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Abuse of procedural powers in criminal proceedings

Niš, 09.11.2023.


This year's third lecture, for the second generation of participants, as part of the training program Strengthening Capacities for Judicial Reform - Southern Serbia, was held by Dr Ivan Ilić, associate professor at the Faculty of Law of the University of Niš, and the president of the Moot Court Club Iustitia Niš and Andrija Ivić, public prosecutor in Higher Prosecutor’s Office in Niš and member of the Board of the Prosecutors Association of Serbia. The title of the lecture is Abuse of Procedural Powers in Criminal Proceedings.



As an integral part of the principle of the rule of law, the criminal justice system in Serbia is seriously damaged by the abuse of procedural rights and guarantees in criminal proceedings. Consequently, some criminal proceedings do not receive an epilogue in the form of final judgment due to statute of limitations, avoidance of appearance in court by defendants, and other similar ways of abuse of procedural rights, which are committed by almost all participants in criminal proceedings. 

 

Abuse of procedural rights in criminal proceedings seriously violates the principle of the rule of law because in such situations, the accused avoids criminal conviction due to abuse of rights in criminal proceedings, and proceedings last too long, which further impairs the efficiency of the proceedings, as well as the right to a trial within a reasonable time. The lack of criminal sanctions for perpetrators of criminal acts directly means the injustice of the rights of those injured in criminal proceedings. 



Among other things, the lecturers emphasized: 

 

• abuse in criminal proceedings can originate from any participant in the proceedings, including the injured party; 

• against the order to conduct the investigation, the suspect has no legal remedy, which is not an adequate solution; 

• the complexity of the procedure, i.e., a larger number of defendants, increases the possibility of obstruction; for example, in a proceeding in which there are 12 defendants and the same number of defense attorneys, a total of 24 people must be present at the main trial at the same time; 

• the current solution, according to which a privileged witness can use such capacity from the beginning to the end of the procedure, is not a good solution; it would be an adequate solution if this property could be invoked only once during the duration of the procedure; 

• it is necessary to combine the pre-investigation procedure and the investigation into a single procedure because this way, we have unnecessary duplication of procedures; 

• our criminal procedure is a combination of the Anglo-Saxon and the continental model, and in practice, this does not prove good; 

• the number of dismissed cases because of the statute of limitation is not large, but when it happens, it is the biggest defeat for the criminal procedure. 

 

The lecture was realized with the support of the Open Society Foundation. 




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