Taking of evidence

Bosnia and Herzegovina

Bosnia and Herzegovina - Criminal Procedure Code 2003 (2013) EN

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 10 - Unlawful Evidence

It shall be forbidden to extort a confession or any other statement from the suspect, the accused or any other participant in the proceedings.

The Court shall not base its decision on evidence obtained through violation of human rights and freedoms prescribed by the Constitution and international treaties ratified by Bosnia and Herzegovina, or on evidence obtained through essential violation of this Code.

The Court may not base its decision on evidence derived from the evidence referred to in Paragraph 2 of this Article.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 15 - Free Evaluation of Evidence

The right of the Court, Prosecutor and other bodies participating in the criminal proceedings to evaluate the existence or non-existence of facts shall not be related or limited to special formal evidentiary rules.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VIII - ACTIONS AIMED AT OBTAINING EVIDENCE

Section 1 - SEARCH OF DWELLINGS OR OTHER PREMISES AND PERSONS

Article 51 -Search of dwellings, other premises and movable property

A search of dwellings and other premises of the suspect, accused or other persons, as well as their movable property outside the dwelling may be conducted only when there are sufficient grounds for suspicion that the perpetrator, the accessory, traces of a criminal offense or objects relevant to the criminal proceedings might be found there.

(1) Search of movable property pursuant to Paragraph (1) of this article shall include a search of computer systems, devices for automated and electronic data storage and mobile phones. Persons using such devices shall allow access to them, hand over any media with saved data, and provide the necessary information for the use of such devices. A person who refuses to do so may be punished under Article 65 (5) of this Code.

Searches of computers and similar devices described in Paragraph (2) of this Article may be conducted with the assistance of a competent professional.

Article 52 - Search of Persons

The search of a person shall be permitted if it is likely that the person has committed a criminal offense or that through a search some objects or traces relevant to the criminal proceedings may be found.
Search of a person shall be conducted by a person of the same sex.

Article 53 - A Search Warrant

The Court may issue a search warrant under the conditions provided by this Code.

A search warrant may be issued by the Court on the request of the Prosecutor or on the request of authorized officials who have been approved by the Prosecutor.

Article 54 - A Form of the Request for the Search Warrant

A request for the issuance of a search warrant may be submitted in writing or orally. If the request is submitted in writing, it must be drafted, signed and certified in the manner as defined in Article 55(1) of this Code. The request for the issuance of a search warrant may be submitted in accordance with Article 56 of this Code.

Article 55 - Contents of the Request for a Search Warrant

(1) The request for a search warrant must contain:

the name of the Court and the name and title of the applicant;

facts indicating the likelihood that the persons, or traces and objects referred to in Article 51(1) of this Code shall be found at the designated or described place, or with a certain person ;

a request that the Court issue a search warrant in order to find the person in question or to forfeit the object.

(2) The request may also suggest that:

the search warrant be made executable at any time of the day or night, because there is grounded suspicion that the search cannot be executed between the hours of 6:00 A.M. and 9:00 P.M., the property sought will be removed or destroyed if not seized immediately, or the person sought is likely to flee or commit another criminal offense or may endanger the safety of the executing authorized official or another person, if the warrant is not executed immediately or between the hours of 9:00 P.M. and 6:00 A.M.;

the executing authorized official execute the warrant without prior presentation of the warrant, when there is grounded suspicion to believe that the property sought may be easily and quickly destroyed if not seized immediately, the presentation of such warrant may endanger the safety of the executing authorized official or another person or the person sought is likely to commit another criminal offense or may endanger the safety of the executing authorized official or another person.

Article 56
Oral Request for a Search Warrant
An oral request for a search warrant may be filed when there is a risk of delay. An oral request for a search warrant may be communicated to a Court also by telephone, radio or other means of electronic communication.

If an oral request for a search warrant has been filed, the Court shall record the further course of communication. If an audio recording device is used or a stenographic record made, the record shall be sent within 24 hours to be transcribed, its authenticity shall be certified and it shall be kept along with the original record.

