Файл: Transfer of Negative Effects of the Manner in Which Fundamental Principles are Structured From the Ordinary Form.docx
ВУЗ: Не указан
Категория: Не указан
Дисциплина: Не указана
Добавлен: 25.10.2023
Просмотров: 282
Скачиваний: 1
ВНИМАНИЕ! Если данный файл нарушает Ваши авторские права, то обязательно сообщите нам.
Transfer of Negative Effects of the Manner in WhichFundamental Principles are Structured From the Ordinary Formto Simplified Forms of ProceedingsUnder the influence of various factors, both legal and non-legal,principles are subject to change, their scope and subject matter chang-es, as well as reasons which justify them and purposes they serve, orone set of principles is exchanged for another — therefore, they arecharacterised as relative. At the normative level, the changes of fun-damental principles are manifested in the course of legislative reformsas either widening or restricting the scope of application of a particu-lar fundamental principle, as their new redefinition in the statute, oreven the abolishment of a particular principle.Each of the said changes in the fundamental principles has an im-pact, either to a lesser or greater extent, on the manner in which theordinary form of criminal proceedings is structured, while their ef-fect on the manner in which structural elements of the proceedingsare organised and interconnected is particularly prominent when itcomes to limiting and setting aside one of the fundamental princi-ples. Abolition of a principle which is applied in the ordinary form of proceedings and classified as a fundamental principle according tothe doctrine, as was done by the 2011 Criminal Procedure Code, hasrepercussions on the restructuring of the entire ordinary criminalproceedings, in particular if it concerns the principle which isdeemed (or used to be deemed) to dominate all the other principles,such as the principle of the establishment of truth. Numerous ques-tions have arisen due to the abolishment of the principle of estab-lishment of truth from criminal proceedings: If truth about a criminalincident is not established in criminal proceedings, how can the rulesof substantive criminal law be correctly applied to any given case,which is a generally accepted purpose of criminal proceedings?Since in a country in which the “rule of law” is upheld, no one maybe punished unless it has been proven with certainty that he is sub-ject to the State’s right to sanction, on which will the State’s ius pu-niendi be based once the principle of truth is abolished and the Courtis released from the duty to prove all the legally relevant facts? It is acrucial question, from the aspect of both legal theory and policy, butalso an ethical and philosophical issue to which Serbian lawmakershave not provided an answer. Ultimately, should the State entrust theparties with the establishment of facts on which the public interest topunish an offender is based or is it a civilisational approach to relyon an autonomous, independent, impartial and competent authoritysuch as the Court?The fundamental principles of procedure also apply to simplifiedforms of criminal procedure, unless their application has been restrict-ed or abolished by special statutory provisions governing the givensimplified proceedings. The said equally applies to the effect whichlegislative changes made to the fundamental principles have on thesimplified forms of procedure, even when it involves negative effects.To put it differently, negative effects which the reform of a fundamen-tal principle has on the manner in which the ordinary criminal pro-ceedings are structured and used are also transferred to the forms ofsimplified proceedings in which the given principle is neither limitednor from which it has been excluded. Therefore, we will point out theeffects of some fundamental principles redefined by the 2011 proce-dure code. Accusatory Principle — An erroneous statutory definitionof criminal proceedings had forced the lawmakers to omit from thenew Code a provision governing the accusatory principle. Since theinvestigation is, according to the lawmakers’ idea, a structural elementof criminal proceedings in the narrow sense of the word and since it isinitiated by the decision of a public prosecutor issued in the form of an
order (Art. 7, para. 1, item 1 of the 2011 CPC), it was not possible tokeep the previous statutory definition of the accusatory principle, otherwise standard in codes of procedure, which read as follows, “Criminalproceedings shall be initiated upon the request of an authorised prosecu-tor.” Instead of looking for a way to eliminate the cause preventing theaccusatory principle from being properly and consistently provided forin the law, the lawmakers had resorted to a pragmatic, not in the leastinventive intervention — they excluded the definition of the accusatoryprinciple from the code of procedure. However, this does not imply thatany future criminal procedure will not be established on the accusatoryprinciple because it follows indirectly from other provisions, for in-stance those governing the authorised prosecutor, the subject of a judg-ment, judgments dismissing the charges, substantial violations of therules of criminal procedure as grounds for contesting judgments, etc.