THE REFORM OF THE CRIMINAL PROCEDURE LEGISLATION: THE CONCEPT OF INVESTIGATION

Abstract

The basic requirement underlying the reform of the Serbian criminal procedure legislation is to create and normatively regulate an efficient criminal procedure. The key issue in meeting this requirement is the choice of the criminal investigation concept: should the legislator retain the judicial investigation model predominant in the inquisitorial system of the European-Continental legal tradition, or follow in the footsteps of many other countries which have opted for the adversarial criminal investigation system underlying the Anglo-Saxon legal tradition? There is no doubt that this choice will determine not only the efficiency of criminal investigation but also the entire criminal procedure. On the other hand, the creators of the reform have to take into account the obligation to observe human rights and freedoms, enshrined not only in the Serbian Constitution but also in the ratified international law documents. By using a comparative method, this paper aims to present the advantages and disadvantages of the two criminal investigation concepts (the inquisitorial and the adversarial), to draw attention to the observed characteristics of the prosecutorial investigation in the Serbian criminal procedure law, and to propose possible modifications in light of observing the principles of procedural fairness. In particular, the author discusses whether the the selection of the adversarial model has been justified, and whether the envisaged criminal procedure framework has struck a balance between the need for procedural efficiency and the principle of procedural fairness in criminal investigation.