CONSTITUTION OF BOSNIA AND HERZEGOVINA
Article II: Human Rights and Fundamental Freedoms
3. Enumeration of Rights
All persons within the territory of Bosnia and Herzegovina shall enjoy the human rights
and fundamental freedoms referred to in paragraph 2 above; these include:
...
b) The right not to be subjected to torture or to inhuman or degrading treatment or
punishment.
Part 1 Basic Provisions
Chapter 7 Defense Attorney
Article 45
Mandatory Defense
A suspect shall have a defense attorney at the first questioning if he is mute or deaf or if he is offense for which a penalty of long-term imprisonment may be pronounced.
A suspect or accused must have a defense attorney while deciding the proposal for ordering pre-trial custody, throughout the pretrial custody.
After an indictment has been brought for a criminal offense for which a prison sentence of
ten (10) years or more may be pronounced, the accused must have a defense attorney at the time of the delivery of the indictment.
If the suspect, or the accused in the case of a mandatory defense, does not retain a defense attorney himself, or if the persons referred to in Article 39, Paragraph 3, of this Code do not retain a defense attorney, the preliminary proceeding judge, preliminary hearing judge, the judge or the Presiding judge shall appoint him a defense attorney in the proceedings. In this case, the suspect or the accused shall have the right to a defense attorney until the verdict becomes final and, if a long-term imprisonment is pronounced for proceedings under legal remedies.
If the Court finds it necessary for the sake of justice, due to the complexity of the case, or the mental condition of the suspect or the accused or the other circumstances, it shall appoint an attorney for his defense.
In the case of appointing a defense attorney, the suspect or the accused shall be asked to
select a defense attorney from the presented list himself. If the suspect or the accused does not select a defense attorney from the presented list himself, the defense attorney shall be appointed by the Court following the order of the list of attorneys.
If the requested attorney is unable to take over the defence, the Court shall request the next attorney from the list of attorneys. The Court shall inform the relevant bar association about the refusal of the requested attorney to assume the ex officio defence
Part 1 Basic Provisions
Chapter 7 Defense Attorney
Article 46
Appointment of Defense Attorney for the Indigent Person
When conditions are not met for the mandatory defense, and the proceedings are conducted for an offense for which a prison sentence of three (3) years may be pronounced or more or when the interests of justice so require, regardless of the prescribed punishment, a defense attorney shall be assigned to the accused at his request if, due to an adverse financial situation, he is not able to pay the expenses of the defense.
The request for appointment of a defense attorney referred to in Paragraph 1 of this Articlepursuant to Article 45, Paragraph 6 may be filed at any time during the criminal proceedings. The preliminary proceeding judge, preliminary hearing judge, the judge or the Presiding judge pursuant to Article 45,
Paragraph 65 shall appoint the defense attorney after the suspect or the accused was given an opportunity to select a defense attorney from the presented list.
The Request for Appointment of a Defense Attorney due to adverse financial situation shall be recorded in the case file. After having established the financial situation of the suspect or accused, the Court shall issue a decision on the request without delay.
Part 1 Basic Provisions
Chapter 7 Defense Attorney
Article 47
The Right of a Defense Attorney to Inspect Files and Documentation
During an investigation, the defense attorney has a right to inspect the files and obtained items that are in favor of the suspect. This right can be denied to the defense attorney if the disclosure of the files and items in question would endanger the purpose of the investigation.
Notwithstanding Paragraph 1 of this Article, the Prosecutor shall submit with a request
for ordering custody to the preliminary proceedings judge or preliminary hearing
judge evidence relevant for assessment of to establish the lawfulness of custody and also for the purpose of informing the defence attorney.
After the indictment is issued, the defence attorney, the suspect or the accused shall have the right to inspect all files and evidence.
Upon obtaining any new piece of evidence or any information or facts that can serve as evidence at a trial, the preliminary proceedings, the preliminary hearing judge, the judge, or the Panel, as well as the Prosecutor, shall make them available for inspection to the defense attorney, the suspect or the accused.
In cases referred to in Paragraphs 3 and 4 of this Article, the defense attorney, the suspect or the accused may make copies of all files or documents.
Part 1 Basic Provisions
Chapter 7 Defense Attorney
Article 48
Communication of a Suspect or Accused with Defense Attorney
If the suspect or accused is in custody, he shall immediately be entitled to communicate with the defense attorney, orally or in writing.
During the conversation, the suspect or accused may be observed, but his conversation may not be heard.
Part 1 Basic Provisions
Chapter 8 Actions aimed at Obtaining Evidence
Section 4 Questioning of the Subject
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 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 favour, 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.
