Forfeiture of assets

Bosnia and Herzegovina

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

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER XVII - CLAIMS UNDER PROPERTY LAW

Article 193 - Subject of the Claim under Property Law

A claim under property law that has arisen because of the commission of a criminal offense shall be deliberated on the motion of authorized officials in criminal proceedings if this would not considerably prolong such proceedings.

A claim under property law may pertain to reimbursement of damage, recovery of items, or annulment of a particular legal transaction.

Article 194 - Petition to Satisfy a Claim under Property Law

The petition to satisfy a claim under property law in criminal proceedings may be filed by the person authorized to pursue that claim in a civil action.

If a criminal offense has caused damage to the property of the State of Bosnia and Herzegovina, the body empowered by law to protect such property may participate in criminal proceedings in accordance with its powers under that law.

Article 195 -Procedure for Satisfaction of a Claim under Property Law

A petition to pursue a claim under property law in criminal proceedings shall be filed with the Prosecutor or the Court.

The petition may be submitted no later than the end of the main trial or sentencing hearing before the Court.

The person authorized to submit the petition must state his claim specifically and must submit evidence.

If the authorized person has not filed the petition to pursue his claim under property law in criminal proceedings before the indictment is confirmed, he shall be informed that he may file that petition by the end of the main trial or sentencing hearing. If a criminal offense has caused damage to the property of the State of Bosnia and Herzegovina, and no petition has been filed, the Court shall so inform the body referred to in Article 194(2) of this Code.

If the authorized person does not file the claim under property law until the end of the main trial or if he requests a transfer to civil action, and the data concerning the criminal proceedings provide a reliable grounds for a complete or partial resolution of the claim under property law, the Court shall decide in the convicting verdict to pronounce on the accused the measure of forfeiture of property gain.

Article 196 - Petition Withdrawal

The authorized person may withdraw a petition to satisfy a claim under property law in criminal proceedings up to the end of the sentencing hearing and pursue it in a civil action. In the event that a petition has been withdrawn, that same plea may not be presented again unless otherwise provided under this Code.

If after the petition was filed and before the end of the sentencing hearing the claim under property law has passed under the rules of property law to another person, that person shall be summoned to declare whether or not he abides by the petition. If he does not appear when duly summoned, he shall be considered to have abandoned the petition.

Article 197 - Duties of the Prosecutor and the Court in Relation to the Establishment of Facts

The Prosecutor has a duty to gather evidence regarding claims under property law relevant to the criminal offence.

The Prosecutor or The Court shall question the suspect or the accused in relation to the facts relevant to the petition of the authorized person.

Article 198 - Ruling on the Claims under Property Law

(1) The Court shall decide on claims under property law. The Court may propose mediation to the injured party and the accused or the defence attorney in accordance with the law if it concludes that the claim under property law may be settled through mediation. A proposal for mediation can be initiated before the completion of the main trial by both the injured party and the accused or the defence attorney.

In a verdict pronouncing the accused guilty, the Court may award the injured party the entire claim under property law or may award him part of the claim under property law and refer him to a civil action for the remainder. If the data of criminal proceedings do not provide a reliable basis for either a complete or partial award, the Court shall instruct the injured party that he may take civil action to pursue his entire claim under property law.

If the Court renders a verdict acquitting the accused of the charge or dropping the charges or if it decides to discontinue criminal proceedings, it shall instruct the injured party that he may pursue his claim under property law in a civil action.

Article 199 - Decisions to Turn Over the Articles to the Injured Party

If a claim under property law pertains to recovery of articles, and the Court finds that the article does belong to the injured party and is in the possession of the accused or one of the participants in the main trial or in the possession of a person to whom those persons gave it for safekeeping, it shall order in the verdict that the article be turned over to the injured party.

Article 200 -Decisions to Annul Certain Legal Transactions

If a claim under property law pertains to annulment of a specific legal transaction, and the Court finds that the petition is well founded, it shall declare in its verdict complete or partial annulment of that legal transaction with the consequences that derive therefrom, without affecting the rights of third parties.

Article 201- Amending the Decision on a Claim under Property Law

(1) A Court may amend a final verdict that contains a decision on a claim under property law only in connection with a retrial of the criminal action.

(2) Notwithstanding cases referred to in Paragraph 1 of this Article, the convicted person or his heirs may seek to amend a criminal Court’s final verdict containing a decision on a claim under property law only in a civil action, as long as grounds exist for retrial under the provisions that apply to civil proceedings.

Article 202 - Temporary Security Measures

Temporary measures to secure a claim under property law that has accrued because of the commission of a criminal offense may be ordered in criminal proceedings according to the provisions that apply to judicial enforcement procedure.

The decision referred to in Paragraph 1 of this Article shall be made by the Court. Against this decision, an appeal is allowed, which shall be ruled on by the Panel referred to in Article 24(7) of this Code. The appeal shall not stay execution of the decision.

Article 203 - Return of Articles in the Course of the Proceedings

If a claim pertains to articles that unquestionably belong to the injured party, and they do not constitute evidence in criminal proceedings, those articles shall be given to the injured party even before proceedings are completed.

If the ownership of articles is disputed by several injured parties, they shall be referred to a civil action, and the Court in criminal proceedings shall order only the safekeeping of the items as a temporary security measure.

Items that serve as evidence shall be seized and at the end of the proceedings shall be returned to the owner. If such an item is urgently needed by the owner, it may be returned to him even before the end of the proceedings, under the provision that it be brought in on request.

Article 204 - Security Measures Against Third Parties

If an injured party has a claim against a third person because he possesses items obtained through a criminal offense or because he gained property as a result of a criminal offense, the Court in criminal proceedings, upon the petition of an authorized official (Article 194) (Article 194) and according to the provisions that apply to judicial enforcement procedure, may order temporary security measures even toward that third party. The provisions of Article 202 (2) of this Code shall apply in this case as well.

In a verdict pronouncing the accused guilty the Court shall either revoke the measures referred to in Paragraph 1 of this Article, if they have not already been revoked, or shall refer the injured party to a civil action, in which case those measures shall be revoked unless the civil action is instituted within the period of time fixed by the Court.

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:

(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

Article 109 Enforcement of fines and forfeiture measures

1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.