Transfer of Negative Effects of the Manner in Which

Fundamental Principles are Structured From the Ordinary Form

to Simplified Forms of Proceedings

Under 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, or

one set of principles is exchanged for another — therefore, they are

characterised as relative. At the normative level, the changes of fun-

damental principles are manifested in the course of legislative reforms

as either widening or restricting the scope of application of a particu-

lar fundamental principle, as their new redefinition in the statute, or

even 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 the

ordinary form of criminal proceedings is structured, while their ef-

fect on the manner in which structural elements of the proceedings

are organised and interconnected is particularly prominent when it

comes 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 to

the doctrine, as was done by the 2011 Criminal Procedure Code, has

repercussions on the restructuring of the entire ordinary criminal

proceedings, in particular if it concerns the principle which is

deemed (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 criminal

incident is not established in criminal proceedings, how can the rules

of 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 may

be 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 Court

is released from the duty to prove all the legally relevant facts? It is a

crucial question, from the aspect of both legal theory and policy, but

also an ethical and philosophical issue to which Serbian lawmakers

have not provided an answer. Ultimately, should the State entrust the

parties with the establishment of facts on which the public interest to

punish an offender is based or is it a civilisational approach to rely

on an autonomous, independent, impartial and competent authority


such as the Court?
The fundamental principles of procedure also apply to simplified

forms of criminal procedure, unless their application has been restrict-

ed or abolished by special statutory provisions governing the given

simplified proceedings. The said equally applies to the effect which

legislative changes made to the fundamental principles have on the

simplified 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 of

simplified proceedings in which the given principle is neither limited

nor from which it has been excluded. Therefore, we will point out the

effects of some fundamental principles redefined by the 2011 proce-

dure code. Accusatory Principle — An erroneous statutory definition

of criminal proceedings had forced the lawmakers to omit from the

new Code a provision governing the accusatory principle. Since the

investigation is, according to the lawmakers’ idea, a structural element

of criminal proceedings in the narrow sense of the word and since it is

initiated by the decision of a public prosecutor issued in the form of an

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order (Art. 7, para. 1, item 1 of the 2011 CPC), it was not possible to

keep the previous statutory definition of the accusatory principle, otherwise standard in codes of procedure, which read as follows, “Criminal

proceedings shall be initiated upon the request of an authorised prosecu-

tor.” Instead of looking for a way to eliminate the cause preventing the

accusatory principle from being properly and consistently provided for

in the law, the lawmakers had resorted to a pragmatic, not in the least

inventive intervention — they excluded the definition of the accusatory

principle from the code of procedure. However, this does not imply that

any future criminal procedure will not be established on the accusatory

principle 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 the

rules 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 statutory

definition 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 of

criminal proceedings was properly defined. The statutory definition of

indictment/charges exists as well in the legal systems on which we have

traditionally modelled our criminal procedure law, even our legal sys-

tem as a whole; as well, it also exists in the criminal procedure law of

the country whose solutions have frequently been adopted or para-

phrased by our lawmakers. There is a statutory definition of charges in

the German procedural law, which has been our traditional source of

ideas for the development of our legislation, “The opening of court in-

vestigation shall be conditional upon preferment of charges” (§ 151

StPO). In the legal system of Croatia, the accusatory principle has been

elevated to the level of a constitutional principle (Art. 25, para. 5 of the

RC Constitution) and as such, it has been incorporated in their criminal

procedure code, “Criminal proceedings shall be conducted on the re-

quest of an authorised prosecutor” (Art. 2 of the Croatian CPC). Such a

solution can also be found in the Montenegrin criminal procedure law,

with the exception that the very definition specifies that the accusatory

principle also needs to be applied in the course of criminal proceedings,

“Criminal proceedings shall be initiated and conducted pursuant to an

indictment issued by an authorised prosecutor” (Art. 18, para. 1 of the

Montenegrin CPC). Instead of making use of the experiences from

comparative law, the lawmakers stayed consistent with and loyal to

their erroneous understanding of criminal procedure even though their

persistence razed many definitions of traditional concepts of criminal

procedure. Instead of establishing preliminary proceedings on the accusatory

principle, whose definition has been left out from the procedure code,

their structure (the stage of investigation, in the first place) involves

some prominent elements of the inquisitorial principle: the investiga-

tion is initiated ex officio even against an unknown perpetrator, and

this also applies to the criminal proceedings in the narrow sense of the

word under the wording of the Code eo ipso; defendants are not enti-

tled to appeal an order to conduct investigation; only prosecutors may

undertake evidentiary actions in the course of an investigation whose

findings may be used as evidence at a main hearing without any statu-

tory preclusions; a public prosecutor decides on defendant’s or his

counsel’s motions to present evidence; the defence is not entitled to

question witnesses or expert witnesses during an investigation so that

their testimony could be used as further evidence at the main hearing;

if an investigation was conducted against an unknown perpetrator, the

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indictment may be confirmed only based on evidence offered by the

public prosecutor, etc.
Principle of Directness — If we look at the history of amendments

made to our criminal procedure law, one may get the impression that

each new conceptual amendment has broadened some more the scope

of departure from the principle of directness (e.g. both new codes of

procedure, the one enacted in 2006 and the one enacted in 2011, in-

cluded amendments which either directly or indirectly assailed the

principle of directness).

