Public prosecutor as key entity of the criminal procedure legislation reform process of the republic of Serbia

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Public prosecutor as key entity of the criminal procedure legislation reform process of the republic of Serbia

Dragana Cvorovic,

PhD, Assistant professor

Emir Corovic,

PhD, Associate professor

University of Criminal Investigation and Police Studies

Cara Dusana 196, 11000 Belgrade, Serbia

State University in Novi Pazar

Vuka Karadzica bb, 36300 Novi Pazar, Serbia

Purpose

The aim of this paper is to analyze the efficiency of the public prosecutor 's conduct in the reformed criminal procedure legislation of Serbia. Methods: in the analysis of the subject matter in question, in addition to the theoretical and normative method, a statistical method was also used to collect and analyze statistical indicators of the number offiled charges, initiated investigations and filed indictments based on the Report of the Republic Public Prosecutor 's Office in 2016, 2017, 2018 and 2019. Results: the process of reforming the criminal procedure legislation of the Republic of Serbia began with the adoption of the Criminal Procedure Code in 2001, and the latest result of that process is the now valid Criminal Procedure Code from 2011, which has already been amended seven times. The results of the practical application of these amendments are increasing the efficiency of criminal proceedings in the Republic of Serbia as a key goal of the process of reforming its criminal procedure legislation in general, strengthening the capacity of the public prosecutor in detecting and proving criminal acts, but also the need to continue working on reforming criminal procedure legislation of Serbia with the aim of achieving international legal standard. Discussion: the reform of the criminal procedure legislation of the Republic of Serbia, which began in 2001, brought about numerous novelties, primarily in the Criminal Procedure Code as its key representative. The novelties are such that it can be said that the previous concept of criminal procedure, which was based on the classical institutes of the continental legal system, has been almost completely abandoned (such as, for example, judicial investigation). The most important novelties brought by the reform process concern the procedural position of the public prosecutor, which has changed so much that it can be freely said that he has become a key subject of criminal proceedings. This is the case not only due to the fact that through the use of new institutes (the principle of opportunity of criminal prosecution and plea agreements which have not existed before) he can almost independently solve an extremely large percentage of criminal cases (now over 20% of all filed criminal charges annually), but also for the reason that he got other new powers. In a word, his position is now based on key institutes of the Anglo-Saxon legal system, which was not the case before.

Key words: Public Prosecutor; reform; Criminal Procedure Code; investigation; police; evidence collecting procedures; defendant.

Problem statement and its topicality. The process of reforming the criminal procedure legislation of the Republic of Serbia began with the adoption of the Criminal Procedure Code in 2001, and the last result of that process is the now valid Criminal Procedure Code from 2011, which has been amended seven times, which in itself speaks not only about the relevance of this issue, but also about the legislator's efforts to find solutions that serve the two key goals of the reform.

Analysis of recent research and publications. These goals are: Creating a normative basis for achieving the desired degree of efficiency of criminal proceedings without affecting the reduction of freedoms and rights guaranteed by international acts and national legislation of key subjects of criminal proceedings (defendant and victim of crime) and compliance with generally accepted international legal standards in the field of criminal procedure (Bejatovic, 2014). There are numerous novelties brought by the reform process with this goal, and one of the key ones concerns the change of the procedural status of the public prosecutor (Cvorovic, 2015). The best proof of the correctness of such a statement are the new powers of the public prosecutor, already pointed out in Article 43 of the Criminal Procedure Code (hereinafter referred to as: CPC), and then specified in its other provisions. According to this provision, in the exercise of his basic duty and his basic right, which is the prosecution of perpetrators of criminal offenses, the public prosecutor is, for criminal offenses prosecuted ex officio, competent to: manage the preinvestigation procedure; decide not to initiate or postpone criminal prosecution; conduct an investigation; conclude a plea agreement and a testimony agreement. In the continuation of the paper, we will analyze some of the basic features of some of these new powers of the public prosecutor, emphasizing the scope of his work in the realization of the powers entrusted to him.

