Examination of witnesses

Bosnia and Herzegovina

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

Section 4 - QUESTIONING OF THE SUSPECT

Article 77 - Basic Rules on Questioning

The suspect under investigation shall be questioned by the Prosecutor or an authorised official.

The questioning of the suspect must be done with full respect to the personal integrity of the suspect. During questioning of the suspect it shall be forbidden to use force, threat, fraud, narcotics or other means that may affect the freedom of decision-making and expression of will while giving a statement or confession.

If actions were taken contrary to Paragraph (2) of this Article, the decision of the Court may not be based on the statement of the suspect.

Article 78 - Instructing the Suspect on His Rights

At the first questioning the suspect shall be asked the following questions: his name and surname; nickname if he has one; name and surname of his parents; maiden name of his mother; place of birth; place of residence; date, month and year of birth; ethnicity and citizenship; identification number of Bosnia and Herzegovina citizen; profession; family situation; is he literate; completed education; has he served in the army, and if so, when and where; whether he has a rank of a reserve officer; whether he is entered in the military records and if yes with which authority in charge of defense affairs; whether he has received a medal; financial situation; previous convictions and, if any, reasons for the
conviction; if convicted whether he served the sentence and when; are there ongoing proceedings for some other criminal offense; and if he is a minor, who is his legal representative. The suspect shall be instructed to obey summonses and to inform the authorized officials immediately about every change of an address or intention to change his residence, and the suspect shall also be instructed about consequences if he does not act accordingly.

At the beginning of the questioning, the suspect shall be informed of the charge against him, the grounds for the charge and he shall be informed of the following rights :

the right not to present evidence or answer questions;

the right to retain a defense attorney of his choice who may be present at questioning and the right to a defense attorney at no cost in such cases as provided by this Code;

the right to comment on the charges against him, and to present all facts and evidence in his favor, and that if he does so in the presence of the defence attorney, the statement made shall be admissible as evidence at the main trial and may, without his consent, be read and used at the main trial;

that during the investigation, he is entitled to study files and view the collected items in his favor unless the files and items concerned are such that their disclosure would endanger the aim of investigation;

the right to an interpreter service at no cost if the suspect does not understand the language used for questioning.

The suspect may voluntarily waive the rights stated in Paragraph 2 of this Article but his questioning may not commence unless his waiver has been recorded officially and signed by the suspect. To waive the right to a defense attorney shall not be possible for the suspect under any circumstances in case of a mandatory defense under this Code.

In the case when the suspect has waived the right to a defense attorney, but later expressed his desire to retain one, the questioning shall be immediately suspended and shall resume when the suspect has retained or has been appointed a defense attorney, or if the suspect has expressed a wish to answer the questions.

If the suspect has voluntarily waived the right not to answer the questions asked, he must be allowed to present views on all facts and evidence that speak in his favor.

If any actions have been taken contrary to the provisions of this Article, the Court’s decision may not be based on the statement of the suspect.

Article 79 - Manner of Questioning of the Suspect

A record shall be made on every questioning of the suspect. The important parts of the statement shall be entered in the record word for word. After the record has been completed, the record shall be read to the suspect and the copy of it shall be given to him.

As a rule, a questioning of the suspect shall be audio or video recorded under the following conditions:
the suspect shall be informed in the language he speaks and shall understand that the questioning is being audio or video recorded;

if the questioning is adjourned, the reason and time of the adjournment shall be indicated in the record, as well as the time of resumption and the completion of the hearing;

at the end of the questioning, the suspect shall be allowed to explain whatever he has said and to add whatever he wants;

the tape record thus made shall be transcribed as soon as feasible after the completion of the questioning, and a copy of the transcript shall be handed to the suspect along with a copy of the tape recording, or if a device for making several records simultaneously was used, he shall be handed one of the originals;

once a copy of the original tape has been made for the purpose of making a transcript, the original tape or one of the originals shall be sealed off in the presence of the suspect and authenticated by the respective signatures of the authorized official and the suspect.

Article 80 - Questioning through an Interpreter

The suspect shall be questioned through an interpreter in cases referred to in Article 87 of this Code .

Section 5 - EXAMINATION OF WITNESSES

Article 81 - Summons to Examine Witnesses

Witnesses shall be heard when there is likelihood that their statements may provide information concerning the offense, perpetrator or any other important circumstances.

The Prosecutor or the Court shall serve the writ of summons. Any summoning of a minor under 16 as the witness shall be done through the parents or legal representative, except for the cases where this is not possible due to a need to act urgently, or due to other circumstances.

Witnesses who cannot answer a summons because of age, illness or serious physical handicaps may be questioned at their residence, hospital or any other place.

