engleski

Court and out-of-court settlement in criminal proceedings as the simplest way to complete the procedure

In Croatian criminal justice legislation, the fully implemented and standardized settlement, apropos a judgment under the Agreement of the Parties, as an alternative and agreed way of completing the criminal procedure, was done by the amendments of the Criminal Procedure Code in 2008. By such alternative regulation of process capabilities, Croatia joined the legal systems that had fully implemented conciliatory way of completing the criminal procedure as de iure as well as de facto. In this paper the author will try to analyze and point out the occurrence of so-called concealed agreement, since our legislator limits the possibility of achieving a strictly formal settlement under the Plea guilty and sanctions Agreement cogently to the phase of accusations exposure. However, in judicial practice the possibility of concealed negotiation and informal settlements has proved to be effective and has taken up a significant percentage of the total number of criminal proceedings. Analyzing the final judgments of the Municipal and County Courts in Split, it is logical to conclude that all those judgments that became valid after the first-instance decision, that is, without the appellant's or prosecution's appeal, are essentially the result of the concealed agreement or settlement. At European and global levels, the achievement of a formal or informal, out of court settlement has proven to be the most effective model of finishing criminal proceedings. In spite of its noticable restrictions, such as the lack of "specific" mitigation of punishment, reserved for formal Plea guilty and sanctions Agreement, concealed agreement has become implemented through practice in a strictly formal court proceeding, overcoming this legal gap. This paper attempts to point out a legal disadvantage caused by a strictly formal limitation of possibility for achieving Plea guilty and sanctions Agreement at a certain stage of the proceedings, since the courts praxis has shown that, at some point, during the lengthy court proceedings, partially derived evidence and financial burden of defense costs, defendant would like to conclude a procedure by formal settlement. A settlement that appllies the principle of "specific" mitigation of punishment, which would be appropriate at all stages of criminal proceedings, with the appliance of the principle of guilt individualization and compliance with the basic principle of legality. Such a model would represent a step towards modern tendencies of mixing, at a glance, the essentially different principles of legality and opportunism.

court settlement, out of court settlement, criminal proceeding, concealed settlement, plea guilty, plea guilty agreement, sanctions agreement

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