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Scientific Study, 2012
2 Covert and technical measures of surveillance and investigation
2.1 Notion of covert and technical measures of surveillance and investigation
2.2 Comparative aspects for issuance of the covert measures from Criminal
Procedure Codes of the countries of the region
3 Covert and technical measures of surveillance and investigation
3.1 Juridical nature and legal aspects of covert measures and surveillance
and investigation techniques
3.2 Types of covert measures and surveillance and investigation techniques
3.3 Conditions and circumstances of undertaking technical measures and
3.4 Categorization of covert measures
4 Procedure of issuing the order of covert measures
4.1 The Implementation of the Order
4.2 Further actions upon obtaining information concerning the results of covert
technical measures of surveillance and investigations
The topic I have prepared for presentation is: Implementation of covert and technical measures of surveillance and investigation. Taking into consideration that the covert and technical measures of surveillance for the first time have been foreseen by UNMIK Regulation no. 2002/6 of March 18th 2002, it is righteously considered that they are new institution of the criminal procedure. By issuance of UNMIK regulation no 26/2003 of 06.07.2003 of Provisional Criminal Procedure Code of Kosova, that entered into force on April 20th 2004, along with Provisional Criminal Code of Kosova, to which on April 20th 2004 UNMIK Regulation 8/2004, criminal Code for Minors have been added, finally disrupting continuity of applicable laws according to UNMIK Regulation no. 24/99 of December 12th 1999.
Within PCCK there are numerous novelties foreseen, compared to CPC; amongst others, covert and technical measures of surveillance and investigation were foreseen. According to PCCK, in scope of his authorizations, Public prosecutor takes care and leads investigation of a criminal issue as of the moment of being informed by the police for collection of evidences required, to the decision for commencement of investigation. A special care should be taken, when the covert and technical measures of surveillance are being applied, considering that these measures jeopardize the right to privacy, guaranteed by all international acts and instruments, as well as local laws, as a basic right of living. Otherwise, these measures are foreseen in a special chapter of PCCK, where the nature and techniques of proceedings are elaborated.
Taking into consideration that in our country criminal judicial procedure is being implemented, consisted of three phases: the phase of investigation proceedings, of court processing and the phase of work by means of judicial tools, the Public prosecutor within the scope of his authorizations, should be non-partisan, independent and professional, in order to proceed a criminal issue.
Of the three phases characterizing criminal-judicial procedure, upon PCCK, the phase of investigation proceedings, goes through three sub-phases:
- Pre-criminal procedure phase, consisting in undertaking of actions required in collection information for illumination of a specific criminal issue,
- In phase of proceeding of investigations, consisting of issuance of ruling for commencement of investigations in sense of respective legal dispositions, and
- In phase of collecting of evidences required both personal and material which, upon evaluation, offer sufficient grounds for respective indictment.
The covert and technical measures of surveillance and investigation, consist of all actions that may be undertaken even before issuance of ruling for commencement of investigations, meaning that the measures required may be undertaken also during the course of collecting information for commencement of criminal procedure.
These measures have not a long history in Kosova legislation, because their 3
implementation commenced as of 2002 with UNMIK Regulation 2002/6 . These measures have been foreseen by Chapter XXIX, becoming integral part of PCCK, wirth certain modifications of Regulation 2002/6. There is a continuous tendency of advancing the techniques of implementation of the covert and technical measures of surveillance and investigation, primarily taking into consideration that undertaking of such measures doubtlessly affects privacy of human’s life, one of the basic guaranteed rights by the Universal Declaration on Human Rights, the article 12, in International Pact of Civil and Political Rights, article 17European Convention for Basic Human Rights and Freedoms, article 8. Also, by Constitution of Republic of Kosova, in Chapter II, Basic Human Rights and freedoms are guaranteed, while in article 36 decisively is guaranteed the Right to Privacy . This fundamental right for life is also guaranteed by other applicable laws.
Undertaking of an action involving the covert and technical measures of surveillance and investigation consists of, as foreseen by dispositions of laws for witness protection, cooperative witnesses, in order to upgrade the efficiency of the procedure, for justification the nature of aggravated crimes, such as: organized crime, corruption, human trafficking, smuggling of the migrants etc.