(Art. 5, para. 1, Art. 420, para. 1 and Art. 422, para. 1, item 1, Art. 438,para. 1, item 7 of the 2011 CPC).The lawmakers would have had an opportunity to see that a statutorydefinition of the accusatory principle was possible even when the inves-tigation was defined as prosecutorial only if they had familiarised them-selves with the experiences of comparative law in which the notion ofcriminal proceedings was properly defined. The statutory definition ofindictment/charges exists as well in the legal systems on which we havetraditionally modelled our criminal procedure law, even our legal sys-tem as a whole; as well, it also exists in the criminal procedure law ofthe country whose solutions have frequently been adopted or para-phrased by our lawmakers. There is a statutory definition of charges inthe German procedural law, which has been our traditional source ofideas for the development of our legislation, “The opening of court in-vestigation shall be conditional upon preferment of charges” (§ 151StPO). In the legal system of Croatia, the accusatory principle has beenelevated to the level of a constitutional principle (Art. 25, para. 5 of theRC Constitution) and as such, it has been incorporated in their criminalprocedure code, “Criminal proceedings shall be conducted on the re-quest of an authorised prosecutor” (Art. 2 of the Croatian CPC). Such asolution can also be found in the Montenegrin criminal procedure law,with the exception that the very definition specifies that the accusatoryprinciple also needs to be applied in the course of criminal proceedings,“Criminal proceedings shall be initiated and conducted pursuant to anindictment issued by an authorised prosecutor” (Art. 18, para. 1 of theMontenegrin CPC). Instead of making use of the experiences fromcomparative law, the lawmakers stayed consistent with and loyal totheir erroneous understanding of criminal procedure even though theirpersistence razed many definitions of traditional concepts of criminalprocedure. Instead of establishing preliminary proceedings on the accusatoryprinciple, whose definition has been left out from the procedure code,their structure (the stage of investigation, in the first place) involvessome prominent elements of the inquisitorial principle: the investiga-tion is initiated ex officio even against an unknown perpetrator, andthis also applies to the criminal proceedings in the narrow sense of theword under the wording of the Code eo ipso; defendants are not enti-tled to appeal an order to conduct investigation; only prosecutors mayundertake evidentiary actions in the course of an investigation whosefindings may be used as evidence at a main hearing without any statu-tory preclusions; a public prosecutor decides on defendant’s or hiscounsel’s motions to present evidence; the defence is not entitled toquestion witnesses or expert witnesses during an investigation so thattheir testimony could be used as further evidence at the main hearing;if an investigation was conducted against an unknown perpetrator, the
indictment may be confirmed only based on evidence offered by thepublic prosecutor, etc.Principle of Directness — If we look at the history of amendmentsmade to our criminal procedure law, one may get the impression thateach new conceptual amendment has broadened some more the scopeof departure from the principle of directness (e.g. both new codes ofprocedure, the one enacted in 2006 and the one enacted in 2011, in-cluded amendments which either directly or indirectly assailed theprinciple of directness).The 2011 Code is specific because the application of the said prin-ciple has been called into question although provisions which departfrom direct presentation of evidence at the main hearing have not beenamended. The problem has arisen on account of the fact that the natureof investigation has been changed and as opposed to judicial, the in-vestigation has become essentially prosecutorial, whereas the indirectpresentation of evidence at the main hearing has not been adapted tothat radical change. Provisions which governed the departure from theprinciple of direct presentation of evidence at the main hearing werenot altered, so evidence gathered by non-judicial authorities has beenput on a par with evidence whose presentation was ordered by theCourt. The fact that the evidence presented by a public prosecutor, theCourt or the police has the same strength as evidence whose obtainingwas requested by the Court is evident from the provisions on “inspec-tion of contents of the transcripts of testimonies” under which recordsof evidence presented during an investigation may be used at the mainhearing and may constitute grounds for a judgment, irrespective ofwhich authority presented each particular piece of evidence (Art. 406of the 2011 CPC). Under the new statutory regulations, evidence presented by non-judicial authorities in the course of an investigation isnot different in any respect from evidence presented by the same au-thorities during preliminary investigation. (From such perspective, itwould be the same and even simpler if evidence gathered by non-judicial authorities in preliminary investigation were validated in thecurrent