The purpose. The most common, but not the only way for the public prosecutor to find out about the committed crime is when the criminal charges are filed. In the case of receiving criminal charges, and this also applies to all other ways of informing the public prosecutor about the committed crime, there are multiple possibilities for his conduct, which primarily depends on the quality of the evidence stated in the submitted criminal charges and its possible attachments. So for example, if the public prosecutor cannot assess from the criminal charges whether the allegations of the charges are probable or if the data in the report do not provide sufficient grounds to decide whether to conduct an investigation or if he has otherwise learned that a crime has been committed, the public prosecutor may: collect the necessary data himself; invite citizens to gather information; submit a request to state and other bodies and legal entities to provide him with the necessary information and they all are obliged to act upon the request of the public prosecutor. The further fate of a specific criminal matter depends on the results obtained by undertaking these actions. There are the following options: an investigation, filing direct indictment, motion to indict or rejection of criminal charges based on the use of the principle of opportunity of criminal prosecution or rejection of criminal charges due to lack of the necessary degree of suspicion (reasonable grounds to suspect) of committing a crime prosecuted ex officio or the existence of some circumstances that permanently preclude prosecution (e.g. statute of limitations for prosecution). criminal legislation prosecutor

The best proof of the scope of work imposed by the new powers of the public prosecutor is the statistical indicator of the number of criminal charges filed. This is due to the fact that, as a rule, the initial precondition for activating the public prosecutor in the field of realization of the previously mentioned powers are filed criminal charges. Of course, it cannot be concluded from this that the public prosecutor only acts after filing criminal charges. On the contrary, there is also his obligation to act in all other cases of finding out about the crime (the principle of legality of criminal prosecution, Brkic & Bugarski, 2020), which additionally speaks of his scope of work in the realization of his rights in office. Data from Table No.1 show that over 200,000 criminal charges are filed with the public prosecutor annually against adult suspects (from 210,161 in 2019 to 228,726 in 2016). If we add to this the number of filed criminal charges against minors (from 8885 in 2016 to 10,058 in 2019), then these data become even more convincing. This is especially considering the fact that among juvenile suspects, the only authorized prosecutor is the public prosecutor. There is no private plaintiff here not even in the case of criminal offenses for which criminal prosecution is undertaken on the basis of a private lawsuit of the injured party in cases when adults appear as suspects (Stevanovic & Vujic, 2020: 152).

Table No. 1

Table No. 2

One of the novelties, when it comes to the status position of the public prosecutor, which was brought by the process of reforming the CPC, is granting to the public prosecutor the status of the head of the pre-investigation procedure. The importance of this feature is best illustrated by the fact that the pre-investigation procedure can take place both before the filing of criminal charges and after filing it. It takes place in all those cases when it is necessary to obtain and (or) check certain evidence and facts necessary for making a decision on the possible initiation of criminal proceedings. Accordingly, the task of the pre-investigation procedure is to shed light on the criminal event to a degree of suspicion that enables a decision to initiate or not initiate criminal proceedings and depending on this, it ends in two ways (rejection of criminal charges or initiation of criminal proceedings by filing an appropriate indictment, Karovic, 2018: 472). There is a substantial number of powers that the public prosecutor has as the head of the pre-investigation procedure (Skulic, 2019). Among them, t he following are of special importance: he undertakes the necessary actions to prosecute the perpetrators of the crime and may order the police to take certain actions to detect crimes and find the suspect, and the police are obliged to execute the public prosecutor's order and to inform him regularly and timely (Cvorovic & Turanjanin, 2016). Exceptions to this are certain actions that are in the exclusive competence of the public prosecutor. The case is for example with the interrogation of the arrested person or with the decision to detain the suspect for the purpose of interrogation for up to 48 hours. Also, the public prosecutor is authorized to take over from the police the performance of the action that the police independently undertook on the basis of the law, etc. (Banovic, 2018: 337). In a word, the powers of the public prosecutor in the preinvestigation procedure are such that no action can be taken, at least without his supervision and control. These activities of the public prosecutor as the head of the pre-investigation procedure are also evidenced by the data of his conduct in undertaking evidence collecting procedures from Table No. 3. They show not only that the public prosecutor uses all the stated legal options given to him in this procedure, but also that he undertakes an extremely large number of actions himself. Out of a total of 93,025 evidence collecting procedures conducted in 2019, the public prosecutor independently conducted 87,899 of them, and the police carried out 4783 evidence collecting procedures on his order. In addition, as a rule, the public prosecutor always engages the police to collect the necessary information (56,186 requests were submitted for this purpose in 2019).