In connection to the mentioned, the covert and technical measures of surveillance and investigation are undertaken against the perpetrators of criminal offences, who are suspected to have committed the criminal acts, and those offences are punishable with imprisonment from 4 years.
2.2 Comparative aspects for issuance of the covert measures from Criminal Procedure Codes of the countries of the region Criminal Procedure Codes of the countries of the region, have their techniques of implementation of the covert measures determined, subject to authorizations of the respective subject in the criminal procedure. In this respect, an overview to Criminal Procedure Codes of Albania, Montenegro, Croatia, Italy, Serbia and Bosnia and Herzegovina, will indicate that each of the country has determined operational procedure and implementation of the covert measures within respective legal boundaries.
Analyzing these codes, I have tried to present briefly the comparative aspect of work with covert measures, commencing with:
a) The criminal Procedure Code of Albania, in chapter ’’Surveillance of conversations and communications”, from article 221-226, foresee the following actions in this respect, taking into account that the surveillance, as a method of searching for evidence is of two kinds: a) surveillance of telephone conversations and communications and of other forms of telecommunication, and b) environmental surveillance that is performed by listening and recording in special devices that are implanted in various environments or at certain persons.Surveillance of the communications may consist on surveillance of a single person who has a phone, static, cellular, of a fax, computer, and it may be performed in private premises in audio-visual manner. Otherwise, the perpetrators may be committers of:
- crimes committed willingly, for which punishment by imprisonment of no less then 7 years is foreseen
- criminal offences insulting and threats performed by telecommunication devices,
Surveillance may be ordered against:
- suspects for commitment of a criminal act,
- person that is suspected to take or transmit communications from a suspect,
- persons that are involved in transactions with a suspect,
- person, who’s surveillance may lead to revealing of the location or identity of a suspect.
The Court ruling should define precisely the duration of the surveillance, and upon request of a prosecutor, this period can be extended whenever deemed necessary for a period of 20 days, when proceeded for crimes, and 40 days when proceeded for aggravated crimes. The prosecutors’ office is obliged to have a registry, where data on documents ordering surveillance and the duration of the order are registered.
b) In Criminal procedure Code of Montenegro, these measures are foreseen by article 234, continuing to article 243, and elaborating the procedure of implementation of the covert measures.The technique of implementation of the covert measures is converted to the procedure, as far as the measures as foreseen by article 237, paragraph 1 and 2 are ordered by the investigation judge, while the other measures foreseen by article 237 paragraph 2 and subparagraphs 1,2,3,4 are ordered by the state prosecutor. All the measures ordered by the investigating judge are ordered upon receipt of a proposal from the public prosecutor. Otherwise, there are conditions to be met, in order to issue the order.Otherwise, the procedure of issuance is foreseen by article 239 of the criminal procedure Code of Montenegro, and in case that the request for the measure is of an urgent nature, it is being ordered by the prosecutor immediately, in cooperation with the investigating judge orally, but formalizing of the measure ordered should be performed within a timeframe of 12 hours.
c) Upon Commentary of Criminal procedure Code of Croatia, as foreseen by article 180 they are named: as special investigation actions with temporary violation of Constitutional liberties and rights, and all the evidences extracted during the course of the procedure in compliance with legal procedures, may be used as evidences in the criminal proceedings. These measures are ordered by investigating judge, there maximum duration is 4 months, but upon the request of public prosecutor, they may be extended for a further 3 months period. During the work with covert measures, if a disagreement between the investigating judge and the prosecutor occurs, it is decided by a panel of the competent court. Implementation of these measures is being performed by the police or another respective agency, which are obliged that, by the end of the timeframe, to inform the authority that had ordered the measure, concerning the respecting of the timeframe and the methods of implementation. Also, by article 183 of Criminal Code of Croatia, upon the elapse of the time foreseen for implementation of the measure, the party who was involved in the measure is informed, in order to exercise the rights he is entitled to.
