The Main Characteristics of the Prosecutorial Investigation after the 2013 Amendment V to the CPC

The Law on Amendments and Supplements to the Criminal Procedure Code passed in December was supposed to achieve the goals of the reform set by the Decision of the Constitutional Court of 19 July 2012 regarding the non-compliance of the Criminal Procedure Code passed in 2008 with the Constitution as well as by the platform which was established by the Guidelines of the Ministry of Justice for the reform of the CPC during 2013 passed in February 2013,⁴⁸ which have set the legal framework, a decision in principle on the model of the criminal procedure as well as

46 Krapac, Davor (2010) Kazneno procesno pravo: Institucije, Zagreb: Narodne novine, p. 32.

47 For instance, in the Decision, the Court has found that the requirements for the extension of special evidentiary actions (Art. 335, para. 2) have been defined through vague legal terms as “important reasons” and “the complexity of the case” leaving the judges with too broad discretionary power to interpret the restrictions of the constitutional civil rights (item 170.2). With regard to the provisions on the deadline for issuing an indictment, it was stated that there was no reasonable relationship in terms of proportion between the regular deadline and allowed time extensions which may amount to eleven times longer time period than the regular one, thus completely cancelling out the effects implied by short deadlines. It has been established that such provisions were not in compliance with the requirements for laws resulting from the rule of law, especially those regarding legal certainty, legal security and legal consistency (Article 3 of the Constitution).

48 The unabridged Guidelines of the Ministry of Justice for the Reform of the Criminal Procedure Code during 2013 have been published in: Đurđević, Zlata (2011) Zbirka zakona iz kaznenog procesnog prava, Faculty of Law of the University of Zagreb, 2013.

the reform guidelines as platform principles.⁴⁹ The basic provisions which have been introduced in the preliminary criminal proceedings are:⁵⁰

3.1. Structural Reform: Uniform Criminal Procedure for all Offences

A uniform criminal procedure has been introduced for all criminal offences, thus abolishing the differentiation between the ordinary and summary proceedings.⁵¹ The stage of the proceed-ings when the police and the State Attorney’s Office act before the formal criminal proceedproceed-ings is called the inquiry. The first formal stage of the criminal proceedings is the investigation for all criminal offences punishable under law by a term in prison of more than five years i.e. investiga-tive actions for minor criminal offences.⁵² When investigative actions are being conducted, the State Attorney’s Office does not have to pass a formal decision on the initiation of the prelimi-nary proceedings. Direct indictment, which may be issued only based on the actions which are undertaken during the inquiries, is allowed only with regard to criminal offences punishable un-der law by a term in prison of up to 15 years. With regard to particularly serious criminal offenc-es as well as the onoffenc-es which the Constitutional Court refers to as “the criminal offencoffenc-es which threaten the organised life in a community” it is allowed to restrict procedural rights of the de-fence during the preliminary proceedings. This provision implements the constitutional obliga-tion and the first guideline on finding the right balance within the criminal procedure system in relation to three basic categories of criminal offences: crime which threatens the organised life in a community, conventional crime and petty crime.

3.2. Restoration of the Principle of Legality

The principle of legality has reverted to the definition that was used in Croatian criminal pro-cedure law until the CPC/08. The State Attorney must initiate criminal proceedings if there is a reasonable suspicion that certain person has committed a criminal offence which is prosecut-ed ex officio and there are no legal impprosecut-ediments for the prosecution of the said person (Art. 2, para. 2 Platform for the Law on the Amendments and Supplements to the CPC). Two main procedural consequences which result from such a definition are that the criminal proceedings are no longer initiated when there are grounds for suspicion but a reasonable suspicion as well as that the investigation, i.e. criminal proceedings, may not be conducted against an unknown

49 The task force which was set up by the Minister of Justice in a ruling of 11 October 2012 had 16 members nominated by relevant institutions and led by professor dr Zlata Đurđević. Minister of Justice, Orsat Miljenić, disbanded the task force on 20 June 2013 so the work on drafting the legal text was taken over by the Ministry of Justice. A more detailed account of the composition, work and results of the task force see in: Đurđević, Zlata (2013) “Osvrt na rezultate rada radne skupine Ministarstva pravosuđa za usklađivanje Zakona o kaznenom postupku s Ustavom Republike Hrvatske”, Hrvatski ljetopis za kazneno pravo i praksu (www.pravo.unizg.hr/hljkpp), 1, pp. 3 – 100.

