Criminalistics Evaluation of Integration of the Covert Investigative Activities into Criminal Process of Lithuania
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Abstract
In 2003 in Lithuania the new criminal laws came into force – the Criminal Code of the Republic of Lithuania adopted in 2000 and the Criminal Process Code of the Republic of Lithuania of 2002 aimed to reconsolidate the legal regulation of the criminal acts qualification, solution and investigation, thus to finish the legislature reform in Lithuania. Despite the fact that the main criminal laws of the country have been passed and come into force at the same time, still there are gaps and the problematic issues of the practical application of the rules of law that require separate analysis.
One of the problematic issues requiring the scientists’ attention is that of the legal ground and order for the usage of covered investigation activities that are called the other means of process constraint in the Criminal Process Code of the Republic of Lithuania and also the operational (covered) activities in the law on operational activities of the Republic of Lithuania when solving and investigating crimes.
Considering the problems of interpretation of the rules of law appearing in practice and of their practical application the article deals with the analysis of the legal regulation of the covered investigation activities in Lithuania before and after the new criminal laws came into force, also the legal regulation of the covered investigation activities in the legal context of EU and other foreign countries.
Analyzing the rules of law before the new criminal law came into force the article states that in Lithuania were the equivocal legal regulation of the covered investigation activities that are called operational activities and of the data received during such activities. Because the operational activities were foreseen in the law on operational activities of the Republic of Lithuania and the order of usage of the data received in the result of such activities in the criminal process correspondingly in the Criminal Process Code of the Republic of Lithuania. Such an equivocal legal regulation of the covered investigation activities and of the data received during such deeds often caused obscurity and the problems of the practical application of the rules of law for public prosecutors and the officers of various law enforcement institutions.
The inquiry was conducted during the preparation of the article and as the result the public prosecutors and the officers of various law enforcement institutions noticed and indicated that it was necessary to foresee the covered investigation activities in the Criminal Process Code of the Republic of Lithuania as in the case when covered investigation activities are regulated by the Criminal Process Code of the Republic of Lithuania and not by the law on operational activities of the Republic of Lithuania there is less obscurity related to usageof the data received during the covered investigation activities in the criminal process.
Analyzing the legal regulation of the covered investigation activities rules after the new Criminal Process Code of the Republic of Lithuania came into force it is noticed that in this law alongside with the process constraint measures also other process constraint measures are foreseen, namely: control and recording of the information transferred by the telecommunication nets (art.154.), activities of the officers of the pretrial investigation without revealing their identity (art.158.), permission to conduct the deed imitating a criminal act (art.159), covered surveillance (art.160). Although they are called as other means of process constraint in the law, but the criminalists in Lithuania and other countries call them covered or special activities of the pretrial investigation when the meaningful data is collected to solve and to investigate the crime.
It is also noticed that after consolidation of the covered investigation activities in the Criminal Process Code of the Republic of Lithuania the order of the evaluation and usage of the data received during such activities in the criminal process has also changed. Considering the rules of that law the data received in the result of the covered investigation activities, overt investigation activities or process constraint measures can be acknowledges as evidence in the court.
Analyzing other laws in Lithuania it is noticed that at present the covered investigation activities and the order of their performance are also foreseen by the law on operational activities of the Republic of Lithuania preserving validity of the rules of law regulating operational activities and the order of their performance. Evaluating it the article stresses that sucha legal regulation of the covered investigation activities in Lithuania when the same covered investigation activities can be applied by both the Criminal Process Code of the Republic of Lithuania and by the law on operational activities of the Republic of Lithuania is not precisely clear and can cause violations of the human rights. It is also noticed that the legal regulation of the covered investigation activities in Lithuania is problematic from the point of view that legal ground and the order to sanction the application of the covered investigation activities are different in the mentioned laws.