procedure code instead of doing away with judicial investiga-tion.) The fact that in certain cases an obligation is imposed on publicprosecutors to obtain authorisation from a preliminary proceedingsjudge prior to questioning witnesses and expert witnesses (when theyare questioned without a defendant being present there, either if he hasnot been summoned or it is a case of an investigation against an un-known perpetrator), does not increase the probative force of prosecu-tor’s evidentiary actions nor a statement thus obtained may be validat-ed by a prior judicial decision.As opposed to the offered conception that both evidence ordered tobe obtained by the Court and evidence gathered by non-judicial au-thorities in the course of an investigation has the same legal force, it isalmost generally accepted that the presentation of evidence whose ob-taining was ordered by the Court following strict formal rules mayprovide a factual basis for a judgment even when it is presented at pre-trial stages and that its probative strength is superior to that of evi-dence gathered by non-judicial authorities. (Physical evidence is anexception to this rule as well as evidence obtained through the so-called special evidentiary actions taken pursuant to a judicial deci-sion.) However, this does not imply that the prosecutorial investiga-tion will result in evidence from the investigation being absolutelyexcluded at the main hearing. Such a rigid concept had been originallyadvocated in the radical reform of the Italian criminal procedure, whena pure version of the adversarial model was introduced, but it was lat-er abandoned primarily due to the so-called mafia crimes. It occursmore frequently in comparative law that evidence from the prosecuto-rial investigation may be exceptionally used as a factual basis for ren-dering a judgment, but only under strict conditions, such as in German
criminal procedure.When the new conception of the probative force of evidence pre-sented by non-judicial authorities during an investigation is linked tothe main hearing established on the adversarial principle, it can be in-ferred that one party, namely the public prosecutor is favoured in ournew criminal procedure by way of provisions governing the departurefrom the principle of directness, which makes such a conception dubi-ous. Whereas a defendant must prove each fact which goes in his fa-vour at the main hearing by way of application of the principle of di-rectness and the adversarial principle, a public prosecutor may indirectly introduce evidence he has presented himself (even evidencepresented when the suspect was not present there) into the proceedingsby making use of the records of presented evidence and it may consti-tute grounds for rendering a judgment. Proceedings in which adjudica-tion is based on evidence gathered by non-judicial authorities are farfrom fair since defendants do not participate in the presentation of ev-idence and since the equality of arms has not been ensured.Adversarial Principle — The adversarial principle is not defined bysome express legislative norm but it follows from the very manner inwhich proceedings are structured. It can only exist in those models ofcriminal proceedings which are structured to a lesser or greater extentas a dispute between equal parties before a court of law. In legislation,adversarial proceedings are usually provided for when physical pres-ence of the parties is guaranteed, when an obligation is imposed on theauthorities in charge of the proceedings to duly notify the parties ofthe time at which procedural actions will be undertaken and about thesubject matter of the proceedings, as well as of the rules which pro-vide for giving statements and making motions.Limitations of the adversarial principle are typical of preliminaryproceedings, but they may occur at a main hearing as well. Some de-partures from the principle of directness are at the same time depar-tures from the adversarial principle. For instance, indirect presentationof evidence at the main hearing obliterates both the directness and ad-versariness of proceedings to the prejudice of the quality of judicialdecisions and it is also judged negatively if viewed from the aspect ofthe protection of human rights.In that respect, and from the point of view of advesariness, thebiggest question mark hangs over the compatibility with the Consti-tution and European Convention of those provisions from the latestSerbian code which stipulate equal legal strength of evidence direct-ly presented at the main hearing and circumstantial evidence pro-duced at one of the previous stages in the preliminary proceedings,or even in the course of preliminary investigation. In such caseswhich involve testimonies of witnesses and expert witnesses or thequestioning of an expert advisor, defendants are not afforded an op-portunity to put questions at the main hearing as in the case of adver-sarial hearings and they are thus denied the right to “equality ofarms” and put at a disadvantage in the proceedings. Statements givenduring some of the earlier stages in the proceedings may be used asevidence, which is not inconsistent with Article 6, para. 1 and 3(d) ofthe European Convention on condition that a defendant is providedwith an adequate and proper opportunity to challenge and question awitness against him, either at the time the witness makes his statement or at some later stage in the proceedings. When legal provi-sions governing evidentiary actions in the course of an investigationare linked to the departures from the principle of directness at themain hearing, they do not satisfy the legal standard on which theprinciple of fair trial is based and which is known as the concept of“equality of arms”.In this case, the principle of “equality of arms” does not exist for anumber of reasons. During an investigation, evidentiary actions areexclusively undertaken by a public prosecutor, whereas a defendant
