This article aims to review some solutions in the Criminal Procedure Code
(CPC) from 2011, which represents breaking with former Serbian and Yugoslav
tradition in criminal proceedings. These are, primarily, novelties related
to opportunism in prosecution, plea bargaining and presentation of evidence
by parties that all devalue principles of material truth determination in
proceedings. This work establishes connection between the aforementioned
solutions of Serbian legislator and the development of continental European
criminal proceeding over centuries. Comparative historical legal analysis of
these norms in the Serbian CPC begins with the key turning point in the
development of the continental European criminal proceedings - suppression of
the adversarial system by the inquisitorial proceedings in the XVI and XVII
centuries. As this change has been closely related to the transition of, up
to then, dominant type of states (feudal mosaic states to absolute
monarchies), these modern changes in criminal proceedings are analyzed not
only from the point of view of criminal procedure evolution, but also from
the point of view of the evolution of states. In England, country of origin
of Anglo-Saxon civilization, the old adversarial system was not transformed
into inquisitorial, contrary to the development of the continental criminal
proceedings. This transformation was prevented by Puritan revolution,
similarly as it prevented the transformation of English state into absolute
monarchy. Continental and Anglo-Saxon criminal proceedings have developed as
two completely separate systems since then. This article further elaborates
some of the key criminal law traditions in continental criminal proceedings
and substantive criminal law which resulted from the introduction of the
inquisitorial proceedings: development of complicity and guilt as institutes,
final suppression of self-representation, incrimination of false testimony
and perjury. These are directly related to the active role assigned to court
in inquisitorial proceedings, and to court?s obligation to determine material
truth. Changes in the role of court also result from the change of states;
while weak feudal states were satisfied with passive courts, powerful
absolute monarchies demanded courts with active role in all phases of
proceedings. Modern Americanization of some European proceeding regulations,
as it is the case in Serbia, brings discontinuation in legal proceeding
tradition of these states, but also, necessarily, influences regression into
domination of adversarial proceedings character?ized by passive court. In
continental tradition it also consequently indicates a weak state.
The Concept of Plea Bargaining Under the Czech Criminal Law and the Criminal Law of Other Countries Within the Region of Central Europe