Legal provisions and deprivation of liberty Legal provisions in the Federation of BiH (the Criminal Procedure Code – ZKP, from 1998 with amendments from 1999) do not specifically regulate procedure related to deprivation of freedom of minors42as opposed to adults. The said provisions prescribe that an adult alleged to have committed a crime has to be handed over to an investigative judge no more than 24 hours after apprehension by a staff member of the internal affairs bodies. The same official is obliged to inform the suspect about his or her rights to have a defence counsel present during the inquiry, and that he or she is not obliged to respond to questions by an authorised person of internal affairs bodies (article ZKP, FBiH). In addition, internal affairs officials are obliged to inform, within 24 hours, the family of a young person deprived of liberty and in practice, if necessary, the competent social care body (Article 191, ZKP FBiH). Other legal provisions from the Criminal Procedure Code of the Federation of BiH are applied if they are not in contradiction with provisions that regulate procedures for minors (Article 433, para 1, ZKP).
In the existing Criminal Procedure Code43 of the Republika Srpska, legal provisions referring to the duties and methods of bringing criminal charges, bodies to which charges are submitted, the work of enforcement bodies on detection and collection of evidence about a criminal act, and the prevention of suspects from hiding or running away, are valid for people below 18 years of age who are alleged to have committed a criminal offence.44 Law enforcement bodies are obliged to collect and secure all relevant facts and information for the public prosecutor in order to constitute solid grounds for a decision to initiate criminal proceedings, as well as statements and material relevant for the successful conduct of any proceedings.45
Internal Binding Documents pertaining to Arrest and the Deprivation of Liberty Police authorities in the Republika Srpska46 and the Federation of BiH47 have adopted internal acts regulating police procedures. Instructions contained therein are binding on both police forces.
Instructions about the treatment of persons deprived of liberty, as adopted in both entities in 2001 (“Instructions on Treatment of Persons Deprived of Liberty”), emphasise the methods of reception and conditions of accommodation of persons deprived of liberty, the release of persons deprived of liberty48, the rights of persons deprived of liberty, and follow-up documentation. Provisions explicitly pertinent to juveniles set out the following instructions:
juvenile persons deprived of liberty are to be accommodated in separate premises from adults
records on juveniles are not to be available to the public
means of force cannot be applied against younger juveniles (14 to 16 years).
It should be noted that a person deprived of liberty has the right and duty to be informed about the Instructions.
Besides Instructions relating to the deprivation of liberty, a handbook entitled Principles and Procedures was adopted in 2000 as the binding instrument in both entities.49 This handbook contains a section entitled “Procedures of Arrest and Taking into Custody of Juveniles” (General Instruction 521 prescribing principles of work with juveniles). In general terms, this instruction requires police officers to comply with international standards in the treatment of juveniles, although there are no specific provisions pertaining to juvenile girls.
Furthermore, some procedures point clearly to the possibility of diversion at the stage when juvenile offenders come into contact with the police for the first time – something that has not been covered by BiH criminal legislation. Thus, it is stated that “when such alternative measures are applicable, the police and court shall try to keep first-time offenders outside the justice system.”50 Adequate training of police personnel on diversion schemes is needed to realise the possibility of diversion within the law. Currently there is a certain degree of confusion among police staff who feel at a loss, placed between truly good solutions (as has been proven in many countries) and the lack of those solutions in official legal documents.
General Instruction 521 anticipates situations where police officers treat juvenile offenders on an informal basis. This is effectively what the police do when they decide that a caution is an adequate measure for a particular offence. This activity seems to bear a seed for the possible future use of formal cautions that the police make under certain circumstances in other countries.
Police in the Republika Srpska and the Federation of BiH are obliged to implement both sets of the aforementioned instructions, even though, in terms of diversion by police, instructions have some more advanced provisions than the current legislation. Police officials contacted in the course of this study believe that staff do abide by the provisions of both sets of instructions. An additional indicator of issues in their implementation would be registering any potential complaints of persons deprived of liberty by the police. Since a precondition for any such complaint is that a person deprived of liberty is well informed about the rules of work of the police, being informed is a vital element in terms of provision of compliance with the same.
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. No child shall be arrested and deprived of his or her liberty unlawfully or arbitrarily. Every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so, and shall have the right to maintain contact with his or her family.
Article 37, UN Convention on the Rights of the Child
Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.
10.1 UN Standard Minimum Rules for Administration of Juvenile Justice,
Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to him or her, with due regard to the circumstances of the case.
10.3 UN Standard Minimum Rules for Administration of Juvenile Justice,
Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by United Nations. 13.3 UN Standard Minimum Rules for Administration of Juvenile Justice13.3 UN Standard Minimum Rules for Administration of Juvenile Justice, Beijing Rules