Spans in 'Bosnia - Criminal Procedure Code' tagged with 'Fair trial standards'

'Fair trial standards' in document 'Bosnia - Criminal Procedure Code'

Jump to:

More information about the keyword 'Fair trial standards'
More information about the document 'Bosnia - Criminal Procedure Code'
The relevant provisions of implementing legislation: [1] [2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25]
The Relevant Provisions of the Rome Statute

RELEVANT SECTIONS OF THE IMPLEMENTING LEGISLATION

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 3 - Presumption of Innocence and In Dubio Pro Reo

A person shall be considered innocent of a crime until his/her guilt has been established by a final verdict.

A doubt with respect to the existence of facts constituting elements of a criminal offense or on which the application of certain provisions of criminal legislation depends shall be decided by the Court verdict in the manner more favorable for the accused.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 7 - Right to a Defense

The suspect or accused has a right to present his own defense or to defend himself with the professional assistance of a defense attorney of his own choice.

If the suspect or accused does not retain a defense attorney, a defense attorney shall be appointed to him as stipulated by this Code.

The suspect or accused must be given sufficient time to prepare a defense.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 8 - Language and Alphabet

Parties, witnesses and other participants in the proceedings shall have the right to use their native language or a language they understand in the course of the proceedings. If such a participant does not understand one of the official languages of Bosnia and Herzegovina, provisions shall be made for oral interpretation of the testimony of that person and other persons, as well as the interpretation of official documents and other written pieces of evidence.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 5 -Rights of a Person Deprived of Liberty

A person deprived of liberty must, in his native tongue or any other language that he understands, be immediately informed about the reasons for his apprehension and instructed on the fact that he is not bound to make a statement or answer questions, on his right to a defense attorney of his own choice as well as on the right that his family, consular officer of the foreign state whose citizen he is, or another person designated by him be informed about his deprivation of liberty.

A person deprived of liberty shall be appointed a defense attorney upon his request if according to his financial status he cannot bear the expenses of his defense.

Article 6 - Rights of a Suspect or Accused

The suspect, at his first questioning, must be informed about the offense that he is charged with and grounds for suspicion against him and that his statement may be used as evidence in further proceedings.

The suspect or accused must be provided with an opportunity to make a statement regarding all the facts and evidence incriminating him and to present all facts and evidence in his favor.

The suspect or accused shall not be bound to present his defense or to answer questions posed to him.

Article 7 - Right to a Defense

The suspect or accused has a right to present his own defense or to defend himself with the professional assistance of a defense attorney of his own choice.

If the suspect or accused does not retain a defense attorney, a defense attorney shall be appointed to him as stipulated by this Code.

The suspect or accused must be given sufficient time to prepare a defense.

Article 8 - Language and Alphabet

The official languages of Bosnia and Herzegovina - the Bosnian language, the Croat language and the Serb language and both alphabets of Latin and Cyrillic, shall be in equal official use in criminal proceedings.

Parties, witnesses and other participants in the proceedings shall have the right to use their native language or a language they understand in the course of the proceedings. If such a participant does not understand one of the official languages of Bosnia and Herzegovina, provisions shall be made for oral interpretation of the testimony of that person and other persons, as well as the interpretation of official documents and other written pieces of evidence.

Any above-referenced individual shall be informed of the rights referred to in Paragraph 2 of this Article prior to the first questioning and may waive such right if he knows the language in which the proceedings are being conducted. A note shall be made in the record that the participant has been so informed, and his response thereto shall also be noted.

Interpretation shall be performed by a Court interpreter.

Article 12 - Instruction on Rights

The Court, Prosecutor and other bodies participating in the proceeding shall instruct the suspect or the accused or any other participant in the criminal proceedings, who could, out of ignorance, fail to carry out a certain action in the proceeding or fail to exercise his rights, of his rights under this Code and the consequences of such failure to act.

Article 13 - Right to Trial without Delay

The suspect or accused shall be entitled to be brought before the Court within the shortest reasonable time period and to be tried without delay.

The Court shall also be bound to conduct the proceedings without delay and to prevent any abuse of the rights of any participant in the criminal proceedings.

