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Downloading and Recording of Music and Films Publisher UNICRI Viale Maestri del Lavoro 10, 10127 Turin (Italy) Tel.: +39 011 6537111 Fax: +39 011 6313368 E-mail: [email protected] In cooperation with University of Florence Law School Department of Comparative and Criminal Law and Institute of Comparative Law of Belgrade For the Publisher Sandro Calvani UNICRI Director Design and printing „Dosije“, Belgrade Circulation 500 ISBN 978-86-80059-51-8 The views expressed are those of the authors and do not necessary reflect the views of UNICRI. Contents of this report may be quoted or reproduced, provided that the source of information is acknowledged. UNICRI would like to receive a copy of the docu- ment in which this study is used or quoted. THE FIGHT AGAINST ORGANISED CRIME IN SERBIA From the Existing Legislation to a Comprehensive Reform Proposal Belgrade 2008 TABLE OF CONTENTS ACNOWLEDGEMENTS. 11 FOREWORD – Sandro Calvani . 13 EXECUTIVE SUMMARY . 15 METHODOLOGICAL INTRODUCTION – Michele Papa . 21 PART ONE ORGANISED CRIME, CORRUPTION AND TOPICAL ISSUES OF SUBSTANTIVE, PROCEDURAL AND ORGANISATIONAL CRIMINAL LAW Section One INTRODUCTION I. ORGANISED CRIME IN SERBIA AS A PHENOMENON OF RECENT TIMES . 29 1. On Organised Crime in General – M. Grubač . 29 2. Measures Against Organised Crime – M. Grubač. 38 3. Emergence of Organised Crime in Serbia – M. Grubač. 39 4. Developing Awareness of the Increased Social Dangers of Organised Crime – M. Grubač . 41 5. Preparation of Necessary Statutes for Combating Organised Crime– M. Grubač . 43 II. SERBIAN CONFRONTATION WITH ORGANISED CRIME – J. Ćirić. 45 Section Two PROBLEMS OF SUBSTANTIVE CRIMINAL LAW I. GENERAL ISSUES. .. 51 1. On Criminal Offences of Conspiracy to Commit Crime (Article 345 of the Serbian Criminal Code) and Criminal Association (Article 346 of the Serbian Criminal Code – R. Sepi . 51 2. The Problem of Criminal Sanctions for Organised Crime Offences – R. Sepi . 54 6 Th e Fight Against Organised Crime in Serbia 3. Seizure of Pecuniary Benefit (Articles 91, 92 and 93 of the Serbian CC) – R. Sepi . 55 4. On Liability of Legal Persons for Criminal Offences and its Relationship with Commercial Transgressions – R. Sepi . 61 5. Relationship Between Terrorism and Organised Crime – M. Reljanović . 69 6. Opening of Secret Service Files – M. Reljanović . 72 7. Private Security Companies – M. Reljanović . 74 II. FORMS OF ORGANISED CRIME . 77 1. Trafficking in Narcotics – M. Reljanović . 77 2. Human Trafficking– J. Ćirić . 81 3. Criminal Offences – Abduction and Coercion – M. Reljanović . 85 4. Cyber Crime – M. Reljanović . 86 5. Certain Forms of Fraud – J. Ćirić. 90 III. CORRUPTION. 93 1. On Criminal Offence of Corruption – J. Ćirić. 93 2. One Important Novelty within Criminal Offences of Corruption – J. Ćirić . 97 3. Sentencing Policy and the Fight Against Corruption – J. Ćirić. 98 4. GRECO Report on Corruption in Serbia – J. Ćirić. 101 5. Privatisation, Bankruptcy and Money Laundering in Serbia – J. Ćirić . 103 6. Financing of Political Parties and Conflicts of Interest – J. Ćirić . 112 7. Public Procurement – J. Ćirić . 115 Section Three PROCEDURE FOR ORGANISED CRIME OFFENCES I. ANALYSIS OF PROVISIONS ON CRIMINAL PROCEEDINGS FOR ORGANISED CRIME OFFENCES IN SERBIAN LEGISLATION AND PROBLEMS WITH THEIR APPLICATION . 