Континентално-адверзијално утврђивање чињеница у кривичном поступку
Continental-Adversial Establishing the Facts in the Criminal Proceedings

Author(s): Ivan Ilić
Subject(s): Law, Constitution, Jurisprudence
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Legally relevant facts;Indications;Fact-finding;Establishing the facts;Adversial criminal proceedings;Continental criminal proceedings;
Summary/Abstract: In order to achieve an immediate and total (final) aim of the criminal proceedings, it is necessary to find answers to questions that have been raised in the criminal request. It is about the existence of the crime, the offender, and the fulfillment of the conditions for the application of criminal sanctions. In addition, it is sometimes necessary to take a decision on the existence of the conditions for the conduct of criminal proceedings. The decision can be made after determining all the relevant circumstances of the case. Fact-finding is one of the important characteristics of the type of criminal procedure. As each criminal matter is different, as the real event from reality, which took place in the past, in criminal proceedings establishes different types of facts. In criminal proceedings, sometimes there is a need to evaluate the credibility of a source of knowledge about the relevant legal facts. This is achieved by determining the auxiliary facts. The differences between the continental-European and Anglo-American criminal procedure, among other things, are reflected in the subjects of establishing the facts. While in the continental proceedings it is on the Court, in the adversial proceedings the facts establishes the jury. The author first deals with the notion and the types of facts, which are determined in criminal proceedings. Then the basic characteristics of modern types of criminal proceedings are presented. After that, the author deals with subjects participating in establishing the facts, according to the pro-visions of the Serbian Criminal Procedure Code (CPC) from 2011. After detailed analysis of the CPC provisions, the conclusion is that the adversial procedure, which introduced by adopting CPC from 2011, remained out of an important element – the existence of the jury. Thus, a hybrid is created, something like continental-adversial type of criminal procedure, which is reflected on the fact-finding, as well as the achievement of the objective goals of the procedure.

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