19
investigation and trial actions by studying the regularities of content aspects of these actions and
operational-
tactical activities (which do not even have a procedural form), thus emphasizing the importance of the
methods of obtaining information
31
. As pretrial and criminal proceedings in epistemological sense make the
whole process (pretrial proceedings is a prelude to criminal proceedings and in combination with
it makes an
organic whole), the notion of detection
has a definite, but temporary provision (Vodinelić, 1985).
The aforementioned doctrine is particularly evident as the circle of authorized subjects for evidence
collection (the authorities) widens. A typical example would be a prosecutorial, or even better, a
prosecutorial-police investigation, where aside from the prosecutor other police officers can take part in
obtaining evidence. Namely, this should serve as one of the basic advantages of prosecutorial (police)
investigation, in terms of efficiency because it lowers the chances for unnecessary evidence repetition.
However, this procedure in investigation (e.g. obtaining evidence by the police officers) is not only
problematic but also connected to a series of criminal-legal implications (e.g. secondary illegal evidence and
other). This is why it is important to raise awareness about criminological doctrine on fixation of probative
information which the doyen of criminalistics, Professor Vodinalić, advocated in his scientific opus. This is
all more since this issue has been neglected, on the one hand, while being regarded as something generally
known
and clear, on the other.
3.
VODINELIĆ’S DOCTRINE AND CURRENT PROSECUTORIAL INVESTIGATION
In his papers Vodinelic strongly advocates criminal-legal and criminal-procedural relation, as well as
criminological doctrine. In that regard, Vodinelić‟s doctrine is used in the current model of prosecutorial
investigation
32
. Namely, the concept of prosecutorial investigation is characterized by an expressed role of
the prosecutor and the law enforcement officers in an investigation. In that context, criminological
knowledge comes into foreground, especially in undertaking specific proving actions (treatment tactic). One
of the most common problems in conducting an investigation is the prosecutor‟s lack of professional
competence in the sense of conduct according to the criminological rules in undertaking specific proving
actions. This may well be one of the weakest links of current investigation concept, not due to the lack of
prosecutorial concept of investigation (which is present, but not crucial), but because of the lack of
systematic study of criminalistics, and thus acquisition of criminological knowledge and skills by the current
and future prosecutors
33
. That is why it is pointed to the necessity of additional education of prosecutors in
regard to tactics/ways of implementation of specific proving actions, i.e. adoption of basic criminological
knowledge and skills
34
. To support this thesis, most problems occur in investigation during proving actions.
The reasons are clear. Most of the proving actions are dealt with by the police, rarely the prosecutors. The
problem arises when some oversights occur during proving actions or when collection of evidence needs to
31
This approach is closely related to our definition of criminalistics as a science, which does not only teach the most adequate
technique, tactics and methods of providing information processing in the procedure but also in criminological operative activity
(control and processing). The paper also focuses on the term criminological object. The term “evidence” cannot be used to denote
objects which are not or still not evidence. Criminalistics deals with information and perpetrator, and the Criminal Procedure Law
deals with turning the information about a proceeding into evidence and how they are used in that sense. Aside from that, majority of
criminological objects never turn into evidence because they are not related to the criminal offense in question. This implies to all the
objects in criminological records, e.g. dactyloscopy collections, but also objects from different operational processing which were
never realized. There is a category of objects which serve as proof information but were not considered evidence (Vodinelić, 1985).
32
Prosecutorial investigation, in terms of European trends, has been introduced into procedural legislation of the Republic of Srpska
and BiH. Thus, the prosecutor is in charge of the entire investigation, by managing and overseeing the work of law enforcement
officers. Aside from prosecutors, law enforcement officers (police officers) also play an active role in an investigation. The evidence
provided by the police in the investigation is admissible if they were they collected in a legal way (under the supervision of the
prosecutor). A successful investigation depends on the cooperation between the police and the prosecutor, i.e. their synergy, so in that
regard they are equally responsible for the investigation.
33
Namely, at most law faculties in the Republic of Srpska and BiH, and in the region (due to similar schooling system and
prosecutorial training) criminalistics is not studied in a systematic and holistic way, but as an optional subject or simply as a
compulsory subject on one course. Likewise, the programs for training prosecutors contain little or no criminological content as a
system (tactics, techniques, methods, operations, strategies), but partially address some topics within other training areas.
34
Vodinelić indicated this back in 1985: “science points to the need for the investigating judge and panel to incorporate
criminalistics
in their work simply because investigative and trial actions of evidentiary nature are one and the same and have the same
criminological content. What makes the technique, tactics and methods of an investigation, reconstruction of the event, expert
evaluation, eyewitness testimony, etc. different if they are performed by an operative, an investigating judge or a panel? Furthermore,
the judicial panel cannot successfully evaluate specific evidence and act upon the evidence system if it has no knowledge of or does
not implement criminological doctrine about them, e.g. a criminological theory of indication” (Vodinelić, 1985). Accordingly, for
more than thirty years not a step has been made in this direction except for the fact that an investigating judge was replaced with a
prosecutor in accordance with a new concept of investigation.