The influence of Anglo-Saxon law on BiH legislation and practice: plea bargaining in the FBIH 2003-2015.

Tendencies of modern science of criminal procedural law and solutions of contemporary comparative criminal procedural legislation in connection with simplified forms of proceeding in criminal matters have, quite justifiably, found their place in the criminal procedural legislation of Bosnia and Herzegovina. The comprehensive reform of domestic criminal legislation from 2003 aimed, among other things, at creating a normative basis for increasing the efficiency of criminal proceedings. As a result, new institutes such as guilty pleas, plea bargaining, criminal order, witness immunity, etc. are being introduced. Since its introduction into the criminal procedure in Bosnia and Herzegovina, plea bargaining has become one of the key institutes of the comprehensive reform of the criminal procedure. The process of introducing this institute followed a change in the direction of conducting an adversarial (accusatory) criminal justice system in a broader sense.

Plea bargaining is based on Anglo-Saxon common law and allows prosecutors and suspects or the accused to negotiate the type and length of criminal sanctions, with the condition that the suspect or the accused admits to having committed a criminal offense and agrees to waive certain basic rights such as the right to a public hearing before the court, to ensure public court proceedings and the right to appeal. The purpose of the application of plea bargaining and the conclusion of plea agreements is to make full use of insufficient judicial resources, to speed up the criminal procedure and contribute to the promptness of the courts in resolving cases, and thereby to improve the efficiency of the criminal justice system in general. Although it is also called "abbreviated procedure" in domestic legislation, this should not mean ensuring a lesser degree of respect and protection of the basic human rights that the suspect or the accused enjoys within the framework of the criminal procedure. within a reasonable time, without delay and uncertainty related to the duration of the procedure, unnecessary proof of facts that are not in dispute and reduction of the costs of the criminal procedure.

Since this institute was introduced into the domestic legislation, opinions have been divided about the need for its acceptance, the content and completeness of the legal definition and the achieved goals that were set during its introduction. There is not a small number of issues that have been, and continue to be, debated in the professional public about how to solve them. Among the many questions when it comes to plea bargaining, those related to the scope of application (whether its application is justified in the most serious crimes), the content of the text of the agreement, the type and amount of the criminal sanction in the concluded agreement, the place and the role of the person stand out. injured by a criminal offense in the process of concluding an agreement, the role of the defense attorney in the process of negotiation and the court's decision on the agreement, the moment of procedural activation of the court, that is, the question of the possibility and basis of the use of legal remedies and the like.

In relation to the above, we believe that after thirteen years of plea bargaining in domestic legislation, it is necessary to provide an analysis of the practical effects of legal solutions, and possibly point out problems that complicate and endanger the application of this institute. The project will include the research of domestic judicial practice in connection with the application of the plea bargaining institute, and the scope of its application in practice. In addition, the research will also be directed towards examining the views of the professional public in Bosnia and Herzegovina (judges, prosecutors and defense attorneys) about the current application of this criminal procedure institute. The knowledge we gather will enable us to better understand whether and to what extent plea bargaining is accepted by the professional public, and in what way the professional public justifies or does not justify the more frequent use of plea bargaining. The results of the research will be the basis for determining the actual scope of the existing legal solutions and indicating the needs and possible directions for their improvement.

The aim of the research

The subject and content of the proposed project are aimed at achieving the following goals:
1) Theoretically and practically present and explain the institution of plea agreements in domestic and comparative law;
2) On the basis of empirical research, determine to what extent the institution of plea bargaining is applied in court practice;
3) Examine the views of the professional public (judges, prosecutors and defense attorneys) on the justification of introducing the institution of plea bargaining into domestic legislation;
4) Identify key problems in the normative regulation of the institution of plea agreements as well as obstacles in its more efficient application;
5) Stimulate the interest of the scientific and professional public in a broader reasoned discussion on this topic.

. Expected research results:

Research on the proposed topic will contribute to a better and more complete understanding of the institution of plea bargaining in both domestic and comparative law. In an empirical sense, the research of judicial practice should determine the extent to which the institution of plea bargaining is used in practice, and possible obstacles to its more effective application. Also, areas where improvements are possible would be identified and recommendations would be made for the development of the relevant legal framework, legislative and practical solutions for the purpose. The results of research into the views of the professional public on the justification of the introduction of the plea bargaining institute into domestic legislation can indicate future trends in reducing or increasing its application in practice.

The results of this research can have a wide application for representatives of the judiciary, in order to have a better insight into the issue of the application of the institute of plea bargaining. The research would also be significant for universities, in the education and training of law and criminology faculty students, that is, for all those who educate future judges, prosecutors, criminologists, etc., who will apply this knowledge in practice. The results can be used for further research in this area, especially in the territory of Bosnia and Herzegovina, but also in other countries in the region and beyond, as well as for government institutions and ministries, when making and making relevant decisions, strategies and undertaking concrete measures of criminal policy in with the aim of creating a stimulating environment for the effective fight against crime. The systematization and unification of theoretical and practical knowledge obtained through this research will significantly contribute to the actualization and more effective application of the institute of plea bargaining.

Project team members:
Assoc. Ph.D. Denis Pajić, project manager
Assoc. Ph.D. Šejla Maslo Čerkić, researcher
v.assist. mr. Sunčica Hajdarović, junior researcher

The project is financed by the Federal Ministry of Education and Science.