Parties-Driven and Judicial Control of Initiation of Investigations and Investigative Actions As regards the initiation of investigations, the code of procedure does not provide for any

par-ty-driven or judicial control of decisions rendered by public prosecutors. No appeal is allowed against the order for initiating an investigation issued by a public prosecutor. Also, such decisions are not even subject to review within the public prosecution service, otherwise structured on a manifestly hierarchical principle. As a result of such statutory provisions, the issue of some of the fundamental human rights of suspects’ may be raised – the right to access to court and the right to legal recourse.³⁸ At the same time, the constitutionality of statutory provisions on initiating in-vestigations has been called into question since the Constitution guarantees that everyone shall have “the right that… the tribunal… shall hear and pronounce a judgment on… grounds for sus-picion resulting in initiated procedure and accusations brought against them” (Art. 32, para. 1 of the Constitution).

An efficient legal method of protection against unlawful and arbitrary initiation of investigations would be to establish the right to access to court and effective legal recourse. Subjection to the idea that the court must not be involved in investigations, imposed from the common law un-derstanding of criminal proceedings as adversary proceedings, along with the fact that all the in-vestigative actions have been given the same probative value as if they were undertaken in a fair duel at the main hearing before the court of law puts suspects at such a disadvantage vis-à-vis the other party to the proceedings to a point that it entirely strips preliminary proceedings of its at-tributes of fairness.

Unlike in the case of the initiation of investigations, the Criminal Procedure Code provides for a certain level of control of investigation actions. The following can be deemed to represent some types of control over the conduct of investigations by public prosecutors: a) suspect’s and his de-fence counsel’s right to be present during investigative actions; b) suspect’s and his dede-fence coun-sel’s right to file a motion to a judge for preliminary proceedings that certain evidentiary actions should be taken; c) obligation to disclose evidence.

38 See: V. Đurđić, Normativne pretpostavke prava na pravično suđenje u krivičnim stvarima /Normative Prerequisites for Right to a Fair Trial in Criminal Matters/, Legal Life - Journal of the Lawyers Association of Serbia, no. 9/2013, pp. 717-721.

а) The suspect and his defence counsel have the right to attend evidentiary actions taken by the public prosecutor in the course of an investigation. In that process, they may propose to the pub-lic prosecutor that they pose questions to a witness or expert witness for the purpose of clarifying a certain matter; after having been granted permission from the public prosecutor, they are free to ask questions even directly (which means that suspects are entitled to cross-examine witness-es for the prosecution in the invwitness-estigation); then, they are entitled to requwitness-est that their objections to undertaking evidentiary actions which they are attending are entered on the record and they may propose that specific evidence is obtained.

b) In cases when they believe that a certain evidentiary action needs to be taken, the suspect and his defence counsel have the right to propose to the public prosecutor that he should undertake it. If the public prosecutor rejects their proposal or fails to make a decision thereon within eight days, the suspect and the counsel may file a motion to that end with the judge for preliminary proceedings who is obligated to decide thereon within eight days. When the judge for prelimi-nary proceedings grants the motion, he shall order the public prosecutor to undertake the evi-dentiary action proposed by the suspect and his defence counsel and determine a time limit for its conduct (Art. 302).

Even though the law provides for the control of the conduct of investigative actions, it could not be said that it is an efficient control. Firstly, no procedural guarantees or sanctions have been laid down in case the public prosecutor fails to comply with the decision by the judge for preliminary proceedings. Moreover, even when the public prosecutor complies with the court’s decision and undertakes an evidentiary action, its effects would be questionable since he is convinced that it is unnecessary, as he has already declared. Suspect’s rights would be far better protected if it was provided that after the public prosecutor’s rejection of the suspect’s and his defence counsel’s pro-posal of a certain evidentiary action, the final decision thereon would be rendered by the judge for preliminary proceedings and he would be the one who undertook the action which both par-ties could attend.

c) Prerequisites for party-driven control of undertaken evidentiary actions and the investigation in its entirety are created by laying down that public prosecutors are required to disclose collect-ed evidence. The public prosecutor shall allow a suspect who has been questioncollect-ed and his de-fence counsel to examine case-files and view objects which may be used as evidence (Art. 303, para. 1). Thereafter, the public prosecutor shall call on the suspect and his defence counsel to put forward their proposal for certain evidentiary actions. If the public prosecutor rejects their pro-posal or fails to make a decision within a statutory time limit, they may put forward their motion before the judge for preliminary proceedings. A mechanism set forth in Article 302 shall be ap-plied next; it does not guarantee efficient protection of the suspect’s right to defence as discussed above and therefore, it should be improved by introducing the judge for preliminary proceedings into the investigation process, as proposed above.

Drago Radulović, PhD¹

Purpose of Investigation