Norma relacionada
Bosnia and Herzegovina
Practice Relating to Rule 100. Fair Trial Guarantees
The Criminal Code (1998) of the Federation of Bosnia and Herzegovina provides that “depriving civilians and prisoners of war of their right to a fair and impartial trial” is a war crime. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Articles 154(1) and 156.
The Criminal Code (2000) of the Republika Srpska contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Articles 433(1) and 435.
Bosnia and Herzegovina’s Criminal Code (2003) states that, in time of war, armed conflict or occupation, ordering or permitting the “deprivation of rights to a fair and impartial trial”, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(e); see also Article 175(c).
In 2006, in the Samardžić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that “the principle of equality of arms [is] one of the requirements for a fair trial”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, p. 7.
In 2007, in the Šimšić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[A]ccording to the [European Convention on Human Rights] and the case law of the [European Court of Human Rights] … , the primary institutional guarantee for a fair trial is that decisions shall not be taken by political institutions, but by impartial and independent courts established by law …
Given that this court is established by law and that the legislator defined the terms of office of the international judges … , the independence and impartiality of the court are not called into question nor is the right of the Accused to a fair trial, as guaranteed by Article 6 of the [European Convention on Human Rights], violated. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Šimšić case, Judgment, 7 August 2007, pp. 13–14.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “A person shall be considered innocent of a crime until guilt has been established by a final verdict.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 3(1).
In 2006, in the Samardžija case, the Panel of the Court of Bosnia and Herzegovina stated:
The Court has applied to the Accused the presumption of innocence stated in Article 3 of the CPC BiH [Criminal Procedure Code of Bosnia and Herzegovina], which embodies a general principle of law, so that the Prosecution bears the onus of establishing the guilt of the Accused and the Prosecution must do so beyond reasonable doubt. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžija case, Judgment, 3 November 2006, p. 15.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that a right of the accused is “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
(1) The suspect or accused has a right to present his own defense or to defend himself with the professional aid of a defence attorney of his own choice.
(2) If the suspect or accused does not have a defence attorney, a defence attorney shall be appointed to him in cases as stipulated by this Code.
(3) The suspect or accused must be given sufficient time to prepare a defence. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 7; see also Articles 39 and 47.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina, in response to a Defence claim that a lower court’s denial of a request for self-representation violated the accused’s right to a defence, stated:
Article 45 (1) of the BiH CPC [Criminal Procedure Code of Bosnia and Herzegovina] explicitly regulates, among other things, that the accused must have a defense attorney if he is charged with a criminal offense for which a penalty of long-term imprisonment may be pronounced, which is the case here. The Article also states that the right concerned is not a right which can be waived voluntarily but that it is the duty of the court, according to the law, to provide the accused adequate professional assistance in prescribed cases, therefore, equality of arms in respect to the Prosecutor's office as the other party to the proceedings. The essence of the mandatory defense in cases in which the court may pronounce a long-term imprisonment is the fact that these are the gravest criminal offenses which include numerous legal matters the resolution of which requires the involvement of persons with specific legal expertise. The position of the accused, in the concrete case, is even more difficult due to the fact that he is in custody, which also represents one of the reasons, aimed at adequate preparation of defense, to hire professionals who will be able to collect evidence in favor of the accused without disturbance. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 11.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
(1) The suspect or accused shall be entitled to be brought before the Court in the shortest reasonable time period and to be tried without delay.
(2) 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.
(3) The duration of custody must be reduced to the shortest necessary time. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 13.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “Direct examination, cross-examination and redirect examination [of witnesses] shall always be permitted.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 262(1); see also Article 259.
In 2006, in the Samardžić case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that “the right to cross examine the witness … [is] one of the requirements for a fair trial”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Samardžić case, Judgment, 13 December 2006, p. 7.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated that a right of the accused is “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
In order to … protect [certain] witnesses … , the [first-instance] Panel rendered the decision to remove the Accused from the courtroom during the testimony of [these] witnesses. At the same time, the first-instance Panel decided to allow the Accused to follow their testimonies using technical means for transferring the image and sound in order to be able, following the direct examination, to consult his defence counsel concerning the cross examination … The mentioned decision, according to this Panel, was rendered in its entirety and in the context of the guarantees provided by Article 6 of the European Convention on Human Rights. Therefore, the appellate argument of the defence counsel … that the right to a defence was violated is unfounded. To wit, … the Accused had the possibility to follow the direct examination of witnesses and consult the defence counsel concerning the cross examination … [A]lthough the mentioned rights of the Accused were partially limited it was done in accordance with the statutory limitations and the ruling provided that the Accused follow the course of the main trial adequately, without violating his right to a defence. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 7.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
(2) Parties, witnesses and other participants in the [criminal] proceedings shall have the right to use their own language 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 and interpretation of official documents and identifications and other written pieces of evidence.
(4) Interpretation shall be performed by a Court interpreter. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 8(2) and (4).
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “If the accused was duly summoned but fails to appear and does not justify his absence, the judge or the presiding judge shall postpone the main trial and order that the accused be brought in at the next session.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 246(1).
