Privataus asmens gyvenimo ribojimas slaptomis priemonėmis: (ne)kokybiško įstatymo problema

Abstract

Restriction of human rights in criminal procedure offtenly is integrated part of effective criminal procedure. Nevertheless, more complicated is evaluation of addmisability of application of secret surveillance measures. These procedures restricts private life of a person; therefore, they should be proportional and the results obtained should comply with the general requirements for evidences. Legal regulation of special investigative techniques was not changed in Lithuania recently. Nevertheless court’s practices rise new questions related to their proper application. Constitutional jurisprudence of Lithuania indicates that human rights may be restricted only by the law and the courts have no right to fill in legal gaps by limitations of human rights in criminal procedure. Nevertheless, the author of the article concludes that in some aspects the law defining conditions and procedures of secret surveillance measures is unqalitative. Therefore the question may be formulated in respect to the beforementioned ideas – has the court the right (or is the court obliged?), if the gap in legal regulation is identified, to foresee additional, not provided by legislator, bases and conditions, that in essence narrowes application of such a law? Thus, the author concludes that the court seaking for application of proportional restrictions of human rights should apply the principles of criminal procedure. Accordingly, if the court determines that the law lacks proper warranties for proportional restriction of human rights it should fill in such gaps ad hoc. In such cases court practices should comply with consistency, publicity and predictability requirements.