ASSESSMENT OF JUVENILE JUSTICE
REFORM ACHIEVEMENTS IN
BOSNIA AND HERZEGOVINA
© The United Nations Children’s Fund (UNICEF), 2011
This report has been prepared by Daniel O’Donnell
at the request of the UNICEF Regional Office for CEE/CIS
Front cover photo: UNICEF/BiH 2010/Kapetanovic
ASSESSMENT
OF JUVENILE
JUSTICE REFORM
ACHIEVEMENTS
IN BOSNIA AND
HERZEGOVINA
UNICEF Regional Office for Central
and Eastern Europe/Commonwealth of Independent States
February 2011
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Contents
Note on the Assessment Mission........................................................................................................................................................................................................3
Background ........................................................................................................................................................................................................................................................................4
Executive Summary ...............................................................................................................................................................................................................................................7
PART I. The Process of Juvenile Justice Reform ......................................................................................................................................................... 10
1.
Policy.................................................................................................................................................................................................................................................................. 10
2.
Law reform ..................................................................................................................................................................................................................................................11
3.
Administrative reform/restructuring....................................................................................................................................................................... 13
4.
Allocation of resources ............................................................................................................................................................................................................. 14
5.
Training and capacity-building ........................................................................................................................................................................................ 15
6.
Accountability mechanism ................................................................................................................................................................................................... 16
7.
Coordination ............................................................................................................................................................................................................................................ 16
8.
Data and research ............................................................................................................................................................................................................................. 16
PART II. The Juvenile Justice System in Bosnia and Herzegovina..................................................................................................... 19
1.
Prevention ................................................................................................................................................................................................................................................... 19
2.
The arrest and interrogation of suspects .......................................................................................................................................................... 20
3.
Detention prior to and during trial.............................................................................................................................................................................. 21
4.
Diversion and restorative justice ................................................................................................................................................................................. 23
5.
Adjudication and sentencing ............................................................................................................................................................................................. 25
6.
The rehabilitation of convicted juveniles .......................................................................................................................................................... 31
7.
Younger children involved in criminal activity........................................................................................................................................... 36
PART III. UNICEF’s Support to Juvenile Justice Reform .................................................................................................................................. 40
PART IV. Conclusions and Recommendations ............................................................................................................................................................... 43
POSITIVE DEVELOPMENTS ............................................................................................................................................................................................................. 43
CHALLENGES ..................................................................................................................................................................................................................................................... 44
RECOMMENDATIONS ............................................................................................................................................................................................................................. 45
Annex 1. Data collection and analysis....................................................................................................................................................................................... 48
Annex 2. List of persons interviewed ........................................................................................................................................................................................ 52
Annex 3. List of documents consulted ..................................................................................................................................................................................... 54
Annex 4. Note on terminology............................................................................................................................................................................................................. 56
2
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
“Children not treated professionally [by the police] often turn into recidivists.
We tend to forget that offenders are also victims…
Tolerance of violence encourages violence by juvenile offenders.”
– The head of a cantonal juvenile police department
Note on the Assessment Mission
The assessment mission took place from 12 to 23 April 2010. The team consisted of Dan O’Donnell,
international consultant, and Eldar Jahić, national consultant. Support was provided by Selma Turkić
and Mario Tokić of UNICEF.
The team interviewed the head of the Juvenile Justice Coordination Body, a judge of the Supreme
Court of Bosnia and Herzegovina and the Ombudsperson of Bosnia and Herzegovina. The team
also met a representative of the Ministry of Justice of the Federation of Bosnia and Herzegovina, a
representative of the Ministry of Labour and Social Policy of the Federation, a Federal prosecutor and
a representative of the Ministry of Internal Affairs of the canton of Sarajevo.
In Banja Luka, a focus group was convened with a judge, a representative of the municipal Centre for
Social Welfare, two police officers and a representative of the Republika Srpska Ministry of Justice.
A separate meeting was held with a representative of the Ministry of Health and Social Welfare.
Meetings were held with representatives of the Agency for Statistics of Bosnia and Herzegovina, the
Federal Office of Statistics of the Federation of Bosnia and Herzegovina, and the Republika Srpska
Institute of Statistics.
The team also met a representative of the Bureau for Human Rights, an NGO, a professor of the
Faculty of Criminal Sciences at the University of Sarajevo, and a defence attorney.
Visits were made to the disciplinary centre in Vogos̆ća, Sarajevo; the juvenile unit within the Zenica
prison; the juvenile unit of the East Sarajevo prison; the educational-correctional unit located within
the Tunjice prison in Banja Luka; and the day centre for the prevention of offending in Banja Luka.
A planned visit to the educational-correctional unit located within the adult prison in Tuzla did not
take place due to logistical constraints. Unfortunately, the assessment team was unable to visit any
pretrial detention facility.
Meetings were held with the Organisation for Security and Co-operation in Europe (OSCE) and
the Office of the Italian Development Cooperation. The final day of the assessment mission, the
team debriefed the UNICEF Representative and personnel of the Country Office together with
representatives of the Swedish International Development Agency and the Swiss Cooperation Office
as well as the head of the Juvenile Justice Coordination Body.
In the final phase of the assessment mission, the draft report was shared with the stakeholders
involved, who kindly provided feedback and inputs. Among them a particular thank goes to Judge
Dragan Uletilović, for his exceptionally valuable contribution.
The lists of persons interviewed and documents consulted are attached (see Annexes 2 and 3).
3
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Background
Bosnia and Herzegovina became independent from the Socialist Federal Republic of Yugoslavia
(SFRY) in 1992. Independence was followed by armed conflict and ethnic cleansing, which ended
with the Dayton Agreement in 1995.
The Dayton Agreement led to the establishment of a state consisting of two ‘entities’, the
Republika Srpska and the Federation of Bosnia and Herzegovina (‘Federation’), and Brcko District.
The Federation consists of 10 cantons, each having its own legislature and ministries. There are
141 municipalities, 79 in the Federation and 62 in the Republika Srpska.1
The population is estimated at 3.447 million, including some 745,500 persons (21.6 per cent) under
age 18. 2 The UNDP Human Development Report 2002 estimated the population to be 48.3 per
cent Bosniak, 34.0 per cent Bosnian Serb and 15.4 per cent Bosnian Croat. 3 The population of the
Federation of Bosnia and Herzegovina is estimated at 2. 2 million, or approximately 64 per cent of
the total population, and that of the Republika Srpska at 1.16 million, or 33.8 per cent of the total
population. 4
The Constitution of Bosnia and Herzegovina was adopted in December 1995, as an annex to the
General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement). The
Constitution provides that duly ratified treaties are part of the national law and, in case of conflict,
prevail over legislation. Annex I to the Constitution recognizes the applicability of 15 human rights
treaties, including the Convention on the Rights of the Child. The Convention initially came into force
for Bosnia and Herzegovina in 1991, as a result of ratification by the Socialist Federal Republic of
Yugoslavia; Bosnia and Herzegovina became a State Party by succession in 1993.
Bosnia and Herzegovina became a member of the Council of Europe in 2002, and signed a Stabilization
and Association Agreement with the European Union in 2008. It became a Party to the European
Convention on Human Rights and Fundamental Freedoms in 2002.
The National Action Plan for Children in Bosnia and Herzegovina (2002–2010) included a section on
the judicial system and law reform and another on ‘children in conflict with the law’. The latter set
forth 10 objectives regarding juvenile justice and child victims of crime. The Action Plan established
a Council of Children of Bosnia and Herzegovina responsible for monitoring implementation, 5 which
ceased to function in 2007.
At the time it became a party to the Convention on the Rights of the Child, Bosnia and Herzegovina
had only some elements of a juvenile justice system. There was no law specifically on juvenile
justice: the legal framework for dealing with juvenile offenders was contained in provisions of the
Criminal Code, the Code of Criminal Procedure and other legislation. There were no juvenile courts,
although specific judges were assigned to handle cases in some courts. Juveniles given prison
sentences were confined in a special section of the prison for men or prison for women. Children
4
1
Agency for Statistics of Bosnia and Herzegovina, Bosnia and Herzegovina in Figures 09 , Sarajevo, (undated), pp. 4–5.
2
Ibid. (The last census took place in 1991, before the war, and another is planned for 2011. More than half the population was
displaced during the conflict, which affects the reliability of estimates.)
3
United Nations Development Programme, Human Development Report 2002 Bosnia and Herzegovina , UNDP, Sarajevo,
2002, p. 112.
4
Bosnia and Herzegovina in Figures 09 , supra, pp. 4–5. The last census took place in 1991.
5
Ministry for Human Rights and Refugees, National Action Plan for Children in Bosnia and Herzegovina (2002–2010) ,
Sarajevo, April 2002, pp. 9–10.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
under age 14 involved in offending or antisocial behaviour could be confined in the Institution for
the Education of Boys and Male Adolescents ‘Hum’ by decision of the ‘guardianship authority’. There
was no specialized police unit.
Published data on offending by juveniles are scarce and fragmentary. According to information
obtained from the Federation, 2,675 offences were committed by juveniles from 1992 to 1996. The
significance of these data is difficult to determine; offences committed during the war (1992–1995)
no doubt were under-reported. In 1997, the number of reported offences by juveniles was 1,343,
including 445 in the canton of Sarajevo.6
Data on offending by juveniles and juvenile justice in the Federation have been published regularly
since the beginning of the decade. They indicate a 70 per cent increase of reported offending from
2001 to 2007.7 However, the increase in the number of juveniles prosecuted during these years is
considerably less – 21 per cent – and a mere 6 per cent for the years 2000 to 2008. 8 The number of
juveniles sentenced appears to have declined in the Federation over this period, from 375 in 2001 to
279 in 2007. 9
Data concerning Banja Luka, Republika Srpska’s largest city, indicate that offending by juveniles fell
significantly during the years immediately following the war, from 281 cases in 1995 to 171 in 1998.10
Reported offending later increased sharply, however, as shown in the following table:
Year
1999
2000
2001
2002
2003
2004
2005
Reported
offenders11
354
416
n/a
635
676
1,039
942
Data for 2002 to 2005 include children under age 14. The exact extent of the increase over the whole
period therefore is uncertain. Data on the number of juveniles convicted during these years are
scarce, but they confirm that most reported offences do not result in conviction, and that there was a
surge in offending in 2003 and 2004.12
6
Committee on the Rights of the Child, Consideration of reports submitted by States parties under Article 44 of the
Convention, Initial report of Bosnia and Herzegovina, CRC/C/11/Add.28, 2004, paras. 355 and 382; and (for Sarajevo) see
Sijerc̆ić-C̆olić, H., Bubalović, T., and Kosović, J., Criminal-Legal Provisions on Juveniles in the Federation of BiH Related to
the Perpetrators of Criminal Offences , Soros Foundation-UNICEF, Sarajevo, 2001, para. 2.
7
Federation of Bosnia and Herzegovina, Federal Office of Statistics, Statistical Yearbook 2008 , Sarajevo, 2008, Table 25-5.
8
Federation of Bosnia and Herzegovina, Federal Office of Statistics, Reported, Accused and Convicted Adults and Juveniles
and Economic Contest [sic] in Federation of Bosnia and Herzegovina for 2008, Statistical Bulletin No. 130 , Sarajevo, 2009,
Table 2.6. (The English title for this table refers to ‘accused and convicted’ juveniles, but a comparison with other data
reveals that it actually refers to juveniles prosecuted – see the section below on data.)
9
Statistical Yearbook 2008 , supra, p. 339. (These figures include offenders given either sanctions or ‘security measures’;
excluding security measures, there was a much smaller decrease from 274 offenders given sanctions in 2001 to 267
offenders in 2007.)
10
Committee on the Rights of the Child, CRC/C/11/Add.28, supra, para. 399 (from 281 juvenile offenders in 1995 to 171 in
1998, a decrease of 39 per cent, in the city of Banja Luka).
11
Judge M. Simović, Young Criminal Offenders in view of the Current Problems of Juvenile Criminal Justice in the Republic of
Srpska , Faculty of Law, University of Banja Luka, 2001, p. 6 (for 1999 and 2000); Ministry for Human Rights and Refugees, The
Strategy against Juvenile Offending for Bosnia and Herzegovina (2006–2010), Sarajevo, 2006 , p. 5, citing reports of Republika
Srpska Prosecutor’s Office. Data for 2002 to 2005 include children under age 14; it is not clear whether data for earlier years do.
12
The Strategy against Juvenile Offending for Bosnia and Herzegovina (2006–2010) , supra, p. 5 (187 convictions recorded in
2003 and 414 in 2004).
5
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The Initial Report of Bosnia and Herzegovina on the implementation of the Convention on the
Rights of the Child was prepared in 2004 and examined by the Committee on the Rights of the Child
(‘the Committee’) in 2005.13 A second report has been prepared and submitted, but has not yet been
examined. The Committee expressed concern about a number of issues regarding juvenile justice, in
particular:14
•
the stigmatization of children in conflict with the law;
•
the lack of sufficient data concerning the number of juveniles in conflict with the law;
•
inadequate research on prevention activities and mechanisms to evaluate the adequacy of
existing measures;
•
the lack of alternatives to detention and community-based rehabilitation programmes; and
•
the detention of juveniles with adults, poor material conditions of detention and inadequate
access to education.
The recommendations made by the Committee include:15
6
•
systematic training for judges should be ensured;
•
measures should be taken to guarantee respect for the ‘last resort’ principle;
•
conditions of detention should be improved, and juveniles in custody should be separated
from adults and given access to a full programme of educational activities (including physical
education);
•
more ‘precise’ legal regulations on diversion should be set up;
•
conditions of supervision of juvenile detainees ordered by the juvenile judge should be more
clearly defined;
•
consideration should be given to amending the legal provisions on sentencing of offenders aged
16–17 years by eliminating the one-year minimum term of imprisonment as well as by reducing
the 10-year maximum term;
•
in Republika Srpska, the right to a defence counsel should be established from the beginning of
the criminal proceedings.
13
Committee on the Rights of the Child, CRC/C/11/Add.28, supra; Committee on the Rights of the Child, Consideration of
reports submitted by States parties under Article 44 of the Convention, Concluding observations: Bosnia and Herzegovina,
CRC/C/15/Add.260, 2005.
14
Committee on the Rights of the Child, CRC/C/15/Add.260, supra, para. 73.
15
Ibid., para. 74.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Executive Summary
Bosnia and Herzegovina became independent in 1992. The armed conflict and ethnic cleansing
that followed ended in 1995 with the Dayton Agreement, which established a complex political and
administrative system that includes a central ‘state’ government and two ‘entities’, one of which is a
federation composed of 10 cantons, each with its own ministries and legislature.
Data suggest that offending by juveniles may have increased during the present decade, but this
conclusion must be treated with caution given the fragmentary nature of existing data.
The process of developing a juvenile justice system compliant with international standards began
a decade ago. Situation analyses on juvenile offending and juvenile justice in the entities were
published in 2001. The National Action Plan for Children in Bosnia and Herzegovina (2002–2010)
contains a detailed section on juvenile justice. A national Strategy against Juvenile Offending
(2006–2010) was adopted and a Juvenile Justice Coordination Body was established in 2009. A law on
juvenile justice based on international standards was adopted by Republika Srpska in February 2010
and came into force in January 2011.16 A similar draft law is under consideration in the Federation,
but had not been adopted as the present report was finalized (February 2011).
Implementation of the Strategy against Juvenile Offending has been limited. This is due in part to
the complex structure of the country and to financial constraints, but it is also due in large part to
insufficient political will. Although the Ministry for Human Rights and Refugees and some influential
judges and police officials are strongly committed to strengthening and modernizing juvenile justice,
other ministries and legislatures have different priorities.
A number of institutions implement good practices. Two are located in Banja Luka: a communitybased ‘day centre’ for the prevention of offending and an ‘educational-correctional unit’ for convicted
juveniles. The day centre offers a broad range of activities, including parent counselling; participation
is voluntary. The educational-correctional unit is physically separate from the prison that it forms
part of. It resembles a house, and offers a comprehensive programme of activities aiming to prevent
reoffending.
The newly opened ‘juvenile unit’ in the East Sarajevo prison is also a positive development, because
convicted juveniles are housed in a separate building designed specifically to meet their needs and
ensure separation from older prisoners.17
The newly established ‘disciplinary centre’ for community-based rehabilitation of offenders in
Sarajevo is another good practice. It offers an intensive and comprehensive programme to prevent
reoffending. Residential placement is limited to 20 days, and most juveniles participate on a
non-residential basis. Recidivism reportedly is low amongst juveniles who have attended this centre,
and among those released from the educational-correctional unit in Banja Luka.
