Criminal law refers to a set of substantive and procedural legal provisions aimed at protecting and preserving the most significant values within a society. Criminal law, as such, can be divided into substantive criminal law and criminal procedural law.
Substantive criminal law regulates issues related to criminal offenses. For an act to be considered a criminal offense, it must be previously “criminalized,” meaning it is explicitly defined as a criminal offense by law. On the other hand, criminal procedural law is a “branch” of criminal law that deals with issues related to the process of determining the criminal responsibility of the accused.
A common question is whether a criminal lawyer – defense attorney – is necessary in criminal proceedings, and what exactly their role is. The Criminal Procedure Code of the Republic of Serbia prescribes situations in which the presence of a criminal lawyer as a defense attorney is mandatory, as well as situations in which the defendant has the choice of whether they will be defended by a specialized criminal lawyer or defend themselves.
When is it mandatory to hire a lawyer?
The Criminal Procedure Code stipulates that the accused must have a defense attorney in the following situations:
- If the accused is mute, deaf, blind, or unable to defend themselves successfully – from the first hearing until the final conclusion of the criminal proceedings.
- If the proceedings concern a criminal offense for which a prison sentence of eight years or more is prescribed – from the first hearing until the final conclusion of the criminal proceedings.
- If the accused has been detained or forbidden to leave their residence or has been imprisoned – from the moment of deprivation of liberty until the final decision on the termination of the measure.
- If the accused is being tried in absentia – from the moment of the decision to try in absentia until the trial in absentia ends.
- If the main trial is held in their absence due to an incapacity they caused – from the moment of the decision that the main trial will be held in the absence of the accused until the final decision establishing the end of incapacity for participation in the main trial.
- If the accused is removed from the courtroom due to a disturbance of order until the completion of the evidence procedure or the conclusion of the main trial – from the moment of the removal order until their return to the courtroom or until the judgment is announced.
- If there is a procedure against them for the imposition of a mandatory psychiatric treatment security measure – from the submission of the proposal for such a measure until the decision or the final resolution on the imposition of the mandatory psychiatric treatment measure.
- From the start of negotiations with the public prosecutor about entering a plea agreement for the admission of a criminal offense until the decision of the court on the agreement.
- If a hearing is held in their absence – from the moment of the decision to conduct the hearing in the absence of the accused until the court’s decision on the appeal of the judgment.
In all the above cases, the accused must have a defense attorney. The accused can choose their own defense attorney, which will be known as an “appointed defense attorney.” If the accused does not choose a defense attorney, one will be appointed for them by the court from a list of designated lawyers (court-appointed defense attorney).
Legal services we provide
Our law office provides comprehensive legal support in various areas of criminal law, with a special focus on protecting our clients’ rights in every case. We specialize in offering assistance in the following cases:
- Criminal proceedings: Defense of the accused in cases involving prison sentences, fines, or community service. Defense of minors. We offer support in procedures for the postponement of criminal prosecution and opportunities for plea bargaining. We represent clients in complex economic crime cases, such as tax evasion or other business offenses. Our criminal law attorneys have extensive experience in this field.
- Business offenses: Representation of clients in complex business offense cases. Our attorneys have long-term experience in this area.
- Misdemeanor proceedings: We assist clients in all misdemeanor proceedings such as traffic offenses, offenses against public order, etc. Our goal is to achieve the most favorable outcome for you.
- Cases of violence and serious criminal offenses: We specialize in defending serious criminal offenses, including the possibility of replacing a prison sentence with house arrest.
- Criminal proceedings involving minors: Our team provides support to minors and young adults involved in criminal proceedings, including representation in cases of bullying. Our attorneys are licensed to represent minors and provide support in specific proceedings such as decisions regarding juvenile detention.
- Preparation and analysis of evidence: We engage in detailed analysis of all evidence and gathering additional information to ensure the most efficient defense.
Our goal is to provide each client with personalized legal assistance, with detailed insight into their case and the possibilities provided by law. Whether it concerns serious criminal offenses, misdemeanors, or business offenses, our team of attorneys is here to guide you through every step of the process.
What is the difference between an appointed defense attorney and a court-appointed defense attorney?
