Two Key Characteristics of the Development of the Contemporary Croatian Criminal Procedure Law: Prosecutorial Investigation and Constitutionalisation

2.1. Prosecutorial Investigation According to the CPC/08

Basic aim of the reform of the criminal procedure during the last decade has been the introduc-tion of the prosecutorial investigaintroduc-tion. By doing this, Croatia has conformed with a European tendency, which has been around for several decades, towards transitioning from the judicial to the prosecutorial investigation.¹⁴ The judicial investigation and the investigating judge have been abolished while inquiry and investigative proceedings conducted by the State Attorney have been introduced. The State Attorney has become dominus litis of the preliminary proceedings responsible for deciding on whether the requirements for criminal prosecution have been met,

9 More on the said processes see in: Đurđević, Zlata (2011) “Suvremeni razvoj hrvatskoga kaznenog procesnog prava s posebnim osvrtom na novelu ZKP iz 2011.”, Hrvatski ljetopis za kazneno pravo i praksu (www.pravo.unizg.hr/hljkpp), no. 2, pp. 311-357, 313-316.

10 Official Gazette of the Republic of Croatia no. 152/08, 76/09, 80/11, 143/12, 56/13, 145/13. Three amendments have changed somewhere between one quarter and one half of the legal provisions, so the question is raised why the new law was not passed instead of the last extensive amendment and what has still remained from the original legal provisions. V. Valković, Laura (2013) “Procesna prava obrane prema V. noveli Zakona o kaznenom postupku”, Hrvatski ljetopis za kazneno pravo i praksu, no. 2, pp. 521-554, 522.

11 Official Gazette of the Republic of Croatia no. 76/09, 153/09, 116/10, 145/10, 57/11, 130/11, 72/13, 148/13.

12 Official Gazette of the Republic of Croatia no. 76/09, 116/10, 145/10, 57/11, 136/12, 148/13.

13 For instance, an extensive amendment to the CPC and related laws, the Law on the State Attorney’s Office, the Law on the Bureau for Combating Corruption and Organised Crime and the Law on Police Activities and Powers were passed in Croatian Assembly on 30 June 2009 and they came into force the following day on 1 July 2009. The period of vacatio legis for the extensive amendment in 2011 was eight days while amendment V to the CPC passed in 2013, which amended half of the legal provisions, came into force after nine days.

14 For instance, judicial investigation was abolished in Germany in 1974, in Italy in 1989, in Austria in 2008.

collection of evidence and the use of certain coercive measures. Two new active participants have been introduced in the preliminary proceedings: the new investigating judge (Cro. sudac is-trage) and the investigator. The basic function of the new investigating judge (the so-called judge of freedoms) is deciding on coercive measures which infringe human rights more severely and only under special circumstances he may present evidence. The investigator is a police officer who can be entrusted with undertaking certain evidentiary actions by the State Attorney.¹⁵ The State Attorney is not a party to the proceedings but a state authority conducting the proceedings, which is completely independent when using prosecutorial and investigative powers.¹⁶ Despite the proclaimed intent of the legislator to introduce equal standing of the parties to the proceed-ings throughout the whole procedure,¹⁷ criminal prosecution and the investigation according to the CPC/08 were not accusatory nor were they mixed but inquisitorial proceedings which is the result of the following characteristics:¹⁸

a) Inquisitorial principle grants the power to a state authority to collect evidence at its own initia-tive, without any motions filed by a party to the proceedings, in order to satisfy its own need for information so that a decision on the guilt and sanction may be rendered. The State Attorney’s Office is, as a rule, the only authority which is authorised to collect evidence necessary for the in-dictment to be issued. The defence does not have the right to collect the evidence, instead, it may file a request with the State Attorney or the investigating judge for evidentiary actions to be un-dertaken. The rule dictates that the State Attorney should decide independently whether the ev-idence is to be presented and examines the evev-idence alone in his office without the presence of the defence, the court or the public.

b) Accumulation of the functions performed by the State Attorney who a) decides whether the re-quirements for criminal prosecution have been met, i.e. whether to institute and initiate the pro-ceedings, b) conducts the proceedings by collecting the evidence and investigating and establish-ing the facts of the case, c) establishes the facts which go in favour of the defendant, i.e. collects with equal attention the evidence both on the defendant’s guilt and innocence.

c) The confidentiality of the criminal prosecution and the investigation. The CPC/08 introduced in Croatian criminal procedure the confidentiality of the investigation. According to the CPC/97 the pre-investigative proceedings were confidential whereas the investigation was not public, i.e.

it was closed for public but not for the parties which had the right to inform the public about the content of the investigative actions unless there were special reasons which required confidenti-ality. The CPC/08 introduced the confidentiality of the proceedings as a rule and under special circumstances the State Attorney could allow the public to be informed on a particular evidentia-ry action if there was a public interest for this or due to some other valid reasons.

