Experiences with and Problems Identified in the Prosecutorial Investigation in BiH
2. Prosecutorial investigation in BiH
2.1. General overview
Over a long period of time, reforms of the systems of criminal procedure have been undertak-en in a number of European countries, including the region of the former Yugoslavia, in which they have been implemented only in a last few years (with the exception of BiH),. A majority of those reforms have been focused on changing the position and role of prosecutors in the inves-tigation process. Particular attention was devoted to establishing the rights and duties of pros-ecutors who perform the function of criminal prosecution and their investigative activity un-derstood as identifying suspects, collecting statements, evidence, and other information which could be used in criminal proceedings; providing for the activities of the police force aimed at detecting and proving criminal offences and discovering perpetrators; the manner of govern-ing complex relationships between the prosecution and the police; court’s activities in the inves-tigation due to the elimination of investigating judges and their transformation into judges in charge of protecting the rights and freedoms of suspects by virtue of court’s decisions; the rights and duties of persons suspected of committing a crime and exercising the right to defence; pro-viding for the rights of the injured party; simplifying the investigation and broadening the scope of application of the principle of prosecutorial discretion through the elimination of criminal proceedings.16 It was agreed, with the aim of accelerating criminal proceedings, to abolish judi-cial investigation by eliminating investigating judges from the criminal procedure laws of Bosnia and Herzegovina; the prosecutorial investigation was legislated as an innovation, whereby pros-ecutors have been entrusted with the right and duty to collect evidence necessary for issuing in-dictments. This crucial step in the reform process has resulted in the elimination of the so-called pre-investigation phase (preliminary investigation). Thus, criminal proceedings conducted pri-or to the issuing of indictments, i.e. investigative proceedings within which the procedural func-tions of criminal prosecution and investigation into facts are fused together, have been entrusted with the prosecutors. The central issues which have been topics of an ongoing debate include as follows: prosecutor’s rights and duties in the course of the investigation process; the activities of authorised officers and communication with the prosecutor who is the dominus litis for the en-tire duration of the investigation; the position of suspects and their defence counsels; the role of preliminary proceedings judges, as well as the rights of the injured party.
Special circumstances in which changes in the criminal law were effected and in which the law was implemented have had an impact on the principal characteristics of the concept of prosecu-torial investigation in Bosnia and Herzegovina. When attempting to determine which type of in-vestigation is provided for by the laws of Bosnia and Herzegovina, legislative solutions pertain-ing to the investigation indicate that the concept of investigation was formulated in the light of
16 Dr Hajrija Sijerčić Čolić, op.cit,,pp. 57-68.
nquisitorial elements and some ideas typical of the accusatory model of criminal procedure.17 Judging from the manner in which this stage in criminal proceedings is structured, investigation is dominated by inquisitorial elements manifested in the legislative solution according to which investigations are ordered and conducted by prosecutors. Over the entire course of an investi-gation, the prosecutor is its dominus litis, i.e. he leads and oversees the investigation and directs the activities of authorised officers aimed at identifying suspects and collecting statements and evidence (Art. 35, para. 2, item a) of the BiH CPC).18 The inquisitorial element is supported by a number of prosecutor’s rights and duties pertaining to the investigative stage of criminal pro-ceedings, such as his right and duty to order an investigation if there are reasonable grounds to suspect that a crime has been committed (Art. 216 of the BiH CPC).19 Prosecutors are entitled to undertake any evidentiary action, including the questioning of suspects, interviewing the injured parties and witnesses, conducting of crime scene investigations, undertaking reconstructions of events, taking special measures to ensure witness protection, obtaining of information and or-dering expert witness assessments (Art. 217 of the BiH CPC).20 In that regard, the inquisitorial el-ements are also indicated by legislative solutions found in procedural codes in BiH which assign prosecutors the duty to undertake investigative actions by virtue of their office for the purpose of achieving the aims of investigation. Prosecutors are obligated to examine and establish with equal attention both incriminating and exculpatory facts concerning suspects (Art. 14 of the BiH CPC); they have the right to question suspects (Art. 77 of the BiH CPC). Then, there is the open-ness of the investigation which is reflected in the right of a suspect and his defence counsel to be present during some investigative actions, for instance during the search of a residence, premis-es or persons (Art. 58, item j) of the BiH CPC)21 and the right of a defence counsel to be present during the questioning of a suspect under Art. 78, para. 2, item b) of the BiH CPC.22
