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Metoda obserwacja procesów sądowych – obserwacja ogólna – obserwacja specjalistyczna opr. Łukasz Bojarski


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III. Interrogation by police / investigative judge - safeguards


  1. Where and when was the accused interrogated? 233.1.




  1. How long did it take between preferring charges against the accused and his first interrogation? 233.2.




  1. Please indicate the number of interrogations.




  1. Please indicate the duration of each interrogation.




  1. Please indicate the intervals between interrogations.




  1. Where was the interrogation held? 233.3.




  1. Who conducted the interrogation(s) (name, surname, position held)?




  1. Were any other persons present during interrogation? What was their procedural status?




  1. Was a lawyer present during the interrogation of the accused? 233.5.




  1. Were the above-mentioned details recorded by the law enforcement officials? If yes, please provide (a) transcript(s) of this record along with any audio or video recordings. 233, 234.




  1. Were any audio, video, film or other recording techniques used during interrogation? 233.8.




  1. Did the investigator inform the accused of his rights to the assistance of defence counsel and to refuse to testify before the start of the interrogation? 233.9.




  1. Did the investigator ascertain, at the beginning of the interrogation, whether or not the accused pleads guilty to the charge against him? 233.10.




  1. Was the right of the accused to remain silent respected during interrogation? 233.11.




  1. Was a record drawn up of all circumstances of interrogation with the accused? 234.1.




  1. Did the record reflect the date, time and place of the interrogation, as well as the interrogator’s name? 234.1.




  1. Was the accused informed of his rights and duties? Was a respective note included in the interrogation record? 234.1.5.




  1. Was the accused allowed to make a statement in handwritten form? 234.3.




  1. Was the accused shown the record upon completion of the interrogation? 234.4.




  1. Was the accused given the opportunity to request additions and make amendments? 234.4.




  1. Was the record signed by the accused and the investigator? 234.5.




  1. In the case where the record was drawn up in several pages, was each page signed separately by the accused? 234.5.




  1. In the case where audio, video, film or other recording techniques were used during interrogation, were the relevant recordings, tapes and other data devices attached to the record? 234.6.




  1. Was an interpreter provided free of charge in the case where the detainee did not understand the language of the authorities? 91.5.11, 153.2.9.




  1. Was the accused informed of his right to remain silent? 233.11, 371.3.6.




  1. Was there any information or documents among the materials of the case concerning torture/ill-treatment of the detainee?




  1. If yes, please answer the following questions:




    1. who does the information on the pertinent facts come from? (his procedural status);

    2. nature of the ill treatment/torture;

    3. who carried out the ill treatment / torture?




  1. Was physical (mental) pressure used against the detainee during interrogation?




  1. If yes, please indicate:




    1. who used physical (mental) pressure?

    2. nature of physical (mental) pressure.




  1. Were restraints used during the interrogation? If yes, please describe the nature of the restraints. Were they applied throughout the interrogation?




  1. Were there any allegations of unfairness on the part of the police responsible for the investigations? If yes, by who and of what nature?

Any other comments of the observer:


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IV. Preparation of the defence


  1. Was the accused informed of what he is accused of? Was he informed of the content, factual description and legal classification of the charge? 91.5.1.




  1. Did the accused receive a copy of the pertinent decision immediately after the charge is brought against him, or he is arrested, or the decision on subjecting him to restrictive measure is announced? 91.5.1.




  1. Did the accused receive a written notification about his rights from the person who detained him or executed the arrest warrant (preliminary investigator, investigator or prosecutor)? 91.5.2.




  1. Was the accused able to acquaint himself with the record of detention immediately after it is drawn up and to make observations for inclusion in the record? 91.5.3.




  1. Did the accused have a defence counsel from the moment of arrest or announcement of the charge? 91.5.4.




  1. Was the accused provided with a defence counsel free of charge in case he could not afford to pay for it? 91.5.5.




  1. Was the accused able to inform his family, relatives, home, workplace or place of study immediately after detention, by telephone or other means? 91.5.6.




