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 1 - GENERAL PROVISIONS

Article 123 - Types of Measures

Measures that may be taken against the accused in order to secure his presence and successful conduct of the criminal proceedings shall be: summons, apprehension, prohibiting measures, bail and custody.

When deciding which of the above mentioned measures is to be applied, the competent body shall meet certain conditions for application of the measures, attempting not to apply more severe measure if the same effect can be achieved by application of a less severe measure.

These measures shall also be cancelled ex officio immediately after the reasons for their application cease to exist, or they shall be replaced with a less severe measure when the conditions for it are created.

The provision of this Chapter shall be applied to the suspect as well, as appropriate.

Section 2 – SUMMONS

Article 124 - Service and Contents of Summons

The presence of the suspect for the execution of an action in the criminal proceedings shall be ensured through the summons.

A summons shall be served by delivering a sealed written summons containing the following: the name of the body issuing the summons, the first and last name of the accused, the criminal offense with which he is charged, the place where the accused is to appear, the date and hour when he is to appear, an indication that he is being summoned as accused, and a warning that he will be apprehended should he fail to appear, that he must immediately inform the Prosecutor or the Court of the change of the address and of the intention to change the residence, the official stamp, and the signature of the Prosecutor or the judge issuing the summons.

The first time an accused is summoned, he shall be instructed of his right to engage a defense attorney who may be present at his questioning.

The first time a suspect is summoned, in the summons he shall be informed about his rights as specified in Article 78 of this Code. Before the issuance of the indictment, the suspect shall be summoned by the Prosecutor.

If the accused is unable to answer the summons because of illness or other impediment that cannot be removed, he shall be examined where he is or shall be provided transportation to the Courthouse or any other place where the proceeding is to be conducted.

Section 3 - APPREHENSION

Article 125 - Order for Apprehension

The Court may order the accused to be apprehended if a decision on custody has been issued or if the accused duly summoned has failed to appear without justification, or if the summons could not have been orderly serviced and the circumstances obviously indicate that the accused is evading service of summons.

Exceptionally, in emergency cases, the order referred to in Paragraph 1 of this Article may be issued by the Prosecutor if the duly summoned suspect has without justification failed to appear.

The order for apprehension shall be executed by the judicial police.

The order shall be given in writing. The order shall contain: the name and last name of the accused who is to be apprehended, the criminal offense with which he is charged, the specific citation of the relevant criminal provisions, the grounds for ordering the person to be apprehended, the official stamp and the signature of the judge ordering the apprehension.

The person authorized to execute the order shall hand the order to the accused and instruct the accused to follow him. If the accused refuses, he shall be apprehended by force.

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 5 – BAIL

Article 127 - Conditions for Posting Bail

An accused who is to be placed in custody or has already been placed in custody only for a flight risk may be allowed to remain at liberty or may be released if he personally or someone else on his behalf furnishes a surety that he will not flee before the end of the criminal proceedings and the accused himself pledges that he will not hide and will not leave his residence without permission.

Article 128 - The Contents of Bail

Bail shall always be expressed as an amount of money that is set on the basis of the seriousness of the criminal offense, the personal and family circumstances of the accused, and the property situation of the person posting bail.

Bail consists of depositing money, securities, valuables or other personal property of a large value that is easily marketable and easily maintained, or of placing a mortgage for the amount of bail on real estate of the person posting bail, or of a personal pledge of one or more individuals that they will pay the amount of bail that has been set should the accused flee.

A person posting a bail shall submit evidence on his financial situation, origin of the property and ownership of the property or possession of the property posted as bail.

If the accused flees, a decision shall be issued ordering that the amount posted as bail shall be credited to the Budget of Bosnia and Herzegovina.

Article 129 - Cancellation of Bail

Notwithstanding the bail posted, the accused shall be placed in custody if without justification he fails to appear when duly summoned, if he is preparing to flee or if there occurs another legal ground for his custody after he has been released.

In a case referred to in Paragraph 1 of this Article, the bail bond shall be cancelled. The money, valuables, securities or other personal property deposited shall be returned, and the mortgage shall be removed. The same procedure shall be followed when the criminal proceedings terminate with a legally binding decision to dismiss proceedings or with a verdict.

If a prison sentence is pronounced in the verdict, the bail bond shall be cancelled only when the convicted person begins to serve the sentence.

Article 130 - Decision on Bail

In the course of an investigation, a decision on bail and the cancellation of the bail shall be issued by the preliminary proceedings judge and after the issuance of an indictment – by a preliminary hearing judge and after the case has been submitted to the judge or the Panel for the purpose of scheduling the main trial – by that judge or the presiding judge. A decision setting the bail and a decision cancelling the bail shall be taken following the hearing of the Prosecutor.

