Haški tribunal - izveštaj obaveštajnog analitičara - forenzički nalaz ili analitička informacija

REZIME: Potreba da se izvede ovo istraživanje javila se nakon što je u procesu pred Međunarodnim krivičnim sudom za bivšu Jugoslaviju izve-štaj obaveštajnog analitičara vojne obaveštajne službe označen i prihvaćen kao isprava koja u sebi sadrži nalaz i/ili mišljenje veštaka/forenzičara. Ovo stoga, što se, u krivično-procesnoj praksi Suda ne uočava jasna razlika između istražnog analitičara, forenzičkih radnji na osnovu forenzičkih znanja (legaliteta i legitimiteta) i forenzičkog nalaza i/ili mišljenja i oba-veštajnog analitičara i obaveštajne analitičke informacije koja nastaje kao proizvod obaveštajnog analitičkog procesa. U radu se ukazuje da je obave-štajna analitička informacija samo nastavak obaveštajnog rada u njegovom kružnom procesu, odnosno da je zaključak obaveštajnog analitičara samo metod obaveštajnog rada, a ne forenzički nalaz i/ili mišljenje, kao i to da je obaveštajna analiza samo jedan segment u obaveštajnom ciklusu. Nije nezavisna delatnost veštaka u krivičnom postupku.

Ključne reči: obaveštajni analitičar, analitička informacija, forenzičar, fo-renzički nalaz i/ili mišljenje.

Keynote review

In recent-modern (positive legal regulations), so to speak, and early legal theory-its history in the continental and Anglo-Saxon legal system, there were no examples in the courts1 of a forensic scientist being hired by a partyprosecution 2 intelligence analyst (military intelligence) as well as intelligence analysts reporting the status of a document which contains the forensic findings and / or comments. This criminal process innovation introduced by the International Criminal Tribunal for the former Yugoslavia 3 (adopted by Resolution No. 827, on 25th May 1993)4 exhibiting legal and intelligence science and practice in the world, necessarily gives us some basic knowledge of: the methodology of the intelligence; intelligence and investigative analyst, and then a correlation between the findings of intelligence analysts and findings and / or forensic review of the legal / procedural sense. Therefore, in further discussions, it will be necessary to limit an exposure to a relative summary, in the manner and to the extent that meets the requirements of such a work, which does not not allow a deeper access to and a review of numerous theoretical and practical issues which, if pursued to a systematic treatment, would be the subject of much detailed research than it is possible in the current work. In this study, we’ll try, in a less general and as much as it is possible illustrative way, to show an intelligence analytical process not passing through the stages of process / have nothing to do with an expertise.

Form methods of intelligence work

Methodology of intelligence work has for its object forms of intelligence information. These forms include traditional construction methods of recruitment, installation, management and use of intelligence sources, the construction works and other analytical methods. Now we come to the watersheds from which the scientific, theoretical and professional intelligence and criminal procedural standpoint draws a clear distinction between intelligence reasoning which is a product of intelligence analytical work and forensic findings and / or opinions of the criminal procedural terms whose product are documents containing findings and / or comments. It clearly imposes several issues: whether the intelligence analytical findings emerged on the basis of an intelligence analysis are those of: 1) forensic findings and / or opiniondocuments that can have any value in the criminal proceedings, 2) continuing intelligence work, or 3) Report „finding of „intelligence analysts enriched analytical intelligence information?.5 From the point of view of the theory of intelligence an intelligence analysis product is a continuation of intelligence work, not the form of forensic findings, and the product of this work is the analytical intelligence information. Furthermore, we say that the intelligence reasoning is a performance of a single intelligence court for one or more others.The explanation of the principle of sufficient reason being presented by the intelligence court, or any other of a number of other courts of intelligence, tells us that intelligence is an extension of the outcome, the conclusion of intelligence work. It seems to be obvious that intelligence and knowledge (illuminated or which illuminates),is supposed to discover,either being hidden or implicitly contained in the second.6 Therein lies our view that the intelligence reasoning method is not the form of forensic opinions.7 The intelligence court or courts, from which one performs the intelligence court, called the basic, front-intelligence positions, premises, or from the point of the paragraph because its intelligence reasons, and a conclusion on the intelligence in the strict sense, because in the broader sense, it is the set of all conclusions of the interacting intelligence judgments. From the above point of view it is clear that such intelligence conclusions cannot be of procedural importance and will be the presentation of forensic proceedings before the court.

