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Adopted1July 2003
(Excerpts)
EXECUTION OF DECISIONS
Article 89Execution of Finally Binding Verdicts
(1)A verdict shall become finally binding when it may no longer be contested by an appeal or when no appeal is allowed.
(2)A finally binding verdict shall be executed if its service has been accomplished and if there are no legal obstacles to its execution. If an appeal has not been filed, or if the parties have waived or abandoned the appeal filed, the verdict shall be considered enforceable by the expiration of the time period set forth for appeal, or as of the day of the waiving or abandonment of the appeal filed.
(3)The court shall be competent for the execution of finally binding verdicts.
(4)If amilitary ranking officialhas been convicted, the court shall deliver a certified copy of the finally binding verdict to the body in charge of thedefensein which the convicted person is registered.
Chapter XVI
MEASURES TO GUARANTEE THE PRESENCE OF A SUSPECT OR ACCUSED AND SUCCESSFUL CONDUCT OF CRIMINAL PROCEEDINGS
1. General ProvisionsArticle 180Types of Measures
(1)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, house arrest, bail and custody/detention.
(2)When deciding which of the above mentioned measures to take, the competent body shall meet certain requirements 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.
(3)These measures shall also be cancelledex officioimmediately after the reasons for their application cease to exist, or they shall be replaced with a less severe measure when the requirements for it are met.
(4)The provision of this Chapter shall be applied to the suspect as well, as appropriate.
6. Pre-trial DetentionArticle 188Ordering Pre-trial Custody
(1)Custody may be ordered only under the conditions prescribed by this Code and only if the same purpose cannot be achieved by another measure.
(2)The duration of custody must be reduced to the shortest necessary time. It is the duty of all bodies participating in criminal proceedings and of agencies extending them legal assistance to proceed with particular urgency if the suspect or the accused is in custody.
(3)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.
Article 189Grounds for Pre-trial Custody
(1)If there is a grounded suspicion that a person has committed a criminaloffense, custody may be ordered against him:
a)if he hides or if other circumstances exist that suggest a possibility of flight;
b)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;
c)if particular circumstances justify a fear that he will repeat the criminaloffenseor complete the criminaloffenseor commit a threatened criminaloffense, and for such criminaloffensesa prison sentence of five (5) years may be pronounced or more;
d)if the criminaloffenseis punishable by a sentence of imprisonment of ten (10) years or more, where the manner of commission or the consequence of the criminaloffenserequires that custody be ordered for the reason of public or property security. If the criminaloffenseconcerned is the criminaloffenseof terrorism, it shall be considered that there isrebuttablepresumption that the safety of public and property is threatened.
(2)In a case of Item b), Paragraph 1 of this Article, custody shall be cancelled once the evidence for which the custody was ordered has been secured.
Article 190Citizen’s Arrest
A private person caught committing a criminaloffensemay be arrested by another private person. The person who is so arrested shall 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 191Competence for Ordering Custody
(1)Custody shall be ordered by a decision of the court and on the motion of the prosecutor.
(2)A decision on custody shall contain: the first and last name of the person being taken into custody, the criminaloffensewith which he is charged, the legal basis for custody, explanation,instructionas to the right of appeal, the official seal and the signature of the judge ordering custody.
(3)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 delivery of the decision.
(4)The person taken into custody may file an appeal against the decision on custody with the Panel (Article 24, Paragraph 5) 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 record of questioning, if the person in custody has been questioned, and the decision on custody shall be submitted immediately to the Panel. An appeal shall not stay the execution of the decision.
(5)If the preliminary proceedings judge or preliminary hearing judge does not accept the motion of the prosecutor to order custody, he shall request that the Panel decide the issue (Article 24, Paragraph 5). Against the decision of the Panel ordering custody, the person taken into custody may file an appeal, which does not stay the execution of the decision. With respect to the delivery of the decision and filing of an appeal, the provisions of Paragraphs 3 and 4 of this Article shall apply.
(6)In cases referred to in Paragraphs 4 and 5 of this Article, the Panel deciding the appeal shall take a decision within 48 hours.
