Accelerating the Proceedings by Changing the Model and its Effect on the Parties

2.1. Acceleration of Preliminary Proceedings through Dispensing with the Formalities (or Skipping Investigation)

The original idea is that by changing the model of procedure, proceedings themselves will beco-me more expedient through restructuring preliminary proceedings by eliminating judicial inve-stigation, but not on the model of Serbia and Croatia, where judicial investigation has been su-bstituted with the prosecutorial one, which is equally formal, but by skipping it.¹¹ The main idea is to reduce the number of the so-called “work stations” in the proceedings and to conduct pre-liminary proceedings in continuity, by having the police and public prosecutor’s office perform coordinated activates.¹²

In order to achieve a more active involvement of the public prosecutor and accelerate prelimi-nary proceedings, it is important that the prosecutor is promptly informed by the police. The new CPC of Macedonia requires that the police should immediately inform the public prosecu-tor. Naturally, the police will act so when they themselves have gathered certain information and run preliminary/required checks of the facts to see whether or not it is a criminal offence which is prosecuted ex officio. By all means, the police will also take on the powers granted to it by the CPC for the purpose of uncovering and apprehending offenders, as well as providing traces and evidence of crimes in a more urgent (and professional) manner.

It can be noticed that the aim of preliminary proceedings has been essentially changed. There is wide disagreement as to the true and declared aim of an investigation and preliminary procee-dings as a whole. It does not make much sense that an investigating judge should gather eviden-ce because of a decision by a public prosecutor!¹³ It is more than obvious that when an investiga-ting judge plays an active role as an investigator, it will lead to a conflict of interests or function due to the fact that his function or duty to investigate clashes with his function of a protector of

11 See: G. Kalajdžiev, Koncepcijske razlike u istragama u Hrvatskoj i Makedoniji, u Zbirci radova na Pravnim fakultetima u Skoplju i

Zagrebu, Skoplje/Zagreb, 2010 (available at http://hrcak.srce.hr/index.php?show=clanak&id_clanak_jezik=100280). Compare: D.

Krapac,Reformamješoviotgkaznenogpostupka:potpunazamjenaprocesnogmodelailipreinakaprethodnogpostupkaustranački

oblikovanopostupanje?,ZbirkaradovanaPravnomfakultetu„JustinijanPrvi”uSkoplju,ZbornikradovaPravnogfakultetauZagrebu,

2007,str.177,185-89

12 See:G.Kalajdžiev,BitnijedilemeirazlikeureformiistrageudržavamabivšeJugoslavije,u:Zbornikuradova:Kriminalističko-krivično

procesnekarakteristikeistragepremaZakonuokrivičnompostupkuuprošlojdeceniji,Vol.5,Br.1(novembar2012.),str.432-443.

13 Nevertheless,practice(aswehaveseen)doesnotconfirmthatthecourtplaysatrulyprotectiveroleintheinvestigationbecause

itveryrarelydeniesrequestsfromthepoliceandpublicprosecutorsregardlessofwhetheritistoopenaninvestigationortake

measureswhichencroachonthefreedomandprivacyofsuspectsandotherpersons,suchasremand,searches,wiretapping,etc.

civil rights. It is more than clear that the goal of a formal judicial investigation is to provide evi-dence and present it already in the course thereof (which is still done through a public prosecutor in Serbia, Montenegro and Croatia). This is achieved by a supposed participation of the parties and a semblance of “equality of arms” although it is clear that the defence has been given neit-her adequate nor reasonable opportunity to test and contest the statements of witnesses and ot-her defendants during an investigation, without knowing which evidence will be presented at the trial. A modern concept of the fair trial requires that evidence be tested at a public and adversary hearing before an independent court of law.

For those reasons, the new Macedonian CPC does not provide for a formal investigation which entails presentation of evidence. If there is any real danger that it will not be possible to present certain pieces of evidence at a trial, there will be a special or the so-called “evidentiary hearing”

at which evidence is presented under the rules which apply to the main hearing. As opposed to this, Croatia, Montenegro, and Serbia have stood by the idea that evidence should be presented as early as during preliminary proceedings, which is done by a public prosecutor! This concept is unheard of in comparative law and therefore an original solution which will hardly pass the test before the Strasbourg court. Thus, it could be maintained that the new indictment/investigation procedure in Macedonia is designed more as a preparation for a trial than as actual investigative proceedings because the prosecution examines whether or not evidence and information which has been previously gathered in the course of a preliminary investigation will be sufficient to pro-ve before a court of law that a suspect is guilty of a crime more than it inpro-vestigates in the narrow sense of the word.¹⁴

