Comparison of the Plea Agreements in the Hague Tribunal and the Courts in the Region The plea agreements before the International Criminal Tribunal for the former Yugoslavia are

re-gulated by the Statute, Rules of Procedure, Evidence and Practice. The rule 62bis stipulates a guilty plea if the defendant pleads guilty or requests to change his plea to guilty and the trial chamber fin-ds that the defendant is entering a guilty plea willingly, aware of all the relevant information, that the guilty plea is not ambiguous and that there are sufficient factual grounds for the existence of the cri-minal offence and for the defendant’s participation in it, either through independent indications or through the absence of any crucial disagreement between the parties to the proceedings regarding the facts of the case, the trial chamber may declare the defendant guilty and instruct the Secretary to set a date for the sentencing hearing (amended on 10 July 1998, amended on 4 December 1998).

The rule 62ter prescribes the plea agreement. The prosecutor and the defence may agree that after the defendant pleads guilty to one or more counts of the indictment, the prosecutor shall request before the trial chamber to amend the indictment accordingly, shall state what specific sanction is deemed appropriate or the range of the appropriate sanction. The trial chamber is not bound by any of the aforementioned agreements. If the parties to the proceedings reach a plea agree-ment, the trial chamber shall request the said agreement to be announced in an open session or if there is a valid reason – in a closed session at the moment the defendant pleads guilty pursuant to the rule 62 or when he requests to change the entered plea to guilty.

In terms of the practice of the ICTY, the first plea agreement was signed in “Erdemović” case.

However, the acceptance of his guilty plea did not go without considerable difficulties caused by the “common law proceedings” Erdemović’s defence lawyer was unfamiliar with (he was from former Yugoslavia) as were the members of the trial chamber (from France, Costa Rica and Egypt). In the appeal proceedings Erdemović’s lawyer argued that the guilty plea of his client was the consequence of the fact that neither the defendant nor his lawyer had understood the im-plications of a guilty plea. He emphasised that the institute of entering a guilty plea was a forei-gn procedure which was then applied to former Yugoslavia and described it as an example of a

“clash” between the common law and civil law legal systems. As may be seen in the aforementio-ned, the process of reaching a plea agreement was an innovation of the practice and the procee-dings and the proceeprocee-dings before the ICTY. After the “Erdemović” case the rules which regulate the procedure for concluding plea agreements have been adopted.

The purpose of a plea agreement is first of all to show sincerity and it is important for the Tribunal to encourage the offenders to assume responsibility through the said institute.

The set rules 62bis and 62ter primarily refer to that: that the guilty plea is given willingly, knowingly, that it must not be ambiguous and that there have to be sufficient grounds for the criminal offence and the participation of the defendant in the said criminal offence. These four legal rules for a valid guilty plea (rule 62bis) and the procedure for concluding the plea agreement can best be understood throu-gh the analysis of a guilty plea in the case of Dragan Obrenović. The request in the “Obrenović” case is an example of how the agreement between the prosecutor and the defence is submitted to the trial chamber in the form of a request together with the plea agreement and the factual grounds. With re-gard to the “Obrenović” case, the specific characteristic was that the Prosecutor’s Office recommended 15 to 20 years in prison while the defendant accepted not to appeal the trial chamber’s judgment unle-ss it imposed the sentence exceeding the limit the Prosecutor’s Office had proposed. The cited part of the plea agreement directly refers to the provisions of the Rules and the Statute on the sentencing ran-ge. The defendant may be sentenced to a maxmum sentence of life in prison in accordance with the rule 101, while the range of the sentence proposed by the Prosecutor’s Office is not binding for the tri-al chamber which has the authority to pass a sentence it deems appropriate (rule 62ter (b)).

Our legal provision is largely similar to the legal provision of the ICTY, except in the part related to the agreement on the sanction since our court is under the obligation to grant the agreement in full, whereas the ICTY trial chamber if it deems it appropriate may pass a more severe senten-ce than the one proposed by the agreement.