15 Since the CPC/08 was passed, the investigative measures are called evidentiary actions which is not an adequate term and it is not accepted in other European states. During the preliminary proceedings the case is investigated and material is collected which might potentially be presented as evidence at the trial.

16 The so-called unilateral prosecutorial investigation. Pajčić, Matko (2010) “Pravo okrivljenika na uvid u spis predmeta tijekom prethodnog kaznenog postupka u pravnim sustavima nekih europskih zemalja i praksi Europskog suda za ljudska prava”, Hrvatski ljetopis za kazneno pravo i praksu no. 1, pp. 25-52, 26. The State Attorney becomes the party to the proceedings when confronted with the opposing party whereas the defendant does not become the party until the court proceedings for the review of the indictment take place, during the main hearing and the proceedings regarding legal remedies.

17 The Principles for Drafting the New CPC or the CPC Platform which was adopted in 2007 at the cabinet meeting.

18 On the inquisitorial type of criminal procedure see: Vladimir, Bayer (1995) Kazneno procesno pravo – odabrana poglavlja, Volume I, Zagreb: Ministry of Interior of the Republic of Croatia, pp. 16-20; Krapac, Davor (2012) Kazneno procesno pravo, Volume 1: Institucije, Zagreb: Narodne novine, pp. 17-18.

d) Abolishing procedural rights of the defence. The defendant was deprived of all his evidentiary pro-cedural rights, especially prior to the 2011 Amendment to the CPC, both with regard to the collec-tion of the evidence and the right to defend himself from the charges i.e. the right to respond to the incriminating evidence after learning of such evidence. This revoked the defendant’s status as the party to the proceedings turning him into a person who is subject to criminal prosecution and in-vestigation rather than treating him as an active participant during the proceedings.¹⁹

Therefore, strengthening the power and the role of the State Attorney and the police was not bal-anced out by strengthening the defence, i.e. by the judicial review of the State Attorney’s Office and the police. The legislator did the exact opposite, the powers of the other two main partici-pants in the criminal proceedings, the court and the defendant, were considerably reduced. Such a concept of the preliminary proceedings certainly increased the efficiency of the criminal pro-ceedings, which is demonstrated by the prosecution’s practice, but it has substantially weakened the tendency towards the protection of human rights and it has violated the principle of equal-ity of arms during the preliminary proceedings as demonstrated by the pending decision of the Constitutional Court of the Republic of Croatia on the constitutionality of the CPC/08.

2.2. Constitutionalisation of the Criminal Procedure Law

The second key characteristic of the development of the Croatian criminal procedure law is its constitutionalisation which has intensified over the last decade. Constitutionalisation of the criminal procedure law is the process of harmonisation of the provisions in this legal branch with the Constitution and international law on human rights through the decisions rendered by the Constitutional Court and the European Court of Human Rights (ECHR) rescinding the le-gal provisions which have been declared unconstitutional and setting aside the court decisions passed in the criminal proceedings. The Constitutional Court of the Republic of Croatia passed a decision on 19 July 2012²⁰ in which it found that numerous constitutional provisions and con-stitutional values had been violated in addition to the European Convention on Fundamental Rights and Freedoms.²¹ From the standpoint of criminal justice system, this represents by far the most important constitutional decision which has set the constitutional framework and constitu-tional requirements which must be met by the Croatian legislator when regulating criminal pro-cedure law for a long time to come.²² In the pronouncement of the decision the Constitutional Court did not only revoke the provisions of 43 articles of the CPC but it also ordered the legisla-tor to fulfil the positive constitutional obligations, which means that it not only established that particular legal provisions were unconstitutional but that the entire law due to structural and

19 See: here infra 2.2. c) Minimum Rights of the Defence during the Preliminary Proceedings.

20 The decision and ruling no. U-I-448/2009, U-I-602/2009, U-I-1710/2009, U-I-18153/2009, U-I-5813/2010, U-I-2871/2011. The proceedings for the assessment of constitutionality of the CPC/08 were initiated based on the six motions for the assessment of constitutionality filed by six petitioners five of which were lawyers and one was a natural person in the period from 2009 to 2011.

The main motion, which is dealt with in 90% of the decision, was filed on 18 September 2009. It took more than three years for the Constitutional Court to decide on the constitutionality of the CPC.

