investigation, as well as the views held by professional circles in the last ten or so years which mainly support the said concept, a considerable number of criminal procedure legislations with-in civil law legal systems are optwith-ing to abandon the judicial concept of the with-investigation with-in fa-vour of the prosecutorial concept. It may be noted that the criminal procedure legislations of the countries which were established after the breakup of Yugoslavia have mostly joined this trend.
It may be already declared that the most important change in almost all of the criminal proce-dure codes of these countries is the switch from the judicial to the prosecutorial concept of the investigation. Just to illustrate this fact, suffice to say that the criminal procedure codes of BiH47, Croatia, Montenegro, Macedonia and Serbia48 have already legislated this type of investigation.
However, as it is usually the case when it comes to this issue, there are different approaches to leg-islating this concept of investigation in each national legislation in these countries. The neces-sity to abandon the judicial concept of investigation in favour of the prosecutorial one from the point of view of criminal policy is almost the only thing that is universally recognised. The differ-ences arise with regard to a host of other issues, in particular those related to: the authorities that should be in charge of conducting the investigation (should it be just the public prosecutor, or the public prosecutor and the police, or both the defendant and his attorney); next, the powers of ac-tive subjects of the investigation, i.e. what should be the scope of their powers if both the public prosecutor and the police have this role? Then there is the issue of the value of certain investiga-tive actions for the evidentiary process. Also, there is the status of the injured party at this stage of the proceedings. Finally, there is the question whether to legislate the investigation as a single stage of the proceedings or not. Moreover, there is the question of the instruments that should ensure that the investigation is efficiently conducted without losing sight of its aim49. A few of the provisions found in the codes of the countries of this region (ex-Yugoslavia region) which have already regulated this concept are listed below in confirmation of the previous statement. Their main characteristics, similarities and differencies are the following:
First, mandatory or optional investigation. According to the Criminal Procedure Code of the Republic of Croatia50 the investigation must be conducted “if there are reasonable grounds for suspicion that the defendant has committed a criminal offence which is punishable under law by fifteen years or a long term prison sentence, as well as if there are reasonable grounds for sus-picion that the defendant has committed an unlawful act while in a state of diminished capac-ity”. With regard to the criminal offences which are punishable under law by five year impris-onment or higher sentence, the investigation is usually conducted unless a direct indictment is filed.51 Other laws do not contain such a provision, which may lead to a conclusion that the in-vestigation is a general stage in some types of the criminal proceedings. Consequently, accord-ing to the Criminal Code of the Republic of Serbia, the investigation is a general stage of ordi-nary criminal proceedings unless the requirements for filing a direct indictment are met.52 CPC
47 See: Group of authors, Komentari Zakona o krivičnom/kaznenom postupku u Bosni i Hercegovini, Sarajevo, 2005.
48 Drago Radulović, Komentar Zakonika o krivičnom postupku Crne Gore, Podgorica, 2009, p. 335.
49 More on this: Vojislav Đurđić, Koncepcijska doslednost tužilačke istrage prema novom Zakoniku o krivičnom postupku, Collected Papers:
“Primena novog Zakonika o krivičnom postupku Srbije”, Serbian Criminal Law Association, Belgrade, 2007,.p. 129.
50 Official Gazette of the Republic of Croatia, no. 152/08, 76/09, 80/11, 91/12 – the Decision and Ruling of the Constitutional Court of the Republic of Croatia, 143/12, 56/13 and 145/13.
51 Art. 216, Par. 1 and 2 of Serbian CPC.
52 See Art. 331, Par. 5 of the Serbian CPC.
of Montenegro is similar but the provisions on summary criminal proceedings are applied to criminal offences which are punishable under law by a fine or a term in prison of up to five years.