119 1. “Procedural” Notions of Organised Crime – M. Grubač . 119 2. The Need for and Justification of Special Provisions for Procedures for Organised Crime Offences – M. Grubač. 121 3. Special Provisions for the Organisation of Courts, Public Prosecutors’ Offices and Other Authorities for Prosecuting Organised Crime Offences – M. Grubač . 122 4. Special Procedural Powers of Prosecution Authorities in Proceedings for Organised Crime Cases – M. Grubač. 123 Table of Contents 7 a) Secret surveillance and recording of phone and other conversations or communications by other technical means and secret optical recording (Articles 232 and 233 of the CPC/ 2001 and Articles 146 and 147 of the CPC/2006). 123 b) Control of Business and Personal Accounts (Article 504 of teh CPC/2001 and Article 86 of the CPC/2006). 129 c) Rendering Simulated Business Services and Conclusion of Simulated Legal Operations. 130 d) Engaging Undercover Agents. 130 e) So-Called Controlled Delivery. 132 f) Automated Computer Search of Personal and Other Data (Article 155 of the CPC/2006) . 133 5. On Cooperating Witnesses – M. Grubač . 134 6. Cooperating Witnesses (amicus of justice) in the Serbian Legal System – J. Ćirić . 138 7. Witness Protection in Criminal Proceedings – M. Grubač . 140 8. Non-Procedural Witness Protection – R. Sepi. 143 9. Conditions and Procedure for Applying Secret Surveillance Measures – M. Grubač. 153 II. PROCEEDINGS BEFORE THE SPECIALISED DEPARTMENT FOR ORGANISED CRIME – R. Dragičević-Dičić. 155 III. CONFISCATION OF PECUNIARY GAIN AND SEIZURE OF OBJECTS – R. Dragičević-Dičić . 169 Section Four PROBLEMS IN ORGANISATIONAL LAW ANALYSIS OF THE IMPLEMENTATION AND PRACTICE OF THE ACT ON THE ORGANISATION AND COMPETENCE OF STATE AUTHORITIES IN COUNTERING ORGANISED CRIME. 175 1. Special Prosecutor’s Office – N. Važić. 178 2. Police Service for Countering Organised Crime – N. Važić . 181 3. Specialised Departments of Competent Courts – N. Važić . 183 4. Conflicts of Interest and the Manner in which they are Resolved – N. Važić. 185 5. Specialisation at the level of the Second-instance Court – N. Važić. 187 6. Special Detention Unit – N. Važić . 188 8 Th e Fight Against Organised Crime in Serbia 7. Rights and Duties of Persons Engaged in Special Organisational Units – N. Važić . 189 8. Special Powers of Competent State Bodies in Criminal Proceedings for Organised Crime Offences – N. Važić . 190 9. Initiative for Amending the Act on Organisation and Competence of State Authorities for Combating Organised Crime – N. Važić. 197 PART TWO PROPOSALS FOR AMENDING THE LEGISLATION OF THE REPUBLIC OF SERBIA TO COUNTER ORGANISED CRIME AND CORRUPTION Section One INTRODUCTION I. THE NEW CONSTITUTION OF THE REPUBLIC OF SERBIA AND FORTHCOMING LEGISLATIVE REFORMS – M. Grubač . 201 Section Two SUBSTANTIVE LAW I. ON CRIMINAL OFFENCES OF CONSPIRACY TO COMMIT CRIME AND CRIMINAL ASSOCIATION – R. Sepi . 209 II. CONFISCATION OF PECUNIARY GAIN – R. Dragičević-Dičić and R. Sepi. 211 III. ON LIABILITY OF LEGAL PERSONS FOR CRIMINAL OFFENCES AND ITS RELATION TO COMMERCIAL TRANGRESSIONS – R. Sepi . 226 IV. MALA FIDE COMMERCIAL OPERATION– J. Ćirić . 