21 The Constitutional Court has based its decision that the CPC/08 is unconstitutional on 18 articles of the Constitution of the Republic of Croatia and six articles of the European Convention on the Protection of Human Rights interpreted through the cited judicature of the European Court of Human Rights as the relevant law.

22 What occurred has been anticipated for a long time in the theoretical writings – comprehensive constitutionalisation of the criminal procedure law. See: Krapac, Davor (2011), “Konstitucionalizacija kaznenog procesnog prava u Republici Hrvatskoj”, Special print edition from: Okrugli stol Dvadeseta obljetnica Ustava Republike Hrvatske, Zagreb: HAZU, pp. 169-212, 169.; Krapac, Davor (2010) Kazneno procesno pravo, Volume 1: Institucije, Zagreb: Narodne novine, pp. 33-45; Đurđević, Zlata (2011) Uvod u: Zbirka zakona iz kaznenog procesnog prava, Faculty of Law at the University of Zagreb, 2011, XVIII.

general flaws of the criminal procedure did not comply with the Constitution of the Republic of Croatia. The decision of the Constitutional Court may be summarised into five violations of con-stitutional principles, i.e. human rights which are guaranteed to the citizens by the Constitution during the investigative part of the criminal proceedings. These are: the principle of proportion-ality, the principle of judicial review, minimum rights of the defence, the right to an efficient in-vestigation and the principle of legality.

a) The violation of the principle of proportionality when restricting basic rights of an individual during the criminal proceedings

The main objective of passing the new CPC in Croatia was to provide the state with an efficient tool for a fight against corruption and organised crime. This task of fighting against the serious forms of criminal offences was the main characteristic of the CPC/08 which dictated numer-ous legal provisions which excessively restricted the rights of an individual as well as the right of the defence, particularly during the preliminary proceedings. Although the state is authorised to use coercive measures during the criminal proceedings in order to restrict fundamental human rights including the minimum rights of the defence,²³ the said restrictions must be used when it is strictly necessary and the consequences suffered by the defence have to be sufficiently compen-sated during the proceedings.²⁴ In contrast to the aforementioned, during the preliminary pro-ceedings according to the CPC/08, the restriction of the procedural rights of the defence became a rule regardless of the fact whether it is proportionate and legitimate.

Upon deciding on the issue of constitutionality of the restriction of basic rights, the Constitutional Court has drawn attention to the fact that it has become necessary to differentiate between two substantially different categories of criminal offences in any modern society. The first category includes the so-called offences which “threaten organised life in a community” and which “de-stroy the very fabric of society” such as terrorism, organised crime, complex economic criminal offences as well as corruption on a massive scale and with grave consequences. The second cat-egory according to the Constitutional Court’s position includes “conventional” criminal offenc-es, most of which have always existed and which will always be around as long as the human race exists. The Constitutional Court holds that the first category allows for considerably broader re-strictions of the rights of the defence and other rights (item 184.3 of the Decision) and that the legislator has not taken into account the difference between these two categories of criminal of-fences including them both, instead, in a uniform legal provision in such a way that the intensi-ty of restrictions of constitutional rights with regard to “conventional” criminal offences cannot be justified under constitutional law. This has led to a structural imbalance of the whole crimi-nal proceedings. In addition to the said structural flaw, the Constitutiocrimi-nal Court has drawn at-tention to particular provisions of the CPC where the legislator has disregarded the principle of proportionality.²⁵

23 According to the ECHR the interests competing with the defence’s interest might be: national security, protection of endangered witnesses and undercover investigators, i.e. protecting covert police methods of investigating crime (Doorson v. Netherlands, 1996).

The rights of the defence may be restricted only for the purpose of protection of the fundamental rights of another person or public interest (Van Mechelen v. Netherlands, 1996).

24 Jasper v. UK in 2000, para. 52; Rowe and Davis v. UK in 2000, para. 61; Ivičević Karas, Elizabeta (2007), “Okrivljenikovo pravo da ispituje svjedoke optužbe u stadiju istrage kao važan aspekt načela jednakosti oružja stranaka u kaznenom postupku”, Hrvatski ljetopis za kazneno pravo i praksu, no. 2., pp. 999-1018, 1002.

