Statutory Conditions for Initiating Prosecutorial Investigation

The prerequisite for a debate on statutory conditions for initiating investigations is that the in-vestigation is organised as a stage in a formal criminal proceeding. Inin-vestigation is found in the mixed (continental Europe) type of criminal procedure as a formal phase of pre-trial proceed-ings, whereas in the adversarial model, there is no standard investigation at all. The reforms of criminal procedure law carried out in European countries¹³ over the last decades have disproved a potential a priori position that solely judicial investigation can be a phase in the formal crimi-nal proceedings, as discussed above.

In the criminal procedure of Serbia, prosecutorial investigation is defined as a stage in the for-mal criminal proceedings, which follows, as previously mentioned, from the provisions govern-ing the initiation of criminal proceedgovern-ings (Art. 7 of the Serbian Criminal Procedure Code) and the meaning of the notion of proceedings (Art. 2, para. 1, item 14). The law provides for two con-ditions for initiating investigations: 1) grounds for suspicion are laid down as a substantive condi-tion; 2) an order issued by the competent public prosecutor on initiating an investigation has been set as the formal condition.

1) Although there is only one substantive condition, it has been defined in two different ways be-cause the law allows public prosecutors to initiate investigations even against unknown perpetra-tors. In case that a perpetrator is known, the substantive condition is related both to the offence and the perpetrator: there need to exist grounds for suspicion that a specific person has committed a specific criminal offence (Art. 295, para. 1, item 1). When a perpetrator is unknown, the sub-stantive condition is only associated with the criminal offence – a public prosecutor may initiate an investigation provided there are grounds for suspicion that a criminal offence has been com-mitted (Art. 295, para. 1, item 2).

Grounds for suspicion are the lowest standard of being convinced of a crime and its perpetra-tor. Suspicion may not be arbitrary; instead, it must be based on evidentiary material obtained by prosecuting authorities. That means that this lowest degree of suspicion must be grounded in facts that exit in reality and not in unsupported assumptions.

12 Amlius: 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. 715-728.

13 Investigation is defined as a phase in the formal proceedings in the criminal procedure of Montenegro, Croatia, and Serbia.

The general concept and degree of suspicion of an offence and its perpetrator and consequent-ly the grounds for suspicion are chiefconsequent-ly a theoretical issue. Different approaches to the scientific interpretation of those concepts can be found in the theory of criminal procedure, which is why they have numerous definitions.¹⁴ Even though there was no widely accepted theoretical stand-point, the lawmakers have provided a legal definition of grounds for suspicion and thus imposed their own standpoint, quite questionable from the perspective of theory. The statutory defini-tion reads as follows: “’grounds for suspicion’ is a set of facts which indirectly show that a cer-tain person is the perpetrator of a criminal offence” (Art. 2, para. 1, item 17). In addition to be-ing deemed unnecessary, the definition has been met with very harsh criticism combe-ing from the scientific and professional community for several reasons.¹⁵ The main shortcoming of the defini-tion of grounds for suspicion (and reasonable suspicion) is that the assessment of evidence and its classification into direct and indirect have been introduced into the statute. Under the letter of the law, the facts that indirectly point to an offence or its perpetrator, i.e. circumstantial evi-dence, have the value of grounds for suspicion, whereas the facts that directly point thereto, i.e.

evidence, have greater value – the value of reasonable suspicion. In that manner, the legal evalua-tion of evidence, as the one found in the inquisitorial model of criminal procedure,¹⁶ has been in-troduced into the criminal procedure which aspires to be accusatorial as devised by the lawmak-er, even though such an evaluation was surrendered to history a long time ago together with that general model of procedure. It can be inferred from the statutory definitions of the above-men-tioned degrees of suspicion that direct evidence may not provide grounds for suspicion nor may reasonable suspicion (and even degrees higher than it) be founded on a chain of facts – circum-stantial evidence, which is incompatible with the reality of proceedings and judicial discretion based on which judges assess evidence (Art. 16, para. 3) and establish legally relevant facts. As a result of those shortcomings, the statutory definition of grounds for suspicion is not useful when it comes to applying the Code in practice. When establishing each individual degree of suspi-cion in practice of the courts, the totality of available evidentiary material is quite rightly assessed summarily, which implies the evaluation of both circumstantial and direct evidence.

