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Univerzitet u Zenici
  Doctoral theses defended at the University in Zenica

Date and place of thesis defense:
09.12.2013, Zenica
Candidate:
mr.sc.Sedžad Milanović
Mentor:
prof.dok. Milan Milosević

Thesis title:
Criminal justice and penal satus of criminal offenders with significantly dimished responsability in BiH with special reference to BiH in the period of 2003-2009

Summary:
The candidate MA Sedžad Milanović made his doctoral thesis entitled „Criminal justice and penal satus of criminal offenders with significantly dimished responsability in BiH with special reference to BiH in the period of 2003-2009“.

Dissertation consists of two separate but dependent parts which are processed in the first theoretical analysis and elaboration of the problem with significantly reduced mental capacity, and in the second part of the empirical research and the results of that research. The dissertation presents a systematic, comprehensive and detailed treatment of important institutes of criminal law and consists of an introduction and ten separate, but interrelated chapters in which the candidate clarifies the position of mentally disordered offenders.

At the end of the paper are concluding remarks for the given problem of the research, articles and bibliography. Doctoral thesis was written on a total of 335 pages, in terms of content it is divided into nine chapters, 109 titles and subtitles, 12 tables and eight charts. The text is supported by the 830 footnotes such documentation and with its content substantially complement the main text. The candidate during the preparation used 136 sources in the form of books, 54 articles of relevant authors, 47 legal acts and 53 judicial decisions of the cantonal courts.

In the introductory part of the candidate presented the actuality of the problem and the importance of research, and emphasized the subject of research which basically refers to two issues: criminal law and penology position substantially impaired mental offenders in the criminal law of Bosnia and Herzegovina. Based on that, the concise presentation of the candidate states that the status of this group of offenders is related to their health, respectively to their mental illnesses and disorders.  

Although this is a relatively recent criminal justice institute that is recently introduced to the law in the late twentieth and early twenty-first century, this institute has its historical origins that can be traced through the status of this population in the community. Facts and evidence that exist today confirm that a number of mental patients are prone to violations of social norms and committing crimes.

It is estimated that today approximately 10% of the world's population (over 650 million) are people with some of the mental disorder or illness. If you take the number of the percentage of those who are prone to violation of the behavioral standards, we will reach the number of about 100 million, or 15% of the population. In recent years, there is a growing public interest for this population, and the significant contribution to it was given by psychiatry, neuropsychiatry, forensics and other science-related research in population of the patients. The development of psychiatry and its approaching to legal theory it was learned that between countable and insane offender’s perpetrators, there is another category that lawyers have defined as substantially reduced countable perpetrators, which is the subject of research in this dissertation.

In the first chapter of the thesis the candidate has done historical reminiscent of this group of offenders to the pre-state community adopted laws in the 2003. From the available literature, the candidate came to the important data and understanding about mental illness and the relationship towards them between the state and society. There is no doubt that in the beginning of the development of community mental illnesses were considered as illness which cause was the impact of the devils, demons and witches. This population was treated in inhuman way, and the same behavioral rules were applied to them as well as to the healthy members of the community. The position of this population has not significantly changed even during the middle ages, and for these individuals the derogatory terms and penalties were used in the form of flogging, deportation and death.  

Throughout the entire period of the new century the brutal and inhuman attitude has continued towards this group of patients, and the Candidate in this part of the paper analyzes a very important impact on life in the church and in this context the population of mentally disturbed persons. The position of the church moved in the direction that it is a disease that is caused by the action of the devil and demons, and that it was a recreant from the faith who brings misfortune to the society and people. This attitude remained until the end of the eighteenth century, when the new criminal laws were adapted which for the first time properly defined position of offenders who have certain mental illnesses.

The following paper analyzes all international laws that define the rights of this population as well as major international organizations which have adopted these documents. Primary focus of this chapter is placed on the analysis of the rights and freedoms of the United Nations documents, documents of the Council of Europe and the World Health Organization. Bosnia and Herzegovina has adopted many of these treaties and thus they have become an integral part of the internal legal system of our country. The Candidate has analyzed the documents listed in the light of their application in the area of ??Bosnia and Herzegovina in the cases brought against the perpetrators with significantly reduced mental capacity.

The third chapter presents the criminal justice situation of people with mental disorders in the national legislation, analyzes the three major institutes in the criminal law in BiH: accountability, incompetence and action libera in causa (voluntary incompetence). The Candidate states that the accountability is one of the most important institutes of criminal law and is closely linked to guilt. This concept has reached a higher level of legal theory conformation as evidenced by the nearly identical definitions in the legislation of countries in the immediate environment. Unlike sanity, insanity as an institute of criminal law always was giving more difficulties in determining and defining.

This is evidenced by the new criminal legislation in BiH who left the classical conception of attitudes in the new concept of the model of the modern legislation insane offenders excluded from the jurisdiction of the criminal law, and according to them, they can not apply any sanctions. With this solution so called dual punishment has been abandoned, which was used to impose some measure of security on mentally incompetent offenders.