Specialized police units, responsible for investigating offences committed by juveniles as well as
prevention, exist in some cities. Police violence against juveniles reportedly is rare.
The national Ombudsman has a unit for child rights that actively monitors conditions in facilities for
juveniles. This is another positive development.
16
Law on Protection and Treatment of Children and Juveniles in Criminal Proceedings, Official Gazette of Republika Srpska,
13/10.
17
Most juvenile offenders are actually over age 18, however, and there is no similar facility for female juvenile offenders.
7
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Some courts have specialized judges and prosecutors for juvenile cases, although the law requiring
this has not yet come into force. Some Centres for Social Work (CSWs) also have specialized units for
dealing with juvenile offenders and juveniles at risk. These are also positive developments, although
the capacity of the CSW teams needs to be strengthened, at least in the Federation.
In 2009, the UNICEF Country Office obtained financing for a three-year project on juvenile justice.
Implementation began late in the year. The project is informed by research carried out by national
experts. It builds on the results of previous projects and activities of other international actors and
addresses most of the relevant issues.
A number of serious problems concerning children in residential settings remain to be addressed.
One is the detention of juveniles awaiting trial in adult facilities, at least in the Federation.18 Another
is the existence of a closed unit for younger juveniles within the adult prison in Tuzla. A third is
the recent renovation of an open multipurpose facility in Sarajevo. The renovations are designed
to reduce the risk of peer violence, but by increasing security they have created a prison-like
environment unsuitable for children at risk.
Despite some advances in collecting and publishing data on juvenile offending and juvenile justice,
in particular in the Federation, the data available remain fragmentary and insufficient. No data on
offending by juveniles or on juvenile justice concerning the whole country are published.
The recommendations made by the assessment team include:
8
•
The next national strategy on juvenile offending should be based on a realistic assessment of
risks and foreseeable constraints; a careful analysis of the changes to the system that are most
urgently needed; and an evidence-based assessment of the cost-effectiveness of the possible
approaches and measures for addressing problems identified as a priority.
•
Priority should be given to helping social welfare authorities develop the capacity to fulfil their
responsibilities under the new law; the possibility of increased cooperation with civil society
should be explored; and the role of new services should be defined so as to complement,
and not duplicate, that of the CSWs.
•
Priority also should be given to closing existing gaps in secondary prevention programmes
and strengthening diversion programmes, possibly by establishing more disciplinary centres19
and day centres (like the Banja Luka centre) where the need is greatest; the results of such
programmes should be documented as a step towards the identification and consolidation
of methodologies that are effective in the prevention of offending and reoffending.
•
The need for residential facilities, the appropriate use of existing facilities and the possible need
for a new facility in the Federation should be reassessed, urgently, to ensure that all juveniles
deprived of liberty are placed in specialized centres providing an appropriate level of security,
adequate conditions and programmes designed to meet the needs of the respective populations.
•
The effectiveness of different dispositions, measures and sentences should be monitored and
analysed to evaluate the impact of the new law and the way prosecutors and judges exercise
their discretion.
18
The assessment team was unable to ascertain the extent to which this problem exists in Republika Srpska.
19
Republika Srpska’s new Law on Protection and Treatment refers to these as ‘educational centres for juveniles’. None exist
there at present.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
•
Consideration should be given to establishing a pilot project to provide legal assistance to
accused juveniles, and possibly other children in need.
•
Standards on training in child rights and juvenile justice need to be developed, and such training
should be incorporated into entry-level and in-service training programmes on a permanent
basis; the feasibility of developing links between training programmes and research,
and between practitioners and academia, should be explored.
9
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
PART I. The Process of Juvenile Justice Reform
1. Policy
Bosnia and Herzegovina became independent in 1992, and was consumed by armed conflict until 1995.
The issue of juvenile justice was beginning to appear on the social and political agenda by the end
of the decade. In December 2001, parallel studies on juvenile justice in Republika Srpska and the
Federation were published. 20 The latter ended with a series of recommendations that, inter alia ,
called for a new law on juvenile justice, for diversion measures, and for the creation of new facilities
for juvenile offenders, child victims of crime and those in need of treatment for substance abuse and
psychiatric problems. 21 It also called for more research, a comprehensive system of data collection,
training of professionals and community- and school-based prevention programmes.
In 2002, a National Action Plan for Children in Bosnia and Herzegovina (2002–2010), inspired by the
World Summit for Children, was adopted, with the support of UNICEF. 22 The Plan contained a section
on ‘children in conflict with the law’, which covered children at risk and child victims of crime as well
as juvenile offenders, and focused mainly on the role of law enforcement authorities.
In 2003,
Children
relevant
Juvenile
a symposium on juvenile justice was organized by the Open Society Fund and Save the
UK. Some 80 experts attended. The proceedings of the symposium were circulated to the
authorities, and ultimately led to the adoption, in 2006, of the national Strategy against
Offending (2006–2010). 23
The Strategy was based on a superficial analysis of the scarce data available, and a list of
the ‘presumptions’ (e.g., political will, coordination, allocation of resources) required for
implementation. 24 It had five components: law reform, alternative measures, institutional treatment,
prevention, and implementation of legislation. Each of the components contained a strategic goal and
a list of activities, and each activity was accompanied by a list of ‘duty bearers’, resources required,
time frame and progress indicators.
Of the 43 activities foreseen in the Strategy, no more than seven have been carried out to any
significant extent. This is a disappointing result. One reason is that the coordination mechanism was
not established until 2008, halfway through the period of implementation envisaged. Interestingly,
it was not created until after certain tragic events that had a major impact on public opinion. In
2008, three young Roma boys with a long record of criminal conduct burnt an elderly woman to
death, and a resident of the open facility in Sarajevo killed an adolescent in a tram. The public outcry
led to the renunciation of the mayor of Sarajevo and the Prime Minister of the canton of Sarajevo.
It had important consequences for juvenile justice, including the opening of a closed educationalcorrectional unit for juveniles aged 14–18 years within the Tuzla prison, the transfer of the Hum
multipurpose facility from the canton to the Federation and the establishment of the Juvenile Justice
Coordination Body. The efforts of the Coordination Body during the last two years are responsible
for the most significant accomplishments that have taken place within the framework of the Strategy.
10
20
Judge M. Simović, Young Criminal Offenders in view of the Current Problems of Juvenile Criminal Justice in the Republic of
Srpska , Faculty of Law, University of Banja Luka, 2001, p. 6; Judge J. Kosović, Young People in Conflict with the Law in the
Light of Topical Problems concerning Juvenile Criminal Justice , Association of Criminal Law and Criminology, Sarajevo, 2001.
21
Young Criminal Offenders in view of the Current Problems of Juvenile Criminal Justice , supra, pp. 53–54.
22
Ministry for Human Rights and Refugees, National Action Plan for Children in Bosnia and Herzegovina (2002–2010) ,
Sarajevo, April 2002, pp. 2–3.
23
Ministry for Human Rights and Refugees, The Strategy against Juvenile Offending for Bosnia and Herzegovina (2006–2010) ,
Sarajevo, 2006.
24
Ibid., pp. 4–5 and 10–11, respectively.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The Strategy is a good one in some ways. The emphasis on diversion and alternative sentences
is sound. The emphasis on prevention and on developing effective approaches to rehabilitation in
closed settings – issues that sometimes are overlooked – are also appropriate, as is the attention
given to research, data collection and intersectoral cooperation. The biggest flaw in the Strategy was
the failure to assess realistically the obstacles and foreseeable risks to its implementation.
Several of the authorities interviewed attributed the low level of implementation to the complex
political structure of the country and, to a lesser extent, to shortage of funds. In effect, implementation
of the Strategy requires action by the national authorities, the two ‘entities’ (Republika Srpska and
the Federation), the ten cantonal governments, the municipal governments and Brcko District. This is
certainly one reason, but the fact that implementation was taken more seriously after the tragic events
of 2008 indicates that lack of political commitment was also a factor that impeded implementation.
The main accomplishments, to date, include the drafting of a law on juvenile justice and its adoption
by the legislature of Republika Srpska, the adoption of a decree regulating alternative measures in
Republika Srpska and the Federation, and the relatively effective functioning of the Juvenile Justice
Coordination Body. At the time of the assessment mission, the draft law on juvenile justice was in its
second reading by the legislature of the Federation, and the process of revising the national Strategy
against Juvenile Offending was expected to begin soon. There are factors that will complicate the
process of developing the juvenile justice system in the immediate future, including differences
concerning the future of the Hum multipurpose facility, the large number of regulations (‘by-laws’)
considered necessary to put the new law fully into effect, disagreements about the proper role of
social welfare authorities, the limited capacity of the social welfare authorities and decentralized
responsibility for financing them. Nevertheless, the advances observed since 2008 seem to indicate
that the momentum and progress during the next four or five years should be greater than the results
achieved during the 2006–2010 Strategy.
2. Law reform
After independence, priority was given to adopting new criminal codes and codes of criminal
procedure for Bosnia and Herzegovina and the two entities, the Federation and Republika Srpska.
These codes were adopted in 2003.
The idea of a law specifically on juvenile justice was first proposed by a judge for juveniles in the
2001 study on juvenile justice carried out in the Federation. A draft ‘Law on Juvenile Offenders‘
was prepared in 2005. The need for such a law was recognized in the 2006–2010 Strategy, and a
second draft was produced in 2008. 25 Originally, the intent was that it be adopted by the legislature
of Bosnia and Herzegovina. The legislators determined, however, that juvenile justice is within
the competence of the entities, so the draft law would need to be adopted by the legislatures of
the Republika Srpska and the Federation (as well as Brcko District). At the time, it was agreed that the
text would be adopted by both entities without amendments.
The law was adopted in Republika Srpska in February 2010, with the title Law on Protection and
Treatment of Children and Juveniles in Criminal Proceedings (‘Law on Protection and Treatment’),
and came into force in January 2011. Despite the understanding that the texts adopted should be
identical, numerous changes were introduced into the version adopted by Republika Srpska, and
changes have also been proposed by various actors in the Federation. 26 The Juvenile Justice
Coordination Body is playing a lead role in lobbying for the adoption of the law in the Federation.
25
This draft was entitled Law on Juvenile Criminal Offenders and Protection of Children under Criminal Legislation.
26
The authors of the report had access to the 2008 draft law, but not to amendments to the draft under consideration by
the legislature of the Federation; consequently, all references to the draft law refer to the 2008 draft.
11
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The law was drafted with the intent of ensuring full compatibility with the relevant international
standards, and is a good example in that respect (see Part II, below). It calls for two complementary
regulations or laws, on diversion and on the conditions that can be imposed as part of alternative
sentences. The former was drafted by a working group of the Juvenile Justice Coordination Body
and is now in force in both Republika Srpska and the Federation.
The assessment team’s main concerns are the feasibility of law implementation, in particular with
regard to the numerous and important responsibilities assigned to social welfare authorities. They
include:
•
preparing or assisting in the preparation of pretrial reports on the background of accused
juveniles/juvenile suspects; 27
•
attending preparatory or preliminary proceedings in the absence of parents; 28
•
supervising accused juveniles not in detention; 29
•
providing services to offenders under age 14; 30
•
assisting juveniles given diversion measures; 31
•
supervising juveniles given alternative sentences, including ‘intensive supervision’; 32
•
assisting parents to carry out ‘intensive supervision’; 33
•
preparing reports on compliance with obligations imposed on juveniles given
alternative sentences; 34
•
preparing reports on juvenile offenders given suspended sentences; 35
•
assisting in the ‘selection and application’ of appropriate diversion measures; 36
•
escorting juveniles placed in educational institutions to the institution; 37
•
conducting victim-offender mediation as a diversion measure and monitoring compliance
with mediation agreements; 38
•
providing information for consideration in judicial hearings on parole; 39 and
•
maintaining contact with juveniles serving sentences and their families. 40
27
12
Law on Protection and Treatment, Articles 21(4) and (6), 87 and 92(2); see also draft law on juvenile criminal offenders,
Article 68(1).
28
Law on Protection and Treatment, Article 93(4); see also draft law on juvenile criminal offenders, Article 82(5).
29
Draft law on juvenile criminal offenders, Article 76(1).
30
Law on Protection and Treatment, Article 73(2) and (3); see also draft law on juvenile criminal offenders, Article 55.
31
Draft law on juvenile criminal offenders, Articles 69(2), 92(2) and 107(2).
32
Law on Protection and Treatment, Articles 120(3), 134, 137(1) and 146; see also draft law on juvenile criminal offenders,
Article 23(8).
33
Law on Protection and Treatment, Articles 37(3) and (5) and 140–143; see also draft law on juvenile criminal offenders,
Article 25(3).
34
Law on Protection and Treatment, Articles 92(2), 120(3), 121(2) and 137; see also draft law on juvenile criminal offenders,
Article 23(8).
35
Draft law on juvenile criminal offenders, Article 42(3).
36
Law on Protection and Treatment, Article 27(4). (Diversion measures are called, in the English translation of the Law,
‘correctional recommendations’.)
37
Ibid., Article 164(2).
38
Ibid., Article 26(3) and (5).
39
Ibid., Article 177(3).
40
Ibid., Article 180.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
All this is in addition to assisting children at risk of offending, helping juveniles reintegrate into the
community after serving a custodial sentence, assuming responsibilities with regard to child victims
and witnesses and fulfilling the functions that the law assigns on an optional basis, such as “to
submit motions and present facts and evidence…” at any stage of proceedings. 41
The assessment mission visited two CSWs, one in Banja Luka and one in Sarajevo. Each has a small
team working on juvenile justice issues. In Banja Luka, the team appears to have the capacity to
perform its functions adequately. In Sarajevo, however, where about 30 per cent of all reported
offending by juveniles in the Federation occurs, the team seemed to be overwhelmed by its juvenile
justice caseload. If the situation in Sarajevo is typical of conditions prevailing in other cantons
with a relatively high incidence of offending, then the limited capacity of the CSWs could well be a
significant obstacle to proper implementation of the new law.
An evaluation of the capacity of the social welfare authorities to fulfil their role regarding juvenile
justice is needed, and a plan for reinforcing their capacity should be developed. In defining this plan,
it would be useful to clarify the role of the technical staff that, according to the new legislation, will
be employed by courts and prosecutors, in order to ensure complementarity with the functions of
CSW staff. 42 Establishing more disciplinary centres and day centres will also help reduce the burden
on CSW staff.
3. Administrative reform/restructuring
Few administrative reforms/restructuring have had a significant direct impact on juvenile justice,
according to the information provided to the assessment team.
Certain changes in the prison system are the exception. They include the opening of an educationalcorrectional unit within the prison in Tuzla, the creation of a separate unit for convicted juvenile
offenders in the East Sarajavo prison, and the renovation of the Hum multipurpose facility in Sarajevo,
which was still underway at the time of the assessment mission.
The creation of a separate unit for convicted juvenile offenders from the Republika Srpska within the
East Sarajevo prison is a positive development, for the reasons described in Part II of this report. Thus
far, the significance of this development for offenders presently under age 18 is more potential than
actual, since all the prisoners confined there at the time of the assessment mission were young adults.
The assessment team did not visit the educational-correctional unit within the Tuzla prison, but
a subsequent visit by UNICEF personnel documented conditions that are seriously below accepted
standards. This is no doubt due in large part to the location of this small unit within a prison for adults.
The assessment team believes there was a real need for a closed facility for offenders aged 14–18
years from the Federation. At least some of the tragic events involving juveniles placed in the open
multipurpose Hum facility could have been avoided by placing the juveniles concerned in a closed
setting. The risk that some of the victims and perpetrators of these events posed to themselves, to the
public and to their peers was known, and confinement while providing appropriate assistance would
have been compatible with international standards. There is clearly a need for a secure facility that is
not part of a prison and can receive juveniles aged 14–15 years when deprivation of liberty is necessary.
41
Ibid., Article 81(1); see draft law on juvenile criminal offenders, Article 63(1).
42
See Law on Protection and Treatment, Article 12, defining expert advisors as including social workers, psychologists, social
pedagogues-defectologists’ and ‘special pedagogues-defectologists’ and Article 21; see also draft law on juvenile criminal
offenders, Article 13.
13
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Putting the Hum facility under the responsibility of the Federation was a good decision, in the view
of the assessment team, because it makes the services that the facility could potentially provide
available within a broader area. Nevertheless, the assessment team does not agree with the decision
to continue using this facility for the same purposes, while remodelling the infrastructure to provide
for greater security. This was done in response to previous incidents of violence, including at
least one in which one resident killed another. The measures taken, however, have for all practical
purposes turned the facility into a jail – ironically, since it apparently is still considered an ‘open’
facility, although the legal basis for this reportedly is poorly defined. The bars that have been used
to separate different parts of the facility are similar to those used in prisons, creating a repressive
atmosphere that is totally inappropriate for children under age 14, especially those who are there for
their own protection.
