The Concept of the Investigation and the New Criminal Procedure Code of Serbia Serbian current law has introduced an investigation which somehow combines the prosecutorial

investigation and the investigation conducted by the parties to the proceedings, in which the ev-idence may be collected by not only the prosecutor but the accused as well. They are entitled to this because the parties to the proceedings have “equal standing” (they are entitled to the equali-ty of arms) according to the letter of the law. As the parties to the proceedings in all actualiequali-ty can-not have equal standing since the prosecutor has the entire state apparatus behind him, it leaves us with the question whether the introduction of such a “hybrid” form of investigation was re-ally necessary.

The investigation according to the earlier concept used to be conducted by the investigating judge at the request of the public prosecutor based on the decision ordering the investigation

13 See: Bejatović, S., Tužilački koncept istrage kao jedno od obeležja savremenog krivičnog procesnog zakonodavstva u zemljama bivše SFRJ i Srbiji,op.cit; Dodik, B., Prosecutorial investigation – the experiences of Bosnia and Herzegovina, Collected Papers: New Trends in Serbian Criminal Procedure Law and Regional Perspectives,op.cit; Simović,M., Main Characteristics of the Criminal Investigation System in the Legislation of Bosnia and Herzegovina and its Impact on the Simplification of Criminal Proceedings, Collected Papers : Simplified Forms of Procedure in Criminal Matters – Regional Criminal Procedure Legislations and the Experiences in their Application, op.cit; Sijerčić-Čolić,H., Specifični instituti u razvoju novog krivičnog postupka u BiH, Revija za kriminologiju i krivično pravo (Review of Criminology and Criminal Law), no.1/2010; Sijerčić-Čolić, H., Aktuelna pitanja krivičnog postupka u BiH, Collected Papers: ”Aktuelna pitanja krivičnog zakonodasvstva“, op.cit..

14 Criminal Procedure Code of BiH (Official Gazette of BiH) no. 26/2004 and 63/2004.

15 Official Gazette of the Republic of Montenegro, no. 57/09.

16 Škulić,M., Komentar Zakonika o krivičnom postupku, JP “Sl.glasnik”, Belgrade, 2006.

to be conducted with regard to a specific individual when there are grounds for suspicion that a criminal offence had been committed. The defendant could appeal the decision ordering an in-vestigation to be conducted.

According to the prosecutorial model of investigation, the investigation is under the jurisdiction of the public prosecutor, it is initiated by an order, involving a specific individual, when there are grounds for suspicion that a criminal offence has been committed by the said individual or in-volving an unknown offender when there are grounds for suspicion that a criminal offence has been committed. An appeal against the investigation order is not allowed. In terms of the inves-tigation, main characteristics peculiar to the new Serbian CPC are:

1) The investigation is under the jurisdiction of the public prosecutor who initiates it by a formal order.

2) The decision ordering the investigation cannot be appealed.

3) Substantive requirement for the investigation to be initiated are grounds for suspicion that a specific person has committed a criminal offence or grounds for suspicion that a criminal offence has been committed.

4) The investigation may be conducted even if the offender is unknown

5) The role of the court during the investigation, i.e. the role of the judge for preliminary proceedings is quite restricted.

6) Certain actions which pertain to the evidence which are in favour of the defence may be conducted both by the defendant and his defence attorney as long as they inform the public prosecutor thereof.

If we look at this point by point, the main characteristics of the listed features of the CPC with re-gard the new concept of the investigation are reflected in the following.

1. The investigation is initiated by an order issued by the competent public prosecutor. The order is issued prior to or immediately after the first evidentiary action is undertaken by the public pros-ecutor or the police during the preliminary proceedings and no later than within 30 days from the day the public prosecutor is notified of the first evidentiary action the police has undertaken.

The investigation order must contain the personal data of the suspect if he is known, the descrip-tion of the act which provides the legal elements which constitute a criminal offence, the legal qualification of the criminal offence and the circumstances which provide the grounds for suspi-cion (Art. 296 of the Serbian CPC).