2.2. Accelerating Investigation through Strengthening Capacities of Public Prosecutor’s Offices by Introducing Judicial Police Inspectors

An important innovation which makes the new criminal procedure of Macedonia different from all the others in the region is the establishment of judicial police as an authority assisting public prosecutor’s offices. It denotes criminal police that closely cooperates with public prosecutor’s of-fices and a small part thereof will directly be on the team of the prosecution in the so-called inve-stigation centres of the public prosecutor’s offices. Those are the main tools which will help public prosecutor’s offices to respond to the challenges of their new active role which has been assigned to them following the reform of criminal law both in our country and on a global scale.

The innovation which should make a substantial contribution to the acceleration of preliminary proceedings is precisely the public prosecutor’s team of investigators which consists of CID in-spectors and other associates who should support them in gathering and checking informati-on and evidence during preliminary proceedings. Namely, the main shortcoming of the previo-us criminal proceedings was that public prosecutors did not have capacities to gather necessary information and evidence to be able to make appropriate decisions on the further course of the

14 UnlikeinBosniaandHerzegovinaandinMacedonia,thenewcriminalprocedurelawsinSerbia,Montenegro,andCroatiaincludean

enormousnumberofprovisionswhichgoverninvestigationandevidentiaryactionswhichareundertakeninthesame/proceedings/,

wherebyevidenceobtainedinaformalmannerinpreliminaryproceedingsremainsthecoreinformationatthetrial.Thus,theformal

judicialinvestigationisreplacedbyanequallyformalprosecutorialinvestigation,whilekeepingaconsiderablenumberofprovisions

fromthepreviouslaw.Prosecutorialinvestigation,asthesecondstageofpreliminaryproceedings,innotessentiallydifferentfrom

theoldconceptofjudicialinvestigationgiventhatpublicprosecutorsarenowthosewhoundertakealltheevidentiaryactionswhich

usedtobeperformedbyinvestigatingjudges,eventhoughtheyarenotapartytotheproceedings.

proceedings.¹⁵ That was the reason why public prosecutors requested in writing from the police, banks, and other government authorities to undertake certain activities in order to obtain neces-sary information, which they then submitted to investigating judges, and that resulted in losing a considerable amount of time and naturally, the matters were progressing slowly. These new solu-tions allow that prosecutors, with the help from their own investigation teams, first gather infor-mation so that they could decide whether or not to conduct an investigation against a particular person, and so that the investigation would be concluded “in one breath” or without interrupti-ons, with energy and intensity.¹⁶

Following the example of Italy, the new (2010) CPC governs that “senior officers” within the judi-cial police, namely officers who are directly in charge of judijudi-cial police units that remain with the competent ministries, are now directly linked to public prosecutor’s offices, which will allow for their easier employment by judicial police.¹⁷ This has been an attempt to establish a clearer and more functional relationship which thus far used to be a relationship between two organisations with strictly hierarchical structures. Still, the new CPC allows for a (thus far not much used) po-ssibility that inspectors from the judicial police be assigned to them by order of a public prosecu-tor for the purpose of conducting criminal proceedings when necessary (ad hoc).¹⁸

The CPC provides that judicial police assigned to a prosecutor’s office shall be organized into the so-called “investigation centres” of that office.¹⁹ The idea of setting up investigation centres in pu-blic prosecutor’s offices with a heavy workload with the aim of finding a reasonable solution whi-ch will be both effective and economical has led to some major differences in respect of how sta-tutory provisions are construed.²⁰

2.3. Accelerating Proceedings by Making the Main Hearing More Focused

The previous criminal procedure law (which will be in force in Macedonia not only until November 2013, when the implementation of the new 2012 CPC should start, but it will conti-nue to be applied to offences whose prosecution has commenced) allowed that indictments were brought without gathering all the evidence, providing criminal matters would be first resolved at the main hearing and both the Court and the parties could offer evidence without any problems.

15 TheInteriorMinistry’smonopolyoninvestigationwastheprincipalreasonforinadequateinvestigationsofcasesinwhichthepolice

overstepped their authority /as cited/ in a number of judgments by the European Court of Human Rights which ruled against

Macedonia.Forinstance,see:Case of Pejrusan Jasar v. FYROM ( 2007).

