Moment at Which Criminal Proceedings are Initiated

The initiation of an investigation implies that there is a moment at which the prosecutorial in-vestigation begins. If the inin-vestigation constitutes a structural element of criminal proceedings, that moment represents a demarcation line between criminal proceedings and the preliminary investigation. As opposed to this, when the investigation is organised as informal and precedes criminal proceedings, the moment of its initiation is not so significant, although it may be rele-vant to the possibility of imposing coercive measures. An issue of the moment at which crimi-nal proceedings begin in cases in which there is no investigation, either in some general or sim-plified form, arises in that regard.

From historical perspective, statutory provisions governing the commencement of criminal pro-ceedings had not been a characteristic of criminal procedure laws. It used to be a subject dealt with in theoretical studies; however, the commencement of criminal proceedings became the subject of statutory regulations in certain countries in the process of reforms undertaken in the filed of procedural law in the past decades.²⁸

The inherent differences between two general models of criminal procedure, in the first place in respect of their nature and structure, as well as different modalities of the preliminary stage in the mixed model, in addition to a number of simplified forms of procedure – all have led to the fact that criminal proceedings do not begin at the same moment. As a result, there are various theo-retical views of the commencement of criminal proceedings that resulted from various solutions found in the positive law of individual countries at a given time, as well as from various theoret-ical interpretations of positive law and understandings of criminal proceedings. There are those who are of the opinion that criminal proceedings begin the moment the first action aimed at dis-covering a criminal offence or its perpetrator is taken.²⁹ In contrast to that opinion, in which the commencement of criminal procedure is associated with the earliest moment at which the state

24 Even the European Court of Human Rights is of the opinion that a defendant must have a defence counsel when he is tried in absentia (the case of Pelladoah v. Netherlands, decision of September 22, 1994).

25 For more on this topic, see: Vojislav Đurđić, Normativne pretpostavke prava na pravično suđenje u krivičnim stvarima /Normative Presumption for Right to a Fair Trial in Criminal Matters/, Legal Life - Journal of the Lawyers Association of Serbia, no. 9/2013, pp. 722-724.

26 For instance, see: Dr Stanko Bejatović, Radna verzija ZKP Republike Srbije i tužilački model istrage /Draft Version of the Republic of Serbia’s CPC and Prosecutorial Model of Investigation/, Archive for Legal and Social Sciences, no. 1-2/2010, pp. 97-98.

27 S. Brkić, Krivično procesno pravo II, Novi Sad, 2013, p. 9.

28 See Art. 17 of the Croatian Criminal Procedure Code (Official Gazette of Croatia, no. 152/08 and 76/09 – consolidated text) and Art. 7 of the Serbian Criminal Procedure Code (Official Gazette of Serbia, no. 72/2011).

29 The opinion was expressed at an international seminar held in Noto, Sicily from Septembar 27 to October 2, 1982 (See: dr Davor Krapac, Pripremni stadijum krivičnog postupka u komparativnom pravu /Preparatory Stage of Criminal Proceedings in Comparative Law/, Yugoslav Journal of Criminology and Criminal Law, 1983, no. 1-2, p. 235).

reacts to a committed criminal offence, a majority opinion is found in Serbian literature on crim-inal procedure in which, when determining the beginning of crimcrim-inal proceedings, one should focus on the moment a certain individual is at least to a large extent believed to be the perpetrator of an offence, although that moment is differently defined. From one perspective, it is the moment at which an accusatory instrument is issued,³⁰ whereas others hold that criminal proceedings be-gin by a decision of the court.³¹

Similarly to other European legislations, there had been no provisions on the commencement of criminal proceedings in the history of Serbian laws that governed criminal procedure until the latest reform of criminal procedure law implemented in 2011. The lawmakers have included a definition of the commencement of criminal proceedings into the new procedural code among a number of theoretical definitions. The general form of procedure, i.e. regular criminal proceed-ings begin either “by the issuance of an order for conducting an investigation” or “by the confir-mation of an indictment that has not been preceded by an investigation” (Art. 7, para. 1, items 1 and 2). Summary criminal proceedings begin “by the issuance of a ruling ordering detention be-fore the filing of a motion to indict” and “by scheduling the main hearing or a sentencing hear-ing” (Art. 7, para. 1, items 3 and 4). Nevertheless, the manner in which the commencement of proceedings is provided for by the law has no theoretical foundation neither in respect of its gen-eral form nor summary proceedings, which is why it has been met with criticism in scientific and professional papers; it is not clear if it can be any useful in the practice of the courts.

