Forfeiture of assets - national procedures for ICC proceedings

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 2 - SEIZURE OF OBJECTS AND PROPERTY

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.

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.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART THREE – SPECIAL PROCEDURES

CHAPTER XXVIII - PROCEDURE FOR APPLICATION OF SECURITY MEASURES, FORFEITURE OF PROPERTY GAIN AND REVOCATION OF SUSPENDED SENTENCE

Article 391 - Forfeiture of Items

(1) The items that need to be forfeited under the Criminal Code of Bosnia and Herzegovina shall be forfeited also when the criminal proceedings were not completed by a verdict finding the accused guilty, if so required by the interests of general security and ethics, on which A separate decision shall be issued.

The decision referred to in Paragraph 1 of this Article shall be issued by the judge or Panel at the moment when the proceedings are completed or dismissed.

The decision on the forfeiture of items referred to in Paragraph 1 of this Article shall be issued by the judge or Panel if the verdict finding the accused guilty does not include such a decision.

A certified copy of the decision on forfeiture of items shall be delivered to the owner of the items concerned if the owner is known.

The owner of the items may appeal the decision referred to in Paragraphs 1, 2 and 3 of this Article on the ground of the lack of a legal basis for forfeiture of items.

Article 392 - Forfeiture of Property Gain Obtained by Commission of Criminal Offense

The property gain obtained by commission of a criminal offense shall be established in a criminal
procedure ex officio.

The Prosecutor shall be obligated to collect evidence during the procedure and examine the circumstances that are important for the establishment of the property gain obtained by commission of a criminal offense.

If the injured party submitted a claim under property law for repossession of items obtained through a criminal offense, or the amount that is equivalent to the value of such items, the property gain shall be established only in the part that is not included in the claim under property law.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART THREE – SPECIAL PROCEDURES

CHAPTER XXVIII - PROCEDURE FOR APPLICATION OF SECURITY MEASURES, FORFEITURE OF PROPERTY GAIN AND REVOCATION OF SUSPENDED SENTENCE

Article 391 - Forfeiture of Items

(1) The items that need to be forfeited under the Criminal Code of Bosnia and Herzegovina shall be forfeited also when the criminal proceedings were not completed by a verdict finding the accused guilty, if so required by the interests of general security and ethics, on which A separate decision shall be issued.

The decision referred to in Paragraph 1 of this Article shall be issued by the judge or Panel at the moment when the proceedings are completed or dismissed.

The decision on the forfeiture of items referred to in Paragraph 1 of this Article shall be issued by the judge or Panel if the verdict finding the accused guilty does not include such a decision.

A certified copy of the decision on forfeiture of items shall be delivered to the owner of the items concerned if the owner is known.

The owner of the items may appeal the decision referred to in Paragraphs 1, 2 and 3 of this Article on the ground of the lack of a legal basis for forfeiture of items.

Article 392 - Forfeiture of Property Gain Obtained by Commission of Criminal Offense

The property gain obtained by commission of a criminal offense shall be established in a criminal procedure ex officio.

The Prosecutor shall be obligated to collect evidence during the procedure and examine the circumstances that are important for the establishment of the property gain obtained by commission of a criminal offense.

If the injured party submitted a claim under property law for repossession of items obtained through a criminal offense, or the amount that is equivalent to the value of such items, the property gain shall be established only in the part that is not included in the claim under property law.

Article 393 - Procedure for Forfeiture of Property Gain Obtained by Commission of Criminal Offense

When the forfeiture of property gain obtained through a criminal offense is a possibility, the person to whom the property gain is transferred and the representative of the legal person shall be summoned to the main trail for hearing. They shall be warned in the subpoena that the procedure shall be conducted without their presence.

A representative of the legal person shall be heard at the main trial after the accused. The same procedure shall apply to the person to whom the property gain was transferred if that person is not summoned as a witness.

The person to whom the property gain is transferred as well as the representative of legal person shall be authorised to propose evidence in relation to the establishment of property gain and to question the accused, witnesses and expert witnesses upon approval by the judge or the presiding judge.

The exclusion of the public at the main trial shall not refer to the person to whom the property gain is transferred and the representative of the legal person.

If during the main trial the Court establishes that the forfeiture of property gain is a possibility, the Court shall adjourn the main trial and shall summon the person to whom the property gain was transferred, and a representative of the legal person.

Article 394 - Establishment of Property Gain Obtained by Commission of Criminal Offense

The Court shall establish the value of property gain by a free estimate if the establishment would be linked to disproportional difficulties or a significant delay of the procedure.

Article 395 - Temporary Security Measures

When the forfeiture of property gain obtained by commission of criminal offense is a possibility, the Court shall ex officio and under the provisions applicable to the judicial enforcement procedure define temporary security measures. In that case, the provisions of Article 202 of this Code shall apply.

Article 396 - The Contents of the Decision That Pronounces a Measure of Forfeiture of Property Gain

The forfeiture of property gain obtained by commission of criminal offense may be pronounced by Court in a verdict by which the accused is declared guilty, in a ruling on application of a correctional measure and in a proceeding referrer to in Article 389 of this Code.

In the operative part of the verdict or decision, the Court shall indicate what item or amount of money is to be forfeited.

A certified copy of the verdict or the ruling shall also be delivered to the person to whom the property gain is transferred and to the representative of the legal person, if the Court pronounced the forfeiture of property gain from that person.

Article 397 - Request for a Renewed Procedure With Respect to the Measure of Forfeiture of Property Gain

The person referred to in Article 393 of this Code may file a request for a renewed criminal proceeding related to the decision on forfeiture of property gain obtained by commission of criminal offense.

Article 398 - The Appropriate Application of the Provisions Regarding an Appeal

The provisions of Articles 294(2) and (3) and Articles 302 and 317 of this Code shall be applied appropriately in reference to the appeal against the decision on forfeiture of property gain.

Article 399 - The Appropriate Application of Other Provisions of the Law

If the provisions of this Chapter do not stipulate otherwise, the procedure for application of security measures or forfeiture of property gain obtained by commission of criminal offense, other relevant provisions of this Code shall be applied appropriately.

Article 400 - Procedure to Revoke Suspended Sentence

When a suspended conviction provides that a sentence will be executed if a convicted persons fails to return property gain obtained by commission of criminal offense, to compensate a damage or to meet other obligations, and the convicted person has failed to do so, the Court shall conduct proceedings to revoke the suspended sentence at the proposal of the Prosecutor or ex officio.

The Court shall be obligated to schedule a hearing in order to establish facts, to which it shall summon the Prosecutor, convicted person and injured party.

If the Court establishes that the convicted person failed to meet the obligations ordered in the verdict, it shall issue a verdict revoking the suspended sentence and order the execution of the sentence, or extend the deadline for compliance with the obligation, or replace the obligation with another corresponding obligation, or relieve the convicted person of complying with the obligation. If the Court finds that there are no grounds to take any of the decisions, it shall issue a procedural decision revoking the suspended sentence.

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