Witnesses shall be notified in the summons of their being summoned as a witness, of where and when to appear upon being summoned, as well as what consequences shall follow if the witness fails to appear.

Should the witness fail to appear or justify his absence the Court may impose upon him a fine an amount up to 5.000 KM, or may order the apprehension of the witness.

The apprehension of a witness shall be performed by the Judicial Police. Exceptionally the order may be given by the Prosecutor if a duly summoned witness does not appear or justify his absence, provided that this order must be confirmed by the preliminary proceedings judge within 24 hours following the issuance of the order.

Should the witness, having been warned of the consequences, refuse to testify without a justification provided by law, the Court may, upon the proposal of the Prosecutor, issue a decision imposing on the witness a fine of up to 30.000 KM. An appeal against this decision shall be allowed, but shall not stay the execution of the decision.

Appeals against the decision referred to in Paragraph (5) and (7) of this Article shall be decided by the Panel (Article 24(7)).

Article 82 -Persons Not To Be Heard As Witnesses

(1) The following persons shall not be heard as witnesses:

A person who by his statement would violate the duty of keeping state, military or official secrets until the competent body releases him from that duty;

A defense attorney of the suspect or accused with respect to the facts that became known to him in his capacity as a defense attorney;

A person who by his statement would violate the duty of keeping professional secrets, including the religious confessor, professional journalists for the purpose of protecting the information source, attorneys-at-law, notary, physician, midwife and others, unless he was released from that duty by a special regulation or statement of the person who benefits from the secret being kept;

A minor who, in view of his age and mental development, is unable to comprehend the importance of his privilege not to testify.

(2) If a person who may not be heard as a witness has nonetheless been heard as a witness, the Court shall not base a decision on that testimony.

Article 83 - Persons Allowed to Refuse to Testify

(1) The following persons may refuse to testify:

the spouse or the extramarital partner of the suspect or accused;

a) a parent or child, an adoptive parent or adopted child of the suspect or accused;

b) (deleted).

(2) The authority conducting the proceedings must caution the persons referred to in Paragraph 1 of this Article, prior to their hearing or as soon as it learns about their relation to the accused, about the right to refuse to testify. The caution and answer must be entered in records.

(3) A person who has grounds to refuse to testify against one of the suspects or accused shall be relieved from the duty to testify against other codefendants if his testimony, by its nature, cannot be restricted solely to the other suspects or accused.

(4) If a person who is entitled to refuse to testify, but has not been cautioned thereof, or has not explicitly waived that right, has nonetheless been heard as a witness, or if the caution and the waiver have not been entered into the records, the Court shall not base a decision on that testimony.

Article 84 - Right of the Witness to Refuse to Respond

The witness shall be entitled to refuse to answer such questions with respect to which a truthful reply would result in the danger of bringing prosecution upon himself.

The witnesses exercising the right referred to in to Paragraph 1 of this Article shall answer the same questions provided that immunity is granted to such witnesses.

Immunity shall be granted by the decision of the Chief Prosecutor of BiH.

The witness who has been granted immunity and who has testified shall not be prosecuted except in case of false testimony.

A lawyer as the advisor may be assigned by the Court’s decision to the witness during the hearing if it is obvious that the witness himself is not able to exercise his rights during the hearing and if his interests cannot be protected in some other manner.

Article 85 - Method of Examination, Confrontation and Identification

Witnesses shall be examined individually and in the absence of other witnesses.

At all times during the proceedings, witnesses may be confronted with other witnesses or with the suspect or accused.

If necessary to ascertain whether the witness knows the person or object, first the witness shall be required to describe him/her/it or to indicate distinctive signs, and then a line-up of persons shall follow, or the object shall be shown to the witness, if possible among objects of the same type.

(1) If the procedure specified in Paragraph (3) of this Article is not possible, the witness may alternatively be asked to identify a photograph of the person among a set of photographs of persons unknown to the witness, or identify the object among a set of objects of the same kind.

Article 86 - Course of the Examination of a Witness

The witness must answer orally.

Before examination, the witness shall be called upon to tell the truth and not to withhold anything and then he shall be instructed that giving false testimony is criminal offense. The witness shall also be instructed about his right not to answer questions as provided in Article 84(1) of this Code and such instruction shall be entered into the record.

Subsequently, the witness shall be asked the following questions: his name and surname, names of father and mother, occupation, residence, place and date of birth, and relation to the suspect, accused or injured party. The witness must also be instructed that it is his duty to inform the Prosecutor or the Court regarding a change of address or residence.

