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Univerzitet u Zenici
  Doctoral theses defended at the University in Zenica

Date and place of thesis defense:
30. 07. 2012., Zenica
Candidate:
Nezir Pivić
Mentor:
Prof. dr. sc. Tadija Bubalović


Thesis title:
The role and  proceeding of the prosecutor in the criminal procedure

Summary:
Dissertation „ULOGA I POSTUPANJE TUŽIOCA U KRIVIČNOM POSTUPKU“/ THE ROLE AND  PROCEEDING OF THE PROSECUTOR IN THE CRIMINAL PROCEDURE represents systematic, coherent and detailed processing  of the  important thematic  area from the field of criminal processing law. It consists of the introduction, the nine thematic separate wholes which include research about the prosecution and court practice on the role and proceeding of the prosecutor in criminal procedure, particularly critical view on the legal system and practice of action of the prosecutor in the criminal procedure. Besides that, this work contains the conclusion and the bibliography. Mentioned thematic area was processed on 259 pages altogether and in the sense of the content it was divided into 9 chapters, 21 titles, 57 subtitles and 37 smaller thematic units. The text was supported with 997 footnotes which supplement the main text in the sense of documentation and content. Conducted research results were presented textually in 17 tables and graphics as well. Bibliography contains 194 bibliographical units and 40 sources.
 
In the introductory part, the reasons for the topic selection and the aims of research were given, as well as methodological approach to the topic. The established aims of the work are mostly related to determination of the legal position and the role of prosecutor in the new criminal processing legislation of Bosnia and Herzegovina and then determining whether their new, remarkably different position can successfully meet demands of criminal procedure of 21st century in the fight against delinquency, especially the most serious: organized, transnational and international, and finally whether the function of criminal pursuit of crime perpetrators which was entrusted exclusively to the general attorney, possible and enough without the existence of subsidiary attorney. Mentioned directions of research are recognized with reasons as actual and useful scientific and research examinations and qualified answers on those questions will enable better assessment of the prosecution function in the criminal procedure.

Chapter two gives the overall presentation of term of the prosecutor institution in criminal law. Before that it has been told about the term, object and the aim of criminal procedure, main functions in criminal law as well as the subjects of criminal law. In this way the role of prosecutor was positioned in the criminal law processing system through the main criminal procedure functions and subjects of the criminal procedure. After that the detailed conceptual determining of the prosecutor in the criminal procedure was given, in the theoretical, legal, constitutional, and international juridical aspect. In this way the doctrinal and legislative conceptual frame of the prosecutor institution in criminal processing law of Bosnia and Herzegovina and international context was determined.
 
Chapter three contains the historical presentation of prosecutor institution in criminal procedure in the world and in our country. The historical presentation of the prosecutor institution in the criminal procedure in the world was given through its presentation in the criminal procedure of the Roman law through the period of the Kingdom, period of the Republic and the period of the Empire.
Such presentation of the role of prosecutor in the Roman law was given through the presentation of the Roman political organization and the rule of the City of the Rome. This presentation is not only interesting but also useful due to opinion that in the ancient Roman era the rule of procedure initiation against the citizen who committed some punishable behaviour was important. After that, the position and the role of the prosecutor was presented in the light of the three basic forms of the criminal procedure, accusatorial criminal procedure, inquisitorial criminal procedure and combined (accusatorial-inquisitorial) criminal procedure. The differences in the entire position of the prosecutor in the mentioned models of the criminal procedure were quoted in the paper. Presentation of the prosecutor institution in our country was given for the period from 1873 to 1992 according to main criminal procedural laws. Prosecutor’s position has been changed depending on the social and system of government in the particular period.

In the chapter four, comparative legal presentation of the role and proceeding of the prosecutor in some countries established after the ex Yugoslavia collapse was given as follows: Croatia, Serbia and Montenegro. The role and proceeding of the prosecutor in the mentioned countries was analyzed through the particular stages of the criminal procedure, starting with pre-criminal procedure, then investigation, accusation procedure, main hearing and the procedure on legal recourses/remedies. Beside that, the smaller scale view of the reform changes of the criminal procedure in the mentioned countries has been made and these changes have led to the different role of the prosecutor in the analysed legislations.

In chapter five the comparative legal view of the position and the role of the prosecutor in some criminal legislation of foreign countries such as the USA, Germany, France and Switzerland was given. By the comparative analysis of the legislation systems of the mentioned countries, the significant determinants of the position and role of the prosecutor in those legislation systems were presented. This presentation enables the more correct and more objective consideration of the legal position of the prosecutor in our domestic criminal legislation.