In terms of the aforementioned, in the ICTY cases of Dragan Nikolić and Momir Nikolić har-sher sentences were given than the ones proposed in the plea agreement. In the case of Momir Nikolić, the trial chamber passed a sentence of 27 years in prison dismissing the proposed san-ction by the Prosecutor’s Office of 15 to 20 years, as well as the recommendation of the defence of 10 years. In the case of Dragan Nikolić, the Prosecutor’s Office proposed a sanction of 15 years in prison, while the trial chamber sentenced him to 23 years in prison.

As far as the countries in this region are concerned, Croatia has prescribed under Art. 66 of the Criminal Procedure Code elements for the conclusion of the agreement and their legal provisions mainly coincide with our Code, except in particulars of the procedure itself for the conclusion of the agreement which are specified in greater detail , i.e. the rights and obligations of the prosecutor which are regulated by the Law on the State Attorney’s Office of the Republic of Croatia.

The War Crimes Prosecutor’s Office has assumed criminal prosecution in several cases recei-ved from the Cantonal Court of Bihać, BiH, involving a criminal offence of war crimes against civilians pursuant to Art. 142, Par. 1 of the CC of FRY. In one of the said cases, the Prosecutor’s Office of BiH enered into plea agreements with 5 defendants, while the War Crimes Prosecutor’s Office has assumed criminal prosecution of one of the accomplices who is currently in the terri-tory of the Republic of Serbia. The defendant and his defence counsel have been offered a plea

agreement, primarily due to the fact that other accomplices have entered into such agreements in BiH. The deadline for deciding on this proposal has not yet expired.

Assuming criminal prosecution on behalf of the Prosecutor’s Office of BiH has been allowed based on the Agreement between the Republic of Serbia and Bosnia and Herzegovina on the legal assistance in civil and criminal matters (Official Gazette of Serbia and Montenegro – International Agreements no.

6/2005 and Official Gazette of the Republic of Serbia – International agreements no. 13/10), as well as on the Law on International Legal Assistance in Criminal Matters (Official Gazette of RS no. 20/09).

Conclusion

In terms of its application, the said institute under criminal law has been proven to be justifiable in the practice of the War Crimes Prosecutor’s Office and has yielded good results. The total number of concluded agreements in the War Crimes Prosecutor’s Office is ten, out of which four pursuant to the “new” Code. The economy principle has been prominent in the application of this institute, since the court, the injured party, the witnesses, experts, parties to the proceedings and the defence counsels do not have to be subjected to additional expenses related to the main hearing.

In adition to the economy principle, the principle of efficient criminal proceedings has come to the fore since these agreements help the termination of trials within a reasonable time through the observance of the principle of a fair trial.

Plea agreement is an important institute and it should be decided in each case if the legal requirements for its application have been met. Considering that this is a new institute which has only just started its practical application, it is evident that the defendants and their defence counsels are wary of entering into these agreements. In this respect, we should find a way to stimulate the defendants to enter into plea agreements whenever it is advisable, especially when we consider that in the US system over 90%

of cases end in some form of an agreement between the prosecutor and the defendant.

The War Crimes Prosecutor’s Office emphasises that Art. 313 of CPC does not expressly regula-te the plea agreements in the summary proceedings in which the criminal offences are punisha-ble by a fine as the main penalty or a term in prison of up to 8 years. Specifically, in the summary proceedings certain evidentiary actions may be taken but the investigation is not ordered, and this order is a legal prerequisite for the conclusion of the agreement. The Prosecutor’s Office has determined through analysis and interpretation of the Code that the motion to indict is the ini-tial document needed for the conclusion of the agreement. Due to the aforementioned, in order to overcome any dilemmas, it is necessary to regulate the plea agreements expressly with regard to the summary proceedings as well, and especially when it comes to the proceedings involving Public Prosecutor’s Offices with special jurisdiction.

Thus far , in the practice of the War Crimes Prosecutor’s Office, an active role of the prosecutor in terms of initiating the conclusion of the agreement has been proven to be crucial. Since the re-sults of such activities of the prosecutor have been positive, we hold that the said institute deser-ves to be widely applied in the future as well, both in the Prosecutor’s Offices with special juris-diction and in the Prosecutor’s Offices with general jurisjuris-diction after the new Code enters into application.