The assessment team considers that a possible solution to the location of the educational-correctional
facility within the prison in Tuzla and to the conversion of the Hum facility into a prison-like building
would be to (a) open a new facility for children who are not offenders but who need to be placed by the
CSW in a residential facility and (b) redefine the purpose of the Hum facility to the use for which it is now
best suited, namely, the confinement of juvenile offenders given ‘educational-correctional’ measures. 43
The Hum facility could also be used for accused juveniles when detention before trial is considered
necessary, and who are now detained in close contact with adult detainees (see Part II, below).
The creation of specialized police units in the cantons of Sarajevo and Tuzla is an example of
administrative restructuring that has had positive consequences for juvenile suspects and for
children at risk, as well as child victims of crime. There are two specialized units in Sarajevo, one
for juvenile offenders and one for child victims. The former comprises 10 carefully selected officers,
five women and five men, most of whom have university degrees. In Tuzla, eight specialized officers
deal with offending by juveniles and domestic violence. The teams have contact persons in each
police station within the canton. One specialized officer is on duty at all times and handles the cases
immediately whenever a juvenile is taken into custody in connection with an offence. The head of the
Sarajevo team indicated, “The first contact with the police can be decisive for the life of a child. Our
experience during the last 10 years has shown that talking to children informally, in the presence of a
psychologist, helps avoid making mistakes in communicating with the child.”
The teams also play an active role in efforts to prevent offending, in cooperation with schools and
other interested parties. The head of the Sarajevo team told the assessment team, “The police must
work with the community. Everyone who comes into contact with the child [at risk] must contribute
to prevention.”
4. Allocation of resources
Little information is available about the funds allocated to juvenile justice. However, budgetary
constraints do not appear to have been a major obstacle to the development of juvenile justice in the
last few years. Improvements have been made in the juvenile unit of the Zenica prison; the Hum facility
is being renovated; a new separate unit for convicted juvenile offenders was built within the East
Sarajevo prison; and two disciplinary centres have been established, one in 2007 and one in 2010.
43
14
Whether or not it would be appropriate to use a single facility for children placed by the CSW and children who are not
offenders placed temporarily by the police is a question that the assessment team does not have sufficient information to
answer, and which should be considered not only from the viewpoint of the potential risks involved in the cohabitation of
these two groups, but also the appropriateness of the respective roles of the police and CSW with regard to these groups.
A better approach might be for the police to place children needing temporary shelter in the care of the CSWs.
The recommendations made by OSCE in its 2008 report on the Hum facility should also be taken into account and
implemented, to the extent they remain relevant.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Limited funds have affected some activities, in particular with regard to staff levels. The juvenile
justice team of the Sarajevo CSW is understaffed. The Cantonal Action Plan on the prevention of
offending calls for schools to add social workers to their staff, but only five have been recruited thus
far. The capacity of the disciplinary centre could be increased by hiring additional staff (see Part II,
below).
In 2009, the impact of the world economic crisis on the economy of Bosnia and Herzegovina led
the government to seek assistance from the International Monetary Fund. As part of the agreement
reached, it made a commitment to reduce ‘current expenditures’ by 10 per cent. 44 The cantonal
governments have been instructed to reduce their human resource budgets by 10 per cent. This
indicates that budgetary constraints are likely to affect the implementation of the new juvenile justice
laws and the new strategy on juvenile offending.
It is urgent to develop realistic plans, with regard to both implementation of the new laws – which will
come into force in 2011 at the earliest – and medium-term plans for the development of juvenile justice,
in the form of the national strategy that should be developed to replace the 2006–2010 Strategy.
A first step might be to ‘map’ existing capacities – not only infrastructure, as envisaged by the 2006–
2010 Strategy, but also programmes, human resources and caseloads. Another is to develop a more
complete and reliable picture of ‘demand’ at the national level – incidence of offending, number of
children at risk, number of serious offenders, number of habitual offenders, and the age, sex and
other relevant characteristics of the children belonging to these different groups. Comparison and
analysis of these two sets of information will help identify gaps in the system, needs and priorities.
Given the budgetary constraints that can be anticipated, it will be important to calculate the costs
and, as far as possible, compare the effectiveness of different programmes or activities (e.g., day
centres, disciplinary centres, specialized technical personnel attached to courts and prosecutors’
offices, specialized CSW staff, specialized police officers, and so on). Although calculating the
effectiveness of various programmes or activities may well not be possible at this point, due to
the limited information on their actual impact, it should at least be possible to compare the cost
of different kinds of interventions, estimate the size and location of the intended beneficiaries and,
perhaps, develop hypotheses about the desired impact that will serve as a basis for evaluating them
in the future.
5. Training and capacity-building
A considerable amount of training has taken place, on an ad hoc basis. Prior to the adoption of the
Strategy against Juvenile Offending (2006–2010), most training was done with the support of Save
the Children UK and the Open Society Fund; more recently, training has been provided with the
support of UNICEF and the Italian Development Cooperation.
The Bureau for Human Rights, an NGO, has trained some 200 judges, prosecutors and social workers
since 2007. Training events usually last two to three days, and are based on a needs assessment. The
objectives include the development of skills and appropriate attitudes. In 2010, a special training activity
on the new decree on diversion was held. Some 40 judges and prosecutors participated. Training of
social workers has begun, and the aim is to train at least one social worker from each CSW.
The Italian Development Cooperation has organized, jointly with national counterparts, training
activities for judges, prosecutors and social workers from the Federation and Republika Srpska,
for police officers from the Federation, and for journalists.
44
Letter of Intent, 16 June 2009, p. 5, available at the International Monetary Fund (IMF) website www.imf.org/external/np/
loi/2009/bih/061609.pdf, accessed 15 January 2011.
15
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
In Sarajevo, a training module on child rights has been incorporated into the curriculum of the Police
Academy. The length of the training varies, but the minimum duration is seven days. All police
officers participated in this training during 2008–2009.
6. Accountability mechanism
The rights of juvenile offenders can be violated by various actors. In most countries of the region, most
of the violations that are documented, in particular those involving violence, are committed by the
police. Although training in child rights can help reduce the prevalence of violence against adolescent
suspects, defendants and prisoners, effective accountability mechanisms are also essential.
In Bosnia and Herzegovina, many sources interviewed by the assessment team, including an NGO,
indicated that the violent treatment of juvenile suspects by the police is rare. One reason for this is
probably that here, in contrast to most countries, the role of juvenile police units is not limited to the
prevention of offending, but includes the investigation of offences attributed to juveniles. In addition,
all the sources who spoke with the assessment team on this subject, including the Ombudsperson and
a defence lawyer, agree that police investigators rigorously investigate the cases of abuse that do occur.
Conditions of detention that violate the rights of juveniles reportedly persist, at least in the Federation,
especially in pretrial detention centres. (Considerable efforts have been made to improve conditions
in centres for juvenile offenders serving sentences or other measures involving deprivation of liberty,
as described below, in Part II of this report.)
The first national Human Rights Ombudsman was appointed in 1996, pursuant to the Dayton
Agreement; ombudsmen were also appointed in the two ‘entities’, but until 2004 all ombudsmen
were foreigners. In 2009, the three ombuds offices were merged into a single Institution of Human
Rights Ombudsmen of Bosnia and Herzegovina. The Institution is very interested in the rights of
children, including child victims of crime, and juvenile justice. At the time of the assessment mission,
a study on children in residential institutions, including correctional facilities, was underway.
7. Coordination
Responsibility for coordinating action on juvenile justice, and in particular implementing the
national Strategy against Juvenile Offending, lies with the Juvenile Justice Coordination Body.
The Coordination Body was established in 2008. It has 13 members, including representatives of
the relevant ministries of the national government, the Republika Srpska and the Federation. 45 It is
convened by the Ministry for Human Rights and Refugees, and has five working groups, one for each
of the components of the national Strategy (legislation, alternative measures, institutional treatment,
prevention and implementation). It meets every six to eight weeks. Civil society plays a relatively
small role in the Coordination Body.
8. Data and research
Data on juvenile justice are compiled by the police, prosecutors and courts. There are three statistical
agencies: the Agency for Statistics of Bosnia and Herzegovina, the Federal Office of Statistics of
the Federation of Bosnia and Herzegovina, and the Republika Srpska Institute of Statistics. Only the
Federal Office of Statistics publishes data on crime on a regular basis, since the year 2000.
45
16
Specifically, the Ministry for Human Rights and Refugees, the Ministry of Security and the Ministry of Justice of Bosnia and
Herzegovina; the Ministry of Justice, the Ministry of Health, the Ministry of Labour and Social Policy of the Federation and
the Federal Police; the Ministry of Justice, the Ministry of Health and Social Welfare and the Criminal Police of Republika
Srpska; and the Department of Health and Social Protection of Brcko District.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Data on offending by juveniles include the number of reported offenders, disaggregated by canton,
sex and age of the offender and by the nature of the offence. 46 The criteria for classifying offences
are based on the legal interest affected (life and body, property etc.).
Data are also disaggregated by whether the offence was prosecuted and, if not, the reason (e.g., lack
of evidence). 47 Data on cases prosecuted are disaggregated by whether the case was dismissed, or
a sanction or ‘security measure’ (e.g., confinement to a facility for the treatment of drug abuse) was
imposed. 48 Data on cases prosecuted are also disaggregated by sex, by the nature of the offence,
by prior conviction, and by whether detention was ordered. 49 The number of cases prosecuted but
dismissed is identified. 50 All such data are further disaggregated by canton.
Data on the number of juveniles convicted are disaggregated by age group at the time of the offence
(14–15 years; 16–17 years) and by the sentence or measure imposed. 51 All such data are further
disaggregated by canton.
This information is very useful, although it has some limitations and presents difficulties regarding
interpretation. One is that the way offences are classified does not allow identifying the number
of serious offences (e.g., homicide, rape). Some of the terminology used in English is misleading.
The heading ‘accused and convicted’, for example, seems to refer to the number of cases prosecuted,
i.e., brought to trial. And no explanation is offered for some data that are difficult to understand – for
example, the discrepancy between the number of ‘sanctions’ imposed on convicted juveniles and the
number of ‘penalties’ imposed’ on convicted juveniles.
No data are reported on a regular basis concerning juvenile offending and juvenile justice in
Republika Srpska and, consequently, no data on this subject are available for the country as a whole.
Bosnia and Herzegovina’s second periodic report to the Committee on the Rights of the Child
indicates that the number of registered juvenile offenders in the whole country was 2,603 in 2005;
2,753 in 2006; and 2,640 in 2007. 52 These data are difficult to reconcile with data from the Federation,
which indicate that the number of reported offences by juveniles during the same years was
1,178, 1,200 and 1,094, respectively. (The population of the Republika Srpska aged 6–17 years is less
than half that of the Federation. 53 )
The assessment team met with the Republika Srpska Institute of Statistics and the Bosnia and
Herzegovina Agency for Statistics. Both showed great interest in collecting data on juvenile offending
and juvenile justice. The Juvenile Justice Coordination Body has also started compiling data on
juvenile justice, beginning with 2008. Closer cooperation between the Coordination Body and the
statistical agencies would no doubt improve the way data are reported.
46
Statistical Bulletin No. 130 , supra, Tables 2.1 and 2.2.
47
Ibid., Table 2.2.
48
Ibid., Table 2.3.
49
Ibid., Table 2.5.
50
Ibid., Table 2.4.
51
Ibid., Table 2.7.
52
Combined Second, Third and Fourth Periodic Report of Bosnia and Herzegovina on its Implementation of the Convention
on the Rights of the Child, Sarajevo, 2009, issued as United Nations document CRC/C/BIH/2-4, pp. 89–90.
53
Bosnia and Herzegovina in Figures 09 , supra, p. 5.
17
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The Republika Srpska Institute of Statistics publishes annually a Social Welfare Statistics Bulletin ,
which contains data from 2003 to the present on the caseload of children ‘inclined to committing
criminal acts’, disaggregated by sex and by age cohort (0–7 years; 7–14 years, 15–16 years; and
17–18 years). 54 The Bulletin also includes data on juveniles released from correctional facilities
provided with assistance (all are 17–18 years of age) and data on juvenile offenders given measures
that involve action by the social welfare authorities (e.g., supervision). 55 Data on the caseload of
children in situations associated with a high risk of offending (e.g., ‘alcoholics’, ‘drug addicts’ and
children ‘inclined to vagrancy’, to begging and to prostitution) are also published. 56 These data are
extremely useful, although clearer definitions of the indicators would enhance their value. No similar
data are published on a regular basis by the Federation and, consequently, no data on this subject are
available for the country as a whole.
Some research on offending by juveniles, on juvenile justice and on public perceptions of juvenile
justice has been carried out by experts associated with the departments of law and criminology at
the universities of Sarajevo and Banja Luka.
18
54
Republika Srpska Institute of Statistics, Social Welfare Statistics Bulletin No. 6 , Banja Luka, 2008, Tables 1.1 and 1.2.
55
Ibid., Table 3.2.
56
Ibid., Tables 1.1 and 1.2.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
PART II. The Juvenile Justice System in Bosnia and Herzegovina
1. Prevention
The national Strategy against Juvenile Offending (2006–2010) identifies prevention as one of five
‘strategic goals’. 57 The Programme for Prevention called for by the Strategy was drafted in 2009,
but at the time of the assessment mission it had not been adopted. The Strategy itself includes
seven other activities. The emphasis was on school-based activities, including training in nonviolent conflict resolution, counselling, programmes to assist students requiring help with their
studies, and raising the awareness of students and parents about offending. The development of
programmes for children with antisocial behaviour intended to reduce the risk of offending, through
cooperation between schools and social welfare authorities, was called urgent. Community-based
activities envisaged the inclusion of programmes to improve parenting skills and to assist children
and adolescents involved in substance abuse.
Some school-based activities have been implemented. Materials for teachers on the prevention and
reduction of violence in schools, prepared by Save the Children UK, are widely used. The Educational
Institute of Sarajevo, with the support of the Italian Development Cooperation, organized a seminar
for the directors of all primary and secondary schools in the canton, social workers employed in these
schools, and personnel of the Institute. In Sarajevo and Banja Luka, specialized police officers take
part in activities aiming to make students more aware of the risks involved in offending. The staff of
the disciplinary centre in Sarajevo (see below) also participates in such activities. A new programme
on violence prevention was carried out in 20 schools in 2010, with the support of UNICEF. 58
Primary responsibility for the prevention of offending by juveniles lies with the social work authorities
and the CSWs. Their mandate covers all children under age 18 and even juvenile offenders released
from custodial facilities after reaching age 18, but are particularly important with regard to children
under age 14. Since children under this age cannot be prosecuted, the role of the CSWs includes the
prevention of reoffending by children who become involved in crime at an early age.
The CSW of Banja Luka, a municipality with an estimated population of 200,000, 59 has a staff of
67 persons. Four years ago, a specialized team of four professionals was established to handle all
cases concerning juvenile offenders and children at risk of offending. A case manager is appointed
for each case, and develops an individual plan, which invariably involves the child and his/her
family. Depending on the needs of the individual, activities may include schoolwork help (some
80 per cent of this caseload have learning disorders), referral to clubs that provide structured leisure
activity, parenting skills development and family therapy. A representative of the CSW informed the
assessment team that the caseload of offenders under age 14 was low – perhaps 10 per year.
The CSW operates a closed ‘reception centre’ where street children, neglected and abused children
and others in need of shelter can be housed for up to five days, under Republika Srpska's Law on
Social Welfare and Family Law. It also operates a ‘diagnostic centre’ where children suspected of
offending may be held temporarily while a social report is prepared and, if necessary, during trial.
57
The Strategy against Juvenile Offending for Bosnia and Herzegovina (2006–2010), supra, pp. 36–41.
58
The pilot programme involved the definition of roles and responsibilities in each participating school level, training of
school personnel, the establishment of codes of conduct, the identification of sources of support in the community,
and greater support to child victims of violence and violent children.
59
OSCE Regional Centre Banja Luka: Fact Sheet [undated].