  1. Was the accused able to choose a defence counsel independently? 91.5.7.




  1. Did the accused have unlimited opportunities and time to meet his lawyer in private and in confidence? 91.5.8.




  1. Did the accused petition for being interrogated with his defence lawyer present? What was decided on this petition? 91.5.9.




  1. Did the accused lodge complaints against decisions and acts of the preliminary investigator, investigator or prosecutor? If yes, please indicate the date of the complaint, its addressee and contents.


V. Rights of the defence lawyer


  1. How much time did the lawyer have to prepare the case (including speaking to the accused and reviewing documents)?




  1. Were the accused and his lawyer granted access to appropriate information, including documents, information and other evidence that might help the accused prepare their case, exonerate them or, if necessary, mitigate a penalty? 92.




  1. Did the lawyer have unlimited opportunities and time to meet his client in private and in confidence? 92.9.2.




  1. Did the lawyer lodge any complaint regarding this? If yes, please state the outcome. 92.9.2.




  1. Was the lawyer able to participate in investigative and other proceedings involving the participation of his client? 92.9.3.




  1. Did the lawyer lodge any complaint regarding this? If yes, please state the outcome. 92.9.3.




  1. Did the lawyer lodge any objections? What was decided upon them? Was a due note taken of these objections in the investigation record or in other procedural documents? 92.9.6




  1. Did the lawyer lodge any petitions? What was decided upon them?

Any other comments of the observer:


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Trial stage

For this section please provide, where possible, the following documents:

  • A Transcript of the hearing

  • A Transcript of the judgement

  • Written rejection of witnesses by the court

  • Written statements by the defence about ill-treatment

  • Where the judge rejects an investigation into allegations of torture the decision and reasons should also be in writing

  • A copy of the indictment, which includes prosecution arguments

  • Written version of the defence arguments



I. Hearing


  1. Was the accused present at his/her trial? If not, what were the reasons for his absence? (Please include here the reasons given by the court as well as any other possible reasons.) 311.1.




  1. Where was the hearing held?




  1. Were there any state symbols in the courtroom?




  1. Was everyone who wanted to participate in the hearing able to do so?




  1. Was the hearing held in public? If the trial was not public, what were the reasons given for that in the relevant court decision? (morals, public order, national security, interest of the parties, publicity would prejudice?) 199.




  1. Was anyone denied access to the courtroom? How was it grounded?




  1. Did the accused have a substantial disadvantage vis-à-vis the prosecutor? (Were his petitions and evidences adduced by him groundlessly denied? Were his requests to call witnesses turned down?)




  1. Where necessary, was competent translation/ interpretation provided? If not, why not? 99.




  1. Was the accused bearing any prejudicial signs e.g. wearing handcuffs, shackles, prison uniform in court?




  1. Was the accused able to consult with his lawyers during the hearing?




  1. Please indicate the names of the judges and any lay judges.




  1. Did the judge have any involvement in the pre-trial stages of the process?




  1. Are there any factors which cast doubt on the impartiality of the judges? e.g. Do the members of the trial chamber have any relationship with the executive, police, prosecution? If any facts about the existence of such relationship were revealed during the proceedings, please indicate them.




  1. Are there any factors which cast doubt on the independence of the tribunal? Please describe these factors.




  1. Was there an objection to a judge? Who raised the objection? 109.1.




  1. Which grounds were brought for objection? 109.1.




  1. Was the objection considered?




  1. Who (which court) decided upon the objection? Was this decision grounded? 109.3.




  1. Was there an objection to other actors of the trial? Who raised the objection and what was decided?




  1. Were all the judges present during the whole trial? If any of them had ever left the courtroom, please indicate when it happened and how long the judge was absent?




