Introduction
Theoretical part of this paper deals with special evidentiary actions, which represent punctum sa-liens of the analysis, i.e. the actions which have been adapted through the new criminal proce-dure norms to the prosecutorial investigation, which has been introduced for the first time into the Serbian criminal law.3 Although the public prosecutor influenced considerably the course and the direction of the investigation even when the investigation was conducted by the investi-gating judge in order to ensure that the potential charging document, which would be filed after the investigation4, was firmly founded in facts, the prosecutorial investigation is expected to add to the prosecutor’s actions by assigning him the leading role during the investigation, by entrust-ing the investigation to the authority which should naturally assume this role anyway. Entrustentrust-ing the investigative function to the public prosecutor reopens the question of how to clearly define the public prosecutor’s role within the legal system of the Republic of Serbia.5 Finally, by transfer-ring the investigation under the jurisdiction of the public prosecution, the process of strength-ening the position of the public prosecutor during the preliminary and investigative proceedings
1 Prosecutor for Organised Crime of the Republic of Serbia.
2 Senior Advisor at the Prosecutor’s Office for Organised Crime of the Republic of Serbia.
3 Namely, the provisions of the Criminal Procedure Code passed in 2011 (Articles 295-312 of the CPC) which have introduced the prosecutorial investigation into the ordinary Prosecutor’s Offices of the Republic of Serbia since October 2013, have abolished the term investigating judge after 123 years of its use, considering that the Law on Investigating Judges was passed on 17 April 1890 introducing the institute of investigating judge modeled after the Austrian Criminal Code of 1873. Milan Milošević and Tanja Kesić Policija u krivičnom postupku, Academy of Criminalistic and Police Studies, Belgrade, 2009, p.
32-4 Dr Vojislav Đurđić and Danilo Subotić, Procesni položaj javnog tužioca i efikasnost krivičnog postupka, Association of Public Prosecutors and Deputy Public Prosecutors, Belgrade, 2010, p. 25.
5 A more detailed analysis of this issue would go outside of the scope set for this paper, so let it be just mentioned that the dilemmas which are related to placing the prosecutor on one of the two poles are whether the prosecutor is a judicial authority or the authority which leans toward executive power. This has been a recurrent theme in our practice and theory. See more on this in: Group of authors, Javnotužilački priručnik, Association of Public Prosecutors and Deputy Public Prosecutors, Belgrade, 2009, pp. 19-21.
(previously, preliminary investigation and preliminary criminal proceedings), which started with the Amendments to the Criminal Procedure Code (1953)6 passed in 1973,7 has been completed.
After the theoretical part, which provides some basic reference points regarding the theoretical aspect of special evidentiary actions, the paper focuses on the current regulations which regulate special evidentiary actions and on meticulous analysis of the applicable regulations while point-ing out the differences compared to the provisions that used to be stipulated by the Criminal Procedure Code (2001).8 The provided analysis of the current regulations represents an attempt to draw attention to some contentious issues which have arisen during the implementation of the Criminal Procedure Code (2011)9 regarding the said special evidentiary actions and to demon-strate how the court decisions have dealt with the issues in question.
Special evidentiary actions –theoretical aspect
the evidence is defined in criminal procedure law as the factual data on the criminal offence and its perpetrator, which can establish or eliminate the relation between the facts and the law.10 Therefore, the evidence is the element which connects the facts and the law, i.e. which enables the application of law to a particular state of facts. The evidence represents a source of informa-tion which follows a single general pattern which dictates that every activity in the outside world leaves certain traces which are either in the said outside world (material evidence) or in the con-sciousness of people (testimonial sources of evidence).11
Criminal Procedure Code stipulates more or less in detail which particular actions have proba-tive value in criminal proceedings both under special regulations regarding particular activities which are related to evidentiary actions and under other provisions which regulate other activ-ities which are relevant to evidentiary proceedings but are not related specifically to evidentiary actions.12 Chapter VII of the Criminal Procedure Code (2011) is entitled “Evidence” as opposed to Chapter VII of the Criminal Procedure Code (2001) which was entitled “Evidentiary actions”.
