implementation of the CPC developed to support the efficient and uniform application of the law Ministry of Justice and the judiciary informed about EU MS countries' experience with criminal procedure legislation implementation and the work by the Monitoring Commission enriched with recommendations from the conference.


Result 4: Awareness raising and promoting new institutes of the CPC among the lawyers specialising in criminal law Measurable indicators:  Lawyers well informed and prepared to make use of the new CPC provisions (including plea bargaining)



The following activities will be conducted to obtain the results of the project:

Activity 1: Strengthening the capacity of the Special Prosecutor's Office for fighting organized crime, corruption, terrorism and war crime 1.1. Workshops on transfer of pre-trial phase experiences from the investigative judges of the High Courts to the Special Prosecutor's Office. 1.2. Training in special investigative techniques (including financial analysis and use of secret means of surveillance, etc.) for the Special Prosecutor's Office 1.3. Needs assessment of the equipment needed for the Special Prosecutor's Office.

.Activity 2: Providing training (including training for trainers) for judges, prosecutors and

Police Directorate employees on the CPC implementation 2.1. Training on the role of the prosecutor’s office in the pre-trial phase (with a special focus on experiences from EU member states). 2.2. Training for prosecutors and judges on drafting of motions and decisions according to the new requirements. 2.3. Training for prosecutors and police on CPC measures (detention, search, secret surveillance, etc.) having a potential of encroachment of human rights 2.4. Training for the police, courts and prosecutor’s office staff on collecting evidence


2.5. Training of trainers on the CPC and elaboration of a related manual 2.6. Study Visit for prosecutors (including from the Special Prosecutor's Office) to EU Member States having a similar criminal procedure concept.

Activity3: Support to the Commission for monitoring the implementation of CPC 3.1. Organisation of a conference on “EU member States' approaches to the implementation of criminal procedure legislation” for the members of the Commission on monitoring the implementation of the CPC 3.2. Developing a methodology for monitoring of the CPC practical implementation by the Commission as well as by the Supreme Court and the Supreme Prosecutor's Office.

Activity 4: Awareness raising and promoting new institutes of the CPC among the lawyers specialising in criminal law 4.1. Workshops with the members of the Bar Association on CPC new provisions of particular interest to lawyers (plea bargaining, etc.) 3.5 Means/ Input from the MS Partner Administration:

3.5.1 Profile and tasks of the Project Leader (PL) The PL must have at least 10 years of relevant practical working experience and be a highranking official from a Member State (MS) authority (Ministry of Justice) or be a senior judge or prosecutor with broad knowledge and practical experience in legal reform and judicial system reform in an EU, new Member States or Candidate Countries. The PL should have proven management skills and experience. The PL will continue to work at his/her MS administration or judiciary but devote some of his/her time to conceive, supervise and co-ordinate the overall thrust of the Twinning project and ensure the commitment of the future MS Partner to the Twinning Project. The PL will allocate a minimum of 3 days per month including one visit every 3 months to Montenegro as long as the project lasts.

3.5.2 Profile and tasks of the RTA Profile of the Resident Twinning Advisor (RTA) – 15 months a) A prosecutor or a judge with at least 8 years of professional experience, including experience in one or both areas covered by this assignment: criminal law, reform of criminal procedure. b) Experience and knowledge of EU standards related to the project activities d) Strong written, oral and inter-personal communication skills e) Excellent oral and written English f) Management skills


g) Experience in similar assignments in third countries (especially new EU Member States or Candidate Countries) will be considered an asset. Project Assistant - 14 months The Project Assistant will assist RTA in coordination and implementation of the activities and the exact profile will be decided at the level of detailed work programme. In kind support for the implementation of this project will be provided by the Beneficiary in terms of training space, equipped offices for the RTA and project assistant, translation services, etc. 3.5.3 Profile and tasks of the short-term experts Short-term experts (STEs) will cover the training and advisory activities. The STEs should have: a) relevant University degree b) minimum of 5 years professional experience in the respective field c) good written and oral command of English d) experience in training or advisory services. 4. Institutional Framework The beneficiary institutions are the Ministry of Justice (which is coordinating the project), the public prosecution service, the courts and the Police Directorate as well as lawyers from the Bar Association and the Judicial Training Centre. The institutional framework of the judiciary system includes 15 courts of first instance, two higher courts (Podgorica and Bijelo Polje) and two commercial courts, Appellate, Administrative and Supreme courts. Administrative Office has been established for performing administrative and financial activities for the needs of courts within the Supreme Court. Public prosecution operations are performed by 13 prosecutors of first instance, two higher prosecutors (Podgorica and Bijelo Polje), Supreme Public Prosecutor and a Special Prosecutor for the fight against the organized crime, corruption, terrorism and war crime. The Criminal Sector of the Police Department will be involved in the project, including the Fight against Organised Crime and Corruption Unit, the Special Analysis and Verification Unit, the Economic Crime Unit, etc. The Project Leader will be a Deputy Minister of Justice. Representatives of all beneficiary institutions will be members of the Twinning Project Steering Committee. 5. Budget The budget allocated for this Twinning Contract is EUR 800,000. 6. 6.1 Implementation Arrangements Implementing Agency responsible for tendering, contracting and accounting