In practice, the intelligence of special attention is required when the intelligence court is to perform immediately, and nothing less when running indirectly. So, in theory intelligence and legal watershed is visible between the direct and indirect evidence in the procedural sense, and intelligence concluding being materialized in the form of information given by intelligence analysts.

The content and scope of the concept of intelligence

The content (content, intension, connotation) of the notion of intelligence refers to a set of its features (bookmarks, features, elements, quality). As you will see the topic intelligence concept only contains its essential characteristics. If we talk about the scope of the concept of intelligence, we can say that there are subordinate intermediate basic concepts of intelligence: intelligence operations, intelligence analyses, and others.

Basic principles of cognition in an intelligence analysis are largely (essentially) different from the general institutes of evidence in a criminal proceeding or a legal opinion given by law. If the basis of a legal opinion,⁸ or any object that can still be found in the jurisprudence of every thing and every term is identical with itself, every thing is what you said. On the one hand, when an analysis of intelligence comes to the principles  knowledge, we must take into account the origin of the data, the basis, nature, borders, legitimacy and capacity (by validity) of intelligence information. On the other hand, the product of an intelligence analysis has two elements: the first one is analytical experience ( I esperienza ), the second one is the intelligence ( della mente ). An equipped intelligence analyst reacts to the knowledge of objective factors through which the outside world makes an impact, he processes and organizes information and data offered to him and does the analytical work with a third party.

Intelligence information-analytical findings of forensic intelligence or continuation of intelligence work

The theory says if we are talking about a common law or continental law system, the concept of the court will usually meet these views. The court (Iudicium) contains two terms, conditions, which are mutually compared and brought into connection, so that one emerges as something that the second is given or denied. Generally speaking, the other shows assertion or denial apart. Thus, we see that the court has two elements: the one which is given or denied, therefore, it expresses something as its preadicatum, and the other is subectum court. It is considered that the product of an intelligence analysis9, i.e. an intelligence report containing the information an intelligence analyst compiled, in effect, has no forensic findings or opinions, but it rather represents a continuation of intelligence work, an intelligence and reasoning method as a segment in a circular process of intelligence. Also, no matter if the obtained external intelligence findings expressed a grammatical form, giving it an objective existence, it cannot be called propositi. It also has no significance copula and not the third member of the court. The intelligence analysts did not mind findings and / or comments in the methodology of intelligence, as it is the case in the jurisprudence of expert / forensic scientist, but an intelligence and analytical information.

The Court’s view that (the first time) the criminal law process introduces an intelligence analyst report of the status of forensic findings and / or opinions, you do not see that it’s just a method of reasoning intelligence and analytic intelligence information. In the Intelligence theory and practice it is common to make an intelligence analyst who does not seek and was not the primary objective under the Code of Criminal Procedure gather evidence, but in order to say what follows, there should be using intelligence methods.

Knowing how and why to use the resulting intelligence information, where and how (which methods of research to be used) to look for them, what is their importance as sources for the construction of analytical information, intelligence analyst decides which intelligence and analytical methods to be applied. The product of this work is enriched with analytical information, and no forensic examination. Also, this procedure does not have anything in common or is based on the criminal procedural rules. The opposite of this is the case when investigating analysts as forensic scientists / experts with the appropriate skills are verified by the competent authority, authorized to do so, to take an order finding expertise and build for the public prosecutor in the Anglo-Saxon legal system (this can be also asked for defense) or the needs of the court (we can talk about the investigative judge or greater) in the continental legal system.