d) According to Criminal Code of Italy, these measures are foreseen in Chapter IV of the book that elaborates proofs, commencing from article 226, with explanation of limits while implementing the measures. Otherwise, they are interconnected to the criminal offences perpetrated, that are excluding the crimes performed by negligence, for which life sentence is foreseen, or maximum imprisonment over 5 years duration, for the crimes against common wealth, for which the punishment of no less then 5 years is foreseen, crimes connected to psychotropic and narcotic substances, crimes connected with use of arms and explosive devices, crimes connected to human trafficking, smuggling of migrants, criminal acts of insults, threats etc. the undertaking of actions involving covert measures is issued in such a procedure, that the public prosecutor requires by the judge to authorize him for issuance of the order, that is to be implemented by the authorized employee. All technical devices in disposition may be used. Upon a need, if the procedure with the covert measure is issued by the authorized person, then the formalization procedure of the action undertaken should be completed within 48 hours by the judge. If the order of the public prosecutor is not formalized by the court, the procedure shall not continue any further.
e) Upon comments of Criminal procedure Code of Serbia, the covert measures are explained and recognized as special actions for extraction of proofs. Otherwise, article 146 foresees the competence for issuing an order of these measures that are in competence of the investigating judge, that bare ordered upon receipt of request of the public prosecutor. These measures are ordered for the following criminal offences:
- Against constitutional regulation of the state,
- Against humanity and other assets protected by international conventions,
- Against organized crime,
- Against perpetrators of criminal acts of murder, aggravated murder, serial rapes, robbery, theft in the nature of robbery, money laundry, money forgery, etc.
Implementation of these measures is performed by the police or respective police agencies, who are obliged to forward the report concerning implementation of the measure required to the investigation judge. The duration of the measure is 3 months, plus another 3 months, but not of a longer duration. Once the measure seizes to me implemented, the person subject to the measure is notified, depending on the situation created. (Explanation: the measures that have not proven to be successful and those that are not constitutive part of a specific criminal matter). Otherwise, there are 6 types of the measure:
- secret surveillance and optical supervision of the suspect,
- offering of simulated services and legal connection of the simulated actions,
- engagement of a secret investigator,
- control of deliveries,
- search of the computer data automatically, that are connected to the personal data,
- hearing of the cooperative witness.
Article 220 of PCCK
Article 46 paragraph 1 of PCCK
UNMIK Regulation 2002/6 of 18.03.2002, Regulation on covert and technical measures of surveillance and investigation
Article 12 of Universal Declaration on Human Rights: “no person should be subject to arbitrary
interference into one’s life, family, residence or personal correspondence as well as to attacks against honor and personal prestige. Every person is entitled to be protected by law from such intrusions and assaults”.
Article 17 of International Pact of Civil and Political Rights, item 1 “no person shall be subject to arbitrary or unlawful intrusions in his personal life, family inhabitance or correspondence, neither his honor nor reputation should be unlawfully violated””, as well as item 2 “every person is entitled to legal protection from such intrusions and violations”.
Article 8 of European Convention for Basic Human Rights and Freedoms, item 1 “every person is entitled to respect of his private and family rights, inhabitance and correspondence”, item 2 “public authority cannot interfere in violation of these rights, except within a scale as foreseen by the law, and when in a democratic society such a measure is necessary for national security, for public security or for prevention of criminal offences, for safeguarding of health and morality, or for defense of rights and freedoms of others”.
Article 36 of constitution of republic of Kosova, item 1 “every person is entitled to have his private and family life respected, integrity of his residence and secrecy of his correspondence, telephone and other communication”, continued by items 2,3,4.
Islami, Halimi, Hoxha, Artan, ilir, Panda “Criminal procedure”, Tirana 2007, pg.317
Grubac, Momcilo, Comment on Law on criminal procedure, 2007, foresees covert and technical measures for their implementation from article 237-243
Article 238, ibid, foresees conditions required for announcement of covert measures, and that for the criminal offences committed for which imprisonment of duration up to 10 years is foreseen, as well as for the criminal offences performed, for which may be sentenced severely. It is also foreseen for the criminal acts that are connected to the organized crime.
Commentary of Law on Criminal Procedure , Zagreb,2007, technical measures are foreseen by article 180-183
Pavisic, Berislav, Insolera Gaetano, giostra Glauco Italian Criminal Procedure”, Rijeka, 2002
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