То some theoretical and practical problems using information and technical resources in the Slovak criminal proceedings

Размещено на http://www.allbest.ru/

УДК 343.1

То some theoretical and practical problems using information and technical resources in the Slovak criminal proceedings

Tittlova Marcela,

PhD, Assistant professor of Department of Public Law Faculty o Law, Pan European University

The present paper deals analytical treatment options and conditions use of information and technical means in criminal proceedings. It highlights some of the shortcomings of the current Slovak procedural arrangements and those presented on the basis of their own scientific analytical processing which is complemented by considerations de lege ferenda. It notes that legislation of such institutes, where the law of the State involved and should in any case be exact. In this connection, it is critical to the Slovak criminal procedural arrangements for the information technology resources.

Keywords: information and technical resources, command, timing of application, extension orders, particulars of the order.

Анотація

До деяких теоретичних та практичних питань використання інформаційних і технічних ресурсів у кримінальних провадженнях Словаччини.

У статті розглядаються аналітичні варіанти обробки та умови використання інформаційно-технічних засобів у кримінальному судочинстві. У ній висвітлюються деякі недоліки сучасних словацьких процедурних механізмів, представлені на основі власної наукової аналітичної обробки, яка доповнюється міркуваннями de lege ferenda. Зазначається, що законодавство таких інститутів, у яких бере участь закон держави, у будь-якому разі має бути точним. У зв'язку із цим вкрай важливими для словацьких кримінально-процесуальних механізмів є інформаційно- технічні ресурси.

Ключові слова: інформаційні та технічні ресурси, команда, час застосування, розширення замовлень, докладні відомості про замовлення.

Аннотация

В статье рассматриваются аналитические варианты обработки и условия использования информационно-технических средств в уголовном судопроизводстве. В ней освещаются некоторые недостатки нынешних словацких процедурных механизмов, представленные на основе собственной научной аналитической обработки, которая дополняется соображениями de lege ferenda. Отмечается, что законодательство таких институтов, где участвует закон государства, в любом случае должно быть точным. В связи с этим крайне важными для словацких уголовно-процессуальных механизмов являются информационно-технические ресурсы.

Ключевые слова: информационные и технические ресурсы, команда, время применения, расширение заказов, подробные сведения о заказе.

Introduction

Information and technical means can be used in criminal proceedings, as well as outside the context of criminal proceedings and on the basis of special regulations. In criminal proceedings, it is possible to use them in various stages of the procedure and the basis from which you can derive the conditions of use, the Code of Criminal Procedure. Information and technical resources at their use greatly affects the areas of fundamental human rights also in the light of their nature and method of implementation. They are carried out secretly, so that the persons concerned do not have the time of application knowledge that it is against them use these means as a prerequisite for obtaining fair and undistorted knowledge that will be important for criminal proceedings. Given the nature of these funds, it is necessary consistently to enforce criminal procedural provisions and conditions to use each of them bound. The basis of the relevant provisions of the Criminal Procedure Code (Act № 301/2005 Z. z, as amended, hereinafter referred to as “TP” or “Criminal Procedure”), which more or less strictly regulate the possibilities and conditions for the use of information and technical resources law proceedings.

1. Legitimate use of information and technical resources

To have the information and hardware used in accordance with the law, it is necessary to meet any legal requirements, the use of which they are bonded. These arise from the provisions of the Criminal Procedure Code of the relevant provisions. Are specified in relation to any information and technical resources, but in general it could be summarized that are required to:

a) has been clearly specified group of crimes, their group or at least certain types of offenses for which it is possible to use information and technical resources;

b) administration of criminal justice - because we are talking about criminal procedural level, the use of information and technical means in criminal proceedings;

c) depending on what stage of the criminal proceedings should be information-technical means used by the naturally varies, the entity that should prescribe their use;

d) should at the same time is reasonable to assume that if these resources are used, by doing so, they discover facts that are important for criminal prosecution. If we ask ourselves what the facts actually are, so it will definitely all of which provide a focus of criminal proceedings and the progress it further practical direction to take certain decisions on the procedure in the case.