19
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The CSW office visited in Novi Grad, Sarajevo, has a staff of approximately 30 persons. Novi Grad
is the largest of canton Sarajevo’s nine municipalities, with a population of 124,000. A team of
three professionals handle juvenile justice cases, including a psychologist who is also responsible
for cases of domestic violence. The psychologist is in charge of ‘the most difficult cases’ of child
offenders, while her two colleagues deal with cases of children at risk. The three professionals share
a small crowded office. There are no rooms for interviews and no funds to pay for interpretation of
interviews with children or parents who do not speak the national language. This has been a problem
with some Roma. The team has not received any training in juvenile justice. The lack of facilities for
the treatment of children and adolescents requiring psychiatric treatment or treatment for substance
abuse was identified as a major gap in their ability to refer children requiring services that they
themselves cannot provide.
In Banja Luka, responsibility for operating a ‘day centre’, established by Save the Children UK, was
taken over by the municipal government in 2006.60 The centre is non-residential, and participation
is on a voluntary basis. There is a staff of three professionals, who are assisted by volunteers. The
programme includes schoolwork help, computer literacy, life skills training, a weekly ‘creativity
workshop’, field trips, individual psychosocial counselling, group counselling twice weekly, and
parent counselling.61
The programme is designed for children aged 11–18 years, and the capacity is limited to 10. The
centre is open from 9 a.m. to 5 p.m., and most children attend on a daily basis. All those who have
participated fully in the programme have been boys, but some children, including girls, have taken part
in certain activities (e.g., computer literacy and help with schoolwork). The programme has three fulltime staff members, and volunteers. Offending by children who have attended the entire programme
reportedly is ‘almost zero’. The centre was visited by the assessment team, which considers it a good
example of community-based prevention and believes that plans should be made to establish similar
programmes in Sarajevo and other municipalities, where a need has been documented.
At the present time, efforts to prevent offending are fragmentary and insufficient. Both communityand school-based activities are needed, and the creation of a secondary prevention programme
involving close cooperation with schools and the social welfare authorities, of the sort called
urgent by the 2006–2010 Strategy, remains a priority. Strengthening community-based prevention
programmes and developing joint community- and school-based programmes will require reinforcing
the capacity of the CSWs, and appointing specialized teams where they do not exist.
Both the day centre and the disciplinary centre provide valuable services, and reportedly have good
results in preventing offending among children at higher risk. The need for additional centres based
on these models should be assessed, to complement the services provided by CSW offices.
2. The arrest and interrogation of suspects
The Law on Protection and Treatment provides, “An authorized official [i.e., police officer] may deprive
a juvenile of liberty if there are grounds of suspicion that the juvenile has perpetrated a criminal
offence,” and if the reasons for ordering custody recognized by the Code of Criminal Procedure
are present.62 The juvenile’s parents or guardians, defence attorney and the CSW are to be notified
20
60
In 2009, the centre was renovated with the help of the Italian Development Cooperation, which also donated computer
and sports equipment as well as art and reading materials.
61
The Director stated that, in their experience, “The behaviour of children cannot be changed without changing the behaviour
of parents.”
62
Law on Protection and Treatment, Article 96(1); see also draft law on juvenile criminal offenders, Article 71(1).
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
immediately.63 A juvenile in police custody must be brought before a prosecutor “immediately or
within 12 hours.”64 Failure to do so requires that he/she be released.65
The prosecutor may decide to interrogate a juvenile suspect personally, or authorize the police to
question the suspect. In Sarajevo, Tuzla and Banja Luka, juvenile suspects are interrogated by specialized
juvenile police officers. In other cantons, police officers performing interrogations are not specialized.
Several sources interviewed by the assessment team, including the Ombudsperson, agreed that the
use of violence during arrest or interrogation is rare, and that internal police authorities investigate
rigorously the cases that do occur.
The Codes of Criminal Procedure now in force provide, “A minor must have defence attorney from
the outset of the preparatory proceeding.”66 Sources interviewed, including social workers and a
defence lawyer, agreed that, in practice, lawyers are almost never present during the interrogation of
a juvenile, unless the crime is a serious one. One reason for this is that appointed defence attorneys
are not reimbursed for services provided before trial. Article 77 of the Law on Protection and
Treatment recognizes the right to legal assistance in stronger terms, indicating, “A juvenile shall
be represented by a defence attorney during the first questioning by a prosecutor or an authorized
official person [i.e., police officer] as well throughout the entire proceedings.”67 (Emphasis added.)
3. Detention prior to and during trial
The Code of Criminal Procedure of Bosnia and Herzegovina provides that detention before trial may
be ordered “only if the same purpose cannot be achieved by another measure” and “The duration of
custody must be reduced to the shortest necessary time.”68 The grounds for such an order are the
usual ones: risk of flight, risk of destruction of evidence or intimidation of witnesses, and risk of the
commission of a serious offence.69
Whenever a juvenile is taken into police custody, he/she must be presented to the prosecutor
“immediately or within 12 hours,” according to the new legislation.70 The prosecutor must examine
the juvenile without delay or within 12 hours at the latest and decide either to release him/her or
request a juvenile judge to order detention or a measure of temporary placement.71 Temporary
placement means placement in a reception centre or other facility.72 This decision is governed by
63
Ibid., Article 96(2). (Note: The draft law on juvenile criminal offenders does not require notification of the attorney and
does not specify that notice must be immediate. It provides that the CSW shall be notified only if it is not possible to notify
the parents.)
64
Ibid., Article 96(6); see also draft law on juvenile criminal offenders, Article 71(1).
65
Ibid.
66
Code of Criminal Procedure of Bosnia and Herzegovina, Article 343(1); Code of Criminal Procedure of the Federation of
Bosnia and Herzegovina, Article 364(1); Law on Protection and Treatment, Article 77.
67
See draft law on juvenile criminal offenders, Article 59.
68
Code of Criminal Procedure of Bosnia and Herzegovina, Article 131(1) and (4); see also Code of Criminal Procedure of
Republika Srpska, Article 189. (Unless otherwise indicated, citations to the Codes of Criminal Procedure refer to the Codes
of Bosnia and Herzegovina and the Code of the Federation of Bosnia and Herzegovina; it was not feasible for the authors of
this report to compare these Codes systematically with the Code of Republika Srpska.)
69
Code of Criminal Procedure of Bosnia and Herzegovina, Article 132(1)(a) - (c).
70
Law on Protection and Treatment, Article 96(6); see also draft law on juvenile criminal offenders, Article 71(1).
71
Law on Protection and Treatment, Article 98(1); see also draft law on juvenile criminal offenders, Article 71(3), establishing
a limit of 24 hours.
72
Law on Protection and Treatment, Article 94(1); see also draft law on juvenile criminal offenders, Article 76 (‘reception
centre, an educational or other facility’). The only existing reception centre is situated in Banja Luka, Republika Srpska.
21
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
the ‘last resort’ principle.73 The judge must decide on the prosecutor’s request within 12 hours, after
interviewing the suspect.74
When the alleged offence is committed by a juvenile, the initial order of detention is valid for
30 days, under the new law adopted in Republika Srpska, and the need for continued detention
must be reviewed by a panel of judges every 10 days.75 An extension of up to two months may
be authorized.76 When the preparatory stage of proceedings has been completed, the time limit for
further detention will be three months, and an additional two months if the case is appealed.77 This
makes a total of six months, excluding the appeal, which complies with the recommendation of the
Committee on the Rights of the Child on this issue.78
The Code of Criminal Procedure of the Federation provides, “A suspect or accused must have a
defence attorney immediately after he has been assigned to pretrial custody, throughout the pretrial
custody.”79
In 2008, only 13 juveniles were detained before trial in the Federation, according to official data. 80
There is no information on how often accused juveniles are detained for more than six months,
in practice, or on the number of juveniles detained before trial in Republika Srpska.
The pretrial detention facilities for juveniles
Pretrial detention facilities are separate sections located within the prisons that exist in the
Federation and in Republika Srpska. The assessment team was unable to visit any pretrial detention
facility. Several persons familiar with such facilities were interviewed, however. They all agreed that
juveniles detained before trial are kept in the same facilities as adults detained before trial, in separate
cells but in close proximity to adults. An OSCE report published in March 2009 cites one case in
which a juvenile was kept in the same cell as an adult, with the approval of a judge. 81 The stated
reason for this arrangement was that the adult “could have a positive influence” on the juvenile, but
OSCE concluded that the actual reason was simply overcrowding. The European Committee for the
Prevention of Torture visited the Sarajevo pretrial detention facility in 2009 and called the regime in
which juveniles are confined there “totally inappropriate.”82
22
73
Ibid.; see also draft law on juvenile criminal offenders, Article 72(4), requiring the judge’s decision to be guided by this
principle.
74
Law on Protection and Treatment, Article 99(2); see also draft law on juvenile criminal offenders, Article 71(4), establishing
a limit of six hours.
75
Law on Protection and Treatment, Article 100; see also draft law on juvenile criminal offenders, Article 72(3), requiring
review every 15 days.
76
Law on Protection and Treatment, Article 100(2); see also draft law on juvenile criminal offenders, Article 72(4), requiring
review every 15 days.
77
Law on Protection and Treatment, Articles 101 and 102(2); see also draft law on juvenile criminal offenders, Article 72(5),
which would limit detention to six months for older juveniles and to four months for younger juveniles.
78
Committee on the Rights of the Child, Children’s rights in juvenile justice, General Comment No. 10, CRC/C/GC/10, 2007,
para. 83. (The Committee’s recommendation refers to the ‘final decision’, which probably means that appeals also should
be resolved within the period of six months, but detention during the appeal of cases of juveniles found innocent probably
is rare.)
79
Code of Criminal Procedure of the Federation of Bosnia and Herzegovina, Article 59(2).
80
Statistical Bulletin No. 130 , supra, Table 2.5.
81
Organisation for Security and Co-operation in Europe, Juvenile Justice Findings in BiH: Submission to the Judicial and
Prosecutorial Training Centres, OSCE, Sarajevo, 2009, p. 8.
82
Report to the Government of Bosnia and Herzegovina on the visit to Bosnia and Herzegovina carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 15 May
2009, CPT/Inf (2010) 10, Strasbourg, 2010, para. 40.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Ensuring the separation of juvenile and adult detainees and access to educational and recreational
programmes are objectives of the 2006–2010 Strategy on Juvenile Offending that have not yet been
realized. 83
4. Diversion and restorative justice
The Criminal Codes adopted after independence introduced diversion for juvenile offenders. 84
Measures called ‘educational recommendations’ may be applied to persons aged 14–18 years
who have committed an offence punishable by up to three years of imprisonment. 85 There are
two requirements: “the juvenile’s admission that he has perpetrated the criminal offence, and his
expressed willingness to make amends with the injured party.”86
Under the Criminal Codes, diversion necessarily involves the imposition of some kind of requirement
on the offender. Eight specific measures are recognized, and the locus of authority to divert
depends on the nature of the measure. The prosecutor can impose personal apology to the victim,
compensation of damage, school attendance and counselling, while judges may impose placement
in a substitute family, home or institution, treatment in a health facility, employment or community
service. 87 No diversion measure may be in effect for more than one year. 88 Both the selection and the
application of the appropriate measure are to be done in cooperation with the offender’s parents (or
guardians) and the social welfare services. 89
The Law on Protection and Treatment adopted by the Republika Srpska recognizes a new form of
diversion: police warning. 90 Police warnings may be imposed on first offenders by a police officer,
with the approval of a prosecutor. In addition, this law makes the diversion measures previously
recognized (called ‘correctional recommendations’ in the English translation of the law) applicable
for any offence. 91 The prosecutor must “consider the possibility and appropriateness of diversion
before initiating proceedings.”92 If the conditions for diversion are met, then diversion is, in principle,
obligatory; if only some of the conditions are met, the prosecutor still has discretion to adopt a
diversion order. 93 These are significant improvements over the Codes now in force.
83
Strategic goal 5, objective 6.
84
Criminal Code of Bosnia and Herzegovina, Article 76 et seq.; Criminal Code of Republika Srpska, Article 65 et seq.; Criminal
Code of the Federation of Bosnia and Herzegovina, Article 80 et seq.
85
Criminal Code of Bosnia and Herzegovina, Article 76(1); Criminal Code of Republika Srpska, Article 65(1); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 80(1).
86
Criminal Code of Bosnia and Herzegovina, Article 76(3); Criminal Code of Republika Srpska, Article 65(3); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 80(3).
87
Criminal Code of Bosnia and Herzegovina, Article 78; Criminal Code of Republika Srpska, Article 67; Criminal Code of
the Federation of Bosnia and Herzegovina, Article 82.
88
Criminal Code of Bosnia and Herzegovina, Article 79(2); Criminal Code of Republika Srpska, Article 68(2); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 83(2).
89
Criminal Code of Bosnia and Herzegovina, Article 79(4); Criminal Code of Republika Srpska, Article 68(4); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 83(4).
90
Law on Protection and Treatment, Article 22. (There was no equivalent provision in the draft law on juvenile criminal
offenders.)
91
Ibid., Articles 24(1) and 89(1). (A distinction is made between offences punishable by less than five years and those
punishable by more than five years, but its significance is unclear.)
92
Ibid., Article 90(1); see also draft law on juvenile criminal offenders, Article 69(1). (Note: The term ‘appropriateness’ is
translated as ‘justification’ in the English version of some related legislation.)
93
Law on Protection and Treatment, Article 90(4) and (5); see also draft law on juvenile criminal offenders, Article 69(2) and (3).
23
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The prosecutor will be required to collect information on the personality and ‘mental development’
of the juvenile, as well as his/her living conditions and environment. 94 This responsibility may be
delegated to specialized staff members of the office of the prosecutor. 95 Any person having relevant
information is obliged to provide it on request, except the juvenile’s parents or guardian, attorney and
minister/confessor. 96 Expert assessments of the juvenile’s health, mental development or personality
by physicians, psychologists or pedagogues may be ordered. 97
The Law on Protection and Treatment recognizes the right to a defence attorney when the prosecutor
decides to impose a diversion measure. 98 If the juvenile fails to comply with the diversion measure(s)
imposed, the prosecutor must initiate proceedings. 99
The assessment team was unable to find any data on the use of diversion, but was informed that it is
used rarely.
The Codes of Criminal Procedure now in force and the new draft law on juvenile criminal offenders
recognize the ‘principle of opportunity’, or prosecutorial discretion. Under the Codes now in force,
in cases involving offences punishable by up to three years of imprisonment, a prosecutor may
decide not to prosecute if he/she considers that, although there is evidence that an offence has been
committed, “it would not be purposeful to conduct a criminal proceeding against a juvenile in view of
the nature of the criminal offence and the circumstances under which it was perpetrated, the minor’s
previous life and his personal characteristics.”100 Under the new law adopted in Republika Srpska,
this standard will apply to any offence.101
In order to make this determination, the prosecutor may seek information from the juvenile, the child’s
parents, and any other person or institution, summoning them to be interviewed if necessary.102
The social welfare authority may be requested to give its opinion on the matter.103
If the prosecutor considers a ‘personality profile’ of the juvenile necessary to reach an opinion on the
usefulness of prosecution, the juvenile may be referred to a specialized facility for a period of up to
30 days.104 The approval of the social welfare authorities is required to make such a referral, in the
Federation.105
24
94
Law on Protection and Treatment, Article 92(1); see also draft law on juvenile criminal offenders, Article 74(1).
95
Law on Protection and Treatment, Article 92(3); see also draft law on juvenile criminal offenders, Article 74(3).
96
Law on Protection and Treatment, Article 78; see also draft law on juvenile criminal offenders, Article 60. (Note: The former
contains an important exception for information obtained by social workers in the course of preparing reports requested
by a prosecutor or judge.)
97
Law on Protection and Treatment, Article 92(4); see also draft law on juvenile criminal offenders, Article 74(4).
98
Law on Protection and Treatment, Article 27(4); see also draft law on juvenile criminal offenders, Article 8(2).
99
Law on Protection and Treatment, Article 90(6); see also draft law on juvenile criminal offenders, Article 69(4).
100
Code of Criminal Procedure of Bosnia and Herzegovina, Article 352 and Code of Criminal Procedure of the Federation
of Bosnia and Herzegovina, Article 373(1). (Note: According to one source, Article 375 of the Code of Criminal Procedure
of Republika Srpska recognizes the application of this principle for offences punishable by up to five years).
101
Law on Protection and Treatment, Article 89; under Article 68(1) of the 2008 version of the draft law on juvenile criminal
offenders, it would apply only to offences punishable by up to five years.
102
See, e.g., Code of Criminal Procedure of Bosnia and Herzegovina, Article 352(1) and Code of Criminal Procedure
of the Federation of Bosnia and Herzegovina, Article 373(1).
103
Ibid.
104
Law on Protection and Treatment, Article 68(2).
105
Code of Criminal Procedure of the Federation of Bosnia and Herzegovina, Article 373(2).