Section 6 - PRE-TRIAL CUSTODY

Article 131 - General Provisions

Custody may be ordered or extended only under the conditions prescribed by this Code and only if the same purpose cannot be achieved by another measure.

(1) Custody shall be ordered or extended by a decision of the Court issued on the motion of the Prosecutor after the Court has heard the suspect or the accused regarding the circumstances surrounding the grounds for proposed custody, except in the case prescribed by Article 132(1) a) of this Code.

(2) The Prosecutor shall submit to the Court a reasoned proposal to extend custody no later than five days before the expiration of the deadline set in the decision on ordering custody. The Court shall forward the proposal to the suspect or the accused and his defence attorney without delay.

The duration of custody must be reduced to the shortest time necessary. It is the duty of all authorities participating in the criminal proceedings and of the agencies extending them legal aid to proceed with particular urgency if the suspect or the accused is in custody.

Throughout the proceedings, custody shall be terminated as soon as the grounds for which it was ordered cease to exist, and the person in custody shall be released immediately. Upon proposal of the accused or defence attorney for termination of custody that is based on new facts, the Court shall hold a hearing or panel session, of which the parties and defence attorney shall be notified. The failure of duly summoned parties or the defence attorney to appear shall not prevent the hearing or panel session from being held. An appeal against the decision dismissing the motion to terminate custody shall be allowed. If the motion is not based on new facts relevant to the termination of custody, the Court shall not issue a separate decision.

Article 132 - Grounds for Pre-trial Custody

(1) If there is a grounded suspicion that a person has committed a criminal offense, custody may be ordered against him:

if he hides or if other circumstances exist that suggest a possibility of flight;

if there is a justified fear to believe that he will destroy, conceal, alter or falsify evidence or clues important to the criminal proceedings or if particular circumstances indicate that he will hinder the inquiry by influencing witnesses, accessories or accomplices;

if particular circumstances justify a fear that he will repeat the criminal offense or complete the criminal offense or commit a threatened criminal offense, and for such criminal offenses a prison sentence of three (3) years may be pronounced or more;

in exceptional circumstances, in case of a criminal offence carrying a prison sentence of ten years or a more severe punishment, which is of particular gravity taking into account the manner of perpetration or the consequences of the criminal offense, if the person’s release poses a realistic threat to disturb public order.

(2) In a case of Subparagraph b), Paragraph 1 of this Article, custody shall be cancelled once the evidence for which the custody was ordered has been secured.

Article 133 - General Right to RESTRICT THE MOVEMENT

A person caught committing a criminal offense may be restricted in his movement by any other person. The person who is so restricted must be immediately turned over to the Court, Prosecutor or to the nearest police authority, and if this may not be done, the Court, Prosecutor or the police must be notified about it immediately.

Article 134 - Competence for Ordering Custody

Custody shall be ordered by a decision of the Court and on the motion of the Prosecutor.

A decision on custody shall contain: the first and last name of the person being taken into custody, the criminal offense he with which is charged, the legal basis for custody, explanation, instruction as to the right of appeal, the official seal and the signature of the judge ordering custody.

A decision on custody shall be delivered to the pertinent person at the moment of deprivation of liberty. The files must indicate the hour of the deprivation of liberty and the hour of the delivery of the decision.

The person taken into custody may appeal the decision on custody with the Panel (Article 24(7)) within 24 hours of the receipt of the decision. If the person taken into custody is questioned for the first time after the expiration of this period, he may file an appeal during the questioning. The appeal with a copy of the minutes on questioning, if the person in custody has been questioned, and the evidence on which the decision on custody is based, as well as the decision on custody shall be submitted immediately to the Panel. An appeal shall not stay the execution of the decision.

In the case referred to in Paragraph 4 of this Article, the Panel deciding the appeal must take a decision within 48 hours.

Article 135 - Duration of Custody

Before taking a decision ordering custody, the preliminary proceedings judge shall review whether there are grounds for a motion to order custody. Upon the decision of the preliminary proceedings judge, custody may last no longer than one (1) month following the date of deprivation of liberty. After that period, the suspect may be kept in custody only on the basis of a decision extending the custody.
Custody may be extended, upon a decision of the Panel (Article 24(7)), following a substantiated motion of the Prosecutor, for no longer than two (2) months. An appeal against the decision of the Panel shall be allowed and it shall be decided by the Appellate Division Panel. An appeal does not stay the execution of the decision.

(1) If the proceeding is ongoing for the criminal offense for which a prison sentence of ten (10) years may be pronounced or more, and if there are particularly important reasons, custody may be extended following a substantiated motion of the Prosecutor, for no longer than three (3) months. An appeal against the decision of the Panel shall be allowed and it shall be decided by the Appellate Division Panel. An appeal does not stay the execution of the decision.