The lowering of bar for factual basis for initiating investigations from reasonable suspicion to grounds for suspicion cannot be easily justified if we bear the established model of investiga-tion in mind, which has led to theoretical and professional criticism of this condiinvestiga-tion for initi-ating investigations. The fact that degrees of suspicion of an offence and its perpetrator needed for pre-investigation and investigative proceedings have been made identical is not only illogi-cal in itself; it is also inconsistent with the very etymology of the concept of proceedings¹⁷ (tri-al) and its essence. Dynamics are at the heart of criminal proceedings – any rational proceedings should facilitate stage after stage, certain progress towards clearing up the degree of probability

14 For a detailed study and analysis of theoretical views of the general concept and degree of suspicion of a criminal offence and its perpetrator, please refer to: dr Đorđe Lazin, In dubio pro reo, Beograd, 1985, pp. 13-27.

15 See: M. Škulić – G. Ilić, Reforma u stilu “Jedan korak napred - dva koraka nazad” /Reform Along the Lines of ‘One Step Forward, Two Steps Back’/, Belgrade, 2012, pp. 83-89; dr S Bejatović, Radna verzija Zakonika o krivičnom postupku Republike Srbije i tužilački model istrage / Draft Version of the Republic of Serbia’s Criminal Procedure Code and Prosecutorial Model of Investigation/, Archive for Legal and Social Sciences, no. 1-2/2010, pp. 98-99.

16 A legal definition of grounds for suspicion can be found in the history of Serbia’s criminal procedure legislation namely, the one that used to be in force at the time the inquisitorial type of criminal procedure was the dominant one, although it was not based only on circumstantial evidence. The following definition is provided under § 118 of the 1865 Criminal Procedure Code of the Principality of Serbia: “Grounds for suspicion shall denote any circumstance which is so closely linked to a specific person and criminal offence that if judged impartially, it could be deemed based on it that it is probable that the same person has committed the offence he is charged with or was involved therein”.

17 Lat. processus = the way and manner in which something comes into existence or develops, course, development, growth.

whether or not a crime has been committed and who its perpetrator is.¹⁸ Nor can such a legisla-tive solution be justified if we bear in mind the nature of pre-investigation and investigalegisla-tive pro-ceedings, their purpose and the character of actions undertaken therein.¹⁹ Apart from that, laying down the same degree of suspicion of an offence and its perpetrator for initiating pre-investiga-tion proceedings (which are informal and do not constitute a stage of criminal proceedings) and investigative proceedings (which are formal and form a phase of criminal proceedings in the nar-row sense of the word under the letter of the law) has created a latent field for arbitrary prosecu-tion instead of condiprosecu-tions for applying the principle of legality. Another shortcoming of the low standard of proof for an offence and its perpetrator is that it complicates the process of imposing detention given the fact that in order to apply this severest measure for ensuring defendant’s pres-ence, there needs to exist a higher degree of suspicion, namely reasonable suspicion.

2) The formal condition for initiating investigations is that a public prosecutor has to issue an or-der to conduct an investigation (Art. 296, para. 1). Mandatory contents of this formal decision by the public prosecutor have also been prescribed. The order must include as follows: suspect’s personal information if his identity is known; particulars of the act from which the elements of a crime can be derived; legal classification of the offence and circumstances which provide grounds for suspicion (Art. 296, para. 3). All these formalities support the legislator’s idea of prosecutorial investigation as a formal stage in the proceedings in the same manner as judicial investigation used to be as well as that it forms a structural element of criminal proceedings in the narrow sense of the word, which is incompatible with its nature.

While it is understandable that a formal decision on initiating investigation against a specif-ic suspect needs to be issued since it allows prosecutors to undertake evidentiary actions²⁰ and suspects to attend those action, the purpose of rendering this formal decision against unknown perpetrators remains unclear. When a public prosecutor launches an investigation against an un-known perpetrator by issuing an order, he is free to take all the evidentiary actions as opposed to the possible perpetrator who is not in a position to be present thereat nor can propose that cer-tain evidentiary actions be undertaken in his favour since he is not aware that an investigation has been initiated against him. The fact that investigations may be instituted against unknown perpetrators, in particular that evidence whose probative force is the same as if it were presented before the court at a main hearing may be presented by a public prosecutor without any partici-pation from the defendant’s side,²¹ puts defendants at such a disadvantage vis-à-vis public pros-ecutors (who are transformed into an “equal” opposing party) at the later stages in the proceed-ings, that such proceedings may not even come close to a fair trial, let alone be referred to as fair.²²

18 Dr Gordan Kalajdžijev, Позначајни концепциски разлики во реформата на истрагата во Хрватска и во Македонија /Main Conceptual Differences in the Reform of Criminal Investigation in Croatia and Macedonia/, Collected Papers of the Zagreb Faculty of Law, Vol. 61, 2/2011, p. 474.

19 Dr Stanko Bejatović, /Radna verzija Zakonika o krivičnom postupku Republike Srbije i tužilački model istrage /Draft Version of the Republic of Serbia’s Criminal Procedure Code and Prosecutorial Model of Investigation/, Archive for Legal and Social Sciences, no. 1-2/2010, p. 99.

