scholarly journals Crimination and Solution of Criminal Matters in the Criminal Proceedings of Bosnia and Herzegovina - a Division Between Normative and Actual

2020 ◽  
Vol 10 (10) ◽  
Author(s):  
Sadmir Karović ◽  
Marina M. Simović
Keyword(s):  
Bosnia And Herzegovina ◽  
Practical Aspect ◽  
Criminal Proceedings ◽  
Criminal Matter ◽  
Criminal Offense ◽  
Procedural Law ◽  
Procedural Task ◽  
Standards Of Proof ◽  
Criminal Matters ◽  
Practical Nature

In this paper, the central part presents the solution of the criminal-procedural task, that is, the clarification and solution of a specific criminal matter in criminal proceedings of Bosnia and Herzegovina by criminal-law entities, with special attention to restrictive legal conditions of a criminal-procedural nature, as well as certain problems and dilemmas of a practical nature. The extremely dynamic development of modern criminal procedural law in the last two decades is also characterized by the adoption of new criminal procedural solutions with a pronounced tendency of humanization, which directly relates to the catalog of the rights of the suspect or accused person. In order to understand the nature of the criminal proceedings, the conceptual determination and differentiation of the criminal matter as the main subject of the criminal proceedings was made to the criminal matter in an unfair and fair sense, with reference to the practical aspect of the efficient conduct of the criminal proceedings and the illumination and settlement of the criminal matter, respecting the standards of proof. Given the nature of the criminal proceedings, in addition to the criminal matter as the main case, other secondary or ancillary issues are included which do not constitute a criminal offense but relate to the criminal matter (property claim, so-called prejudicial or preliminary issues and costs of the proceedings).

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals Interaction between investigator and operational units in pretrial investigation of criminal offenses

2021 ◽  
Vol 1 (1) ◽  
pp. 272-276
Author(s):  
Maksym Ocheretyatyy
Keyword(s):  
Theory And Practice ◽  
Factual Information ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedural Law ◽  
Criminal Offenses ◽  
Theoretical Generalization

The article analyzes the essence of the outlined problem, focuses on the importance of the investigator's interaction with operational units in the pre-trial investigation of criminal offenses, outlines the concept, which is defined as a comprehensive and purposeful process of communication between different actors involved in criminal proceedings. , is the ultimate goal, which makes it possible to obtain factual information about the event of a criminal offense. This gave grounds for distinguishing the essence of this process, which in general is distinguished by the fact that the investigator is a procedural person who is directly responsible for the quality of pre-trial investigation, its planning and effectiveness of investigative (search) actions, their timeliness and consistency. It is also argued that the issues of theoretical generalization of the elements of the process of interaction of the investigator in the pre-trial investigation were effectively and accurately formulated in the above stages, which partially duplicate the stages of the pre-trial investigation. However, the proposed approach of individual researchers to differentiate the interaction not only in terms of criminal procedural law, but also from the standpoint of operational and investigative activities, as a process can also be useful in planning a pre-trial investigation. This logically gives grounds to claim that the interaction with operational units is based on close and coordinated cooperation within the current legislation, on the initiative of both parties, as well as the planned conduct of any investigative or non-public investigative (search) actions. The author, as a result of the received interpretations of basic terms it was given an opportunity to investigate its stages. Therefore, the approaches of scientists to determine the stages of interaction in the pre-trial investigation of criminal offenses are analyzed, they are generalized, and the most effective approach totheir structuring for theory and practice is determined.

scholarly journals PLEA BARGAININGS FOR WAR CRIMES IN BOSNIA AND HERZEGOVINA: BETWEEN REPENTANCE AND CONSENSUAL JUSTICE

2020 ◽  
Vol VI (1-2) ◽  
pp. 22-60
Keyword(s):  
Bosnia And Herzegovina ◽  
International Criminal Tribunal ◽  
Plea Bargaining ◽  
War Crimes ◽  
Legal Framework ◽  
Corrective Justice ◽  
Criminal Proceedings ◽  
Criminal Cases ◽  
Advantages And Disadvantages ◽  
Procedural Law

