The organisation of the work of the Prosecution in the Republika Srpska and the Federation of BiH was changed by the Law on Prosecution of 2002. Under this law, prosecutor’s offices are established at the entity and district level in the RS, and at cantonal level in the FBiH.
In practice in the RS, there are five district prosecutor’s offices and six regional prosecutor's offices. The new organisational chart from September 2002 envisages that district public prosecutor’s offices should cover several first-instance courts, since these courts are to retain jurisdiction over small geographical areas, mostly municipalities. Given the limited technical facilities currently available within the prosecution (including transport resources and equipment), there are concerns that the new methods of work may undermine the effectiveness of the prosecution. Prosecutor’s offices will continue to operate as basic public prosecutor’s offices as in the past until the ongoing re-appointment of prosecutors and judges has been completed.
In the Federation of BiH, the entire area of juvenile justice was transferred in 2001 to the municipal prosecutor’s offices. This organisation is to remain effective until the appointment of new prosecutors and judges is completed and a new law on the Prosecution (2002) takes effect. Under the new law there will be only cantonal prosecutor’s offices.
It is not yet clear whether the new law will bring changes in terms of specialisation of prosecutors in district and cantonal prosecutor’s offices such that they would be assigned only cases of juvenile offending. It appears that practice itself will impose such requirements, since such prosecutor’s offices will have to process a greater number of cases than basic/municipal prosecutor’s offices currently do. At present, there are no public prosecutors in the RS and the FBiH dealing exclusively with juvenile cases. This task, in addition to other responsibilities, is assigned to a single public prosecutor, who receives no specific training on work with juveniles.
The public prosecutor’s performance is measured by the criterion of efficiency. There is no setting of quotas, as with judges, since the performance is directly linked to the efficiency of others in the chain of justice. The legislative requirement for expediency in juvenile proceedings applies equally to public prosecutors, but those tasked with juvenile cases are in a less favourable position since they also have a large number of other cases to process.
Criminal charges (submitted by the police according to the official regulation, or charges brought by a private person) are always submitted to the public prosecutor and only the public prosecutor may initiate the preparatory proceedings. Public prosecutors contacted during the course of this analysis claim to be aware of problems the police encounter when dealing with juvenile perpetrators, but they believe police officers should monitor certain localities for long periods of time and get to know local communities.
The legally prescribed, summary processing of juvenile cases requires that the public prosecutor should forward the proposal for a sanction or a request for additional proceedings within eight days of concluding the preparatory proceedings.
According to the legislation, and also fully implemented in practice, criminal charges are automatically rejected for children under the age of 14 who are not held to be criminally liable, and the case in question is referred to a social welfare centre. In cases of juvenile criminal liability, the legal provisions allow the public prosecutor to:
review the possibility of recommending educational measures (only in the FBiH)
institute preparatory proceedings
decide to suspend criminal prosecution after completion of preparatory proceedings.
Withdrawal of criminal charges
If the public prosecutor is unable to make a decision on initiating preparatory proceedings based on the criminal charges report, he or she may request additional information relating to the offence and to the background of the suspect. The public prosecutor will withdraw the relevant criminal charges if the case has expired as defined by law (three months after the offence as per the plaintiff’s proposal submitted to the prosecutor),58 if there is an amnesty covering the offence, or if the public prosecutor deems there is no reasonable doubt that the juvenile in question committed the offence stated in the criminal report.59
However, based on the Principle of Opportunity, the public prosecutor may decide not to begin preparatory proceedings in the following situations:
when the case concerns a criminal offence punishable by a fine or by imprisonment of up to three years, but the prosecutor holds that starting preparatory procedures would serve their purpose (even if there is reasonable suspicion that a juvenile has committed an offence) given the nature of a criminal offence, circumstances under which the offence was committed, the previous life history of the juvenile and his or her personality.60
when a sanction is already being enforced for the juvenile (juvenile prison or an educational measure), and thus, given the nature of the criminal offence and the sanction already in progress, starting criminal proceedings would not be appropriate.
The possibility provided by the Principle of Opportunity for offences punishable by a prison sentence of up to three years, served as the basis for pilot projects to divert juveniles from formal criminal proceedings at the Public Prosecutor’s Office and the Centre for Social Welfare in Banja Luka.
Pronouncement of Educational Recommendations – the Federation of BiH
Only the criminal legislation of the FBiH has proposed educational recommendations enabling the diversion of juvenile offenders from formal criminal prosecution and proceedings to out-of-court interventions.61
Prior to making the decision on instituting preparatory proceedings, the public prosecutor (and subsequently the judge) must consider recommending an educational measure in accordance with the Criminal Codes of the FBiH. This law allows for the pronouncement of educational measures for criminal offences which would otherwise be punishable by a fine or a prison sentence of up to three years. This includes criminal prosecutions under private charges (i.e. from a citizen or private source, such as a firm, rather than from the police or public prosecutor), and can be applied for juveniles who are deemed to be co-operative. At the same time, the juvenile must admit to having committed the offence, and be willing to make amends to the damaged party.
All educational recommendations (see Annex II, Types of Criminal Sanctions for Juveniles) may be suspended in the course of implementation, or be replaced with another under the assumption that a new measure will achieve the objective of the recommendation. Suspension is made when there are no positive results, opening the possibility for the institution of criminal proceedings.
The law stipulates that public prosecutors may pronounce five of the nine existing educational recommendations, and judges the remaining four.
Public prosecutors are in the position to pronounce the following measures for juveniles:
personal apology to the damaged party
compensation of damage to the injured party
regular school attendance
visits to educational, reformatory, psychological and other types of counselling centres
education in the area of traffic regulations.
As indicated in OSF-UNICEF study ‘Youth in Conflict with the Law in Light of Current Problems of Juvenile Crime in BiH’, 70% of the prosecutors surveyed in the FBiH have not made an educational recommendation in the past four years (i.e. since the law provided for this possibility). In spite of being in favour of this option, public prosecutors contacted for the purpose of this analysis were not in a position to pronounce educational recommendations due to the lack of procedural solutions and any infrastructure for their implementation.
Likewise, some of the public prosecutors contacted hold that irrespective of the positive aspects of educational recommendations, their introduction has not resolved the current problems relating to existing sanctions, namely the small number of sanctions and the impossibility of enforcing them for serious criminal offences due to the lack of institutions. (See ‘Analysis of some aspects of criminal sanctions, in Chapter 3). Thus, public prosecutors and judges alike resort to pronouncements of educational measures involving intense supervision by a Social Welfare Centre as the most useful non-institutional measure even when, in their view, the most useful measure for the offence would be of an institutional type. The following example seems, however, to reaffirm educational recommendations in the FBiH as useful measures to replace criminal procedures.