Zbornik Radova: Pravni Fakultet u Novom Sadu (Jan 2023)
Basic tendencies in the evolution of the principle of immediacy in general criminal procedure in Serbia
Abstract
The subject of our research is the evolution of the principle of immediacy in general criminal proceedings in Serbian law, with the aim of observing the basic tendencies in that development. In this article, the results of the first part of the research were published, in which the analysis and comparison of the principle of immediacy in our first two procedural codes was carried out: The Code of Criminal Procedure of the Kingdom of Serbia from 1865 and The Code of Criminal Procedure of the Kingdom of Yugoslavia from 1929. Both codes generally respected the structural, personal and temporal segments of the principle of immediacy, allowing for a number of exceptions from it. These exceptions were much more radical in the reactionary Code of Criminal Procedure from 1865, of a moderately inquisitorial type. Not only is the principle of immediacy not implemented in it with all its consequences, but it is also made illusory. The adoption of the principle of positive legal evaluation of evidence and the dominance of the inquisitorial principle contributed to that. The main trial was only a facade, behind which there was a significant possibility of penetration of investigative materials, regardless of whether it came from judicial or police authorities. In contrast, the Criminal Procedure Code of 1929 was based on procedural principles, such as accusatory, immediacy, publicity, orality, adversary, material truth and free evaluation of the criminal proceedings. The principle of immediacy was consistently implemented, with some reasonable and mostly acceptable exceptions in the structural and personal party segment. In some cases, the judgment could be based on investigative materials, but they were always CORT records. That code consistently adhered to rhe rule that no one could be tried and convicted in absentia. Its provisions aimed at preserving the continuity of the main trial are to be commended.