When do we want from a comparative criminal procedural aspect to highlight this model of engagement „forensic-intelligence analyst!?“.10 First, we have to say to one another and to the legal system with minor differences in forensic activity of individuals in a criminal procedure that it always takes place according to the rules of a discipline, and profession or skill (lex artis), which is verified in the prescribed procedure by the competent authority, issuing certificates (a certificate) confirming forensic power, legitimacy and legality. This is necessary because of the fact that the intelligence analysis can standardize legal (procedural) rules. This is also crucial to understanding the following issues: whether a finding of intelligence analysts made at the request of the prosecution under the statute of the court has the status of a document which contains the forensic findings and / or opinions and procedural importance in a criminal proceedings. In relation to the method of determining the facts of intelligence analysts, a forensic investigation analysis builds its findings while respecting the procedural rules and scientific activities, as well as the knowledge of science. It merges the rules of the profession with the norms -procedural rules, facts and opinions, and the scientific method which is then used to establish the facts of different cognitive processes, in which an intelligence analysis is not present.

Decoding the holders of material information in the intelligence and criminal-procedural sense

When the material information11, based at forensics (actions usually have the status of police actions) comes to the intelligence analysts, the procedural rules that will decode the material information usually lead to the finding being important for the process in a criminal proceedings. Contrary to the above, an intelligence analyst description of the material information is primarily performed through the evaluation of both the source and information, and, at the same time, there is a usage of the experience and methods of intelligence analysis as well as logical thinking skills and connections.

From the above, we can see a clear difference between the decoding carrier of the material information12 in the notification and procedural criminal proceedings. While, on the one hand, in the process of intelligence material carriers the information are described by assessing: a) intelligence sources and b) the intelligence source carrying the same which can be described by expertise-holders of material information in the preliminary or criminal proceedings undertaken pursuant to the rules of the due process, based on the order of the statutory authorities, and on the other, the forensic material description of information (in the case of documents) is a scientific and technical problem, so it is necessary that it is always done by the expert corresponding profile. We can see that the analytical intelligence activity is just a link in the intelligence business process. From the above, it follows that the product of the intelligence analysis is only one segment of the intelligence process, being built on the previous link. All this indicates that this product is not a separate intelligence analysis and independent forensic activity, but a necessary link in the intelligence process and continuing intelligence work. Regardless of what an intelligence analysis can be „used“ in a (criminal) phase of the study of crime, it cannot be said that its capacity stems from the criminal procedure law and criminal procedural actions necessary to provide the framework for the activities of the participants (parties and entities) in a criminal proceedin-gs.13 In theory, the law of an intelligence analysis and its product goes further the states that it is not only a controversial criminal-procedural framework, but the question of the application of the methods having a scientific or forensic background. The other states say that the focus of intelligence work is not a scientific examination of material information and obtaining documentary evidence related to the crime, no matter the findings of an intelligence analysis may indicate the need to implement the other steps in uncovering the crime. The theory still argues: it can point to the direction in which to navigate in order to reach the clues, evidence and persons involved in the crime, but it does not mean that the regulated activity is taken place according to the criminal -procedural rules. On the contrary, the history of intelligence analysis does not indicate that its business is focused on the physical evidence, 14 but on an intelligence analytical information, or to enrich existing intelligence information in the notification database. Here we have to ask at least two questions: what is the relation of the two concepts: the forensic findings and / or comments in the criminal procedural sense and „finding“ intelligence analysis. Is it possible the relationship to be court-appointed?15

The Process Status of analytical intelligence information

The formation of each intelligence analytical work (studies, reports) is, of course, specific. It is conditioned by a number of factors, such as: a) subjective: 1) first of all, by the personality of an intelligence analyst, and 2) his view of the language of intelligence and opinion, and 3) his understanding and relations with the analytical intelligence research, 4) his intelligence analytical capabilities, preferences, 5) his attitude toward an intelligence analytical task that has been set, 6) his respecting the principles and procedures, b) objective: 1) the moment at which the intelligence analytical work is done, 2) the past achievements in this area, 3) the nature and extent of intelligence analytical work, and 4) the level of development methods (tools for the development and emergence of the work). In addition to these elements, we can say that there are some general, common features and principles which is subject to the creation of certain intelligence analytical work.

