О ИСТИНИ У КРИВИЧНОМ ПОСТУПКУ
ON THE TRUTH IN CRIMINAL PROCEDURE

Summary/Abstract: Resolving the issue of truth in criminal procedure presupposes the appropriate normative framework for establishing facts. In this paper, the authors primarily analyze the theoretical concepts pertaining to establishing facts in criminal procedure. The authors point out that the definition of facts provided by the general logic is acceptable for the theory of criminal procedure law. On the other hand, the authors criticize the definitions contained in the criminal procedure law as being incomprehensive since they do not include some important legal facts other than the determinative ones. In this context, the authors consider that, in defining the factual grounds and establishing facts in a particular case, it is useful to adopt the notion of legal facts from the general theory of law. In the second part, after pointing out that the skill of fact-finding (reflected in the discovery of accurate information by using the available sources of information) is the essence of the criminal trial, the authors provide the initial definition on fact-finding (establishing facts/factual grounds) and analyze the standpoints contained in the general theory of knowledge as well as in the criminal procedure theory. Further on, the authors review the theories dealing with the types of facts which are to be established in the criminal proceedings and subsequently focus on the participants in the process of establishing facts or factual grounds, considering that the definition of fact-finding is built on these notions. Between the monistic and the pluralistic theory, the authorsfavor the former, considering that the only facts which are relevant in the procedural reality are those established by the competent court and explicitly started in the court decision. After confronting the arguments of these two largely opposed theoretical viewpoints, the authors construct their own definition of fact-finding (establishing the truth) in the criminal procedure. Towards the end of the paper, the authors examine the legal framework for establishing the truth in criminal procedure. The authors note that, in general, there are two models: the first one is the (inquisitorial) criminal procedure distinguished by prominent public law features, where the court is obliged to investigate/examine the facts and establish the truth about the criminal event, which is the basis for ius puniendi; the second one is the adversarial procedure, whose objective to resolve the parties’ dispute in the course of a fair proceeding rather than to establish the truth. In this context, the authors criticize Serbian lawmakers for expelling the concept of truth from the criminal procedure.

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