Chapter six gives the review of the legal position and proceeding of the prosecutor before international criminal tribunal such as the International Criminal Tribunal for ex Yugoslavia (ICTY) and International Criminal Court (ICC). The role and proceeding of the prosecutor before the international criminal tribunals was analysed through the initialization and conduction of the previous procedure, main hearing and procedure by the legal recourses/remedies. The research of the position and role of the prosecutor before these international tribunals would demand the additional research and analysis which would enable the acceptance of the standards of the accusation function before all of those tribunals and domestic criminal processing legislations.

Chapter seven represents the central and the main part of presentation. In this part of the paper the extended and detailed quotation about position, role and proceeding of the prosecutor were given, according to the Criminal Procedure Law of Bosnia and Herzegovina. In the introductory part of this chapter the general position of the prosecutor in criminal processing law of Bosnia and Herzegovina was given and the issues of General Attorney’s Office as the main state body were analysed as well as the prosecutor as the main subject and party in the criminal procedure. After that, the main jurisdictions of the prosecutor in the criminal procedure were given, as well as the principles on which the work of the General Attorney Office is based, the organization and jurisdiction of the particular Attorney Office as well as legal terms for appointment of the prosecutor function carriers. After that, the role of the prosecutor in entire criminal legal system of Bosnia and Herzegovina was presented and it is seen in its: repressive role – criminal pursuit of crime perpetrators; protective role – protection of the citizens and the society from delinquency; legal role – protection of the legality in the criminal procedure; corrective role – passing the legal sanctions and preventive role – prevention of delinquency. After the presentation of the role of the prosecutor, the extended and systematic legal review of prosecutor’s proceeding was given and it was given in: investigation, accusation procedure, main hearing, and the procedure by the legal recourses/remedies. Within the mentioned presentation, the reformation of criminal procedure from 2003 was analysed. This reformation has brought the new model of the criminal procedure which does not fit to all standards of European continental law as well as the legal tradition of Bosnia and Herzegovina. The changes brought by this reformation were related, among others, to the role and position of the prosecutor in the criminal procedure. In the new structure of the criminal procedure and within the previous procedure, instead of court, the prosecution investigation was introduced. In this way the concept of the investigating magistrate was abandoned and replaced by the prosecutor who was entrusted the investigation initiation and conduction. Function of the accusation was entirely given to the prosecutor as the state body where the possibility of private and subsidiary charge was excluded.  Also, in this new model of the criminal procedure, the prosecutor is the party in the criminal procedure as well as state body and in that aspect the prosecutor has got an additional obligation besides the function of the criminal pursuit and it is to take care of constitutionality and legality in court bodies. 

 

Taking all mentioned aspects in consideration, this part of the paper analyses whether this kind of criminal procedure can meet demands having been set to the criminal procedure of the 21st century as well as whether it can effectively protect the individual and the society from all forms of delinquency and provide protection of the basic rights and freedom of the citizens in the criminal procedure accordingly. Also, it has been analysed whether the innovations that have been introduced in our criminal processing legislation, seen in the transferring the investigation in the prosecutor’s jurisdiction, have achieved the desired goal as well as whether this criminal procedure has successfully met the challenges of present time and the new forms of delinquency. 

In chapter eight the research results of prosecuting and court practice on the role and action of the prosecutor in the criminal procedure were presented. It was done mainly through the practice of the General Attorney Office of Bosnia and Herzegovina. The research is related to period of three years (2008, 2009, and 2010) in which all files in which the General Attorney Office of Bosnia and Herzegovina proceeded before the Court of Bosnia and Herzegovina were analysed.
 
Chapter nine comprises the critical view on the legal system of the legal position, the role and proceeding of the prosecutor and Attorney Offices in the criminal processing law of Bosnia and Herzegovina. Within this chapter, the aspects on actual issues of the position and the role of the prosecutor in the criminal procedure were named, and based on them, the suggestions on the possible new solutions about more effective role of the prosecutor in the criminal procedure were given. The aim was to make the more effective protection of individuals and the society from all forms of delinquency, total protection of constitutionality and legality in the criminal proceeding towards the citizens as well as the better protection of the basic human rights and fundamental freedom of the citizens in the criminal procedure. 

In the concluding considerations, the most important aspects that arose during creation of the paper were put forward. The new position and the role of the prosecutor in the criminal law system of Bosnia and Herzegovina is the result of synchronisation of domestic criminal processing legislation with the contemporary tendencies in the wider international community and the good practice of the foreign legislations. It is also the reflexion of our requirements for more determined and more effective struggle against more and more serious forms of delinquency.

Keywords: Criminal Procedure Act, prosecutor, criminal proceeding, investigation, indictment procedure, principal hearing, legal remedy.


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