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Prosecutorial Investigation according to the Criminal Procedure Code (2008)

Experiences with and Problems Identified in the Prosecutorial Investigation in BiH

2. Prosecutorial Investigation according to the Criminal Procedure Code (2008)

2.1. Evidentiary Actions Prior to the Initiation of the Proceedings

Unlike the Criminal Procedure Code (1997) and the Criminal Procedure Code preceding it, the new Criminal Procedure Code allows the State Attorney a broad option of conducting evidentiary actions without formally initiating the proceedings or informing the defendant thereof and it was this very provision that has been proven to be crucial for effective collection of evidence and uncov-ering of a number of cases involving the abuse of power and corruption at the highest level.

Article 213 of the Criminal Procedure Code (2008) specified when the evidentiary actions could be undertaken prior to the initiation of the proceedings. The Code makes a distinction between the actions which cannot be delayed and the actions which are to be undertaken before render-ing the decision on issurender-ing the indictment.

Article 213 of the Criminal Procedure Code (2008) under paragraph 1 stipulates that the State Attorney (or the investigator at his order) may, prior to the initiation of the investigation, when the investigation is mandatory (Article 216, paragraphs 1 and 2 of the Code), undertake eviden-tiary actions where there is a risk of delay. While the evideneviden-tiary actions procedure is regulated according to Article 213, paragraph 1 of the Criminal Procedure Code (2008) similarly to how it was regulated by the previous Code (1997), but under paragraph 2 of the same Article it is stip-ulated that in cases in which the investigation is not mandatory2 the State Attorney or the inves-tigator at the State Attorney’s order may undertake evidentiary actions where there is risk of de-laying them or which serve a purpose when deciding on whether or not to issue an indictment.

In such a case, the State Attorney is allowed to undertake all of the evidentiary actions which he deems necessary and only then question the defendant at the end. It is the aforementioned provi-sion that has enabled the State Attorney to collect the necessary evidence for the issuance of the indictment quickly and to a considerable extent it has increased the efficiency of the proceedings.

Which evidentiary actions, in addition to questioning the defendant and undertaking eviden-tiary actions which cannot be delayed (crime scene investigation, seizure of items, identification,

2 The investigation was mandatory only with regard to criminal offences for which a long-term prison sentence could be pronounced and if the perpetrator was mentally incompetent.

etc.), are to be taken because they serve a purpose regarding the issuance of the indictment de-pends on the case in question and jurisprudence but also on the State Attorney’s approach. The State Attorney has to thoroughly study the file, assess the importance of the statements witnesses made and decide which witnesses should be examined before deciding on the charges. As a rule, these are just the actions necessary to enable the indictment to enter into force.

The said provision has been immediately amended, partly because the rights of the defendant were considerably restricted by it, allowing the defendant who has been advised of his rights to request from the State Attorney certain evidentiary actions to be undertaken and file a motion with the investigating judge for an evidentiary hearing. The provision has been completely al-tered by the last Amendment to the Criminal Procedure Code.

In addition to conducting the evidentiary actions which serve a purpose when the indictment is to be issued, the State Attorney is allowed to undertake certain evidentiary actions if the perpe-trator is unknown and special evidentiary actions.

2.2. Investigation

2.2.1. Judicial Investigation versus the Investigation by the Prosecutor

Although the objective of the judicial investigation and the prosecutorial investigation is to clari-fy the matter through the investigation sufficiently so that the prosecutor may decide whether to issue the indictment or desist from prosecution, the two types of investigations differ considera-bly and not just in terms of who should conduct the investigation but also in the manner in which it is conducted, as well as the rights of the parties to the proceedings during the investigation.

Judicial investigation which used to be conducted by an investigating judge was often criticised.

The most common objection was that it was too long. Since during the investigation most of the undertaken actions are the ones related to the information that was obtained during the inquiry and then the exact same actions were to be undertaken again at the main hearing. Although the judicial investigation is criticised a lot, it still should be mentioned that its greatest advantage was the fact that it was conducted by a judge and thus obtained evidence was later to be used in the proceedings. Alternatively, the prosecutorial, and in some legal systems the investigation con-ducted by the parties to the proceedings, is less formal, quicker but the actions undertaken dur-ing such an investigation, especially if it is party-led, do not have the strength and credibility as the actions undertaken by the investigating judge.

2.2.2. Investigation – How and When is it Conducted?

The Code passed in 2008 made a distinction between the ordinary and summary proceedings.

Ordinary criminal proceedings were conducted in cases involving criminal offences which were under the jurisdiction of the County Court. The criminal offences which were subject to ordi-nary criminal proceedings could be divided into two categories based on whether the investiga-tion was mandatory or opinvestiga-tional.

The investigation according to the Code (2008) was initiated by an order issued by the State Attorney when it was determined that there were grounds for suspicion that a criminal offence had been committed. Investigation was based on the State Attorney’s actions. Article 216, para-graph 1 of the Criminal Procedure Code (2008) stipulated that the investigation had to be con-ducted when the criminal offence was punishable under law by a long-term sentence and later amendments added if the perpetrator was mentally incompetent as well.

Pursuant to Article 217, paragraph 1 of the Criminal Procedure Code, the investigation order had to be issued by the State Attorney within twenty days from the day the criminal charge was entered into a register of criminal charges. In practice, the State Attorney issued an investigation order only if the investigation was mandatory.

