Контрола оптужнице од стране осумњиченог у кривичном поступку
Indictment Control on the Part of the Defendant in Criminal Proceedings

Author(s): Mladenka Govedarica
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Public prosecutor;Indictment;Suspects;Prior objections;Court;Defendants;
Summary/Abstract: The Defense may file preliminary objections to the confirmed indictment as a remedy in criminal proceedings aimed at enabling formal and substantive control of the indictment by the accused and the defense attorney. As the previous objections are filed to a confirmed indictment or to an indictment of a public prosecutor for whom the court has already declared itself founded and justified, it is important to note that the principles of criminal procedure are the basis of the principle of equality of parties before a court in criminal proceedings, i.e. the parties must be guaranteed equal access to court with regard to the consideration of all matters relevant to the criminal matter which is the main subject of the criminal proceedings. We believe that such a legal arrangement of this remedy favors the position of the public prosecutor stated in the indictment, while the defense is given the opportunity to present an “attitude” on the indictment only when it has already been confirmed (the position of the public prosecutor has become the position of the court). Consistent with the protection of the principle of equality, we are of the opinion that the law should regulate this institute in such a way that upon receipt of the indictment by the public prosecutor, the court would only take a position on its formal correctness, while assessing the issue of material correctness after deciding on previous objections, if they were filed by the defense. Also, in such a legal order, the court would have much sounder material for trial and a more secure outcome of the main proceedings with a reduced chance of appealing against the aforementioned violations of the criminal procedure provisions. Finally, the number of dis- missals and acquittals would be reduced if it were known that certain reasons for the previous objections were finding their place among the reasons for reaching these court decisions.

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