Veljko Ikanović, PhD¹

PleaBargainingafterTenYearsof

ApplicationinBosniaandHerzegovina

Introduction

When Bosnia and Herzegovina (BiH) joined the Council of Europe, it undertook a series of obligations which were listed in the opinion of the Parliamentary Assembly of the Council of Europe no. 234 (in 2002).² One of the more important obligations was the reform of the cri-minal legislation which was carried out both at the state level and the entity levels. In addi-tion to local experts, internaaddi-tional legal experts played an important role in the said reform.

Substantive criminal legislation has retained, after this reform, the traditional characteristics of the law of continental Europe. On the other hand, the criminal procedure legislation was deve-loped under the deciding influence of American legal advisors, inspired by common law pro-cedural ideas and certain provisions used in the Statute and Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (ICTY). Consequently, a number of institutes and proceedings foreign to our legal tradition and understanding of the role and aim of the criminal proceedings have been introduced and one of the most signifi-cant ones is plea bargaining. It was included in the Criminal Procedure Code of BiH (CPC BiH)³, Criminal Procedure Code of Republika Srpska (CPC RS)⁴, Criminal Procedure Code of the Federation of Bosnia and Herzegovina (FBiH)⁵ and Criminal Procedure Code of Brčko District of Bosnia and Herzegovina (CPC BD BiH)⁶ in almost identical form in 2003.

1 JusticeoftheSupremeCourtofRepublikaSrpska,SeniorLecturer

2 OpinionoftheParliamentaryAssemblyoftheCouncilofEuropeno.234/2002

3 OfficialGazetteofBosniaandHerzegovina,no.3/03,32/03,36/03,26/04,63/04,13/05,48/05,46/06,76/06,29/07,32/07,53/07,76/07,

15/08,58/08,12/09,16/09,93/09.

4 OfficialGazetteofRepublikaSrpskano.50/03,111/04,115/04,29/07,68/07,119/08,55/09,80/09,88/0992/09,100/09and53/12 5 OfficialGazetteofFBiH37/03,56/03,78/04,28/05,55/06,27/07,53/07,09/09,12/10,08/13

6 OfficialGazetteofBrčkoDistrictofBiHno.10/03,48/04,6/05,14/07,19/07,21/07,2/08and17/09and44/10.

Ever since it was introduced, opinions have been divided on the need for its acceptance, on its content and whether the legal definition is comprehensive and whether the set objectives of its introduction have been met. Therefore, it is necessary to provide an analysis of the practical effects of the legal provisions, point out the discrepancies between the substantive and proce-dural provisions of the codes, numerous problems and dilemmas which are hindering and je-opardising the application of this controversial institute after ten years in application. To this end, we shall focus only on certain aspects of plea bargaining which, in our opinion, require another reform and on those aspects which have been introduced into the law in the meanti-me. The remainder of the paper shall mainly focus on the legislation of Republika Srpska (RS), while certain differences compared to the other entity or District or at the state level shall be indicated only if they bear some relevance to our research.

The Reasons for the Introduction of Plea Bargaining into the Legislation of BiH

The introduction of the institute of plea bargaining is the result of the change in the model of criminal proceedings towards the introduction of an adversarial (accusatory) criminal justi-ce system. In such a model, the judge should perform the role of a neutral arbiter assessing the disputed issue, while the central role is assigned to the prosecutor and the suspect, i.e. the defendant. The rationale behind such a radical approach to the regulation and the break with the previous European tradition was the intent to make the criminal proceedings shorter and more cost-effective, to reduce the backlog in courts and reduce the number of unresolved ca-ses. It seems that one of the reasons which goes unmentioned was to facilitate the work of fo-reign judges and prosecutors of the Court of BiH since they are mostly from countries that use common law system. Foreign experts, predominantly from the USA have participated in the training of judges and prosecutors in the application of the new legislation thus critically influ-encing the understanding and interpretation of the substance of this institute.