Such a provision is criticised because it allows the police to “coerce” the public prosecutor to start the investigation by undertaking some evidentiary action (e.g. by searching the residence), re-gardless of what the prosecutor might think about it,¹⁷ which in turn puts into question the in-dependence of the public prosecutor’s office as the state authority which is guaranteed by the Constitution and consequently affects the public prosecutor and his deputies in exercising their powers. Thus, the police is allowed to influence the work of the public prosecutor’s office which does not comply with the provision of Art. 5, para. 2 of the Law on Public Prosecutor’s Office

17 Ilić, G., Position of the Public Prosecutor according to the New Serbian Criminal Procedure Code, Collected Papers: “New Trends in Serbian Criminal Procedure Law and Regional Perspectives”, op.cit, pp 63-68

which stipulates that “influencing the work of the public prosecutor’s office in any way and in-volvement in the cases by the executive and legislative authorities“ is prohibited.¹⁸

The order is served on the suspect and his defence attorney, if he has one, along with the notice on the first evidentiary action during which they may be present, and notice that the investiga-tion has been initiated is also served on the injured party advising him of his rights pursuant to Art. 50, para. 1 of the CPC (Art. 297 of the CPC).

2. An appeal against the decision on the initiation of the investigation is not allowed. It may be con-cluded from the aforementioned provisions and from the very nature of the order as a decision that the suspect and his defence attorney do not have the right to a legal remedy against the de-cision on the initiation of the investigation.

Such a legal provision has been repeatedly criticised by the scholars and experts in this field. For instance, it was pointed out that this eliminates any type of judicial review of the prosecutor’s deci-sion to initiate the investigation which is a direct violation of Article 32 of the Constitution which proclaims the right to a fair trial guaranteeing, inter alia, that everyone is entitled to a court hear-ing on whether the suspicion which caused the initiation of the proceedhear-ings was well-founded.

In view of the whole concept of the law, we hold that the autonomy of the prosecutor during the investigation would not be endangered if the suspect and his defence attorney were to be allowed to file an appeal against the order to initiate the investigation, which would be filed with the judge for preliminary proceedings only on the following grounds:

1) the act subject to investigation does not constitute a criminal offence which is prosecuted ex officio and the requirements for the use of security measures have not been met, and

2) the statute of limitation for criminal prosecution has expired or the said offence is subject to amnesty or pardon or there are other circumstances which permanently exclude criminal prosecution.

If the suspect and the defence attorney were to be allowed to file an appeal stating that there are no grounds for suspicion that the suspect has committed a criminal offence which he has been accused of, this would allow the judge for preliminary proceedings to pass a ruling stating that there is no need for an investigation to be conducted which would go directly against the concept of this Criminal Procedure Code. In addition, the investigation order is passed prior to or im-mediately after the first evidentiary action is undertaken by the public prosecutor or the police during the pre-investigation proceedings and no later than within 30 days from the day when the public prosecutor was notified of the first evidentiary action undertaken by the police, conse-quently, the establishment of such grounds for an appeal would mean that the investigation prac-tically would not have even been initiated, i.e. the prosecutor would not have collected appropri-ate evidence by that time, and just a single evidentiary action would have been undertaken, based on which the court would be asked to decide whether there were grounds for suspicion that the suspect had committed a criminal offence, for which there would not be sufficient material.

18 Škulić.M, Ilić,G., Reforma u stilu jedan korak napred – dva koraka nazad“, op.cit.

3. The lowest degree of suspicion is sufficient for the investigation to be initiated – grounds for sus-picion. The investigation used to be initiated if there was a reasonable suspicion that the criminal offence has been committed by a certain individual whereas now the investigation is to be con-ducted based on the same degree of suspicion required for the police actions during the pre- in-vestigation proceedings. This provision has also been met with criticism since initiating and con-ducting criminal proceedings must not be based on assumption but on actual and specific data.¹⁹ Namely, the degree of suspicion is usually determined based on the degree of probability and they are: general suspicion, grounds for suspicion, reasonable suspicion and reasonable grounds for suspicion (justifiable suspicion according to the new CPC). Grounds for suspicion remain at the level of indications, grounds to suspect, so it is highly questionable whether the initiation of criminal proceedings should be allowed based on indications given the implications of the crim-inal proceedings.