Criminal Procedure Codes in BiH stipulate different police procedures depending on the fact whether there are reasonable grounds for suspicion that a criminal offence has been committed which is punishable under law by a term in prison of up to five years or more. If the criminal of-fence is punishable under law by a term in prison of up to five years, the police shall undertake necessary actions independently and notify the public prosecutor thereof within seven days from the moment they learn there are grounds for suspicion a criminal offence has been committed.53 Second, the public prosecutor as the sole decision-maker on the initiation of the investigation. The investigation is under the sole jurisdiction of the public prosecutor54 and it may be said that he is its only active participant. In this context, the public prosecutor is the one who is deciding on whether to initiate the investigation, which he does if there is a required degree of suspicion (the grounds or reasonable suspicion in terms of the structure of the investigation proceedings as a whole – as well as the fact if there is an inquiry or not) that a criminal offence has been commit-ted that merits an investigation. In addition, some of the analysed codes stipulate the time with-in which the decision on whether to with-initiate the with-investigation or not is to be rendered. This is the case with the CPC of Serbia which stipulates that the public prosecutor shall order the investiga-tion prior to or immediately after the first evidentiary acinvestiga-tion is undertaken by either the police or the public prosecutor during the preliminary investigation proceedings and no later than 30 days from the day the public prosecutor has been notified of the first evidentiary action the po-lice have undertaken.55
Third, the degree of suspicion as the material requirement for the initiation of the investigation. One of the requirements which has to be met for the investigation to be initiated is the degree of sus-picion that a criminal offence has been committed. However, while such a position in principal is quite right, the issue of specifying the degree of suspicion as a material requirement for allow-ing the investigation to be conducted is provided for differently. In certain legislations (e.g. in Serbian legislation) if there are grounds for suspicion as a minimal degree of probability a par-ticular criminal event has occurred, it is sufficient material requirement for an investigation to be initiated.56 On the other hand, according to the provisions of other here analysed legislations of the countries in this region, which are perfectly justifiable, reasonable grounds for suspicion that a criminal offence has been committed are a mandatory material requirement for the investiga-tion to be initiated, which is also generally accepted.57
Fourth, the possibility of initiating the investigation when the perpetrator of a crime is unknown.
One of the specific features of a certain number of analysed criminal procedure codes of the countries in the region (which is the case with the Serbian CPC and the Criminal Procedure
53 Simović, M.,Krivični postupci u Bosni i Hercegovini, Second Revised and Supplemented Edition, Sarajevo, 2008, p. 224; 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 Application”, OSCE Mission to Serbia, Belgrade, 2013, pp.114-13.
54 Art. 38, Par. 2 item 4 of the Criminal Procedure Code of Croatia and Art. 216 of the Criminal Procedure Code of Republika Srpska.
55 Art. 296, Par. 2 of the Serbian CPC.
56 Art. 295, Par. 1 Item 1of the Serbian CPC.
57 On the reasons justifying such a provision see: Bejatović,S., Kaznena politika zakonodavca i reforma krivičnog procesnog zakonodavstva Srbije , Collected papers: “Kaznena politika ( Zakon i praksa)”, Serbian Association for Criminal Law Theory and Practice, Belgrade, 2013, pp. 5-148.
Codes of BiH58) is the possibility of initiating an investigation when the perpetrator of the crim-inal offence is unknown. Such a provision is very questionable. Especially given the fact that criminal proceedings are considered to be initiated when “order to conduct the investigation is issued”.59
Fifth, should the public prosecutor’s decision to initiate the investigation be subject to review or not?
One of the specific features of the criminal procedure codes of the countries in the region which have switched to the prosecutorial concept of the investigation is that the provisions dealing with the issue of the possibility of the review of the public prosecutor’s decision to initiate the investi-gation drastically differ. The relevance of this issue is particularly based on the fact that the initi-ation of the investiginiti-ation as a rule means the initiiniti-ation of the criminal proceedings.60 Specifically, there are two approaches to dealing with this very important issue. According to the first one, which regrettably seems to be the prevailing one, the review of the public prosecutor’s decision to initiate the investigation may not be requested by the defendant, so the court is not allowed to review the said decision. A typical example of this is the Serbian CPC. According to the said Code, the order to conduct the investigation is served on the suspect and his defence attorney, if he has one, but without any possibility to initiate any type of proceedings for the review wheth-er such a decision by the public prosecutor is appropriate.61 On the other hand, according to the provision opted for by the Croatian legislator, which seems quite justified, the decision on con-ducting the investigation is served on the defendant within eight days from the moment the said decision is rendered at the latest and against the said decision an appeal may be filed with the in-vestigating judge within eight days from the day of the receipt of the said decision. The appeal is submitted to the public prosecutor who shall file it together with the case file with the investigat-ing judge forthwith.
