Criminal Procedure Legislation of Bosnia and Herzegovina: Current Situation and Problems
2. The Prosecutor
The right of the competent prosecutor to undertake criminal prosecution regardless of the in-jured party’s opinion (even if the inin-jured party objects to criminal prosecution of the offender) is based on the so called principle of officiality. According to the said principle, the prosecutor is the only legal subject who can initiate the criminal prosecution.
In the new criminal procedure legislation of BiH, the prosecutor has two roles. The first one is the role of the state authority responsible for the detection and prosecution of perpetrators of crim-inal offences. The other role of the prosecutor is to function as a party to the proceedings with
7 The situation was improved with regard to this when the Directorate for Coordination of Police Bodies of BiH was established according to the Law on the Directorate for Coordination of Police Bodies of BiH and on the Agencies for Police Structure Support in BiH (Official Gazette of BiH no 36/08). With regard to agencies, these are the Forensic Examination and Expertise Agency, Personnel Education and Professional Development Agency and Police Support Agency. The bodies established by the said law are administrative organisations within the Ministry of Security of BiH which are independent in their operations, established for the purpose of performing the operations within their competencies, which are managed by directors and financed from the budgetary funds of the institutions of BiH. Operations which are under the jurisdiction of the Directorate are, among other things: communication, cooperation and coordination among the police bodies of BiH with the appropriate authorities of BiH regarding the issues related to international police operations or which have international relevance or are in mutual interest; the application of best European and other international practices related to the issues regarding the police in BiH; standardisation of the work related to the police issues in BiH; daily consolidation of relevant security information for BiH and information relevant to the operations which are under the jurisdiction of police bodies of BiH; collection, surveillance, analysis and use of data relevant to the security of BiH.
8 The European Commission’s Bosnia and Herzegovina 2013 Progress Report, p. 56 in the BiH languages version. Available at http://
komorabih.ba/wp-content/uploads/2013/11/izvjestaj_napredak.pdf (in the BiH languages) and at http://ec.europa.eu/enlargement/
pdf/key_documents/2013/package/ba_rapport_2013.pdf (in English), accessed on 9 Feb 2014.
9 Ibid, p. 57.
10 Quoted from the web site http://www.hjpc.ba/pr/preleases/1/?cid=5757,2,1 accessed on 15 Feb 2014.
11 Hereinafter: the Instructions.
approximately the same powers as the opposing party (the suspect, i.e. the accused), which is in accordance with the legal provisions on the equality or arms in the criminal proceedings.
In order to meet the prerequisites for initiating and conducting criminal proceedings, it is neces-sary to obtain the information and the evidence on the existence of a criminal offence and the of-fender, which are collected by the prosecutor through his activities in accordance with the rights and duties concerning the detection of criminal offences and prosecution of offenders. Acting according to the principle of legality, the prosecutor has the power to assess whether to initi-ate the criminal prosecution, except in cases provided for under special laws. The prosecutor is the authority competent to apply and implement the request for international legal assistance in criminal matters, in accordance with the law, multilateral and bilateral agreements and conven-tions ratified by BiH including extradition orders or orders for transfer of wanted individuals by foreign courts or authorities in the territory of BiH or other states, i.e. international courts and tribunals.
The position and function of the prosecutor in BiH as stipulated by the law is in accordance with the Recommendation R 19 (2000) by the Committee of Ministers of the Council of Europe. The said document, namely, recommends that the states should base their legislation and practices with regard to the role of the prosecutor’s office in criminal justice system on certain principles.
It is especially emphasised that in performing his function of criminal prosecution, the prose-cutor’s office must observe the individual’s rights and consider the need for an efficient criminal justice system.12
2.1. The Prosecutor’s Rights and Duties
The rights and duties of the prosecutor are regulated under Chapter VI (Article 35). The basic right and duty of the prosecutor is the detection and prosecution of the perpetrators of criminal offences. The prosecutor has the right and duty to undertake all of the necessary measures imme-diately upon learning that there are grounds for suspicion that a criminal offence has been com-mitted for the purpose of detection and investigation, location of the suspect, management and supervision of the investigation, as well as for the purpose of managing the activities of the au-thorised officers related to the location of the suspect and obtaining the statements and evidence.
