МОГУЋНОСТИ И ГРАНИЦЕ АМЕРИКАНИЗАЦИЈЕ ГЛАВНОГ ПРЕТРЕСА ПРЕМА ЗКП СРБИЈЕ ИЗ 2011. ГОДИНЕ
POSSIBILITIES AND LIMITATIONS OF AMERICANIZATION OF TRIAL PROCEEDINGS UNDER THE 2011 SERBIAN CRIMINAL PROCEDURE CODE

Summary/Abstract: National legislation is not an isolated phenomenon which would ignore the developments in its environment. In that context, we can discuss the tendency that certain European-Continental procedures are drawing closer to the Anglo-Saxon law. Some authors even point to the Americanization of the European-Continental law as a certain form of globalization in the field of law. This trend is prominent in all the states of former Yugoslav, including Serbia. The 2011 Criminal Procedure Code of Serbia introduced the adversarial trial procedure, which is marked by an almost completely passive role of the court in fact-finding proceedings and a formal abandonment of the principle of establishing the truth. The author raises several questions: Was there a real need for this? What was gained and what was lost by introducing this type of procedure? Were all the prerequisites fulfilled? What hybrid solutions were adopted? Which provisions are imprecise, incomplete and contradictory, and which are unjustifiably absent or unchanged? The author argues that uncritical transplantation of foreign procedural solutions into the Serbian national legislation, or their non-compliance with the traditional procedural principles can be counterproductive. Not only can it constitute an artificial outgrowth without major practical effects, but sometimes it can be even devastating from the standpoint of an adequate protection of interests of certain participants in criminal procedure.

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