  1. During the hearing, did any judge receive a phone call? Did the judge answer the call?



II. Examination of evidences during the hearing
Questioning of the accused


  1. Was it ascertained whether the accused pleads guilty or not? 325.1.




  1. Did the presiding judge explain to the parties the order in which evidence is to be taken during the court hearing? (the order in which the accused, victims and witnesses are to be questioned and other procedures are to be conducted.) 325.1.




  1. What order was observed in examining of evidence during the court hearing? 325.2.




  1. Did the presiding judge, when starting the questioning, propose that the accused give evidence on the charge brought against him, as well as on other circumstances of significance for thorough, full and objective examination of the charge? 326.1.




  1. Was the accused asked questions irrelevant to the case? Were such questions dismissed by the presiding judge? 326.4.




  1. Was the accused able to testify at any time during the court’s examination of any evidence? 326.5.




  1. Was the accused taken out of the courtroom during the hearing? How did the court ground this decision? 326.9.




  1. Was the accused taken back to the courtroom?




  1. Was the testimony of other accused persons questioned in his absence which was included in the record of hearing read out upon his return to the courtroom? 326.9.1.




  1. Was the accused given the opportunity to give any necessary evidence and to put questions to the accused persons questioned in his absence? 326.9.2.




  1. Was the testimony given by the accused during the pre-trial proceedings or at the current hearing, as well as audio, video or film recording of this testimony made public or demonstrated? 327.1.


Questioning of witnesses


  1. How many witnesses were heard?




  1. In which manner were the witnesses questioned? (separately and in the absence of those witnesses yet to be questioned, or in some other way?) 328.1.




  1. Please list the names of the witnesses that were heard.




  1. Was the witness explained, before the start of the questioning, the right to refuse to testify against himself or his close relatives? 328.2.1.




  1. Was he notified of the criminal liability incurred for refusing to testify or for intentionally giving false testimony? 328.2.3.




  1. Did the witness acknowledge in writing this notification? Was this acknowledgement added to the record of the hearing? 328.3.




  1. Did the witness take an oath before he testified?




  1. Was the witness given the opportunity to testify on the facts known to him in connection with the charge under consideration? Did any actor of the proceedings interrupt his testimony? What was the reaction of the court? 328.5.




  1. Did the witness leave the courtroom after being questioned? 328.9.




  1. Was the defence able to question witnesses?




  1. Were testimonies of anonymous witnesses used?




  1. Were requests of the defence to call witnesses turned down? If yes, what were the reasons for this?




  1. Were witnesses discouraged to testify?




  1. Did both parties have the opportunity to have obtain and comment on the observations filed or evidence adduced by the other party?




  1. Was the relevant material made available to both parties? And at what stage of the proceedings?




  1. Were any allegations of torture made in court? Were any complaints submitted in this regard? If yes, by whom? Please describe briefly the nature of the allegations and/or complaints. Please provide the name(s) and any other information about the person(s) against whom the allegation was made.




  1. How were these allegations handled by the court?




  1. Were investigations into these allegations made? What type of investigations if any was ordered?




  1. Did the judge adjourn the trial for an independent investigation to be carried out and if so by whom. Was the matter investigated by the judge himself during the trial? Is so, what did the judge do? If an investigation was carried out, what were the results of this investigation?




  1. Were any statements used in trial which were alleged to have been elicited under torture/ill-treatment or duress? Were there any petitions to dismiss those evidences?




  1. What was decided upon these petitions?

Any other comments of the observer:


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Questioning of the victim


  1. In which manner was the victim questioned at the hearing? 330.1.




  1. Did the victim leave the courtroom after being questioned? 330.4.



Expert reports during the hearing


  1. Was any expertise conducted during the pre-trial proceedings? Who petitioned for conducting the expertise? 331.1.




  1. Was the expert opinion given during the pre-trial proceedings examined at the hearing? 331.1.




  1. Did the parties to the proceedings petition for conducting a revised or additional expertise after examining the expert’s opinion? What was decided upon this petition? 331.3.




  1. Was each party to the proceedings able to get acquainted with any petition by the opposite party regarding the conduct of expertise? 331.6.1.




