Nacrt zakonika o krivičnom postupku Srbije kao izraz loše koncepcije i pogrešnih normativnih rešenja

Abstract

Traditionally, in European countries, which are the part of classical continental-European criminal procedure law system, the court and state bodies participating in the criminal procedure have the obligation to establish the facts essential for truth and delivering a lawful judgment. The court and the state bodies are also obliged to examine and establish with equal attention both the facts burdening the defendant, as well as those to the benefit of the defendant. It is also in advanced with the Article of 17 Criminal Procedure Code of Serbia. The principles of fair procedure in criminal procedure and the principle of truth in criminal procedure are the basic principles which are in fact the goal of criminal procedure. The main idea is that the Criminal Procedure Code should contain rules aimed at enabling fair conducting of the criminal procedure, in order to avoid any innocent persons being convicted, and to enable a perpetrator of a crime to be sanctioned in accordance with the envisaged Criminal Code and on the basis of a lawfully conducted criminal procedure. Author explains the basic characteristics of the principles of fair procedure in criminal procedure and the principle of truth in criminal procedure and different meaning of these principles (especially the principle of the truth), in both large world criminal procedural systems: a) in continental Europe and b) in the USA and other so called Anglo-Saxon states. In the article are also explained the most significant characteristics of these comparative criminal procedural system. Author especially explains some very negative examples in the new Draft Code of Criminal Procedure Code of Serbia. Completely adversatorial construction of the main trial is not adequate for Serbian criminal procedure and that could be in the practice the cause of many serious problems. In this type of procedure the parties would be equal only in formal point of view. In the practice that could be very inconvenient and bad for the defendant, especially when he/she has not a defense counsel and in Serbian criminal procedure is mandatory defense counsel provides only for limited number of criminal offences. Elimination of the principle of the truth in criminal procedure, i.e. in the Draft version of the Criminal Procedure Code of Serbia, is very negative solution. It is without doubt that the truth is not a 'holly cow' in Serbian valid criminal procedure and also in criminal procedures in other states in continental Europe which legal systems know this vital principle. The truth is not achieving at any price and when it is objectively not possible, the principle in dubio pro reo has to be applied. It is not more the case in the Draft of the new Criminal Procedure Code of Serbia, which is very bad solution that must be seriously criticized. Elimination of the principle of the truth in criminal procedure is in a contradiction to many other vital criminal procedural rules. It is completely senseless and nonsense, that in the Draft of the new Code of Criminal Procedure (the same rule as today, i.e. in now days CPC) provides appeal against the verdict because erroneous or incomplete finding of fact, i.e., when the judgement is ground on the incorrect or incomplete finding of fact or when the court has determined a relevant fact incorrectly and besides, the court officially does not have a duty to determine a truth. Elimination of the principle of the truth in criminal procedure is essentially unmoral, because the truth in criminal procedure can not be divided from general connectivity criminal law and moral. The majority of citizens expect the truth in and from criminal procedure. This truth has often historical significance too. If the fact is, that criminal offence principally is unmoral and if only in criminal procedure can be determined if the crime was committed, then this kind of question can not be only the mater of so called evidential duel between prosecutor and defendant with no active role of independent and impartial court.