(2) Exceptionally and in an extraordinarily complex case concerning a criminal offense for which a long-term imprisonment is prescribed, custody may again be extended for no longer than three (3) months after the extension of the custody referred to in Paragraph 3 of this Article. Such an extension may occur twice consecutively, following a substantiated motion of the Prosecutor for each extension, which needs to contain the statement of the Collegium of the Prosecutor’s Office about the necessary measures that have to be undertaken in order to complete the investigation (Article 225, Paragraph 3). An appeal against the decision of the Panel on the custody extension shall be decided by the Appellate Division Panel. An appeal does not stay the execution of the decision.

(5) If, before the expiration of the periods referred to in Paragraph 1 through 4 of this Article, an indictment has not been confirmed, the suspect shall be released.

Article 136 - Termination of Custody

(1) In the course of the investigation and before the expiration of the custody, the preliminary proceedings judge may terminate custody by the decision upon hearing from the Prosecutor. Against the decision, the Prosecutor may file an appeal to the Panel referred to in Article 24(7). The Panel shall be bound to reach a decision within 48 hours.

Article 137 - Custody after the Confirmation of the Indictment

(1) After the confirmation of indictment, custody may be ordered, extended or terminated. The review of justification of the custody shall be carried out upon the expiration of each two (2) month period following the date of issuance of the most recent decision on custody. The appeal against this decision shall not stay its execution.

(2) After the confirmation of an indictment and before the first instance verdict is pronounced, the custody may not last longer than:

a) one year in the case of a criminal offense for which a punishment of imprisonment for a term up to five years is prescribed;

b) one year and six months in the case of a criminal offense for which a punishment of imprisonment for a term up to ten years is prescribed;

c) two years in the case of a criminal offense for which a punishment of imprisonment for a term exceeding ten years may be imposed, but not the long-term imprisonment;

d) three years in the case of a criminal offense for which a punishment of long-term imprisonment is prescribed.

(3) If, during the period referred to in Paragraph 2 of this Article, no first instance verdict is pronounced, the custody shall be terminated and the accused released.

Article 138 - Ordering Custody after the Verdict is pronounced

(1) When the Court pronounces a sentence of imprisonment against an accused, the Court may order custody of the accused or the custody shall be extended if that is necessary in order to ensure an unhindered conduct of the criminal proceedings, while taking into account all the circumstances related to the commission of the criminal offence and the personality of the perpetrator.

If the sentence pronounced is imprisonment of five years or longer, the Court shall order or extend custody immediately. In such case, a special decision shall be issued, and an appeal from such decision shall not stay its execution.

Custody shall be terminated and release of the accused ordered if he has been acquitted or if the charges against him have been rejected for the reasons other than lack of jurisdiction of the Court or he has been found guilty but released from penalty or he has only been fined or conditionally sentenced or, due to crediting the custody time, he has already served the sentence.

(2) After pronouncing the first instance verdict, the custody may last no longer than additional nine months. Exceptionally, in complex cases and for the important reasons, the Appellate Panel may extend the custody additionally for a six months maximum. If during that period no second instance verdict to alter or sustain the first instance verdict is pronounced, the custody shall be terminated and the accused shall be released. If within the prescribed deadlines the second instance verdict is pronounced reversing the first instance verdict, the custody shall last for no longer than another year after pronouncement of the second instance verdict.

At the request of the accused, who is in custody after a sentence of imprisonment has been pronounced on him, a judge or the presiding judge may commit the accused by a decision to an institution for serving the sentence even before the verdict becomes legally binding.

(3) Custody shall always be terminated upon the expiration of the pronounced sentence.

(4) The accused placed in custody against whom a sentence of imprisonment has become legally binding, shall remain in custody until he/she is sent to prison but not after the expiration of the prison term he has received.

Article 139 - Deprivation of Liberty and Detention

(1) The Police may deprive a person of liberty if there are grounds for suspicion that he may have committed a criminal offence and if there are any of the reasons referred to in Article 132 of this Code, but they must immediately, no later than 24 hours, bring that person before the Prosecutor. In apprehending the person concerned, the police authority shall notify the Prosecutor of the reasons for and time of the deprivation of liberty. The Use of force in accordance with law is allowed when apprehending the person.

(2) As an exception to Paragraph (1) of this Article, with regard to crime of terrorism, the person must be brought before the Prosecutor within 72 hours at the latest.

A person deprived of liberty must be advised in accordance with Article 5 of this Code.

If a person deprived of liberty is not brought before the Prosecutor within the period specified in Paragraphs 1 and 2 of this Article, he shall be released.

The Prosecutor shall question the person apprehended without delay and no later than 24 hours, and decide within that time whether he will release the apprehended person or file a reasoned motion for custody of the person in question, ensuring that the person is brought before the preliminary proceedings judge. The preliminary proceedings judge shall immediately, and no later than within 24 hours, issue a decision on the motion for custody.