The investigation order had to be served on the defendant by the State Attorney within eight days from the day it was issued together with the instruction on his rights. The State Attorney was allowed to postpone serving the investigation order for up to a month if serving it would put at risk someone’s life, endanger them physically or the property on a large scale. This pro-vision was not applied. From the moment of the receipt of the investigation order the defend-ant has all the rights of the defence except the right to examine the file, which he is entitled to af-ter he has been questioned. The defendant did not have any legal recourse against the said order and for this reason it was stipulated that issuing the said order did not initiate the criminal pro-ceedings, which were to be conducted before a court of law according to the Constitution of the Republic of Croatia. However, upon the receipt of the order and the instructions on the rights, the defendant was allowed to request from the State Attorney to undertake certain evidentiary actions during the investigation. If the State Attorney granted the said request, he would under-take the said action. If the State Attorney did not grant the defendant’s request, the request was to be submitted to the investigating judge within eight days notifying the defendant thereof. The investigating judge would decide on the said request by an order. Article 226 of the Code stipu-lated that the investigating judge, when deciding on an issue, should render the decision on the suspension or termination of the investigation if he found that there were reasons for its suspen-sion or termination.

2.2.3. The Duration of the Investigation

Pursuant to Article 230 of the Criminal Procedure Code (2008), the State Attorney had to com-plete the investigation within six months and if this was not possible, he had to report to the higher State Attorney what were the reasons for failing to complete the investigation. Paragraph 2 of the said Article stipulated that the higher State Attorney had to undertake measures enabling the completion of the investigation, for instance by assigning more State Attorneys (Deputies) to work on the said case, or assigning the case to another State Attorney etc. In more complex cases, the higher State Attorney could extend the set deadline for another six months, and in particu-larly complex and difficult cases, the Attorney General could extend the set deadline for the com-pletion for another twelve months at the State Attorney’s elaborated request.

2.3. Powers of the Investigating Judge and the Position of the Parties to the Proceedings during the Investigation

2.3.1. Duties and Powers of the Investigating Judge

The investigating judge decides whether to suspend or terminate the investigation, conducts the evidentiary hearing, decides whether the evidence is valid, decides on the protection of the wit-nesses, detaining and remanding in custody, bail and other measures. He also issues a search warrant, an order to undertake special evidentiary actions, authorises the State Attorney’s actions in cases stipulated by the Code, etc. Therefore, his powers are broad and indisputable.

The defendant and the injured party may always address a complaint to a higher State Attorney due to the delays in the proceedings and other irregularities during the investigation. Higher State Attorney shall look into the allegations made in the complaint and if the complainant re-quested it, he would inform him of the undertaken actions. In order to ensure that the eviden-tiary actions are consistently undertaken and that the deadlines are met by the State Attorneys, the Law on State Attorney’s Office would have to define more precisely what omissions by the State Attorney during the investigation constitute disciplinary offences.

2.3.2. The Rights and Duties of the Defendant and the Defence Attorney

The Code stipulates the rights and duties of the defence attorneys in detail. The defendant and his defence attorney have the right to request certain evidentiary actions to be undertaken, ev-identiary hearing to be scheduled, etc. The defendant must be questioned before the investiga-tion is concluded and he must be served the instrucinvestiga-tions on his rights. The defendant should be questioned by the State Attorney or, at his order, by an investigator. As he did not have the right to examine the file before being questioned, this part of the Code was amended prior to the Constitution Court’s decision so that the defendant is now allowed to request to be questioned, which must be done within 30 days and after the set deadline expires, he had to be allowed to ex-amine the file. The first time the defendant is questioned, an audio-visual recording of the ques-tioning must be made.

2.4. The Decision of the Constitutional Court of the Republic of Croatia

As was already mentioned, the State Attorney was able to quickly and efficiently collect the nec-essary data after the Criminal Procedure Code (2008) entered into force, either by ordering the inquiry or even more by undertaking evidentiary actions which were often undertaken without an investigation order if the investigation was not mandatory.

The State Attorney used his powers effectively, especially in complex cases, however, since some attorneys filed a constitutional complaint immediately after the Code was passed, the Constitutional Court of the Republic of Croatia rendered decisions under the following refer-ence numbers: U-I-448/2009, U-I-602/2009, U-I-1710/2009, U-I-18153/2009, U-I-5813/2010, U-I-2871/2011 of 19 July 2012 rescinding 43 articles in total of the CPC (2008) since they did not

comply with applicable law: Constitution of the Republic of Croatia, European Convention on the Protection of Human Rights and Fundamental Freedoms as well as other local and interna-tional law applicable when assessing constituinterna-tionality.

Immediately after the Decision of the Constitutional Court of the Republic of Croatia was passed, it was partly executed by harmonising the Criminal Procedure Code (2008) with legal opinions held by the Constitutional Court of the Republic of Croatia and amending 17 of the rescinded ar-ticles. The remaining part of the Decision of the Constitutional Court of the Republic of Croatia was executed when the Amendment of December 2013 came into effect since the Constitutional Court of the Republic of Croatia had set 15 December 2013 as the final deadline. Although few-er provisions wfew-ere being rescinded, in ordfew-er to harmonise the remaining part it was necessary to amend a considerable number of the existing provisions so it could be said that after the said Amendment came into effect a new Code was in essence created.

3. The Changes in the Powers of the State Attorney and Prosecutorial Investigation

Outline

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