THE NORMATIVE BASIS OF THE EFFICIENT CRIMINAL PROCEDURE

Abstract

The paper considers the efficiency of the Serbian criminal procedure from the standpoint of the normative regulation of the criminal procedure. Initially it explains the efficiency of the criminal procedure as a complex phenomenon which should not be boiled down to the mare speed thereof. The critical analysis of the normative efficiency of the procedure is limited to the legal establishment of some basic principles, as well as the procedural instruments of efficiency in the pre-procedural phases of the criminal procedure. In relation to the principles, the paper explains the causes and effects of banishing the principle of truth from the Serbian criminal procedure, it critically examines the legislative limitations of the principle of directness, conceived as if the investigation was a court investigation, which completely ruins this basic principle, it explains the consequences of these limitations to the realization of the principle of contradiction, the narrowing of which leads to jeopardizing the fairness of the procedure. The elaboration of the normative basis of the efficiency of the pre-trial phases includes the phases of investigation and indictment. The interpretation of the legal regulation of the public prosecutor’s investigation from the standpoint of efficiency contains the critics of the formal nature of the public prosecutor’s investigation, regulated as it was court’s investigation, of the legal requirements for initiating investigation, of the option to initiate the investigation against the person unknown and of the worsening of the procedural position of the victim in the pre/trial phases. With regards to the phase of indictment, the paper explains the inadequacy of the manner and the form of the judicial control of the indictment, as well as of the justification and the legality of the indictment, which was conceived as if it vas court’s indictment. All legal solutions which derail from the legal tradition of the regulation of criminal procedure in Serbia do serve the purpose of expediting criminal procedure, but jeopardize the fairness of the procedure and limit the basic rights of both accused and victim.