and his defence attorney may only be present when they are undertak-en, but neither this right is guaranteed without restrictions (Art. 300 ofthe 2011 CPC). Not only witnesses for the prosecution, but also wit-nesses for the defence (this applies to expert witnesses as well), arequestioned by the public prosecutor during an investigation becausethe rules on direct examination, cross-examination and redirect exam-ination which are laid down for the main hearing do not apply to in-vestigation. It is not difficult to infer the direction in which examina-tion will move when a witness is questioned by an opposing party! Adefendant and his defence attorney are only entitled to propose to apublic prosecutor to put a specific question to a prosecution witness, adefence witness or expert witness for the purpose of clarifying cir-cumstances of the case, which the prosecutor may either reject or re-phrase (exceptionally, a public prosecutor may approve that questionsbe put directly). Defendants are not entitled to cross examine prosecu-tion witnesses in the course of an investigation since those rules applyonly to the main hearing. How can we even mention equality of anykind when defendants are not entitled to directly question their wit-nesses or cross-examine prosecution witnesses during an investiga-tion. Rather, it could be asserted that defendant’s and his defence at-torney’s presence during evidentiary actions undertaken in the courseof an investigation is a form of control of public prosecutor’s work,but that it is insufficient to ensure “equality of arms”. In itself, it doesnot run contrary to the concept of a fair trial if its purpose was to en-sure the bringing of an indictment. However, since witnesses’ and ex-pert witnesses’ statements given during an investigation may be usedat the main hearing without any restrictions, a defendant is not afford-ed an opportunity to contest them and question witnesses against himunder the same conditions or to directly examine his witnesses (it issufficient that either a witness or an expert witness does not appear atthe main hearing, i.e. that they “cannot be reached” or that they refuseto testify without legal grounds, for their statements to become a fac-tual basis of a judgment on the motion of the prosecution and by deci-sion of the Court). Equality of arms is directly defeated in cases when a public prosecutor questions witnesses or expert witnesses in defend-ant’s or his counsel’s absence and then their statements are used at themain hearing as a factual basses for a judgment without examiningthem by applying the principles of orality, directness, and adversari-ness. In cases when summonses “are not served on” defence attorneysand defendants “in accordance with the provisions” of the code ofprocedure and when investigations are conducted against unknownperpetrators, a public prosecutor is authorised to question witnesses orexpert witnesses in the absence of the defence attorney and the oppos-ing party, for which he needs to obtain a prior authorisation of a pre-liminary proceedings judge (Art. 300, para. 6 of the 2011 CPC). Still,it is completely clear that without a special argumentation, any priorauthorisation by the Court may not enhance the credibility of evidencegiven by a witness or an expert witness who are questioned by a pub-lic prosecutor in the absence of a defence attorney and a defendant,nor may it have any bearing on the “equality of arms”. Grounds forgiving judicial authorisation have not been laid down, they are left tothe discretion of a judge, so a question arises as to the ratio of such aprovision. Given the fact that all the power in the investigation is onthe side of a public prosecutor, it cannot be expected from a prelimi-nary proceedings judge to prevent investigation against an unknownperpetrator by not granting his authorisation and as a legislative solu-tion, it is dubious in itself.Departures from the principle of directness have therefore re-mained the same as if the judicial investigation had not been substitut-