The duration of custody must be reduced to the shortest necessary time.

Article 14 - Equality of Arms

(1) The Court shall treat the parties and the defence attorney equally and shall provide each with equal opportunities to access evidence and to present evidence at the main trial.

The Court, the Prosecutor and other bodies participating in the proceedings are bound to study and establish with equal attention facts that are exculpatory as well as inculpatory for the suspect or the accused.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 18 - Consequences of Initiation of the Proceedings

When it is prescribed that the initiation of criminal proceedings entails the restriction of certain rights, such restrictions, unless this Code specifies otherwise, shall commence upon the confirmation of the indictment. As for the criminal offenses for which the principal penalty prescribed is a fine or imprisonment up to five (5) years, those consequences shall commence as of the day the verdict of guilty is rendered, regardless of whether the verdict has become final.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER I - BASIC PRINCIPLES

Article 10 - Unlawful Evidence

It shall be forbidden to extort a confession or any other statement from the suspect, the accused or any other participant in the proceedings.

The Court shall not base its decision on evidence obtained through violation of human rights and freedoms prescribed by the Constitution and international treaties ratified by Bosnia and Herzegovina, or on evidence obtained through essential violation of this Code.

The Court may not base its decision on evidence derived from the evidence referred to in Paragraph 2 of this Article.

Article 11 - Right to Compensation and Rehabilitation

A person who has been unjustifiably convicted of a criminal offense or deprived of liberty without valid grounds shall have the right to rehabilitation, indemnification from within the budget, as well as other rights as stipulated by law.

Article 12 - Instruction on Rights

The Court, Prosecutor and other bodies participating in the proceeding shall instruct the suspect or the accused or any other participant in the criminal proceedings, who could, out of ignorance, fail to carry out a certain action in the proceeding or fail to exercise his rights, of his rights under this Code and the consequences of such failure to act.

Article 13 - Right to Trial without Delay

The suspect or accused shall be entitled to be brought before the Court within the shortest reasonable time period and to be tried without delay.

The Court shall also be bound to conduct the proceedings without delay and to prevent any abuse of the rights of any participant in the criminal proceedings.

The duration of custody must be reduced to the shortest necessary time.

Article 14 - Equality of Arms

(1) The Court shall treat the parties and the defence attorney equally and shall provide each with equal opportunities to access evidence and to present evidence at the main trial.

The Court, the Prosecutor and other bodies participating in the proceedings are bound to study and establish with equal attention facts that are exculpatory as well as inculpatory for the suspect or the accused.

Article 15 - Free Evaluation of Evidence

The right of the Court, Prosecutor and other bodies participating in the criminal proceedings to evaluate the existence or non-existence of facts shall not be related or limited to special formal evidentiary rules.

Article 16 - Accusatory Principle

Criminal proceedings may only be initiated and conducted upon the motion of the Prosecutor.

Article 17 - Principle of Legality of Prosecution

The Prosecutor shall initiate prosecution if there is evidence that a criminal offense has been committed unless otherwise prescribed by this Code.

Article 18 - Consequences of Initiation of the Proceedings

When it is prescribed that the initiation of criminal proceedings entails the restriction of certain rights, such restrictions, unless this Code specifies otherwise, shall commence upon the confirmation of the indictment. As for the criminal offenses for which the principal penalty prescribed is a fine or imprisonment up to five (5) years, those consequences shall commence as of the day the verdict of guilty is rendered, regardless of whether the verdict has become final.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER V - DISQUALIFICATION

Article 29 - Reasons for Disqualification

A judge cannot perform his duties as judge if:

he is personally injured by the offense;

if the suspect or accused, his defense attorney, the Prosecutor, the injured party, his legal representative or power of attorney is his spouse or extramarital partner or direct blood relative to any degree whatsoever, and in a lateral line to the fourth degree, or relative by marriage to the second degree;

if he is a guardian, ward, adoptive parent, adopted child, foster parent or foster child with respect to the suspect or accused, his defense attorney, the Prosecutor or the injured party;

if he has participated in the same case as the preliminary proceeding judge or preliminary hearing judge or if he participated in the proceedings as prosecutor, defense attorney, his legal representative or power of attorney of the injured party or if he was heard as a witness or expert witness;

if, in the same case, he participated in rendering a decision contested by a legal remedy;

if circumstances exist that raise a reasonable suspicion as to his impartiality.