When hearing a minor and, in particular if the minor was victimized by the criminal offense, the participants in the proceedings shall be obligated to act with circumspection in order not to have an adverse effect on the minor’s mental condition. the minor shall be heard with assistance of a pedagogue or other professional.

It shall not be allowed to ask an injured party about his sexual experience prior to commission of the criminal offense and if such a question has already been posed, the Court decision cannot be based on such statement.

Given age, physical and mental condition, or other justified reasons the witness may be examined using technical means for transferring image and sound in such manner as to permit the parties and the defense attorney to ask questions although not in the same room as the witness. Am expert person may be assigned for the purpose of the examination.

After general questions the witness shall be invited to present everything that he knows about the case and then the witness shall be asked questions aimed at checking, supplementing and explaining his statement. When hearing the witness it shall be prohibited to practice deceit or ask any questions that already contain the desired answer.

The witness shall be asked how does he know the facts he is testifying about.

Witnesses may be confronted if their testimony disagrees with respect to important facts. The confronted witnesses shall be examined individually about each circumstance that their testimony disagrees about and their answer shall be entered into records. Only two witnesses at a time may be confronted.

The injured party being examined as the witness shall be asked about his desires with respect to satisfaction of a property claim in the criminal proceedings.

Article 87 - Examination of a Witness through Interpreter

If a witness is deaf or mute, he shall be examined through the interpreter.

If the witness is deaf the questions shall be asked in writing and if he is mute he shall be asked to answer in writing. If the hearing cannot be conducted in this manner then a person who can communicate with the witness shall be invited to be an interpreter.

If the interpreter has not previously sworn the oath, the interpreter shall swear the oath that he shall literally communicate the questions to the witness as well as his testimony.

Article 88 - Oath or Affirmation of a Witness

The Court may request the witness to swear an oath or affirmation prior to testimony.
Prior to the main trial, the witness may swear the oath or affirmation only if there is a fear that due to illness or other reasons he shall not appear at the main trial. The oath or affirmation shall be taken before the judge or the Presiding judge. The reason for swearing the oath or affirmation shall be entered into the records.

The text of the oath or affirmation is as follows: "I swear/ I affirm that I shall speak the truth about everything I am going to be asked before this Court and that I shall withhold nothing known to me."

The oath or affirmation shall be taken orally by reading its text or with a confirmation after the text of the oath or affirmation has been read by the judge or the Presiding judge. Mute witnesses who can read and write shall take the oath or affirmation by signing the text of the oath or affirmation, whereas deaf or mute witnesses who cannot read or write shall take the oath or affirmation through an interpreter.

The refusal and reasons for refusal of the witness to take an oath or affirmation shall be entered into records.

Article 89 - Individuals who may not take the Oath or Affirmation

The individuals who may not take the oath or affirmation are persons who are minors at the time of examination, those for whom it has been proved that there is a grounded suspicion that they have committed or participated in commission of an offense for which they are being examined or those who due to their mental condition are unable to comprehend the importance of the oath or affirmation.

Article 90 - Audio or Audio-Video Recording of the Examination of Witnesses

The examination of witnesses may be recorded on audio or audio-video equipment at all stages in the proceedings. It must be recorded in case of minors under sixteen (16) years of age who were injured by the offense, and if there are grounds to fear that the witness cannot be examined at the main trial.

Article 91 - Protected Witness

With respect to protected witnesses in the proceedings before the Court, the provisions of the special law shall be applied.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 3 – PREREQUISITES FOR HOLDING THE MAIN TRIAL

Article 249 - Failure of the Witness or the Expert to Appear at the Main Trial

If a witness or an expert was duly summoned but fails to appear and does not justify his absence, the judge or the presiding judge may order the witness or the expert to be brought in.

The judge or the presiding judge may fine the witness or the expert, who was duly summoned but failed to justify his absence, an amount up to 5.000 KM.

In the case referred to in Paragraph 1 of this Article, the judge or the presiding judge shall decide whether the main trial should be postponed.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 7 – EVIDENTIARY PROCEDURE

Article 268 - Sanctions for Refusing to Testify

If a witness refuses to testify without providing a justified reason and after being warned of the consequences, the witness may be fined up to 30.000 KM.

(1) If the witness still refuses to testify, the witness may be imprisoned. The imprisonment shall last until the witness agrees to testify, or until his testimony becomes irrelevant, or until the completion of the criminal proceedings, but not longer than 30 days.

The Panel (Article 24(7) of this Code) shall decide on An appeal filed against the decision on fine or imprisonment. An appeal against the decision on fine and imprisonment shall not stay the execution of the decision.

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:

(c) The questioning of any person being investigated or prosecuted;