He can also grant someone immunity in accordance with the law; request information to be sup-plied by the state authorities, companies, legal and physical entities; issue summons and orders and file motions for the summons and orders to be issued in accordance with the law; order the authorised officers to comply with the order issued by the court; issue and represent the indict-ment; file motions for the issuance of criminal orders (Article 334); file legal remedies and per-form other activities stipulated by the law. On the other hand, all of the authorities conducting the investigation must inform the prosecutor about every undertaken action and comply with each request made by the prosecutor.
12 The contribution of the Prosecutor’s Office of BiH to the improvement of cooperation at the international and regional levels is especially evident in the international South-East Europe’s Prosecutors’ Advisory Group– SEEPAG, Southeast European Cooperative Initiative– SECI, in the project for regional cooperation according to the Memorandum on Cooperation of West Balkans’ Prosecutors as a part of CARDS programme as well as the programme for cooperation of European prosecutors (CPGE), also through the network for cooperation of the criminal justice systems in European Union EUROJUST. Quoted from the web site http://tuzilastvobih.gov.
ba/?opcija=sadrzaj&kat=5&id=9&jezik=b, accessed on 5 Mar 2014.
The prosecutor becomes in charge of supervising the work of authorised officers from the mo-ment he learns that there are grounds for suspicion that a criminal offence has been commit-ted. The prosecutor is not able to manage and direct the work of the authorised officers prior to receiving the information that there are grounds for suspicion that a criminal offence has been committed. In such a way, justice is served and fairness of the criminal proceedings is ensured and it is also ensured that the authorised officers observe the legal provisions regarding the pro-tection of rights of suspects or detainees and persons who are subject to examination and search.
Management and supervision by the prosecutor represent two forms of prosecutorial activities during the investigative proceedings with regard to the authorised officers. Management implies a more active role of the prosecutor involving direct and active participation in planning and ex-ecution of certain investigative actions, while supervision is more passive, the prosecutor allows the authorised officers to take initiative and dictate the dynamics of the investigation while su-pervising their work ensuring that it is legal and efficient. Managing the investigation, first of all, implies devising and adjusting the strategy and tactics of the investigation when the prosecutor may decide that certain actions should be done directly by him and others may be entrusted to an authorised person.13
Management and supervision of the investigation starts with planning the investigation and lasts until its conclusion. This implies an active role of the prosecutor during the investigation from the moment the grounds for suspicion that a criminal offence has been committed are established.
With regard to rights and duties of the prosecutor to issue summons and orders and file motions for summons and orders to be issued, all of the summons served on the suspect until the indict-ment is issued are sent by the prosecutor. With regard to this, there are several possibilities. The first is related to the summons concerning the suspect’s questioning. The prosecutor and the au-thorised officers have the right to question the suspect during the investigation. The second pos-sibility is to summon someone to testify, which can be done by both the prosecutor and the court.
When it comes to orders which are issued by the prosecutor independently, several situations may be differentiated. Therefore, the prosecutor may: issue an order for temporary seizure of de-liveries if there is a risk of delay, provided this order is confirmed by the judge for preliminary proceedings; in urgent situations, order the bank or some other legal entity which performs fi-nancial transactions to supply the data on bank deposits and other fifi-nancial transactions and operations of the person in question, as well as of the persons for whom there is reason to be-lieve that they are involved in the said financial transactions or the suspect’s dealings;14 order the witnesses to be brought in if they do not respond to the summons which were properly served without giving a reason for their failure to appear; if there is a need for an expert witness opin-ion, he has the right to issue a written order; order the books to be balanced based on the elab-orated written report by the expert witness who was ordered to audit the financial records.15 Furthermore, it is an exclusive right of the prosecutor to order an investigation to be conducted.
The prosecutor is authorised to order an autopsy if the cause of death was a criminal offence or if
13 Sijerčić-Čolić H. Krivično procesno pravo, Volume 1, Sarajevo, Faculty of Law, 2005, p. 85.
14 Such an order must be confirmed by the judge for preliminary proceedings within 72 hours.
15 The order specifies the payment which is to be effected by the legal entity or a sole trader as advance payment for covering the costs of balancing the books.
the said death is related to the commission of a criminal offence. The prosecutor is the only one authorised to suspend the investigation by an order.
A distinction should be made between the actions of authorised officers related to the detection of criminal offences in accordance with the law and the procedural role of the prosecutor related to the detection of criminal offences. The prosecutor undertakes the necessary measures regard-ing the detection of criminal offences solely based on the existence of grounds for suspicion that a criminal offence has been committed. Collection and discovery of information and evidence which amount to grounds for suspicion that an offence has been committed fall primarily under the competence of the authorised officers.
