Experiences with and Problems Identified in the Prosecutorial Investigation in BiH
1. Preliminary remarks
1.1. Brief summary of the reform of criminal procedural law in BiH
The first steps taken towards reforming and introducing a totally new system of criminal proce-dure law in Bosnia and Herzegovina are associated with the founding of the District of Brčko as an independent unit of local self-government in BiH following the conclusion of an arbitration process in which the status of this part of the BiH territory was established after the signing of the Dayton Accords. The District of Brčko was established by virtue of a final award of the arbitral tribunal in 2000, which set forth, inter alia, that the Brčko District of BiH would also have, among other institutions, an independent judiciary. All the necessary acts were passed in the process of implementation and creating of judicial institutions of the BiH Brčko District, in particular the Criminal Procedure Code of the BiH Brčko District.2 It was an entirely new code of criminal pro-cedure founded on the principles of the common law system in which investigative proceedings were entirely entrusted to the prosecution or the police. The Code governed, in a completely new manner, all the relevant segments of the rules of procedure. Later, the Code was used as one of model acts in the reform of criminal procedure law in BiH.
A comprehensive reform of criminal procedure law at all the levels of BiH followed in 2003.
The Criminal Procedure Code of BiH was promulgated by virtue of a Decision of the High
1 Federal Prosecutor with the Federal Prosecutor’s Office of the Federation of Bosnia and Herzegovina.
2 Criminal Procedure Code of the Brčko District of BiH (Official Gazette of the Brčko District of BiH, no. 7/00).
Representative for BiH3 and it came into force on March 1, 2003. The new procedural legislation was enacted at the level of two entities (the Federation of BiH and Republika Srpska) as well as in the Brčko District of BiH and the contents of those codes of criminal procedure were essential-ly the same. On the day of coming into force of the Criminal Procedure Code of the BiH Brčko District,4 the Criminal Procedure Code of the BiH Federation,5 and the Criminal Procedure Code of the Republika Srpska,6 the provisions of previous criminal procedure codes7 as well as of all the other regulations adopted in accordance with them were set aside, unless otherwise pro-vided for in the above-cited Codes.
The new codes of criminal procedure had eliminated the inherited Yugoslav model of criminal procedure and opened up a possibility for applying new procedural institutes which would, taken as a whole, modernise the rules of criminal procedure, thus ensuring the harmonisation of crim-inal laws and the crimcrim-inal justice systems in BiH. The reform of the legislation on crimcrim-inal pro-cedure was aimed at: establishing an efficient criminal propro-cedure and providing for legal instru-ments to efficiently combat crime; protection of human rights and freedoms guaranteed under international law; elimination of lengthy criminal proceedings; disburdening of the criminal jus-tice system by means of simplifying procedural forms and institutes; harmonisation of national regulations with international human rights law and suppression of crime; achieving harmonisa-tion within the naharmonisa-tional legal system; consideraharmonisa-tion and retenharmonisa-tion of certain segments from the inherited criminal procedure law.8
1.2. Changes in investigation procedure after the reform
A lot of discussion had been generated following the adoption of the current codes of criminal procedure, in particular about complex aspects of prosecutorial investigation and other impor-tant phases of criminal proceedings. Special attention was devoted to new procedural institutes which pertained to the relevant elements and specific features of the new criminal investiga-tion process based on the accusatory principle. Looking from this perspective and after more than ten years of application of the new and reformed criminal procedure law in BiH, one could reach a conclusion that that law incorporates the elements of the mixed model of civil law and the adversarial model of the common law (or Anglo-American law). Not even in those ten years
3 Following its promulgation on an interim basis, the Code was adopted by the Parliamentary Assembly of Bosnia and Herzegovina and published in the Official Gazette of BiH no. 36/03 (subsequent amendments thereto were published in the Official Gazette of BiH, no.
26/04, 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07, 53/07, 76/07, 15/08, 58/08, 12/09, 16/09 and 93/09), hereinafter (the BiH CPC).