Analytical work is created in the creative process of intelligence analysts, in four stages: the first stage – the intelligence analyst work is based on available information. Here, one can observe the elements and details relating to the status of the analytical task and its level (strategic, tactical, problem solving, etc.), notes, documents being in the relationship with other knowledge, reminiscences, registration, documentary material aside. The second stage – an analyst thinks that everything seen, observed, perceived and recorded and come up with general ideas, conclusions and judgments about the research and its occurrence stands out as an idea or special interest starting to court as the case study and focuses around it, including all those phenomena in the analytic database that can confirm or deny it, putting it in the required sampling and generalization. The third stage – analysts initially appeared unclear , then everything that had been perceived, noticed and chosen and which had had a specific idea or conveyed a profound experience, at that point, could occur and form part of the case. The fourth stage – it is formed by an intelligence analyst`s analytic idea being formed by analytical work (study, document, report, presentation, etc.). It is the matter of talent, his personal qualities and intelligence analytical experience. In any analytical work, it is possible to see three of its important characteristics: 1) content, 2) form, and 3) the means by which the content and form or the obtained data are organized. Intelligence and analytical work, practically speaking, is similar to a firm, an organizational unit which cannot be disassembled. The division between content, form and means has only a practical significance: it is easier to detect these properties, even though they make an unbreakable unity.

Under the contents of an analytical work one means the subject of the presentation of a phenomenon, or a circle phenomenon being noted by an analyst and set aside on the basis of an intelligence analytical task, describing it in his presentation. Keeping to its properties (subjective and objective), understanding and relationship with the collected information, the analyst has to transfer his work into a special form of written words, or, if he can, into some image. Display (security, criminal) or the appearance of a circle phenomenon seems to be a part of the content, and the ratio of analysts, according to the content, i.e. their attitude and relationship with the occurrence or occurrences being observed and recorded, make the idea of the analytical work. It is necessary to note that, in some analytical works, determining the content is a very delicate job. This comes from the fact that the words may appear to be more secondary issues, and ideas are not always clearly subordinate to the main idea of an intelligence analytical task. It is understandable that analysts16, by combining the ideas and content parts, will be clear if the participants are at a bold relief point, the vivid display, and this will be possible if the content of the events is connected with the harmonious action during operations on the cause-effect relationship, or have their composition.Thus, the composition is one of the essential elements for the formation of an analytical part. The intelligence and analytical language has no small importance for the understanding of a work.

I cannot give you legal (procedural) rules according which an intelligence analytical work functions, but, by using intelligence and analytics, each generation can, working individually, see the basic lines and patterns of such a work. The author of this work, an intelligence analyst, participated in observing phenomena, collecting material, records, documents and other similar things. He was focused on material collected by applying the method which led him to some judgments about particular phenomenon, one or more of them, revealing the legality of those phenomena, their constancy in certain situations, circumstances and actions. He shaped them analytically. The entire process flowed in the right direction and the foundation of realizing the idea appeared simultaneously. While creating a work, whether it is mentally first built, or immediately transformed into a technical writing, an intelligence analyst shall permanently transfer the contents of the form. The forms of intelligence analytical work are only the various ways through which an analyst (read: intelligence) reports his imaginary material, or what he wants to say. In order to enable the analyst to form the content of his work, it is essential to make the events and phenomena manifest themselves in some way related to a series of actions and events being connected to each other. Often, these two categories are mixed, and they are not the same. The contents of an analytical part is a set of circumstances in which the analyst is moving in that direction. Building the content arrangement is something that exposes an analyst in his analytic work and the work itself.

The correlation of intelligence and forensic report shows that the forensic findings versus the intelligence one is a product of the application of scientific methods, and all have been taken in the procedure established by law. Therefore, the content of the forensic report is based on the implementation of expertise, on the knowledge obtained by the circumstances whose product refers to the application of recognized scientific method / process of the science accomplished, the procedure prescribed by law by a competent authority or an authorized person specified in the form of findings and / or opinions. Forensic / expert special legal provisions have been established in both legal systems as a necessary consequence of the introduction of scientific methods in the process of finding and proving the crimes and their perpetrators.