Article 192Duration of Investigative Custody
(1)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.
(2)Custody may be extended, upon a decision of the Panel (Article 24, Paragraph 5), 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 does not stay the execution of the decision.
(3)If the proceedings are ongoing for the criminaloffensefor 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 by the Supreme Court ofRepublikaSrpska. An appeal against the decision shall be allowed and it shall be decided by a different panel of the Supreme Court. An appeal does not stay the execution of the decision.
(4)If, before the expiration of the periods referred to in Paragraph 1 through 3 of this Article, an indictment has not been brought for confirmation, the suspect shall be released.
Article 193Termination 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 after the prosecutor is heard. The prosecutor may file an appeal against the decision to the Panel referred to in Article 24 Paragraph 5. The Panel shall reach a decision within 48 hours.
(2)No appeal is allowed against the decision rejecting the motion for termination of the custody.
Article 194Custody 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 indictment, custody may last no longer than one (1) year. If, during that period, no first instance verdict is pronounced, the custody shall be terminated and the accused released.
(3)After pronouncing the first instance verdict, custody may last for no longer than another six (6) months. If during that time no second instance verdict is pronounced reversing or confirming the first instance verdict, custody shall be terminated and the accused released. If within six (6) months a 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.
(4)In any event, custody shall be terminated upon the expiration of the term of sentence pronounced.
Article 195Ordering Custody after the Verdict is Pronounced
(1)When the court pronounces a sentence of imprisonment against an accused, the court shall order custody against the accused or the custody shall be extended if there exist the grounds referred to in Article 189, Paragraph 1, Items a), c) and d) of this Code. The custody shall be terminated if the grounds for which the custody was pronounced do not exist any more. In this case, a separate decision shall be issued, and appeal against such decision shall not stay its execution.
(2)Custody shall be terminated and release of the accused ordered if he has been acquitted or if the charges against him have been rejected or he has been found guilty but released from penalty or he has only been fined or received a suspended sentence or, due to crediting the custody time, he has already served the sentence.
(3)Custody ordered or extended pursuant to provisions of Paragraph 1 of this Article may last until a finally binding verdict but no later than the expiration of the period of sentence pronounced in the first instance.
(4)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 issue a decision to send the accused to a penitentiary institution to serve the sentence even before the verdict becomes finally binding.
Article 196Deprivation ofLibertyand Police Detention
(1)Police may deprive a person of liberty if there are grounds for suspicion that he committed a criminaloffenseand if there are any of the reasons as referred to in Article 189 of this Code, but they must immediately, but 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. Use of reasonable force is allowed when apprehending the person.
(2)A person deprived of liberty must be instructed in accordance with Article 5 of this Code.
(3)If a person deprived of liberty is not brought before the prosecutor within the period as specified in Paragraph 1 of this Article, he shall be released.
(4)The prosecutor is obliged to question the apprehended person without delay, and no later than 24 hours. The prosecutor shall decide within that time whether he will release the apprehended person or file the request for custody of the person in question to the preliminary proceedings judge. The preliminary proceedings judge shall immediately, and no later than 24 hours, issue a decision on custody or on releasing of the apprehended person.
(5)If the preliminary proceedings judge overrules the proposal for the custody, he shall act in accordance with Paragraph 5 of Article 191 of this Code.
7. Execution of Custody and Treatment of Persons Taken into CustodyArticle 197General Provisions
Custody shall be executed in the institutions so designated by law.
Article 198The Rights and Freedoms of Persons Taken into Custody and Data on Them
(1)Custody must be executed in such a manner as not to offend the personal integrity and dignity of the accused. In executing custody, authorized officials of the Judicial Police and guards of the institution may use means of force only in cases prescribed by law.
(2)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.
(3)The administration of the institution shall collect, process and store data on the person taken into custody, including data concerning the identity of the person in custody and his psycho-physical condition, the duration, extension and termination of his custody, the work performed by the person in custody, and his behavior and disciplinary measures applied.
