Impact of Investigation’s Nature on the Structure of Criminal Proceedings

As regards the model of criminal procedure in civil law jurisdictions, investigation is a phase that comes before the stage of the main criminal proceedings in which the court adjudicates on crim-inal matters. Its character has changed as it developed throughout history and today it is regu-lated in various manners in comparative law. Even though there are many differences in details of statutory regulations, it can be noticed that there are only few models of investigation that are different in nature judging by their substantial, essential characteristics common to all of them.

It can be held that substantial elements that define the nature of an investigation are authorities that have powers or duty to conduct this phase of the proceedings, the form of investigative ac-tions and the investigation’s purpose.²

(1) Three models of investigation are found in comparative law in respect of the authority which has been entrusted with it – an investigation can be organised as a (a) police, (b) prosecutorial, or

1 Professor at Faculty of Law, University in Niš.

2 Some are of the opinion that the following typical elements of an investigation are necessary for carrying out an analysis of comparative law: 1) authorities and relationships among them; 2) unity or plurality of proceedings; 3) structure of actions; 4) characteristics of the system and special characteristics (Berislav Pavišić, Europski sustavi kaznene istrage na početku trećeg milenijuma / European System of Criminal Investigation at the Beginning of the Third Millennium/, in a collection of papers in memoriam of prof. dr sc.

Franjo Bačić, Skopje-Zagreb, 2007, p. 330.

(c) judicial investigation.³ The police investigation is characteristic of Finland,⁴ some Scandinavian countries (Denmark and Sweden)⁵ and countries of the original common law system (England).⁶ If we look at the European legal space, in particular the countries that have inherited the mixed (continental Europe) type of criminal procedure, it can safely be said that prosecutorial investiga-tion⁷ is the predominant model created by driving out the investigating judge from preliminary proceedings or by turning police investigation into prosecutorial investigation, most common-ly by placing the police under the control of public prosecutors. Considering that investigations are dominated by a heuristic activity, it is believed that the introduction of prosecutorial inves-tigation eo ipso improves the efficiency of criminal proceedings. The third model or judicial in-vestigation is being surrendered more and more to history – Slovenia is one of few countries in which the investigation is still judicial, conducted by an investigating judge at a motion by a state prosecutor.⁸

(2) The form of actions taken in an investigation will depend in the first place on the authori-ty entrusted with this phase and the authori-type of actions for whose undertaking the authoriauthori-ty is em-powered. In principle, when the investigation is entrusted to the court, all investigative actions are taken in the form laid down by the law; also, the very phase of the investigation is initiated by a formal court decision at the motion of an authorised prosecutor. Therefore, it can be said that when the investigation is judicial, the entire procedure is formal. Investigations are conducted by a single judicial officer – the investigating judge. Since investigations are conducted by the court as an independent, autonomous, and impartial authority and since evidentiary actions are tak-en in the prestak-ence of the parties who actively participate therein while adhering to the princi-ples of orality, directness and adversariness – the results of undertaken evidentiary actions have the same probative force as evidence presented at the main hearing. As opposed to the judicial investigation, when the investigation is entrusted with the public prosecutor or the police, as a rule, formal (procedural) actions are not taken at this stage. Heuristic activities aimed at uncov-ering criminal offences and their perpetrators are typical of the said authorities, so any proce-dural formality would reduce their efficiency and effectiveness. When looking at statutory solu-tions found in comparative law, both the police and prosecutorial investigasolu-tions are standardly non-formal, even though the reforms of criminal procedure in some countries demonstrate that it is not necessarily the case (as explained in more detail below).

In addition to the above, whether or not a certain action taken in an investigation will be for-mal or not depends on its type, i.e. its nature; for instance, police actions and measures are actual acts that require special knowledge of and experience in criminalistics in order to be undertaken in a successful manner and they have also proven unsuitable for being regulated by the law; on the other hand, other actions are strictly formal, such as decision-making actions or overseeing

3 For more on this topic, see: Vojislav Đurđić, Komparativnopravna rešenja o prethodnom krivičnom postupku i njihova implementacija u srpsko krivičnoprocesno zakonodavstvo /Concepts of Pre-Trial Proceedings in Comparative Law and their Implementation into Serbian Criminal Law/, Journal of Criminology and Criminal Law, no. 1/2009, pp. 39-62.

