b) Agreement on Testifying of Defendant
Concluding an Agreement
Article 320
An agreement on testifying in connection with the criminal offence referred to in Article 162 paragraph 1 item 1) of this Code may be concluded by the public prosecutor and the defendant from the moment of issuance of an order to conduct an investigation up until the end of the trial.
The agreement referred to in paragraph 1 of this Article may be concluded with the defendant who has confessed in entirety to having committed a criminal offence, provided that the significance of his testimony for detecting, proving or preventing the criminal offence referred to in Article 162 paragraph 1 item 1) of this Code outweighs the consequences of the criminal offence he had committed (cooperating defendant).
A defendant for whom there is grounded suspicion that he is the organiser of an organised criminal group may not be proposed to be a cooperating defendant.
When concluding the agreement referred to in paragraph 1 of this Article the defendant must have a defence counsel (Article 74 item 8)).
The public prosecutor will, before concluding the agreement on testifying, ask the defendant to, within a time limit which may not exceed 30 days, autonomously and in his own writing, in as much detail as possible, truthfully describe everything he knows about the criminal offence in connection with which the criminal proceedings are being conducted and about other offences referred to in Article 162 paragraph 1 item 1) of this Code. An illiterate defendant will dictate the preliminary testimony into a voice-recording machine.
An agreement on testifying is concluded in written form and submitted to the court by the conclusion of the trial. A transcript of the testimony given by the defendant in accordance with paragraph 5 of this Article is attached to the agreement.
Contents of the Agreement
Article 321
An agreement on testifying by a defendant contains:
1) a description of the criminal offence which is the subject-matter of the charges;
2) a statement of the defendant that he confesses in entirety to the criminal offence, that he will testify to everything he knows about the criminal offence referred to in Article 162 paragraph 1 item 1) of this Code and will omit nothing, that he has been warned about the duties referred to in Article 95 paragraph 1 and Article 96 of this Code and privileges referred to in item 3) of this paragraph , that he may not invoke the privilege of being relieved of the duty of giving testimony (Article 94 paragraph 1) and that of being relieved of the duty to answer certain questions (Article 95 paragraph 2);
3) an agreement on the type and extent or scope of the penalty or other sanction which will be issued, on being relieved from serving the penalty, or on an obligation of the public prosecutor to discontinue criminal prosecution of the defendant in the case of providing testimony at trial in accordance with the obligations referred to in item 2) of this paragraph;
4) an agreement on the costs of the criminal proceedings, confiscation of the pecuniary benefits from crime, and about the restitution claim, if one has been submitted;
5) a statement of the parties and defence counsel waiving the right to an appeal against the decision of the court accepting the agreement in entirety;
6) the signatures of the parties and the defence counsel.
In addition to data specified in paragraph 1 of this Article, an agreement on testifying may also contain an agreement in respect of the proceeds from crime which will be confiscated from the defendant.
Court is Bound by the Decision on Acceptance of the Agreement
Article 326
A court of first instance and a court of legal remedy are bound by a ruling on acceptance of an agreement on testifying by a defendant in issuing a decision on a criminal sanction, costs of the criminal proceedings, confiscation of the pecuniary benefit from crime, restitution claim and confiscation of proceeds deriving from a criminal offence, provided that the cooperating defendant has fully fulfilled the obligations specified in the agreement.
The court will annul the ruling on acceptance of the agreement and act in accordance with Article 324 paragraphs 2 and 3 of this Code if:
1) the cooperating defendant has not fulfilled the obligations specified in the agreement;
2) the public prosecutor initiates an investigation against the cooperating defendant or learns about a prior conviction and files a motion with the court to annul the agreement.