4 The Code came into force on July 11, 2003; (Art. 434) of the Criminal Procedure Code of the BiH Brčko District (Official Gazette of the Brčko District of BiH, no. 10/2003), with subsequent amendments thereto published in the (Official Gazette of the Brčko District of BiH, no.
48/04, 6/06, 12/07, 21/07, 14/07, 21/07, 2/08 and 17/09), while its consolidated text was published in the (Official Gazette of the Brčko District of BiH, no. 44/10), hereinafter (the BD BiH CPC).
5 The Code came into force on August 1, 2003, published as the Criminal Procedure Code of the Federation of BiH (Official Gazette of the Federation of BiH, no. 35/03, 56/03, 78/04, 28/05, 55/06, 53/07, 9/09), hereinafter (the FBiH CPC)
6 The Code came into force on July 1, 2003 as the Criminal Procedure Code of the Republika Srpska (Official Gazette of the RS, no. 50/03, 111/04, 29/07, 68/07, 119/08, 55/09, 80/09, 92/09, 100/09) and its consolidated text was published in (the Official Gazette of the RS, no.
53/12), hereinafter (the RS CPC).
7 The following acts were repealed: Criminal Procedure Code of the BiH Brčko District (Official Gazette of the BiH Brčko District, no.
7/2000); Criminal Procedure Code of the Federation of BiH which entered into force on November 28, 1998 and thus replaced the procedural law inherited from the former SFR Yugoslavia (Official Gazette of the BiH Federation, no. 43/98 and 23/99); and Criminal Procedure Code of the RS, consolidated text (Official Gazette of the SFRY, no. 26/86, 74/87, 57/89 and 3/90) and (Official Gazette of the RS, no. 4/93, 26/93, 14/94, 6/97 and 61/01).
8 Dr Hajrija Sijerčić Čolić, Krivično procesno zakonodavstvo u BiH glavni izazovi nakon reforme krivičnog zakonodavstva Sarajevo 2003.
godine“ in „Pravo i pravda“,- Journal of Legal Theory and Practice of the Prosecutors’ Association of FBiH, no.. 1/2003.
of development of criminal law has “our way” of bridging the gap between the said models and combining the forms and subject matters from different legal systems been settled.9
Since 2003, the criminal procedure law has undergone and has been exposed to some necessary changes, both minor and far-reaching, which have taken various directions. Shortly after the procedural laws were enacted, a need for making amendments to those existing laws had aris-en; as time passed by, more and more serious shortcomings were identified in the existing legis-lative solutions, so the scope of modifications broadened, in particular in the period 2008-2009.
As part of criminal proceedings, the investigation has also been subject to modifications of the existing criminal procedure laws in BiH after the adoption of the new codes of criminal proce-dure. After the new Codes came into force and their implementation began, there have been dis-cussions as to whether or not a prosecutor should inform a suspect and his defence attorney that an order for conducting an investigation has been issued. This matter has been discussed and as-sessed as an important procedural issue which could result in equating or at least bringing closer together the position of prosecutors as the representatives of the prosecution and of the defence and thus strengthen the position of suspects. However, no such concept has been incorporat-ed into procincorporat-edural laws until today, even though the number of its supporters is equivalent to the number of those who oppose it. Another important question corresponds with the previ-ous one: at which point should a suspect be informed that a criminal proceeding – investigation is being conducted against him as well as at which point should he should questioned or when should his questioning commence and thus allow him to exercise his right to defence. In that re-gard, different approaches have been favoured, in particular to the issue of the moment at which a suspect should be questioned. The opinion in which suspects should be questioned at an ear-ly stage in the investigation seems justified since it is associated with some important elements of the suspect’s position in respect of the establishment of the right to defence because suspects learn that they are in effect suspects when they are first questioned which is also when they as-sert their right to a defence counsel. However, things are different in practice and it has been re-vealed that suspects are questioned at the outset of investigations as well as just before the issu-ing of indictments. A dilemma about whether or not an indictment may be issued if the suspect has not been questioned during the investigation has resulted in adopting a provision whereby no indictment may be issued if the suspect has not been previously questioned.10 Another moot point was raised immediately after the new codes of procedure began to be implemented, name-ly whether or not it was possible to use suspect’s statement obtained in the course of investigative proceedings as evidence at the main hearing in the event he decided to plead his right to silence at the main hearing. The legislator was forced to make a decision on that matter as a result of dif-ferences in case law. There were certainly numerous arguments in favour and against, but the leg-islator opted for efficient criminal proceedings and successful proving of criminal offences, etc.
