Reflections on reform of Croatian criminal procedure through the perspective of the defendant's right to a fair trial

Abstract

Croatian criminal procedure has been significantly reformed in the latest, fifth legislative amendment passed in November 2013, which was supposed to fully implement the decision of the Croatian Constitutional Court of 19 July 2012 and harmonize the Criminal Procedure Act from 2008 with the Croatian Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms. The pre-trial proceedings has been particularly thoroughly restructured, inter alia, because the original provisions of the Criminal Procedure Act, which replaced the traditional judicial investigation with the state attorney's investigation, considerably disturbed the balance between the dominant tendency for efficient prosecution and punishment of offenders, and requirements for respect and protection of the defendant's fundamental rights, particularly right to a fair trial. The latest legislative amendment made a significant progress in reinforcing fair trial guarantees, including minimum defence rights. Possible limitations of certain rights are conceived as necessary exceptions, and in accordance with the proportionality principle. However, particular legislative provisions are still disputable from the perspective of fundamental fair trial guarantees. For example, the possibility for the court to found the judgement on the state attorney's records of non-adversarial examination of witness, with the sole requirement that a conviction may not exclusively or to a decisive extent, be based on these records, is contrary to requirements of adversarial principle and the principle of equality of arms. The right of the arrested person to have a lawyer in the police station is proclaimed by law, but it doesn't refer to informal police interviews. Severe breach of the right to a fair trial, although conceived as an instrument of reinforcing the protection of defendant's right to a fair trial, is opposed to the concept of substantive violations of the criminal procedure provisions that actually serve to realize and protect the right to a fair trial. Therefore it is possible to conclude that the last legislative reform of Croatian criminal procedure, regarded through the perspective of the defendant's right to a fair trial, has not completely achieved its purpose.