One of the contemporary tendencies in the development of criminal procedural law is the introduction of simplified (summary) forms of criminal procedure, aimed at accelerated resolution of criminal disputes and reducing the number of criminal cases. Among the most common forms of simplified procedure in comparative law are institute of the plea bargaining (plea agreement), which represents a settlement sui generis between the prosecutor and the suspect/accused, under which the prosecutor offers to accused certain procedural benefits in exchange for a guilty plea to committed crime. These benefits, for example, can be reflected in proposing a more lenient qualification of the crime, or withdrawing certain elements in the charge, proposing the imposition of lenient criminal sanctions etc. There are many arguments pro et contra application of the institute in question. It is undoubted that the application of a plea bargaining contributes to a faster resolution of criminal cases and to a reduction of the costs of criminal proceedings, and at the same time such a confession, especially if it is accompanied by sincere repentance, can be a significant satisfaction for victims, etc. On the other hand, the settlement of parties in criminal proceedings can significantly jeopardize the processes of establishing material truth and corrective justice, especially in war crimes criminal proceedings. These paper presents basic information on war crimes prosecutions in Bosnia and Herzegovina and analyzes the legal framework for its implementation, as well as the advantages and disadvantages of a plea bargaining. Statistical indicators were collected and discussed on the scope of the plea bargaining in war crimes committed in Bosnia and Herzegovina, which have been conducted before the International Criminal Tribunal for the former Yugoslavia (ICTY), serbian and german judiciaries, as well as courts in Bosnia and Herzegovina. It was found that about one-quarter of those convicted by the ICTY have previously concluded an agreement with The Hague Prosecution. In addition, the plea bargaining (plea agreement) applies to war crimes cases to a large extent in the courts of Bosnia and Herzegovina, where, interestingly, the scope of its application in relation to these crimes is at the level of the average application of this institute of all crimes prosecuted by the courts in Bosnia and Herzegovina, and is around 10%. The somewhat smaller scope of the plea agreement for war crimes in Bosnia and Herzegovina has been reported by the courts in the Republic of Serbia

scholarly journals The Role of Authorized Officials in Criminal Proceedings in Bosnia and Herzegovina // Prava i dužnosti ovlašćenih službenih lica u krivičnom postupku u Bosni i Hercegovini

2018 ◽  
Vol 8 (8) ◽  
pp. 194
Author(s):  
Marina M. Simović ◽  
Vladimir M. Simović
Keyword(s):  
Bosnia And Herzegovina ◽  
Information Gathering ◽  
Reasonable Doubt ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Administrative Procedures ◽  
Operational Activities ◽  
Regular Work ◽  
Official Records

The role of authorized officials in the investigative procedure has certain specificities that result from the fact that authorized officials in the investigative procedure act not only on the grounds of existence of reasonable doubt that a criminal offense has been committed, but their regular work is mainly determined by other regulations too i.e. their activities are not merely investigative but also operational. Activities of authorized officials of operational character represent the regular activities of authorized officials within their regular official duties, prevention, control, notification, information gathering, etc. Within this operational work, authorized officials can collect information from citizens, institutions, etc. and make official records, operational reports, and intelligence reports, file misdemeanour reports, and conduct certain administrative procedures.

APPLICATION OF EVIDENCE STANDARDS IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 2 (2) ◽  
pp. 67-74
Author(s):  
Maryna Horodetska ◽  
Keyword(s):  
Security Measures ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Standard Of Proof ◽  
Judicial Practice ◽  
Reasonable Suspicion ◽  
Standards Of Proof ◽  
Objective Side ◽  
Procedural Decisions

The article is devoted to the study of the application of standards of proof in criminal proceedings. The criminal procedural legislation for determination of standards of proof is analyzed. The international and national judicial practice of application of standards of proof is investigated. Peculiarities of application of standards of proof at different stages of criminal proceedings are revealed. Differences in the application of standards of proof in making different procedural decisions have been established. The standard of reasonable suspicion is investigated. It is determined that the establishment of the standard “reasonable suspicion” depends on: 1) the stage of pre-trial investigation; 2) the degree of restriction of individual rights during decision-making. The article concludes that the lowest level of suspicion is sufficient for the commencement of criminal proceedings - suspicion of the fact of committing a criminal offense. Such suspicion of the fact of committing a criminal offense corresponds to the establishment of the object and the objective side of the criminal offense. It was found that during the detention of a person for committing a criminal offense, in addition to the suspicion of committing a criminal offense, the standard of “suspicion of sufficient involvement of the detainee” must be achieved. A certain level of suspicion of sufficient involvement of the detainee in the commission of a criminal offense is necessary to justify his detention. It was found that the notification of a person's suspicion of committing a criminal offense (without the application of a precautionary measure against him) presupposes the achievement of the standard of proof - “sufficient grounds (evidence)”. Which is lower than the standard of «reasonable suspicion”, the achievement of which is necessary in case of restriction of the rights of the person in connection with the application of security measures, etc. It is established that the standard “reasonable suspicion” is not stable and is assessed depending on the course of criminal proceedings. Over time, the standard of proof of “reasonable suspicion” increases and should be supported by proof of new circumstances and risks.

scholarly journals PROHIBITING MEASURES AS AN ALTERNATIVE TO PRE-TRIAL CUSTODY IF DANGER OF ITERATION EXISTS, YES OR NO?

