Original scientific paper
The Main Conceptual Differences in the Reform of Criminal Investigation in Croatia and Macedonia
Gordan Kalajdziev
; Iustinianus Primus Faculty of law, Ss. Cyril and Methodius University, Skopje, Macedonia
Abstract
The new Code of Criminal Procedure fully alters the concept of the current, essentially, inquisitorial procedure designed to be an investigation conducted in line of duty by the court. Abandoning the court paternalism is much more than just a cosmetic brush-up of the existing model. In the Republic of Macedonia, we insist to tell that the new system is much more than just a simple replacement of the court investigation by an investigation carried out by the prosecution. The Public Prosecutor will under no means continue doing what the investigation judge did so far. The investigation by the Police complements and merges with the one by the prosecution in the new system, whereas the court investigation is practically forgotten without being replaced by a formal investigation by the prosecution. The investigation procedure in Macedonia is significantly deformalized with the new CCP – the evidence is not presented, only collected, while it is actually presented for the first time at the main hearing (as the main trial is now renamed), except in specifically determined cases where a special evidentiary hearing can be organized (when it is expected that a witness will not be able to participate in the main hearing). This significantly speeds up the preliminary procedure and emphasizes the importance of the trial (the main hearing) as the central part of the criminal procedure, where the evidence is tested at a public and adversarial hearing, which is essential to a fair trial. The new Croatian criminal procedure, on the other hand, differs from most criminal procedures based on the so-called prosecution investigation because the evidentiary means are presented in a manner which facilitates the results to be used as evidence in the trial. As it seems, the Croatian legislator was caught in the trap of replacing the formal court investigation by an equally formal prosecution investigation. Thus, unlike the Anglo-Saxon adversarial procedures, the German criminal procedure after the abolishment of the court investigation in the 1970s, or the new Italian or Albanian criminal procedures, where the court investigation is actually omitted, the new Croatian Criminal Procedure Act preserves a large number of provisions which provide for investigation and evidentiary actions, whereas the evidence collected in a formal manner in the preliminary procedure continues to present the core of information at the trial. Renaming “investigatory” action to “evidentiary” emphasizes the problem of presenting evidence as early as during the investigation and, to a large extent, without any mediation or participation by the court, which creates tension in terms of the so-called equality of arms in the procedure. Evidentiary actions in the investigation may be undertaken by the public prosecutor himself or he can assign them to an investigator. It seems that the introduction of the investigator (probably according to the example of the Austrian CCP) will be subject to much controversy in the relations between the police and the prosecution. Experience of most European countries has shown that prosecution investigation is, in practice, reduced to a police investigation. The fact that the Croatian CPA provides that even when the actions are taken by the investigator, the state prosecutor supervises the investigation, thus becoming the authority responsible for conducting the procedure, is no guarantee that the Croatian practice will ensure a truly managerial role for the public prosecution office. Therefore, the new Macedonian CCP has been inclined towards the Italian model, which is the only one in Europe that provides truly effective mechanisms for ensuring a managerial role for the public prosecution in investigations. This appears to be particularly important as, after abandoning the institute of investigation judge, the position of the defendant becomes somewhat vulnerable due to the mere fact that the active investigation judge was, in a way, a warrantor and an ally of the suspect when collecting arguments and evidence in their favour.
Keywords
investigation; criminal proceedings; investigating judge
Hrčak ID:
67115
URI
Publication date:
20.3.2011.
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