4 Police investigation is governed by the Pre-Trial Investigation Act – 1987/449 and the Coercive Means Act – 1987/450. Amplius: Matti Joutsen, Raimo Lahti and Pasi Pölönen, Criminal Justice Systems in Europe and North America – Finland, Helsinki, 2001, pp. 12-17.

5 In these Scandinavian countries, police investigation is also governed by separate laws and not the procedural code (see: Berislav Pavišić, op. cit. p. 331).

6 Police powers in respect of conducting enquiries and investigations into criminal offences are provided for in the 1984 Police and Criminal Evidence Act.

7 All the countries that have emerged after the break-up of the former Yugoslavia, with the exception of Slovenia, have reformed their criminal procedure laws and legislated prosecutorial investigation.

8 See Articles 167 through 191 of the Slovenian CPC (Criminal Procedure Code, Official Gazette of the RS, no. 32/2007).

the proceedings. However, both the manner in which evidentiary actions at this stage are pro-vided for by the law as well as the authority to which they have been entrusted have bearing on the nature of an investigation. If it is laid down that evidence shall be presented in an investiga-tion, no matter if the concept of this stage in the proceedings is such that all evidence is regular-ly presented therein (which is characteristic of judicial investigations) or evidence is onregular-ly inci-dently presented (when its presentation may not be delayed), such evidentiary actions are strictly formal and evidence is presented in a manner analogous to the manner of its presentation at the main hearing. In contrast to that, if the concept of an investigation is such that evidence is only collected therein (i.e. sources of evidence are uncovered and secured), actions aimed at collect-ing evidence are non-formal and the investigation is, as a rule, entrusted to the public prosecu-tor and the police.

The form of evidentiary actions is of relevance to their probative value and effect they have on the final establishment of facts in a criminal matter and ultimately, to a judgment rendered by a crim-inal court. The results of actions by which evidence is presented and which are taken by the court as investigative actions in pre-trial proceedings in the form provided for by the law have proba-tive value and may provide a factual basis for a judgment, without any additional requirements.

Non-formal actions of gathering evidence in preliminary proceedings are undertaken by a pub-lic prosecutor and the popub-lice and they lack have probative force, which is why no judgment by a criminal court may be based on their results.

(3) The purpose of an investigation plays a crucial role in determining its nature, apart from its above-mentioned typical characteristics. Given the history and solutions found in comparative law, it can be said that legislators have framed two concepts of investigation. According to one model, the purpose of an investigation is to collect evidence based on which a prosecutor can de-cide if he will issue an accusatory instrument or abandon criminal prosecution. Such an investi-gation is non-formal (in principle, evidence is not presented therein) and the police or a public prosecutor are charged with it or both of those state authorities conduct this phase. According to the second model, its purpose is set much more broadly – the goal is that a public prosecutor can make a decision based on presented evidence whether or not he will bring charges and that the evi-dence serves as a factual basis for a judgment. When the investigation is thus conceived, the court is the one who conducts it and the evidence is presented in the form prescribed by the law; there-fore, this phase, taken as a whole, is also formal.

In order to discuss any further the influence of the nature of the investigation on the structure of criminal proceedings, they need to be defined since the structural elements of pre-trial proceed-ings result from the investigation’s nature and the conception of criminal procedure. In the doc-trine of criminal procedure, either realistic or legal definitions of criminal proceedings, or sim-ply both of them, are offered most frequently.⁹ Criminal proceedings are commonly defined as a system of court’s and other participants’ procedural actions governed by the law that are under-taken by them within the limits of their rights and duties for the purpose of determining if sub-stantive criminal law can be applied in a specific case (i.e. whether or not the act committed is defined under the law as a criminal offence; the identity of its perpetrator; whether or not he is

9 Two more theoretic views can be found in literature on criminal procedure – the idea of criminal procedure as a legal position (See:

James Goldschmidt, Der Prozess als Rechtslage, Berlin, 1925) and the theory of three perspectives in criminal proceedings (Gateano Foschini, Sistema diritto processuale penale, Vol. I, Milano, 1956).

guilty and whether or not there are conditions for imposing criminal sanctions). The majority of those who support the idea of criminal procedure as a relationship take the view that criminal proceedings are essentially a criminal procedure relationship that is formed, that develops and ends between the court and the parties with the aim of correct application of criminal law to a crimi-nal matter which is resolved in the proceedings.¹⁰ The presented realistic and legal notions rep-resent the definitions of criminal proceedings in the narrow sense of the word, i.e. definitions of court proceedings in which a criminal matter is finally adjudicated and which can be preceded by activities of state authorities that are governed by the law and aimed at making preparations for bringing charges before the court of law. Even this stage is procedural in character, which is why it constitutes, in a structural unity with criminal proceedings understood in the narrow sense of the word, criminal proceedings in the broad sense of the word.

