Pregledni rad
Investigation: the legislative framework and practical applications
Marina Carić
; Pravni fakultet, Sveučilište u Splitu, Split, Hrvatska
Sažetak
In this paper, the author deals with the specifics of the procedure for summary offences from the aspect of the legislative framework and practical application. By analysing the concept of the procedure for summary offences as acts of a singular normative model of criminal procedure, the conclusion is reached that what is in question is the particular procedural modality for a particular category of criminal acts which differ from the procedure for classic criminal offences regulated by punishment exceeding five years. This conclusion emerges from significant differences between inquiry and investigation, as well as from certain specifics in other stages of procedure. The central part of the paper deals with investigation as a formal procedural stage which is implemented before indictment for criminal acts punishable by a fine or jail sentence of up to five years. The issue of commencing investigation is observed, as is non-public investigation, the defendant’s rights in the investigation (access to the case file, the defendant’s request for evidentiary action, the evidentiary hearing), detention in investigation, and finalisation of the investigation. Also considered is the suggestion of the victim who has taken on prosecution for conducting the investigation. A special section is given to the legal means which the defendant can handle in the investigation. The author critically analyses the request for the re-taking of evidentiary action due to undelivered notices under Art. 213, para. 2 ZKP/13, a complaint to the judge of investigation for delaying proceedings, and a complaint for breaching the procedural rights of defence and unlawful investigation. It is precisely in this area that it is suggested to introduce new independent legal means of complaint for unlawful investigation as court control of the legality of the criminal prosecution, that is, the existence of positive and the absence of negative presumptions for conducting the investigation. By prescribing such legal means, the issue of when the criminal proceeding commenced would be resolved for offences with a prescribed jail sentence of up to five years. This is a chance to enable court control of the lawfulness of investigation. Besides the analysis of theoretical questions, the author states the results of research of state attorney practice conducted in the Split State Attorney Office from 2014 to 2017. The subject of investigation was the legal solutions prescribed in the provisions on investigation. The gained results show that the state attorney welcomed and effectively applied these legal solutions.
Ključne riječi
criminal procedure; summary criminal offences; investigation; legal means; state attorney practice
Hrčak ID:
218958
URI
Datum izdavanja:
12.12.2018.
Posjeta: 1.533 *