2.2. Receiving Information on the Commission of a Criminal Offence
When authorised officers, while performing certain operational activities which are a part of their regular activities, learn of the existence of grounds for suspicion that a criminal offence has been committed, they have a duty to inform the prosecutor thereof and under the prosecutor’s supervision they shall undertake necessary measures as stipulated by law. It is common in prac-tice that the criminal charge is submitted directly to the prosecutor. In a considerable number of cases, the criminal charges do not provide grounds for suspicion that a criminal offence has been committed, nor do they identify the potential perpetrator of the reported criminal offence, so the prosecutor forwards such criminal charges to an appropriate organisational unit of the au-thorised officer so that the staff there would undertake certain activities in order to establish the existence of the grounds for suspicion that the reported criminal offence has actually been com-mitted, as well as to ascertain the identity of a potential offender.
Reports submitted by the authorised officers after the statements have been taken and the evi-dence collected under the supervision of the prosecutor usually provide in enclosure all of the ev-idence which confirm the grounds for suspicion that the reported person has actually committed a criminal offence as well as the report on the examination of the reported person as a suspect16. In such a case, the investigation order is just formally issued.
It can be encountered in practice that the authorised officers receive a verbal criminal charge which is than included in a report, such a charge is then immediately submitted to the prosecu-tor without confirming if it is well-founded first. Such a procedure wastes considerable time as the prosecutor is most commonly unable to issue an investigation order based on such crimi-nal charges since he cannot establish whether there are grounds for suspicion that a crimicrimi-nal of-fence has been committed. Upon receiving verbal charges, the authorised officers should under-take appropriate measures in order to confirm the charges are well-founded and after that if they establish that there are grounds for suspicion that a criminal offence has been committed – pros-ecutor should be notified. In addition to the aforementioned, authorised officers must collect the information and submit to the prosecutor immediately the amended report if they learn of some new facts, evidence or clues of a criminal offence after the report has already been submitted.
16 The report is submitted along with: (a) items, (b) sketches, (c) photographs, photographic documentation, (d) obtained reports, (e) documentation on the undertaken measures and actions, (f) official notes, (g) statements and other material which may be useful during the proceedings, including all of the facts and evidence which are in favour of the suspect.
Authorised officers often undertake independently most of the necessary measures and actions even after the notification of the prosecutor, and not just the urgent ones. This is particularly the case when unknown offenders are being investigated and the discovery stage of the investigation is practically left to the authorised officers.
Since the communication between the prosecutors and authorised officers during the investiga-tion was defined in general up to that time, on 27 September 2013 an Agreement on the Adopinvestiga-tion and Implementation of the Instructions on the Procedure and Cooperation of Authorised Officers – Police Officers and Prosecutors Regarding the Evidentiary Actions during the Investigations was signed. The Agreement was signed by the chief prosecutors of the Prosecutor’s Office of BiH, Federal Prosecutor’s Office of the Federation of BiH, Republic Prosecutor’s Office of Republika Srpska and the Prosecutor’s Office of the Brčko District of BiH, and on behalf of the police au-thorities in Bosnia and Herzegovina – by the Minister of Security of BiH, Minister of Interior of the Federation of BiH, Minister of Interior of Republika Srpska and Chief of Police of the Brčko District of BiH. As it may be seen from the list of the subscribers, this agreement applies to the whole structure of the prosecutor’s offices and law enforcement agencies. The Instructions reg-ulate further the communication between the prosecutors and the authorised officers and their superiors thus meeting the requirements for the authorised officers and the prosecutors to func-tion as a good team, in a proactive, well-coordinated and efficient manner.
The Instructions stipulate that the authorised officers shall immediately inform the prosecutor who is on duty about the events which have caused grave consequences, i.e. endangered lives and public health or property on a large scale and (or) may disturb the public and indicate that there are grounds to suspect a criminal offence has been committed. Prior to notifying the pros-ecutor on duty, the authorised officers shall notify their immediate supervisor of the said event.
With regard to this, the authorised officer and the prosecutor on duty shall register these noti-fications in official records of the prosecutor’s office and the police. Moreover, if the prosecutor who is on duty learns of the said event directly, he shall immediately notify the authorised offi-cer thereof and order the necessary actions to be undertaken. With regard to the cases involving a criminal offence punishable by a term in prison of more than five years, the Instructions stip-ulate that the authorised officer should immediately inform the prosecutor, without previously notifying his superior.17