I
Modern legislation is increasingly characterised by a more pronounced differentiation of proce-dural forms (proceedings), i.e. by a simultaneous co-existence of a single general form of the cri-minal proceedings (usually referred to as the ordinary cricri-minal proceedings) and a certain num-ber of special forms of proceedings the main purpose of which is to contribute, through such special (simplified) forms, to the increased efficiency of the criminal proceedings, efficiency be-ing one of the greatest weaknesses of our judicial system, but this is the case elsewhere as well.
The differentiation of procedural forms in legislation is most commonly used in such a way that the general procedural model varies under certain conditions, in a certain way and to a certa-in extent.2 Heterogeneous nature of the procedural form is caused by the heterogeneous nature of the criminal matters (criminal offences and perpetrators) The procedure suitable for one type of criminal offences and perpetrators may not be adequate or rational for another type of crimi-nal offences and perpetrators, so it would not be in compliance with the binding internatiocrimi-nal documents on the right to a trial within a reasonable time3 if the same form of the criminal pro-ceedings were to be applied for all criminal acts. Consequently, a more complex procedural
dif-1 FacultyofLawattheUniversityofMontenegro,Podgorica 2 SnežanaBrkić,PhD:Krivično procesno pravo II,NoviSad2010,p.17
3 SeeArt.6item1oftheEuropeanConventionfortheProtectionofRightsandFundementalFreedomsandArt.14,item3cofthe
InternationalCovenantonCivilandPoliticalRights
ferentiation is justified in principal by the need for a greater adaptability of the criminal procee-dings in substantive law.4
A uniform procedure would not be in the best interest neither of the individual in question nor the public, i.e. neither in the interest of the defendant who has the right to adequate and speedy proceedings, nor of the community which needs to safely and efficiently suppress crime.5 Ordinary criminal proceedings as a general form of procedure, comprising investigation, indic-tment, preparation of the main hearing and the main hearing, is justified for more serious adju-dication, which due to the nature of the criminal matter itself and its complexity are difficult to resolve without disturbing the required balance between the need to protect the fundamental freedoms and human rights (of the defendant) and the need to conduct criminal proceedings ef-ficiently. The procedure considered to be the necessary minimum for an adequate ruling in more serious criminal cases, has been proven to be redundant, a waste of time, effort and resources when applied to less complex criminal offences. Abandonment of the general procedure and its simplification provide simple, speedy and short proceedings, that match the significance of the offence in question, while making sure the simplification does not go against neither the public interest, nor the basic civil rights.6
Under modern circumstances characterised by the global crisis (not only economic one) accom-panied by an increase in crime rates, which in turn means a greater number of criminal cases in courts, it is necessary to seek new viable solutions in order to overcome the crisis in the crimi-nal justice system, a system which has become highly uneconomical. One of the possible paths in overcoming the crisis that may be taken is the elaboration of the procedural differentiation, which would add to a general form of the proceedings a greater number of simplified procedu-ral models, which are intended for minor and less complex cases. Bearing in mind the structure of crime statistics that are dominated by minor offences and those of medium-level seriousness, the introduction of the simplified forms of criminal proceedings would, on the one hand, signi-ficantly reduce the workload in the courts, while, on the other hand, allowing the courts to pro-vide a better level of quality of trials in more difficult and complicated cases.