When it comes to special evidentiary actions in particular, they are often referred to as special evidentiary, i.e. investigative, techniques and they represent particular methods of collecting ev-idence which are not typical in themselves and therefore are only used with regard to certain criminal offences, which are on the one hand, very severe, i.e. serious, both in terms of the facts considering the real life consequences they cause and from the point of view of the criminal law, considering the sanction that is stipulated for the said offences while on the other hand, such of-fences are difficult to detect, resolve and prove through the use of regular evidentiary methods due to their characteristics as a phenomenon, as well as due to psychological and other attributes
6 Official Gazette of the Federative People’s Republic of Yugoslavia no. 40/53
7 Dr Stanko Bejatović, Krivično procesno pravo, Savremena administracija, Belgrade, 2003, p. 94.
8 Official Gazette of Federal Republic of Yugoslavia no. 70/01, 68/02, Official Gazette of the Republic of Serbia no. 58/04, 85/05, 85/05, 115/05, 46/06, 49/07, 122/08, 20/09, 72/09, 76/10, 72/11, 121/12.
9 Official Gazette of the Republic of Serbia no. 72/11, 101/11, 121/12, 32/13, 45/13.
10 Dr Zagorka Jekić, Dokazi i istina u krivičnom postupku, Faculty of Law at the University of Belgrade, Belgrade, 1989, p. 47.
11 Ibidem, p.48.
12 Dr Milan Škulić, Komentar Zakonika o krivičnom postupku, Faculty of Law in Belgrade and Official Gazette of the Republic of Serbia, Belgrade, 2011, p. 336.
of their perpetrators.13 This is what has led to the introduction of the so-called special investiga-tive techniques, i.e. the special evidentiary actions, into the modern criminal procedure legisla-tion as well as to the modificalegisla-tion of the use of otherwise convenlegisla-tional evidentiary instruments with regard to such criminal offences. Conventional forms of collecting and securing the evi-dence have been proven to be insufficient for the prevention of the most serious forms of crime, therefore modern states have resorted to new procedural forms of gathering evidence even if it means infringing the right to privacy and other human rights.14
The most complex issue regarding the special evidentiary actions is the issue of their scope, i.e.
type of the criminal offences which are subject to them and the conditions under which they are to be undertaken. Special evidentiary actions must not be applied too widely because they then infringe human rights and freedoms,15 but they must not be to restrictively applied either, since they do not have any effect then. It is a matter of constant weighing what is more valua-ble: strengthening individual’s freedoms and rights, which imposes limitations on the repres-sion the criminal law necessarily entails, or strengthening the powers of the state ensuring the fight against crime is more efficient but at the expense of the individual’s freedoms and rights.16 However, the application of special evidentiary actions is not called into question when it comes to the most serious and the most complex criminal offences and especially regarding the crimi-nal offences involving organised crime.
Organised crime undoubtedly represents one of the most dangerous forms of crime today. It may be said that organised crime has become some sort of a multinational industry which provides a huge opportunity for generating profit and it crosses national borders and does not recognise state sovereignty.17 The damage organised crime causes to the state and its citizens is impossible to estimate and it may be judged from a political, social and economic point of view.18 This is a special type of criminal activity which is characterised by numerous specific qualities compared to the other types of crime. One of its special features is certainly that it is difficult to prove if the criminal offences related to organised crime have been committed, particularly through the use of conventional evidentiary means. It is this evidentiary deficit, which is inherent to this type of criminal offences, that represents ratio legis for the introduction of special evidentiary actions.19
13 Dr Milan Škulić, Komentar Zakonika o krivičnom postupku, Faculty of Law in Belgrade and Official Gazette of the Republic of Serbia, Belgrade, 2011, p. 307.
14 Group of authors, Priručnik za primenu Zakonika o krivičnom postupku, Association of Public Prosecutors and Deputy Public Prosecutors and OSCE, Belgrade, 2013, p. 123.
15 When considering the rights which would be restricted by the use of special evidentiary actions, it must be taken into account that not all rights are at the same level when it comes to limiting them during the criminal proceedings. Ashworth and Horder, for instance, divide the rights into categories of non-derogable rights, such is the right not to be subjected to torture or some other inhumane treatment during the criminal proceedings, strong rights, such as the right to a fair trial or the right to liberty, and the rights which may be restricted (qualified rights) which include the right to privacy (to a private life). Dr Andrew Ashworth and dr Jeremy Horder, Principles of Criminal Law, Oxford University Press, 7th edition, 2013, pp. 50-51.