Investigation’s accusatory elements in the current codes of criminal procedure are found in the ac the accusatory principle in general, according to which proceedings may not be initiated or conducted without a request from the prosecutor, or nemo iudex sine actore. Thus, prosecutor’s decision is not needed only to initiate investigation, but such a request made by the prosecutor is needed throughout the whole investigation. The adoption of such an accusatory element has resulted in the fact that investigations may be opened and conducted only against persons and in connection with criminal offences cited in the prosecutor’s order for conducting an investiga-tion (Art. 216, para. 2 of the BiH CPC).23 The prosecutor is bound by his order for conducting the investigation for the duration of the entire investigation. Should the prosecutor issue an or-der for the investigation to be terminated for reasons set out by the law, the Court cannot initi-ate and conduct criminal proceedings ex officio. Other elements also favour the accusatory prin-ciple, such as suspect’s position in the proceedings and rights he has in the investigation, eg. the right to inspect the documents and examine the collected items (Art. 47 of the BiH CPC);24 then, the right to immediately communicate with his defence attorney, (Art. 48 of the BiH CPC);25
17 Dr Hajrija Sijerčić Čolić, „Akuzatorske i inkvizitorske forme u krivičnom pravu u BIH“, in „Pravo i pravda“,- Journal of Legal Theory and Practice of the Prosecutors’ Association of FBiH, Sarajevo, no. 1/2005,p. 195.
18 Dr Hajrija Sijerčić Čolić, „Krivično procesno zakonodavstvo u BiH, glavni izazovi nakon reforme krivičnog zakonodavstva 2003“, op.cit., p. 196.
19 Art. 35, para. 2, item 2 of the BD CPC; Art. 45, para. 2, item 2 of the FBiH CPC; and Art. 43, para. 2, item 2 of the RS CPC.
20 Art. 217 of the BD BiH CPC, Art. 231 of the FBiH CPC, and Art. 217 of the RS CPC.
21 Art. 58, item j) of the BD BIH CPC, Art. 72, item J) of the FBiH CPC and Art. 122, item j) of the RS CPC.
22 Art. 78, para. 2, item b) of the BD BIH CPC, Art. 92, para 2, item b) of the FBiH CPC, and Art. 142, para. 2, item b) of the RS CPC.
23 Art. 216 of the BD BiH CPC, Art. 231, para. 2 of the FBiH CPC, and Art. 216, para. 2 of the RS CPC.
24 Art. 47 of the BD BiH CPC, Art. 61 of the FBiH CPC, and Art. 55 of the RS CPC.
25 Art. 48 of the BD BiH CPC, Art. 62 of the FBiH CPC, and Art. 56 of the RS CPC.
the privilege against self-incrimination (nemo tenetur prodese se ipsum) or the right of a suspect not to make a statement or answer questions throughout the entire course of an investigation of which the prosecutor is obligated to inform him (Art. 6, para. 3 and Art. 78, para. 2, item a) of the BiH CPC).26
It could be said that the current criminal procedure law in BiH is a result of “reconciliation” be-tween two legal cultures or systems: the civil law or the continental system and the common law system or the Anglo-American law. Thus, the BiH criminal procedure could be called a compro-mise between the civil law system of the mixed type and the common law system, i.e. the Anglo-American system of law of the accusatory (adversarial) type.27
2.2. Key stages in an investigation according to the Bosnia and Herzegovina procedural laws
2.2.1. General overview
The critical stages in a criminal investigation under the current criminal procedure law are laid down and can be identified in the part two of the BiH CPC titled “Course of the Proceedings”, Chapter XIX of the BiH CPC “Investigation” (provisions contained in Articles 213 through 225 of the same Code).28 The following is can be inferred from the above mentioned procedural pro-visions: important segments of the course and organisation of criminal investigation; prosecu-tors’ role and position in investigative proceedings; the position and role of authorised offices, and the like as well as other relevant matters such as the moment at which an investigation com-mences, the decision-making process with regard to initiating investigations, prosecutorial over-sight of the work of authorised offices, termination and duration of investigations.
