CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART THREE – SPECIAL PROCEDURES

CHAPTER XXXII - TRANSITIONAL AND FINAL PROVISIONS

Article 449 - Deciding on Cases Pending before Other Courts and Prosecutor’s Offices

Cases falling within the competence of the Court which are pending before other courts or prosecutor’s offices and in which the indictment is not legally effective or confirmed, shall be finalized by the courts which have territorial jurisdiction unless the Court, ex officio or upon the reasoned proposal of the parties or defense attorney, decide to take such a case while taking into account the gravity of the criminal offence, the capacity of the perpetrator and other circumstances of importance in assessing the complexity of the case.

In cases referred to in Paragraph 2 of this Article, after decision of the Court to take over the case, the criminal proceedings shall be continued in accordance with this Code.

Article 17
Issues of admissibility
1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) The case is not of sufficient gravity to justify further action by the Court.
2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:
(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.
3. In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.