A forensic intelligence process stands opposite to the analytical procedure as a motion undertaken pursuant to an order in the form prescribed by law, when the assessment or evaluation of relevant facts necessary to the findings and / or opinions is given by the person who has done the necessary expertise. Here it is crucial to mention that the forensic results coming from the power control capabilities of forensic material information are verified by the legal process of obtaining a certificate (the legitimacy and legality) before a competent authority. Also, contrary to the intelligence of the analytical procedure, the procedure moves of forensics are determined, on the one hand, by the rules of the procedure and, on the other hand, by scientific methods, methodologies and laws as well as the very content of the forensic findings and / or opinions as a product. In intelligence analytics we can mark the application of scientific (forensic) methods in investigating crimes. Contrary to this, expertise means the application of science (natural, social, their methods) in a legal context. The obtained forensic science research knowledge ensures physical evidence related to the crime.

The relationship between the work of the intelligence sources and intelligence findings is ambiguous (almost never uniform), so it imperatively demands the introduction of various versions of not only the meaning, but also the credibility of such information. In fact, in the intelligence operation which is a segment of the intelligence analysis, we can say that there is a permanent presence of the hypothetical Conclusion.17

Concluding discussion

The court proceedings can be characterized as mixed. We are witnesses to the more specific actions taken based on the so-called. mixed legal system (continental and Anglo-Saxon). In the process of proposing the prosecution case and defense in relation to the functions undertaken by the party called, prosecution types of criminal proceedings, which are typical of the common law system, with a party initiative in this case, the evidence, regardless of a party office (prosecution or defense), may be in favor of both prosecution and defense. They partly corroborate the accusation, but at the same time, in another part of the testimony they are in favor of the defendant or defendants, or otherwise use his defense in the criminal proceedings.

A finding that is based on the analysis of intelligence (intelligence analysis) taken by the intelligence analyst at the initiative of the prosecution (party function) is not a finding but a continuation of forensic intelligence work in a circular intelligence process ( here we are not talking about the circumstantial chain), and the status of intelligence and analytical information. There is a link between intelligence analysts, sources of information and relevant facts indirect. In most cases, assessment of sources (open or closed) is debatable since the document in question has the lowest level of reliability and value knowledge. Additionally, providing the „findings“ of intelligence analysts on an analysis by using painting, photography and film could not be in the professional competence of the intelligence analyst.

It is evident that, in a legislation correlation of both Anglo-Saxon and Continental legal sistems, the product of forensic finding and/or opinion is in an accordance with a competent authority. It usually depends on the fact who is conducting the investigation: whether it is prosecutorial or judicial approach, or, one attpempts one or the other approach in the investigation. There is no doubt that the document which contains the findings and / or opinion comes from forensic powers, the statutory procedure which is subject to a forensic expert having knowledge and a certificate confirming his identity for the treatment of certain authority, legitimacy of his findings. We are talking about the validity of the knowledge that has applied the law and due process, which is not present in the intelligence analyses.

Also, we note that the comparative study and description of data integration techniques such as a link analysis, do not have an end in themselves. They represent one step in the process of arriving at a conclusion from the above information, aimed at drawing conclusions about the nature and scope of intelligence activities and targeted on specific individuals and organizations being involved. So there is no doubt that the intelligence analysts conclude something very contrary to the findings of forensic scientists / experts, because the explanation is derived from a set of related information aiming to develop a conclusion with enough confidence according to which we can make decisions and take action. All this indicates that the methodology of forensic / expert finding and bringing to justice does not have anything in common, or contrary to the methodology of the intelligence analysis.

The comparative study tells us that there is an evident undeniable difference in the legal and intelligence doctrine and practice between an intelligence analysis, investigation and a forensic analysis in all jurisdictions whether Continental, Anglo-Saxon or a mixed one as represented in court. From the results of this research it is clear that an intelligence analyst`s report finds no status. Therefore, the collection and presentation of evidence could be done by an investigative or forensic analyst analysis, not by an intelligence analyst and military intelligence.

Application of intelligence methods in a criminal proceedings requires significant controversy, primarily related to the need to clearly separate the intelligence material obtained by conventional security intelligence, and get the application process through the implementation of the basic rules of criminal procedural actions. The methodology of collecting this material in the security context and process is not identical, so the treatment of the material must be dramatically different when it comes to these types of procedures.

Dragan Manojlovic, PhD

Megatrend University in Belgrade

THE HAGUE TRIBUNAL – intelligence ANALYST REPORT

– forensic findings or analytical information legal and intelligence comparative approach