In view of all of the aforementioned, which favours the prosecutorial concept of the investiga-tion over the judicial one on the one hand, and, on the other, identifies a number of dilemmas in terms of legislating prosecutorial concept of the investigation, i.e. in terms of considerable differ-ences in the way this is regulated in the legislations of the countries in the region, the following question is raised: what is the appropriate way to legislate the prosecutorial concept of the inves-tigation in order to achieve the set aim of the said concept - the efficient fight against crime while observing international treaties and national legislation which guarantee rights and freedoms of the defendant and other participants of the investigative proceedings? We are of the opinion that this may be achieved only if the prosecutorial concept of the investigation is legislated ful-ly in accordance with the following principles. First, the onful-ly legal subject authorised to initiate the investigation should be the public prosecutor, in addition to prescribing the requirements necessary for the investigation to be initiated (this refers to the degree of suspicion that a crim-inal offence has been committed primarily which is not to be mistaken for the degree of suspi-cion necessary when undertaking actions which precede the investigation). Second, in addition to the public prosecutor, the police should be an active subject of the investigation, but the cir-cumstances under which the police should act in this capacity should be clearly stipulated, as well as the types of investigative actions the police is allowed to undertake as an active subject of the investigation. Third, specific mechanisms should be provided for ensuring adequate cooperation of the public prosecutor and the police during the investigation. Fourth, one of the main charac-teristics of the prosecutorial concept of the investigation is that it should be clearly and precisely stipulated when, under what conditions and with regard to what evidentiary actions is the court (investigating judge, pre-trial judge) allowed to act as an active subject undertaking such actions.
With regard to the prosecutorial concept of the investigation, the basic (main) function of the court must be deciding on the issues related to the freedoms and rights of the defendant and oth-er subjects of the investigation. Undoth-ertaking coth-ertain investigative actions by the court should be allowed only under special circumstances, only when it is reasonable to assume that repeating such an action is not going to be possible at the main hearing or it would entail great difficulties;
in addition, it would be necessary that the said action is relevant for the proper resolution of the criminal matter in terms of the court decision regarding it.84 Plainly speaking, the evidentiary ac-tions undertaken by the court in these proceedings must not serve the purpose of fulfiling the ba-sic task of the investigation. Fifth, clear differentiation between the powers and competences of active subjects of the investigation eliminating any possibility of willful and arbitrary conduct of any of them. Sixth, in terms of undertaking investigative actions, their basic characteristics must be efficiency and legality of such actions which is ensured through the provision of appropriate instruments. Seventh, prescribing precise criteria ensuring the investigation is being conducted efficiently, as well as the procedure for public prosecutor to follow after the conclusion of the in-vestigation and the repercussions for not complying with the stipulated norms. Eighth, stipulat-ing the status of the injured party which allows him to exercise his basic rights in relation to the criminal offence which is being investigated. Ninth, providing the mechanisms which can secure the collection of evidence in favour and against the defendant. Tenth, the harmonization of other provisions of the Code with the changed concept of the investigation. The transition from the
84 See, for instance, the provisions of German StPO; Bejatović,S., Položaj i uloga policije u pretkrivičnom i prethodnom krivičnom postupku u nemačkom krivičnom procesnom zakonodavstvu, Policija pretkrivični i prethodni krivični postupak, VŠUP, Belgrade, 2005, pp., 265-290.
judicial to the prosecutorial concept of the investigation requires a change in a host of other in-stitutes and provisions in the Criminal Procedure Code in general (this is the case with e.g. re-view of the indictment issued after such investigation has been conducted, the issue of evidentia-ry initiative and the role of the court in the presentation of evidence, the principle in dubio pro reo etc.).85 In view of the fact that only the prosecutorial concept of the investigation is legislated in accordance with the aforementioned principles enabling the set aim of the investigation to be achieved, and that only if prosecutorial investigation is regulated in such a way, the switch from the judicial to the prosecutorial concept is justified in terms of criminal policy, it is necessary to undertake measures ensuring the prosecutorial concept of the investigation is legislated properly when it comes to the analysed criminal procedure codes of the countries in the region. The col-lection of papers, of which this paper is a part, and the conference where it is going to be present-ed should offer an incentive towards this goal.
5. Conclusion
According to the aforementioned, which undoubtedly is an argument for the prosecutorial con-cept of investigation, it is an indisputable fact that it is this concon-cept that enables efficient crim-inal proceedings and is in accordance with the currently prevailing views in the field of crimi-nal law when it comes to this issue. This is to say that such a concept is increasingly becoming the prevailing concept of the investigation (in all its variations) in current criminal procedure legislations in general, regardless of the system it is a part of. In view of this, it may be conclud-ed that the decision made in almost all of the national legislations in the countries of the former Yugoslavia to switch from the judicial to the prosecutorial investigation in the course of the forms was right. Such provisions in the criminal procedure legislations of the countries in the re-gion not only establish normative grounds for more efficient criminal proceedings in terms of its duration and quality, but are bringing the said legislations into line with other European, and not just European, criminal procedure legislations and current tendencies in the field of criminal law theory in general regarding this issue. However, in contrast to this general view, it would be quite wrong to conclude that prosecutorial concept of the investigation without an exception serves as a method of meeting the proclaimed objectives of the reform (primarily, the establishment of normative grounds for more efficient criminal proceedings). On the contrary. In order to ensure the prosecutorial investigation produces the desired results, it has to be regulated according to the principles characteristic of this concept of investigation (primarily according to the princi-ple of strict and clear differentiation between the powers and competences of the active subjects of the investigation – the public prosecutor, police and the investigative judge) thus eliminating the possibility of any one of them acting willfully and arbitrary in addition to other principles.
Moreover, it is necessary to take into account other prerequisites for the successful implementa-tion of the said concept. Also, in terms of undertaking investigative acimplementa-tions, the basic character-istics of such actions must be efficiency and legality which is ensured through the provision of appropriate instruments. Furthermore, there are the issues of prescribing precise criteria ensur-ing the investigation is beensur-ing conducted efficiently, as well as the procedure for public prosecutor to follow after the conclusion of the investigation and the repercussions for not complying with the stipulated norms. Next, it is necessary to take into account two more things. First, as already
85 More on this: 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.
mentioned, the change of the concept of the investigation requires accordingly a change in many other provisions in a criminal procedure code in general (such as rules on the review of the in-dictment and role the court in presentation of evidence – to name just a few of the key ones - etc.) With regard to this, the main question arises: Is the newly introduced prosecutorial concept of the investigation in the criminal procedure legislations of the countries of the region regulat-ed in accordance with the said principles? Not everyone agrees on what the answer to this ques-tion is, just as the approach to legislaques-tion of most of these issues related to the new concept of the investigation is not the same in all of the criminal procedure legislations in the region. Despite all this, it seems that three general conclusions can be reached after the analysis of the said issue.
The first one refers to the CPC of the Republic of Serbia from 2011 where it may be concluded that the majority of its provisions are not in accordance with the intended model of regulating the prosecutorial concept of the investigation. The second one refers to the CPC of the Republic of Croatia where it may be noted that significant progress has been made in regulating the new con-cept of the investigation in its last amendment which has remedied the negative effects marking the original legislation of the said concept of investigation which coincided to a great extent with the Serbian legislator’s provisions. Third, as far as other analysed legislations are concerned, there are considerable differences in how this concept of investigation has been legislated and signifi-cant, but not full, compliance with the generally accepted principles of legislating the prosecuto-rial concept of the investigation.
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Danilo Nikolić, PhD1