According to the procedural solution that is currently in force, suspects are advised of all of the rights they enjoy under the CPC at the beginning of their questioning, among others about their procedural right (warning) that giving statements in the presence of a defence attorney means that such statements will be admissible as evidence at the main hearing and that they may be read out and used at the main hearing without their consent.11
9 Ibid., p.60.
10 Law on Amendments to the BiH CPC (Official Gazette of BiH, no. 52/08), Law on Amendments to the BD BiH CPC (Official Gazette of BiH BD, no. 17/09), Law on Amendments to the FBiH CPC (Official Gazette of FBiH, no. 09/09) and Law on Amendments to the RS CPC (Official Gazette of the RS, no. 119/08).
11 Amendments to the criminal procedure codes in BiH from 2008 and 2009.
Also, the issue of suspect’s right to access documents and items has been a subject matter of anal-yses and debates. Undoubtedly, the principle of equality of arms and the right to adequate de-fence are in force during all the stages in the proceedings. However, under the procedural laws enacted in 2003, defence’s right to access documents and examine items was limited in the stage of investigation. Those limitations were imposed with the aim of enhancing the efficiency of criminal proceedings. A suspect and his defence attorney were allowed to examine the docu-ments and inspect the obtained items in favour of the suspect, although that right could be de-nied in case of documents and items whose examination and inspection could endanger the pur-pose of the investigation. This issue was the subject of a serious debate among professionals when a number of weaknesses in legislative solutions had been identified which were essentially prej-udicial to the position of a suspect with regard to his right to defence; nevertheless, the right to inspect the documents and examine obtained items was kept within the scope of the legislation adopted in 2003. However, there has been a change in the legislative framework with regard to this right and cases in which a motion is filed for ordering detention in custody or in which de-tention has already been ordered. Thus, current legislation provides that the prosecutor shall, to-gether with his motion for ordering detention, submit to the preliminary proceedings judge evi-dence (pertaining to reasonable suspicion and legal grounds for detention) relevant to making an assessment about the legality of detention and for the purpose of notifying the defence attorney.12 Procedural provisions on mandatory formal defence were amended in the course of the 2008 and 2009 legislative activities. According to those amendments, suspects must have a defence attor-ney when a ruling on the motion for ordering detention is given and for the duration of detention in custody. In addition, defence by a defence counsel is mandatory when it serves the interests of justice on account of the complexity of a case or financial status of the suspect (or the accused at the later stages in the proceedings).13
The legislative solutions adopted in 2003 did not expressly require that a special decision be made in cases when prosecutors opted against issuing the order for conducting an investigation.
Hence, in trying to resolve new procedural situations than arose in the work of prosecutor’s of-fices and issues opened up in practice, the legislator charged prosecutors with the duty to issue an order that no investigation will be conducted, under the conditions laid down by the law.14 The same amendment struck down from all the codes the provision which gave prosecutors a dis-cretionary right to decide if they would issue the order for conducting an investigation and in-troduced new procedural solutions in respect of the phase in investigative proceedings in which investigation is discontinued. Current solutions have been revised in the following manner: cir-cumstances which exclude the criminal liability of suspects (except in cases when a suspect has com-mitted an unlawful act in a state of mental incompetence) have been added as grounds for issuing an order for discontinuing an investigation; not only the injured party, but also the suspect who has been questioned and the person who has reported a crime are informed that investigation has been discontinued; the said persons are informed of the grounds for its discontinuance. As a result of modifications of procedural norms, it has been provided that in cases when an investiga-tion has been closed for lack of evidence that a suspect has committed a criminal offence and for the purpose of affording protection against unfounded prosecution, the prosecutor may re-open
the investigation if new facts and circumstances should come to light which indicate that there are grounds for suspicion that the suspect has indeed committed the offence.15