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Little data are available on the use of discretion not to prosecute. One study on Republika Srpska
indicated that, in 1998–2000, an average of 31 juvenile cases were resolved in this way annually.106
The 28 per cent of juvenile cases in which proceedings were ‘halted’ without proceeding to trial in the
Federation include cases in which the prosecutor had exercised this discretion.107
5. Adjudication and sentencing
The minimum age for adjudication
Only persons 14 years of age or older at the time of an offence may be prosecuted as juveniles,
and persons accused of an offence committed before reaching age 18 may only be prosecuted as
juveniles.108
Competence to adjudicate juveniles
The Codes of Criminal Procedure now in force provide that cases involving juveniles shall be tried
before ‘judges for juveniles’ and appeals shall be heard by ‘panels for juveniles’ composed of three
judges.109 These provisions are not applicable to proceedings before courts for minor offences,
however, and cases involving juveniles that come within their competence are not heard by judges
for juveniles.
The new legislation on juvenile justice provides that each trial court must have a juvenile justice
department composed of one or more ‘judges for juveniles’ and a ‘panel for juveniles’.110 In contrast
to the legislation now in force, it further provides that judges for juveniles are required to have “a
pronounced interest in the rearing, needs and interests of juveniles, as well as special expertise.”111
Prosecutors who handle juvenile cases also must be especially designated for this function, according
to the new legislation, and are to have the same qualifications as juvenile judges.112 Both courts and
prosecutor offices must have specialized staff including psychologists, social workers and ‘social
pedagogues-defectologists’.113 Their role focuses largely on the preliminary stage of proceedings
and includes collecting information and advising the judge or prosecutor on the personality of the
juvenile and other data relevant to diversion and detention before trial.114
The new legislation also specifies that the ‘juvenile panels’ of appellate courts must include at least
one member who is a juvenile judge or has ‘special expertise’ in the area of child rights and juvenile
offending.115
106
Young Criminal Offenders in view of the Current Problems of Juvenile Criminal Justice in the Republic of Srpska , supra, p. 8.
107
Statistical Yearbook 2008 , p. 338 (calculation by author).
108
Criminal Code of Bosnia and Herzegovina, Articles 8–9; Criminal Code of Republika Srpska, Article 64; Criminal Code
of the Federation of Bosnia and Herzegovina, Articles 9–10.
109
See, e.g., Code of Criminal Procedure of Bosnia and Herzegovina, Article 351 and Code of Criminal Procedure
of the Federation of Bosnia and Herzegovina, Article 372.
110
Law on Protection and Treatment, Articles 16–17; see also draft law on juvenile criminal offenders, Article 8(1).
111
Law on Protection and Treatment, Article 18; see also draft law on juvenile criminal offenders, Article 10.
112
Law on Protection and Treatment, Articles 18–19; see also draft law on juvenile criminal offenders, Articles 57 and 10.
113
Law on Protection and Treatment, Article 21; see also draft law on juvenile criminal offenders, Article 13.
114
Law on Protection and Treatment, Article 21; see also draft law on juvenile criminal offenders, Article 13(2), which gives
this staff a greater role with regard to the trial stage of proceedings.
115
Law on Protection and Treatment, Article 17; see also draft law on juvenile criminal offenders, Article 10(3).
25
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The right to be tried without delay
Under the Codes now in force, once the preparatory proceedings have been completed and
the investigating judge for juveniles has forwarded the case to the prosecutor, the latter has eight days
to file the case with the trial court.116 Under the new legislation, the prosecutor will be responsible for
the preparatory stage, but the same time limit of eight days applies to the filing of the case with the
competent trial court once the preparatory stage of proceedings is completed.117
Under the new legislation, when the case has been filed with the competent trial court it may be
dismissed if the judge considers that there are no grounds for prosecution or no purpose would be
served by prosecution, despite evidence that the accused has committed the offence.118 Similarly,
the judge may decide to impose a diversion measure.119 If the case is not dismissed or diverted, and
it is decided to proceed to trial, then the trial must begin within eight days of the resolution of any
preliminary motions.120
Trials may not be adjourned unless exceptional circumstances exist.121 Under the new legislation,
judges must inform the president of the court to which they are attached about the status of pending
cases every 15 days.122 Verdicts must be issued in writing within eight days after the end of a trial,
or 15 days in exceptionally complex cases.123
The law also provides, “Authorities participating in the proceedings against a minor and other
agencies and institutions from whom information, reports or opinions are sought must proceed with
the greatest urgency so that the proceedings are completed as soon as possible.”124
‘Child-friendly’ procedures
The Codes of Criminal Procedure now in force contain some provisions intended to make proceedings
‘child friendly’. One provides,
When actions are undertaken that are attended by the minor, and especially when he is examined, the bodies participating
in the proceeding must be circumspect, mindful of the mental development, sensitivity and personal characteristics of
the minor, so that the conduct of the criminal proceeding will not have an adverse effect on the minor’s development.125
Article 76(1) of the new Law on Protection and Treatment is identical.
26
116
See, e.g., Code of Criminal Procedure of the Federation of Bosnia and Herzegovina, Article 381(1) and Code of Criminal
Procedure of Republika Srpska, Article 356.
117
Law on Protection and Treatment, Article 104(1); see also draft law on juvenile criminal offenders, Article 77.
118
Law on Protection and Treatment, Article 105(2); see also draft law on juvenile criminal offenders, Article 78.
119
Law on Protection and Treatment, Article 106(2) – (3); see also draft law on juvenile criminal offenders, Article 79(2).
120
Law on Protection and Treatment, Articles 108 and 81(1) and (3)
121
Code of Criminal Procedure of Bosnia and Herzegovina, Article 367(2); Code of Criminal Procedure of the Federation of
Bosnia and Herzegovina, Article 388; see also Law on Protection and Treatment, Article 114(2) and draft law on juvenile
criminal offenders, Article 87(2).
122
Law on Protection and Treatment, Article 114(2); see also draft law on juvenile criminal offenders, Article 87(4).
123
Code of Criminal Procedure of Bosnia and Herzegovina, Article 367(3); Code of Criminal Procedure of the Federation of
Bosnia and Herzegovina, Article 388(4); see also Law on Protection and Treatment, Article 114(3) and draft law on juvenile
criminal offenders, Article 87(3).
124
Code of Criminal Procedure of Bosnia and Herzegovina, Article 350; Code of Criminal Procedure of the Federation of Bosnia
and Herzegovina, Article 371; see also Law on Protection and Treatment, Article 85 and draft law on juvenile criminal
offenders, Article 66.
125
Code of Criminal Procedure of Bosnia and Herzegovina, Article 42(1); Code of Criminal Procedure of the Federation
of Bosnia and Herzegovina, Article 363(2).
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
There are two forms of trial, called ‘session’ and ‘main trial’. The former is a summary proceeding,
in which the judge may render a verdict and sentence after hearing the prosecution and defence,
without hearing witnesses. The prosecutor and defence attorney must be present during the summary
proceeding.126 The Law on Protection and Treatment indicates tacitly that the juvenile should also
be present in person, but the 2008 draft law on juvenile criminal offenders states that the judge has
discretion to proceed in the absence of the juvenile.127 If a parent or guardian of the accused is not
present, a representative of the social welfare authority must be appointed to replace them and must
be present throughout the proceeding.128 The presence of the juvenile and a representative of the social
welfare authority as well as the prosecutor and defence attorney is required during the ‘main trial’.129
Proceedings must be closed to the public.130 The new legislation also provides that the final judgment
or decision shall be published but may not contain any information that could identify the juvenile
concerned.131
The assessment team was not able to identify any data on the pending caseload of juvenile cases, or
the length of proceedings in practice. It was informed that some courts have a significant backlog of
juvenile cases and that trials and other proceedings are often affected by lengthy delays.
The right to legal assistance
In an Article entitled ‘Mandatory Defence’, the Codes of Criminal Procedure now in force provide, “A
minor must have defence attorney from the outset of the preparatory proceeding.”132 However, another
provision of the Codes seems to indicate that the presence of the defence attorney is not necessarily
required: “The prosecutor and the defence attorney may be present during the actions in the
preparatory proceedings.”133 The defence attorney is required to be present during the main trial.134 If
the juvenile’s family does not retain a lawyer, then the court is to appoint one from a list maintained by
the Bar Association. There is no special list for cases involving juveniles. A defence attorney informed
the assessment team that most assigned attorneys have little motivation and no understanding of
juvenile justice, and consequently provide poor quality services to juvenile defendants.
The new legislation provides, “A juvenile shall be represented by a defence attorney during the first
questioning as well as throughout the entire proceedings.”135 (Emphasis added.)
126
Compare the Law on Protection and Treatment, Article 109(1) - (3), with the draft law on juvenile criminal offenders,
Article 82(2).
127
Draft law on juvenile criminal offenders, Article 82(2).
128
Law on Protection and Treatment, Article 109(4); see also draft law on juvenile criminal offenders, Article 82(5).
129
Law on Protection and Treatment, Article 110(2); see also draft law on juvenile criminal offenders, Article 83(2).
130
Code of Criminal Procedure of Bosnia and Herzegovina, Article 365; Code of Criminal Procedure of the Federation of Bosnia
and Herzegovina, Article 386(1); see also Law on Protection and Treatment, Article 111, and draft law on juvenile criminal
offenders, Article 65.
131
Law on Protection and Treatment, Article 84(2); see also draft law on juvenile criminal offenders, Article 65(2).
132
Code of Criminal Procedure of Bosnia and Herzegovina, Article 343(1); Code of Criminal Procedure of the Federation
of Bosnia and Herzegovina, Article 364(1).
133
Code of Criminal Procedure of Bosnia and Herzegovina, Article 356(2); Code of Criminal Procedure of the Federation
of Bosnia and Herzegovina, Article 377(2).
134
Code of Criminal Procedure of Bosnia and Herzegovina, Article 364(3); Code of Criminal Procedure of the Federation
of Bosnia and Herzegovina, Article 385(3).
135
Law on Protection and Treatment, Article 77(1); see also draft law on juvenile criminal offenders, Article 59(1).
27
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Sentencing – non-custodial measures
Under the Criminal Codes now in force,136 two kinds of ‘criminal sanctions’ may be imposed on juvenile
offenders: ‘educational measures’ and ‘imprisonment’.137 If the offender was 14 or 15 years of age at
the time of the offence, only educational measures may be assigned; either may be imposed on an
offender aged 16 or 17 years.138 Sentences of imprisonment may only be applied ‘exceptionally’.139
Juveniles may not be given a suspended sentence.140
There are three kinds of ‘educational measures’, some of which involve placement or confinement in
a closed facility.141 The one category of measure that does not is ‘intensified supervision’ by parents,
foster parents or the competent social welfare body.142 These measures are intended for offenders
who require longer-term treatment or rehabilitation but do not need to be completely isolated from
their environment.143
Attendance to a ‘disciplinary centre’ is intended for the offender “who does not need to be submitted
to extended ... measures, in particular if he has perpetrated a criminal offence out of thoughtlessness
or frivolity.”144 Somewhat paradoxically, placement in a disciplinary centre may involve a deprivation
of liberty for up to 20 days.145 Offenders also may be ordered to attend a disciplinary centre on a nonresidential basis, for a certain number of hours per day for up to 30 days.146 There was no disciplinary
centre in Republika Srpska at the time of the assessment mission.
The new Law on Protection and Treatment also distinguishes between two main kinds of dispositions
that may be imposed on juveniles tried and found to have committed an offence, called ‘correctional
measures’ and ‘juvenile imprisonment’.147 It is similar to the Criminal Codes in that sentences of
‘imprisonment’ may only be imposed on juveniles aged 16–17 years at the time of the offence. Article 27
of the Law on Protection and Treatment, entitled ‘Gradual Application of Criminal Sanctions’, indicates
that warnings, supervision and placement in ‘educational institutions’ should be preferred to sentences
28
136
Three Criminal Codes, identical in many particulars, were in effect at the time this report was drafted: the Criminal Code
of Bosnia and Herzegovina, the Criminal Code of the Federation of Bosnia and Herzegovina, and the Criminal Code of
Republika Srpska.
137
Criminal Code of Bosnia and Herzegovina, Article 80(1); Criminal Code of Republika Srpska, Article 69; Criminal Code of
the Federation of Bosnia and Herzegovina, Article 84(1). (Note: Educational measures are called ‘correctional measures’ in
translations of some texts.)
138
Criminal Code of Bosnia and Herzegovina, Article 80(2) and (3); Criminal Code of Republika Srpska, Article 69(1) and (2);
Criminal Code of the Federation of Bosnia and Herzegovina, Article 84(2) and (3).
139
Criminal Code of Bosnia and Herzegovina, Article 80(3); Criminal Code of Republika Srpska, Article 69(3); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 84(3).
140
Criminal Code of Bosnia and Herzegovina, Article 80(5); Criminal Code of Republika Srpska, Article 69(4); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 84(5).
141
Criminal Code of Bosnia and Herzegovina, Article 82(1); Criminal Code of Republika Srpska, Article 71; Criminal Code of
the Federation of Bosnia and Herzegovina, Article 87.
142
Criminal Code of Bosnia and Herzegovina, Article 86; Criminal Code of the Federation of Bosnia and Herzegovina, Article 90.
143
See, e.g., Criminal Code of Bosnia and Herzegovina, Article 82(3).
144
Criminal Code of Bosnia and Herzegovina, Article 82(2); Criminal Code of the Federation of Bosnia and Herzegovina,
Article 86(2).
145
Criminal Code of Bosnia and Herzegovina, Article 85(2)(c); Criminal Code of the Republika Srpska, Article 74(2);
Criminal Code of the Federation of Bosnia and Herzegovina, Article 89(2)(c).
146
Criminal Code of Bosnia and Herzegovina, Article 85(2)(b); Criminal Code of the Republika Srpska, Article 74(2);
Criminal Code of the Federation of Bosnia and Herzegovina, Article 89(2)(b).
147
Law on Protection and Treatment, Article 31; see also draft law on juvenile criminal offenders, Article 19.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
of imprisonment.148 This Article appears to be designed to implement the ‘last resort’ principle of
Article 37 of the Convention on the Rights of the Child. Sentences of imprisonment involve a finding of
guilt; decisions imposing a correctional measure include a description of the offence committed and the
circumstances that justify the imposition of the measure but not a finding of guilt.149
The kinds of ‘correctional measures’ authorized by the new legislation are similar to those
authorized by the Criminal Codes, although there are differences. One is that, whereas placement
in a disciplinary centre or participation in the programme offered by a disciplinary centre is the
only kind of ‘disciplinary measure’ authorized by the Criminal Codes of Bosnia and Herzegovina and
the Federation, the new legislation recognizes warnings, reprimands and the imposition of ‘special
conditions’.150 ‘Special conditions’ are similar to diversion measures, and include school attendance,
community service, and participation in programmes for the treatment of substance abuse and so
on.151 The maximum duration of any such measure is one year.152 The views of the offender are to be
taken into account in selecting the obligation or obligations imposed.153
A second difference is that the duration of intensive supervision, from one to three years under the
Criminal Codes, will be reduced to six months to two years under the new legislation.154
A third difference is that, under the new legislation, the maximum period of placement in a
disciplinary centre – to be renamed ‘educational centre’ in the Republika Srpska – will be increased
from twenty days to three months.155
A fourth important difference is that the law on juvenile criminal offenders allows suspended
sentences, which in effect is an alternative to the deprivation of liberty.156 The criterion for imposing
this disposition is simply that the fear of having to serve the sentence “may reasonably be expected
[to] deter” the commission of future offences.157 The period of ‘probation’ may not be shorter than
one year or longer than three.158
Data from the Federation for 2008 indicate that, of 92 juveniles convicted of offences committed
before the age of 16 years, 58 were sentenced to supervision by parents and 26 to supervision by
the CSW – a total of 91 per cent of all convicted juveniles of this age group. Similarly, 92 per cent of
the juveniles convicted of crimes committed at ages 16–17 years were given sentences of supervision
by parents or by the CSW.
148
It should be noted that the only existing ‘educational institution’ in Republika Srpska is a closed facility linked to a prison.
Article 18 of the draft law on juvenile criminal offenders, which indicates that the imposition of a term of imprisonment
must be ‘exceptional’, also appears to be designed to comply with the ‘last resort’ principle.
149
Law on Protection and Treatment, Article 113(3); see also draft law on juvenile criminal offenders, Article 86(3).
150
Law on Protection and Treatment, Article 32; see also draft law on juvenile criminal offenders, Articles 20(1)a, 20(2) and 22.
(‘Reprimands’ was recognized as a disciplinary measure by Article 71 of the Criminal Code of the Republika Srpska.)