Investigating judge may render various decisions with regard to the filed appeal and one of them is to uphold the appeal and suspend the decision ordering an investigation either in full or just certain items of the decision if the judge finds that for instance there are no reasonable grounds for suspicion that the defendant has committed the cited criminal offence. The judge must de-cide on such an appeal within eight days from the day the appeal and the case file are received.
If the court fails to decide on the defendant’s appeal, the State Attorney is authorised to proceed with the investigation.62
Fifth, the possibility of entrusting other subjects with the investigative actions. One of the perfectly justifiable characteristics of the prosecutorial concept of the investigation is that the public pros-ecutor as its main active subject may entrust delegate certain investigative actions but not the whole investigation to other subjects. Consequently, according to the provisions made by, for in-stance, Croatian legislator, and this is similar in other codes which are being analysed here,63 the State Attorney may order evidentiary actions to be undertaken by an investigator. In such a case,
58 Sijerčić-Čolić, H., Aktuelna pitanja krivičnog postupka u BiH (ustavnopravni , legislativni i praktični aspekt), Collected Papers: “Aktuelna pitanja krivičnog zakonodavstva (Normativni i praktični aspekt)’’, )”, Serbian Association for Criminal Law Theory and Practice, Belgrade, 2012., pp. 288-315.
59 See: Bejatović,S., Kaznena politika zakonodavca i reforma krivičnog procesnog zakonodavstva Srbije , Collected papers: “Kaznena politika ( Zakon i praksa)”, Serbian Association for Criminal Law Theory and Practice, Belgrade, 2013, pp. 5-148.
60 Škulić, M. – Ilić, G. Reforma u stilu “Jedan korak napred-dva koraka nazad“ , the Association of Public Prosecutors and Deputy Public Prosecutors of Serbia, Belgrade, 2012, pp. 47-50.
61 Art. 297 of the Serbian CPC.
62 See Art. 218 of the Croatian CPC.
63 See e.g. Art. 299 of the Serbian CPC and Art. 277 of the CPC of the Republic of Montenegro.
he assigns the investigator, with regard to the subject matter of the investigation and special reg-ulations, lists the actions that are to be undertaken, and he may issue other orders as well which the investigator must abide by unless the Code stipulates otherwise. If this is done, the investiga-tor must act at the order of the State Atinvestiga-torney. In addition, if there is a risk of a delay in the inves-tigation, the investigator shall, if necessary, undertake other evidentiary actions which are related to it or which result from it. If this is the case, then the investigator shall notify the State Attorney thereof prior to undertaking such actions. However, if this was not possible prior to undertaking these actions, then the State Attorney must be notified immediately after the fact.64 Alternatively, according to the provisions of Montenegrin legislator, the scope of activities of the police during the investigation (in a broader sense of the term) does not end with the search which is the most common activity of the police, it is also possible for the police to take on the role of the subject undertaking investigative actions.65 Similarly, according to Art. 299, para. 4 of the CPC of Serbia
“the Public Prosecutor may entrust the police with performing certain evidentiary actions”.
Sixth, prosecutor’s consultants and associates as the subject of the investigation. Pursuant to the State Attorney’s decision when complex cases are being investigated, in addition to the investiga-tors, prosecutor’s consultants and associates are included as well. In such cases, they may prepare certain evidentiary actions, take depositions and receive proposals and undertake certain eviden-tiary actions entrusted to them by the State Attorney independently. The report on such an ac-tion shall be verified within forty-eight hours from the time it has been undertaken at the latest.
