National procedures for execution of cooperation request

Bosnia and Herzegovina

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

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VIII - ACTIONS AIMED AT OBTAINING EVIDENCE

Section 6 - CRIME SCENE INVESTIGATION AND RECONSTRUCTION OF EVENTS

Article 92 - Conducting a Crime Scene Investigation

A crime scene investigation shall be conducted when a direct observation is needed to establish relevant facts in the proceedings.

Article 93 - Reconstruction of Events

In order to verify the evidence presented, or to establish facts that are important to clarify matters, the body in charge of the proceedings may order a reconstruction of the event. The reconstruction shall reproduce the actions or situations with the conditions under which the event occurred according to the evidence presented. If statements by individual witnesses or the suspects or the accused describing the actions or situations are inconsistent or contradictory, the reconstruction shall, as a rule, reproduce each version of events.

A reconstruction shall not be performed in such a manner as to violate public peace and order or morality or endanger human life or health.

Certain evidence may be presented again if necessary during the reconstruction.

Article 94 - Aid of an Expert Witness or a Specialist

A crime scene investigation or reconstruction shall be conducted with an aid of a specialist in criminalistics or some other discipline who shall assist in finding, protecting and describing traces, take certain measurements or photographs, or make sketches or photo-records or gather other data.
An expert witness may also be invited to the crime scene investigation or reconstruction if his presence would be useful for opinions and findings.

Section 7 - EXPERT EVALUATION

Article 95 - Ordering Expert Evaluation

Expert evaluation shall be ordered when the findings and opinion of a person possessing the necessary specialized knowledge are required to establish or evaluate some important facts. If scientific, technical or other specialized knowledge will assist the Court in understanding the evidence or determining a facts, an expert as a special witness may testify by providing his findings on the facts and opinion that contains the evaluation of the facts.

Article 96 - Order for Expert Evaluation

Expert evaluation shall be requested in writing by the Prosecutor or Court. The request shall indicate the facts in regard of which the evaluation is conducted.

If there is a specialized institution for performing the particular kind of expert evaluation, or if the expert evaluation could be performed by a state body, such expert evaluation, especially if it is complicated, shall as a rule be assigned to that institution or body. The institution or body shall name one or more specialists who will make the expert evaluation.

Article 97 - Duties of the Expert Witness Appointed by the Prosecutor or the Court

The expert selected by the Prosecutor or Court must present a report to the Prosecutor or Court that shall contain the evidence examined, the tests performed, the findings and opinion reached, and any other relevant information the expert considers necessary for a fair and objective analysis. The expert shall provide a detailed explanation of how he came to a particular opinion.

Article 98 -Persons Who Cannot be engaged as Experts

A person shall not be engaged as an expert who may not testify as a witness (Article 82), who has been exempted from the duty to testify (Article 83), as well as the injured party. If nevertheless such person is engaged, the Court shall not base its decision on his findings and opinion. Grounds for disqualification of experts (Article 34) also exist when the expert is employed in the same agency, business enterprise, other legal entity, or by the same individual entrepreneur as the suspect, the accused or injured party, or when the expert is employed by the suspect, the accused or the injured party.

(1) As a rule, a person who has been questioned as a witness shall not be engaged as an expert.

Article 99 - Expert Evaluation Procedure

The body ordering expert evaluation shall manage the expert evaluation. Before commencement of the presentation of expert testimony the expert shall be invited to carefully study the subject of his testimony, and shall precisely present everything he knows and finds, and shall be invited to present his opinion without bias and in conformity with the rules of his science or art. He shall be specifically warned that presentation of false testimony is a criminal offense.

An expert witness shall rely solely on evidence presented to him by authorized officials, the Prosecutor or the Court in forming opinions or inferences on the subject being examined. An expert witness may testify only as to a matter derived from first hand knowledge, unless the information he is relying on in forming his opinion and inferences, is the type of information reasonably relied on by other experts in the same field.

An expert may be given clarifications, and he may also be allowed to examine the records. An expert may propose that evidence be presented or articles and data be obtained that are of relevance for the presentation of his findings and opinion. If he is present at a crime scene investigation, reconstruction, or other investigative proceeding, the expert may propose that certain circumstances be clarified or that certain questions be asked of the persons involved.

Article 100 - Examination of Items Being Evaluated

The expert shall examine the items being evaluated at the place where the evidence is stored, unless expert evaluation requires extended tests or if the tests are performed in institutions, or state bodies or if ethical considerations so require.