Article 57 - The Issuance of a Search Warrant

If the preliminary proceedings judge determines that the request for a search warrant is justified, he shall grant the request and issue a search warrant.

When the preliminary proceedings judge decides to issue a search warrant based upon an oral request, the applicant shall draft the warrant in accordance with Article 58 of this Code, and shall read it, verbatim, to the preliminary proceeding judge.

Article 58 -Contents of a Search Warrant

A search warrant must contain:

name of the issuing Court and, except where the search warrant has been obtained through an oral request, the signature of the preliminary proceedings judge who is issuing the warrant;

where the search warrant has been obtained through an oral request, it shall so indicate and it shall state the name of the issuing preliminary proceedings judge and the time, date and place of issuance;

name, department or rank of the authorized official to whom it is addressed;

purpose of the search;

description of the person being sought or description of the property that is the subject of the search
designation or description of the dwelling or other premises or person to be searched, by indicating the address, ownership, name or any similar data required for positive identification;

direction that the warrant be executed between hours of 6:00 A.M. and 9:00 P.M., or, where the Court has specifically so determined, an authorization for execution thereof at any time of the day;

an authorization, where the Court has specifically determined, for the executing authorized official to enter the premises to be searched without giving prior notice;

a direction that the warrant and any property seized pursuant thereto be delivered to the Court without delay;

an instruction that the suspect is entitled to notify the defense attorney and that the search may be executed without the presence of the defense attorney if required by the extraordinary circumstances.

Article 59 - Time of the Execution of a Search Warrant

A search warrant must be executed not later than 15 days from the day of its issuance and it must thereafter be returned to the Court without delay.

A search warrant may be executed on any day of the week. It may be executed only between the hours of 6:00 A.M. and 9:00 P.M., unless the warrant expressly authorizes execution thereof at any time of the day or night, as provided in Article 55(2) this Code.

Article 60 - Procedure of the Execution of a Search Warrant

Prior to the commencement of a search an authorized official must give notice of his authority and of the purpose of his arrival and show the warrant to the person whose property is to be searched or who himself is to be searched. If the authorized official is not thereafter admitted, he may resort to use of force in accordance with the law.

In executing a search warrant that directs a search of a dwelling or other premises, an authorized official need not give notice to anyone of his authority and purpose, but may promptly enter the dwelling or other premises if at the time they are unoccupied or reasonably believed by the authorized official to be unoccupied and if the search warrant specifically authorizes entry without notice.

The occupant of the dwelling or other premises shall be called to be present at the search, and if he is absent, his representative or an adult member of the household or a neighbor shall be called to be present. If the occupant of the dwelling or other premises is not present, the search warrant shall be left in the premise subject to search, and the search shall be conducted without the presence of the occupant.

A search of the dwelling or other premises or of the person shall be witnessed by two adult citizens. Witnesses of the same gender shall be present at the search of the person. Witnesses shall be instructed to pay attention as to how the search is conducted, and that they have the right to make comments before signing the record on the search if they believe that the content of the record is not truthful.

In conducting a search of official premises, the manager or person in charge shall be called in to be present at the search.

If a search is to be conducted in a military facility, a written search warrant shall be delivered to the military authority who shall assign at least one military person to be present at the search.

Article 61 - Duties and authority of an Authorized Official

In executing a search warrant directing or authorizing the search of a person, an authorized official must give notice of his authority and purpose to the person and must produce the warrant or a copy thereof at person’s request. The authorized official may use physical force in accordance with the law.

Article 62 - Recording the Search

A record shall be made regarding every search of dwellings or other premises or person, which shall be signed by the person whose dwellings or other premises or who is being searched, and the persons whose presence is mandatory. In executing a search, only those objects and documents shall be seized that relate to the purpose of the search in that individual case. The record shall include and clearly identify the objects and documents that are the subject of seizure, which shall be indicated in a receipt immediately to be given to the person from whom the objects or documents are being seized.

If, during a search of dwellings or other premises or a person, objects are found that are unrelated to the criminal offense for which the search warrant was issued, but indicate another criminal offense, they shall be described in the record and temporarily seized and a receipt on the seizure shall be issued immediately. The Prosecutor shall be notified thereof. Those objects shall be returned immediately if the Prosecutor establishes that there are no grounds for initiating criminal proceedings, and there is no other legal ground for seizing the objects.