Furthermore, in order to clarify certain technical or other expert points raised with regard to ob-taining the evidence or when undertaking evidentiary actions, the State Attorney may request an appropriate professional institution or an expert to supply adequate explanations and the State Attorney shall write a report on this matter.66
Seventh, the investigating judge as an irreplaceable legal subject of the investigation. One of the ex-ceptionally important subjects of the investigation is the investigating judge.67 He performs three functions in these proceedings. These are: deciding on issues related to the freedoms and rights of the persons subject to the investigation. For instance, if looked at from the point of view of the Croatian legislator, and this is similarly dealt with in other laws of this type as well, at the elab-orated request of the State Attorney, the investigating judge decides on pre-trial detention and other measures which are necessary to ensure efficient criminal proceedings and the protection of individuals.68 Next, the said judge decides on whether the investigation should be conduct-ed at the request of the injurconduct-ed party. Specifically, if he State Attorney has dismissconduct-ed a criminal charge or has suspended the investigation, the injured party which has assumed criminal pros-ecution may file a motion to conduct an investigation with the investigating judge or to hold an evidentiary hearing. The investigating judge decides on the motion filed by the injured party as the prosecutor in a ruling. If the motion is not granted, the motion to initiate an investigation filed by the injured party is denied in a ruling. If the said motion filed by the injured party as the prosecutor is granted, the investigation is conducted by an investigator at the order issued by the judge. The injured party as the prosecutor may be present during the actions undertaken in the
64 Articles 219 and 220 of the CPC of the Republic of Croatia.
65 Radulović, D., Krivično procesno pravo, Podgorica, 2009, p. 269.
66 Art. 222 of the Criminal Procedure Code of the Republic of Croatia.
67 Different terms are used in different legislations for this authority but its competencies, in principle, remains pretty much identical (See, for instance, Art. 223 of the Criminal Procedure Code of Republika Srpska).
68 E.g. pursuant to Art 278, Par. 1 of the CPC of the Republic of Montenegro “the order to search the residence and other facilities and persons, as well as the order for temporary seizure of items are issued at the request of the State Attorney by the investigating judge.”
investigation and may file motions with the investigating judge requesting the investigator to be ordered to undertake certain actions. If the judge does not grant the motion to undertake certain actions filed by the injured party as the prosecutor, the injured party shall be notified thereof by the judge. When the investigative judge decides that the investigation has been completed, he no-tifies the injured party as the prosecutor thereof. Such a notification shall inform the injured par-ty of the place where the case file and other items are being kept and the time when these may be viewed, as well as of the right to file charges within eight days and advise the investigating judge thereof. If the injured party does not file charges as the prosecutor within the stipulated time, it shall be considered that the said party is desisting from criminal prosecution, which shall result in the suspension of the investigation by the investigating judge’s ruling.69 Alternatively, accord-ing to the provisions of the Serbian legislator, the pre-trial judge may order certain evidentiary actions in favour of the defence.70
Eighth, the possibility of undertaking evidentiary actions. One of the characteristics of the investi-gation peculiar to the prosecutorial concept of the investiinvesti-gation is also the possibility of under-taking evidentiary actions during the said investigation. Admittedly, there are different variations of this option in practice. For instance, in the Croatian Criminal Procedure Code this is accom-plished by holding an evidentiary hearing. The evidentiary hearing is held before the investigat-ing judge at the request of the State Attorney, the injured party as the prosecutor or the defendant.
The evidentiary hearing shall be held if: it is necessary to depose a witness pursuant to Articles 292 and 293 of the said Code;71 if the witness shall not be available at the main hearing; if the wit-ness is exposed to an influence which puts their statement into question or some other evidence shall not be available to be presented at a later stage. If the investigating judge grants the motion to hold an evidentiary hearing, an order shall be issued scheduling the time and place for hold-ing the evidentiary hearhold-ing within forty-eight hours; the State Attorney, the defendant and de-fence attorney, the injured party and others are summoned unless it is otherwise stipulated by the
The evidentiary hearing shall be held if: it is necessary to depose a witness pursuant to Articles 292 and 293 of the said Code;71 if the witness shall not be available at the main hearing; if the wit-ness is exposed to an influence which puts their statement into question or some other evidence shall not be available to be presented at a later stage. If the investigating judge grants the motion to hold an evidentiary hearing, an order shall be issued scheduling the time and place for hold-ing the evidentiary hearhold-ing within forty-eight hours; the State Attorney, the defendant and de-fence attorney, the injured party and others are summoned unless it is otherwise stipulated by the