Reference no.:
Official Gazette RS, No. 37/2008 and OdlUS XVII, 28 | 20.03.2008
The consistent application of statutory provisions in the procedure for ordering undercover investigative measures is not merely a formalistic requirement. It is a mechanism which courts must apply in order to prevent possible abuse in the collection of evidence. Thus the fact that the petition of the police and the proposal of the state prosecutor contain the statement of reasons for such, does not release the investigating judge of the duty to substantiate the existence of statutory conditions to impose such measures.
In the orders, the investigating judge should state the facts and circumstances from which follow justified reasons for the suspicion that criminal offences determined in the third paragraph in conjunction with the second paragraph of Article 311 of the Penal Code were committed and the reasonable suspicion that these criminal offences were committed by certain means of communication, and substantiate that the use of the measure was absolutely necessary compared to collecting evidence in some other manner (the necessity of collecting evidence in such manner). Instead, the investigating judge merely referred to the proposal of the prosecutor and evaluated that it meets such requirements. However, according to the Constitutional Court, this deficiency is not such as to entail a violation of Articles 35 and 37 of the Constitution.
It follows from the rights determined in Articles 22 and 23 of the Constitution, which ensure to individuals charged with a criminal offence, a fair criminal trial, that a criminal judgment of conviction cannot be based on evidence collected by the violation of human rights. As the incriminating evidence was not acquired by a violation of Articles 35 and 37 of the Constitution, their application in criminal proceedings against the complainant could not entail a violation of the rights determined in Articles 22 and 23 of the Constitution.
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Type of procedure:
constitutional complaint
Type of act:
individual act
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