151
Law on Protection and Treatment, Article 35; compare with draft law on juvenile criminal offenders, Article 23(2),
which includes apologies and reparation of the victim.
152
Law on Protection and Treatment, Article 35(4); see also draft law on juvenile criminal offenders, Article 23(4).
153
Law on Protection and Treatment, Article 35(4); see also draft law on juvenile criminal offenders, Article 23(3).
154
Law on Protection and Treatment, Article 37(4); see also draft law on juvenile criminal offenders, Article 25(4),
26(2) and 27(4).
155
Law on Protection and Treatment, Article 36(2)(b); see also draft law on juvenile criminal offenders, Article 24(2)(b).
156
The English translation of the law refers to this as ‘postponed imposition’ of the prison sentence, although it would
be more accurate to say that it is the execution of the sentence, not its imposition, that is postponed.
157
Law on Protection and Treatment, Article 54(1); see also draft law on juvenile criminal offenders, Article 42(1).
158
Law on Protection and Treatment, Article 54(2); see also draft law on juvenile criminal offenders, Article 42(2).
29
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
During 2008, four younger juvenile offenders and four older juvenile offenders were ordered to
attend a disciplinary centre, but the information does not indicate whether these measures involved
residential placement or part-time attendance.
Sentencing of juvenile offenders – custodial measures and sentences
One of the categories of ‘educational measures’ that, under the Criminal Codes now in force, may
be imposed on juvenile offenders of any age (i.e., 14–15 years; 16–17 years) is called ‘institutional
measure’.159 This measure may be imposed for a period of up to five years “committal to an educational
institution, to an educational reformatory home or some other training establishment.”160
There are no ‘educational facilities’ for offenders in Bosnia and Herzegovina. There are two
educational-correctional facilities, one within the prison complex in Banja Luka (Republika Srpska)
and another within the prison in Tuzla (Federation). The other training establishments referred to are
those for children with mental or physical disabilities.161
The new legislation on juvenile justice retains the category of ‘correctional measures’.162 The most
significant change is a new requirement that placement in a facility for children with disabilities be
reviewed every three months.163
Data from the Federation indicate that, in 2008, six juveniles convicted of crimes committed at the
ages of 14–15 years were given ‘educational-correctional measures’ – 6.5 per cent of the dispositions
imposed on juveniles of that age group after trial.164 During the same year, four juveniles convicted
of an offence committed at ages 16–17 years in the Federation were placed in ‘rehabilitation centres’,
and two were placed in ‘special correctional institutions’.165 All together, these dispositions represent
5 per cent of all juveniles aged 14–18 years convicted of an offence.
Under the Criminal Codes now in force, sentences of imprisonment may only be imposed on juvenile
offenders aged 16–17 years at the time of the offence for offences punishable by five years of
imprisonment, and only exceptionally, i.e., when “it would not be justifiable to apply an educational
measure because of the grave consequences of the offence perpetrated and the high degree of
criminal responsibility.”166 The duration of prison sentences imposed on juveniles may not be less
than one year, and the maximum sentence that may be imposed on a juvenile is 10 years.167 Prison
sentences are served in a special juvenile section of prisons for adult offenders. There are two such
prisons, one in Republika Srpska and one in the Federation.
30
159
Criminal Code of Bosnia and Herzegovina, Article 83; Criminal Code of Republika Srpska, Article 71; Criminal Code of
the Federation of Bosnia and Herzegovina, Article 86.
160
Criminal Code of Bosnia and Herzegovina, Article 83(c) and 90; Criminal Code of the Federation of Bosnia and Herzegovina,
Article 86(1)(c) and Articles 94–96; see also Criminal Code of Republika Srpska, Article 79–81.
161
Criminal Code of Bosnia and Herzegovina, Article 92; Criminal Code of the Federation of Bosnia and Herzegovina,
Article 96(1).
162
Law on Protection and Treatment, Article 30 and 31(1); see also draft law on juvenile criminal offenders, Article 20.
163
Law on Protection and Treatment, Article 44(3); see also draft law on juvenile criminal offenders, Article 32(3).
164
Statistical Bulletin No. 130 , supra, Table 2.7.
165
These are the terms used in the report, which do not correspond to the terms used in legislation and whose meaning,
in consequence, is not clear.
166
Criminal Code of Bosnia and Herzegovina, Article 95; Criminal Code of Republika Srpska, Article 87; Criminal Code of
the Federation of Bosnia and Herzegovina, Article 99.
167
Criminal Code of Bosnia and Herzegovina, Article 96(1); Criminal Code of Republika Srpska, Article 88(1); Criminal Code
of the Federation of Bosnia and Herzegovina, Article 100(1).
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The maximum sentence that may be imposed on a juvenile for most offences is reduced to five
years under the new legislation, although sentences of 10 years are still allowed for especially
serious offences, and when a juvenile has committed two or more concurrent offences punishable by
sentences of 10 years or more.168
Data from Republika Srpska show that, during the years 1998–2000, prison sentences represented
only 1.2 per cent of all sentences imposed on juvenile offenders.169 Information for the period
2005–2007 indicates that prosecutors requested prison sentences in only 1.2 per cent of all cases
involving juvenile offenders.170
According to data from the Federation, only one convicted juvenile received a prison sentence in
2008,171 and according to another source, three juvenile offenders were admitted to the juvenile unit
of the Zenica prison in 2005, three in 2006 and none in 2007.172
No data are published on early release.
6. The rehabilitation of convicted juveniles
This section contains reports on visits to four facilities: one ‘disciplinary centre’, a separate facility
exclusively for juvenile offenders, which receives juveniles given short custodial sentences and
which also has a programme for juveniles given non-custodial sentences; two juvenile sections of
multipurpose prisons, dedicated to convicted juvenile offenders serving prison sentences; and one
‘educational-correctional unit’ attached to but physically separate from a multipurpose prison.
The disciplinary centre in Vogos̆ća, Sarajevo
The assessment team visited the ‘cantonal public disciplinary centre for juveniles’ in Vogos̆c’a, Sarajevo,
on 14 April 2010. Placement in a disciplinary centre or mandatory participation in the activities of such
a centre on a non-residential basis are among the measures authorized by Article 89 of the Criminal
Code and Article 48 of the draft law on juvenile criminal offenders. Under the former, residential
placement was limited to 20 days; under the latter, it would be authorized for three months.173 The
Sarajevo disciplinary centre became operational in 2007, and a second one was opened in Tuzla during
the assessment mission. Both are cantonal facilities, financed by the respective cantonal governments
and serving juveniles placed by the courts of that canton.174
The centre visited has two additional functions, at present: since 2008, it serves as a custodial
facility for juveniles waiting for trial; adolescents at risk referred by parents, schools or the CSW can
participate in the non-residential programme on a voluntary basis. The latter may be under age 14.
During the three years that the centre has been in operation, 40 juveniles have been placed by the
competent court and 30 admitted on a voluntary basis. One juvenile of the former groups and two
168
Law on Protection and Treatment, Article 51(1) ; see also draft law on juvenile criminal offenders, Article 39(1).
169
Six prison sentences in 1998, four in 1999 and none in 2000. See Young Criminal Offenders in view of the Current Problems
of Juvenile Criminal Justice in the Republic of Srpska , supra, p. 9.
170
Ibid., p. 90.
171
Statistical Bulletin No. 130 , supra, Table 2.7.
172
Combined Second, Third and Fourth Periodic Report of Bosnia and Herzegovina on its Implementation of the Convention
on the Rights of the Child, CRC/C/BIH/2–4, supra, p. 93.
173
The law also would change its name to ‘educational-upbringing centre’.
174
In 2009, the disciplinary centre in Sarajevo received an important donation of IT and sports equipment, and art and reading
material, from the Italian Development Cooperation.
31
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
of the latter were girls. The present capacity of the centre for residential placement is six boys and
two girls, which is sufficient to meet existing demand. The capacity for non-residential treatment is
10–15 persons, but the staff is only half of that needed.
The caseload of the centre has included juveniles convicted of theft, sexual offences, drug use and
attempted murder. The programme is intensive, up to 16 hours per day, and based on individual
plans. It includes educational work (learning styles and techniques, tutoring, homework help,
foreign language learning), interpersonal relations (communication, non-violent conflict resolution,
development of tolerance, acceptance of rules and social norms as well as attitude towards
values and property), attitude towards self (self-concept, building of self-confidence, self-respect,
concentration, managing emotions and channelling aggressive behaviour), occupational therapy, art
therapy, sport activities, computer workshop, vocational training and medical treatment.
During the time that the centre has been in operation, only two cases of reoffending have been
reported after completion of the programme. The assessment team believes that the opening of
this centre is a positive development, because it provides intensive assistance on non-residential
and short-term residential basis. The longer-term impact of treatment in this centre should be
documented.
The juvenile unit, Zenica prison
The assessment team visited the prison in Zenica on 19 April 2010. This prison was established
during the late nineteenth century. It has a capacity of 642, and a population of approximately 800,
not including some 110 prisoners located in a semi-open facility situated outside the perimeter. The
prisoners confined within the main complex include approximately 750 men serving sentences and
some 40 men in pretrial detention.
The juvenile unit consists of a separate corridor in one of the smaller buildings. It contains 15 individual
cells, in which nine offenders are serving sentences. The cells are small, perhaps 2 x 2 metres. Each
contains a bed, television, toilet, and sink and shelving. The doors are solid, with no opening, and a
small barred window. The facility was reasonably clean, and lighting, ventilation and bedding looked
adequate. Soap and other sanitary products seemed plentiful. At night, a metal gate separating the
corridor from the stairwell and entrance is locked, and there is a guards’ unit just outside this gate.
Individual cells are not locked, but there is video surveillance of the corridor.
Juvenile prisoners spend most of their time outside this unit, participating in different activities in
which they have contact with prisoners in the medium security part of the prison. There is a large
garden between the building containing this facility, two buildings housing other convicted prisoners
and a building comprising classrooms and other activity rooms. Guards reportedly monitor the
juvenile prisoners closely when they are in areas where contact with adults is possible. The feasibility
of moving this unit to a more isolated building within the prison grounds is under consideration,
although the Director is not sure that this would be in the interests of the nine juvenile prisoners, as
they would be located further from the school and their movements would have to be more strictly
regulated.
Schooling is provided within the facility by teachers from local schools, contracted by the prison.
Other activities include employment in the bakery and the laundry, which is remunerated, sports and
computer use.
32
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Most of the juvenile prisoners are over age 18, although they are serving sentences for offences
committed while under that age (one was 16 years old and one 17 years old). Eight of them are
serving sentences for homicide; one is serving a sentence for robbery, but he also committed a
homicide at age 13, while too young to be prosecuted.
The staff expressed a commitment to respecting international standards, concern for the young
prisoners in their charge and willingness to consider any recommendations that would benefit them,
all of which made a positive impression on the assessment team. The conditions in which juvenile
prisoners are kept do not violate international standards, in the opinion of the assessment team,
especially given that most such prisoners are actually over age 18 and all have committed serious
crimes of violence without extenuating circumstances. The question of whether the unit should
be relocated to a more isolated building that would facilitate separation from the general prison
population (but not from young adults serving sentences for crimes committed while under age 18),
although relocation could have other negative consequences for the population of the juvenile unit,
is, in our view, an issue that the management may be trusted to resolve in the light of the best
interests of juveniles potentially affected.
The juvenile unit, East Sarajevo prison
The assessment team visited the East Sarajevo prison on 19 April 2010. This prison is one of six in the
Republika Srpska, and the only one to have a unit for ‘juvenile’ offenders. It also has units for adult
men serving sentences, adult men detained before trial, and adult women. The total capacity is 220.
The prison is surrounded by a wire fence topped by razor wire, which permits a view of the
surrounding area. The grounds are spacious, and contain a soccer pitch, a basketball court, gardens
and lawns.
A separate, two-storey building for convicted juveniles was built and opened two years ago.
The ground floor contains offices, a classroom with two computers and a small library, and an
‘isolation’ room. The isolation room is intended for solitary confinement, or temporary isolation for
medical reasons. It is well furnished, and has a window and separate toilet. Regulations allow solitary
confinement as a disciplinary measure, but it is not used in practice.
The upper floor has three cells or bedrooms, a living area, a dining area, and a guards’ room.
The population of this unit was four persons, at the time of the visit. The Director estimated the
capacity to be 40.175 The living area contains a television, table and chairs. Two were assigned to each
of two cells or bedrooms. They contain small cupboards with lock for the prisoner’s personal effects,
a desk, a radio/CD player and a coat-rack. There are bars on the windows, no curtains and little or no
decoration. The door is metal, with a small peephole. The facility as a whole is very neat and clean,
and the furniture and fixtures are of good quality.
The staff of the juvenile section consists of the Director and an interdisciplinary team of six,
comprised of pedagogues, social workers and a psychologist. Food is brought from the prison’s main
kitchen, and security is provided by guards assigned to the facility as a whole. The prison has a
well-staffed health clinic, including a psychiatrist.
175
Based on the minimum living space of 4 square metres per person, not the capacity of the staff or the number of beds.
33
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Teachers from the local school visit the unit to provide classes. A sports instructor of the facility as a
whole also visits the unit. Sports include soccer, basketball and weight lifting. Secondary education,
which is not obligatory in Bosnia and Herzegovina, is not provided routinely, and most prisoners
have not completed obligatory primary education. Vocational training (in cooking) was arranged for
one prisoner who completed primary education.
Other activities include gardening (in season) and workshops on different subjects organized
periodically. Religious counselling is available. The prisoners assigned to the juvenile unit rarely
have contact with other prisoners, and when they do (for example, Easter mass, attending soccer
match) they are accompanied by staff of the juvenile section. Two of them have the right to visit their
families.
All the ‘juvenile’ prisoners are over age 18, although they were convicted of offences committed
while under age 18. All are serving sentences for homicide. They are allowed to remain in the juvenile
unit until reaching age 23.
The women’s facility includes one prisoner convicted of an offence committed while under age 18,
who is now over age 18. It was not possible to visit that facility, for logistical reasons.
The Director indicated that it would be possible to receive prisoners from the Federation, if the two
governments reached an agreement to that effect. However, should the numbers be significant
(e.g., 5–10 prisoners), efforts to prevent ethnic conflict would be required. There are no ethnic tensions
at present.
The assessment team formed a very positive impression of this facility, in particular the living
conditions, separation from the main facility, activities offered, staff-prisoner ratio and attitudes of
the Director. Unfortunately, it was not possible to meet with the interdisciplinary team to discuss the
approach to prevention of reoffending in use, and the assessment team consequently was unable to
form an opinion on the issue.
The educational-correctional unit within Tunjice prison, Banja Luka
An educational-correctional unit, which forms part of the Tunjice prison, in the municipality of Banja
Luka, was visited by the assessment team on 20 April 2010. The facility includes a house and a smaller
building located between the fence surrounding the rest of the prison and a highway. It is surrounded
by a chain link fence topped by barbed wire. There are bars on the windows, and doors to the buildings
are locked, but staff members indicate that they would prefer not to have a perimeter fence.
The facility receives only boys placed by a court as a result of the commission of an offence while
aged 14–18 years. The unit was established in 2006, and is the only of this kind in Republika Srpska.
The only other educational-correctional unit in the country is located in Tuzla prison, in the Federation.
Placement in the facility visited is for a minimum of one year and a maximum of five years. Release
(after the first year) depends on several factors, such as the offence committed and whether the
offender has completed compulsory education and has made progress in resocialization. Most spend
from two to two and a half years in the facility. Sixteen offenders have been treated and released
since the facility opened.
34
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Of the 10 offenders presently in the facility, one is 16 years old, one is 17, and the rest are 18 or older.
Two of the juveniles were convicted of murders committed while under age 16 (the minimum age for
a sentence to ‘juvenile prison’), one was convicted of robbery, and the rest of ‘serious theft’.176
The smaller building contains a bedroom, a kitchen and an activity room. It serves as a reception and
discharge unit, where juveniles recently arrived spend the first 30 days, and those about to be released
spend the last three to seven days. It has a capacity of four. The staff of this unit includes one social
worker and one psychologist. Upon admission, medical and psychological evaluations are performed;
the social worker collects information from the juvenile’s family and school, and a treatment plan is
proposed. When the date of release approaches, a plan for transition to the community is developed,
which includes establishing contacts with the CSW in the respective community, advice or assistance
regarding employment, preparation for return to the family, and so on.
The two-storey house contains four bedrooms, a kitchen, offices and an activity room. The capacity
of this part of the unit is 16 persons. The staff (excluding the two assigned to the ‘reception/
discharge’ unit) is comprised of seven persons, plus eight guards. The staff includes one teacher.
