Odredbe o organizaciji prethodnog krivičnog postupka nacrta ZKP Srbije iz aprila 2010. godine upoređene sa odgovarajućim odredbama italijanskog ZKP

Abstract

The new Law on Criminal Procedure, third in a row in the last ten years, is being hastily prepared in Serbia. Like its unsuccessful predecessor, the Law on Criminal Procedure from 2006, which was canceled after long hesitation and was never applied in practice, the new Law should also introduce in our case law certain procedural institutions based on the ideas of the common-law legal culture. The most important feature among these institutions is the new organization of the preliminary criminal procedure in which the current court investigation would become the activity of a public prosecutor and police i.e., activity of administrative authorities. This transplantation experiment has been followed by a great confusion and lack of understanding from the start. The reform has started with an unreasonable belief that it will solve some of the most important difficulties that we have today in the criminal procedure, although it was not clear enough how did the new model of the non-court preliminary criminal procedure work in the law from which it was taken from or what kind of difficulties would occur in our law after we introduce it. When it became evident that the new investigation model cannot be introduced without adaptation, the new hybrid solutions were made, and the original was adapted to the domestic conditions, which in the author's opinion, threaten to endanger some of the basic principles of the traditional criminal procedure. Italy was the first European country that made such an experiment more than two decades ago, which cannot yet be definitely appraised from the aspect of efficiency. In Italy it provoked serious conflicts between their courts and parliaments, and frictions between new (transplanted) and inherited criminal procedural law. Those preliminary difficulties have been overcome though time by several interventions of the Constitutional court and parliament, which had amended the law several times and the Constitution itself. In this paper the author gives a comparative-legal review of the provisions of the Criminal Procedural Law from 1988 that relate to the organization of the preliminary procedure and correspondent provisions of the draft new Law on Criminal Procedure of Serbia, hoping that this analysis may be useful for the final review of the new Serbian Law on Criminal Procedure.