2019 ◽  
Vol 1 (41) ◽  
Author(s):  
Robert Jović
Keyword(s):  
Bosnia And Herzegovina ◽  
Scientific Paper ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Freedom Of Movement ◽  
Judicial Practice ◽  
Identical Manner ◽  
Alternative Measures ◽  
The Right

The measure of pre-trial custody as the most serve measure to securethe presence of the suspect or accused in criminal proceedings and its successfulconduct has always attracted due attention of both legal doctrines andjudicial practices at all levels due to the consequences concerning the imposedrestriction on the right to freedom of movement. Hence, the interest of scienceand the judiciary was primarily aimed at defining very strict criteria in whichthe measure of pre-trial custody could be used and the rules that should be usedby courts when considering the use of possible alternative measures to ensurethe presence of the suspect or accused that may be the most appropriate, in theparticular situation, without the need to apply a more severe measure if thepurpose of the imposed measure can be achieved with a milder measure. Regardingthe code of criminal proceedings in Bosnia and Herzegovina, all fourlaws on criminal procedure regulate, in a largely identical manner, when andunder what circumstances the custody can be ordered, including the situationof custody order due to the danger of iteration (danger of repetition of criminaloffense or completion of an attempted criminal offense or committing a threatenedcriminal offense).2 However, the reason of confusion and perplexitiesamong the judicial practitioners at various levels of judicial decision-makingis whether the pre-trial custody imposed due to the danger of iteration can bereplaced by prohibiting measures, as milder measures, given that the purpose,in the specific case, is not ensuring the presence of the suspect or the accusedin criminal proceedings, rather than the elimination of the danger of committinga (repeated) criminal offense.It is precisely this problem that is the central point of author’s interest ofthis scientific paper and the author will analyze the theoretical reasons that arefor and the reasons against the possibilities of replacing the custody measurewhen the danger of iteration exists with the prohibiting measures, as well asthe current judicial practice in Bosnia and Herzegovina regarding this issue.

scholarly journals Standard of proof in criminal proceedings: “variable” or “stepwise” ?

2021 ◽  
pp. 298-301
Author(s):  
H.R. Slyusarchuk ◽  
M.R. Mazur
Keyword(s):  
Anglo Saxon ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Standard Of Proof ◽  
Single Procedure ◽  
Judicial Practice ◽  
Standards Of Proof ◽  
Procedural Decisions ◽  
Procedural Rights ◽  
Scientific Arguments

The article is devoted to the analysis of the issue of division of standards of proof in criminal proceedings, in particular one of the types - variable standard of proof, which is distinguished by scholars of the Anglo-Saxon legal system. The article analyzes the question of the possibility of dividing the standards of proof depending on the severity of the criminal offense. The motives and scientific arguments in favor of distinguishing a variable standard of proof in criminal proceedings are studied. Positively assessing the attempt of the appropriate scientific division of standards of proof in criminal proceedings, the authors argue that it is still impossible to agree with him to the end. In particular, according to the authors, the introduction of a variable standard of proof in criminal proceedings will not contribute to the unity of judicial practice in the process of making procedural decisions during criminal proceedings. In addition, the article argues that decisions in criminal proceedings are made on the basis of internal conviction, which determines and assigns the type and measure of punishment, and not vice versa. Therefore, it is at least surprising the position of some scholars that the sanction of a sentence that can be imposed on an accused must determine the necessary level of “persuasion” (“evidence”) for his appointment. It is argued that in some cases, the establishment of a variable standard of proof in criminal proceedings will lead to a violation of the principles of criminal proceedings, in particular equality before the law and the courts. The article presents the position of the authors on the doubtfulness of establishing the degree of proof of the circumstances of criminal proceedings depending on the severity of the criminal offense, as in criminal proceedings there is a single procedure and the same set of procedural rights.