Table No. 3

Main material. One of the most significant novelties when it comes to the criminal procedure status of the public prosecutor in general, which was brought by the CPC reform process, is the abandonment of the judicial and the transition to the prosecutorial concept of investigation (Beja- tovic, 2016). There are several reasons that influenced the position of the legislator to leave the judicial and accept the prosecutorial concept of investigation, brought about by the 2011 CPC. Among them, the following had a special impact: First, it seems, not without reason, that this creates a normative basis for more efficient criminal proceedings, which is, as already pointed out, one of the key goals of the reform process in general. Secondly, the level of activity of the public prosecutor as the only authorized subject for undertaking criminal prosecution in criminal offenses for which criminal prosecution is undertaken ex officio is increasing, which is as already pointed out, a rule with a very small number of exceptions in the criminal legislation of the Republic of Serbia. Third, there is the cabinet character of the investigating judge as the main subject of the judicial concept of investigation, which resulted in its insufficient degree of efficiency, because the investigating judge mainly relies on the results of actions taken by the police (Ilic & Banovic, 2013). Fourth, by its legal nature, the investigation is not a judicial activity but a police activity, which is in accordance with its goal, which is to collect the material needed to file an indictment by the public prosecutor, etc. (Tintor, 2014). Without citing other arguments that speak in favor of the advantages of prosecutorial over the judicial concept of investigation, which is also the position of the majority of the professional public (Beljanski, 2014), this in no way means that the arguments against it do not exist. But it seems that they are not so persuasive as to deny the justification of such an approach of the legislator in standardizing the concept of investigation (Skulic, 2011). However, despite all this, it is also indisputable that the prosecutorial concept of investigation is not unreservedly in the function expected of it. Numerous issues have been opened with the prosecutorial concept of investigation, whereas the achievement of the goals of the prosecutorial concept of investigation depends on the manner of resolving them (Bejatovic, 2018). Among such issues, the follo wing are of special importance: bodies that should conduct the investigation (should it be only the prosecutor or both the prosecutor and the police?); authorizations of active subjects of investigation,

i. e. to what extent should they be given to individual subjects of investigation in cases when, in addition to the prosecutor, the police also appear in that capacity? Then, how and in what way to protect the freedoms and rights of the accused during the investigation? etc. Only in cases of standardization of the prosecutorial concept of investigation on the principles inherent in it, it is in the function of the expected - in the function of the efficiency of the criminal procedure.

Observed from the aspect of its normative elaboration, the basic characteristics of the new concept of investigation are: First, the main criminal procedure subject, and thus the main bearer of activities in conducting the investigation, is the competent public prosecutor. He is solely responsible for initiating, lawful and efficient conduct of the investigation. In order to achieve the goal of the investigation, the public prosecutor shall take the evidence collecting procedures he deems necessary. Secondly, the possibility of initiating an investigation is also allowed against an "unknown perpetrator" when there are grounds for suspicion that a crime has been committed. Third, the lowest level of suspicion is sufficient to initiate an investigation - reasonable grounds to suspect, i.e. the very same level of suspicion that is required for the conduct of the police in the pre-investigation procedure (Ilic, 2013). Fourth, two exceptions are made to the general rule that the investigation is conducted by the competent public prosecutor. First, during the investigation, the competent public prosecutor may entrust the undertaking of certain evidence collecting procedures to the public prosecutor who acts before the court in whose territory those actions are to be taken. Second, the public prosecutor may entrust the police with the performance of certain evidence collecting procedures. However, the public prosecutor not only cannot entrust the entire investigation conducted, but also most of the evidence collecting procedures to the police and another public prosecutor in a certain case, and only keep the leading role for himself.