That the information and the technical means of action could be used in criminal proceedings if it is assumed that this will be acquired facts important for criminal proceedings, it is possible to derive mainly from the fact of how much crime goes - from its nature and character. They are in most cases different information regarding the modus operandi of all the previous and following acts which it is composed. Given the nature of the information-technical means, with respect to production of records and wiretapping, in its entirety, it can never be ruled out that their use is detected by the facts, which are other than those to whom a statement. Therefore, it should be noted that the thus obtained results must be carefully considered [3, p. 30].

If the capture of factors, not covered by the order, they cannot be used in criminal proceedings and must be legally destroyed. In addition, it is prohibited to use such information arising from communications of the accused or defendant with his defense counsel in criminal proceedings. Even when these are required to be legally destroyed and cannot be in any way be used in criminal proceedings.

2. The application and its requirements (justification)

Information and technical resources are used on an application for their use, which gives the competent entity prosecutor. Here it can be seen that although the prosecutor in pre-trial status Lord of this proceeding, though the authorization of the most intense interventions in fundamental human rights, is entitled to an independent and impartial tribunal, thus not alone prosecutor. An examination of the issue and use of these funds is safeguarded in court, as in pre-trial proceedings. In the proceedings before the Court issued an order on the use of these funds by the judge. In pre-trial proceedings emitting the investigating judge to the prosecutor. This aspect of the authorization process respectively for ordering the use of information and technical resources it is very important. To ensure that in the case decided by impartial and independent body, which from its position that examine whether they are actually fulfilled the conditions for using such intensive intelligence resources. However, if there is a case where the matter is urgent, and in such a hurry is not a command to use to get the court may issue an order in some cases the prosecutor himself. That does not diminish the authority of the court, as well as those cases are required to make additional order of a judge and to a certain defined period. It is in the nature of a confirmatory act in respect of an order issued by the prosecutor. If it had not been a judge for an order, it is not possible to continue with the performance of the information technology means, to be ordered prosecutors must terminate this activity and even though they thus obtain information relevant to criminal proceedings, cannot be used. The obtained records must be in the prescribed manner and within legally stipulated period destroyed.

Design authorized prosecutor is entitled to is very important. Already in the design, it is possible to state that the essential facts that will be of such relevance that the judge under their weight will be reviewing the draft decision, issue a command. It is the main substantive part of the request, to which you should give the prosecutor greatly depend. Contents and the main justification for the legality and necessity of the use of these funds should therefore be sufficiently clear, they should include facts that show the need for legal regulation of use of this institute. The draft prosecutor must be clear:

a) the legality of the use of information and technical means;

b) the legitimacy of the use of such means;

c) meet the proportionality requirement when used.

How consistently prosecutor describes all these important aspects of the use and regulation of information and technical resources that are ultimately reflected in the actual issue or to issue an order for its use. Naturally, the Court has on these issues available discretion, so even if those requirements very carefully described and specified, there is no legal entitlement to the order was issued. It must realize that ultimately it is the body responsible for the use of information and technical means judge. It is so for him and for his thought-free reasoning, which is based on theoretical knowledge and practical experience to closely examine the proposal on the issue and assess it as such on the basis of which it is possible to issue an order or on the basis of which command to use information-specific technical means cannot be issued. It cannot be reduced or prosecutor responsible for what the court's proposal is made, although this aspect of the current legislation is largely unresolved. Responsibility for whether to use these funds and hit them in the fundamental human rights, is largely transferred to the court. This would ultimately be to assess the merits of the situation and the need to use the following intensive institutes. The responsibility of the judge will ensure that these funds are spent only in cases where it is necessary and justified, and just as well that have not been used in cases where it was needed and which would thus obtain facts important for criminal proceedings. However, the judge in each case is determined by the prosecutor.