Aufklärung, Aufsicht und Ahndung

2021 ◽  
Author(s):  
Michelle Poller
Keyword(s):  
European Union ◽  
Financial Market ◽  
Capital Market ◽  
European Law ◽  
Criminal Proceedings ◽  
European Union Law ◽  
Supervisory Authority ◽  
Procedural Law ◽  
Criminal Matters

The statutory model constitutes BaFin not only as a capital market supervisory authority, but also as an auxiliary authority providing preliminary investigations in criminal matters. This interlocking of supervisory and criminal proceedings conflicts with fundamental and constitutional guarantees. The problem is not unknown, but it has arisen anew as a result of the comprehensive financial market amendment of 2016/17 based on European law. The author elaborates the ambivalent role of the BaFin and analyzes the amended procedural law of the WpHG while comparing it to criminal procedural law. The result is measured against the standard of European Union law, with the focus of her analysis on the freedom from self-incrimination.

scholarly journals PECULIARITIES OF THE PROCEDURAL ORDER OF PRE-TRIAL INVESTIGATION IN CRIMINAL PROCEEDINGS AGAINST PEOPLE’S DEPUTIES OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 143-152
Author(s):  
Dmytro Tychyna ◽  
Keyword(s):  
Criminal Procedure ◽  
Sufficient Evidence ◽  
Criminal Proceedings ◽  
Criminal Offense ◽  
Procedural Law ◽  
Criminal Offenses ◽  
Criminal Procedure Law ◽  
Procedural Guidance ◽  
General Exceptions ◽  
Comprehensive Study

The article provides a comprehensive study of theoretical and practical problems of pre-trial investigation in criminal proceedings against people’s deputies of Ukraine, given the regulations of current criminal procedure legislation and the theory of criminal procedure law of Ukraine. It is emphasized that the current legislation of Ukraine, which regulates the activities of the People’s Deputy of Ukraine, is based on the principles of traditional law and bears the imprint of the totalitarian past, so now it can not fully ensure the effectiveness of the institution of inviolability, leading to violations of human rights and freedoms. Criminal proceedings against a People’s Deputy of Ukraine may be carried out only under the condition of the procedural guidance of the Prosecutor General (acting Prosecutor General) or the Deputy Prosecutor General – the head of the Specialized Anti-Corruption Prosecutor’s Office and can be initiated only when there is sufficient evidence to indicate signs of a criminal offense, and the adequacy of the data is assessed in each case according to the internal convictions of the investigator. The main condition for the notification of suspicion against people’s deputies is the availability of sufficient evidence. The procedural procedure for summoning an investigator, prosecutor, summons during a pre-trial investigation in criminal proceedings against people’s deputies of Ukraine is a set of procedural actions to draw up a summons (another document), send and serve it in the manner prescribed by procedural law, confirm receipt of summons, meet deadlines notification of the person about the call, as well as the procedural consequences of non-appearance on the call. The procedural position of the suspect-People’s Deputy of Ukraine must be considered in accordance with the procedural conditions. The general legal basis for the application of measures to ensure criminal proceedings is the decision of the investigating judge on the basis of an agreed request for their application with the Prosecutor General (acting person of the Prosecutor General). Exceptions are certain measures to ensure criminal proceedings, which can be applied without the decision of the investigating judge. The directions of improvement of the procedural order of decision-making on the beginning of pre-trial investigation of criminal offenses committed by the People’s Deputy of Ukraine on the basis of entering information into the Unified Register of pre-trial investigations, resolving issues of jurisdiction, notification of suspicion, application of criminal proceedings.

scholarly journals LEGAL NATURE AND MAIN PROCEDURAL DETERMINANTS OF CRIMINAL PROCEDURE IN BOSNIA AND HERZEGOVINA

2020 ◽  
Vol 58 (3) ◽  
pp. 55-68
Author(s):  
Sadmir Karović ◽  
◽  
Marina M. Simović ◽  
Keyword(s):  
Human Rights ◽  
Bosnia And Herzegovina ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Judicial Decision ◽  
Criminal Proceedings ◽  
Criminal Matter ◽  
The Past ◽  
Legal Nature ◽  
Reform Processes

In this paper, the authors analyse the legal nature of criminal procedure in Bosnia and Herzegovina, with the special emphasis on reform processes of criminal procedure legislation and adoption and acceptance of new legal solutions over the past two decades, acknowledging the aspiration for effectiveness and protection of basic human rights and freedoms. For the purpose of effective criminal procedure, it identifies the main and secondary actors in criminal proceedings whose role is crucial from the aspect of shedding light on and resolving a certain criminal matter, as well as issuing a judicial decision. To that end, the role and importance of those actors in taking procedural actions to carry out a criminal procedure task is emphasised for the purpose of understanding the legal nature, structure and course of the criminal procedure, and achieving the scope of legally prescribed rights of the suspect, that is, the defendant. In addition, special attention is paid to the specific procedural situation and status of an underage person in the criminal law as the perpetrator and injured parties in a criminal case, taking into account their age as the basis for the differentiation and protection in relation to adults.

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