2.2.2. What is understood by the notion of investigation?
a) Notion of investigation. A definition or concept of the investigation is laid down by a provi-sion contained in (Art. 20, para. 1, item j of the BiH CPC),29 based on which an “investigation includes all the activities undertaken by a prosecutor or authorised offices in accordance with this Code, including the collection and preservation of statements and evidence”. According to a pro-vision contained in Art. 35, para. 2, item a) of the FBiH CPC30 which defines the role of prose-cutors, their rights and duties with regard to instituting and conducting investigation proceed-ings, “as soon as they have learned that there are grounds for suspicion that a criminal offence has been committed, prosecutors shall have the right and duty to take steps to discover and investigate it, to identify a suspect, lead and oversee the investigation, as well as to direct the activities of au-thorised offices in connection with the identification of suspect(s) and gathering of statements and
26 Art. 6 para. 3 of the BD BiH CPC, Art. 78 para. 2 item a) of the BD BiH CPC, Art. 6, para. 3 and Art. 92, para. 2, item a) of the FBiH CPC; Art.
6, para. 3 and Art. 142, para. 2, item a) of the RS CPC.
27 Dr Hajrija Sijerčić Čolić, „Akuzatorske i inkvizitorske forme u krivičnom procesnom pravu u BIH“ , op.cit.,pp. 191-200.
28 See Articles 213 through 225 of the BD BiH CPC, Articles 228 through 240 of the FBiH CPC, Articles 213 through 225 of the RS CPC.
29 See Art. 20, para. 1, item j) of the BD BiH CPC, Art. 21, para. 1, item j) of the FBiH CPC, and Art. 20, para. 1, item i) of the RS CPC.
30 See Art. 35, para. 2, item a) of the BD BiH CPC, Art. 45, para. 2, item a) of the FBiH CPC, and Art. 43, para. 2, item a) of the RS CPC.
evidence”. Pursuant to paragraph 2, item b) of the same provision, it is required that prosecutors
“shall conduct investigations in accordance with this Code”. Therefore, prosecutors have both the right and the duty to undertake necessary measures aimed at discovering a crime and conduct-ing an investigation as soon as they become aware that there are grounds for suspicion that the crime has been committed. In consequence, the existence of “grounds for suspicion” suffices for initiating an investigation, unlike in the former system of criminal law, when a higher degree of probability that a criminal offence was committed or “reasonable suspicion” was required for ini-tiating investigations. It follows from the above, that the legislator uses this provision to differen-tiate between the activities of – competences for “discovering a criminal offence” and “conducting an investigation”, although it remains unclear of what character other than investigative could be the measures taken for the purpose of discovering a crime. Therefore, the prosecutor shall order that an investigation be conducted if there are grounds for suspicion that a criminal offence has been committed and if the above degree of probability follows from the existing evidence and in-formation; thereby, grounds have been created for conducting an investigation in which all the actions and measures are taken in order to determine circumstances to be investigated by means of specific investigative actions. It follows from the above that the investigation could also be de-fined as a set of all the actions and measures undertaken by prosecutors or authorised officers af-ter having learnt of grounds for suspicion that a criminal offence has been perpetrated and aimed at discovering and resolving a criminal offence and identifying its perpetrator so that he could face criminal prosecution.31
b) Problems with defining the notion of investigation. If we are to consider all of the above, it might seem that there is nothing to be added to it or subtracted therefrom and that the issue has been provided for in a clear manner. However, both in practice and interpretation of the no-tion of “investigano-tion”, in particular with respect to its initiano-tion and scope, there are a number of points at issue, for instance the question of the moment at which it is considered that the pro-cedure for criminal investigation commences or when an investigation is deemed initiated and by which procedural activity. There are serious dilemmas in that regard, as well as various inter-pretations of the content of that notion. Two things should be considered and taken into account in that respect. First, the absence of a complete and clear legal definition of the notion of inves-tigation. Second, the absence of a precise definition of the moment at which an investigation is deemed initiated. In that context, it should be emphasised that it is not open to debate if grounds for suspicion that a crime has been committed constitute grounds for issuing the order for con-ducting an investigation (Art. 216 of the BiH CPC). Thereby, a prerequisite has formally been created for the police to undertake all the required investigative actions under the prosecutor’s supervision. What has been problematic in practice is this: what stage do the activities of the po-lice, i.e. authorised officers represent when it is beyond doubt that there is sufficient evidence and information to support the grounds for suspicion that a criminal offence has been committed, but the prosecutor has not yet officially issued an order for conducting an investigation? Under such circumstances, as well as in situations when an authorised officer has informed the prosecu-tor about the existence of grounds for suspicion that a crime has been perpetrated, the officer has a duty to carry out, under prosecutor’s supervision, all the necessary actions to locate the perpe-trator, prevent a suspect or his accomplice from fleeing, discover and secure the traces of a crime, etc. (Art. 281, para. 2 of the BiH CPC).32 In that regard, it is necessary to point to the provision
