(Ne)usaglašeni dokazni standardi za pretresanje stana, prostorija i lica u Bosni i Hercegovini

Abstract

The search of an apartment or any other type of premises is a procedural act of coercion against a suspect and another person who is believed to be helping to hide the perpetrators, accomplices of the crime, or objects significant for criminal proceedings. Is the search of the person acceptable based on the right to defense by silence? Evidence in criminal proceedings search of apartment and person are evidence that violates the right to privacy, as well as special investigative actions. However, in the laws on criminal procedure in Bosnia and Herzegovina, the standard of proof for searches of apartments and persons is lower than for special investigative actions. The standard of doubt required for searching is probability that is based on facts, but the standard of doubt required for special investigative actions is reasonable suspicion. Reasonable suspicion is a higher degree of suspicion based on the collected evidence which point to the conclusion that a criminal offense has been committed. The paper addresses the question as to what motivated the legislator to opt for a lower standard of proof for searching in relation to special investigative actions if this evidence limits the right to privacy.