50 See more on the Amendment V to the CPC in: Ibid. and Đurđević, Zlata (2013) “Rekonstrukcija, judicijalizacija, konstitucionalizacija, europeizacija hrvatskog kaznenog postupka V. novelom ZKP/08: prvi dio?”, Hrvatski ljetopis za kazneno pravo i praksu, no. 2, pp. 313 – 362.

51 According to the CPC/08 summary proceedings were conducted with regard to criminal offences which were punishable under law by a term in prison of up to twelve years except in cases which were under the jurisdiction of the County Courts whereas the ordinary proceedings were conducted before the County Courts for more serious criminal offences or those which fell under the jurisdiction of the Bureau for Combating Corruption and Organised Crime.

52 According to the CPC/08 investigation had to be conducted if criminal offences in question were punishable under law by long-term imprisonment and it was possible to conduct it only with regard to criminal offences punishable under law by a term in prison of 15 years. With regard to other criminal offences it was proceeded to the stage called criminal prosecution. It was established that the investigation was conducted only in 1% of the cases in practice.

perpetrator. Such a definition of the principle of legality also meets the constitutional require-ment for determination of the charging morequire-ment⁵³ as well as the requirement for clear differentia-tion between the stage of preliminary investigative acdifferentia-tions when the suspicion is being “clarified”

whether a certain individual has committed a criminal offence in order to determine if there are any grounds for such a suspicion and the part of the proceedings when reasonable suspicion has been established.⁵⁴

Failure to determine when the criminal proceedings were initiated was one of the main flaws of the criminal proceedings according to the Decision of the Constitutional Court.⁵⁵ It was nec-essary to take into account judicial review and procedural rights of the defence when decid-ing on the moment of initiation of the criminal proceeddecid-ings. Pursuant to Art. 29, para.5 of the Constitution which prescribes that the criminal proceedings may be initiated only before the court at the request of the authorised prosecutor, the beginning of the criminal proceedings is marked by a court decision, i.e. the possibility of court decision on the requirements for the con-duct of criminal proceedings. In view of the aforementioned, the criminal proceedings start (Art.

17 of the CPC): 1) when the ruling on the conduct of the investigation is final, 2) when the in-dictment is confirmed if there was no investigation, 3) when the main hearing is scheduled based on private prosecution, 4) when the judgment is rendered on the issuance of a criminal order.

3.3. The Restrictions on Undertaking Evidentiary Actions During the Inquiry

The purpose of separating procedural stages during the preliminary proceedings is to separate actions which may be undertaken by certain law enforcement authorities and authorities con-ducting the proceedings during the inquiry stage as the preliminary part of the proceedings dur-ing which the suspicion is just bedur-ing “clarified” if particular individual has committed a crimi-nal offence, in order to determine if there any grounds for such a suspicion from the part of the proceedings during which reasonable suspicion has already been established.⁵⁶ One of the fun-damental structural flaws and errors of the CPC/08 was the lack of distinction between the ac-tions which may be undertaken during the preliminary investigative acac-tions and the investiga-tion. From the point of view of the Constitution and the Convention, the moment of charging an individual represents that turning point when the state, on the one hand, starts undertaking coercive measures and collecting the evidence for the prosecution while the defendant must be granted procedural rights and judicial protection from unlawful prosecution from that point on.⁵⁷ Therefore, the state’s power to undertake evidentiary actions before the procedural rights of the defence have been activated, i.e. to collect the evidence for the prosecution, should be limit-ed. Under special circumstances, prior to the charging moment, evidentiary actions may be un-dertaken if there is a risk of delay, the perpetrator is unknown and if covert investigative meas-ures are being undertaken. Therefore at the stage of the inquiry, the police, the State Attorney and the investigator may undertake just the following actions: a) inquiry (Art. 206.f-211 of the CPC), b) special evidentiary actions, (Art. 332 – 340 of the CPC), c) urgent evidentiary actions

53 See item 31 of the Decision of the Constitutional Court.

54 See item 40.2 of the Decision of the Constitutional Court.

55 See Guidelines 2.3. Transparency: confidentiality of preliminary investigative actions, non-public nature of the investigation, public nature of the main hearing and the institute of party agreements (Transparentnost: tajnost preliminarnih istraživanja, nejavnost istrage, javnost rasprave i institut sporazumijevanja stranaka), second section

56 See item 40.2 of the Decision of the Constitutional Court.

57 Foti and others v. Italy, judgment of 10 December 1982, item 52.

(Art. 212 of the CPC), d) evidentiary actions regarding an unknown perpetrator (Art. 214 of the CPC), e) questioning of the defendant 48 hours prior to the ruling on the conduct of the investi-gation (Art. 216, para. 4 of the CPC).