228 V. SPECIAL FORMS OF FRAUD – J. Ćirić . 229 VI. HUMAN TRAFFICKING – J. Ćirić . 230 VII. RELATIONSHIP BETWEEN TERRORISM AND ORGANISED CRIME – M. Reljanović . 231 VIII.CRIMINAL OFFENCES OF KIDNAPPING AND COERCION – M. Reljanović. 232 IX. CYBER CRIME – M. Reljanović . 232 X. TRAFFICKING IN NARCOTICS – M. Reljanović . 234 Table of Contents 9 Section Three CORRUPTION I. FINANCING OF POLITICAL PARTIES ACT AND CONFLICT OF INTEREST ACT – J. Ćirić . 235 II. PUBLIC PROCUREMENT – J. Ćirić . 237 III. MONEY LAUNDERING AND PRIVATIZATION PROCESSES – J. Ćirić. 238 IV. OPENING OF SECRET SERVICE FILES – M. Reljanović. 239 V. PRIVATE SECURITY COMPANIES – M. Reljanović. 240 Section Four PROCEDURAL LAW I. PROPOSALS FOR AMENDING SPECIAL PROVISIONS OF THE CPC (2001) ON PROCEDURES FOR ORGANISED CRIME OFFENCES – M. Grubač . 241 1. General Provisions . 241 2. Special Measures of Prosecuting Authorities for Discovering and Proving Criminal Offences from Article X(1) of this Code . 245 3. Cooperating Witness and his/her Examination. 253 II. SEPARATE PROPOSALS FOR COOPERATING WITNESSES – J. Ćirić. 255 III. NON-PROCEDURAL WITNESS PROTECTION – R. Sepi . 257 Section Five ORGANISATIONAL LAW I. PROPOSALS FOR AMENDING THE ACT ON ORGANISATION AND COMPETENCIES OF STATE AUTHORITIES IN THE FIGHT AGAINST ORGANISED CRIME – N. Važić . 259 1. Introductory Provisions. 259 2. Scope of Application – Competence . 270 3. Specialised State Authorities for Combating Organised Crime and Corruption . 272 a) Special Prosecutor’s Office . 272 b) Special Departments of Competent Courts. 281 10 Th e Fight Against Organised Crime in Serbia c) Special Police Unit for Detecting and Combating Criminal Offences of Organised Crime and Corruption . 284 d) Special Detention Unit . 285 e) Salaries and Other Rights of Holders of Judicial and Prosecutorial Offices and Others Employed in Specialised Positions for Combating Organised Crime and Corruption . 285 f) Security Checks for Persons Assigned to Special State Positions for Combating Organised Crime and Corruption . 286 ACNOWLEDGEMENTS This report was prepared by the Task Force against organized crime and corruption, established under the project “Countering Organized Crime and Corruption by Strengthening the Rule of Law in Serbia”, carried out by Giusep- pina Maddaluno (Project Officer) and Stefania Ducci (Project Officer Assist- ant), under the supervision of Angela Patrignani (Project Supervisor) from the Emerging Crimes and Counter Human Trafficking Unit of the United Nations Interregional Crime and Justice Research Institute (UNICRI). The project was implemented in cooperation with the University of Flor- ence, Department of Comparative and Criminal Law, Italy. Michele Papa, Profes- sor of Criminal Law and Scientific Coordinator of the project and Alessandro Simoni, Professor of Comparative Law and Coordinator for the training compo- nent, provided a valuable and fundamental contribution to the entire initiative and to the present publication. The Task Force was composed by: Momčilo Grubač, Professor of Criminal Procedure Law, Faculty of Law, Un- ion University, Belgrade Radmila Dragičević-Dičić, Judge, Organized Crime Department, District Court of Belgrade Nevenka Važić, Judge,.
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