Article 30 - Disqualification upon the Petition of the Parties or Defence Attorney

The parties and the defense attorney may seek disqualification of the President of the Court and of the judge.

The petition referred to in Paragraph 1 of this Article may be filed before the beginning of the main trial, and if a reason for disqualification referred to in Article 29 subparagraphs a) through e) of this Code has been learned of subsequently, the petition shall be filed as soon as the reason has become known.

The parties and defense attorney may file a petition for disqualification of a judge of the Panel of the Appellate Division in the appeal or in an answer to the appeal.

The parties or the defense attorney may seek to disqualify only a particular judge acting in the case.

In the petition, a party or defense attorney shall set forth the facts and circumstances justifying disqualification. The reasons stated in a previous petition for disqualification that was refused may not be included in the petition for disqualification.

Article 31 - Disqualification Procedure

As soon as a judge learns of any of the reasons for his disqualification referred to in Article 29 subparagraphs a) to e) of this Code, he shall be bound to interrupt any work on the case and inform the President of the Court. If the judge believes that circumstances referred to in Article 29 Subparagraph f) exist, he shall inform the President of the Court accordingly.

The Court in plenary session shall decide on disqualification and replacement in the case referred to in Paragraph 1 of this Article as well as in the case of disqualification of the President of the Court.

Article 32 - Decision on the Petition for Disqualification

The Court in plenary session shall decide the petition for disqualification referred to in Article 30 of this Code. Before rendering a decision on disqualification, a statement shall be taken from the judge or President of the Court and if required other investigations shall be conducted.

No appeal shall be permissible against a decision upholding or rejecting the petition for disqualification.

If the petition for disqualification referred to in Article 29 Subparagraph f) of this Code was submitted after the beginning of the main trial or if actions were taken contrary to the provision of Article 30 (4) or (5) of this Code, the petition shall be rejected in whole or in part. The decision rejecting the petition shall be issued by the Panel. The judge whose disqualification is required may not participate in the issuance of that decision. No appeal shall be permissible against the decision rejecting the petition.

Article 33 - Validity of Actions Taken after Filing of the Petition for Disqualification

When a judge learns that a petition has been filed for his disqualification, he shall be bound immediately to cease all work on the case and, if the issue is disqualification referred to in Article 29 Subparagraph f) of this Code, until issuance of a decision upon the petition he may take only those actions whose delay poses a risk.

Article 34 - Disqualification of the Prosecutor and Other Participants in the Proceedings

The provisions on disqualification of a judge shall accordingly be applied to the Prosecutor and persons authorized to represent the Prosecutor in the proceedings, record keepers, court interpreters and specialists as well as to expert witnesses, unless otherwise regulated.

The Prosecutor shall decide the disqualification of persons who pursuant to the law are authorized to represent him in criminal proceedings. The Collegium of the Prosecutor’s Office shall decide the disqualification of the Prosecutor.

The Panel, Presiding judge or judge, and, before the indictment is filed, the Prosecutor, shall decide on the disqualification of record keepers, court interpreters and specialists as well as expert witnesses.

When authorized officials take investigative actions pursuant to this Code the Prosecutor shall decide their disqualification. An authorized official taking the actions shall decide the disqualification of the record keeper if the latter participates in such actions.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VII - DEFENSE ATTORNEY

Article 39- Right to a Defense Attorney

The suspect or accused shall be entitled to have a defense attorney throughout the course of the criminal proceedings.

Only a lawyer who fulfils the conditions set forth in the Law on the Court of Bosnia and Herzegovina may be engaged as a defense attorney.

If the suspect or accused does not himself hire a defense attorney, a defense attorney may be engaged for him by his legal representatives, spouse or extramarital partner, blood relatives in a direct line to any degree whatsoever, adoptive parents, adopted children, brothers, sisters or foster parents, if the suspect or the accused does not explicitly oppose it.