order (Art. 7, para. 1, item 1 of the 2011 CPC), it was not possible tokeep the previous statutory definition of the accusatory principle, otherwise standard in codes of procedure, which read as follows, “Criminalproceedings shall be initiated upon the request of an authorised prosecu-tor.” Instead of looking for a way to eliminate the cause preventing theaccusatory principle from being properly and consistently provided forin the law, the lawmakers had resorted to a pragmatic, not in the leastinventive intervention — they excluded the definition of the accusatoryprinciple from the code of procedure. However, this does not imply thatany future criminal procedure will not be established on the accusatoryprinciple because it follows indirectly from other provisions, for in-stance those governing the authorised prosecutor, the subject of a judg-ment, judgments dismissing the charges, substantial violations of therules of criminal procedure as grounds for contesting judgments, etc.(Art. 5, para. 1, Art. 420, para. 1 and Art. 422, para. 1, item 1, Art. 438,para. 1, item 7 of the 2011 CPC).The lawmakers would have had an opportunity to see that a statutorydefinition of the accusatory principle was possible even when the inves-tigation was defined as prosecutorial only if they had familiarised them-selves with the experiences of comparative law in which the notion ofcriminal proceedings was properly defined. The statutory definition ofindictment/charges exists as well in the legal systems on which we havetraditionally modelled our criminal procedure law, even our legal sys-tem as a whole; as well, it also exists in the criminal procedure law ofthe country whose solutions have frequently been adopted or para-phrased by our lawmakers. There is a statutory definition of charges inthe German procedural law, which has been our traditional source ofideas for the development of our legislation, “The opening of court in-vestigation shall be conditional upon preferment of charges” (§ 151StPO). In the legal system of Croatia, the accusatory principle has beenelevated to the level of a constitutional principle (Art. 25, para. 5 of theRC Constitution) and as such, it has been incorporated in their criminalprocedure code, “Criminal proceedings shall be conducted on the re-quest of an authorised prosecutor” (Art. 2 of the Croatian CPC). Such asolution can also be found in the Montenegrin criminal procedure law,with the exception that the very definition specifies that the accusatoryprinciple also needs to be applied in the course of criminal proceedings,“Criminal proceedings shall be initiated and conducted pursuant to anindictment issued by an authorised prosecutor” (Art. 18, para. 1 of theMontenegrin CPC). Instead of making use of the experiences fromcomparative law, the lawmakers stayed consistent with and loyal totheir erroneous understanding of criminal procedure even though theirpersistence razed many definitions of traditional concepts of criminalprocedure. Instead of establishing preliminary proceedings on the accusatoryprinciple, whose definition has been left out from the procedure code,their structure (the stage of investigation, in the first place) involvessome prominent elements of the inquisitorial principle: the investiga-tion is initiated ex officio even against an unknown perpetrator, andthis also applies to the criminal proceedings in the narrow sense of theword under the wording of the Code eo ipso; defendants are not enti-tled to appeal an order to conduct investigation; only prosecutors mayundertake evidentiary actions in the course of an investigation whosefindings may be used as evidence at a main hearing without any statu-tory preclusions; a public prosecutor decides on defendant’s or hiscounsel’s motions to present evidence; the defence is not entitled toquestion witnesses or expert witnesses during an investigation so thattheir testimony could be used as further evidence at the main hearing;if an investigation was conducted against an unknown perpetrator, the
indictment may be confirmed only based on evidence offered by thepublic prosecutor, etc.Principle of Directness — If we look at the history of amendmentsmade to our criminal procedure law, one may get the impression thateach new conceptual amendment has broadened some more the scopeof departure from the principle of directness (e.g. both new codes ofprocedure, the one enacted in 2006 and the one enacted in 2011, in-cluded amendments which either directly or indirectly assailed theprinciple of directness).The 2011 Code is specific because the application of the said prin-ciple has been called into question although provisions which departfrom direct presentation of evidence at the main hearing have not beenamended. The problem has arisen on account of the fact that the natureof investigation has been changed and as opposed to judicial, the in-vestigation has become essentially prosecutorial, whereas the indirectpresentation of evidence at the main hearing has not been adapted tothat radical change. Provisions which governed the departure from theprinciple of direct presentation of evidence at the main hearing werenot altered, so evidence gathered by non-judicial authorities has beenput on a par with evidence whose presentation was ordered by theCourt. The fact that the evidence presented by a public prosecutor, theCourt or the police has the same strength as evidence whose obtainingwas requested by the Court is evident from the provisions on “inspec-tion of contents of the transcripts of testimonies” under which recordsof evidence presented during an investigation may be used at the mainhearing and may constitute grounds for a judgment, irrespective ofwhich authority