16 Judicialpoliceininvestigationcentreswillprimarilyactatthepreliminarystageofcollectingofinformationmorethaninthecourseof

investigativeproceedingsduringwhichtheprosecutionundertakesactions,althoughjudicialpolicemayrenderassistance.Thisdoes

notmeanthatjudicialpoliceininvestigationcentresmaynotalsobeinvolvedatthestageofdetectingandfilingofchargesincases

whentheprosecutionitselflearnsaboutsuspicionsthatacriminaloffencehasoccurred(firsthandknowledge,voice,notoriety,etc.).

17 See:NewRelationshipbetweenthePoliceandthePublicProsecutorsOfficeintheRepublicofMacedonia,JustinianLawReview,

availableatwww.law-review.mk/pdf/02/Gordan%20Kalajdziev.pdf

18 AnimportantgoaltobeattainedbysettingupthejudicialpoliceandtransferringsomeoftheCIDinspectorsfromtheMinistryof

theInteriortothepublicprosecutionserviceisovercomingtheproblemposedbythemonopolyofMinistry’sinvestigativecapacities

andtheso-called“hierarchicaldualism”.

19 Prosecution’sinvestigationcentresareinawayanoriginalconcept,eventhoughsimilarmodelsofstructurewhichentailclose

cooperationincarryingoutoperationsunderthesupervisionofpublicprosecutorsexistinanumberofcountries.Forinstance,in

Italy,eachprosecutorhashisownteammadeupoftwotothreeinspectors,whereasinothercountries,policeofficersareassigned

topublicprosecutor’sofficeswithoutbeingorganisedintoanyparticularunits.See:B.Pavišić,Ed.,Talijanskikaznenipostupak,Pravni

FakultetSveučilištauRijeci,2002.

20 AlthoughtheideaofthosewhodraftedthenewCPCwastomakethemmorelikespecialiseddepartmentswithinpublicprosecutor’s

officesorpersonnelassistingpublicprosecutorsintheiroperations,competentstateauthorities–whichareinvolvedinpreparing

theimplementationofthenewCPC–haveunderstoodthemasseparate(outsourced)specialisedcentres.

Its duty to establish the truth fully and completely placed the burden of proof on the Court – thus leaving the mark of the inquisitorial model on the trial, while proceedings dragged on for mon-ths, sometimes for years. Namely, considering that the priority was given to the establishment of absolute truth, there was nothing which would preclude offering of evidence and it was left to the Court and the parties to freely offer evidence even after the conclusion of a trial.²¹

The attempt to simplify proceedings by remodelling them through the abandonment of the inqu-isitorial principle and elimination of its elements had not stopped at the preliminary proceedin-gs. Not only in Macedonia, but also in all the other countries in the region, the issue of releasing the Court from the duty to establish the truth ex officio, which unnecessarily burdened the judici-ary – by practically imposing on it some of the duties of the parties – was considered to have stra-tegic importance and deserved to be treated as a priority. It is widely known that the procedure followed at the main hearing underwent reform in all the countries by transferring the task of ta-king evidentiary actions to the parties and introducing cross-examination at a trial. Nevertheless, majority of the countries in the region have opted against assigning the Court a totally passive role, which is why they have continued to allow the Court to propose evidence, although with certain restrictions.²² Such a hybrid model has been regarded as a reasonable compromise whi-ch is allegedly optimal precisely because the initiative to offer and present evidence is left to the parties and the Court is finally given an opportunity to ask questions, present evidence, and ali-ke, when the Court deems it necessary.²³

Macedonia is the only country in the region which has assigned a completely inactive role to the Court with regard to presenting evidence.²⁴ The purpose of this is not only to attain the purity of a model of criminal procedure because of some theoretical consistency or in professor Damaska’s words – to be more catholic than the Pope – but because we believe that it will lead, in additi-on to promoting judicial impartiality, to cadditi-onsiderable acceleratiadditi-on of the proceedings! The latter goal seems to have been unjustifiably pushed back into the background in academic and legisla-tive debates in other countries in the region. Namely, the idea is clear: if there is a provision whi-ch precludes proposition of evidence and neither the Court nor the parties may first offer evi-dence at a trial – the prosecution will go to trial only if it actually has sufficient evievi-dence to prove defendant’s guilt and trials will last much shorter. Plans for a trial will be simple and trials will be conducted in continuity and without interruptions (Art. 359 of the 2010 CPC), by assigning as many days for a trial as are needed to complete it depending on the amount of evidence which has been proposed. In all honesty let us say that evidence has either been obtained or it has not;

it happens very rarely that there are some exceptional circumstances which truly justify an

adjo-21 Thus,asweallknow,pursuanttoArticles274and314ofthepreviousCPC,thepartiesandtheinjuredpartymayrequestthatnew

witnessesorexpertwitnessesbesummonedandnewevidencebeobtainedevenafterthemainhearinghasbeenscheduledand

started.Ontheotherhand,thepresidingjudge,whousedtohavethemostactivepartinatrial,can(could),evenwithoutamotion

fromtheparties,orderthatneworotherevidencebeobtainedforthemainhearing.