The objects used in the search of the computer and similar electronic devices for automated data processing shall be returned to their users after the search, unless they are required for the further conduct of the criminal proceedings. Personal data obtained by the search may be used only for the purpose of the criminal proceedings and shall be deleted immediately after the purpose is fulfilled.

Article 63 - Seizure of Objects under a Search Warrant

Upon temporary seizure of objects pursuant to a search warrant, an authorized official must draft and sign a receipt indicating the objects seized and the name of the issuing Court.

If an object has been temporarily seized from a person, the receipt referred to in Paragraph 1 of this Article must be given to that person. If an object has been seized from a dwelling or other premises, such receipt must be given to the owner, tenant or user, as applicable.

Upon seizing objects pursuant to a search warrant, an authorized official must, without any delay delay, return to the Court the warrant and the property, and must file therewith a written inventory of the seized objects.

Upon receiving objects seized pursuant to a search warrant, the Court shall either: retain it in the custody of the Court pending further disposition; or direct that it be held in the custody of the applicant for the warrant or of the authorized official who executed it.

Article 64 - Search without a Warrant or Witnesses

(1) An authorized official may enter a dwelling or other premises without a warrant and without a witness and if necessary conduct a search if the tenant so desires, if someone calls for their help, if this is required to apprehend a suspect of a criminal offense who has been caught in the act, or for the sake of the safety of a person or property, if the person who is to be apprehended by the Court order is in the dwelling or other premises or if the person is hiding in the dwelling or in other premises.

(2) An authorized official may search a person without a search warrant and without witnesses:
when executing an apprehension warrant;

when arresting the person;

when there is suspicion that the person possesses a firearm or knife;

when there is suspicion that he will conceal or destroy articles that are to be taken from him and used as evidence in criminal proceedings.

(3) After an authorized official conducts a search without a search warrant or without the presence of witnesses, he must immediately submit a report to the Prosecutor who shall inform the preliminary proceedings judge. The report shall state the reasons why the search was completed without a warrant or witnesses.

Section 2 - SEIZURE OF OBJECTS AND PROPERTY

Article 65 - Order for Seizure of Objects

Objects that are the subject of seizure pursuant to the Criminal Code or that may be used as evidence in the criminal proceedings shall be seized temporarily and their custody shall be secured pursuant to a Court decision.

The seizure warrant shall be issued by the Court on the motion of the Prosecutor or on the motion of authorized officials who have been approved by the Prosecutor.

The seizure warrant shall contain the name of the Court, legal grounds for undertaking the action of seizure of objects, indication of the objects that are the subject of seizure, the name of the person from whom objects are to be seized, and the timeframe within which the objects are to be seized.

The authorized official shall seize objects on the basis of the issued warrant.

Anyone in possession of such objects must turn them over at the order of the Court. A person who refuses to surrender articles may be fined in an amount up to 50.000 KM, and may be imprisoned if he persists in his refusal. Imprisonment shall last until the article is surrendered or until the end of criminal proceedings, but no longer than 90 days. An official or responsible person in a state body or a legal entity shall be dealt with in the same manner.

The provisions of Paragraph 5 of this Article shall also apply to the data stored in devices for automated or electronic data processing. In obtaining such data, special care shall be taken with respect to regulations governing the maintenance of confidentiality of certain data.

An appeal against a decision on fine or on imprisonment shall be decided by the Panel. An appeal against the decision on imprisonment shall not stay execution of the decision.

When articles are seized, a note shall be made of the place where they were found, and they shall be described, and if necessary, establishment of their identity shall also be provided for in some other manner. A receipt shall be issued for articles seized.

measures referred to in Paragraph 5 and 6 of this article may not be applied to the suspect, or the accused or to persons who are exempt from the duty to testify.