Third, the public prosecutor can always hire the police to provide him with professional assistance in conducting the investigation, and he can also hire a special expert (e.g. a forensic scientist) to clarify certain technical or other professional issues that arise when obtaining evidence. Fourth, one of the instruments for achieving the efficiency of the investigation is the prediction of deadlines for its implementation, and they depend on the gravity of the criminal matter. Pursuant to this criterion, if the public prosecutor does not complete the investigation against the suspect within six months, and in the case of a criminal offense for which a special law stipulates that the public prosecutor 's office of special jurisdiction (case primarily with organized crime) within one year, he is obliged to inform the immediately higher public prosecutor about the reasons why the investigation has not been completed, and he is obliged to take measures to end the investigation. Fifth, given the purpose of the investigation, it gathers evidence for both the prosecution and the defense. Sixth, the suspect and his defense counsel can independently gather evidence in favor of the defense. Seventh, there are two possible ways to end the investigation. These are: the suspension that occurs in cases when the results of the investigation speak in favor of no accusation and the end of the investigation in case the results of the conducted evidence collecting procedures speak in favor of the accusation, and the investigation may be supplemented.

Some of the above features of the investigation seem to be subject to criticism by the professional public quite reasonably. For example, the possibility of initiating an investigation is also allowed against an "unknown perpetrator when there are grounds for suspicion that a crime has been committed", which seems not only to be unjustified, but also in direct contradiction with a large number of generally accepted solutions in criminal substantive and procedural legislation. Thus, for example, it is contrary to the provision of Article 14, paragraphs 1 and 2 of the Criminal Code, which clearly states that "there is no crime without guilt", and the issue of guilt can be viewed only in the context of a specific, and not some unknown person. Or, there is the question of the relationship of this provision with Article 286, paragraph 1 of the CPC in which, quite correctly, the conduct of the police is provided for in the so- called pre-investigation procedure which also includes cases "when there are grounds for suspicion that a criminal offense has been committed which is prosecutable ex officio, and the perpetrator of the criminal offense is unknown", etc. Or, the lowest degree of suspicion is sufficient to initiate an investigation - reasonable grounds to suspect, i.e. the same level of suspicion required for the conduct of the police in pre-trial proceedings. The question is: is it possible to initiate criminal proceedings based on all its implications only on the reasonable grounds to suspect (as is the case now) or also only on the basis of indications? Our opinion, and not just our opinion, is no. If we add to this the fact that in terms of the provisions of Article 7 point 1 of the CPC the criminal proceedings is considered to be initiated by the issuance of an order to conduct an investigation, the issue becomes even more current, i.e. the stated position is even more justified. Then there is the provision of Article 301, paragraph 1 of the CPC, which stipulates that "a suspect and his defense counsel may on their own collect evidence in favor of the defense." There are three questions regarding this solution. First, is this not introducing a prosecutorial model of investigation, but a parallel investigation? Does the position of the person against whom the investigation is conducted depend on his material status in this way, i.e. does this make a difference between the persons against whom the investigation is conducted according to the criteria of their financial situation? Then there is the question: Is the evidence collected by the suspect and his defense counsel in the function of the task of the investigation from Article 295, paragraph 2 of the CPC, and thus in accordance with the main reason for the transition from judicial to prosecutorial concept of investigation (its efficiency)? The prosecutorial concept of the investigation must provide mechanisms to ensure the collection of evidence both to the detriment and for the benefit of the person against whom the investigation is conducted in a way that will be in line with its task and efficiency (Mijalkovic et al., 2019). Is that the case here? The opinion of the author of the paper is no. However, these and some other issues of the new concept of investigation in the CPC speak only about the complexity of the issue of standardization and do not call into question the justification of leaving the judicial and moving to the prosecutorial concept of the investigation. In addition to the above, the issue of the newly standardized prosecutorial concept of the investigation has gained additional relevance if it is viewed in the context of the number of criminal cases in which the investigation is conducted. Data from Table No. 4 indicate that the number ranges from 11,161 orders issued to conduct an investigation in 2019 to 13,768 in 2016, which is quite a large number given the fact that the investigation is conducted only in regular - general criminal proceedings, in criminal proceedings for serious crimes - for crimes with a prescribed prison sentence of over eight years, but even in these proceedings there is no investigation in cases where the conditions for filing an immediate indictment are met (Bugarski, 2014). There is no investigation in criminal proceedings for criminal offenses with a prescribed fine or imprisonment of up to eight years (abbreviated criminal proceedings) - there is only the possibility of taking certain evidence collecting procedures.