  1. Was the expert’s opinion announced at the hearing after being submitted to the court? 331.12.


III. Judgement


  1. How did the judges render the final decision? Did they retire to the deliberation room?




  1. How long did the deliberation last?




  1. Was the judgement made public? If not, why not?




  1. Were the reasons for the judgement given?




  1. How long did it take to receive the judgement?

Any other comments of the observer regarding the course of the proceedings:


______________________________________________________________________

Date and place:

________________________________________________________________________

Signature of the Observer:

________________________________________________________________________




  1. Spis treści podręcznika dla obserwatora opracowanego w ramach projektu obserwacji procesów sądowych w Bośni-Hercegowinie (Trial monitoring manual).

TABLE OF CONTENTS
TRIAL MONITORING PROGRAMME OVERVIEW 6

I. RATIONALE 6

II. STRATEGIC OBJECTIVES OF THE PROGRAMME 7

III. PROGRAMME AIMS 7

IV. PHASE 1 – POST-INDICTMENT MONITORING 8

GENERAL INTRODUCTORY PRINCIPLES FOR OSCE BIH TRIAL MONITORS 9

I. THE ROLE OF TRIAL MONITORS 9

II. CONDUCT OF MONITORS – THE IMPORTANCE OF NON-INTERVENTION 10

CONFIDENTIALITY 12

I. THE NEED FOR CONFIDENTIALITY 12

II. RELATIONS WITH THE MEDIA 13

III. EGREGIOUS VIOLATIONS AND MISCARRIAGES OF JUSTICE 13

ATTENDANCE AT COURT 14

I. CHOICE OF SEATING 14

II. APPEARANCE OF IMPARTIALITY 14

III. CONDUCT WHILE IN COURT 14

IV. INTERPRETATION OF PROCEEDINGS 15

REPORTING GUIDELINES 16

I. BASIC PRINCIPLES AND PURPOSES OF REPORTING 16

II. STRUCTURE/CONTENT OF REPORTS 16

III. CASE FILE DOCUMENTATION 20

DAILY REPORT TEMPLATE 21

ARTICLES 5 & 6 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 23

I. ARTICLE 5 ECHR – RIGHT TO LIBERTY AND SECURITY 23

II. ARTICLE 6 ECHR – RIGHT TO A FAIR TRIAL 23

III. PROTOCOL 7 ARTICLE 2 – RIGHT OF APPEAL IN CRIMINAL MATTERS 24

FAIR TRIAL STANDARDS CHECKLIST 25

I. ARREST 25

II. POLICE/PROSECUTOR QUESTIONING 25

III. CONDITIONS OF DETENTION 25

IV. PRE-TRIAL CUSTODY 25

V. PRELIMINARY TRIAL PROCEEDINGS 26

VI. MAIN TRIAL 26

VII. COURT-APPOINTED COUNSEL 26

VIII. THE VERDICT/RIGHT OF APPEAL 27

RS/FBIH CRIMINAL PROCEDURE CODES (CPC) AND FAIR TRIAL STANDARDS (FTS) 28

I. POLICE CUSTODY 28

II. PRE-TRIAL 29

III. TRIAL 31

IV. WEBSITE RESOURCES 33

BIH CPC ORDER OF PROCEEDINGS CHART 34

PARTICIPANT ROLES DURING INVESTIGATION AND TRIAL STAGES 36

I. THE POLICE 36

II. THE PROSECUTOR 37

III. PRELIMINARY PROCEEDINGS JUDGE/PRELIMINARY HEARING JUDGE 38