16 Dr Zoran Stojanović states that safe society and a safe individual within it require sacrifices and restrictions with regard to basic civil rights and liberties. When safety is the chosen direction in criminal law, it always means both toughening and expanding the repression of the criminal law. Dr Zoran Stojanović, Preventivna funkcija krivičnog prava, Crimen no. 1/2011, Belgrade, 2011, p.5.
17 Group of authors, Borba protiv organizovanog kriminala u Srbiji, Dosije, Belgrade, 2008, p. 31.
18 Organised crime incurs costs through the fight against it, reduces tax revenue of the state, incurs costs of medical treatment of drug addicts, causes citizens to feel unsafe because they can be endangered while using the Internet when they are completing transactions at ATMs or terminals for electronic payments, it disrupts the real estate market and causes many other consequences which are hard to quantify. Dr Slaviša Vuković and dr Nenad Radović, Prevencija organizovanog kriminala, Dosije, Belgrade, 2012, p. 125.
19 Dr Milan Škulić refers to special evidentiary techniques as special evidentiary actions, while the heading related to the special evidentiary actions in the Criminal Procedure Code (2001) reads: “Measures of Law Enforcement Authorities for Detecting and Proving Criminal Offences referred to under Article 504.a of this Code“ whereas the heading under which the undercover investigator and cooperating witnesses are mentioned reads: „Special Measures of Law Enforcement Authorities for Detecting and Proving Criminal Offences referred to under Article 504.a, para. 3 of this Code“, Dr Milan Škulić, Komentar Zakonika o krivičnom postupku, op.cit., p. 1228.
On the other hand, there are opinions that may be encountered in theory that it should be re-ex-amined whether it was justified to allow the criminal law today to diversify so much and conse-quently the special evidentiary actions as well.20 Despite the valid arguments regarding the pro-tection of human rights, the Prosecutor’s Office for Organised Crime holds that when proving that a criminal offence related to organised crime has been committed, the use of special eviden-tiary actions is necessary and it is worth mentioning that there are no registered abuses related to the use of such measures in practice.21 The use of special evidentiary actions in particular should not be questioned when the powers of the prosecutors are not extended just during the investi-gation, in which the prosecutor is now the authority conducting the proceedings, but also at the main hearing during which the role of the court is now reduced to a minimum according to the common law tradition.22 Depriving the public prosecution of the option to use special eviden-tiary actions would practically mean “tying the hands” of both the Public Prosecutor’s Office and the state when it comes to combating organised crime.23
The lack of evidence is the result of the so-called conspiracy of silence, which is typical within the organised crime groups, and this does not just refer to the compact cohesion of the members of such criminal groups themselves, who remain silent after the arrest24 but also the silence of the witnesses of the crimes committed by the organised crime groups since they are afraid they would be exposed to danger if they testified against the members of such a group. Furthermore, there are views that the number of reasons why ordinary citizens remain silent before the ju-dicial authorities has multiplied recently.25 How important is the application of special eviden-tiary actions may be confirmed by the fact that this issue was regulated over the last decade of the 20th century and the first decade of the 21st century at an international level, inter alia due to
20 For instance, dr Zoran Stojanović argues that modern tendencies, when it comes to response provided under criminal law, raise serious questions regarding the civil rights and liberties and the very state the citizens, who are affected by these, live in. He raises the question if organised crime, terrorism and corruption are really such forms of crime which disturb the very foundation of a society, which cannot be suppressed in any other way efficiently but through restricting and putting at risk the basic civil rights and liberties, and also if there is any truth to the allegations that special measures and departures from ordinary criminal law, above all else, serve the purpose of meeting certain political objectives instead of enabling the suppression of particularly dangerous forms of crime. Dr Zoran Stojanović , Krivično pravo u doba krize, Branič no. 1-2, Belgrade, 2011, p. 29.
21 In any case, every civil servant, and especially the one involved in combating organised crime, is expected to be aware of, understand and strictly observe the rights and freedoms guaranteed by the Constitution, especially to uphold the principle of the rule of law and to be loyal to the spirit of the Constitution and law. Efficiency and urgency of criminal prosecution of the most dangerous criminal and terrorist groups cannot serve as an excuse for not adhering to set ethical standards. This particularly applies to the use of intrusive methods and techniques such as covert operations, intercepted communication and secret audio and visual surveillance, which may be undertaken only if the suspicion that a particular individual is involved in criminal activities is firmly based on preliminary evidence and if they have been properly authorised through the procedure stipulated by law. Group of authors, Etički standardi za kriminalističko-obaveštajni rad, Security Studies Centre, Belgrade, 2011, pp. 14-15.