Chapter 21 The Main Trial
Section 1 Public Nature of the Main Trial
Article 234
General Public
The main trial is public.Only adults may attend the main trial. Persons attending the main trial must not carry arms or dangerous implements, except for the guards of the accused and persons who are permitted to do so by the judge or the presiding judge.
Chapter 23 Regular Legal Remedies
Section 1 Appeal Against the First Instance Verdict
Article 297
Essential Violations of the Criminal Procedure Provisions
(1) The following constitute an essential violation of the provisions of criminal procedure:
(a) if the Court was improperly composed in its membership or if a judge participated in pronouncing the verdict who did not participate in the main trial or who was disqualified from trying the case by a final decision;
(b) if a judge who should have been disqualified participated in the main trial;
(c) if the main trial was held in the absence of a person whose presence at the main trial was required by law, or if in the main trial the defendant, defense attorney or the injured party, in spite of his petition was denied the use of his own language at the main trial and the opportunity to follow the course of the main trial in his language;
(d) if the right to defense was violated;
(c) if the public was unlawfully excluded from the main trial;
(d) if the Court violated the rules of criminal procedure on the question of whether there existed an approval of the competent authority;
(e) if the Court reached a verdict and was not competent, or if the Court rejected the charges improperly due to a lack of competent jurisdiction;
(f) if, in its verdict, the Court did not entirely resolve the contents of the charge;
(g) if the verdict is based on evidence that may not be used as the basis of a verdict under the provisions of this Code;
(h) if the charge has been exceeded;
(i) if the wording of the verdict was incomprehensible, internally contradictory or contradicted the grounds of the verdict or if the verdict had no grounds at all or if it did not cite reasons concerning the decisive facts.
(2) There is also a substantial violation of the principles of criminal procedure if the Court has
not applied or has improperly applied some provisions of this Code to the preparation of the
main trial or during the main trial or in rendering the verdict, and this affected or could have
affected the rendering of a lawful and proper verdict.
Chapter 26 Juvenile Procedure
Section 1 General Provisions
Article 343
Mandatory Defense
A minor must have defense attorney from the outset of the preparatory proceeding.
If the minor does not understand the language in which the criminal proceeding is being conducted, the Court shall appoint an interpreter for him.
If in the cases referred to in Paragraph 1 of this Article the minor himself, his legal
representative or relatives do not retain a defense attorney, the judge for juveniles shall
appoint him ex officio.
Chapter 27 Proceeding Against a Legal Persons
Article 377
Representative of the Legal Person in the Criminal Proceeding
Every legal person must have a representative in the criminal proceeding and the
representative is authorized to undertake all actions for which, under this Code, the suspect or
the accused and the convicted person are also authorized.
A legal person may have only one representative in the criminal proceeding.
The Court shall each time verify the identity of the representative and his authority to
represent the legal person.
Chapter 27 Proceeding Against a Legal Persons
Article 382
Defense Attorney of the Legal Person in the Criminal Proceeding
A legal person may have a defense attorney in addition to a representative.
A legal person and a physical person, as well as a suspect or an accused may not have the same defense attorney.
Chapter 27 Proceeding Against a Legal Persons
Article 383
Contents of the Indictment
The indictment against a legal person in criminal proceedings, besides the content as stipulated
by this Code, shall also include the name under which the legal person acts in legal dealings
pursuant to the regulations, its seat, a description of the criminal offense and the basis for the
liability of that legal person.
Chapter 30 Procedure to Render International Legal Aid and to Enforce International Agreements in Criminal Matters
Article 412
Relinquishing Criminal Prosecution to a Foreign State
If a criminal offense was committed in the territory of Bosnia and Herzegovina by an alien who has his permanent place of residence in a foreign state, it is possible to cede all criminal files for the purpose of criminal prosecution and trial to such country beyond any requirements provided for in Article 415 of this Code, if such state is not opposed thereto.
Relinquishment of criminal prosecution and trial shall not be allowed if in that case the alien might be subjected to unfair trial, inhuman and humiliating treatment or punishment.
PART FIVE – ARREST, CUSTODY AND SURRENDER
Article 23
(Mandatory Defence in the Surrender Procedure)
(1) The person whose surrender is requested by the International Criminal Court shall have a defence attorney from the first questioning and during the surrender procedure.
(2) If the person whose surrender is required does not engage a defence attorney, or of he states that he will not engage a defence attorney, a defence attorney shall be appointed ex officio in accordance with the Criminal Procedure Code.
PART FIVE – ARREST, CUSTODY AND SURRENDER
Article 26
(Investigation Procedure)
(1) The Prosecutor of the Prosecutor’s Office of BiH before whom the person has been brought, shall instruct the person on his rights in accordance with the provisions of the Criminal Procedure Code. Upon learning that this is the person whose deprivation of liberty, provisional deprivation of liberty or surrender is requested by the International Criminal Court, the Prosecutor shall inform the person of the request and charges against him as well as question about the above charges.