At the end of this chapter Candidate analyzes and emphasizes the importance of the Institute actiones libera in causa and notes that this institute is an exception to the rule as it is for criminal responsibilities in this institute it is relevant the time of preceding actions. The Candidate with the use of normative legal analysis defines the legal regulation of persons with mental disorder in BiH using the provisions of the Constitution, criminal law and all other laws that define the rights and obligations of persons with mental disorders.

 

The chapter on substantially reduced mental capability is the most important part of this work, in which certain normative notions of this institution in Bosnia and Herzegovina are defined as well as in neighboring countries and some European jurisdictions. Within this chapter, with the descriptive method Candidate leads a discussion on the biological and psychological basis of significantly reduced mental capacity, and comes to a conclusion about when some of the bases significantly reduced mental capacity occurs and in what forms.  

Comparing the biological basis of the laws of neighboring countries, Candidate states that some legislation stopped the use of terms of permanent or temporary mental illness, and left only a mental illness based upon the grounds that these terms (which are still in use in BiH Criminal Law) do not correspond to modern psychiatric concepts. The Candidate correctly concludes that mental illness cannot be declared permanently on the grounds that any such illness can heal or be cured. An important part of this chapter presents the international classification of mental disorders (MKB-10), which represents the most significant step in the classification of mental diseases and disorders, and psychiatrists that facilitates the identification and diagnosis of most mental illnesses. It is a compilation of various principles of divisions, which could not be avoided due to ignorance of the etiology of most mental disorders, the Candidate concludes in his work.

According to the available statistics, significantly reduced countable offenders make up less than 1% of the total population which commits criminal acts, and in overall crime along with population insane offenders consist of about 3%. This data suggests that this is population that occupies a significant place in the total crime, it also emphasizes that the selection of research topics is significant and important in the criminal law. For the BiH society it is important to the shed light on the scope, etiology, phenomenology, recidivism and other determinants of crime that lead to this group of offenders.

The fifth chapter the Candidate analyzes provisions of the law on criminal responsibility of this group of offenders, ways of determining the significantly reduced mental capacity in legal proceedings and penology treatment of offenders with significantly diminished responsibility. The introduction provides explanations of these concepts with special emphasis on punishment and security measures in Bosnia and Herzegovina and countries in surrounding area. Furthermore, the Candidate in this chapter explains the ways of implementation of security measures in the Criminal Law of Bosnia and Herzegovina with a focus on the measure of compulsory psychiatric treatment and compulsory healing from addiction, which are mainly applied to a population with reduced mental capacity.

Establishing significantly reduced mental capacity in criminal law is the topic of the sixth title, in this chapter different methods of determining the significantly reduced mental capacity have been explained, the role of the expert witness in court proceedings and psychiatric expertise as one of the most significant expertise carried out in the court proceedings.

One of the main goals of this work in addition to the criminal justice was a penal-site treatment of patients with significantly reduced mental capacity, which is taken up work in the seventh chapter of the in the research work. This chapter deals with the concept and importance penological treatment and forms of institutional treatment in the institutions of Bosnia and Herzegovina, while in the empirical part deals with answers to the questions of the convicted person from whom the Candidate drew the conclusions on the status of these populations in institutes where the prison sentence is served.

In the eighth chapter of the thesis named “the review of some previous studies”, the Candidate did a review of some relevant research in Bosnia and Herzegovina, neighboring countries and some European countries. An overview of some research is done with a goal to emphasize the risks of aggressive behavior and crime in this population, as well as the overall position in the same community.

Another unique section of this work is the tenth chapter that fully applies to the review of empirical research of thesis subjects. In the first part of this chapter, the Candidate provides detailed set of a general goal, partial targets, and in accordinance with that he defines the corresponding hypotheses. In the second part, the Candidate presents applied methodological approach which provides a clear defined pattern, measuring instrument and sample of variables for the respective measurement.  

The thesis also contains the method of conducting research and means of processing the collected data. It was pointed out that for the purposes of this research the sample of 103 subjects has been formed, divided into three subsamples of unaccountable, significantly reduced mental capacity and mental capacity offenders. In order to test the hypotheses, in the third part of a comparative analysis of the frequency level of basic structural characteristics applied to the subsamples of respondents, and comparative analysis of the scales of assessment variables of the measuring area. From the multivariate analysis only the discriminate analysis was performed on the manifest variables measuring the area of criminal justice and penology position. All these are categories of offenders.  

At the end of the study Candidate presents concluding remarks as it is customary in writing doctoral thesis. The presented result corresponds to the initial set of research theses. On the basis of empirical research and results that the Candidate concluded, emphasis is placed on the results of the verification of the hypotheses mentioned in the first part of this paper. The research was conducted on a methodologically correct way with the use of modern tools for data processing. The sample of respondents was selected in a proper way according to the criteria of maximizing the sample. For the purpose of the study two types of variables were used, which were used to collect numerous important data in order to conclude the a proper and useful conclusions, all this led to a high-quality contributions to the discovery of the determinants of risk and criminal and penological characteristics of this population offenders.

With the successful and high-quality processing of this problem the Candidate contributed significantly to the development of the institute of significantly reduced mental capacity, as well as clarification of the position in the criminal justice and penal status of this population. Significantly reduced countable offenders have an important place in the criminal law and may pose a challenge for future researchers in this area, and this thesis work may be useful to some of them.

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