The nature, form and content of the proposals on the part of prosecutors, however, are not consistently addressed. The provisions of the Code of Criminal Procedure is not found on the following aspects of the proposal hardly any provisions in addition to the minimum requirements that are imposed on the content of the proposal. Content of the proposal is not carefully designed, sometimes, but not always, provides the requirement that the order has been sufficiently justified. In contrast, although in criminal proceedings in the criminal-procedural level, these issues are not addressed in detail in the inter-procedural arrangements we find elements such orders. Thus, if contained in the forms outside criminal proceedings can only be explicit requirement that they should also be included in the provisions of the Criminal Procedure Code. The law on protection against eavesdropping (Act № 166/2003 Z. z. as amended), specifically § 4 sec. 3 addresses what matters should be given to proposals that also well under that scheme approved by the court. Specifically, the proposal should include:

- the type of use of information and technical means;

- the place where the equipment is to be used;

- the time in which the composition will be used respectively. during which it will be used (duration of use);

- data relating to persons involved in the use of these funds relate;

- demonstrate that the steps in the procedure that preceded the filing of the proposal was not relevant to addressing the issue or issues effectively, or if it has been largely complicated, difficult, so shall also state that;

- the reasons for the use of the information-technical means.

If the proposal does not contain the information required it should be including. This would be modified and criminal procedural arrangements so as to promote accountability for prosecutors submitted proposals and their website content and thereby to some extent facilitate the work of judges who reviewed the draft. They would find in it all the necessary elements that are crucial for assessing the potential regulation or absence of the use of this agent. Only with such comprehensive knowledge, it is possible to judge correctly assessed the necessity of using such an information-technical means or that it is not necessary and should be used (are not met legal grounds for its use). Proposal while its content determines the possible commands to use information-technical means. If the austere, currently a judge generally assess that on the basis of this proposal not be used for information-technical means and the command to use issued. If the provisions of the Criminal Procedure Code contain at least the basic minimum requirements for the content of the proposal, and these should draft does not, then the judge could reject or return the prosecutor to supplement the team that are not met legal requirements for its content. So clearly it can say that the legal definition at least a basic minimum requirement, which should include proposals for an order to use certain information-technical means would direct to streamline the permitting process decision. It would strengthen the current position of the prosecutor and also its responsibility to complete the application for issuance of the order and on the other, thus creating better conditions for the assessment of proposals by the courts, which should have all the basic and necessary information on the legality and necessity of using the information-technical means. This would reduce the percentage of such cases where the command is not issued, because the proposal to issue demonstrates the reality of what is necessary and legitimate need for its use, but is thwarted in this way obtain evidence relevant for criminal proceedings. It should also reduce the percentage of cases when the rights and legitimate interests of persons illegally intervene because the order has been issued on the basis of the draft, which did not all essential terms and the judge in its activities assessed as legitimate and issued the order. In practice, for such a conclusion, sometimes appearing opinions that prosecutors should there actually micro-manage the judge should strictly define all the reasons and relevant facts already in the proposal and the judge shall then only transcribed in a specific order for the use of information and technical means. But there should be noted that thejudge is always available its expertise into account and within it assesses the design and its content. If it determines that it is required and the lawful use of information and technical means, the command issued on the other hand, if it finds that it is justified, issue a command. There is no legal claim that if the proposal contains specific requirements that would determine the legislation, the judge had to issue an order. The judge is not automatically obliged to issue such an order. If this is the case, then would not this process at all judicial and Article aspect assessment figures and it is enough if the prosecutor fulfilled this role. So it can hardly think in the sense that the prosecutor should not replace the work of a judge. Draft and subsequently released or unreleased command would become each other better reviewable, so if the judge issued an order and the proposal would be absent the necessary and obvious reasons for these differences, or vice versa, if the judge issue an order, even though it was clear that they were filled all legal conditions and reasons (reviewed and objective), it would be necessary to look for reasons for doing so. A naturally to impute responsibility for them. Not only judges but also prosecutors should be held accountable for the proper and consistent fulfillment of its obligations in this process - that the prosecutor in relation to the application and the judge in relation to its assessment and the absence of the regulation or use of relevant information and technical resources. Moreover, the work of judges with the proposal, which should set requirements should accelerate in terms of time. The judge would know better and faster to assess the legality and necessity of using such funds on the basis of said content requirements and it might be beneficial for their use.