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LAW ON PROTECTION OF WITNESSES UNDER THREAT AND VULNERABLE WITNESSES
CHAPTER II - WITNESS PROTECTION MEASURES
Article 12 - Limitation of the right of an accused and his defense attorney to inspect files and documentation
(1) In exceptional circumstances, if revealing some or all of the personal details of a witness or other details would contribute to identifying a witness, and would seriously endanger the witness under threat, the preliminary proceedings judge may, upon the motion of the Prosecutor, decide that some or all of the personal details of a witness, may continue to be kept confidential after the indictment is issued.
(2) The prosecutor shall immediately notify the accused and his defense attorney of the submission of the motion referred to in paragraph 1 of this Article.
(3) If possible, the preliminary proceedings judge shall hear the accused and his defense attorney prior to issuing the decision referred to in paragraph 1 of this Article. The decision of the preliminary proceedings judge must be issued within 72 hours following the day the motion is received.
(4) No appeal shall be permissible against the decision referred to in paragraph 1 of this Article.
(5) If the preliminary proceedings judge was unable to hear the accused and his defense attorney prior to the decision referred to in paragraph 1 of this Article, the Court shall hear them immediately upon receiving the indictment.
(6) The Court may revoke the decision referred to in paragraph 1 of this Article, either ex officio or upon the motion of the accused or his defense attorney.
(7) Upon the motion of the Prosecutor, the Court shall revoke the decision referred to in paragraph 1 of this Article.
(8) The Court shall at all stages in the proceedings be mindful of the need to release, as soon as possible, the information to which the decision referred to in paragraph 1 of this Article pertains. Sufficient details shall be released for the defense to prepare for examination of a witness. The information must be released at the latest when the witness testifies at the main trial.
Chapter 17 Crimes Against Humanity and Values Protected by International Law
Article 190
Torture and Other Forms of Cruel and Inhumane Treatment
(1) Official person in the institutions of Bosnia and Herzegovina or any other official person that acts in capacity of official person in the institutions of Bosnia and Herzegovina, who inflicts to another physical or mental pain or serious physical or mental suffering, with an aim to extract information from him/her or another, or extort a confession or with an aim to punish him/her for a crime he/she committed or is a suspect of having committed by himself/herself or another, or who intimidates him or forces for any other reason based on any form of discrimination, on order, incited or with explicit or silent agreement of an official person in the institutions of Bosnia and Herzegovina or any other person that acts in capacity of official person in the institutions of Bosnia and Herzegovina, shall be punished by imprisonment of minimum six years.
(2) Punishment referred to in paragraph (1) of this Article shall apply to any official person in the institutions of Bosnia and Herzegovina or any other person that acts in capacity of official person in the institutions of Bosnia and Herzegovina who orders or incits to commission of a crime or who gives explicit consent or knows and silently agrees with the commission of a crime referred to in paragraph (1) of this Article
1. In respect of an investigation under this Statute, a person:
(a) Shall not be compelled to incriminate himself or herself or to confess guilt;
(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands and speaks, have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.
2. Where there are grounds to believe that a person has committed a crime within the jurisdiction of the Court and that person is about to be questioned either by the Prosecutor, or by national authorities pursuant to a request made under Part 9, that person shall also have the following rights of which he or she shall be informed prior to being questioned:
(a) To be informed, prior to being questioned, that there are grounds to believe that he or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent, without such silence being a consideration in the determination of guilt or innocence;
(c) To have legal assistance of the person's choosing, or, if the person does not have legal assistance, to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by the person in any such case if the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
1. The accused shall be present during the trial.
2. If the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from outside the courtroom, through the use of communications technology, if required. Such measures shall be taken only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such duration as is strictly required.
1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law.
2. The onus is on the Prosecutor to prove the guilt of the accused.
3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.
1. In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of this Statute, to a fair hearing conducted impartially, and to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks;
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with counsel of the accused's choosing in confidence;
(c) To be tried without undue delay;
(d) Subject to article 63, paragraph 2, to be present at the trial, to conduct the defence in person or through legal assistance of the accused's choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute;
(f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;
(g) Not to be compelled to testify or to confess guilt and to remain silent, without such silence being a consideration in the determination of guilt or innocence;
(h) To make an unsworn oral or written statement in his or her defence; and
(i) Not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.
2. In addition to any other disclosure provided for in this Statute, the Prosecutor shall, as soon as practicable, disclose to the defence evidence in the Prosecutor's possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence. In case of doubt as to the application of this paragraph, the Court shall decide.