(3) If the preliminary proceedings judge does not grant the motion for custody, he shall issue a decision dismissing the motion and release the person immediately. The Prosecutor may file an appeal against the decision of the preliminary proceedings judge, but it shall not stay the execution of the decision.

(4) The person ordered into custody may appeal the decision on custody, but it shall not stay the execution of the decision.

In the case referred to in paragraphs (7) and (8) of this Article, the Panel referred to in Article 24(7) of this Code shall decide on the appeal within 48 hours of receipt of the appeal by the Court.

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

Article 140 - General Provisions

Custody shall be executed in the institutions so designated by the Minister of competent Ministry of Bosnia and Herzegovina in cooperation with competent bodies of entities and District Brčko of Bosnia and Herzegovina. The task of execution of custody may be performed only by those employees of the Ministry who have necessary knowledge and skills and professional qualifications as prescribed by legislation.

Article 141 - The Rights and Freedoms of Persons Taken into Custody and Data on Them

Custody must be executed in such a manner as not to offend the personal integrity and dignity of the person taken into custody. In executing custody, authorized officials of the Judicial police and guards of the institution may use means of force only in cases prescribed under law.

The rights and freedoms of the person taken into custody may be restricted only insofar as it is necessary to achieve the purpose for which custody has been ordered and to prevent the flight of the person taken into custody, commission of a criminal offense or endangerment to the life and health of people.

The administration of the institution shall collect, process and store data on the persons taken into custody, including data concerning the identity of the persons in custody and their mental and physical condition, the duration, extension and cancellation of their custody, the work performed by the persons in custody, their behavior and the disciplinary measures applied.

The custody records concerning the detainees shall be kept by the competent Ministry of Bosnia and Herzegovina.

Article 142 - Accommodation of Persons in Custody

Persons in custody shall be accommodated in rooms of appropriate size that satisfy required health conditions. Individuals of different sexes may not be accommodated in the same room. As a rule, persons in custody shall not be put in the same room with persons serving a sentence. A person taken into custody shall not be accommodated together with persons who might have an adverse influence on him or with persons whose company might have adverse influence on the conduct of the
proceedings.

Article 143 - Special Rights of Persons Taken into Custody

Persons in custody have the right to eight (8) hours of uninterrupted rest within each 24-hour period.

In addition, they shall be guaranteed at least two (2) hours of walking in the open air daily.

A person in custody shall be allowed to have personal belongings and hygienic items in his possession, and shall also be allowed to procure at his own expense books, newspapers and other printed media. A detainee shall also be allowed to keep other objects in such a quantity and size so as not to disturb the living environment in the room and the internal regulations of the custody. In admitting a person to custody, objects related to the criminal offense shall be seized from him during the search of his person, and any other objects that the person taken into custody is not allowed to have in his possession while in custody shall be put aside and stored according to his instruction or delivered to a person designated by him.

Article 144 - The Right to Communication of the Person in Custody with the Outside World and Defense Attorney

(1) Detainees shall be entitled to visits by persons of their choosing except where the preliminary proceedings judge issues a written decision prohibiting specific visits due to their detrimental effect on the conduct of the proceedings.

Foreign detainees shall be entitled to visits by their diplomatic and consular representatives or representative of the country protecting their interests, in compliance with international law and subject to internal regulations of the custody except where the preliminary proceedings judge issues a written decision prohibiting specific visits due to their detrimental effect on the conduct of the proceedings.

A detainee may exchange confidential correspondence with any other person. Exceptionally, if so required by the interests of the proceedings, the Court may issue a decision to supervise such confidential correspondence or a decision banning such confidential correspondence. An appeal against this decision shall be allowed, but it shall not stay the execution of the decision. A detainee may not be prohibited from sending petitions, complaints or appeals.

A detainee shall be prohibited from using cellular phone but shall have the right, subject to internal regulations of the custody, to make telephone calls at his own expense. To that end, the detention administration shall provide the detainees with a sufficient number of public telephone connections. The preliminary proceedings judge, the preliminary hearing judge, the individual judge or the presiding judge may, for a reason of security or due to the existence of one of the reasons referred to in Article 132(1) subparagraphs a) through c), of this Code restrict or prohibit, by a decision, the use of the telephone by a detainee.

A detainee shall be entitled to free and unrestrained communications with his defense attorney.

Article 145 - Disciplinary Violations of a Detainee (deleted)

Article 146 -Visits by Court

the President of the Court, the preliminary proceedings judge, an individual judge or the presiding judge may visit the detainees at all times, may talk to them and may hear their complaints.

Article 147 - Internal Regulations of the Institutions for Detention

The Minister of the competent Ministry of Bosnia and Herzegovina shall issue internal regulations for the institutions for detention that shall regulate in detail the execution of custody in accordance with the provisions of this Code.