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This Chapter formulates the conditions which any regulation of the anticipative criminal investigation must meet under the rule of law and, in that way, it transgresses the differences between the legal systems. The conditions are formulated through combining two normative, legal interpretive, theoretical concepts which result in the development of a three-dimensional approach to the formulation of the conditions regulating criminal investigation. This approach is based on the idea that, on the one hand, certain underpinnings of the system, those that can be derived from the right to respect for human dignity, are perpetual. These underpinnings have a procedural or an institutional character. On the other hand, a specific system of regulation is subject to change and, hence, within the boundaries of the procedural and institutional principles there is room for adjustments on the basis of policy choices. The theoretical analysis provided in this Chapter, based on legal philosophical and human rights law arguments, results in a conclusion as to the question whether prevention can be a function of criminal investigation under the rule of law and in the formulation of regulatory conditions categorized in three pillars: legitimization, integrity and fairness. |