The defense attorney must submit his entry for appearance on the occasion of taking his first action in the proceedings.

Article 40 - Number of Defense Attorneys

Several suspects or accused may have one common defense attorney unless the attorney has been appointed by the Court in accordance with Article 45 and Article 46 of this Code.

A suspect or accused may have more than one defense attorneys, but only one of them shall have the status of primary defense attorney, and the suspect or accused shall decide which one shall it be. It shall be considered that the defense is represented when one of the defense attorneys is participating in the proceedings.

Article 41 - Persons who May Not Act as Defense Attorneys

An injured party, spouse or extramarital partner of the injured party or of the Prosecutor, or their blood relative in a direct line to whatever degree, in a lateral line to the fourth degree, or their relative by marriage to the second degree may not act as a defense attorney.

A person who has been duly summoned to the main trial as a witness may not act as a defense attorney.

A person who has acted as the judge or the Prosecutor in the instant case may not act as a defense attorney in the such case.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VII - DEFENSE ATTORNEY

Article 42 - Disqualification of a Defense Attorney

Grounds for disqualification shall also exist for a defense attorney misusing a contact with the suspect or accused in custody to the effect that the suspect or accused commits a criminal offense or threatens the security of a prison where custody takes place.

In the event referred to in Paragraph 1 of this Article, the suspect or accused shall be requested to hire another defense attorney within given deadline.

If the suspect or the accused in cases of mandatory defense fails to retain a defense attorney or the defense attorney fails to be retained by the persons referred to in Article 39(3) of this Code, the procedure provided under Article 45(4) of this Code shall be followed.

In cases referred to in Paragraphs 2 and 3 of this Article, the new defense attorney shall be given enough time to prepare his defense for the suspect or the accused.

During the disqualification, the defense attorney shall not be allowed to defend the suspect or the accused in another proceeding. The defense attorney shall not be allowed to defend other suspects or accused persons in the same or in separated proceedings.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VIII - ACTIONS AIMED AT OBTAINING EVIDENCE

Section 4 - QUESTIONING OF THE SUSPECT

Article 77 - Basic Rules on Questioning

The suspect under investigation shall be questioned by the Prosecutor or an authorised official.

The questioning of the suspect must be done with full respect to the personal integrity of the suspect.

During questioning of the suspect it shall be forbidden to use force, threat, fraud, narcotics or other means that may affect the freedom of decision-making and expression of will while giving a statement or confession.

If actions were taken contrary to Paragraph (2) of this Article, the decision of the Court may not be based on the statement of the suspect.

Article 78 - Instructing the Suspect on His Rights

At the beginning of the questioning, the suspect shall be informed of the charge against him, 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 favor, 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.

Article 79 - Manner of Questioning of the Suspect

A record shall be made on every questioning of the suspect. The important parts of the statement shall be entered in the record word for word. After the record has been completed, the record shall be read to the suspect and the copy of it shall be given to him.

As a rule, a questioning of the suspect shall be audio or video recorded under the following conditions:
the suspect shall be informed in the language he speaks and shall understand that the questioning is being audio or video recorded;

if the questioning is adjourned, the reason and time of the adjournment shall be indicated in the record, as well as the time of resumption and the completion of the hearing;

at the end of the questioning, the suspect shall be allowed to explain whatever he has said and to add whatever he wants;

the tape record thus made shall be transcribed as soon as feasible after the completion of the questioning, and a copy of the transcript shall be handed to the suspect along with a copy of the tape recording, or if a device for making several records simultaneously was used, he shall be handed one of the originals;

once a copy of the original tape has been made for the purpose of making a transcript, the original tape or one of the originals shall be sealed off in the presence of the suspect and authenticated by the respective signatures of the authorized official and the suspect.

Article 80 - Questioning through an Interpreter

The suspect shall be questioned through an interpreter in cases referred to in Article 87 of this Code .

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER VIII - ACTIONS AIMED AT OBTAINING EVIDENCE

Section 5 - EXAMINATION OF WITNESSES

Article 85 - Method of Examination, Confrontation and Identification

Witnesses shall be examined individually and in the absence of other witnesses.