31 Modul 3, „Krivična oblast“, Istraga, CEST RS i CEST FBiH (p. 39).
32 Art. 218, para. 2 of the BD BiH CPC, Art. 233 of the FBiH CPC, and Art. 218, para. 2 of the RS CPC.
contained in Art. 221, para. 1 of the BiH CPC33 whereby “an authorised officer shall, upon noti-fying the prosecutor that there are grounds to suspect that a criminal offence has been commit-ted, carry out the investigation of a crime scene and order necessary expert witness assessments, with the exception of an autopsy and the exhumation of a body”. It could be concluded from the abovementioned provision of the BiH CPC that the existence of an investigation is not formal-ly conditioned by the issuance of the order for conducting an investigation (Art. 216 of the BiH CPC). One could even arrive at an opinion that investigation represented an undividable whole of actions and activities of authorised officers and the prosecutor, regardless of whether or not the order to conduct an investigation has been officially issued. Given that the process of gath-ering information by authorised offices that takes place as performing concrete evidentiary ac-tions is dependent on the existence of grounds for suspicion that a crime has been perpetrated, which is equal to the standard for issuing the order for conducting an investigation, the com-mencement of an investigation procedure should be associated with the first evidentiary action taken by an authorised officer or the prosecutor pursuant to CPC provisions, which fits into the general definition of investigation as set out in the provision contained in Art. 20, para. 1, item j) of the BiH CPC.
c) Is there the preliminary investigation? The question of whether or not there is something in the investigative proceedings what used to be regarded in the previous codes of criminal proce-dure as “preliminary investigation” corresponds with the issue and challenge of defining the no-tion of investigano-tion. This is a conceptual issue, in particular if we consider that under the for-mer Criminal Procedure Code the standard of proof required for preliminary investigation were
“grounds for suspicion”, whereas the standard of proof for the investigation conducted by the court at the prosecutor’s motion was “reasonable suspicion”. The answer follows from Article 216, para. 1 of the BiH CPC34 pursuant to which “The prosecutor shall order the conduct of an investi-gation if there are grounds for suspicion that a criminal offense has been committed.” It clearly and undoubtedly follows from such a legislative provision that the current investigation has sublimat-ed the former preliminary investigation as well as the former judicial investigation (pre-trial pro-ceedings) into one single investigation carried out on the basis of one single standard of proof, i.e.
“grounds for suspicion” and led or overseen by the prosecutor. Accordingly, the essential concept of the new Criminal Procedure Code is clearly defined by Article 216, paragraph 1 of the BiH CPC pursuant to which all the activities performed by the prosecutor and authorised officers af-ter becoming aware of grounds for suspicion that a crime has occurred and aimed at discovering all the relevant facts and circumstances in connection with that crime or perpetration thereof are regarded as an investigation ordered, led and overseen by the prosecutor.
Consequently, another issue still remains open and unresolved, namely whether or not certain activities of authorised officers that are part of their regular activities, the so-called operation-al activities, etc. performed in order to collect information and evidence to support grounds for suspicion that a crime has been committed could be regarded in a manner as preliminary inves-tigation. However, given the provision contained in Article 216, paragraph 2 of the BIH CPC35 whereby the legislator designates prosecutors to be in charge of the investigation previously con-ducted by the Court that in fact encompasses the former preliminary investigation, the only
33 Art. 221 of the BD BiH CPC, Art. 236 of the FBiH CPC, and Art. 221 of the RS CPC.
34 Art. 216, para. 1 of the BD BiH CPC and of the RS CPC, Art. 231, para. 1 of the FBiH CPC.
35 Art. 216, para 2 of the BD BiH CPC and of the RS CPC, Art. 231, para. 2 of the FBiH CPC.
possible conclusion is that legislator’s primary intention was to emphasise the position of the prosecutor as the original holder of authority to conduct investigative proceedings as well as that
possible conclusion is that legislator’s primary intention was to emphasise the position of the prosecutor as the original holder of authority to conduct investigative proceedings as well as that