II
Many of the amendments to our criminal procedure code in the past have aimed at simplifying the forms of proceedings and accelerating the criminal proceedings.7 In the literature on crimi-nal procedure, we can come across various terms that imply the departure from the general form of proceedings such as summary, abbreviated, simplified proceedings etc. What is the rationale for the simplified proceedings? It is found in the principle that the form of the proceedings sho-uld be proportionate to the subject matter of the trial (a simple subject matter requires an equ-ally simple form of the proceedings), while bearing in mind that the basic rights of the defendant
4 Snežana Brkić, PhD:Pojednostavljene forme krivičnog postupanja i postupak njihovog ozakonjenja u Republici Srbiji, published in:
Zakonodavni postupak i kazneno zakonodavstvo,Belgrade,2009,p.176
5 MomčiloGrubač,PhD:Krivičnoprocesnopravo,Uvodiopštidio,Službeniglasnik,Belgrade2004,p.25
6 TihomirVasiljević,PhD:Sistem krivičnog procesnog prava SFRJ,Belgrade,1981,p.689,StankoBejatović,PhD:Krivično procesno pravo,
Belgrade2006,p.511
7 Seeanotherpaperbythisauthor:OsnovnekarakteristikenovereformekrivičnoprocesnogzakonodavstvaCrneGore,RKK,issueno.2,
2007,pp.13-29
draw the line that the simplification, i.e. abbreviation, must not cross. It is justly pointed out in the literature on this subject that the formulation of such simplified forms of proceedings is faced with two basic challenges: identifying those attributes of the legal objects and subjects of the pro-ceedings which merit simpler propro-ceedings, and striking the right balance in the simplification of the form of the criminal proceedings so that it matches the characteristics of the said objects and subjects in the proceedings.8
In terms of the aforementioned, such forms of proceedings are characterised by special grounds (which are ratio legis of special forms of proceedings) and by a special structure. The special sta-tus of the grounds for the simplified forms of proceedings is derived from the characteristics of the objects (criminal matter) or the behaviour (demeanour) of the parties to the proceedings (le-gal subjects). As far as the criminal matter as the grounds for regulation of the simplified forms of proceedings is concerned, both substantive and procedural implications of the criminal ma-tter in the proceedings may be of importance. From a standpoint of substantive law, the following may bear some relevance: a) the importance and the seriousness of the criminal offence and b) type or nature of the criminal offence. From a procedural point of view, the most significant are the facts of the case and the state of the evidence.
In modern legislation the simplification of the criminal proceedings is typically associated with the importance and the seriousness of the criminal offence. The circumstances of increased wor-kload in the judiciary and attempts to solve this problem dictate that minor criminal offences and those that do not pose a great threat to the society do not merit the same use of material resour-ces, time and the involvement of the parties to the said proceedings as in the case of more serio-us criminal offences and offences that pose a greater threat to society.9
III
Regardless of the fact that there are significant variations in the regulation of the simplified forms of criminal proceedings, it is nevertheless possible to identify the characteristics they all share no matter which criminal procedure code is being discussed, and these are the multiplicity of the simplified forms of procedure and the special nature of the elements of such forms.10 This me-ans we can identify European standards in the legal regulation of the simplified forms of crimi-nal proceedings. European standards for the regulation of certain issues are not only reflected in the solutions provided by international conventions, but also by the solutions found in numero-us national legislations.11
In the process of harmonisation of the national legislations in Europe, a special role is assigned to the recommendations made by the Committee of Ministers of the Council of Europe.
8 SnežanaBrkić,PhD:Racinalizacija krivčnog postupka i uprošćene procesne forme,FacultyofLawinNoviSad,NoviSad2004,p.166.
9 SeeMomčiloGrubač,PhD:Racionalizacijakrivičnogpostupkauprošćavanjemprocesnihformi,CollectedpapersbytheFacultyof
LawinNoviSad,issue1-3,1984,p.290.
10 TanjaKesić,M.A.andDraganaČvorović,M.A.:PojednostavljeneformepostupanjaukrivičnimstvarimairadnaverzijaZKPRepublike
Srbije,Pravnariječ,issueno.29,2011,p.685.
11 Slobodan Nadrljanski: Pojednostavljene forme postupanja u krivičnim stvarima i standradi Evropske unije,published in : Krivično
zakonodavstvoSrbijeistandardiEvropskeunije,Zlatibor2010,p.a284.
