Legal Regulation of Surveillance de lege lata and de lege ferenda : Constitutional and Criminal Procedural Aspects

• Author: Eerik Kergandberg
• Pages: 68-75

Eerik Kergandberg

Legal Regulation of Surveillance de lege lata and de lege ferenda : Constitutional and Criminal Procedural Aspects

1. Surveillance in System of Criminal Procedure: Introduction

1.1. Pre-trial procedure is a universally recognised part of criminal procedure, the aim of which, in most general terms, is by gathering evidence to create presumptions for the judicial resolution of a criminal case. The role of pre-trial procedure in Belgium, France, Spain, Germany, Austria and other states with predominantly inquisitorial system of judicial procedure (thus, also in Estonia) is very important because, as is known, the court may base its decision on the evidence collected in the course of pre-trial procedure. Namely, pursuant to § 206 of the Estonian Criminal Procedure Code (hereinafter CrPC) the court may rely on the evidence gathered in pre-trial procedure on condition that (a) it has been directly examined at the court session, and (b) the direct in-court examination of evidence has been fixed in the record of the court session¹.

The role of pre-trial procedure in common law states and with some concessions also in these states that have introduced certain elements of adversarial judicial procedure into their law (for example, since 1988 in Italy) is different. In these countries, at least not all the materials gathered in the pre-trial proceeding are at the disposal of the judge while he or she is trying the case. The court decision is mostly based only on "what happens" in the court. It would still be inconsiderate to conclude that pre-trial procedure is less important in states with adversarial judicial procedure. Namely, nearly 90 per cent of the criminal cases in these countries are solved by non-trial disposals (plea-bargaining; die Absprache) relying on the materials of pre-trial proceedings at that. Thus, it can be alleged that pre-trial proceedings in criminal procedure carry much weight everywhere and if we tomorrow also want to assert that justice is administered solely by the courts then we should seriously consider before we start to enhance the role of pre-trial procedure even more. But legalisation of the results of surveillance procedures on the evidentiary level undoubtedly means the enhancement of this role.

1.2. Most generally, pre-trial procedure as a whole consists of procedural procedures (filing a request, making procedural decisions, filing a complaint, gathering evidence, guaranteeing the accomplishment of the criminal proceeding) and surveillance procedures. A procedural procedure is characterised by the following features:

(a) the law or other legislative act of lower level explicitly prescribes how a procedure must be carried out²;

(b) a procedure is, in principle, always conducted publicly³;

(c) while conducting a procedure the person whose interests it concerns is really regarded as a subject with the right to have a say.

In gathering evidence and guaranteeing the accomplishment of the criminal proceeding (for example, while taking into custody or compelling to appear) the right to have a say means that the above subject is entitled to be informed of the aim of the procedure as well as to appeal. In the case of procedural requests, complaints and decisions the right to have a say is immanent to them. But a surveillance procedure is carried out secretly, the exact manner of its conduct is always covert and the right to have a say is excluded (which essentially means that the person whom the surveillance procedure concerns is treated as an object of investigation).

In the Soviet theory of criminal procedure (although it can be put more widely - in the classical theory of continental criminal procedure) an understanding prevailed that criminal procedure included only procedural procedures. This means that naturally also Soviet criminal procedure theoreticians acknowledged the existence of so-called operational-surveillance activities (tracing the hiding suspect; using a police-dog at the scene of the crime, etc.) but as these activities were to a greater or lesser extent subject to secrecy and as not much effort was made to guarantee the procedural rights while carrying out these activities then it was hold that the pertinent activities could not be regarded as the criminal proceeding and no evidence could be directly obtained thereby. The main goal of these surveillance procedures was to create preconditions for the collection of evidence, or in other words - to establish the possible source of evidence. In some respects the distinction of surveillance procedures from the criminal proceeding helped psychologically to justify frequent and groundless use of coercive measures in surveillance procedures and state that, as it did not occur in the criminal proceeding the matter was not so serious at all. At the same time it should be mentioned that in theory of criminal procedure the issue of necessity and probability of "lifting" the information gained by surveillance procedures to the evidentiary level has permanently been topical. The police circles have continuously explained that these aspirations are justified by the necessity to fight more effectively against the increasing crime rate. For a long time counter-arguments to these aspirations (such as, the disregard for procedural guarantees, difficulties in the verification of evidence obtained by surveillance procedures, etc.) were acceptable and understandably their role was also strengthened by the atmosphere of the recent decade laying a special emphasis on the human rights. In some countries still certain single surveillance procedures "broke through" to the evidentiary level. Thus, for example, pursuant to the Hungarian criminal procedure, the record of a so-called odorologic observation drawn, in fact, on the basis of the behaviour of a police-dog was considered a piece of evidence. The whole situation changed when it was understood how dangerous organised crime⁴ is to the society. Since the end of the 1980s, we can, in principle, talk about a certain social agreement on that in order to deter organised crime the results of surveillance procedures should also be "lifted" to the evidentiary level provided that certain fixed requirements are followed thereat. Thus, in principle, a "direct way" is opened between surveillance and criminal procedural evidencing. At the same time, a tendency apparent in many states reveals that by using the "open way" the police circles try to enhance the importance of surveillance more and more.

Legalisation of surveillance procedures has resulted in rather essential changes in criminal care as the whole. In order to describe these new tendencies let us refer, for example, to Professor Renzo Orlandi from the University of Camerino (Italy). First of all, he stresses that for some time already the discussions of criminal jurists have revealed a conviction that - because of the newest developments in the fight against organised crime - the crucial issues of the fight against organised crime are resolved mainly at the level of criminal procedure (consequently, by the criminal court) and not at the level of substantial criminal law.

First of all, R. Orlandi points out that with regard to organised crime the beginning of the activities of the police and prosecutor's office at the stage of preliminary investigation and the scope of these activities are neither directed at the act qualified by the elements of crime nor at the concrete offender. It rather seems that the investigation focuses only partially on actions and persons that have criminal procedural relevancy. In the investigation of many organised crime cases the knowledge of preliminary investigation institutions that actions as well as persons under investigation are not relevant to criminal procedure, attracts attention. This can be explained by the fact that organised crime is inseparably connected with normal social and economic life. And therefore criminal law cannot offer the institution responsible for the conduct of preliminary investigation certain fixed limits within which it should fight against organised crime. The result is that the institution conducting preliminary investigation, and not criminal law, itself establishes the permissible limits to criminal procedural activities. In short, it can be said that we face a situation in which criminal procedure pertaining to organised crime as compared to regular criminal procedure runs a considerably different course⁵. Let us add that Albin Eser while summarising his article on the developments of European criminal procedure observes that if in regular criminal procedure the importance of the rule of law has increased then in connection with the activities aimed at dealing with organised crime the police have gained more power⁶.

2. Legal Regulation of Surveillance

2.1. Understandably, emancipation of surveillance procedures brought forward a question of their legal regulation⁷. The Surveillance Act (hereafter SA) was passed in the Republic of Estonia on 22 February 1994 (RT I 1994, 16, 290), whereby two decisions of the Constitutional Review Panel of the Supreme Court of 12 January 1994 expedited the passage of the law (unfortunately at the cost of the quality of the law). In short, these decisions declared a considerable part of the former regulation on surveillance unconstitutional. Let us just mention that the provision prescribing that the warrant for the conduct of a surveillance procedure had to be issued by the justice of the Supreme Court appointed by the Chief Justice of the Supreme Court, was also declared unconstitutional.

2.2. At the present moment, after various revisions the system of lawful surveillance...