The way that courts and judges shall act in relation to the review and regulation of information and the use of technical means, it is of course very individual. They are judges who ASSESS proposals very strict and rigorous, so sensitive to the protection of the rights of individuals possible. But then there are also judges who do not adopt the contents of the site follows strict and the result of this is that the judges are of weaker Considered. These findings law enforcement procedures, thus initiating the prosecutors, often abused. Often waits until the services carried out by the judge who issued the order easier. Directly were often waiting, when will dry and the judge shall review and more easily achieved an order [5,p. 699].

3. Command, its form and content

The proposal by the prosecutor, the judge who assesses directions to be issued with a use-specific information and technical means. This order represents the basis on which these facilities may be in the classic, standard cases. The Code of Criminal Procedure is strictly designed to who the subject is authorized to issue such an order. Depending on the stage of criminal proceedings that may be different entities, but in both cases it will be a court:

a) pre-trial issue orders to use pre-trial judge on the proposal of the prosecutor; at some institutes it is possible that an order issued by the prosecutor or police officer; it comes to things that cannot be delayed and it is not possible in such a short time to achieve an order the judge; it also requires that the order was confirmed by the investigating judge, thus ensuring that the judicial review;

b) before the Court issued an order to use the presiding judge.

Commands to use information and technical means must be issued separately, separately for each specific case. In each individual case it is required to review the conditions for the possible issue, and consequently it is necessary to carefully examine their fulfillment to be in this case to interfere with the fundamental human rights and interests protected by unreasonably and unlawfully. The command also represents an act of law enforcement, is an individual act that addresses the particular case.

Command, ordering the use of information and technical means it is actually a form of decisions in criminal proceedings. But it is also a decision which content page is not some specific solutions. It is used for many questions of criminal proceedings, to address them, and therefore only general defines what matters should be given command and contents, and what part does not. Of this decision, the form of, for example, that it is not necessary in any event not justified. That is why it is very important that the competent authorities strictly formulated a proposal for an order and entities which decide to issue an order to closely examine the particulars and legal conditions for such a decision.

In relation to the order to use the various information-technical means, it is concluded that the money must be in writing. It required here with him, in those provisions on information and technical resources that must be justified. After a competent judge issued this moment has become final and shall be based on the services responsible to proceed. Criminal procedural provisions governing the essentials commands in § 181 sec. 2 TP. The pattern is clear, in the order or the order should be understood as follows:

a) who issued it - says the signs that a specific organ or body which issued the decision;

b) when and where it was issued - the date and place of issue;

c) for each case must be separately justified such an order;

d) determining the length - the duration of the use of such information and technical means, where their use is limited in time; this is only relative data, since it is possible to turn on the proposal of extending the period of their use and even repeatedly;

e) there must be above statement that prescribes the use of a specific information-technical means and in relation to this it is necessary to mention all the legal provisions on which the decision is based;

f) describes the act for which it is allowed to use this resource, provide the legal qualification (name and designation of the relevant provisions of the Criminal Code), where the right information and technical means required to be used for specific offenses or for the them some kind.

The command has enforcement nature of the classified information even after the end prosecution. The period during which conceals is limited only by the approval of archiving commands as follows from the time of filing. Such a degree of confidentiality is important precisely with regard to such crucial and sensitive details in the order given. It is therefore possible that the orders actually contain specific information including the names and identifying information concerning persons as well as the context and the various aspects of crime for which the information and authorize the use of specific technical means [4, p. 554].

Although the provisions of the Criminal Procedure Code directly with specific information and technical means determine whether the command and justify how and sometimes in practice met with various opinions about justification commands. General provisions relating to this form of decision in criminal proceedings, it does not always require. The relevant provisions governing the information and technical resources directly, already meets that states, however (§ 115 paragraph 3 TP and the provision of § 116 paragraph 2 TP). It is only possible to recommend that the fact that not only justify commands, but in addition to this and their reasoning was not sufficiently clear and detailed. J. Centes stress here that reasoning is important in assessing the possible legitimacy of the objective pursued and to be specific information and technical means to Achieve [1, p. 59]. It allows to consider the precise order as a form of decision, where it would be important. Such reasoning is also significant in terms of life outcomes, which are as follows - the use of information and technical resources Obtained as evidence in criminal proceedings. Therefore justification should not in any case be very general and vague, it should only contain a transcript of the legal provisions of the Code of Criminal Procedure, it should only be austere. It is a fact that part of the Decision Concerning the lawfulness of interference and droughts affect the possible use of Information Obtained in this way.

