(НЕ)ЗАКОНИТОСТ ПОСЕБНИХ ИСТРАЖНИХ РАДЊИ
(NO)LEGALITY OF SPECIAL INVESTIGATIVE ACTIONS

Summary/Abstract: In this paper we dealt with the question of the legality of the evidence obtained through the use of special investigative actions. Тhe recent practice of the European Court of Human Rights in the case of Dragojević v. Croatia and Bešić v. Croatia, as well as domestic case law comfirms how important this issue today is. The imortance of this issue is also confirmed by a decision of the Constitutional Court of BiH. These judgments provoked us to analise the issue of the significance of the expenation of the order on the conduct of special investigative actions. Thus, from the rationale of each court decision, and so orders, it must be clear and undisputed that it follows that all legal standards are met for undertaking some of the special investigative actions, since they are the same extreme in the gathering of evidence. In order to point out the importance of extremely careful resorting to the application of special investigative actions in the collection of evidence on the execution of a criminal offense, we have conditionally compared them to the institute of the necessary defense. Namely, an authorized official person applying a special investigative action in order to prove that the suspect has committed some of the crimes of the catologue is confused with the private and family life of the suspect. By doing this, an authorized official legitimizes the mixing in private and family life from the existence of the basis of suspicion that a person has committed or threatened to commit one of the crimes that endanger the life and health of people, the security of the state. In order to regard the evidence as rigged in this way as a legally authorized official, the person has the legal duty to move within the bounds of the court order on the conduct of special investigative actions. However, the consequences in terms of not acting on the basis of a court order are not only illegal evidence, but also overstepping the authority of an authorized official in obtaining evidence. When it comes to the legality of the evidence obtained by special investigative actions, it was somewhat absurd for us to find a decision of the Constitutional Court of BiH, which is considered to be legitimate evidence obtained on the basis of an order to conduct special investigative actions issued prior to the order to conduct an investigation. For this thesis of the Constitutional Court of Bosnia and Herzegovina we did not find a justification in the legal provisions of the Criminal Procedure Code of Bosnia and Herzegovina. This decision seems absurd to us, as the legislator clearly defines that the investigation is considered to be initiated by the issuance of an order to carry out the investigation, and functionally competent for issuing an order on the conduct of special investigative actions, pre-trial judges. First of all, this decision seemed incomprehensible to us because it is possible to collect evidence regarding a criminal offense for which no investigation was launched. Furthermore, the legislator clearly states that the preliminary procedure judge is acting in the course of an investigation in cases regulated by law. Having an insight into this legal provision, it remains unclear how a preliminary procedure judge can undertake certain assessments of an act if the investigation is not initiated. And so it becomes incomprehensible and illogical, and contrary to the law of the Constitutional Court’s decisions. However, we conclude that this decision has been made and that one of the human rights of Article 8 of the ECHR is formulated.

• Details
• Contents