As far as the simplified forms of criminal proceedings are concerned, recommendation num-ber R (87) 18 made by the Committee of Ministers to the memnum-ber states in 1987 is of great im-portance as member states are in it instructed to use and further legislate standards which wo-uld be applied in:
• discretionary prosecution
• imposing measures in the proceedings related to minor and mass criminal offences
• the use of summary proceedings
• out-of court settlements
• the use of simplified proceedings
• simplifying ordinary judicial procedure
The recommendation assumes that the historical, constitutional and legislative framework is different in different national legal systems, therefore the adoption of the recommendation is connected to the possibility of applying it within the existing legal framework, and if this is im-possible then it should be done by changing the legal framework. The recommendation promo-tes the following standards: it is in the public interest to simplify the form of the proceedings, an adequate degree of suspicion of guilt must exist that is based on the evidence, the perpetrators must consent to a simplified form of proceedings, as well as the elimination of some other pa-rallel proceedings in the case of acceptance of the offered procedure, and to enable the injured party to file a property claim in appropriate proceedings.12
Similar stand was taken in the Resolution of the Section III at the International Congress on Criminal Law held in Vienna in 198913 in which it was emphasised that the type and nature of the criminal offence should be one of the important factors based on which the forms of procee-dings are distinguished. Accordingly, national legislatures are advised “to undertake all measures which may effectively be used to combat petty crime while keeping a well-balanced proportion of means and aims and accepting different solutions and alternative procedures to the ones tra-ditionally used in criminal judiciary.”
IV
The characteristics of the criminal matter of the proceedings, in terms of legal procedure, are re-flected in the sphere of case facts or the state of the evidence. The simplification of the proceedin-gs related to the facts of the case may be manifested in terms of quality and quantity. In terms of quality, the simplicity of the facts of the case implies that the facts of the case may be easily deter-mined. It is the easily met burden of proof that makes the simplification of the proceedings legiti-mate either by waiving certain stages in the proceedings or by restructuring them in terms of ot-her methods of accelerating the proceedings.14
The state of the evidence may also influence the simplification of the criminal proceedings.
Accordingly, if at a certain stage of the criminal proceedings, even if this stage precedes the
in-12 See:SlobodanNadrljanski:Op.cit.287
13 ThetranslationoftheresolutionwaspublishedinajournalJRKK,issueno.4,1990,p.90 14 SnežanaBrkić,PhD:Racionalizacija krivičnog postupka...p.202
stigation of the proceedings (during the inquiry) a certain level of quality and quantity of the evidence is provided so that it in itself makes certain stages of the proceedings redundant, then the proceedings are thus simplified. The simplification of the form of the criminal proceedings occurs in cases of the so-called flagrant criminal offences as well.
V
In addition to the characteristics of the criminal matter of the proceedings as the grounds for the simplification of the forms of the proceedings, the grounds for the simplification of the procee-dings may be found in the characteristics of the parties to the proceeprocee-dings, i.e. in the particulars of their demeanor during the criminal proceedings. Such characteristics of the said parties may function as independent grounds for the simplification of the forms of the proceedings. Among the characteristics of the parties to the proceedings that are relevant to the simplification of the forms of criminal proceedings the legislation mainly specifies the defendant’s admission of guilt, plea-bargain agreement, as well as the defendant’s consent to the selected form of proceedings.
According to the aforementioned, simplified forms of the proceedings can be distinguished by a lesser degree of complexity in terms of the structure of the procedure compared to the ge-neral form of criminal proceedings. The simplification, as it is emphasised in the literature on the subject, most often rests on three simultaneous processes: abbreviation (leaving out certa-in phases of the proceedcerta-ings or even entire stages), acceleration (settcerta-ing short deadlcerta-ines certa-in the proceedings) and deformalisation of the proceedings (omitting the unnecessary formalities and guarantees).15
VI
The new Criminal Procedure Code was passed in 200916 and it was published in the Official Gazette of 18 Aug 2009, while its application was scheduled to start in a year from the day of its publication. This prolonged vacatio legis of one year was allowed in order to secure the condi-tions for its application starting with the human resources to material and technical resources, since the new CPC introduces a lot of innovations. Legislator’s estimate that a year represents a period that is long enough to commence the application of the CPC has not been proven to be accurate which has prompted the Law on Amendments17 consisting of a single article stating that the application of the CPC is being postponed for another year.
With regard to the simplified forms of criminal proceedings in the new Criminal Procedure Code of the Republic of Montenegro, nearly all simplified forms of criminal proceedings known to modern legislation are listed.