3.4. Judicial Protection from Unlawful Criminal Prosecution and Investigation

At the inquiry stage judicial protection of the suspect from unlawful criminal prosecution is not secured since coercive or evidentiary measures against the suspect cannot be undertaken under special circumstances at that time. At the stage of the investigation judicial review is secured just at its beginning. The defendant has the right to file an appeal against the ruling on the conduct of the investigation with the investigating judge within eight days from the day of the receipt of the ruling (Art. 218, para. 2 of the CPC). An appeal refers to all substantive and procedural require-ments for conducting the investigation, therefore, it includes the confirmation if there is reason-able suspicion that the defendant has committed a criminal offence he has been accused of (Art.

218, para. 3 of the CPC). Judicial review of the criminal prosecution during investigative actions is provided through a complaint on the violation of procedural rights of the defence (Art. 239.a, para. 2 of the CPC). After the service of the notice on the conduct of evidentiary actions with-in three days from their execution, the defendant may file a complawith-int with the State Attorney not only if a particular right of his has been violated but also if legal requirements for conduct-ing the investigative actions have not been met in accordance with the principle of legality (Art.

213, para. 1 of the CPC).⁵⁸

3.5. Procedural Rights of the Defence during the Preliminary Proceedings

After the Amendment V, the CPC again, as a rule, guarantees minimum rights of the defence re-ferred to under Art. 6, para. 3 of the European Convention on the Human Rights from the mo-ment the person is charged, therefore from the momo-ment an investigation or investigative actions begin.

a) The right to notification guarantees the suspect that he must be notified as soon as possible of the reasons of the charges and the evidence against him. This issue has been dealt with by im-posing an obligation on the State Attorney to serve on the defendant a ruling on the conduct of the investigation which contains the facts and legal qualification of the criminal offence as well as the elaboration of the circumstances which have caused reasonable suspicion within eight days from the day it is passed (Art. 218 of the CPC). When investigative actions are being undertak-en, the State Attorney must notify the defendant thereof within three days from the day the first evidentiary action was undertaken (Art. 213, para. 2 of the CPC) The restriction of the right to notification means that the person in question is subject to an undercover investigation so all of the minimum rights of the defence are being restricted during that time. Since this is particular-ly extensive restriction of basic rights of the defence, the legislator has defined the requirements for such a restriction pretty restrictively. Such restriction is allowed only for a period of a month

58 The proposed provision means abandoning the conclusion of the task force for drafting the Law on Amendments and Supplements to the CPC according to which the suspect would have the right to initiate judicial protection from unlawful investigative actions within four months from the receipt of the notice by filing a complaint on the same grounds and with the same effects as an appeal against a ruling on the conduct of investigation. See: Đurđević, 2013, “Osvrt na...”, p.51.

if lives are endangered or there is a risk of physical harm or a threat to property on a large scale and with regard to a short list of serious criminal offences (Art. 218.a of the CPC).

b) The right to examine the case file. The defendant has the right to examine the file on three oc-casions: from the moment the investigation order is served on him, after the suspect has been questioned if the questioning has taken place before the ruling on the conduct of the investiga-tion has been passed, within thirty days from the day an urgent evidentiary acinvestiga-tion was under-taken during the proceedings against a known perpetrator (Art. 184, paragraphs 4 and 5 of the CPC). According to the reasons and the length of the period during which the right to exam-ine the case file has been denied there are three categories of criminal offences (Art. 184.a of the CPC). Firstly, with regard to minor criminal offences which are punishable under law by a term in prison of up to five years, the said right may be denied for a month from the time investigative actions are undertaken due to a threat to life, physical endangerment or endangerment of prop-erty on a large scale. Secondly, with regard to criminal offences for which an investigation is con-ducted, the denial of the said right for the period of a month may be ordered, in addition to the aforementioned reasons, if the investigation would be compromised by making the collection of important evidence impossible or difficult. With regard to particularly aggravated forms of seri-ous criminal offences which may be subject to special evidentiary actions in the period of twelve or more months, the right to examine parts of the case file may be denied until such time the in-vestigation is concluded if the inin-vestigation could be jeopardised in the same or some other pro-ceedings conducted against the same or some other defendants or if the disclosure of the said parts of the case file would risk the life of other persons. The defendant who is in pre-trial deten-tion may not be denied access to the part of a case file relevant to contesting legality of the arrest.

