Utvrđivanje činjenica u krivičnom postupku - ima li pravde bez istine?
Davidov, Strahinja L.
Faculty:Универзитет у Нишу, Правни факултет
Đurđić, Vojislav D.
Knežević, Saša S.
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The underlying reason for the research at hand is the legal acculturation in the area of criminal procedure law, which can nowadays be observed in real time. In accordance with the above, the first section of the paper starts off with a panoramic presentation of the continental European procedure, investigating its causes, while the culmination is reached in a gradual manner: by progressively transforming the research's outlines into the firm contours of the main topic. The core of the research is examining the relationship of two opposed concepts: the traditional one placing the certainty about a decision's correctness into the center of the notion of its legitimacy and the upcoming one that draws the legitimacy of decisions from procedural fairness itself. The paper's central idea is the thesis that the criminal procedure is more than a proceeding, i.e. that the idea of justice as a moral category is deeply embedded into its foundations. Such idea's elaboration consisted before all of
reckoning with the furious forces of skepticism, as well as with moral and cultural pluralism and relativism, but also carefully removing the patina layered on procedural artifacts of elder days. The anguish at the main concept's birth brought about a myriad of incidental, however equally important conclusions. One of them pertains to the question of persons empowered to establish facts. Accepting the thesis that the state of affairs is to be established exclusively by the court, which is then to present it in a reasoned decision, represents, according to our view, the application of the investigative maxim and the principle of the inquisitorial approach to exploring the truth. On the other hand, adopting the pluralist concept on the persons vested with the right to establish case facts inevitably leads to viewing the procedure as an adversarial one involving both parties, to the legitimization of decisions through procedure and thus to the exaltation of Anglo-American procedural forms. Turning to the past also led us to essential discoveries. We thusly concluded: the belief that we are faced with the best of all possible methods of decision making is embedded to the very foundations of the jury system. The jury as an institute kept its charismatic characteristics originating from times when the Anglophone jury replaced God and when both parties to a trial believed in the justness of "God's will". This is where the thesis derives from, according to which the doctrine of a fair trial receiving its legitimacy by procedural fairness represents in fact a belated rationalization of adversarial criminal proceedings. For, before the times of "procedural puritanism", the common law procedures were led by impulses of material justice and fairness. The belief in the impeccability of twelve honest people also contributed to the described spirit of proceedings. It was only at the apotheosis of human rights at the second half of the past century that the principle "procedural fairness" found its avid followers. Finally, the genealogy we followed opened up certain new viewpoints in examining the range of legal acculturation. This procedure, according to our opinion, may succeed only if the concept of a criminal procedure as a dispute between parties is unconditionally adopted in the continental legal systems. This, however, comprises more than simply adopting a theoretical pattern: embracing traditions stemming from the geographical and psychological isolation of an island as our own, as well as identifying with procedural mechanisms created by applying the past to the present within an entirely different cultural and legal environment. Rescuing the principle of truth investigation is a difficult and, due to its own conception, an impudent venture. Yet, while trying to tackle the "skeptical dragon" and driven between the Scylla and Charybdis of various sociological theories and philosophical speculations, the leading idea throughout the paper was the following thought: the degradation of truth within criminal procedure is mostly based on wrongly equalizing the "unknowable" in sociological theories of cognition and philosophy with the "unknowable" in the criminal procedure. For these are two entirely different aspects of impenetrability. Namely, according to common sense, criminal procedure indeed belongs to the level of everyday life. It is part of the stock of available knowledge simultaneously being limited to the reality of everyday life that is not brought into question by anyone. And thus we ultimately concluded that there is no justice without truth.View More
Keywords:krivični postupak, činjenično stanje, procesne forme, načelo istine; criminal procedure, factual state, procedural forms, principle of truth