Legal theory considerations into individual aspects of judicial prerogatives in criminal matter

• Main Author: Drakić Dragiša
• Format: Article
• Language: English
• Published: University of Novi Sad, Faculty of Law 2011-01-01
• Series: Zbornik Radova: Pravni Fakultet u Novom Sadu
• Subjects: court; criminal procedure; judicial prerogatives; determination of facts; application of the law; legal theory aspects
• Online Access: http://scindeks-clanci.ceon.rs/data/pdf/0550-2179/2011/0550-21791101309D.pdf

This article examines from the legal theory standpoints, problems relating to the most important aspects of exercising judicial prerogatives in criminal matter, which sheds lights on the nature of exercise of judicial function in criminal procedure. Following introductory thoughts on the notion of the court in general and on the notion of the criminal court, in particular, the author, in the first part of the article, analyzes and later offers a critical review on preconditions for the exercise of judicial powers by the criminal judge that are both correct and legally sound. In the central part of the article the author looks at two crucial activities of the judge upon which rendering of a legally sound and just decision in criminal procedure depends on - the determination of facts and application of the law. As for the process of determining facts, the author concludes that this is the most complex and the most responsible activity the judge undertakes in the criminal proceedings. The author supports this statement with in-detail explanation and convincing argumentation. In the next part of the article, the author offers analysis of nothing less complex notion of the application of the law, with particular emphasis on the segment of that activity often referred to as the application of the law in the narrow sense of the word. At the end, the author concludes that 'when rendering a decision, regardless of whether on determining facts or on the application of the law, the personality of the judge, as a decision maker, should never be excluded, since judiciary is a keeper of a true law and is not the executioner of legality'.