Since denial of access to the case file practically prevents the defence of the defendant during the preliminary proceedings, the right to an appeal against the State Attorney’s decision has been in-troduced (Art. 184.a, para. 2 of the CPC).⁵⁹

c) The right of the defendant to defend himself. The right of the defendant to defend himself from the charges orally, i.e. to be questioned, is the only procedural right of the defence which has not been substantially changed by the Amendment V to the CPC. Even after the Amendment V to the CPC the original provision according to which the defendant had to be questioned before the conclusion of the investigation has been kept (Art. 233, para. 1 of the CPC), i.e. if the inves-tigation has not been conducted before the indictment is issued (Art. 341, para. 4 of the CPC).

Therefore, the State Attorney decides independently if he is going to question the defendant pri-or to passing a ruling on the conduct of the investigation pri-or during the investigation.⁶⁰ The de-fendant has the right to request evidentiary actions to be undertaken, therefore, to be questioned as well, from the State Attorney and the investigating judge but they are not under an obligation to accept such a request. Only in the case of arrest, the arrested person has the right to be ques-tioned by the State Attorney no later than within 40 hours from the moment of the arrest, i.e. 24

59 The State Attorney decides on the denial of access to the file in a ruling which does not have to include a justification, which can be appealed by the defendant within three days. An appeal is filed with the State Attorney who shall immediately forward it along with his justification to the investigating judge who shall render his decision within 48 hours. If the investigating judge upholds the appeal, the defendant shall be allowed to examine the case file and consequently the justification of the State Attorney’s Office as well. If the investigating judge rejects the appeal, his decision shall be served without a justification on the defendant, and the State Attorney shall be served a justification as well.

60 However, if the State Attorney has questioned the defendant before the ruling on the conduct of the investigation has been passed, he must decide on the initiation of the investigation within 48 hours (Art. 217, para. 4 of the CPC).

hours if the criminal offence in question is punishable under law by a one-year term in prison (Art. 109, paragraphs 2 and 6 of the CPC).

d) The right to confidential communication. The Constitutional Court held that if certain require-ments are met, the supervision of the communication between the defendant and the defence at-torney may be allowed, which was contrary to certain obtained expert opinions during the con-stitutional court proceedings regarding the assessment of the compliance of the CPC with the Constitution but also with the European Union law. Namely, the EU Directive on the right of ac-cess to the defence attorney and on the right to communication after the arrest guarantees full confidentiality of the communication between the defendant and the defence attorney regardless of how serious the criminal offence is and other reasons.⁶¹ In view of the fact that the deadline for implementation of the Directive is going to be three years from its publication, Croatian legisla-tor has decided to retain the supervision of the communication between the defendant who has been arrested and the defence attorney but the requirements and the procedure have been har-monised with the constitutional requirements by determining and limiting the requirements for its use and by prescribing the procedure for appeals (Articles 75 and 76 of the CPC).

d) The right to confidential communication. The Constitutional Court held that if certain require-ments are met, the supervision of the communication between the defendant and the defence at-torney may be allowed, which was contrary to certain obtained expert opinions during the con-stitutional court proceedings regarding the assessment of the compliance of the CPC with the Constitution but also with the European Union law. Namely, the EU Directive on the right of ac-cess to the defence attorney and on the right to communication after the arrest guarantees full confidentiality of the communication between the defendant and the defence attorney regardless of how serious the criminal offence is and other reasons.⁶¹ In view of the fact that the deadline for implementation of the Directive is going to be three years from its publication, Croatian legisla-tor has decided to retain the supervision of the communication between the defendant who has been arrested and the defence attorney but the requirements and the procedure have been har-monised with the constitutional requirements by determining and limiting the requirements for its use and by prescribing the procedure for appeals (Articles 75 and 76 of the CPC).