Uviđaj u krivičnom procesnom pravu Bosne i Hercegovine
Filipić, Goran R.
Faculty:Универзитет у Нишу, Правни факултет
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The dissertation is structured in three complementary and thematically processed units devoted primarily to the criminalprocedural and criminal aspects of the insight. This dualist character of the insight and the necessary unity of its elements imposed a need to consider both aspects of this institute theoretically. The first part of the paper contains of two chapters. The first one relates to the theoretical-methodological approach and the framework of research, and the second one to theoretical approaches to define the notion of insight and its legal definition, as well as the characteristics of the continental and Anglo-Saxon model of investigation and insights within it, as well as the advantages and disadvantages of both. The second chapter ends with the criminal investigation model in BH, the reasons for its legalization and the problems that arise in practice. The issues related to the insight in the judiciary practice of BH are considered in the second part of the
paper. This second part also contains two chapters. The first one refers to the observation of the positive law of BH and its entities – the Federation of BH, the Republic of Srpska and Brcko District, including the competencies of the authorities for conducting the investigation. The second chapter relates to the specificity of the investigation for certain criminal offenses, for proper orientation in conducting the investigation, especially in relation to criminal-technical measures and actions, which shall be individualized and adapted to the conditions and specifics of each particular criminal case (for example, in the case of robbery, murder, rape, arson, etc.). The third part of the paper deals with the probative force of the investigation in the criminal procedure and the values of the investigation activities. The most common mistakes and weaknesses during the survey conduction are separated. An overview and analysis of the research results and conclusions are given at the end of the paper. The aim of the dissertation is to examine and determine the justification of the change in the practice of conducting the investigation, based on the theoretical and empirical indicators obtained from the conducted research, since the model of public prosecution investigation in Bosnia and Herzegovina, as well as its entities – the Federation of BH, the Republic of Srpska and Brcko District of BH, in 2003 was taken over mechanically, without previous valid investigation of the shortcomings and the lack of application of the continental, judicial model of investigation and insights within it. The method of researching social phenomena is used in the research and analysis of this problem. In addition to the use of general methods (method of observation, method of description, method of scientific explanation), the normative method is used too, in order to establish the legal norm for the survey during the scientific work of this topic, as it is prescribed in Bosnia and Herzegovina and implemented in practice. A comparative legal method of legal regulation of insights is also used in judicial and public prosecutorial investigation. An analytical-statistical method and functional analysis are used in the empirical research, where the statistical data of the RS MoI – the number of performed surveys – are processed. The statistical data of the RS Prosecutor's Office on the total number of initiated and completed investigations are provided in order to examine the application insights as evidence in practice, and its impact on the flow and efficiency of the proceedings. The analysis and comparison of statistical data on the number of investigations carried out, their outcome in the three-year observed period of judicial investigation (2000, 2001 and 2002) and the three-year observed period of application of public prosecutor's investigation (2004, 2005 and 2006) has been done. This is done in order to obtain valid indicators regarding the impact which the concept of judicial or prosecutorial investigation has on the quality of investigations in relation to suspensions, accusations and incomplete investigations, and to see how this reflects the effectiveness of the criminal proceedings as a whole. The results of the survey are presented in the second part of the survey (using the questionnaire "opinion" according to the Likert method), which is used as a research technique for collecting peer views and opinions of former investigative judges, current prosecutors, police officers and lawyers on affection or adversity to court or prosecutorial concept of investigation. This kind of research enables the comparison of police activities and investigative judge activities in a pre-trial procedure on the one hand and the investigation conduction in court investigation on the other hand, including the activity of police and public prosecutor in performing the investigation in prosecution investigation. The presented results confirm and undoubtedly indicate that the public prosecutor's investigation contributes more to the efficiency of the procedure than court investigation. Also, the majority of total respondents express affection for the prosecution, which indicates that this research absolutely confirms the justification to introduce prosecution investigations in Bosnia and Herzegovina.View More
Keywords:Krivični postupak; Criminal procedure; investigation; judicial investigation; prosecution investigation; action of evidence; insight; inspection documentation; istraga; sudska istraga; tužilačka istraga; radnja dokazivanja; uviđaj; uviđajna dokumentacija