4. The investigation may be initiated and conducted even with regard to an unknown offender.

Previous Criminal Procedure Code allowed only certain investigative actions to be undertak-en against an unknown offundertak-ender (Art. 239). Now, the investigation may be initiated evundertak-en whundertak-en the perpetrator is unknown if there are grounds for suspicion that a criminal offence has been committed. Such a provision has been opted for by the legislators in BiH and Croatia as well, and has been met with a lot of criticism there, which was the case in Serbia as well. It is questionable whether this provision can even be justified and at the same time it is a direct violation of a con-siderable number of widely accepted provisions in criminal substantive and procedure legisla-tion. For instance, it does not comply with Article 14, paragraphs 1 and 2 of the Criminal Code of the Republic of Serbia which explicitly prescribes that there is no criminal offence without cul-pability. How is it possible to determine guilt of an unknown offender if guilt pursuant to Art. 22 of the CC exists “if the perpetrator at the time of the commission of the criminal offence was of sane mind and was acting with intent and was aware or should or could have been aware that his action was prohibited”? Furthermore, there is an issue of how this provision stands in relation to Art. 286, para. 1 of the CPC, which regulates the police procedures during the pre- investiga-tion proceedings, i.e. the duty of the police to undertake necessary measures in order to locate the perpetrator of the criminal offence in question.

5. The role of the court during the investigation, i.e. the role of the judge for preliminary proceed-ings, is quite restricted. The judge for preliminary proceedings cannot directly undertake an evi-dentiary action in favour of the defence during the investigation but only if the public prosecutor denies the request by the suspect and his defence attorney for an evidentiary action to be under-taken or if the said request is not decided on within eight days from the day it was submitted, a motion can then be filed with the judge for preliminary proceedings and if the motion is grant-ed, the judge for preliminary proceedings shall order the public prosecutor to undertake the ev-identiary action in favour of the defence and shall set a deadline for complying with the order (Art. 302 of the CPC).

It would have been much more purposeful to provide for the judge for preliminary proceed-ings to undertake the proposed evidentiary action and inform the public prosecutor thereof.

19 Simović, M., Značenje “osnovane sumnje” iz četvrtog amandmana na Ustav SAD, Collected Papers: “Krivično zakonodavstvo Srbije i standardi EU”, Belgrade, 2010.

Moreover, it is not logical that the public prosecutor is allowed to entrust the police with cer-tain evidentiary actions (Art. 299, para.4 of the CPC) but he is not allowed to entrust the judge for preliminary proceedings with such actions in cases where it is probable that it is going to be impossible to repeat them at the main hearing. In most existing legislations (in Montenegro and BiH, among others), the court is allowed to undertake certain actions during the prosecutori-al investigation (so-cprosecutori-alled urgent judiciprosecutori-al actions), precisely in order to render the proceedings more rational.

The role of the judge for preliminary proceedings during the investigation is reduced just to a limited number of actions – the decision on certain procedural measures of enforcement (the most important ones being powers related to the measures for securing the presence of the de-fendant during the proceedings – detention in the first place, and also, a ban to leave temporary residence, a ban to leave abode, a ban to approach, meet or communicate with certain individ-uals and bail), rendering the decisions which fall under sole jurisdiction of the court, i.e. under-taking certain evidentiary actions (issuing the order to search the residence, other premises and persons, awarding the status of a protected witness and the examination of such a witness, tem-porary suspension of a suspicious transaction, issuing orders for secret monitoring of commu-nication, for secret surveillance and recording, for the conclusion of simulated transactions, for computer-assisted data search, and to use an undercover investigator).

6. Elements of a “parallel investigation”.²⁰ The suspect and the defence attorney may independent-ly collect evidence and material in favour of the defence (Art. 301 of the CPC). The suspect and the defence attorney may for the purpose of exercising these powers:

1) interview an individual who can provide information useful for the defence and take written statements and notices from such individuals, with their consent,

2) enter private premises or premises closed for general public, the residence or premises connected to the residence with the consent of the occupant, and

3) obtain items or documents from a physical or legal entity and information available to them and with their consent as long as a receipt is issued listing the seized items and documents.