The population is divided into two ‘educational groups’. One male staff and one female staff are
assigned to each group, as substitute parents.
In addition to schooling, activities include gardening and caring for farm animals (chickens and
rabbits), simple vocational training (e.g., cooking) and drama. Occasionally there are outings.
Vocational training involves working in the prison kitchen and, consequently, having contact with
adult prisoners. Otherwise, there is no contact with the prison population. The staff would prefer
that the educational-correctional facility be relocated outside the prison complex, in the community.
Together with a volunteer with experience in theatre, the juveniles have prepared a play called ‘I want
to go home’ based on their lives. One staff member indicated, “It is based on true events, both tragic
and comic, and can be easily adapted to include the stories of new juveniles.” It has been presented
widely outside the facility, and helps juveniles gain self-esteem while helping the community to
better understand their lives.
The staff members judge their success by five criteria: no fights, no self-injuries, no abuse of
privileges (e.g., failure to return from home visits), no use of drugs or alcohol and no prohibited items
(e.g., cell phones). They indicated that, to their knowledge, none of the juveniles released from the
facility in the last year or two have reoffended.177 They also said that some of the juveniles placed in
the facility for theft have extensive criminal careers at an early age (two or three thefts per day) and
that, in their opinion, placement at the earliest possible age (14 years) would increase the chances of
rehabilitation.
The assessment team considers this facility to be a good example of how to approach the treatment
of juvenile offenders within a closed residential setting. The team agrees with the staff that, since
many of the offenders placed there remain for a period of two years or more, it would be desirable to
expand the range of educational and vocational activities offered, which might be facilitated by the
establishment of a unit more closely integrated into the community.
Unfortunately, logistical problems prevented the assessment team from visiting the educationalcorrectional unit located within the prison in Tuzla. A visit by UNICEF personnel in July 2010 concluded
that conditions do not meet international standards. Among the problems identified were self-injury,
176
Serious theft does not involve the use of violence against the person.
177
One habitual offender is rumoured to have emigrated, however.
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
inadequate psychosocial care, irregular access to education, lack of vocational training, absence
of other activities designed to promote rehabilitation, poor material conditions and shortage of
specialized staff. Since the assessment team could not visit this facility and did not interview persons
having direct knowledge of conditions, it is unable to reach its own conclusions or recommend what
should be done to solve the serious problems that are widely recognized as existing in this facility.
(See box updating developments.)
Since the assessment mission, some significant improvements have been made in conditions
in the educational-correctional unit located within the prison in Tuzla. An educator has been
recruited on a full-time basis to coordinate work with the juveniles confined in this facility.
Two educators have begun to provide psychosocial support and organize workshops and
activities, including some involving contact with the community. Classes have been organized,
including the standard curricula and art and drama classes. The physical infrastructure is being
renovated to provide space for sports, reading, carpentry and other vocational workshops.
The Italian Development Cooperation has agreed to provide equipment and supplies for
vocational training programmes; UNICEF will offer temporary support to rehabilitation and social
reinsertion programmes; and OSCE will continue to visit the institution to monitor developments.
Early release
The Criminal Codes and the new legislation on juvenile justice provide that a juvenile serving a prison
sentence may be released after serving one third of his/her sentence. The prerequisites for parole
are specified by the draft law on juvenile criminal offenders – mainly that the prisoner’s conduct
indicates he/she “may reasonably be expected to … refrain from perpetrat [ing] criminal offences.”178
Post-release support
Responsibility for providing post-release support is one of the many responsibilities that lie with the
social welfare authorities and, in particular, the CSWs.
The only published data about juveniles receiving services from CSWs after release from custody
concern the Republika Srpska, and are based on the records of the Ministry of Health and Social
Welfare. The most recent data available indicate that the caseload in recent years has been relatively
small: 5 in 2003; 13 in 2004; 15 in 2005; 8 in 2006; and 9 in 2007.179
Helping juveniles to successfully reintegrate into their community and family is a vital part of the
prevention of reoffending. Although the number of juveniles referred to the CSWs for this purpose
is relatively small, the heavy workload of the specialized teams in other areas of their mandate
regarding juvenile suspects and offenders limits their ability to devote sufficient time and attention
to this function, at least in some parts of the country.
7. Younger children involved in criminal activity
Underage offenders
The CSWs, as indicated above, have broad responsibilities in areas such as prevention of offending,
supervision of non-custodial sentences, and support to released offenders. They also have primary
responsibility for assisting children who become involved in criminal activity before reaching age 14.
36
178
Law on Protection and Treatment, Article 35(1); draft law on juvenile criminal offenders, Article 41(1).
179
Social Welfare Statistics Bulletin No. 6 , supra, Table 1.2.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
The only published data about offending by children under age 14 concern the Republika Srpska and
are based on the records of the Ministry of Health and Social Welfare. The most recent information
released indicates that the number of children of all ages referred to CSWs because they are “inclined
to commit criminal acts” was 548 in 2003; 810 in 2004; 441 in 2005; 338 in 2006; and 710 in 2007.180
Data on annual referrals are not disaggregated, but data on the year-end caseload indicate that
12 per cent of the children referred for this reason were under age 14 (including seven children under
age seven).181 A social worker from the CSW of Banja Luka, the largest municipality in Republika
Srpska, estimated that they receive less than one case of this kind per month.
The staff of the CSW in Novi Grad, Sarajevo, is comprised of a team of three persons in charge of
all issues regarding children and offending (see above). One, a psychologist, who also handles
cases of domestic violence, has primary responsibility for children under age 14 involved in criminal
activity. In 2009, they provided services of some kind in 536 cases involving juvenile offenders.182
The assessment team considers that the capacity of the CSW is insufficient to deal with this important
issue, especially given the obstacles to referral for specialized services such as psychiatric evaluation.
There are now three community-based services providing assistance to such children, although it is
not their sole purpose: the day centre in Banja Luka, which provides preventive services to children
as from age 11; the disciplinary centre in Sarajevo; and the new disciplinary centre in Tuzla. The
services offered, as indicated above, are valuable and mutually complementary. The assessment
team strongly recommends creating additional centres of both kinds where data indicate they are
most needed. Doing so would provide more intensive assistance and a broader range of services to
children most in need, and also help reduce the burden on the small specialized CSW teams.
There is also one residential facility intended, in part, to receive children under age 14 involved in
criminal activity. It is described in the following section.
The Hum multipurpose facility for children, Sarajevo
There is only one facility of this kind in Bosnia and Herzegovina. It was established in 1960. In 2009,
responsibility for the facility was assumed by the Federation, in particular the Ministry of Labour and
Social Policy.183
The facility has four distinct functions, according to the Director: providing shelter to children
referred by the CSW, including underage offenders and victims of abuse and neglect; placing
offenders given ‘institutional measures’ by the competent court; holding accused juveniles awaiting
trial; and ensuring the ‘reception’ of street children, child beggars, illegal child migrants and other
children picked up by the police.184 Authority to hold children placed by the police reportedly is based
on the Law on Minor Offences, which allows placement without a court order for as long as 15 days.
Placement of children by the CSW reportedly is governed by the cantonal Law on Social Protection.
In reality, at the time of the assessment mission, the facility remained in a state of transition that
caused uncertainty about operational matters, the budget and other responsibilities of concerned
ministries.
180
Ibid., Table 1.1.
181
Ibid., Table 1.2.
182
The total number of cases handled by the CSWs of all nine districts of the capital was 2,296.
183
According to law, the Ministries of Education, Health and Justice also share responsibility for this institution, but in
practice the facility was operated by the Ministry of Labour and Social Policy at the time of the assessment mission.
184
The last two functions had not been implemented at the time of the assessment mission.
37
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
It is an open facility. In 2009, one resident died of an overdose in an abandoned warehouse and, in
2010, another shot a shopkeeper during an attempted robbery, and was himself killed by the person
he injured. This occurred while the court had under consideration the proposed transfer of these
juveniles to a secure facility in Tuzla. Communications with courts regarding children placed by
judicial order are performed through the CSW.
Until recently, the infrastructure did not allow for the separation of different categories of residents,
which led to incidents of peer violence, including one murder. At the time of the assessment mission,
the facility was being renovated in order to separate three units: one for children awaiting trial and
those given ‘institutional measures’; one for children placed by the CSW; and one for ‘reception’.
During renovation, five persons serving ‘institutional sentences’ were transferred, by court order,
to the educational-correctional unit located within the prison in Tuzla. The facility has a capacity of
60, but at the time it was visited by the assessment team, on 14 April 2010, it had a population of
12 children, all placed by the CSW. Except for offenders, who must be over age 14, the facility is open
to children aged 10–18 years.
The ‘reception’ facility has separate dormitories for girls and boys. It has a gymnasium and a large
fenced yard. There are bars on windows and balconies. The physical infrastructure and furnishings
in the newly renovated units – which were not occupied at the time of the visit – are good. Locked
gates and video surveillance systems seem to provide appropriate security for different categories of
residents, although naturally they also give the facility the air of a prison.
The facility has a staff of 25, including 8 professionals with degrees in pedagogy, psychology, speech
therapy and other disciplines. The staffing plan calls for 54.
Residents attend school in the community. Most placements by the CSW or courts last between
six months and three years. Staff members prepare a plan for the treatment of each child or juvenile
placed by a court or CSW, based in part on information from parents obtained by social workers. The
plan must be agreed by the child. The staff indicated that they believe representatives of the court
or the CSW should participate in the teams responsible for monitoring the treatment of children and
adolescents placed by such bodies.
The assessment team agrees that it is necessary to improve security within this facility, although
it also believes that there were, and to some extent still are, more important underlying issues.
One is the placement in an open facility of convicted juveniles who, at least in retrospect, clearly
represented a threat to each other and the community. The ‘last resort’ principle allows deprivation
of liberty of offenders who represent a danger. While assessments of the danger an individual
represents to the society and his peers necessarily involves a risk of error, it appears that the
authorities did not have or did not adequately apply tools for the assessment of risk before making
placements to this facility.
The other underlying issue is the mixing in a single facility of children and adolescents of different
ages placed for very different reasons. The solution to the security problems this entails has been
solved by, in effect, turning a home for children into a small prison, an environment which is not
compatible with the needs of children who are placed because they are neglected or abused by their
parents, the group that seems likely to make up the largest part of the population.
In our opinion, the remodelling of this facility in order to improve security should be seen as a
temporary measure, and consideration should be given to the identification of more appropriate
options – family-based when possible – for children who are not offenders. This would not make
38
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
the facility superfluous, but would allow it to be used for accused juveniles who need to be detained
before trial and/or offenders serving custodial measures presently confined in units located within a
prison.
Another issue is the confinement of juveniles by decision of the police for as long as 15 days. It may
well be necessary, in some circumstances, to provide shelter to children for such periods before
locating their parents, making arrangements to reunify them with their families and, indeed, assessing
the appropriateness of returning them to their parents. However, allowing children to be detained
without a court order for such long periods creates a risk of arbitrary deprivation of liberty. Both
the criteria and procedures for temporary placement for such reasons should be reviewed for their
compatibility with international standards.
39
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
PART III. UNICEF’s Support to Juvenile Justice Reform
Strategy
UNICEF began to support the development of juvenile justice around the year 2000, but it did not
adopt an express strategy for this purpose until much later. A project proposal on support to juvenile
justice reform adopted in September 2009 contains a section setting forth a strategy.
A tacit strategy is implicit in the approach to this issue followed by UNICEF during these years. At the
beginning of the decade, it supported the preparation of two situation analyses on juvenile justice,
one covering the Republika Srpska and one covering the Federation. Both were prepared by national
experts and were very influential. UNICEF then supported the preparation of the National Action Plan
for Children in Bosnia and Herzegovina, which was adopted in 2002. The Action Plan is unusual in
that it addresses the issue of ‘children in conflict with the law’ in some detail.
A national symposium on offending by juveniles was held in 2003, and led to a decision to adopt
a national strategy against juvenile offending, based on the relevant international standards.185
The process of developing the strategy during these years (2001–2004) was supported by UNICEF in
cooperation with two international partners, the Open Society Institute and Save the Children UK.186
There was significant governmental ownership of the process, which also was noteworthy for its
comprehensiveness. The strategy document adopted in 2006 stated, “…projects and initiatives
implemented by domestic and international organizations in the area of juvenile justice – mostly
partial and relatively modest in scope – have not resulted in substantial changes either in the
approach to this issue or in practice…”187
In 2006, cooperation with other international bodies was reinforced by the establishment of an
Inter-Agency Working Group on Juvenile Justice comprising, in addition to the two organizations
mentioned above, the Council of Europe, the European Commission, OSCE, and others. The Working
Group is chaired by UNICEF.
The Ministry for Human Rights and Refugees participated actively in the activities mentioned above,
but implementation of the Strategy against Juvenile Offending (2006–2010) was weak, initially.
In 2008, a number of horrific crimes committed by juveniles focused public attention on this issue.
The government responded, inter alia , by establishing an interministerial Juvenile Justice
Coordination Body, which prepared the draft law on juvenile justice called for by the 2006–2010
Strategy. UNICEF began to support the work of the Coordination Body.
The characteristics of UNICEF’s support during the period 2000 to 2001 – beginning with a situation
analysis, supporting the development of a comprehensive strategy adopted after broad consultation
with all relevant national actors, supporting the development of a national coordination mechanism,
and coordinating support with other interested international actors – correspond to the profile of a
coherent and well-designed strategy.
The preparation of the new draft legislation on juvenile justice led UNICEF to develop a
three-year project. It has four strategic goals: to ensure the adoption and implementation of the law
on juvenile justice, then still in draft form; to ensure the use of ‘alternative measures’; to introduce
40
185
The Strategy against Juvenile Offending for Bosnia and Herzegovina (2006–2010), supra, pp. 2–3.
186
Ibid., p. 2.
187
Ibid., p. 3.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
‘more humane and progressive treatment’ of offenders in correctional facilities; and to support
prevention.188 These aims are substantially identical to the five goals of the government Strategy
against Juvenile Offending (2006–2010). Consistency between the scope and objectives of this project
and those of the government Strategy is positive. The lack of a frank analysis of the reasons for
the delay in implementing the government Strategy is unfortunate, however, because the successful
implementation of the UNICEF strategy presumably will need to overcome these obstacles. A good
approach should include a risk assessment, and there is none here.189
The emphasis on prevention of violence in schools and the need for programmes designed specifically
for Roma are positive features, although it seems odd that the programmes for Roma children are
mentioned in the context of alternative measures rather than prevention.
While some activities (e.g., the adoption of laws and regulations) will be carried out at the national
level, others are to be implemented in selected localities, including the main urban centres.
This appears to be a realistic strategic decision, especially considering the peculiar political/
administrative structure of Bosnia and Herzegovina. Experience in other countries suggests that the
implementation of extensive reforms at the national level within the space of a few short years often
is not feasible. Concentrating on the municipalities where offending is greatest is a logical approach.
In general, the activities envisaged seem calculated to help ensure achievement of the objectives.
Campaigns designed to raise public awareness of issues relating to children in conflict with the law are
an exception, in our opinion. Significantly, no examples are cited of campaigns of this sort that have had
a measurable impact on the prevention of offending, or even on the treatment of juvenile offenders.
Most of the indicators for the implementation of the project are output indicators, and the few
impact indicators that are recognized are quite vague. This is too often the case in national plans
and strategies on juvenile justice. However, although baseline information is frequently insufficient
to identify quantifiable targets both relevant and attainable, more concrete descriptions of what the
project is intended to achieve would be both desirable and feasible.
The strategy has some other flaws, in the opinion of the assessment team. Some of the factual premises
appear to be based on opinion or anecdotal evidence rather than data.190 The parts concerning prevention
do not distinguish between primary and secondary prevention, and those on institutional treatment
focus on humanizing treatment, with little mention of the prevention of reoffending. References to the
crimes committed by juveniles in 2008 emphasize the tragic nature of these events, but they do not
draw any lesson from them. In our view, they should have led to the realization that the mechanism for
determining the appropriate response to dangerous juveniles was dysfunctional, and that the absence
of a suitable closed facility for dangerous juveniles was a gap that needed to be addressed.
Yet another flaw, in our view, is the failure to recognize the need to develop more comprehensive
and reliable data on offending and the functioning of the juvenile justice system. Accurate and
relevant data are essential, in the long term, to understand better the causes of offending and
the effectiveness of the approaches and programmes implemented for the prevention of offending
and reoffending. The strategy mentions the need for data only in the context of gender.