Mr Nicola Bertolini, Head of Operations Delegation of the European Commission to Montenegro Vuka Karadžića 12, 81 000 Podgorica, Montenegro Telephone: +382 20 444 600 Fax: +382 20 444 666 Email: 6.2 Main counterpart in the BC The Project leader will be: Ms Branka Lakocevic Deputy Minister of Justice Ministry of Justice Vuka Karadzica 3, 81000 Podgorica Tel. +382 20 407 503 E-mail: The contact person will be: Luka Andjelic Advisor Ministry of Justice Vuka Karadzica 3, 81000 Podgoricatel. Tel. +382 67 231 328 E-mail: 6.3 7. 7.1 7.2 7.3 7.4 8. Contracts One Twinning Contract Implementation Schedule (indicative) Launching of the call for proposals October 2009 Start of project activities Second quarter of 2010 Project completion Third quarter of 2011 Duration of the implementation period 15 months Sustainability

The Strategy and Action Plan for the Reform of the Judiciary as well as the respective strategic documents for fighting organised crime and corruption put the criminal justice reform in the centre of the activities geared at achieving efficiency of the fight against crime,


in particular organised crime and corruption. The Montenegrin strategic framework for achieving progress in this area and the sustained commitment of the authorities is an important guarantee for the sustainability of the project results. The sustainability of the results of the project will be ensured by the establishment of a pool of trainers trained under this project and by the continuous use of the manual(s) for trainers and trainees established under this project and the IPA 2007 Twinning project "justice Reform". The trainers on the new provisions in the CPC will continue to provide a service to the Judicial Training Centre, which will include them in their regular work in the initial and continuous training. Most importantly the sustainability of the results of the training will be ensured via the quality and efficiency of the work of the trained judges, prosecutors and police officers and finally by the expected positive impact on fighting crime in Montenegro. 9. Crosscutting issues (equal opportunity, environment, etc…) Equal opportunity for men and women will be secured trough appropriate information and publicity material, in the design of projects and access to the opportunities they offer and trough early monitoring of the composition of take up. An appropriate gender balance will be sought on all the managing bodies of the project. During capacity building activities and trainings trough the twinning programme specific attention will be given to equal treatment and opportunities for women and the minorities.

10. Conditionality and sequencing The project success is dependent on the following conditions:  Political stability and economic growth maintained.  All state systems well functioning  Smooth operation of the Prosecution Council and the Prosecution Assembly  Effective cooperation between all law enforcement bodies     Prosecution Council appoints a sufficient number of prosecutors needed for the implementation of the new CPC (about 30 persons) Commitment of officials and civil servants participating in project activities to the new CPC Adequate expert assistance for the drafting of new normative acts (secondary legislation) related to the CPC available Sufficient involvement of the Beneficiary Country Partner in the Twinning activities.

The following in kind contribution has to be provided by the beneficiary at the project start: - Domestic expertise for the activities to be made available. - Training space, fully equipped office for the RTA and project assistant, consumables and running cost for the office to be ensured (as per the rules of the Common Twinning Manual) - Training space for the training activities.


The beneficiary will prepare sub-laws necessary for implementation of the new CPC as national contribution and it will be completed before the twining project starts. Sub-laws need to be adopted before the new CPC is enforced and it is precondition for successful implementation of the CPC. Establishment of the Commission for monitoring the implementation of CPC is also a pre-condition for the successful project implementation. ANNEXES 1. Logical framework matrix in standard format (Revised Log frame as regards the Twinning Contract) 2. Detailed implementation chart - Not included 3. Contracting and disbursement schedule by quarter for full duration of programme (including disbursement period) - Not included 4. Reference to feasibility /pre-feasibility studies. For all investment projects, the executive summary of the economic and financial appraisals, and the environmental impact assessment should be attached (optional) 5. List of relevant Laws and Regulations (see Project Fiche) 6. Reference to relevant Government Strategic plans and studies (may include Institution Development Plan, Business plans, Sector studies etc) - see Project Fiche.


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