22 This is the case in Bosnia and Herzegovina, Serbia, and Montenegro, while in Croatia, it is subject to serious restrictions. See a

comparativeanalysisoftheissueinH.Sijercic-Colic,SubstantialTruthDocrtrineinCriminalProceedings,in:A.Petrovic,I.Jovanovic,

New Trends in Serbia’s Criminal Procedure in a Regional Context (Normative and Practical Aspects),OSCEMissiontoSerbia,Belgrade,2012,

pp.169-191

23 Professor Damaska makes a good point when he asserts that the Court’s passive attitude is more consistent with the typical

adversarialhearingbecauseinsuchsystemsajurydecidesonthefactsofacase,somoralresponsibilityforthecorrectnessofaverdict

urnment for the purpose of collecting some new pieces of evidence.²⁵ On the contrary, it is un-reasonable and prejudicial to adjourn trials and that they last indefinitely, which is what is hap-pening at the moment. In respect of the parties, inadmissibility of evidence of which they were aware but failed to propose to the parties prior to the main hearing without any justifiable rea-son asserts an obligation on them to adequately prepare for a hearing before a court of law and makes them responsible not only for the outcome, but for the efficiency and faster conclusion of criminal proceedings.²⁶

Another issue has proven controversial, namely should the entire case file compiled in the cour-se of an investigation (along with all the statements from a defendant and witnescour-ses) be referred to the main hearing. In case investigative files remain the principal source of information, main hearings will be nothing more than verification of evidence from the investigation.²⁷ Opinions differ with regard to whether or not the Court’s access to such files would promote the efficiency and expeditiousness of trials or whether or not it would only unnecessarily prejudice the Court.

Finally, professor Damaska warns that this new variant of adversarial presentation of eviden-ce before trial courts includes as well remainders of the old evidentiary model (e.g. the injured party’s right to participate in the presentation of evidence) so it is likely that a combination of the new and old elements would lead to confusion and prolonged hearings.²⁸

2.4. Making the System of Legal Remedies More Expedient and Functional

The need to restructure the system of legal remedies in the criminal procedural law of Macedonia, in other words to make them more functional, was one of the basic guidelines of the criminal procedure reform in accordance with the aims formulated in the Criminal Law Reform Strategy.

Amendments to the provisions which govern regular and extraordinary remedies would repre-sent a combined effort of theorists to speed up the proceedings, make legal remedies more fun-ctional (extraordinary remedies, in the first place), and underline the need for holding hearings more frequently before courts of second instance instead of setting aside judgements and re-ferring matters to the courts of second instance for retrials, on the one hand, and dealing with the problems which have been identified by practitioners and which could be resolved by making certain provisions more precise or by amending or supplementing them.

Together with this, a provision which precludes proposition of evidence with appeals has been introduced for the first time in so far as new facts or pieces of evidence may not be mentioned in appeals except those which the parties prove could not be presented before the end of evidentiary

25 WemustadmitthatthenewCPCalsoprovidesforadjournmentsorpostponementsofmainhearingsforthepurposeofobtaining

newevidence(Art.370and372ofthe2010CPC).Tobehonest,thesesolutionsaremoreanexampleofprovisionsindiscriminately

adoptedfromthepreviousCPC,withouthavinganalysediftheyareinaccordwiththenewconcept;thereisanumberofsuch

instancesinthenewCPCandmajorityofthemhavebeenregisteredforapotentialrevisionofthestatutewhichisnowbeing

advocatedinprofessionalcircles.

26 See:D.Tripalo,Z.Đurđević:Predlaganjedokaza,Hrvatskiljetopiszakaznenopravoipraksu,vol.18,broj2/2011,str.471,486.

26 See:D.Tripalo,Z.Đurđević:Predlaganjedokaza,Hrvatskiljetopiszakaznenopravoipraksu,vol.18,broj2/2011,str.471,486.

Im Dokument Simplified forms of procedure in criminal matters (Seite 112-117)