Organisation of the prosecutorial investigation in the countries which belong to the European civil law legal tradition does not entail the possibility of conducting a parallel investigation by the suspect and the defence attorney, instead, the public prosecutor and the police are under an obli-gation to collect all of the relevant facts in favour of the defendant during the investiobli-gation in ad-dition to collecting the evidence against the defendant. Legal provision adopted by the Serbian CPC undermines the concept of the prosecutorial investigation and elements of an investiga-tion conducted by the parties to the proceedings are introduced. The public prosecutor may be in danger then of disregarding his duty pursuant to Art. 6, para. 4 of the CPC which is to impar-tially clarify the suspicion regarding the criminal offence subject to official actions and to equal-ly closeequal-ly examine the facts which incriminate the defendant and the facts which are in favour of

20 The expression “parallel investigation” is used as a theoretical concept when certain laws (in Europe, for instance, in Italy, after the amendments and supplements to the Italian CPC passed in 2000) allow the defence to collect evidence in its favour during the investigation conducted by the public prosecutor.

the defendant, causing the prosecutor to increasingly fulfil the role of a typical party to the pro-ceedings, i.e. solely the prosecution’s representative.

Italian experiences suggest that in such a situation private detectives are more frequently hired, who then lead a parallel investigation and collect the evidence for the defence which, judging from the aspect of our legal tradition, shall cause a problem by creating negative social effects, i.e. the exercise of this right would be more successful if the defendant could have at his disposal sufficient financial means while many defendants would not be able to afford to cover the costs of their own investigation.

With the introduction of the elements of a “parallel investigation”, the position of the defence at-torney in the criminal proceedings is changed since undertaking some of the investigative ac-tions could result in his actual inability to be involved in a greater number of cases as it has been customary up to now.

Article 303 para. 3 of the CPC prescribes the obligation/ duty of the suspect who has been already questioned and his defence attorney to notify the public prosecutor that evidence and materi-al in favour of the defence has been obtained and to materi-allow the prosecutor access to examine the documentation and items which may be used as evidence before the conclusion of the investiga-tion. Such a provision imposes special obligations on the defence, which did not exist previous-ly (although the rights “granted” under Art. 301 belonged to them even before, admittedprevious-ly, they were not explicitly formulated by the law), however, no repercussions are prescribed if the said obligation is not met, so it would seem that this is an “empty” norm. In addition, one of the rea-sons for detention is “risk of collusion”, i.e. the risk that the defendant would destroy, hide or fal-sify the evidence or traces of the criminal offence or that special circumstances indicate the de-fendant would obstruct the proceedings by influencing the witnesses, accomplices or harbourers.

Therefore, the defendant is formally entitled to collect evidence in his favour but the risk of evi-dentiary obstruction due to the actions of the defendant is reason for detention.

Conclusion

Although it is necessary to introduce certain elements from one criminal procedure system into the other, in order to improve the efficiency of the criminal proceedings, national legal tradition should be preserved to a certain extent as well. The main reason for this is not the preservation of national identity in this segment but the fact that grafting elements from another criminal proce-dure model without harmonising it with social, cultural, political and general normative setting may cause a host of problems in practice, render participants of the proceedings unable to adapt and consequently result in criminal proceedings which are inefficient and unfair.

Efficiency of criminal justice system must not be achieved at the expense of the legality of the provisions for the criminal matter in question and by infringing the freedoms and rights guaran-teed to the participants of the criminal proceedings. A balance needs to be found between legally resolving a criminal case, on the one hand, and the proceedings which are concluded as quickly

Efficiency of criminal justice system must not be achieved at the expense of the legality of the provisions for the criminal matter in question and by infringing the freedoms and rights guaran-teed to the participants of the criminal proceedings. A balance needs to be found between legally resolving a criminal case, on the one hand, and the proceedings which are concluded as quickly