What is regarded as the moment at which proceedings begin depends primarily on the view of criminal proceedings and consequently on the structure of a specific type thereof. If we take as our starting point the theory of the legal notion of criminal proceedings, it follows that the mo-ment at which a procedural relationship is established marks the commencemo-ment of criminal pro-ceedings, as well as that there could be no criminal proceedings without all three participants between whom the relationship in question is formed. Hence, investigative actions undertak-en prior to that momundertak-ent, before a relationship betweundertak-en the court and the parties has beundertak-en estab-lished, cannot be regarded as actions undertaken in criminal proceedings. (Such actions are an-ticipative and may acquire evidentiary value only after being accepted after the commencement of criminal proceedings.) For the same reasons, any phase of proceedings which is conducted by a state authority other than the court and precedes court’s proceedings in which the parties dis-cuss the principal matter thereof may not be regarded as criminal proceedings. Even when the notion of criminal proceedings understood realistically as a set of procedural actions governed by the law and taken by the court and parties with a specific procedural aims is taken as a start-ing point, the point at which proceedstart-ings begin is the same. Because of the adherence to the ac-cusatory principle, the court will never institute proceedings ex officio; nevertheless, there may be no proceedings without a court’s decision. Hence, the moment at which a prosecutor files a motion with the court to initiate proceedings or a certain action is undertaken for the same pur-pose may not be regarded as the commencement of criminal proceedings since it is not yet cer-tain that there will be any proceedings given that the court has to make a ruling thereon. Actions taken by the prosecuting authorities before the court renders its decision do not belong to crim-inal proceedings even though have the same aim as crimcrim-inal proceedings themselves. Such is

30 Dr Branko Petrić, Pokretanje krivičnog postupka /Initiation of Criminal Proceedings/, Legal Life - Journal of the Lawyers Association of Serbia, no. 2/1968, p. 3.

31 See: Dr Čedomir Stevanović, Krivično procesno pravo, Naučna knjiga, Beograd, 1994, p. 291; Dr Tihomir Vasiljević, Sistem krivičnog procesnog prava SFRJ, Beograd, 1981, p. 13.

the nature of actions taken in a prosecutorial investigation, as a result of which it cannot form a phase of criminal proceedings and in consequence, its beginning may not be regarded as the commencement of criminal proceedings. A conclusion drawn from the above is that it can be re-garded pursuant to both the legal and realistic definitions of criminal proceedings that they be-gin by a court’s decision, whereby it is established that statutory conditions for conducting pro-ceedings have been satisfied.

As opposed to this theoretical view, the lawmakers have taken the doctrinal view of the com-mencement of regular criminal proceedings in which the investigation is judicial as if its nature was not changed by the introduction of prosecutorial investigation. However, the fact that inves-tigation has been entrusted to non-judicial authorities must lead to a redefinition of the struc-ture of criminal proceedings by definition thereof and therefore neither police nor prosecutorial investigation may be deemed a phase of criminal proceedings, which eo ipso means that crimi-nal proceedings do not begin by initiating a non-judicial investigation, but after it. Specifically, in cases of non-judicial investigation, criminal proceedings begin by the confirmation of an indict-ment since the court finds by that decision that bringing a defendant before the court is both jus-tified and legal (in any case, it is how the procedural code defines the commencement of crim-inal proceedings based on a direct indictment). Such a conclusion would have been reached by the lawmakers themselves had they read more carefully the procedural code they used as an ex-ample for introducing and defining the new model of criminal procedure. Namely, the Croatian Criminal Procedure Code from which a number of statutory solutions have been taken or in-spiration was drawn by the lawmakers quite rightly lays down in respect of the general form of proceedings that “criminal proceedings shall commence by confirming an indictment” (Art. 17, para. 1, item 1 of the Croatian CPC) and no other manner of instituting such proceedings has been provided for.

