Criminal Procedure Legislation of Bosnia and Herzegovina: Current Situation and Problems
10. Duration of the Investigation
The investigation in Bosnia and Herzegovina must be completed within six months from the day an investigation order was issued at the latest. It is common in practice that the prosecutors, es-pecially when cases are complex, undertake investigative actions even before the order is issued.
This has resulted from the legal provision which does not make a distinction between investiga-tions in terms of their difficulty and complexity in particular criminal cases prescribing the same deadline for the conclusion of all investigations.
The issue of the duration of investigations has been addressed by the Constitutional Court of BiH (as a constitutional issue) in several cases. In the most recent case (appeal no. AP 4340/10 of 15 January 2014), the appellant has addressed the Constitutional Court of BiH claiming that the in-vestigation in the case in question had not been concluded within „reasonable time“ pursuant to Article II/3e) of the Constitution of BiH and Article 6, para. 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,34 so the proceedings were at the time of the appeal still at the investigation stage. With regard to the cited claims made by the appellant, the Constitutional Court found that the appeal is permissable pursuant to Article 16, para. 3 of the Rules of the Constitutional Court.35 Namely, according to Article 16, para. 3 of the the Rules of the Constitutional Court, the Constitutional Court may take into consideration an appeal even when the competent court has not yet rendered a decision regarding the merit of the
33 Article 15, para. 6 of the Agreement between the Council of Ministers of BiH and the Government of the Republic of Croatia on Police Cooperation in the Fight against Cross-Border Crime (Official Gazette of BiH – International Agreements no. 9/11).
34 Hereinafter: the European Convention.
35 Official Gazette of BiH no. 60/05, 64/08 and 51/09.
case if the appeal alleges serious violations of the rights and fundamental freedoms which are protected by the Constitution of BiH or international agreements which are to be implemented in Bosnia and Herzegovina. In addition, the Constitutional Court notes that the existing legal provisions do not offer the suspect a possibility to appeal against the duration of the investigati-on, i.e. to raise this issue before the ordinary court within the investigative proceedings.
The Constitutional Court of BiH holds that in this particular case the appellant is subject to
„charges“ as referred to under Article 6, para. 1 of the European Convention, therefore all the gu-arantees of the right to a fair trial including the right to a decision within reasonable time in the criminal proceedings must be available. Instead of a special justification of such a conclusion, the Constitutional Court has invoked its Decision on Permissibility and Merit no. AP 2130/09 of 28 May 2010, item 47.36
According to the consistent practices of the European Court of Human Rights and of the Constitutional Court of BiH, reasonable duration of the proceedings must be determined in the light of the circumstances of each particular case, while taking into account the criteria establis-hed in jurisprudence of the European Court of Human Rights, especially the complexity of cases, the conduct of the parties to the proceedings and the competent court or other public authorities and of the relevance that the legal matter in question holds for the appellant.37 In accordance with the practice of the European Court of Human Rights, when assessing what is a reasonable peri-od of time, the beginning of the relevant periperi-od is marked by the moment the person in questi-on becomes aware that they are a suspect regarding a criminal offence since it is at that moment that the said person has a vested interest that the court should decide on whether such suspicion is valid. Such a determination of the relevant period is evident in cases where an arrest precedes formal charges.38 Furthermore, the end of the relevant period of time is marked by the moment when the uncertainty in terms of the legal position of the person in question is over. With regard to this, the European Court of Human Rights applies the same criteria both in criminal and civil matters. In addition, the decision in the criminal proceedings on the indictment, i.e. the acquittal or dissmissal of the charges, must be final. Finally, a final decision on the charges may be in the form of desisting from further criminal prosecution.39
In view of the aforementioned, the Constitutional Court notes that the investigative proceedin-gs lasted four years and six months, counting from the moment the District Court, at the moti-on of the District Prosecutor’s Office, passed an order to the moment when the idictment against the appellant was issued. However, the Constitutional Court notes that from the moment the in-dictment was confirmed, the entire proceedings (involving two court instances) were concluded within eight months.
With regard to the complexity of the proceedings, the Constitutional Court notes, bearing in mind the nature of the criminal offence as well as the fact that the investigative proceedings were directed at a number of individuals, that the investigation was in this particular case quite exten-sive and complex and it included the appellant as well. With regard to the appellant’s conduct,
36 Available on the official web site of the Constitutional Court: www.ustavnisud.ba.
37 See: European Court of Human Rights, Mikulić v. Croatia, application no. 53176/99 of 7 February 2002, Report no. 2002 - I, para. 38.