Article 66 - Seizure without the Seizure Warrant

If there is a risk of delay, items referred to in Article 65(1) of this Code may be seized even without the Court order. If the person affected by the search explicitly opposes the seizure of items, the Prosecutor shall, within 72 hours following the completion of the search, put forward to a preliminary proceedings judge a motion for a subsequent approval of the seizure of items.

If the preliminary proceedings judge denies the Prosecutor’s motion, the items seized may not be used as evidence in the criminal proceedings. The seized items shall be immediately returned to the person from whom they have been seized.

Article 67 - Seizure of Letters, Telegrams and other Mailed Objects

Seizure may be performed with respect to the letters and telegrams and other mailed objects that are addressed to or sent by the suspect or the accused and that are found with a company or persons
engaged in postal and telecommunication activities.

The seizure may also be performed with respect to the mailed objects referred to in Paragraph 1 of this Article when it can reasonably be expected that they will serve as evidence in the proceedings.
A seizure warrant for the temporary seizure of the mailed objects referred to in Paragraph 1 of this Article shall be issued by the Court on the motion of the Prosecutor.

A warrant for the temporary seizure of mailed objects may also be issued by the Prosecutor, should a delay pose a risk. the preliminary proceedings judge shall decide on its confirmation within 72 hours following the seizure.

If the warrant fails to be confirmed pursuant to the provision of the Paragraph 4 of this Article, the mailed objects may not be used as evidence in the proceedings.

The measures undertaken as provided under this Article shall not apply to the mail exchanged between the suspect or the accused and his or her defense attorney.

A seizure warrant referred to in Paragraph 3 of this Article shall include: information on the suspect or the accused whom the warrant concerns, the manner of execution of the warrant and the duration of the measure, and the company that will execute the measure imposed. The measures taken may not last longer than three (3) months, but for an important reason, the preliminary proceedings judge may extend the measures for three (3) additional months. The measures taken shall, however, be
terminated as soon as the reasons for taking them cease to exist.

If the interests of the proceedings permit, the suspect or the accused who is the subject of the measures referred to in Paragraph 1 shall be informed of those measures taken.

Mail delivered shall be opened by the Prosecutor in the presence of two witnesses. In opening the mail, care shall be taken not to break the seal and the packaging and the address shall be kept. A record shall be made regarding the opening.

The content of a part of the mail or the mail, as applicable, shall be communicated to the suspect or the accused or the recipient, and a part of the mail or the mail shall be handed over to that person, unless the Prosecutor, exceptionally, considers the transfer to be detrimental to the success of the criminal proceedings. If the suspect or the accused is absent, his family members shall be notified of the mail delivery. If the suspect or the accused does not request the delivery of the mail thereafter, the mail shall be returned to the sender.

Article 68 - A Written Inventory of the Seized Objects

After the seizure of objects and documentation, an inventory list of the temporarily seized objects and documents shall be made and a receipt concerning the objects and documents seized shall be written.

If making an inventory list of objects and documentation is impossible, the objects and documentation shall be wrapped and sealed.

Objects seized from a physical person or legal person may not be sold, given as a gift or otherwise transferred.

Article 69 - Right to Appeal

The person from whom objects or documentation are seized shall have the right to appeal.

The filing of an appeal referred to in Paragraph 1 of this Article shall not stay the temporary seizure of objects.

The Prosecutor has a right to appeal the decision of the Court by which the seized objects or documents are to be returned.

Article 70 - Safekeeping of the Seized Objects and Documentation

The seized objects and documentation shall be deposited with the Court, or the Court shall otherwise provide for their safekeeping.

Article 71 - Opening and Inspection of the Seized Objects and Documents

The opening and inspection of the seized objects or documentation shall be done by the Prosecutor.

The Prosecutor shall be bound to notify the person or the business enterprise from which the objects were seized, the preliminary proceedings judge and the defense attorney about the opening of the seized objects or documentation.

When opening and inspecting the seized objects and documents, attention shall be paid that no unauthorized person gets the insight into their contents.

Article 72 - Order Issued to a Bank or to Another Legal Person

If there are grounds for suspicion that a person has committed a criminal offense related to acquisition of material gain, the Court may at the motion of the Prosecutor issue an order to a bank or another legal person performing financial operations to turn over information concerning the bank accounts of the suspect or of persons who are reasonably believed to be involved in the financial transactions or affairs of the suspect, if such information could be used as evidence in the criminal proceedings.