After analyzing the problematic issues related to the legal regulation of the covered investigation activities in Lithuania it is proposed in the article to perfect further the rules of laws in Lithuania, and namely, it is proposed to unify the legal ground and the order to sanction the application of the covered investigation activities in the Criminal Process Code of the Republic of Lithuania and by the law on operational activities of the Republic of Lithuania. Additionally, in order to establish the clear regulation of the covered investigation activities it is proposed in the future to extend the content of the other process constraint measures foreseen by the Criminal Process Code of the Republic of Lithuania and to renounce them in the law on operational activities of the Republic of Lithuania.
One of the problematic issues requiring the scientists’ attention is that of the legal ground and order for the usage of covered investigation activities that are called the other means of process constraint in the Criminal Process Code of the Republic of Lithuania and also the operational (covered) activities in the law on operational activities of the Republic of Lithuania when solving and investigating crimes.
Considering the problems of interpretation of the rules of law appearing in practice and of their practical application the article deals with the analysis of the legal regulation of the covered investigation activities in Lithuania before and after the new criminal laws came into force, also the legal regulation of the covered investigation activities in the legal context of EU and other foreign countries.
Analyzing the rules of law before the new criminal law came into force the article states that in Lithuania were the equivocal legal regulation of the covered investigation activities that are called operational activities and of the data received during such activities. Because the operational activities were foreseen in the law on operational activities of the Republic of Lithuania and the order of usage of the data received in the result of such activities in the criminal process correspondingly in the Criminal Process Code of the Republic of Lithuania. Such an equivocal legal regulation of the covered investigation activities and of the data received during such deeds often caused obscurity and the problems of the practical application of the rules of law for public prosecutors and the officers of various law enforcement institutions.
The inquiry was conducted during the preparation of the article and as the result the public prosecutors and the officers of various law enforcement institutions noticed and indicated that it was necessary to foresee the covered investigation activities in the Criminal Process Code of the Republic of Lithuania as in the case when covered investigation activities are regulated by the Criminal Process Code of the Republic of Lithuania and not by the law on operational activities of the Republic of Lithuania there is less obscurity related to usageof the data received during the covered investigation activities in the criminal process.
Analyzing the legal regulation of the covered investigation activities rules after the new Criminal Process Code of the Republic of Lithuania came into force it is noticed that in this law alongside with the process constraint measures also other process constraint measures are foreseen, namely: control and recording of the information transferred by the telecommunication nets (art.154.), activities of the officers of the pretrial investigation without revealing their identity (art.158.), permission to conduct the deed imitating a criminal act (art.159), covered surveillance (art.160). Although they are called as other means of process constraint in the law, but the criminalists in Lithuania and other countries call them covered or special activities of the pretrial investigation when the meaningful data is collected to solve and to investigate the crime.
It is also noticed that after consolidation of the covered investigation activities in the Criminal Process Code of the Republic of Lithuania the order of the evaluation and usage of the data received during such activities in the criminal process has also changed. Considering the rules of that law the data received in the result of the covered investigation activities, overt investigation activities or process constraint measures can be acknowledges as evidence in the court.
Analyzing other laws in Lithuania it is noticed that at present the covered investigation activities and the order of their performance are also foreseen by the law on operational activities of the Republic of Lithuania preserving validity of the rules of law regulating operational activities and the order of their performance. Evaluating it the article stresses that sucha legal regulation of the covered investigation activities in Lithuania when the same covered investigation activities can be applied by both the Criminal Process Code of the Republic of Lithuania and by the law on operational activities of the Republic of Lithuania is not precisely clear and can cause violations of the human rights. It is also noticed that the legal regulation of the covered investigation activities in Lithuania is problematic from the point of view that legal ground and the order to sanction the application of the covered investigation activities are different in the mentioned laws.
After analyzing the problematic issues related to the legal regulation of the covered investigation activities in Lithuania it is proposed in the article to perfect further the rules of laws in Lithuania, and namely, it is proposed to unify the legal ground and the order to sanction the application of the covered investigation activities in the Criminal Process Code of the Republic of Lithuania and by the law on operational activities of the Republic of Lithuania. Additionally, in order to establish the clear regulation of the covered investigation activities it is proposed in the future to extend the content of the other process constraint measures foreseen by the Criminal Process Code of the Republic of Lithuania and to renounce them in the law on operational activities of the Republic of Lithuania.
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