If the above theories and constitutive elements which provide bases for the definitions of crimi-nal proceedings are taken as a starting point, the conclusion to be reached is that only the judicial investigation with its typical characteristics in respect of the form of evidentiary actions and the very purpose of the investigation, can form a structural element of criminal proceedings in the narrow sense of the word. The court will, at a motion by the public prosecutor, institute an inves-tigation against a defendant by its own decision, whereby a procedural relationship is established between the said participants. As a result, a legal duel between equal parties before the court of law has been facilitated and court’s independence and impartiality are prerequisites that allow ev-idence to be presented in an investigation and to provide a factual basis for a judgment. By defini-tion, neither prosecutorial nor police investigation may constitute a structural element of crimi-nal proceedings in the narrow sense of the word, as opposed to judicial investigation. There is no legal relationship between the parties and the court in a prosecutorial or police investigation and therefore, there cannot be criminal proceedings understood in the narrow sense of that word. In addition, search actions of these state authorities are informal and thus lacking in probative val-ue, so the goal of an investigation is limited: it serves only to the public prosecutor to decide is he will bring charges or abandon prosecution. As previously mentioned, such an investigation may form a structural element of criminal proceedings in the broad sense of the word, i.e. of pre-tri-al procedure.

From the perspective of theory, it could be concluded based on what has been said that the na-ture of an investigation directly impacts the strucna-ture of criminal proceedings. However, apart from two typical models of investigation whose nature determines if it is a phase, i.e. a structural element of criminal proceedings in the narrow sense of the word or if it cannot be such a phase, some hybrid models of investigation that are not consistent with theoretical views of the impact of investigation’s nature on the structure of criminal proceedings have been created after the re-forms of criminal procedure laws were carried out in the last few decades. Prosecutorial inves-tigation has been legislated in certain jurisdictions, but it is regulated as a formal phase,¹¹ while in our criminal legislation it has even been expressly regulated as a stage in criminal proceed-ings in the narrow sense of the word. If we add to this the fact that public prosecutors undertake

10 For a definition of criminal proceedings, please refer to: dr Toma Živanović, Osnovni problemi krivičnog i građanskog procesnog prava (postupka), I. odeljak, Beograd, 1940, p. 7, 8, 36, 49 and 50; dr Tihomir Vasiljević, Sistem krivičnog procesnog prava SFRJ, Beograd, 1981, p. 5; dr Momčilo Grubač, Krivično procesno pravo, Beograd, 2006, p.27; dr Davor Krapac, Krivično procesno pravo – Prva knjiga: institucije, Zagreb, 2003, p. 4; dr Stanko Bejatović, Krivično procesno pravo, Beograd, 2008, p.48; dr Drago Radulović, Krivično procesno pravo, Podgorica, 2009, pp. 6-9; dr. Milan Škulić, Krivično procesno pravo, Beograd, 2009, p. 2; dr Snežana Brkić, Krivično procesno pravo II, Novi Sad, 2013, p. 3 and 4; dr Čedomir Stevanović – dr Vojislav Đurđić, Krivično procesno pravo – Opšti deo, Niš, 2006, p. 10; and others.

11 See Articles 216 through 239 of the Croatian CPC and Article 7 and Articles 295 through 312 of the Serbian CPC.

evidentiary actions in investigations or to put it more precisely, present evidence whose proba-tive value is the same as if it were judicial evidence or presented before the court, it becomes clear that formal judicial investigation has been replaced with formal prosecutorial investigation sim-ply by substituting the authority to which investigation is entrusted. Thus organised investiga-tion, apart from not being in agreement with the theoretical understanding of the concept and structure of criminal proceedings, cannot stand the test of a fair trial,¹² nor does it enhance the efficiency of proceedings, the main reason for its legislation, since all the evidence is presented in a formal investigation and then later presented again at the main hearing given the fact that its purpose has not been modified.