The Court may, on the motion of the Prosecutor, order that other necessary measures referred to in Article 116 of this Code be taken in order to enable the detection and finding of the illicitly gained property and collection of evidence thereupon.

In case of an emergency, any of the measures referred to in Paragraph 1 may be ordered by the Prosecutor on the basis of an order. The Prosecutor shall seal the obtained information until the issuance of the court warrant. The Prosecutor shall immediately inform the preliminary proceedings judge on the measures undertaken, who may issue a court warrant within 72 hours. In case the preliminary proceedings judge does not issue the warrant, the Prosecutor shall return such information without accessing it.

The Court may issue a decision ordering a legal or physical person to temporarily suspend a financial transaction that is suspected to be a criminal offense or intended for the commission of the criminal offense, or suspected to serve as a disguise for a criminal offense or disguise of a gain obtained by a criminal offense.

The decision referred to in the previous Paragraph shall order that the financial resources designated for the transaction referred to in Paragraph 4 of this Article and cash amounts of domestic or foreign currency be temporarily seized pursuant to Article 65(1) of this Code and be deposited in a special account and kept until the end of the proceedings or until the conditions for their return are met.

An appeal may be filed against a decision referred to in Paragraph 4 of this Article by the Prosecutor, the owner of the cash in domestic or foreign currency, the suspect, the accused and the legal or physical person referred to in Paragraphs 4 and 5 of this Article.

Article 72a - Order to the telecommunications operator

(1) If there are grounds for suspicion that a person has committed a criminal offence, on the basis of motion of the Prosecutor or officials authorized by the Prosecutor, the Court may issue an order to a telecommunications operator or another legal person performing telecommunications services to deliver information concerning the use of telecommunications services by that person, if such information could be used as evidence in the criminal proceedings or in collecting information that could be useful to the criminal proceedings.

(2) In case of emergency, the Prosecutor may order the measures under Paragraph (1) of this Article, in which case the information received shall be sealed until the issuance of the court order. The Prosecutor shall immediately inform the preliminary proceedings judge, who may issue an order within 72 hours. In case the preliminary proceedings judge does not issue the order, the Prosecutor shall return such information unsealed.

(3) Measures under Paragraph (1) of this Article may also be ordered against a person if there are grounds for suspicion that he will deliver to the perpetrator or will receive from the perpetrator information related to the offence, or grounds for suspicion that the perpetrator uses a telecommunication device belonging to this person.

(4) Telecommunications operators or other legal persons who provide telecommunications services shall enable the Prosecutor and police authorities to enforce the measures referred to in Paragraph (1) of this Article.

Article 73 - Temporary Seizure of Property and Arrest in Property

At any time during the proceedings, the Court may, upon the motion of the Prosecutor, issue a temporary measure of property seizure under the Criminal Code of Bosnia and Herzegovina, arrest in property or shall take other necessary temporary measures to prevent any use, transfer or disposal of such property.

If there is a risk of delay, an authorized official may temporarily seize property referred to in Paragraph 1 of this Article, may carry out an arrest in property or take other necessary temporary measures to prevent any use, transfer or disposal of such property. An authorized official shall immediately inform the Prosecutor about the measures taken, while the preliminary proceedings judge shall decide about the measures within 72 hours following the undertaking of the measures.

If the Court denies approval, the measures taken shall be terminated and the objects or property seized returned immediately to the person from whom they have been seized.

Article 74 - Return of the Seized Property

Objects that have been seized during the criminal proceedings shall be returned to the owner or possessor once it becomes evident during the proceedings that their retention runs contrary to Article 65 of this Code and that there are no reasons for their seizure (Article 391).