Table No. 4

Table No. 5

When it comes to the practical results of the public prosecutor in conducting the investigation, the fact of the ratio between the issued orders on conducting the investigation and the orders on completing the investigation as one of the two possible ways of terminating it deserves attention. There is a significant difference in the number of these two orders issued, which in itself speaks not only about the scope of investigative actions that are being undertaken, but also about the attitude of public prosecutors to collect evidence in all criminal cases that serves the purpose of the investigation. In addition to this, there is the fact of a significant difference between the number of orders issued to complete the investigation and the indictments filed by the public prosecutor (Table No. 6). Thus, for example, during 2019, 3729 orders were issued to complete the investigation and 40,637 indictments were filed. The difference is drastic and is the result of the already stated fact that the investigation is not carried out for criminal offenses with a prescribed fine or imprisonment of up to eight years (which is the majority of criminal offenses in the RS Criminal Code), as well as the fact that it is not always mandatoryfor criminal offences with a prescribed sentence of imprisonment of more than eight years (absent in case the conditions for filing an immediate indictment are met).

Table No. 6

Conclusions

The process of reforming the criminal procedure legislation of the Republic of Serbia began with the adoption of the Criminal Procedure Code in 2001, and the latest result of that process is the now valid Criminal Procedure Code from 2011 which has already been amended seven times. There are numerous novelties brought by the reform process, and the key ones are those related to the changed status of the public prosecutor. Among them, those that are the most prominent are as follow: the procedural position of the public prosecutor as the head of the pre-investigation procedure, leaving the judicial and moving to the prosecutorial concept of investigation and legalization of the principle of opportunity of criminal prosecution and the institute of plea agreements. The result of the practical application of these novelties is to increase the efficiency of criminal proceedings in the Republic of Serbia as a key goal of the process of reforming its criminal procedure legislation in general.

References

1. Banovic B. (2018) Police and "Parapolice" Powers and Criminal Prosecution, in S. Bejatovic (ed.). Organization of judiciary and efficiency of judicial protection (European standards and the situation in Serbia) - Criminal legal aspect. Serbian Association for Criminal Law and Practice, Belgrade, pp.325-343.

2. Bejatovic S. (2013) The Concept of Investigation and the New CPC, in S. Bejatovic (ed.). New solutions in the criminal legislation of Serbia and their practical application. Serbian Association for Criminal Law and Practice, Belgrade, 139 p.

3. Bejatovic S. (2014) Prosecutorial Investigation as a Characteristic of Reforms of Criminal Procedure Legislation in the Countries of the Region (Criminal-Political Reasons for Legalization, Situation and Perspectives), in S. Bejatovic (ed.). Prosecutorial investigation (regional criminal procedure legislation and experiences in application). OSCE Mission to Serbia, Belgrade, pp. 11-38.

4. Bejatovic S. (2016) Reform of Criminal Procedural Legislation of Serbia and International Legal Standards. Journal of Criminology and Criminal Law. Belgrade, Serbia.

5. Bejatovic S. (2018) Efficiency of Criminal Procedure as an International Legal Standard (Situation in Serbia and improvement measures), in S. Bejatovic (ed.). Organization of judiciary and efficiency of judicial protection (European standards and situation in Serbia) - Criminal aspect. Serbian Association for Criminal Law and Practice, Belgrade, 273 p.

6. Bugarski T. (2014) Investigation and Indictment (prosecutor-police relations), in S. Bejatovic (ed.), Prosecution and other criminal law instruments of the state reaction to crime. Serbian Association for Criminal Law and Practice, Belgrade, 132 p.