The simplification by omitting certain stages of the criminal proceedings is kept in the new CPC. Thus, the option of direct indictment is kept but with certain changes related to the
15 SnežanaBrkić,PhD:Racionalizacija krivičnog postupka...p.208 16 TheOfficialGazetteoftheRepublicofMontenegro,no.57/09 17 TheOfficialGazetteoftheRepublicofMontenegro,no.49/10
requirements for such an indictment. There is no longer any difference between the direct in-dictments for criminal offences that carry a sentence of up to five years in prison (since the CPC stipulates summary proceedings for such offences, and the indictment is in the form of a motion to indict) and those for criminal offences that carry a stricter sentence. In order to bring a direct indictment against someone two conditions must be met: a) that during the inquiry (previously known as the preliminary proceedings) sufficient amount of information about the criminal offence in question and the perpetrator has been collected in order to issue an indictment, and b) that the perpetrator of the criminal offence has been questioned before the charges are brought. Pursuant to Article 261 Paragraph 5 interrogation may be conducted by the state prosecutor or the police (in which case the state prosecutor approves the interro-gation by the police, and the suspect must consent to it and have the defence lawyer present).
It should be noted that the state prosecutor must have at his disposal the information on the defendant (Art. 289) which has mostly been obtained in the course of the suspect’s interroga-tion. Some writers hold that the state prosecutor should always, when the circumstances allow it, use a direct indictment, thus significantly accelerating criminal proceedings, which would simplify the proceedings to a great extent.18
VII
As opposed to the direct indictment which is brought without previous investigation, the in-dictment can be brought at the main hearing, which simplifies the procedure by eliminating both the investigation stage and the indictment stage. The previous CPC stipulated such a si-tuation in two cases: 1) when the indictment is amended to include a criminal offence commi-tted or discovered during the main hearing, 2) when another person commits a criminal offen-ce at the main hearing during a court session. Both of these cases are listed in order to ensure the criminal proceedings are efficient and since such criminal offences are committed at the main hearing and fall under the category of flagrant criminal offences, judging from the point of view whether or not they can be proven, a ruling can be made immediately. In addition, tri-al based on the indictment brought at the main hearing for an offence committed by another person apart from simplifying, i.e. accelerating, the proceedings has justification both in poli-cyl reasons and criminal law, as the punishment should set an example for others and serve as a deterrent, since the offence in question demonstrates special brazenness in terms of the time and place of the offence.19
The new CPC has eliminated this option for the amendment of the indictment at the main he-aring in the above mentioned cases leaving the prosecutor with the option of following a re-gular path to the indictment. The reasons for this change are not known, however, it seems unjustified.
18 MilanŠkulić,PhD:KomentarZakonikaokrivičnompostupku,Podgorica2009,p.837 19 TihomirVasiljević,PhD:Op.cit.,p.522
VIII
The simplification of the form of proceedings, i.e. departing from the general form (of the ordi-nary criminal proceedings), may be legislated in various ways. One possibility is to fully regulate a special form for certain criminal offences or certain perpetrators (as is the case in some countri-es with the specially regulated proceedings involving juvenile offenders). Alternatively, the CPC can just regulate the variations of the general form of the criminal proceedings which means that the general form is applied in cases that are not regulated by the special provisions. The latter va-riant is stipulated in our CPC, therefore these are not special proceedings, which is a term often encountered in the literature20 on this subject, but criminal proceedings that partly follow the ge-neral form and are partly governed by the special provisions.
IX
With regard to the simplified forms of proceedings, in the light of the provisions of the CPC, they are most prominently featured in the summary proceedings for criminal offences punishable by a monetary fine or a term in prison of up to five years as the main penalty (Art. 446), while issues that are not specially regulated by the provisions on the summary proceedings are subject to the general provisions of the CPC accordingly. These proceedings according to the new CPC are no longer restricted to a certain type of courts (previously it was used only in basic courts), but in-stead they depend on how serious the criminal offence is, based on the type and harshness of the sentence that can be pronounced for such an offence.
Summary proceedings are special not only due to the fact that pre-trial proceedings are omitted
Summary proceedings are special not only due to the fact that pre-trial proceedings are omitted