Section 3 - PROCEDURE OF DEALING WITH SUSPICIOUS OBJECTS

Article 75 - Posted and Published Description of the Suspicious Objects

If another person’s object is found with the suspect or the accused and it is not known to whom it belongs, the authorized body conducting the proceedings shall describe the object and post the description on the notice board of the municipality of the residence of the suspect or the accused and the municipality where the criminal offense has been committed. The notice shall invite the owner to come forward within one (1) year from the date of the posting; otherwise, the object will be sold. The proceeds from the sale shall be credited to the Bosnia and Herzegovina Budget.

If the object is of high value, a description may also be published in a daily newspaper.

If the object is perishable or its safekeeping would entail significant costs, the object shall be sold pursuant to the provisions governing the judicial enforcement procedure and the proceeds shall be delivered for safekeeping to the Court.

The provision of Paragraph 3 of this Article shall also be applied when the object belongs to a runaway or an unknown perpetrator of a criminal offense.

Article 76 - Decisions on Suspicious Objects

If, within one (1) year, no one comes forward as the owner of the object or of the proceeds from the sale of the object, a decision shall be taken that the object shall become property of Bosnia and Herzegovina or that the proceeds shall be credited to the Bosnia and Herzegovina Budget.

The owner of the object shall be entitled to request in civil proceedings to repossess the object or to possess the proceeds from the sale of the object. The statute of limitations with respect to this right shall start running from the date of the posting or publication, as appropriate.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XIX - INVESTIGATIVE PROCEDURE

Article 219 - Collection of statements and other evidence

In order to perform the tasks referred to in Article 218 of this Code, authorized officials may obtain the necessary information from persons; may make a necessary examination of vehicles, passengers and luggage; may restrict movement in a specified area during the time required to complete a certain action; may take the necessary steps to establish identity of persons and objects; may organize search to locate an individual or items being sought; may in the presence of a responsible individual search specified structures and premises of state authorities, public enterprises and institutions, examine specified documents belonging to state authorities or public enterprises or institutions, and take
other necessary steps and actions. A record or official notes shall be kept of facts and circumstances ascertained in the taking of various actions and also concerning items which have been found or forfeited.

In taking statements from persons, an authorized official may issue a written request to a person to appear at the police station, provided that the request designates the reasons for requesting the person’s appearance. A person is not obligated to give a statement or respond to any question posed by the authorized official, other than to give his own identity data. The authorized official shall inform the person about this right.

In taking statements from persons, the authorized official shall act in accordance with Article 78 of this
Code or in accordance with Article 86 of this Code. In that case, the records on the statements taken may be used as evidence in the criminal proceedings.

A person against whom any of the actions or measures referred to in this Article have been taken shall be entitled to file a complaint with the Prosecutor within a period of three (3) days. The Prosecutor shall verify the grounds of the allegations and if it is determined that the applied steps or measures contain the features of a criminal offense or a violation of the work obligation, the complaint shall be processed in accordance with the law.

The authorized official shall complete a criminal report based on the statements taken and evidence gathered. The criminal report shall be submitted along with physical articles, sketches, photographs, reports obtained, records of the measures and actions taken, official notes, statements taken and other materials, which could contribute to the effective conduct of proceedings, including all facts or evidence in favor of the suspect. If the authorized official learns of new facts, evidence or clues to the criminal offense after submitting the criminal report, they shall have a continuing duty to gather the necessary information and shall immediately submit a supplemental report to the Prosecutor.

The Prosecutor may take statements from persons in custody if this is necessary to detect other criminal offenses committed by the same person or his accomplices, or criminal offenses committed by other perpetrators.

Bosnia and Herzegovina - Law on Implementation of the Rome Statute of the International Criminal Court and Cooperation with the International Criminal Court 2009 EN

PART FOUR – COOPERATION WITH THE INTERNATIONAL CRIMINAL COURT
Article 21
(Takeover of the Proceedings from the International Criminal Court)
(3) The evidence collected or presented by the International Criminal Court may be used in the criminal proceedings in Bosnia and Herzegovina only if they are obtained or presented in accordance with the Rome Statute and Rules of Procedure and Evidence. The existence or non-existence of the facts to be proven by these pieces of evidence shall be evaluated pursuant to the Criminal Procedure Code.

Rome Statute

Article 93 Other forms of cooperation

1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:

(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;