At all times during the proceedings, witnesses may be confronted with other witnesses or with the suspect or accused.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER X - MEASURES TO GUARANTEE THE PRESENCE OF A SUSPECT OR ACCUSED AND SUCCESSFUL CONDUCT OF CRIMINAL PROCEEDINGS

Section 7 - EXECUTION OF CUSTODY AND PROCEDURE WITH PERSONS TAKEN INTO CUSTODY

Article 148 - Filing and Emendation of Submissions

Bills of indictment, motions, legal remedies and other statements and communications shall be submitted in writing or given orally for entry into the minutes.

A submission referred to in Paragraph 1 of this Article must be comprehensible and must contain all that is necessary in order to be acted upon.

Unless otherwise determined by this Code, the person filing a submission that is incomprehensible or does not contain all that is necessary for action on the submission, shall be summoned by the Court to correct or supplement the submission; should he not do so within a specified period, the Court shall reject the submission.

The summons to correct or to supplement the submission shall warn the person who filed the submission about the consequences of his failure to correct or to supplement it.

Article 149 - Delivery of the Submission to the Opposing Party

Submissions that under this Code must be delivered to the opposing party in the proceedings shall be delivered to the Court in a sufficient number of copies for the Court and the other party.
If the submissions referred to in Paragraph 1 of this Article have not been filed with the Court in a sufficient number of copies, the Court shall summon the submitting party to file a sufficient number of copies within a specified period of time. If the submitting party fails to act as ordered by the Court, the Court shall make the necessary number of copies at the expense of the submitting party.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER XII – DEADLINES

Article 158 - Deadlines for Filing of Submissions

(1) The deadlines provided by this Code may not be extended unless explicitly allowed by this Code. If a deadline specified by this Code to protect the right to a defense and other process rights of the suspect or the accused, that deadline may be shortened at the request of the suspect or the accused, in writing, or verbally for the record before the Court.

When a statement must be made within a specified period of time, it shall be assumed that it has been made within the specified period of time if it has been given to the person authorized to receive it before the expiration of that period.

When a statement has been sent by registered mail, telegraph or other means of telecommunication, the date of mailing or sending shall be taken as the date of delivery to the person to whom it has been sent.

The suspect or the accused who is in pretrial custody may also make a time- limited statement for the record of the Court or deliver it to the administration of the prison, and a person who is serving a prison sentence or who is an inmate in some other institution because of a security measure or correctional measure may deliver such a statement to the administration of the institution in which he is an inmate. The day when the record was made or when the statement was delivered to the administration of the institution as applicable shall be taken as the date of delivery to the relevant receiving authority.

If, due to ignorance or an obvious mistake of the sender, a submission subject to a deadline has been delivered or sent to a Court with no jurisdiction in the matter prior to the expiration of the deadline, and the Court receives it after the expiration of the deadline, it shall be considered as submitted in time.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART ONE - BASIC PROVISIONS

CHAPTER XVIII - MISCELLANEOUS PROVISIONS

Article 211 - Fines in Case of Prolonging Criminal Proceedings

In the course of proceedings, the Court may impose a fine in an amount up to 5.000 KM upon the Prosecutor, defense attorney, power of attorney or legal representative and an injured party if actions of the Prosecutor, defense attorney, or power of attorney or legal representative or the injured party are obviously aimed at prolonging the criminal proceedings.

The High Judicial and Prosecutorial Council shall be informed of the fining of the Prosecutor, and the Bar Association shall be informed of the fining of the defense attorney.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 1 – PUBLIC NATURE OF THE MAIN TRIAL

Article 236 - Persons to Whom Exclusion of the Public Is Not Applicable

Exclusion of the public shall not include parties, the defense attorney, the injured party, the legal representatives and the power of attorney.

The judge or the Panel of judges may allow certain officials, scientists and public officials to be present at the main trial from which the public is excluded, and the judge or the Panel of judges, at the request of the accused, may allow the presence also to the accused’s spouse, or his extramarital partner and his close relatives.