38 See: European Court of Human Rights, Wemhoff v. Germany , judgment no. 2122/64 of 27 June 1968, para. 19 and Dobbertin vs. France, judgment 13089/87 of 25 February 1993, paras. 9 and 138.
39 See: ECtHR, Wemhoff, para. 18.
the Constitutional Court could not conclude that the appellant’s actions had delayed the procee-dings. The Constitutional Court notes that the appellant has on several occasions addressed the District Prosecutor’s Office, as well as the Special Prosecutor’s Office urging them to conclude the investigative proceedings as soon as possible.
With regard to the conduct of the competent authorities, the Constitutional Court notes that in this particular case investigative actions were undertaken by the Prosecutor’s Office of BiH, District Prosecutor’s Office and the Special Prosecutor’s Office. Next, the Constitutional Court notes that a number of individuals were subject to the said investigation and the appellant was included among them. The Constitutional Court notes that the Criminal Procedure Codes of BiH and Republika Srpska which were applied by the competent authorities in this particular case do not prescribe when the investigation must be concluded. However, the cited laws do pres-cribe that the prosecutor shall conclude the investigation when he finds that the facts have been sufficiently clarified that an indictment may be issued and if the investigation is not concluded in six months – the collegium of the prosecutor’s office shall undertake the necessary measures with a view to concluding the investigation. Moreover, the Constitutional Court notes that the Criminal Procedure Codes of BiH and Republika Srpska prescribe the right of the accused to be brought before the court within reasonable time and to be tried without any delays.
In this particular case, the Constitutional Court notes that the investigation had lasted over four years. However, when considering if the aforementioned duration of the investigation meets the standards of the right to a fair trial within reasonable time, the Constitutional Court must take into account that the investigation was extremely extensive and that a number of individuals was be-ing investigated who were suspected of havbe-ing committed a criminal offence of organised crime as reffered to under Article 383 a), para. 2 of the Criminal Code of Republika Srpska40 regarding the criminal offence of unauthorised production and trafficking of narcotics pursuant to Article 224, para. 2 of the Criminal Code of Republika Srpska. Therefore, it follows that the very nature of the said criminal offence influnced how long the investigation, which involved the appellant as well, was. Next, the Constitutional Court notes that the proceedings also included cooperation between the District Prosecutor’s Office, the Prosecutor’s Office of BiH and the Special Prosecutor’s Office which also affected the duration of the investigation since the said prosecutor’s offices were under-taking actions which were under their respective jurisdictions. Furthermore, the Constitutional Court notes that a lot of investigative actions needed to be undertaken in order to corroborate the indictment. Therefore, the Constitutional Court holds that there were valid reasons for the investi-gation to last four years and six months. Next, the Constitutional Court notes that the proceedin-gs after the indictment was confirmed, involving two court instances, were concluded within eight months. Therefore, although the investigation lasted for over four years, still, viewed as a whole, the Constitutional Court finds that the proceedings were concluded within reasonable time, and that the appellant’s right to a trial within reasonable time pursuant to Article II/3e) of the Constitution of BiH and Article 6, para. 1 of the European Convention in this particular case has not been violated.
The absence of provisions regarding the suspension and widening the investigation has caused problems in practice. According to the current legal provisions, the criminal proceedings (in all of its stages) may be suspended only if the suspect, i.e. the accused, develops a mental illne-ss (Articles 207 and 388).
40 Official Gazette of Republika Srpska no. 49/03, 108/04, 37/06, 70/06, 73/10 and 1/12.
This paper covers a complex set of actions and activities regarding the criminal investigation in Bosnia and Herzegovina, which involves a great number of participants, the prosecutor and the authorised officers being the most important ones. The reform of the criminal procedure legislation in general, which was implemented under the influence of common law, has intro-duced considerable changes, never used before in this region. The prosecutor has been assigned a leading role during the investigation, whereas the authorised officers have been granted broad-er powbroad-ers when receiving the information and notifying the prosecutor on the grounds for sus-picion that a criminal offence has been committed. The role of the court has been reduced to review of the legality of certain prosecutor’s and authorised officers’ actions where the human rights of the suspect guaranteed by the Constitution and international treaties might be violated.
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Zlata Ðurđević, PhD1