IV. PRESIDING JUDGE 39

V. DEFENSE COUNSEL 39

IMPUNITY AND THE ROLE OF PROSECUTORS AND JUDGES 40

I. RESPONSIBILITIES OF THE PROSECUTOR 40

II. RESPONSIBILITIES OF THE JUDGE 41

III. IMPUNITY MONITORING CHECKLIST 42

RS/FBIH LAWS ON PROTECTION OF WITNESSES IN CRIMINAL PROCEEDINGS (LPW) 43

I. ARTICLE 3 RS/FBIH LPW – DEFINITION OF A WITNESS UNDER THREAT AND VULNERABLE WITNESS 43

II. APPLICATION OF PROTECTION MEASURES 43

III. SPECIFIC MEASURES 44

RS/FBIH JUVENILE CRIMINAL PROCEDURE & JUVENILE JUSTICE STANDARDS (JJS) 45

I. RELEVANT STANDARDS 45

ACCESS TO JUSTICE/LEGAL AID 47

I. LEGAL AID AND THE RS/FBIH CRIMINAL PROCEDURE CODES 47

II. COSTS OF CRIMINAL PROCEEDINGS 51

III. LEGAL AID ISSUES AND THE NEW CPCS 52

IV. CONCLUDING REMARKS 59

LEGAL AID AND EUROPEAN COURT OF HUMAN RIGHTS CASE LAW 60

I. ARTICLE 6(3)(C) ECHR 60

II. ACCESS TO COURT - ARTICLE 6(1) ECHR 60

III. RIGHT TO DEFEND ONESELF IN PERSON OR THROUGH COUNSEL/RIGHT TO FREE LEGAL ASSISTANCE – ARTICLE 6(3) ECHR 61

ORGANIZATION OF THE BIH COURT SYSTEM 64

I. STATE LEVEL COURTS 65

I. STATE LEVEL COURTS 66

II. HIGHER LEVEL ENTITY COURTS 67

III. ENTITY LOWER COURTS 68

IV. BRCKO DISTRICT COURTS 71

V. JUDICIAL POLICE 72

BIH PROSECUTOR OFFICES 73

I. STATE LEVEL: BIH PROSECUTOR’S OFFICE (BIH PO) 73

II. ENTITY LEVEL 73

III. BRCKO DISTRICT PROSECUTOR’S OFFICE (BD PO) 75

HIGH JUDICIAL AND PROSECUTORIAL COUNCILS (HJPCS) 76

I. STATE LEVEL: BIH HIGH JUDICIAL AND PROSECUTORIAL COUNCIL 76

II. ENTITY LEVEL: FBIH/RS HIGH JUDICIAL AND PROSECUTORIAL COUNCILS 77

BAR ASSOCIATIONS/JUDICIAL & PROSECUTORIAL TRAINING CENTRES 78

I. FBIH/RS BAR ASSOCIATIONS 78

II. FBIH/RS CENTRES FOR JUDICIAL AND PROSECUTORIAL TRAINING 78

MONITORING OF WAR CRIMES TRIALS 80

I. MONITORING CONSIDERATIONS 80

II. THE INDICTMENT 81

III. WITNESS TESTIMONY 82

IV. THE VERDICT 83

V. USEFUL ICTY JUDGEMENTS 84

MONITORING OF HUMAN TRAFFICKING CASES 85

I. AVAILABILITY OF TRANSLATION 85

II. VICTIM INVESTIGATION STATEMENTS ADMITTED AT TRIAL 85

III. TEMPORARY INSTRUCTIONS ON THE TREATMENT OF TRAFFICKING VICTIMS 86

IV. APPLICABLE LEGAL PROVISIONS 86

IMPORTANT PROVISIONS OF THE RS/FBIH CRIMINAL PROCEDURE CODES 88

TALKING POINTS 98

I. PURPOSE OF OSCE’S TRIAL MONITORING 98

II. NATURE OF TRIAL OBSERVATION 98

III. REPORTING 98

IV. HOW JUDGES AND PROSECUTORS CAN ASSIST 99



FAQS 100



INPRIS – Instytut Prawa i Społeczeństwa, Projekt „Opracowanie i upowszechnienie wśród organizacji pozarządowych różnych metod monitorowania instytucji wymiaru sprawiedliwości” finansowany przez Fundację im. Stefana Batorego.

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