Serbia: Latest/Dispute Resolution Newsletter December 2013

Last Updated: 23 December 2013
Article by Milan Lazić

Obtaining Company Information – The powers of the authorities to gather information during criminal investigations

A new Criminal Procedure Code ("Code") was enacted in Serbia in October 2013.

A very significant change in criminal proceedings, the new Code has introduced the new concept of investigative proceedings into the process. Whereas previously investigative proceedings were handled by an Investigative Judge, the new Code makes the Public Prosecutor responsible for carrying out and directing the investigation, which is intended to speed up investigation procedures and to make them more efficient.

The new Code also introduced changes to the provisions regulating the search of premises, which also includes the search of companies during investigative proceedings. A search of any premises (including the premises of companies) can be carried out if there is a probability that evidence for a certain criminal offence may be found via the search. The general rule is that a search is to be carried out on the basis of a search warrant, while a search that has been undertaken without a search warrant can only be carried out under restricted legal conditions.

Search with a search warrant

The court may issue a search warrant upon the request of the Public Prosecutor, who must provide an argument that justifies granting the search warrant. Unlike the previous legislation, the new Code prescribes specific elements which the search warrant must contain:

  • the title of the court which ordered the search;
  • designation of the subject matter of the search;
  • reason for the search;
  • name of the authority which will carry out the search;
  • other data of importance to the search.

The search should commence no more than eight days from the date the warrant was issued, otherwise the search cannot be carried out and the search warrant will be returned to the court.

Before the search is initiated, the search warrant must be handed over to the subject of the search (the company whose premises are to be searched), and the company will be invited to provide the persons or items which are the subject matter of the search on their own accord. The company to be searched must also be informed that its legal counsel (attorney) can be present during the search, and that the search will be postponed until the attorney arrives, but by no more than 3 hours.

However, the Code also allows for the possible initiation of a search without having previously handed over the search warrant to the company that is to be searched and without having notified the company that is to be searched. The Code prescribes this possibility in situations where armed resistance or other kinds of violence are expected, if it is obvious that the destruction of evidence of a criminal offense is being carried out or is about to be carried out or if the persons holding the premises of the searched companies are unavailable.

During the search, the police are entitled to temporarily seize all objects or documents they determine to be in relation to the subject matter of the search. Also, if during the search, evidence pointing towards other criminal offences is encountered, this can also be temporarily seized. The police must take record of the search and the persons present at the search have the right to make remarks on the record. A receipt of the seized objects will immediately be issued to the person from whom the objects were seized.

As to the issue of providing information and documents which are considered a business secret, the Law on protection of business secrets states that information cannot be considered a business secret if it has been designated as such for the purpose of hiding a criminal offense. It should be noted that communication falling within attorney-client privilege cannot be used as evidence during the proceedings.

Search without a search warrant

This kind of search can be performed in the following cases:

  • with the consent of the holder of the premises;
  • if someone calls out for help;
  • in order to directly arrest the perpetrator of a criminal offence;
  • for the purpose of executing a custodial court decision i.e. placement in detention;
  • for the purpose of eliminating a direct and serious threat to persons or property.

The Public Prosecutor may assess whether any data/object is related to the commission of a particular offence. That means that the police can temporarily seize all data/objects and then after assessment by the Public Prosecutor, data/objects which are not relevant to the specific case would be returned. Also, if during the search, objects are found which are not connected to the criminal offence, but which indicate another criminal offence prosecutable ex officio – such objects will be seized.

If the responsible person in the company refuses to provide the objects that could serve as evidence in the proceedings, he/she could be fined in the amount of RSD 150,000 by two consecutive fines. Also, failure to provide the objects or information to the Public Prosecutor could constitute elements of other offences such as "Assisting the perpetrator after a committed crime" or "Preventing an authorised official from performing an official action".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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