(4)Custody records concerning detainees shall be kept by the RS Ministry of Justice.Article 199Accommodation of Persons in Custody
Persons in custody shall be accommodated in rooms of appropriate sizes that satisfy required health conditions. Individuals of different sexes may not be accommodated in the same room. As a general 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 200Special Rights of Persons Taken into Custody
(1)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.
(2)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 detention facility. When a person is admitted 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 detainee 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 201Right to Communication of Persons in Custody with the Outside World and Defense Attorneys
(1)Upon the approval of the preliminary proceedings judge or the preliminary hearing judge and under his supervision or the supervision of a person designated by him, the detainee may receive visits from his spouse orcohabiteeor relatives, and at his request, from a physician and other persons subject to internal regulations of the custody. Certain visits may be prohibited if they could detrimentally affect the conduct of the proceedings.
(2)The preliminary proceedings judge or the preliminary hearing judge shall allow a consular official of a foreign country to visit the person in custody who is a citizen of that country, subject to the internal regulations of the detention facility.
(3)A detainee may correspond with persons not in custody with the knowledge and under supervision of the preliminary proceedings judge, the preliminary hearing judge, the judge or the presiding judge. A detainee may be prohibited from sending and receiving letters and other mail, but not from sending a motion, complaint or appeal.
(4)A detainee shall be prohibited from using a cellular phone but shall have the right, subject to internal regulations of the detention facility, to make telephone calls at his own expense. To that end, the detention facility administration shall provide the detainees with a sufficient number of public telephone connections. The preliminary proceedings judge, the preliminary hearing judge, the single trial judge or the presiding judge may, for reasons of security or due to the existence of one of the reasons referred to in Article 189 Paragraph 1 Item a) through c), of this Code restrict or prohibit, by a decision, the use of the telephone by a detainee.
(5)A detainee shall be entitled to free and unrestricted communications with his defense attorney.
Article 202Disciplinary Violations by Detainees
(1)The preliminary proceedings judge, the preliminary hearing judge, the single trial judge or the presiding judge may, at the proposal of the manager of the institution, impose a disciplinary penalty of restriction of visits and correspondence for a disciplinary violation by a detainee. This restriction shall not apply to the communications of the detainee with the defense attorney or contacts with a consular official.
(2)A disciplinary violation includes any serious violation pertaining to:
a)physical attack on other detainees, employees or authorized persons, or insult of these persons;
b)making, receiving, importing or smuggling objects for attack or escape;
c)bringing into the institution or preparation in the institution of a narcotic substance or alcohol;
d)breach of rules on safety at work, fire protection and prevention of consequences of natural disasters;
e)intentional causing of serious material damage;
f)indecentbehavior in front of other detainees or authorized persons.
(3)Within 24 hours, an appeal with the panel referred to in Article 25, Paragraph 6 shall be allowed against a decision imposing a disciplinary measure. An appeal shall not stay the execution of the decision.
(4)The administration of the detention facility shall immediately notify the court of the application of disciplinary measures to the detainee.
Article 203Supervision of the Execution of Custody
(1)Supervision over the execution of custody shall be carried out by the president of the court.
(2)The president of the court or a judge designated by him shall be obliged to visit detainees at least once in 15 days, and if he considers necessary, shall inquire, without the presence of the Judicial Police, regarding how the detainees are fed, how other needs are satisfied and how detainees are treated. The president of the court or a judge designated by him shall be obliged to take necessary measures to remedy irregularities noticed during the visit to the detention facility. The president of the court may not delegate supervision over the execution of custody to the preliminary proceedings judge or the preliminary hearing judge.
(3)Notwithstanding the supervision referred to in Paragraph 2 of this article, the president of the court, the preliminary proceedings judge, the preliminary hearing judge, the single trial judge or the presiding judge may visit the detainees at all times, may talk to them and may hear their complaints.
Article 204Detention Book of Rules
The RS Minister of Justiceshall issue the detention book of rules which shall regulate in detail the execution of custody in accordance with the provisions of this Code.