Izvorni znanstveni članak
https://doi.org/10.54070/hljk.28.2.4
Judical Control of the Legality of Evidence Obtained by Special Evidentiary Actions
Nevena Aljinović
; Sveučilišni odjel za forenzične znanosti Sveučilišta u Splitu, Split, Hrvatska
Sažetak
The lawfulness of the investigating judge’s order is a necessary formal component for the conduct of special evidentiary actions and a necessary precondition for the legality of the results thus collected, which is taken into account in several stages of the proceedings. Since in the initial phase of the issuing of an investigating judge’s order nobody may question the judge’s conviction of the fulfilment of the legal requirements for ordering special evidentiary actions, given that there is no possibility of filing a legal remedy against the issued order, it is only in the later stages of the proceedings that the parties have the opportunity to challenge its legality. This circumstance can be pointed out both before the first-instance court regarding the proposal to exclude from the case file illegal evidence collected by special evidentiary actions based on the investigating judge’s deficient order, and before the Supreme Court of the Republic of Croatia regarding an appeal against the first-instance court rejecting such a proposal of the defence. In the investigating judge’s order, it is necessary to adequately explain all the specific circumstances of the case that will confirm the existence of grounds for suspicion against the suspect regarding the commission of a crime, and especially the reasons why investigations could not be conducted in another, less intrusive way. Consequently, the question arises as to whether the absence of reasoning or (even) the deficiency in the reasoning of the investigating judge’s order, such as the lack of concretisation of the circumstances justifying the application of special evidence, results in the illegality of such evidence. This research focuses on case law and was conducted by searching the online database of the Supreme Court of the Republic of Croatia in the context of illegal evidence, especially the results of special evidentiary actions.
In addition, through an online database, the practice of the ECtHR in cases against the Republic of Croatia was analysed in the context of the violation of the Convention’s right to protection of private and family life under Art. 8 ECHR, precisely due to the insufficient reasoning of the investigating judge’s order, i.e., insufficient judicial control, but also Art. 6 ECHR, which plays an important role in the domain of a posteriori judicial review in the context of the fairness of the proceedings, since the use of evidence obtained in violation of Convention law under Art. 8 ECHR may raise the issue of violating the right to a fair trial referred to in Art. 6 ECHR. Based on the conducted research, the conclusion was drawn that the judicial control of the legality of evidence obtained by special evidentiary actions is an adequate and active protective mechanism, but that, in practice, certain questions arise that require reasoned answers. Some of these answers are offered in this paper, and, in this regard, conclusions are summarised, and concrete solutions are synthesised.
Ključne riječi
special evidentiary actions; investigating judge’s order; judicial control; illegal evidence; ECtHR; ECHR
Hrčak ID:
272795
URI
Datum izdavanja:
1.12.2021.
Posjeta: 856 *