It is the matter of urgency for the BiH Ministry of Justice and the Council of Ministers to agree and adopt the draft amendments to the Criminal Procedure Code (CPC) of BIH, which must be forwarded to BIH Parliamentary Assembly for final vote without delay.
These amendments are necessary in order to implement a BiH Constitutional Court decision that requires stricter legal regime, i.e. use and control of Special Investigate Measures in criminal proceedings. Without amendments, the BiH Constitutional Court may quash the current CPC provisions for not yet being aligned with BiH Constitution within the deadline of 6 months from the day these were declared unconstitutional. The Constitutional Court will decide by the end of March, either to quash these provisions or allow more time for the legislator to adopt the amendments.
Special Investigative measures are used in the prevention and detection of serious crime and have special importance in the system of evidentiary tools. They include, amongst other, the use of undercover police personnel, communication interception, surveillance and deployment of informants. At the same time they must restricted solely to that which is necessary in a democratic society, i.e. ensuring the proportionality between the right to privacy of individuals and security needs of the country.
The Ministry of Justice has drafted amendments to the CPC but they are weak, not satisfying the requests for a more invigorated fight against corruption and organized crime, on domestic or international level.
It is therefore of utmost importance that the draft is fully aligned with international standards and specifically those under the UN Convention on Transnational Organised Crime.
If the legislator only adopts partial solutions or the Constitutional Court quashes the existing provisions as being unconstitutional, BIH Prosecutors will be deprived of one of the major tools to effectively fight against the most serious crime. The direct consequence of both such scenarios would be impunity of those who commit those crimes.
This would contribute undermining the rule of law, at a time when BiH must ensure a safe and secure environment for potential investors. This would be considered a detrimental step in light of the forthcoming Opinion on BiH’s application to EU membership.