presented each particular piece of evidence (Art. 406of the 2011 CPC). Under the new statutory regulations, evidence presented by non-judicial authorities in the course of an investigation isnot different in any respect from evidence presented by the same au-thorities during preliminary investigation. (From such perspective, itwould be the same and even simpler if evidence gathered by non-judicial authorities in preliminary investigation were validated in thecurrent procedure code instead of doing away with judicial investiga-tion.) The fact that in certain cases an obligation is imposed on publicprosecutors to obtain authorisation from a preliminary proceedingsjudge prior to questioning witnesses and expert witnesses (when theyare questioned without a defendant being present there, either if he hasnot been summoned or it is a case of an investigation against an un-known perpetrator), does not increase the probative force of prosecu-tor’s evidentiary actions nor a statement thus obtained may be validat-ed by a prior judicial decision.As opposed to the offered conception that both evidence ordered tobe obtained by the Court and evidence gathered by non-judicial au-thorities in the course of an investigation has the same legal force, it isalmost generally accepted that the presentation of evidence whose ob-taining was ordered by the Court following strict formal rules mayprovide a factual basis for a judgment even when it is presented at pre-trial stages and that its probative strength is superior to that of evi-dence gathered by non-judicial authorities. (Physical evidence is anexception to this rule as well as evidence obtained through the so-called special evidentiary actions taken pursuant to a judicial deci-sion.) However, this does not imply that the prosecutorial investiga-tion will result in evidence from the investigation being absolutelyexcluded at the main hearing. Such a rigid concept had been originallyadvocated in the radical reform of the Italian criminal procedure, whena pure version of the adversarial model was introduced, but it was lat-er abandoned primarily due to the so-called mafia crimes. It occursmore frequently in comparative law that evidence from the prosecuto-rial investigation may be exceptionally used as a factual basis for ren-dering a judgment, but only under strict conditions, such as in German
criminal procedure.When the new conception of the probative force of evidence pre-sented by non-judicial authorities during an investigation is linked tothe main hearing established on the adversarial principle, it can be in-ferred that one party, namely the public prosecutor is favoured in ournew criminal procedure by way of provisions governing the departurefrom the principle of directness, which makes such a conception dubi-ous. Whereas a defendant must prove each fact which goes in his fa-vour at the main hearing by way of application of the principle of di-rectness and the adversarial principle, a public prosecutor may indirectly introduce evidence he has presented himself (even evidencepresented when the suspect was not present there) into the proceedingsby making use of the records of presented evidence and it may consti-tute grounds for rendering a judgment. Proceedings in which adjudica-tion is based on evidence gathered by non-judicial authorities are farfrom fair since defendants do not participate in the presentation of ev-idence and since the equality of arms has not been ensured.Adversarial Principle — The adversarial principle is not defined bysome express legislative norm but it follows from the very manner inwhich proceedings are structured. It can only exist in those models ofcriminal proceedings which are structured to a lesser or greater extentas a dispute between equal parties before a court of law. In legislation,adversarial proceedings are usually provided for when physical pres-ence of the parties is guaranteed, when an obligation is imposed on theauthorities in charge of the proceedings to duly notify the parties ofthe time at which procedural actions will be undertaken and about thesubject matter of the proceedings, as well as of the rules which pro-vide for giving statements and making motions.Limitations of the adversarial principle are typical of preliminaryproceedings, but they may occur at a main hearing as well. Some de-partures from the principle of directness are at the same time depar-tures from the adversarial principle. For instance, indirect presentationof evidence at the main hearing obliterates both the directness and ad-versariness of proceedings to the prejudice of the quality of judicialdecisions and it is also judged negatively if viewed from the aspect ofthe protection of human rights.In that respect, and from the point of view of advesariness, thebiggest question mark hangs over the compatibility with the Consti-tution and European Convention of those provisions from the latestSerbian code which stipulate equal legal strength of evidence direct-ly presented at the main hearing and circumstantial evidence pro-duced at one of the previous stages in the preliminary proceedings,or even in the course of preliminary investigation. In such caseswhich involve testimonies of witnesses and