If analysis of some substance must be performed for purposes of expert evaluation, only a portion of the substance shall be made available to the expert, if this is possible, while the remainder shall be set aside in the necessary amount against the possibility of subsequent analysis.

Article 101 - Presentation of Opinion and Findings

The expert witness shall present his findings and opinion as well as worksheets, drawings, and notes to his appointing authority.

Article 102 - Expert Evaluation in a Specialized Institution or State Body

If a specialized institution or a body is commissioned to make the expert evaluation, the Court or the Prosecutor shall caution the institution or the body conducting the evaluation that persons who provide the findings and opinion may not include a person as referred to in Article 98 of this Code or a person for whom there are grounds for disqualification from expert evaluation as provided by this Code, and the Court or the Prosecutor shall warned them of the consequences of giving a false finding or opinion.

The materials necessary for the expert evaluation shall be made available to the specialized institution or state agency;

if necessary, the procedure described in the provision of Article 99 of this Code shall be followed.

The specialized institution or state agency shall deliver a written finding and opinion submitted by the persons who made the expert evaluation.

Article 103 - Examination, Autopsy and Exhumation of Corpse

The examination and autopsy of the corpse shall be done if in a case of death, there is a suspicion that the death was the result of a criminal offence or related to the commission of a criminal offence. If the corpse has already been buried, the exhumation of such corpse shall be ordered for the purpose of examination and autopsy.

During the examination and autopsy of a corpse, all the necessary measures of identification of a corpse shall be taken and to that end in particular the data on external and internal bodily characteristics of the corpse shall be described.

Article 104 - Examination and Autopsy of the Corpse outside a Specialized Medical Facility

Examination and autopsy of the body shall be performed by a specialized medical facility.

If an expert evaluation is not made in a specialized medical facility, examination and autopsy of a corpse shall be done by a physician-forensic specialist. The Prosecutor shall be in charge of the expert evaluation and shall create a record of it. the findings and opinion of the expert shall be an integral part of the record.

The physician who normally treated the deceased may not be given the task of performing the autopsy. However, the physician who treated the deceased may be questioned as a witness in order to provide an explanation on the course and the circumstances of the illness of the deceased.

Article 105 - Forensic Report on Examination and Autopsy

A forensic pathologist shall include in his report the cause and estimated time of death.

Should any sort of injury be found on the corpse, it shall be ascertained whether that injury was caused by someone else, and if so, then by what means, in which manner, at what interval before death, and whether such injury is the cause of death. If several injuries have been found on the corpse, it shall be ascertained whether all of the injuries were inflicted by the same means and which injury caused death; if more than one injury could have been fatal, it shall be stated which one(s) were the cause of death.

In cases referred to in Paragraph 2 of this Article, it shall specifically be ascertained whether the death was caused by the type of injury and general nature of the injury or due to personal characteristics or specific conditions of the body of the deceased or by coincidence or circumstances under which the injury was inflicted.

The expert shall pay attention to discovered biological material, including blood, saliva, semen, and urine, to describe it and preserve it for biological evaluation if ordered.

Article 106 - Examination and Autopsy of Fetus or Newborn Infant

In the examination and autopsy of a fetus, a specific determination shall be made as to the stage of pregnancy, the fetus’ ability to live outside the uterus, and the cause of death.

In an examination and autopsy of the corpse of a newborn infant a specific determination shall be made as to whether the infant was born alive or stillborn, were it capable to live, how long the infant lived, and the time and cause of death.

Article 107 - Toxicological Tests

If there is suspicion that a poisoning occurred, the suspicious substances found on the corpse or in another place shall be sent for expert evaluation to the institution or state body performing toxicological tests.

When examining suspicious substances the expert shall specifically ascertain the type, amount and effects of the discovered toxic substances and, if the substances taken from the body are being tested, if possible, the amount of that toxic substance.

Article 108 - Expert Evaluation of Physical Injuries

Expert evaluation of physical injuries shall be done as a rule by examining the injured party. If it is not
possible to examine the injured party or it is unnecessary, an expert evaluation shall be based on medical records or other available information.

After providing a precise description of the injuries, the expert shall give his opinion, especially concerning the type and severity of each individual injury and their total effect in view of their nature or the specific circumstances of the case, the type of effect such injuries usually cause, the type of effect they have caused in this specific case, the means by which the injuries were inflicted and the manner of their infliction.

