DISCLOSURE OF EVIDENCE IN PRE-TRIAL PROCEEDINGS AND INVESTIGATION

Abstract

Disclosure of evidence to the defendant and defense counsel during pre-trial proceedings and investigations is important for the defendant to be able to devise a defense strategy and to suggest the taking of other evidentiary actions during the investigation. In European Continental States, where an investigation is conducted by a public authority, the defendant is introduced to the evidence collected by examining the case files. In the Anglo-Saxon legal system, where there is no formal investigation, there are rules governing when a party is required to disclose evidence and other information to another party.

Serbian Criminal Procedure Code stipulates that in pre-trial proceedings and investigations the defendant can not inspect the case files before the hearing. It can be concluded that the intention of the legislator was to give priority to the public prosecutor over the defense at the first hearing and to prevent the defendant from “adjusting” his testimony in accordance with the evidence that prosecutor has. Formally, the public prosecutor has an obligation to inform the defendant of the case files within a sufficient time to prepare the defense. However, it is a matter for the prosecutor’s discretion as to how long that time limit should be. When it comes to familiarizing the prosecutor with the material and evidence gathered by the defendant in the course of the investigation, such imposition of the defendant’s “cooperation” is contrary to the right to a defense by silence, the rule on the burden of proof and the presumption of innocence.