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Benchbook on Special Investigative Measures

21 December, 2020

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Description

 

“Any judge or prosecutor who wants to improve his/her work on Special Investigative Measures should read the Benchbook.” 
                                                                                                                             Anonymous Judge, Court of BiH

 

Special Investigative Measures (SIM) are used across European countries to fight serious crime, terrorism, and avert dangers to state security. They are performed in secrecy, without the knowledge of the target; when improperly used they endanger fundamental human rights, including the right to privacy, the freedom of information and expression, the right to a fair trial and freedom of religion. These rights are cornerstone to democracy; their infringement undermines the rule of law and the citizens’ trust in the state.

Bosnia Herzegovina (BIH) has a particularly complex judicial system, with four different Criminal Procedure Codes and 67 Courts mandated to authorise SIM. The paramount role of judges and prosecutors in upholding the rule of law and the respect of human rights was stressed in 2017 by the decisions of the BiH Constitutional Court, which suspended as unconstitutional a number of legal provisions regulating the judicial authorisation of SIM. The judiciary was invested with the responsibility to correct law deficiencies, through a judicial practice that observes European standards and good practice.

The Benchbook on Special Investigative Measures is the result of a collaborative effort by local practitioners from different jurisdictions across Bosnia Herzegovina .

It provides a thorough guide to procedures, principles, and good practices that should guide prosecutors and judges in the authorization of intrusive methods. The use of this Benchbook in judicial reasoning and training across BIH is aimed to contribute to successful criminal investigations and promote a judicial practice that complies with international standards. The Benchbook is divided into five chapters, covering

  • the national and international contexts relating to SIM,
  • the prosecutor’s motion to order SIM,
  • the judicial decision-making on SIM,
  • the presentation in Court of evidence obtained through SIM,
  • and international legal cooperation and assistance in criminal matters.