Article 109 - Physical Examination and Other Procedures

A physical examination of a suspect or the accused shall be performed, even without his consent, if necessary to determine the facts important for criminal proceedings. A physical examination of other persons may be performed without their consent only when it has to be established that a specific trace or other consequence of a criminal offense may be found on their body.

In accordance with the rules of medical science, blood and other medical procedures may be taken for analysis and determination of other facts important to criminal proceedings even without the consent of the person being examined, if it would not pose any harm to the health of person examined.
physical examination of the suspect or the accused and other related procedures shall be ordered by the Court, and if the delay poses a risk then it shall be ordered by the Prosecutor.

It shall not be allowed to perform a medical intervention on the suspect, accused or witness or to administer to them agents that would affect their will in giving testimony.

If actions are taken contrary to the provisions of this Article, the decision of the Court may not be based on the evidence obtained in this manner.

Article 110 - Psychiatric Expert Evaluation

If a suspicion arises that the accountability of the suspect or the accused has diminished, or that the suspect or the accused has committed a criminal offense due to the drug or alcohol addiction, or that he is not capable to participate in the proceeding due to the mental disturbance, expert evaluations consisting of examination by a psychiatrist shall be ordered.

If during the investigation the suspect refuses to voluntarily undergo the psychiatric examination for the purpose of an expert witness evaluation or if according to the opinion of the expert witness an extended observation is required, the suspect shall be committed to the appropriate medical institution for the purpose of psychiatric examination. A decision to that effect shall be rendered by the preliminary proceedings judge on the motion of the Prosecutor. The observation may not exceed two (2) months.

Should experts establish that the mental condition of the suspect or accused is disturbed, they shall define the nature, type, degree and duration of the disorder and shall furnish their opinion concerning the type of influence this mental state has had and still has on the comprehension and actions of the suspect or the accused as well as concerning whether and in what degree the disturbance of his mental state existed at the time when the criminal offense was committed.

If a suspect or accused who is in pretrial custody is sent to a medical institution, the judge shall inform that institution of the reasons why pretrial custody was ordered so that the necessary measures can be taken to achieve the purposes of custody.

The time, which a suspect or an accused spent in a medical institution, shall be included in the time of custody or credited against his sentence, should a sentence be pronounced.

Article 111 - Audit of Business Books

If an audit of business books is required, the body before which the proceedings are conducted shall indicate to the auditors the line of inquiry and the scope of the audit and other facts and circumstances that are to be determined.

If the books of a business enterprise, other legal entity or an individual entrepreneur first need to be put in order before being audited, the costs of putting books in order shall be charged to their account.
The decision to put books in order shall be made by the authority conducting proceedings on the basis of the written documented report of the experts ordered to audit the business books. The decision shall also indicate the amount that the legal entity or the individual entrepreneur must deposit with that authority as an advance against the cost of putting its books in order.
The costs, if their amount has not been advanced, shall be collected and credited to the authority that has paid the costs and remunerated the experts in advance.

Article 112 -DNA Analysis

DNA analysis shall be made exclusively by an institution in possession of necessary expertise in terms of staff and equipment to do a forensic DNA analysis in this type of expert evaluation.

Article 113 - When to Make a DNA analysis

A DNA analysis may be performed insofar as it is required to establish identity or facts as to whether discovered trace substances originate from the suspect, the accused or the injured party.

Article 114 - Use of DNA Analysis Results in Other Criminal Proceedings

For the purpose of establishing the identity of the suspect or the accused, cells may be removed from his body in order to perform a DNA analysis. All data obtained thereby may be used in other criminal proceedings against the same person.

Article 115 -Registry of DNA Analyses and Data Protection

All DNA analyses shall be kept in a special registry with the Ministry of Security of Bosnia and Herzegovina.

(1) The Minister of Justice of BiH shall issue the Book of Rules on the Manner of Collecting and Taking of Biological Material Samples Necessary for DNA Analyses in Criminal Proceedings, Method of Packing the Collected Biological Material, Keeping, Processing and Storing the Samples and Obtained Results of DNA Analyses in Bosnia and Herzegovina.

Protection of data obtained from the analyses referred to in Paragraph 1 of this Article shall be regulated under a separate law.

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:

(a) The identification and whereabouts of persons or the location of items;

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

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

(d) The service of documents, including judicial documents;

(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) The temporary transfer of persons as provided in paragraph 7;

(g) The examination of places or sites, including the exhumation and examination of grave sites;

(h) The execution of searches and seizures;

(i) The provision of records and documents, including official records and documents;

(j) The protection of victims and witnesses and the preservation of evidence;

(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

(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.