The primary difference is that an appointed defense attorney is one chosen by the accused (or their family). This is often a lawyer who the accused knows has extensive experience in criminal law. A court-appointed defense attorney is one assigned by the organ conducting the proceedings from a list of lawyers. Another significant difference is that an appointed defense attorney fully dedicates themselves to defending the accused, resulting in a more favorable outcome for the accused. On the other hand, a court-appointed defense attorney is not as dedicated to the defense, which often leads to a worse outcome for the accused, and frequently, a conviction. Thus, the accused cannot influence which court-appointed defense attorney will be assigned to them.
The advice is for the accused to choose their defense attorney and ensure that the chosen attorney is someone who possesses the necessary expertise and will provide the best possible defense in the investigative and criminal proceedings.
When is it not mandatory to hire a lawyer?
In situations where the legislator has not explicitly stated that the presence of a defense attorney is mandatory, the accused is not required to have a defense attorney. This means the accused can choose whether to have a criminal lawyer represent them or if they will present their defense themselves.
It is advised that even in cases where a defense attorney is not mandatory, the accused should still secure a criminal lawyer. It is preferable to engage an attorney immediately, i.e., before any procedural action is taken by the police, the public prosecutor, or the court. In practice, it is often the case that the accused engages a lawyer at a later stage of the proceedings. However, it is important to note that all procedural actions taken while the accused was defending themselves can be used as evidence in the criminal proceedings. For this reason, it is advisable for the accused to engage a professional lawyer before the first procedural action.
How can a lawyer assist when defense is not mandatory?
Hiring a lawyer, even when defense is not mandatory, is an important step for protecting your rights and achieving a more favorable outcome in the proceedings. A specialized criminal lawyer provides:
- Timely advice: The first steps in the process are often crucial for the further course of the case. A lawyer can advise you on how to proceed with statements and interactions with judicial authorities, helping to avoid unnecessary mistakes.
- Preparation of defense strategy: A lawyer analyzes all available evidence and creates a tailored strategy to best represent your interests.
- Reducing risks: Properly conducted defense can lead to a more favorable outcome, whether it’s a reduced sentence, an acquittal, or a plea deal with the prosecution.
- Representation in court: Although the law does not require the presence of a lawyer in all situations, their involvement can significantly increase your chances of a fair outcome in court.
- Protection of your rights: The lawyer ensures that your rights are respected at all stages of the proceedings, protecting you from potential abuse or errors by judicial authorities.
The Radoičić Law Office has a team of lawyers with many years of experience in defending clients in criminal proceedings. We believe that the foundation of every good and quality defense is “preparation for the defense.” This involves a very engaged and dedicated effort from everyone involved in the case, including reviewing and considering the entire criminal file and evidence, in-depth discussions with the accused to prepare their defense strategy, gathering evidence in favor of the accused, and involving expert advisors when necessary.
Our attorneys are licensed to defend minors, providing professional services in these specific types of criminal cases.
Criminal Procedure Against a Minor
A criminal procedure can be conducted against a minor if there are grounds to suspect they have committed a criminal offense.
In these proceedings, juvenile judges and special panels for juveniles of higher courts are involved. These cases are always under the jurisdiction of the Higher Court.
The juvenile judge must have special knowledge about the rights of children and juvenile delinquency, and jury judges must have experience working with children and youth.
A lawyer representing a minor must have a license (certificate) for defending juveniles, issued by the relevant Bar Association.
Our attorneys hold certificates for defending minors in criminal proceedings.
Frequently Asked Questions
Criminal substantive law defines which actions constitute criminal offenses and what penalties may be imposed for them. On the other hand, criminal procedural law regulates the procedure conducted to establish the defendant’s responsibility. In short, substantive law defines the content, while procedural law defines the process.
A lawyer is essential when you are facing charges for a criminal offense or when you want to ensure the protection of your rights during the proceedings. It is recommended to hire a lawyer from the very beginning, even during the investigation phase, in order to avoid mistakes that could affect the outcome of the case.
The defendant has the right to a fair trial, the right to defense, including the hiring of a lawyer, the right to remain silent, and the right not to be subjected to coercion. Additionally, they have the right to review evidence and the right to present their arguments in court. A lawyer ensures that these rights are respected throughout the entire process.