22 Group of authors, Suprotstavljanje savremenom organizovanom kriminalu i terorizmu, Official Gazette of the RS, Belgrade, 2012, p. 221.
23 Some authors describe this vividly by saying that the police and prosecutor’s office, without rendering special procedural decisions regarding the evidentiary issues, would run the race with organised crime on legs made of lead, which is why they should be enabled to move more freely. Dr Darko Marinković, Suzbijanje organizovanog kriminala –specijalne istražne metode, Prometej, Novi Sad, 2010, p. 240.
24 The secrecy of a criminal organisation is certainly one of its fundamental features since the punishment for breaking the conspiracy of silence is not just death of those guilty of it but quite often of persons who are close to them as well. Dr Milan Škulić, Organizovani kriminalitet, pojam i krivičnoprocesni aspekti, Dosije, Belgrade, 2003, pp. 47-48.
25 Dr Jovan Ćirić in his text “Prosecutors and the Conspiracy of Silence in a New Guise” (Tužioci i zavera ćutanja u novom ruhu) argues that at a time of the current economic crisis, when it is extremely hard to get a job, the person who used to keep silent to avoid getting killed, now does the same to avoid losing his job which would endanger his livelihood and the livelihood of his family members.
Group of authors, Zakonik o krivičnom postupku i javno tužilaštvo, Association of Public Prosecutors and Deputy Public Prosecutors, Belgrade, 2009, p.227. It is indisputable that money laundering is one of the criminal offences which is typically related to organised crime and that “dirty” money is often transferred to legal entities which employ a lot of people who have nothing to do with the criminal activities of the management of the said entity. Is it within the realm of possibility to expect them to report money laundering is taking place since even if they do so anonymously, thus excluding the personal sanction their employer would subject them to, according to the Law on Liability of Legal Entities for Criminal Offences (Official Gazette of the Republic of Serbia no. 97/08) the legal entity they work for may be sentenced to pay considerable fines, which may cause the said legal entity to go bankrupt, or poena capitalis may be pronounced folding the company? Who would choose legal action over securing their livelihood?
the realisation that organised crime cannot be successfully combated unless this is done on the international level.26 As a result, the UN Convention against Trans-National Organised Crime (Palermo Convention),27 which was ratified by the Republic of Serbia as well, regulates special in-vestigative techniques under its Article 20. In any case, certain special evidentiary actions cannot be undertaken, by definition, without efficient international cooperation as is the case with the controlled delivery. It is no coincidence that the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention),28 as the first international document which stipulated the use of some special investigative technique, has regulated under Article 11 the aforementioned controlled delivery.29
Special evidentiary actions in practice
Basic Provisions
It should be emphasised at the beginning that the CPC (2011) stipulates six special evidentiary actions in total as follows: covert surveillance and recording, simulated (business) deals, com-puter-assisted data searches, controlled delivery and the undercover investigator (undercover agent). The institute of the cooperating witness in the CPC (2001) was under the category of
“Special Measures of Law Enforcement Authorities for Detecting and Proving Criminal Offences referred to under Article 504.a, para. 3 of this Code“ together with the undercover investigator.
However, this institute, with slightly modified content and under the term cooperating defend-ant is under the category “Agreements of the Public Prosecutor and the Defenddefend-ant” and not un-der special investigative actions so this is not going to be discussed in this paper.
Special evidentiary actions were dealt with under a special chapter in the CPC (2001) while in the layout of the CPC (2011) they are moved under the general provisions on the evidence. There are views that moving special evidentiary actions under the general provisions on evidence is a significant change since this has extinguished a type of proceedings, which was special accord-ing to all of its characteristics, riskaccord-ing that special evidentiary actions, which should be used only
Special evidentiary actions were dealt with under a special chapter in the CPC (2001) while in the layout of the CPC (2011) they are moved under the general provisions on the evidence. There are views that moving special evidentiary actions under the general provisions on evidence is a significant change since this has extinguished a type of proceedings, which was special accord-ing to all of its characteristics, riskaccord-ing that special evidentiary actions, which should be used only