The judge or the Panel of judges shall warn persons attending the main trial closed to public that they must keep in secret everything they learn at the main trial and shall warn them that it is a criminal offense to disclose such information.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 2 – MAIN TRIAL MANAGEMENT

Article 242 - Penalties for Disruption of Order

The judge or the presiding judge may order that the accused be removed from the courtroom for a certain period if the accused persists in disruptive conduct after being warned that such conduct may result in his removal from the courtroom. The judge or the presiding judge may continue the proceedings during this period if the accused is represented by the defense attorney.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 3 – PREREQUISITES FOR HOLDING THE MAIN TRIAL

Article 247 - Ban of Trial in Case of Absentia

An accused shall not be tried in absentia.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 6 – COMMENCEMENT OF THE MAIN TRIAL

Article 259 - Instructions to the Accused

(1) The judge or the presiding judge shall warn the accused to carefully follow the course of the main trial and shall instruct him that he may present facts and propose evidence in his favor, that he may question codefendants, witnesses and experts and that he may offer explanations regarding their testimony.

(2) The judge or the presiding judge shall advise the accused that he may give a statement in the capacity of a witness during the evidentiary proceedings, and if he decides to give such a statement, he shall be directly- and cross-examined as provided for in Article 262 of this Code, i.e. cautioned and instructed as provided for in Article 86 of this Code. In that case, the accused shall not take an oath or affirmation as a witness. The Court shall give the accused the opportunity to consult about this right with his defense attorney beforehand, and if he does not have a defense attorney, the Court shall carefully assess whether he needs a defense attorney.

Article 260 - Reading the Indictment and Opening Arguments

The main trial shall commence by reading the indictment. The indictment shall be read by the Prosecutor.

After the indictment has been read, the judge or the presiding judge shall ask the accused whether he has understood the charges. If the judge or the presiding judge finds that the accused has not understood the charges, the judge or the presiding judge shall summarize the content of the indictment in a manner understandable to the accused. The Prosecutor shall then briefly state the evidence he will rely upon in his case.

The accused or his defense attorney may then present a summary of the defense plan.

Article 262 - Direct Examination, Cross-examination and Re-direct Examination of Witnesses

Direct examination, cross -examination and redirect examination shall always be permitted. The party who called a witness shall directly examine the witness in question, but the judge or the presiding judge and members of the Panel may at any stage of the examination ask the witness appropriate questions. Questions on cross-examination shall be limited and shall relate to the questions asked during the direct examination and to the questions in support of the statements made by the party which is cross-examining that witness. Questions on redirect examination shall be limited and shall relate to questions asked during cross-examination. After examination of the witness, the judge or the presiding judge and members of the Panel may question the witness.

Leading questions shall not be used during the direct examination except if there is a need to clarify the witness’s testimony. As a rule, leading questions shall be allowed only during the cross-examination. When a party calls the witnesses of the adversarial party or when a witness is hostile or uncooperative, the judge or the presiding judge may at his own discretion allow the use of leading questions.

The judge or the presiding judge shall exercise an appropriate control over the manner and order of the examination of witnesses and the presentation of evidence so that the examination of and presentation of evidence is effective to ascertain the truth, to avoid loss of time and to protect the witnesses from harassment and confusion.

During the presentation of evidence referred to in Article 261(2)(e) of this Code, the Court shall question the witness and then allow the parties and the defense attorney to pose questions to the witness.

CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA

PART TWO - COURSE OF THE PROCEEDINGS

CHAPTER XXI - THE MAIN TRIAL

Section 7 – EVIDENTIARY PROCEDURE

Article 275 - Amendment of the Indictment

If the Prosecutor evaluates that the presented evidence indicates a change of the facts presented in the indictment, the Prosecutor may amend the indictment at the main trial. The main trial may be postponed in order to give adequate time for preparation of the defense. In this case, the indictment shall not be confirmed.

RELEVANT ROME STATUTE PROVISIONS

Article 55
Rights of persons during an investigation
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.

Article 63
Trial in the presence of the accused
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.

Article 66
Presumption of innocence
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.

Article 67
Rights of the accused
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.