PRAVNI ZAPISI • Year II • No. 2 • pp. 467-514
SERBIAN CODE OF CRIMINAL PROCEDURE OF 26 SEPTEMBER 2011: NEW INSTITUTIONS AND SOLUTIONS
Dr Momčilo Grubač, prof. Emeritus
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, No. 2/2011, pp. 467-514
Original Scientific Article
Code of Criminal Procedure; proving; prosecutorial investigation; accusation; main trial; legal remedies; special procedures
In his article the author has presented legal institutions and solutions as specified under the new Serbian Code of Criminal Procedure enacted on 26 September 2011. This Code will come into force on 15 January of 2012 (in proceedings against organized crime and war crimes) or on 15 January 2013 (in all other cases). This article points out flaws in some of the provisions of the Code; which mostly is the sign of haste in passing the Code. These flaws, in the opinion of the author, are of different importance and different influence to the implementation of the Code of Criminal Procedure. Some of these flaws apply to form, style and the language and their outward expression, while others are of substance. These flaws should not be ignored and they need to be remedied regardless of their importance, even those that do not directly affect the application of the Code; one should keep in mind that generations of lawyers studying law will learn from the style and language of the law statutes, which will predetermine the writing style and language of its readers and interpreters. The substantive weaknesses of the new Code of Criminal Procedure are of different importance. Some of these flaws will not create a major turmoil in the case law that has its ways of overcoming even larger obstacles within the laws. Courts and judges highly educated in law and in general, are capable of changing these legislative weaknesses for the better; but the opposite is also true, when well contemplated laws do not get adequate application by less educated and less knowledgeable jurists. Therefore, it is risky to rely on the qualifications of legal profession in applying the laws and it could jeopardize public confidence in our judicial system. In the conclusion the author suggests that the time before this Code becomes effective should be used to remedy the incorrect or imprecise provisions of the Code, to undertake organizational reforms of the office of public prosecutor and the police in order to have them staffed efficiently and adequately for the new type of investigations, and to arm the jurists with sufficient skill and knowledge for the application of many new procedural institutions taken from the Anglo-American legal system. The enactment of laws and amendments to the enacted laws, before the effective date, is not unusual in our legal system, although that is not something that the legislator should be proud of. The author believes that while waiting for the implementation of the new Code of Criminal Procedure the creation of judicial police and criminal investigation departments is of pivotal importance. Educating this cadre how to implement the new Code of Criminal Procedure is of utmost importance and requires special attention. This new law is based on the US Criminal Procedure Code that our lawyers have very little knowledge of. Legal views of our lawyers on the US criminal procedure, based on books on that subject or a ten day business trip to the US, are not sufficient; the same is true for lectures held by US lawyers on witnesses cross-examination since their system has jury trials and the goal to win the case seems more important than search for the truth.