20 It follows from a provision contained in Art. 297, para. 1 of the CPC that the issuance of the order to conduct an investigation is a statutory condition for undertaking evidentiary actions in the course thereof since it is required that the order shall be served on a defendant “together with the summons” to attend “the first evidentiary action”.

21 Defendant’s position is not improved in the least despite the public prosecutor’s duty to apply for an approval from the judge for preliminary proceedings prior to taking evidentiary actions such as questioning of witnesses or expert witnesses (Art. 300, para.

6). The fact that the public prosecutor has obtained judicial approval does not create conditions for a defendant to cross-examine prosecution witnesses, expert witnesses, or even witnesses for the defence, while their statements given in the course of the investigation may be used as a factual basis for rendering a judgment without any legal impediments.

22 For more on this topic, see: Vojislav 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. 715-728.

Even though it is not subject to appeal, it is provided that the order to conduct an investigation shall be served on a defendant provided his identity is known (Art. 297, para. 1). The Code does not specify if the order is served immediately upon its issuance, nor has the maximum time lim-it for lim-its service been defined, whereby condlim-itions have been created allowing public prosecu-tors to use manipulation in respect of the point in time at which they will issue a formal order to launch an investigation. Public prosecutor’s duty to serve on the defendant and his defence attor-ney the order and the summons to be present at the time of first evidentiary action, which they are allowed to attend under the law, does not change the state of affairs very much since the pros-ecutor decides which evidentiary action will be taken as well as the order thereof, so he can al-ways leave those actions to be undertaken last. Thus, a suspect is placed in a situation in which he does not learn that there is an investigation against him until its very end,²³ which in effect pre-vents him from raising any defence and he is denied the right to equality of arms. It seems as if the lawmakers formulated a concept of a secret investigation by the public prosecutor by draw-ing their inspiration from the solutions found in the inquisitorial procedure of the Middle Ages.

Directions for making improvements in statutory regulations can be discerned in the critical analysis of statutory conditions for initiating investigations. One direction to be taken would in-clude keeping the lowered degree of proof for the offence and its perpetrator, i.e. investigations would be initiated when there are grounds for suspicion; in terms of its concept, a non-formal investigation would correspond to such a solution, so the formal decision to initiate an investi-gation would have to be abolished. Another possible direction would imply keeping the initia-tion of investigainitia-tions formal, but with two changes made to its concept: a) the degree of factual basis for initiating investigations should be raised to the level of reasonable suspicion and b) the form of the decision to initiate an investigation should be amended in order to allow for its re-view in the second instance and defendant’s right to access to court. In either case, public pros-ecutors have to be divested of their right to present evidence (any possible presentation of evi-dence which may not be delayed must be the prerogative of judges – within the court’s functional jurisdiction).

3) No special conditions have been provided for initiating investigations against unknown per-petrators; there must be grounds for suspicion that a criminal offence has been committed (the substantive condition) and a public prosecutor needs to issue an order for conducting an investi-gation. There are no additional conditions. What this means is that a discretionary power of pub-lic prosecutor has be established whereby he is allowed to decide at his own discretion if he will, in the course of pre-investigation, undertake any search actions with the assistance from the po-lice for the purpose of discovering a potential perpetrator when there are grounds for suspicion that a criminal offence has occurred or he will issue an order for conducting an investigation and then take investigative actions for the same purpose. The primary aim of such an investigation is to collect “evidence necessary for establishing the identity of the perpetrator”; however, that does not prevent the undertaking of any evidentiary action in accordance with the general purpose of the investigation (Art. 295, para. 2). In addition to the lack of logic behind conducting formal proceedings against an unknown perpetrator, the main shortcomings of such an investigation in-clude the fact that evidence presented therein may constitute a factual basis for judicial decisions rendered in the subsequent phases of proceedings and that there are no guarantees that would protect defendants’ rights in the course of and after the investigation – no defence counsels are

23 Dr Snežana Brkić, Krivično procesno pravo II, Novi Sad, 2013, p. 90.

appointed ex officio (which the authority that conducts the proceedings has a duty to do when a defendant is tried in absentia)²⁴ nor are there guarantees that a defendant will be given an op-portunity to cross-examine witnesses and expert witnesses in subsequent phases of the proceed-ings.²⁵ The introduction of the investigation against an unknown perpetrator has been strongly criticized on account of the above-mentioned essential shortcomings.²⁶ Since the prosecutorial investigation is formal and forms a structural element of the general make-up of criminal pro-ceedings, it is rightly believed that it is impermissible to conduct a modern criminal proceeding against an unknown perpetrator.²⁷