And in terms of time is criminal procedure inconsistent treatment. It sets out the requirement that these funds are used in terms of time-limited - the provisions of the Criminal Procedure Code we find a specific period during which they can be used. It's the upper limit when determining that no more than 6 months. The specific period during which these assets are used, must also be given in the statement. In principle, so we can be satisfied with the fact that it is a modification that allows time-limited interference with fundamental human rights and is sufficiently clear and precise. This is not quite true. Here, it already provides that the extension can be achieved by 2 months and even repeatedly. Of course, extend it again DECIDED by a court and the one that the original order was issued. Unless problematic is just the possibility to extend the use of these means it can be repeatedly. It does not specify the maximum period of use of information and technical means - we make the total, in which they can order and use the extension, respectively. Over Which I can no longer use this resource or extended. There shall be no maximum number of repeated requests from the extension of the use of information and technical means. So it is reasonably possible that it will be repeated several times to ask for an extension of the use of these funds and their use so it will take a very long time. This use will be bound by the duration of fulfillment and legal reasons for which the use of the sums committed. In terms of time, however, it may take a long time indeed unlimited. And it cannot be seen as a clear and precise time limit use of these funds and the clarity and precision, consistency of the legislation requires the ECHR.

Conclusion

Information and technical means in criminal proceedings are institutes, which allow very strongly interferes with the fundamental human rights and freedoms. Due to the possibility of interfering in them in terms of European law, it is necessary that legal regulations allow the use of such funds were exact, clear and unambiguous. To present aspects of the use of these funds in the process level, in criminal proceedings, it is seen that although the Slovak legislature rather regulates in detail the possibilities of their use, these provisions are not absolutely consistent, clear and exact. We pointed out yet only for certain applications and theoretical issues using those means that can, and now also significantly influence the possibility of proving serious crime. In this respect, it is necessary in the future to reflect on a consistent treatment possibilities and conditions for using the information technology in criminal proceedings and to amend the provisions in question consistently.

criminal proceeding slovak shortcoming

References

1. Centes J. Zasahy do prava na sdkromie z pohl'adu judikatdry ESLP / J. Centes // Juridizacia I'udskych prav v judikatOre ESLP :_Zbornik prispevkov z medzinarodnej vedeckej konferencie. - Bratislava : FP PEVS, 2015. - S. 58-60.

2. Centes J. Odpocdvanie - procesnopravne a hmotnopravne aspekty / J. Centes. - Bratislava : С. H. Beck, 2013,- 272 s.

3. Ivor J. Odpocdvanie ako legalny zasah do prava na sdkromie / J. Ivor //Aktualny stav a perspektivy ochrany I'udskych prav a slobod : Zbornik prispevkov z vedeckej konferencie s medzinarodnou Ocast'ou. - Bratislava : APZ v Bratislave, 2001. - S. 29-35.

4. Perhacs Z. Pravna Oprava pouzivania informacno-technickych prostriedkov (1. Cast') / Z. Perhacs, A. Perhacsova // Justicna revue. -2013.-С.4,- S. 553-555.

5. Perhacs Z. Pravna Oprava pouzivania informacno-technickych prostriedkov (2. Cast') / Z. Perhacs, A. Perhacsova // Justicna revue. -2013.-6.5,- S. 698-700.

6. Tittlova M. Korupcia. Vybrane kriminologicke a trestnopravne aspekty / M. Tittlova. - Bratislava : Wolters Kluwer, 2015. - 230 s.

7. Uznesenie NS SR 3 To 2/2011z1. decembra 2010.

8. Uznesenie NS SR 3 To 2/2011.

9. Trestny poriadok, zakon c. 301/2005 Z.z. v zneni neskorsich pravnych predpisov.

Размещено на Allbest.ru