EXPERTISE ON THE DRAFT CRIMINAL CODE OF BOSNIA AND HERZEGOVINA by Alberto Cadoppi (July, 2002)

Parma, 30 July 2002

EXPERTISE ON THE

DRAFT CRIMINAL CODE

OF BOSNIA AND HERZEGOVINA

(requested by the Council of Europe)

by

Professor dr. Alberto CADOPPI

Professor of Criminal Law and Comparative Criminal Law

University of Parma, Italy

Summary of the Council of Europe Expert Opinions on the Draft Criminal Code of Bosnia and Herzegovina (PCRED/DGI/EXP (2002) 35) 25 September 2002

Summary

of the Council of Europe Expert Opinions

on the Draft Criminal Code of Bosnia and Herzegovina (PCRED/DGI/EXP (2002) 35)

 

 25 September 2002

(2002) Opinion on the Draft Criminal Procedure Code of Bosnia and Herzegovina by Giuseppe di Gennaro former President of the Criminal Section of the Italian Court of Cassation

Opinion on the Draft Criminal Procedure Code

of Bosnia and Herzegovina

by Giuseppe di Gennaro

former President of the Criminal Section

of the Italian Court of Cassation (2002)

OSCE mission report (July, 2003) on the first application of the witness protection legislation RS

Mission Monitors First Application of RS Law on Witness Protection

On 1 July, the Mission monitored a rape case before the Vlasenica Basic Court involving a 16-year-old victim.  On the date of the trial, the RS Law on Protection of Witnesses in Criminal Proceedings also officially entered into force.  The court applied ex officio Article 10(1) of the Law on Protection of Witnesses and removed the accused from the courtroom while the victim was questioned.  In accordance with the law, the defence counsel remained in the courtroom.

Mission monitors observed that the Court was not technically prepared for the application of the Law on Protection of Witnesses.  While the Law states the accused shall be permitted to follow the testimony simultaneously through audio-video means or be presented with a recording, the Court did not have any equipment with which to record the examination of the victim.  Instead, the Presiding Judge in the case provided the accused with a summary of the victim’s testimony.        

The European Court of Human Rights has found that, in cases involving testimony from protected witnesses, fair trial guarantees under Article 6 of the ECHR require that there be adequate safeguards in place to ensure a fair procedure.  By not having sufficient technical capacity, the procedural protections provided for defendants in the relevant Witness Protection Laws are undermined thereby jeopardising successful prosecutions.  This will be in particular relevance in relation to War Crimes and Organised Crime cases where the effective and correct application of witness protection provisions will be vital for securing witness testimony.

OSCE weekly mission report re new criminal legislation (7 - 13 July, 2003)

BiH Federation (FBiH) Parliament Adopts New Criminal Legislation

On 9 July, the FBiH Parliament adopted the FBiH Criminal Code and the Criminal Procedure Code.  The adoption of these two laws, which are harmonized withBiH and Republika Srpska (RS) criminal legislation, brings the country closer to a common BiH criminal policy aimed at protecting society against corruption and crime.  The reform of BiH criminal legislation represents a critical element of the High Representative’s “Jobs and Justice” agenda, adopted at the Peace Implementation Council Steering Board meeting on 23 September 2002.  

The newly adopted laws create a new relationship between prosecutors and defendants and allow for more efficient investigations.  Along with the criminal codes, the FBiH House of Peoples accepted two conclusions: 1) FBiH Parliament should instruct the team monitoring the enforcement of criminal justice about the necessity of reassessing the authority of prosecutors in giving immunity to witnesses; and 2) FBiH Government must involve parliamentarians in the preparation of legal reforms, in order to ensure that long and unnecessary procedures are avoided.  Implementation of these laws in FBiH will begin on the 1^st of August, whilst in the RS, the Codes entered into force on 1 July.

BiH Courts Express Concern Regarding the Implementation of New Criminal Procedure Codes

The Mission held a number of meetings with judges and prosecutors in Široki Brijeg (FBiH) and Trebinje (RS) this week in order to discuss court readiness to implement the new Entity Criminal Procedure Codes and Criminal Codes.  The new codes are set to come into force on 1 August in the Federation.  In the RS, they entered into force on 1 July.  Judges and prosecutors said that the judiciary and prosecutors are currently ill-equipped to deal with the substantial changes being brought about by the introduction of the new Codes, and opined that have received insufficient training.

The Mission has already noted problems with the technical capacity of the courts to implement the new changes (Mission Weekly Report No 27/2003).  In the light of the need to remedy these problems, the Mission will raise them at the next meeting of the Rule of Law Task Force and of the Criminal Codes Implementation Assessment Team (CCIAT).  The CCIAT, established by the State Ministry of Justice and composed of local and international actors including OSCE, is intended to act as the chief co-ordination body for assessing the implementation process and for formulating policy and recommendations on legal amendments and implementation practices.

The report on the second joint meeting of the Criminal Codes Implementation and Assessment Team (CCIAT) held on 16.09.03.