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prosecutor and the law enforcement officers in an
investigation, and based on the
initial knowledge about the
criminal offense (criminal information), the three most common situations take place: in the first situation
the data and information on the criminal offense are obtained by the law enforcement officer. It is the duty of
the law enforcement officer to inform the prosecutor
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if the collected information, data and intelligence
indicate to a criminal offense which is punishable by five years in prison (forthwith) or up to five years
(within seven days). Once the prosecutor was informed, he begins to supervise and takes over the
responsibility for the results of the investigation in order for both investigating subjects to perform their duty
in a concrete criminal proceeding. The second situation emerges when the information and data about the
committed criminal offense are first presented to the prosecutor. The third situation arises when the police or
the prosecutor find out that there is a reasonable suspicion that a criminal offense was committed but the
perpetrator was not identified, i.e. initiating a proceeding against John Doe perpetrator or injured party or
when the third party reports a criminal offense (Module 1, 2010).
4.
USE OF UNDERCOVER AGENT IN COMBATING CRIME
The use of an undercover agent in combating crime is one of the new methods in our legal system
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:
Professor Vodinelić also contributed to this institution twenty years ago through stances and arguments,
which are valued even today. Namely, theory does not clarify the issue of responsibility of the provocateur
whose actions prompt the one being provoked into committing a criminal offense so he would be caught in
the process for the purpose of easier proving of committed offense and his liability. The proper term is an
agent provocateur
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, which has been in use in some criminal-legal systems in combating specific dangerous
forms of (especially organized) crime, such as illegal drug trafficking, terrorism, human trafficking, etc.
According to some, this is regarded as provocation and such person should be made liable
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, while others
think that this is not a case of provocation since it does not imply to the completion of the offense or
prompting another, but a mere ascertainment of the current will to commit a criminal offense (Vodinelić,
1994). Vodinelić argues that the agent provocateur does not directly influence the decision of the perpetrator
to commit a criminal offense, since this decision has already been made. The influence of the agent
provocateur on criminals (especially organized and professional criminals), i.e. their will, is not
“constitutive” because they already possess the will to commit a criminal offense, it is rather
“observational”
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(Vodinelić, 1994). Accordingly, the actions of the agent provocateur are not intended to
provoke committing a criminal offense, by influencing the decision of the perpetrator, for it has already been
made with the participant in organized crime.
On the contrary, his actions are directed at the ascertainment of
readiness to
commit a criminal offense, i.e. providing evidence.
Current jurisprudence shows that provocation should be addresses in the criminal-legal sense, which
means that the actions of law enforcement officers should influence the decision to commit a criminal
offense. This means that the undercover agent should not remain passive during the process, but his actions
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When it comes to this question, practice points to two attitudes. The advocates of the first attitude think that timely informing of
the prosecutor is not a good thing, because he is needlessly burdened and it usually implies an operational fact, i.e. criminological
intelligence which needs to be verified and alike. On the other hand, there are those who believe that untimely informing of the
prosecutor at the start makes the investigation difficult, for if the prosecutor is not timely informed about all the facts of the matter
then the investigation is not conducted properly (Module 2, 2010).
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An undercover agent is a specific type of investigation prescribed by the Law on Criminal Proceedings of the Republic of Srpska,
which has resulted in the need for more successful and efficient combating crime. Based on the legal definition, an undercover agent
is a specially trained law enforcement officer who uses an alias to conduct an investigation within the legal framework, and if there is
need for maintaining this identity, he can change or use appropriate documents.
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Agent provocateurs are usually persons, members of the police and whose aim is to apprehend organized hard criminals (drug
dealers, arms dealers, members of terrorist organizations). They get in contact with delinquents and pose themselves as criminals
(Vodinelić, 1994).
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To support the first stand we cite the following interpretation: “A contentious situation is one which implies the intent of the
provocateur to provoke the perpetrator into initiating an offense in order to catch him in the act before he gets a chance to complete it
for the purpose of easier proving. Namely, the role of the agent provocateur is to prevent particularly dangerous forms of crime (e.g.
terrorism, illegal drug trafficking, etc.), which is allowed in some countries under specific conditions. By putting aside the issue of
how this form of combating crime is acceptable from the aspect of human freedoms and rights of the citizens, taking into
consideration complicity and provocation, the argument that the agent provocateur‟s intention is not for the perpetrator to cause
consequences does not exclude his criminal liability as a provocateur, especially in the case of committing an offense. The fact that
the agent provocateur‟s motive is not of criminal nature does not exclude his criminal liability, but can only be taken into
consideration in terms of sentencing.” (Stojanović, 1999; Commentary, 2005)
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Accordingly, the provocateur has already made a decision to commit an offense, and the role of the agent provocateur is just to
point to that volition. In this way, the role of the agent provocateur is just to detect organized or professional criminals.