Special investigative measures: Comparison of the Serbian Criminal Procedure Code with the European Court of Human Rights Standards
| Author | Veljko Turanjanin |
| DOI | 10.1177/13657127211055230 |
| Published date | 01 January 2022 |
| Date | 01 January 2022 |
| Subject Matter | Articles |
Special investigative measures:
Comparison of the Serbian Criminal
Procedure Code with the European
Court of Human Rights Standards
Veljko Turanjanin
University of Kragujevac, Kragujevac, Serbia
Abstract
This paper is focused on several important issues that deal with special investigation measures.
The main perspective of the analysis is based on the ECtHR case law on this issue. Two issues
are from primary interests: secret monitoring of communication and undercover investigator.
Intensive ICT development enables various modern techniques and methods of crime investi-
gation but also results in some new types of crime that could be committed using ICT.
Expansion of the fundamental rights and their protection, especially in Europe, raised global
awareness of the right to privacy and the need to protect it. Having that in mind, it seems
that the main question that should be answered by legislator is: Where is the borderline
between the right to privacy and the public interest to investigate or prevent crime and collect
evidence? The undercover investigator falls under Article 6 of the Convention and there are
different rules on the admissibility of such evidence. Serbian Criminal Procedure Law on some
points is in line with ECtHR standards, but some very important provisions, as well as practice,
are not.
Keywords
covert monitoring of communications, special investigative measures, the right to fair trial, the
right to privacy, undercover investigator
1. Introduction
Special investigative measures today represent one of the most important parts of the fight against serious
criminal offences. However, their improper use endangers fundamental human rights, especially the right
to privacy and the right to a fair trial. The European Convention on Human Rights and Fundamental
Corresponding author:
Email: turanjaninveljko@gmail.com
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(1) 34–60
© The Author(s) 2021
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DOI: 10.1177/13657127211055230
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Freedoms (hereinafter: ECHR) in Article 8 prescribes that everyone has the right to respect for his private
and family life, his home and his correspondence; there shall be no interference by a public authority with
the exercise of this right except such as is in accordance with the law and is necessary in a democ ratic
society in the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others. There are many aspects of Article 8, so case-law regarding Article
8 is very comprehensive (de Hert, 2005: 73).
Another Article that is important for these considerations is Article 6, which, in the criminal limb,
applies to persons subject to a criminal charge (Toney, 2002: 434). It is very important to emphasize
here the fact that Article 6 of the European Convention on Human Rights does not set any rules on
the admissibility of evidence as such, because this matter has been treated by the ECtHR as something
to be regulated by national law (Pajc
̌ićand Valković, 2012: 756), or, more precisely and as the ECtHR
emphasized in numerous judgments, it is not the role of the ECtHR to determine, as a matter of principle,
whether particular types of evidence—for example, evidence obtained unlawfully in terms of domestic
law—may be admissible or, indeed, whether the applicant was guilty or not (Schabas, 2015: 320).
However, the use of special investigative methods cannot in itself infringe the right to a fair trial. The
admissibility of evidence is primarily a matter of regulation by national law and, as a rule, it is for the
national courts to assess the evidence before them. The ECtHR, for its part, must ascertain whether
the proceedings as a whole, including the way in which evidence was taken, were fair. In this context,
the ECtHR’s task is not to determine whether certain items of evidence were obtained unlawfully, but
rather to examine whether such ‘unlawfulness’resulted in the infringement of another right protected
by the Convention.
1
Interception of communications is a very complex issue, which also falls under Article 8.
2
The ECtHR
in the famous judgment Klass and Others vGermany emphasized that telephone conversations are
covered by the notions of ‘private life’and ‘correspondence’within the meaning of Article 8.
3
It was
repeated in Malone vThe United Kingdom
4
and in numerous decisions after. As we can see, this provision
is divided into four categories: private life, family life, home and correspondence (Schabas, 2015: 366).
1. Ramanauskas vLithuania, § 52.
2. According to Weyembergh and de Biolley, there are four main reasons this is complex issue. First is that the identification of the
specific subject area is far from easy. The second, which explains thecomplexity of the subject, is the fact that the interception of
telecommunications is a particularly intrusive technique and thereby extremely sensitive in the context of the protection of fun-
damental rights. Third, the situation is all the more complex as the internal legal systems of the different States remain widely
divergent, although a certain approximation has been carried out by different sources. And fourth, mutual legal assistance is far
from the simple matter (Weyembergh and de Biolley, 2007: 285–287).
3. TheCourt stated: ‘Although telephone conversations are not expressly mentioned in paragraph 1 of Art. 8, the Court considers, as
did Commission, that such conversations are covered by the notions of “private life”and “correspondence”… Furthermore, in the
mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of sur-
veillance; this menace strikes at freedom of communication between users of the postal and telecommunication services and
thereby constitutes an “interference by a public authority”with the exercise of the applicants’right to respect for private life
and for correspondence’(Klass and Others vGermany, § 41).
4. Malone vThe United Kingdom at 64. It is interesting example of the UK where secret surveillance was traditionally used as
method of discovering but not of proving organized crime. Considering this, it had not been regulated by law since 1985
with the exception of post service-related issues. The trigger for change was the ECtHR decision from 1984 in Malone case,
where the Court concluded that the UK brakes provisions of the Art. 8 of the Convention. That resulted in adoption of the
Interception of Communications Act 1985, which kept the existing concept of secret surveillance as a measure for prevention
and discovering of crime but also in addition allowed appeals to the ECtHR. In 1997 the Court rendered its decision in the
Halford case and confirmed that the Interception of Communications Act does not provide for the necessary guarantees in
line with Art. 8 of the Convention. By adoption of the Human Rights Act in 1998, the ECHR became an integral part of the
UK internal legal system but more precise regulations in the field were adopted as part of the Regulation of Investigatory
Powers Act 2000 (RIPA, see more in Addis and Morrow, 2005: 57–60).
Turanjanin 35
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