Actions and Measures of Procedural Enforcement and Special Investigative Methods in the Criminal Procedure Act of Bosnia and Herzegovina, in View of Fighting Organised Crime

Abstract

As organised crime becomes a worldwide problem, the adequacy of the existing means and methods of fighting crime are increasingly being questioned and a radical change in dealing with organised crime at an international level is being called for. Faced with the threat of organised crime, many countries and the international community have initiated special organisational and procedural rules (legislation) addressed at crime curbing and prevention. Such rules deal with, criminal liability and sanctions not covered by the generally accepted principles of criminal law, and establish new bodies specialised infighting organised crime. The jurisdiction of these new bodies is much broader than that of ordinary criminal procedure institutions.

In addition to material and organisational criminal legislation, the fight against organised crime demands special criminal procedure legislation since experience has shown the traditional procedures to be largely inadequate. For example, traditional procedural methods for establishing evidence are replaced by new and more efficient solutions, involving the use of modem technology as well as innovative procedures undertaken by criminal investigation units. Thus the Criminal Procedure Act of Bosnia and Herzegovina allows for: interception and monitoring of telecommunications, access to computer systems and critical databases, audio and video surveillance of premises, audio or video monitoring and recording of individuals or objects. The Act also deals with, under-cover investigators and informers, simulated purchase of goods, simulated bribery, and surveillance of transport and delivery of incriminated goods. These methods of fighting organised crime are of extremely delicate and dangerous nature as they may be abused, and may stand in conflict with the human rights guaranteed by The Constitution of Bosnia and Herzegovina and the European Human Rights Convention.

Certain other measures and methods are undertaken by criminal investigation units in order to enable the fulfilment of a criminal act and prevent the evasion of punishment. When it comes to actions and measures of procedural enforcement aimed at gathering evidence and objects critical for establishing the facts (e.g. search of persons or premises, temporary suspensions, physical or psychiatric examination), they may apply to the suspect or the accused, or they may apply to other persons. Measure undertaken to ensure the presence of the suspect or the accused, and to ensure the smooth running of a criminal procedure (Le. summons, appearance at hearing, prohibited leave of dwellings, bail and detention in custody), seriously infringe on the citizen's right to personal freedom (Article II, paragraph 2, point D) as defined by the Constitution of Bosnia and Herzegovina, and as such they are specifically defined in criminal legislature (Chapter X, Article 123-147. Criminal Procedure Act of Bosnia and Herzegovina). As a rule, the decision to apply these measures is placed in the jurisdiction of a court of justice. The atm of these measures is to ensure the establishment of evidence, the launch of a criminal procedure and the reaching of a sentence in accordance with the law, as well as to possibly prevent the defendant from committing other crimes in future.

The suppression, marginalisation and gradual elimination of organised crime require a long-term battle consisting of a series of phases, a battle which stands a chance of success only if endorsed by the broader social community. It is of primary importance to ensure a political consensus of all the democratic parties in how to tackle this most serious threat to the safety of Bosnia and Herzegovina. Apart from passing the necessary legislation - The Court of Justice Act of Bosnia and Herzegovina, The Prosecution Office Act of Bosnia and Herzegovina, The Criminal Procedure Act of Bosnia and Herzegovina, The Criminal Code and The Witness Protection Act - priority should be given to coordinating national legislative standards and internal affairs with the international standards and the European Community legislation, as well as to controlling of the police and ensuring judicial independence. Achieving these priorities demands a closer cooperation with the international organisations such as the Interpol, the Europol and the FBI, as well as with the police in the neighbouring countries and other countries in the region.