Povodom novog Zakonika o krivičnom postupku Crne Gore

Abstract

In this article, the author provided a critical overview of the Code on Criminal Procedure of Montenegro, adopted on July 27, 2009 and to be applied from end of August this year. Firstly, the author pointed out the reforms of legislation on criminal procedure which were conducted lately in several European countries, especially the so-called countries in transition (Russia, Hungary, Poland, Bosnia and Herzegovina, Croatia, Serbia etc.), but also in a number of Western European democracies (Italy, Portugal, Switzerland). How intensive these reforms are is visible from the data that in the last two decades 25 European states passed a completely new law on criminal procedure. The aim of these reforms primarily was to transform the European continental criminal procedure, which is said to be of inquisitorial structure, into an adversarial procedure, in spite the fact that many rules and institutions of a contradictory criminal procedure, organised as a dispute between two conflicted sides, have already been applied for a long time. As a consequence, many institutions of Anglo-American criminal procedure were introduced, often in a non-verified, uncritical and somewhat modish manner. The author believes that those reforms do not bring anything new and original and that this is not a way to solve problems which we have today with a really antiquated European criminal procedure. Under the influence of a general trend, there has been a change in legislation on criminal procedure in Montenegro, as well. In the second part of the text, the author provides an overview of the most significant procedural institutes and solutions of the new Montenegrin Code on Criminal Procedure, dominated by the introduction of a prosecutor/police investigation, instead of the former judicial investigation. He points out that, like in other countries of the region, substitution of the model of preliminary criminal procedure and other reform efforts were conducted in a relatively short period of time, without prior evaluation of the real value and functionality of institutes taken over from foreign legislation, without an evaluation of their adaptability and compatibility with significantly different condititions of the domestic social and legal order. For these reasons, at this moment a more certain conclusion cannot be made on the aspects for success of the reform and on possible improvements of criminal procedure in which it could result. The author believes that besides that, the work began should be continued, the application of the new Code should be closely monitored and in due course the defects which will certainly appear should be eliminated. Particular attention should be paid to reforming public services (public prosecution and the police, before all) for them to become parts of the new system and its genuine protagonists.