From the very start, scholars and experts have polarised around the two opposing views on the need to introduce this institute, its advantages and disadvantages. According to the first point of view, plea bargaining is the holy grail of solving the backlog of difficult criminal cases, the instrument of speedy and efficient justice, which is also cost-effective, but this did not prove to be the case. First of all, criminal justice system has never been encumbered by the sheer num-ber of cases which could not be resolved within a fairly reasonable time. Secondly, in the most difficult cases in terms of their scope and content of the procedural materials, the admission of guilt is not that common as has been expected. The defence counsels play a key role in this, especially those appointed ex officio, since they are not motivated to conclude the proceedings quickly due to the potential high remuneration.

Proponents of the second point of view hold that plea bargaining cannot be applied in our ju-dicial practice and that it may undermine the whole legal system founded in our traditions. It has been pointed out that everything is left to the prosecutor, which allows room for abuse and corruption, and that by doing this the trust in courts is lost. These objections have not been proven to be well-founded either.

Proponents of both views agree that there is a certain vagueness and imprecision about the exi-sting provisions, that the procedural and substantive legislations are not harmonised and that

there is a need to formulate precise criteria and control their application. The legislator has been amending the original provisions, rendering them more comprehensive and clearer but their substance has been partly lost which has led to new problems in practice. It is now appa-rent that it was not sufficient to translate and insert the provisions used in the common law sy-stems into our code, because they have a strange tendency to pose a problem and insurmoun-table difficulty when we least expect it.⁷

Considering that the right to dispose of the criminal offence, guilt and punishment is to a gre-at extent left to the defendant, this leads to a kind of reprivgre-atisgre-ation of the criminal proceedin-gs.⁸ Therefore, it is unacceptable to marginalise the role of the injured party which is in this se-gment reduced to a minimum.

Content and its Evolution

In the original text of the Criminal Procedure Code of Republika Srpska⁹ from 2003, it was prescribed that the suspect, i.e. the defendant and his counsel may enter plea bargain negoti-ations until the main hearing with regard the criminal offence he is charged with (Art. 238).

Since the defendant expects certain concessions if he pleads guilty, while the prosecutor aims to make the proceedings more expeditious and cost-effective, it is understandable that the ne-gotiations may last until the main hearing stage. At that stage the presentation of the evidence has not started yet, the parties to the proceedings do not know how the case shall unfold in the trial, since they are not certain in the outcome based on the evidence at their disposal. Given the fact that the court upon deciding on the agreement makes sure that the suspect, i.e. the de-fendant, understands that the agreement entails waiving the right to a trial, it is clear that the plea bargaining may only take place before the trial.

However, it has been known to happen in practice that the defendant wishes to negotiate af-ter the main hearing starts and even at the second instance court hearing. This suited both the prosecutor and the courts since it meant avoiding complex and difficult trial proceedings, the drafting of extensive judgments, appeals proceedings and saving time. Since the law did not provide for this, in most cases it was moved on to the regular trial proceedings ending in the passing of the judgment. The defendants have rarely chosen to plead guilty at the main hearing which would have shortened the proceedings since that would mean that only the evidence related to the sentencing would be presented (Art. 272). This is understandable since the law does not provide for the possibility that the defendant should enjoy some special privilege in exchange for the confession, apart from the fact that it may be judged as any other extenuating circumstance. It seems that this should have been stipulated under substantive law thus rende-ring the procedural provision logical and acceptable in real life.

7 Moreonthisin:M.Damaška,Sudbina anglo-američkih procesnih ideja u Italiji,Hrvatskiljetopiszakaznenopravoipraksu(Zagreb)Vol.

13,no.1/2006,pp.3–15

8 More on this in: A. Eser,Funkcionalne promjene procesnih maksima krivičnog prava: na putu k „reprivatiziranju“ krivičnog postupka,

CollectedPapers,FacultyofLaw,Zagreb,42(2)pp.167–191(1992).

9 OfficialGazetteofRepublikaSrpska,no.50/03

In response to the application of the code in practice and the suggestions made by the judicial

In response to the application of the code in practice and the suggestions made by the judicial