expert witnesses or thequestioning of an expert advisor, defendants are not afforded an op-portunity to put questions at the main hearing as in the case of adver-sarial hearings and they are thus denied the right to “equality ofarms” and put at a disadvantage in the proceedings. Statements givenduring some of the earlier stages in the proceedings may be used asevidence, which is not inconsistent with Article 6, para. 1 and 3(d) ofthe European Convention on condition that a defendant is providedwith an adequate and proper opportunity to challenge and question awitness against him, either at the time the witness makes his statement or at some later stage in the proceedings. When legal provi-sions governing evidentiary actions in the course of an investigationare linked to the departures from the principle of directness at themain hearing, they do not satisfy the legal standard on which theprinciple of fair trial is based and which is known as the concept of“equality of arms”.In this case, the principle of “equality of arms” does not exist for anumber of reasons. During an investigation, evidentiary actions areexclusively undertaken by a public prosecutor, whereas a defendant
and his defence attorney may only be present when they are undertak-en, but neither this right is guaranteed without restrictions (Art. 300 ofthe 2011 CPC). Not only witnesses for the prosecution, but also wit-nesses for the defence (this applies to expert witnesses as well), arequestioned by the public prosecutor during an investigation becausethe rules on direct examination, cross-examination and redirect exam-ination which are laid down for the main hearing do not apply to in-vestigation. It is not difficult to infer the direction in which examina-tion will move when a witness is questioned by an opposing party! Adefendant and his defence attorney are only entitled to propose to apublic prosecutor to put a specific question to a prosecution witness, adefence witness or expert witness for the purpose of clarifying cir-cumstances of the case, which the prosecutor may either reject or re-phrase (exceptionally, a public prosecutor may approve that questionsbe put directly). Defendants are not entitled to cross examine prosecu-tion witnesses in the course of an investigation since those rules applyonly to the main hearing. How can we even mention equality of anykind when defendants are not entitled to directly question their wit-nesses or cross-examine prosecution witnesses during an investiga-tion. Rather, it could be asserted that defendant’s and his defence at-torney’s presence during evidentiary actions undertaken in the courseof an investigation is a form of control of public prosecutor’s work,but that it is insufficient to ensure “equality of arms”. In itself, it doesnot run contrary to the concept of a fair trial if its purpose was to en-sure the bringing of an indictment. However, since witnesses’ and ex-pert witnesses’ statements given during an investigation may be usedat the main hearing without any restrictions, a defendant is not afford-ed an opportunity to contest them and question witnesses against himunder the same conditions or to directly examine his witnesses (it issufficient that either a witness or an expert witness does not appear atthe main hearing, i.e. that they “cannot be reached” or that they refuseto testify without legal grounds, for their statements to become a fac-tual basis of a judgment on the motion of the prosecution and by deci-sion of the Court). Equality of arms is directly defeated in cases when a public prosecutor questions witnesses or expert witnesses in defend-ant’s or his counsel’s absence and then their statements are used at themain hearing as a factual basses for a judgment without examiningthem by applying the principles of orality, directness, and adversari-ness. In cases when summonses “are not served on” defence attorneysand defendants “in accordance with the provisions” of the code ofprocedure and when investigations are conducted against unknownperpetrators, a public prosecutor is authorised to question witnesses orexpert witnesses in the absence of the defence attorney and the oppos-ing party, for which he needs to obtain a prior authorisation of a pre-liminary proceedings judge (Art. 300, para. 6 of the 2011 CPC). Still,it is completely clear that without a special argumentation, any priorauthorisation by the Court may not enhance the credibility of evidencegiven by a witness or an expert witness who are questioned by a pub-lic prosecutor in the absence of a defence attorney and a defendant,nor may it have any bearing on the “equality of arms”. Grounds forgiving judicial authorisation have not been laid down, they are left tothe discretion of a judge, so a question arises as to the ratio of such aprovision. Given the fact that all the power in the investigation is onthe side of a public prosecutor, it cannot be expected from a prelimi-nary proceedings judge to prevent investigation against an unknownperpetrator by not granting his authorisation and as a legislative solu-tion, it is dubious in itself.Departures from the principle of directness have therefore re-mained the same as if the judicial investigation had not been substitut-