7. Brkic S., Bugarski T. (2020) Criminal procedure law, Laws Faculty University of Novi Sad, pp. 33-37.

8. Beljanski S. (2014) Tuzilacka istraga i prikupljanje dokaza i materijala u korist odbrane, in S. Bejatovic (ed.). Prosecutorial investigation (regional criminal procedure legislation and experiences in application). OSCE Mission to Serbia, Belgrade, pp. 263-274.

9. Cvorovic D. (2015) The Public Prosecutor as a Powerful Figure of the Modern Criminal Procedural Legislation, Crime and Society of Serbia. Institute for Criminological and Sociological Research, Belgrade, pp. 80-95.

10. Criminal Procedure Code of the Republic of Serbia. Official Journal of the FRY. No. 70/01 and 68/02 and Official Gazette of the RS. No. 58/04, 85/05, 115/05, 49/07, 20/09, 72/09 and 76/10.

11. Criminal Procedure Code of the Republic of Serbia. Official Gazette. No. 72/11, 101/11, 121/12, 32/13, 55/14 and 35/2019.

12. Cvorovic D., Turanjanin V. (2016) Reformed Criminal Procedural Legislation and Legitimacy of Serbian Police in Europe (Doctrine, statistics and consistency), in B. Bordevic (ed.). Thematic Conference Proceedings of International Significance. Academy of Criminalistic and Police Studies, Belgrade, pp. 35-50.

13. Ilic G. (2013) Origins and Experiences of the Serbian Police with the Public Prosecutor's Investigation, in S. Bejatovic (ed.). New solutions in the criminal legislation of Serbia and their practical application. Serbian Association for Criminal Law and Practice, Belgrade, 97 p.

14. Ilic G., Banovic B. (2013) Police and New Solutions in the Criminal Procedure Code, in S. Bejatovic (ed.). New solutions in the criminal legislation of Serbia and their practical application. Serbian Association for Criminal Law and Practice, Belgrade, 108 p.

15. Karovic S. (2018) Krivicnoprocesna uloga i polozaj javnog tuzioca u istrazi, in S. Bejatovic (ed.). Organization of judiciary and efficiency of judicial protection (European standards and the situation in Serbia) - Criminal legal aspect. Serbian Association for Criminal Law and Practice, Belgrade, pp. 466-482.

16. Mijalkovic S., Cvorovic D., Turanjanin V. (2019) Efficiency as an International Standard in Criminal Procedural Legislation of the Republic of Serbia - Toward European Union. In Conference proceedings "Towards a better future: Democracy, EU Integration and Criminal Justice", Faculty of Law, "St. Kliment Ohridski" University-Bitola, Republic of North Macedonia, pp. 134-147.

17. Skulic M. (2011) Bases of Criminal Investigation, Journal of Criminology and Criminal Law. Serbian Association for Criminal Law and Practice, Belgrade, 103 p.

18. Skulic M. (2019) Criminal Procedure Legislation and (In)adequacy of the State Reaction to Crime, in S. Bejatovic (ed.). Changes in criminal legislation and the status of judicial officers and the adequacy of the state reaction to crime (international legal standards and the situation in

19. Serbia). Serbian Association for Criminal Law and Practice, Belgrade, 2019. 65 p.

20. Stevanovic I., Vujic N. (2020) Maloletno lice i druge posebno osetljive kategorijej zrtava krivicnih dela (medunarodni pravni standardi i krivicno procesno zakonodavstvo Srbije, in S. Bejatovic (ed.). Zrtva krivicnog dela i krivicnopravni instrumenti zastite - medunarodni pravni standardi, regionalna krivicna zakonodavstva i mere unapredenja zastite. OSCE Mission to Serbia, Belgrade, pp. 152-165.

21. Tintor J. (2014) Odbrana kao strana postupka u tuzilackoj istrazi (analiza novog ZKP Srbije), in S. Bejatovic (ed.). Prosecutorial investigation (regional criminal procedure legislation and experiences in application). OSCE Mission to Serbia, Belgrade, pp. 247.

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