PRAVNI ZAPISI • Year V • No. 1 • pp. 217-234
COMMENCEMENT OF CRIMINAL INVESTIGATION ACCORDING TO THE NEW SERBIAN CRIMINAL PROCEDURE CODE
Prof. emeritus dr Grubač Momčilo
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, No. 1/2014, pp. 217-234
Original Scientific Article
investigation; evidentiary actions; public prosecutor; suspect; defendant; grounds for suspicion; hearing of the defendant
In this article the author ascertains that the procedural position of a citizen who finds him/herself in the role of a suspect in the commencement of the newly established prosecutorial investigation is much less favourable in comparison to the position in which he/she would have been in the earlier judicial investigation. The suspect does not have a right to appeal the public prosecutor’s order for commencement of an investigation, which makes the investigation an absolute monopoly of the public prosecutor, without any judicial supervision. The suspect does not enjoy judicial protection from unlawful (arbitrary) initiation of the investigative procedure even though it is undoubtable that the decision on commencement of criminal investigation seriously affects his/her rights and interests. Such a decision can be made when there is a slightest level of suspicion that a person has committed a criminal offence, hence, based on very remote and circumstantial indications, with the novelty being in the possibility to open an investigation towards an unknown perpetrator. The order to commence a criminal investigation is not conditioned with prior hearing of the suspect nor that action is envisaged as mandatory among the first investigative actions, even not as an obligatory investigative action. The provision of the Criminal Procedure Code on the submission of the decision on commencement of an investigation also deserves criticism and reconsideration because the envisaged method of submission limits the right to personal defence of the suspect as well as other rights of defence guaranteed to the suspect by the Serbian Constitution and the European Convention on Human Rights and enables procedural abuses. The author believes that resolution of the mentioned issues relating to commencement of criminal investigation should not depend on the less formal nature and lesser procedural importance of actions undertaken in this phase of criminal procedure, but whether or not they interfere with human rights of those against whom the investigation is undertaken. Finally, the author points out that an investigation will be undertaken in a small number of cases, since it is excluded in summary proceedings, and that it is not mandatory even for the most serious crimes. This bears a danger of the main trial being overburdened with a large number of illfounded indictments.