The Criminal Procedure Code also states: “An accused may never be tried in absentia. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 247.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina, in response to a Defence claim that a lower court’s removal of the accused from the courtroom was a denial of the accused’s rights, stated:
[I]t can be seen that it is possible to remove the accused from the courtroom if the accused persists in disruptive conduct after being warned by the Presiding Judge and that the proceedings may continue during this period if the accused is represented by counsel. Thus, the conclusion of the first instance panel that the mere fact that the accused is not physically present in the courtroom does not automatically mean that the trial cannot continue is additionally supported. And above all, it was noted that the purpose of the constant improper conduct of the accused was obviously to prevent continuation of the proceedings and delay it, as correctly concluded by the first instance panel. Considering the alternative measure which could be applied in the concrete case, that is, forceful bringing of the accused to the courtroom in spite of his will, regardless of the threats to appear in his underwear, as proposed by the Defense Attorney … in his appeal, the first instance panel concluded correctly that such treatment would represent the inhumane treatment of the accused, undermining the physical integrity of the accused and authority and the dignity of the Court. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 8.
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Groundless is the appellate argument of the defence counsel noting that the main trial was held without the presence of the person whose presence was necessary pursuant to the law … In order to … protect [certain] witnesses …, the [first-instance] Panel rendered the decision to remove the Accused from the courtroom during the testimony of [these] witnesses. At the same time, the first-instance Panel decided to allow the Accused to follow their testimonies using technical means for transferring the image and sound in order to be able, following the direct examination, to consult his defence counsel concerning the cross examination. Contrary to the appellate arguments, the principle of the ban on trial in absentia was not violated by such conduct, nor was the Accused prevented from observing the trial and taking part in the main trial … [A]lthough the mentioned rights of the Accused were partially limited it was done in accordance with the statutory limitations and the ruling provided that the Accused follow the course of the main trial adequately, without violating his right to a defence. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 7.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
In the course of deliberation of the statement on the plea of guilty from the accused, the Court must ensure the following:
a) that the plea of guilty was entered voluntarily, consciously and with understanding, and that the accused was informed of the possible consequences. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 230(1); see also Article 231(4)(a).
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “The main trial is [to be] public.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 234(1).
The Criminal Procedure Code also states:
From the opening to the end of the main trial, the judge or the Panel of judges may at any time, ex officio or on motion of the parties and the defence attorney, but always after hearing the parties and the defence attorney, exclude the public for the entire main trial or a part of it if that is in the interest of national security, if it is necessary to preserve a national, military, official or important business secret, or if it is to protect the public peace and order, to preserve morality in the democratic society, to protect the personal and intimate life of the accused or the injured or to protect the interest of a minor or a witness. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 235.
The Criminal Procedure Code further states:
(1) The judge or the Panel of judges shall issue a decision on exclusion of the public. The decision in question must be explained and publicly announced.
(2) The decision on exclusion of the public may be contested only in the appeal against the verdict. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 237.
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
Article 235 of the BiH CPC [Criminal Procedure Code of Bosnia and Herzegovina] regulates that from the opening to the end of the main trial, the judge or the Panel of judges may at any time, ex officio or on motion of the parties and the defense attorney, but always after hearing the parties and the defense attorney, exclude the public for the entire main trial or a part of it for the reasons specified in the said Article. Article 237 (1) regulates that a decision on exclusion of the public must be explained and publicly announced.
Based on a review of the case file, the Panel found that by the Decision of the Court of Bill number X-KR-05/70 dated 23 February 2006, aimed at protection of the personal and intimate life of the injured, morality and interest of the witnesses, the public was excluded from the main trial subject to the obligation of the Court to revise and evaluate the decision concerned during the entire course of the proceedings. … [T]he fact that the defense did not use the given possibility to present its position on the motion of the Prosecutor’s Office, contrary to the arguments of the appeal does not make the decision of the first instance panel unlawful. If, in addition to the above mentioned, one takes into account that the Decision concerned was publicly announced and explained, pursuant to Article 237 of the BiH CPC, and even forwarded to the parties to the proceedings in a form of a written decision, then the arguments of the appeal of the Defense Attorney … are also proved to be ungrounded as a whole.
… [T]he reasoning of the contested Verdict [also] contains important and serious reasons which indicate that the protection of the personal and intimate life of the injured, morality and interest of the witnesses who testified about the extremely difficult and humiliating circumstances they survived, in addition to the threat of the accused that he would make their protected identity known, could not be achieved in any other way but by the exclusion of the public. … Thus, the standard of the public nature of the trial and the legal possibility to depart from it in certain situations, in the opinion of this Panel, was correctly and fully applied. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, pp. 6–7.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “An appeal may be filed against the verdict rendered in the first instance within 15 days from the date when the copy of the verdict was delivered.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 292(1); see also Article 318(1).
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “No person shall be tried again for the criminal offence he has been already tried for and for which a legally binding decision has been rendered.” 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 4.