25 For instance: it was possible to order covert surveillance measures for minor offences while it was too broadly defined in which cases service of the investigation order or disclosure of evidence could be delayed and when the right to confidential communication between the defendant and the defence attorney could be restricted.

b) Judicial review of the criminal prosecution²⁶

One of the main characteristics of the investigative proceedings according to the CPC/97 was its judicial character. The CPC/97 secured, in terms of structure and function, judicial protection of the investigative function since the investigation was initiated by a court decision and it was conducted by a judicial authority. Conversely, the CPC/08 eliminated any possibility that the de-fendant could request judicial review of the legality of how the criminal prosecution and the in-vestigation were being conducted. The State Attorney was an “absolute master” of the prelimi-nary part of the proceedings and the defendant was not allowed to challenge whether the legal requirements had been met or whether there were some legal impediments to conduct prelimi-nary criminal proceedings before a court. The only option available to the defendant to challenge the legality of conducting the criminal prosecution and the investigation was a complaint to the higher State Attorney as an instrument of addressing a higher instance within the State Attorney’s Office. The Constitutional Court has dismissed such a legal framework.

In order to understand constitutional violations related to the judicial review of actions of the State Attorney’s Office, it is essential to appreciate the difference between a) the judicial review of investigative functions of the State Attorney which refers to the review of individual actions and measures which infringe fundamental human rights and freedoms and b) judicial review of prosecutorial functions of the State Attorney in order to make sure that the requirements for the initiation, continuation and suspension of the preliminary proceedings have been met. While the CPC/08 as a rule guaranteed judicial review of coercive actions and measures,²⁷ by deny-ing the defendant the right to challenge the State Attorney’s decision on the initiation of crimi-nal prosecution and the investigation before the court or to request from the investigating judge the suspension of the investigation, it has completely left out the judicial review of the prosecu-torial function.

The Constitutional Court has confirmed that judicial protection from illegal criminal pros-ecution is inherent to the spirit of the Croatian Constitution and, therefore, it has constitu-tionalised the right to judicial protection during the entire criminal proceedings.²⁸ The Court has stated that it is not enough for the investigating judge to decide on the legality of particu-lar coercive measures and that the defendant must have the right to challenge the decision of the State Attorney on the initiation and conduct of criminal prosecution and investigation.

Therefore, it has imposed an obligation on the legislator to incorporate a mechanism of effec-tive judicial protection from the unlawful (arbitrary) criminal prosecution and investigation into the preliminary proceedings from the moment the person in question is notified of his status as a suspect (item 246.a).

26 See more in: Đurđević, Zlata (2010) “Sudska kontrola državnoodvjetničkog kaznenog progona i istrage: poredbenopravni i ustavni aspect”, Hrvatski ljetopis za kazneno pravo i praksu no. 1/2010, pp. 7-24.

27 However, in several cases the Constitutional Court has found the lack of judicial review of investigative measures to be unconstitutional.

These were: physical examination ordered by the State Attorney pursuant to Art. 326 of the CPC/08 (item 154.3), failure to submit daily reports and documentation regarding technical records on special evidentiary actions to the investigating judge pursuant to Art. 337 of the CPC/08 (item 174), procedural immunity granted to witnesses pursuant to Art. 286, paragraphs 2-4 of the CPC/08 (item 146.2).

28 The Constitutional Court has underlined the fundamental value of the judicial protection in Croatian legal order in the following statement: “The entire wording of the Constitution is permeated with guarantees of judicial protection. The whole catalogue of human rights and fundamental freedoms guaranteed by the Constitution is directed at the judicial protection. The entire constitutional order is founded on the rule of law and the principle of legality, the main guardian of which is the court.” (item 39.2).

c) Minimum rights of the defence during the preliminary proceedings

The Constitutional Court has established that a great number of provisions of the CPC/08 is in violation of the minimum rights of the defence referred to under Art. 6, para. 3 of the Convention as the legislator has restricted them without good reason or excessively or has not effectively en-sured such rights.²⁹ Procedural rights of the defence are relevant even during the preliminary proceedings since fairness of the trial may be seriously impaired if omissions occur at the initial stages of the proceedings (Kuralić v. Croatia, 2009, item 26 of the Decision of the Constitutional Court).³⁰ The Constitutional Court has also determined, citing the jurisprudence of the ECHR,

The Constitutional Court has established that a great number of provisions of the CPC/08 is in violation of the minimum rights of the defence referred to under Art. 6, para. 3 of the Convention as the legislator has restricted them without good reason or excessively or has not effectively en-sured such rights.²⁹ Procedural rights of the defence are relevant even during the preliminary proceedings since fairness of the trial may be seriously impaired if omissions occur at the initial stages of the proceedings (Kuralić v. Croatia, 2009, item 26 of the Decision of the Constitutional Court).³⁰ The Constitutional Court has also determined, citing the jurisprudence of the ECHR,