In addition to the general form of proceedings, the Code provides for the moment at which sum-mary proceedings and the procedure for imposing criminal sanctions without holding a main hearing commence. Given the fact that there is no investigation as part of the above-mentioned simplified forms, the moment at which they are initiated is quite rightly associated with a judicial decision – summary proceedings begin “by scheduling the main hearing or a sentencing hear-ing” (Art. 7, para. 1, item 4). In situations when a public prosecutor decides to undertake an ev-identiary action prior to filing a motion to indict, criminal proceedings begin in the same man-ner. The lawmakers implemented their idea of prosecutorial investigation as strictly formal and absent from the structure of simplified forms in such a consistent manner, which is why pro-ceedings begin by a court’s decision and not by taking an evidentiary action prior to the filing of a motion to indict. Nevertheless, the initiation of regular criminal proceedings is in essence con-tingent on the first evidentiary action under the law: the order for conducting an investigation whereby proceedings are initiated under the letter of the law is issued “prior or immediately af-ter the first evidentiary action” taken by the public prosecutor or the police. Thus, the moment at which regular criminal proceedings are initiated is in effect dependent on the first evidentiary action, whereas this is not the case with summary proceedings.

The moment at which summary proceedings are initiated is not dependent on the first eviden-tiary action; instead, it is contingent on the first action of procedural coercion prior to the filing of an accusatory instrument, which is a disastrous legislative solution. Namely, it is laid down that summary proceedings shall begin “by the issuance of a ruling ordering detention before the filing

of a motion to indict” (Art. 7, para. 1, item 3), which is unacceptable for a number of reasons. The main shortcoming of such a statutory regulation is that it is based on the idea that criminal pro-ceedings may begin before a court of law without an accusatory instrument of the prosecutor’s, which is in direct conflict with the accusatory principle that underlines the modern criminal pro-cedure. In essence, an accusatory instrument is a prosecutor’s request duly drawn up whereby the court is asked to bring a defendant to the main hearing and convict him pursuant to the law.³² Where there are no charges, there can be no criminal proceedings (nemo iudex sine actore). The accusatory principle understood in such a manner dominates the modern criminal procedure, as a result of which no criminal proceedings initiated and conducted by the court without an accu-satory instrument filed by a prosecutor can be found in comparative law. For the above reasons, it is impermissible that at this day and age criminal proceedings are regulated in a manner which allows them to be initiated ex officio, which lies at the heart of the given statutory solution. In that regard, it cannot be deemed that by putting forward a motion before the court to order detention against a suspect the public prosecutor has at the same time filed an accusatory instrument since such instruments are strictly formal in character. A motion for ordering detention does not meet the requirements for mandatory contents of an accusatory instrument set forth by the law, as a result of which it would have to be dismissed as invalid from the formal point of view even in the case it is presumed that it also represents a motion to indict. Even a further diachronic sequence of procedural actions is inconsistent with such a solution, as isolated as it may be thus far, ac-cording to which criminal proceedings may be initiated even without an accusatory instrument.

When detention is ordered prior to the filing of a motion to indict, it is not yet certain if there will be any criminal proceedings. It is not impossible that the public prosecutor will abandon prose-cution even after detention has been ordered for certain reasons permitted by the law or guided by the principle of discretionary prosecution. In such cases, a question arises about the person who will end the proceedings initiated under the letter of the law and the decision whereby they will be ended. In contrast to that, if the public prosecutor files a motion to indict after detention has been imposed, summary proceedings commence by scheduling the main hearing pursuant to the express rule found in another provision of the Code; this leads to a question: how can one and the same criminal proceedings begin twice.

Apart from being flawed in terms of its conception, the statutory solution according to which criminal proceedings commence by a court’s decision imposing the measure of detention is inconsistent with the definitions of the notions of defendant and the accused found in the statute; it also contravenes the provisions governing summary proceedings as a special form (type) of criminal proceedings that also set forth the manner in which such proceedings are initiated without laying down that they are initiated by ordering detention (Art. 499, para. 1)³³ as well as the provisions governing who shall be deemed a person wrongfully deprived of lib-erty (“when /the person/ is deprived of liblib-erty and no proceedings have been initiated” – Art.

584, para. 1, item 1).

32 Dr Čedomir Stevanović – dr Vojislav Đurđić, Krivično procesno pravo – Opšti deo, Niš, 2006, p. 175.

33 For more on this topic, see: V. Đurđić, Redefinisanje klasičnih procesnih pojmova u Prednacrtu Zakonika o krivičnom postupku iz 2010 / Redefining Traditional Procedural Concepts in the 2010 Draft Criminal Procedure Code/, Archive for Legal and Social Sciences, no.

3-4/2010, pp. 203-204.