The 2011 Code is specific because the application of the said prin-

ciple has been called into question although provisions which depart

from direct presentation of evidence at the main hearing have not been

amended. The problem has arisen on account of the fact that the nature

of investigation has been changed and as opposed to judicial, the in-

vestigation has become essentially prosecutorial, whereas the indirect

presentation of evidence at the main hearing has not been adapted to

that radical change. Provisions which governed the departure from the

principle of direct presentation of evidence at the main hearing were

not altered, so evidence gathered by non-judicial authorities has been

put on a par with evidence whose presentation was ordered by the

Court. The fact that the evidence presented by a public prosecutor, the

Court or the police has the same strength as evidence whose obtaining

was requested by the Court is evident from the provisions on “inspec-

tion of contents of the transcripts of testimonies” under which records

of evidence presented during an investigation may be used at the main

hearing and may constitute grounds for a judgment, irrespective of

which authority presented each particular piece of evidence (Art. 406

of the 2011 CPC). Under the new statutory regulations, evidence presented by non-judicial authorities in the course of an investigation is

not different in any respect from evidence presented by the same au-

thorities during preliminary investigation. (From such perspective, it

would be the same and even simpler if evidence gathered by non-

judicial authorities in preliminary investigation were validated in the

current procedure code instead of doing away with judicial investiga-

tion.) The fact that in certain cases an obligation is imposed on public

prosecutors to obtain authorisation from a preliminary proceedings

judge prior to questioning witnesses and expert witnesses (when they

are questioned without a defendant being present there, either if he has

not 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 to

be obtained by the Court and evidence gathered by non-judicial au-

thorities in the course of an investigation has the same legal force, it is

almost generally accepted that the presentation of evidence whose ob-

taining was ordered by the Court following strict formal rules may

provide 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 an

exception 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 absolutely

excluded at the main hearing. Such a rigid concept had been originally

advocated in the radical reform of the Italian criminal procedure, when

a pure version of the adversarial model was introduced, but it was lat-

er abandoned primarily due to the so-called mafia crimes. It occurs

more 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 to

the main hearing established on the adversarial principle, it can be in-

ferred that one party, namely the public prosecutor is favoured in our

new criminal procedure by way of provisions governing the departure

from 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 evidence

presented when the suspect was not present there) into the proceedings

by 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 far

from 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 by

some express legislative norm but it follows from the very manner in

which proceedings are structured. It can only exist in those models of

criminal proceedings which are structured to a lesser or greater extent

as 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 the

authorities in charge of the proceedings to duly notify the parties of

the time at which procedural actions will be undertaken and about the

subject 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 preliminary

proceedings, 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 presentation

of evidence at the main hearing obliterates both the directness and ad-

versariness of proceedings to the prejudice of the quality of judicial

decisions and it is also judged negatively if viewed from the aspect of

the protection of human rights.

In that respect, and from the point of view of advesariness, the

biggest question mark hangs over the compatibility with the Consti-

tution and European Convention of those provisions from the latest

Serbian 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 cases

which involve testimonies of witnesses and expert witnesses or the

questioning 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 of

arms” and put at a disadvantage in the proceedings. Statements given

during some of the earlier stages in the proceedings may be used as

evidence, which is not inconsistent with Article 6, para. 1 and 3(d) of

the European Convention on condition that a defendant is provided

with an adequate and proper opportunity to challenge and question a

witness 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 investigation

are linked to the departures from the principle of directness at the

main hearing, they do not satisfy the legal standard on which the

principle 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 a

number of reasons. During an investigation, evidentiary actions are

exclusively undertaken by a public prosecutor, whereas a defendant

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and his defence attorney may only be present when they are undertak-

en, but neither this right is guaranteed without restrictions (Art. 300 of

the 2011 CPC). Not only witnesses for the prosecution, but also wit-

nesses for the defence (this applies to expert witnesses as well), are

questioned by the public prosecutor during an investigation because

the 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! A

defendant and his defence attorney are only entitled to propose to a

public prosecutor to put a specific question to a prosecution witness, a

defence 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 questions

be put directly). Defendants are not entitled to cross examine prosecu-

tion witnesses in the course of an investigation since those rules apply

only to the main hearing. How can we even mention equality of any

kind 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 course

of 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 does

not 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 used

at the main hearing without any restrictions, a defendant is not afford-

ed an opportunity to contest them and question witnesses against him

under the same conditions or to directly examine his witnesses (it is

sufficient that either a witness or an expert witness does not appear at

the main hearing, i.e. that they “cannot be reached” or that they refuse

to 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 the

main hearing as a factual basses for a judgment without examining

them by applying the principles of orality, directness, and adversari-

ness. In cases when summonses “are not served on” defence attorneys

and defendants “in accordance with the provisions” of the code of

procedure and when investigations are conducted against unknown

perpetrators, a public prosecutor is authorised to question witnesses or

expert 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 prior

authorisation by the Court may not enhance the credibility of evidence

given 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 for

giving judicial authorisation have not been laid down, they are left to

the discretion of a judge, so a question arises as to the ratio of such a

provision. Given the fact that all the power in the investigation is on

the side of a public prosecutor, it cannot be expected from a prelimi-

nary proceedings judge to prevent investigation against an unknown

perpetrator 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-

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