188
Protection of Children at Risk and Children in Contact with the Justice System in BiH – Support to Juvenile Justice
Reform in BiH – project Proposal to the Swiss Agency for Development and Cooperation and the Swedish International
Development Cooperation Agency, UNICEF, September 2009, p. 11.
189
Ibid. There is a section on “Sustainability, Assumptions and Opportunities,” but a frank assessment of risks is usually salutary.
190
Ibid. For example, a sentence on page 6 indicates that the age at which children commit their first offence is decreasing,
although the preceding sentence indicates that data on offending are not disaggregated by age.
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Planning, management and evaluation
Since the UNICEF project on juvenile justice was during its first year when the assessment mission
took place, it would be premature to address in any detail the other issues normally covered by
this Part of an assessment, such as planning, management and evaluation. The assessment team
was favourably impressed by the good cooperation in planning and management between UNICEF
and the Ministry for Human Rights and Refugees, which convenes and acts as secretariat of the
Coordination Body. The contracting of a national NGO in 2009 to evaluate implementation of
the strategy is another positive practice that deserves to be recognized.
42
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
PART IV. Conclusions and Recommendations
POSITIVE DEVELOPMENTS
1.
A strategic approach to the development of juvenile justice has been adopted, on the state and
cantonal levels.
2.
A Juvenile Justice Coordination Body has been established and is active. Civil society
participates when invited.
3.
The new legislation on juvenile justice is well designed to bring the law into conformity with
international and European standards.
4.
Some key government officials are knowledgeable about child rights and juvenile justice, and
committed.
5.
A considerable amount of training in child rights and juvenile justice has taken place, for key
sectors such as the police, judges, prosecutors and social workers. At least some training is
based on needs assessments, and the aims include learning skills and developing appropriate
attitudes and values, in addition to cognitive learning.
6.
The disciplinary centre in Vogos̆ća, Sarajevo, provides valuable professional services in the capital
region in the prevention of offending for children at risk and in the prevention of reoffending. The
creation of a second disciplinary centre in Tuzla is a recent, positive development.
7.
The day centre operated by the CSW in Banja Luka, is a valuable example of secondary prevention.
8.
The approach to socialization and the prevention of reoffending applied by the educationalcorrectional unit in Tunjice, Banja Luka, is creative, coherent and effective. The need for a
similar facility in the Federation has been recognized, although the measure taken to fill this gap
temporarily is not compatible with the rights of the juveniles concerned.
9.
Improvements in the unit for juvenile offenders within the prison in Zenica are a positive
development, and the creation of a separate unit for convicted juvenile offenders within the
prison in East Sarajevo is a good example of the kind of facility that is appropriate for convicted
juveniles who require confinement in a multipurpose prison.
10.
Some CSWs (e.g., in Banja Luka and Sarajevo) have teams specializing in cases of juvenile
offenders.
11.
Special police units have been established to deal with offending by juveniles and criminal
offences against children in two cantons, and in the municipality of Banja Luka. Their role
includes the investigation of offences, in addition to prevention.
12.
Mechanisms for investigating violations of the rights of suspects by police officers are effective
and incidents of abuse of juvenile suspects are infrequent.
13.
National standards on a number of key issues are substantially compatible with relevant
international standards, including the minimum ages for prosecution as a juvenile and as an
adult, the arrest and interrogation of juvenile suspects, time limits for detention before and
during trial, and the right to legal assistance, trial procedures and sentencing.191
191
This refers in particular to the standards contained in the new Law on Protection and Treatment and the draft law on
juvenile criminal offenders.
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
14.
Specialized judges and prosecutors exist in some courts. The new legislation on juvenile justice
requires the appointment of specialized judges and prosecutors for juveniles, and specialized
technical staff for both.
15.
The Federal Office of Statistics publishes an annual report on crime that includes a section on
juveniles, which contains much relevant data. There is strong interest in compiling data on
juvenile justice on the part of the State Agency for Statistics as well as the Republika Srpska
Institute of Statistics. The Coordination Body has begun to compile data from the relevant
ministries and authorities with a view to using them to inform planning and policy-making.
16.
There is expertise in juvenile justice and the criminological aspects of offending by juveniles
within some universities, and some research has been carried out.
17.
Diversion is allowed in many cases, and under the new legislation it will be available in a wider
range of cases. Prosecutors will be required to consider the appropriateness of diversion in all
cases in which it is allowed.
18.
The national Ombudsman has a specialized unit for child rights and takes an active role in
monitoring residential institutions for children, including those for juvenile prisoners and
detainees and underage offenders.
19.
The UNICEF project on juvenile justice reform (2010–2012) is informed by research carried out by
national experts, builds on the results of previous projects and activities of other international
actors, and enjoys strong support from the main implementing partner, the Ministry for Human
Rights and Refugees. The scope of the project is appropriate, and it covers issues sometimes
overlooked, including the rights of child victims of crime.
CHALLENGES
1.
Implementation of the Strategy against Juvenile Offending (2006–2010) has been limited,
especially during the first two years, before the creation of the Juvenile Justice Coordination Body.
2.
Available resources for existing agencies and programmes have been reduced, as a result of the
impact of the global economic crisis on the national economy, and for the foreseeable future
it is unlikely that funding will be available from government budgets for new programmes or
agencies.
3.
Although there are many committed individuals in relevant agencies and institutions, the rights
of children and juvenile justice are not a priority for some sectors of government, including the
legislature of the Federation.
4.
The social work authorities are expected to play an important role in the juvenile justice system,
but their capacity to fulfil this role is very limited: staffing levels are insufficient, their broad
mandate includes many other areas and some are funded by municipal governments.192
5.
Although the strategies that have been adopted on the national level and in some cantons
recognize the importance of prevention, the preventive activities being carried out are fragmented.
Programmes to assist adolescents who abuse drugs and those who require psychological
treatment are weak or non-existent.
192
44
This conclusion is based mainly on interviews in the Federation; the assessment team is uncertain of the extent to which
it is applicable to the Republika Srpska.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
6.
The system of appointing lawyers to handle cases of accused juveniles does not effectively
guarantee the right to adequate legal services.193
7.
The changes made to the infrastructure of the Hum facility in order to prevent violence and exploitation
amongst the different categories of children placed there have made the facility inappropriate
for children who are not offenders, especially younger children. In addition, responsibilities for
funding and operating the facility are not clearly specified; aims and methodologies for the different
categories of children it is expected to receive lack clarity; and the procedures for admitting some
categories of children do not appear to comply with international standards.
8.
In the Federation, accused juveniles detained before trial reportedly are usually placed in
separate cells in pretrial detention centres, in proximity to adult detainees.194
9.
Policy development, law reform and planning have not been based on reliable data about
offending by juveniles. Published data cover only part of the country; they are restricted to
information received from the prosecutors and police, limited to offences committed by children
over age 14 and not as detailed as could usefully be. There is little data and no research on
recidivism, which is needed to assess the relative effectiveness of various kinds of measures for
the prevention of reoffending by different groups of offenders.
10.
Most training continues to be done on an ad hoc basis; it has not been incorporated into the
curricula of relevant training academies and, although the law requires judges and prosecutors
to undergo training, the content of this requirement has not been defined or regulated.
RECOMMENDATIONS
1.
The next national strategy on juvenile justice and the prevention of offending should be based
on a realistic assessment of risks and foreseeable constraints. Limited funding requires careful
analysis of the activities and changes to the system that are most urgently needed, an evidencebased assessment of the cost-effectiveness of the possible approaches, and measures for
addressing problems identified as deserving priority.
2.
The role of technical staff (psychologists, social workers, pedagogues) that, according to the
new juvenile justice legislation, will be attached to courts and prosecutors’ offices, and the
function of disciplinary centres should be defined so as to complement, and not duplicate,
CSW responsibilities.
3.
In some countries in the region, probation services have been established recently to provide
the kind of social reports and services (e.g., supervision of offenders given non-custodial
measures and those released on parole) that are entrusted to the social welfare authorities in
Bosnia and Herzegovina.195 If this is not an option in the short term, due to budgetary constraints,
priority should be given to helping social welfare authorities develop the capacity to fulfil the
responsibilities attributed to them by the law and by strategies on juvenile offending. This would
be a gradual process, which would require the identification of priorities, realistic planning,
political commitment and allocation of resources. The possibility of increased cooperation with
civil society organizations in performing certain functions should be explored. It is urgent to
193
Ibid.
194
The assessment team does not know whether the detention of juvenile suspects in such facilities has been eliminated
in the Republika Srpska, or merely reduced.
195
See, e.g., UNICEF assessments of juvenile justice reform achievements in Georgia, Kosovo and Moldova available
at www.ceecis.org/juvenilejustice/new/index.html #, accessed 15 January 2011.
45
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
strengthen the capacity of existing specialized units having the heaviest caseloads. The need
for establishing specialized units where they do not exist – perhaps on the cantonal level or in
the largest municipalities – must be assessed.
The mandate of new specialized teams would not necessarily be limited to juvenile offenders. Since
the risk factors for offending are closely linked to risk factors for other serious social problems,
the specialized teams might, for example, be given a mandate for all issues involving adolescents,
or older children and adolescents, or possibly even all children and adolescents.
4.
The experience of many countries indicates that the only way of ensuring that accused juveniles
receive adequate legal services is through a legal aid programme.196 Several countries in the
region have established publicly funded national legal aid programmes that defend accused
juveniles and adults. In some others, pilot projects that provide services to juveniles have been
established by non-governmental organizations, with support from international donors. Given
budgetary constraints, the creation of a pilot project focusing on the rights of juveniles would
seem to be the best option for the short term. Such a project would not necessarily be limited
to providing legal services; one of the best examples in the region provides integrated legal and
psychosocial services. Similarly, the mandate of such a project would not necessarily be limited
to the defence of accused juveniles. It might also include other areas requiring similar expertise,
such as assistance to child victims of violence.197
5.
An effort should be made to close the gaps in primary and secondary prevention. The
disciplinary centre in Sarajevo has recently begun providing secondary prevention in the largest
and second most populated canton, and plans to include outreach in municipalities outside
the cantonal capital. The day centre in Banja Luka also provides valuable preventive services
within a limited area. Because participation is voluntary, its role is complementary to that of the
disciplinary centres, whose clientele consists mainly of juveniles given alternative measures.
The need for such centres in other cantons and municipalities should be developed and a plan
for establishing them adopted.
Activities aimed at reducing violence in schools no doubt help diminish the risk of offending,
but they should be complemented by community-based programmes. Insufficient capacity has
prevented CSWs from adequately fulfilling their responsibility in prevention, and civil society
has played a very modest role, thus far. The gradual expansion of the network of disciplinary
centres and day centres will have a positive impact on the juvenile justice workload of CSWs,
allowing them to concentrate more on referral and providing preventive services in areas
lacking such centres. Specialized police units are contributing to the efforts aiming to prevent
offending in some municipalities, and should do so in other areas as the prevention network
is consolidated and expanded. Creating a more cohesive approach, with better inter-agency
cooperation, and adapting the programmes successfully introduced in the most populated
areas to the needs and circumstances of other cantons and municipalities, should be a priority.
46
6.
The experience of the disciplinary centre – which to date is quite positive – should be documented
carefully, as a step towards the identification and consolidation of methodologies that are
effective in the prevention of offending (amongst children at higher risk) and reoffending, and
the circumstances in which the methods used are likely to be effective.
196
Ibid., see, e.g., UNICEF assessments of juvenile justice reform achievements in Albania, Armenia, Georgia, Moldova, Turkey
and Ukraine, supra.
197
The Centre of Integrated Legal Services and Practices, in Albania, provides legal and psychosocial services to juvenile
offenders and child victims.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
7.
The purposes of the Hum residential facility should be reconsidered. It now has the infrastructure
of a secure facility, which makes it unsuitable for children who are not offenders and pose no
serious risk to themselves or the community. A new open facility should be created for such
children and consideration should be given to using this as a secure facility, or a facility having
separate units for offenders and accused juveniles who require confinement and offenders who
require residential treatment in an open facility. This would help solve the problem of pretrial
confinement in adult facilities, and placement of offenders with ‘educational-correctional’
measures in a prison.
8.
Data collection systems need to be improved. The indicators used by the system in place in the
Federation should be reviewed to distinguish serious crimes of violence (e.g., murder, rape) and
to include indicators on diversion (educational recommendations), on detention before trial, on
the participation of children under age 14 in criminal activities, and on juveniles serving prison
sentences and custodial sentences.
9.
The effectiveness of different dispositions, measures and sentences should be monitored and
analysed. Information on the way offenders or children at risk with different profiles respond
to various types of measures is needed to evaluate the way prosecutors and judges exercise
their discretion and, ultimately, the relevant legal provisions. Better information of this kind
might help avoid the repetition of some of the tragedies that have resulted from inappropriate
placement of juveniles in the past.
10.
Standards should be developed as to the kind and amount of training required for different
professionals occupying posts in the juvenile justice system – especially judges, prosecutors,
social workers and ‘pedagogues’ who work with offenders – and plans should be made for
incorporating such training into entry-level and in-service training programmes on a permanent
basis (development of curricula and training materials etc.). The feasibility of developing links
between training programmes and research, and between practitioners and academia, should
be explored.
11.
The commitment of the highest political authorities, including the legislatures, needs to be
strengthened to adopt and implement the new legislation on juvenile justice and the new
strategy on juvenile offending that will be developed by an Expert Working Group (formed by
the Ministry for Human Rights and Refugees and supported by UNICEF) in 2011.
47
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Annex 1. Data collection and analysis
One of the aims of this assessment is to ascertain whether the information corresponding to global
and regional indicators exists; to identify problems or difficulties concerning the use or definition of
such indicators; and to explore the availability of other indicators of particular relevance.
The assessment reveals that data on juvenile justice are recorded by the police, prosecutors and
courts. There are three statistical agencies: the Agency for Statistics of Bosnia and Herzegovina, the
Federal Office of Statistics of the Federation of Bosnia and Herzegovina and the Republika Srpska
Institute of Statistics. Only the Federal Office of Statistics publishes data on crime on a regular basis,
since the year 2000. These data are detailed and useful, although they have some limitations and
difficulties regarding their interpretation.
No data are reported on a regular basis on juvenile offending and juvenile justice in the Republika
Srpska, and consequently no data on this subject are available for the country as a whole. However,
the Republika Srpska Institute of Statistics publishes annually a Social Welfare Statistics Bulletin ,
which since 2003 contains some valuable data on children at risk and offenders under supervision.
No similar data are published on a regular basis by the Federation.
The Juvenile Justice Coordination Body has also begun compiling data on juvenile justice, beginning
with 2008. Closer cooperation between the Coordination Body and the statistical agencies would no
doubt improve the way data are reported.
The indicators and corresponding observations of the assessment team are as follows:
1. National data collection system and international and regional indicators
(a) Crimes committed by juvenile offenders
The TransMONEE198 matrix defines this indicator as the “number of crimes committed by persons
aged 14–17,” disaggregated by the kind of crime, i.e., violent, property or other.199
No data on crimes committed by juveniles, as such, are published. However, the annual statistical
bulletin on crime of the Federal Office of Statistics contains data on the number of reported juvenile
offenders. They are disaggregated by canton, sex and age of the offender and the nature of the
offence. The criteria for classifying offences are more detailed than those suggested by TransMONEE
– 14 categories are used.
(b) Children in conflict with the law/children arrested
The term ‘arrest’ is defined by the UNODC-UNICEF Manual as “placed in custody by the police …
or other security forces because of actual, perceived or alleged conflict with the law.” ‘Conflict
with the law’ is, in turn, defined as having “committed or [being] accused of having committed an
offence,” although the definition adds that, “Depending on the local context,” the term may also
mean “children dealt with by the juvenile justice or adult criminal justice system for reason of being
considered to be in danger by virtue of their behaviour or the environment in which they live.”
48
198
TransMONEE is a database established by the UNICEF Innocenti Research Centre that contains social data provided by the
national statistical offices of Central and Eastern Europe and the Commonwealth of Independent States (CEE/CIS). It is
presently maintained by the UNICEF Regional Office for CEE/CIS. Available at www.transmonee.org/
199
The UNODC-UNICEF Manual does not include this indicator. See United Nations, Manual for the measurement of juvenile
justice indicators , Office on Drugs and Crime (UNODC) and UNICEF, New York, 2006, available at www.unodc.org/pdf/
criminal_justice/06-55616_ebook.pdf, accessed 15 January 2011.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Data on the number of juveniles taken into police custody are not published by any of the relevant
statistical agencies (i.e., of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina or
Republika Srpska). The data on reported offenders published by the Federal Office of Statistics
(see above) could be considered the equivalent to ‘children in conflict with the law’, but they do not
cover the whole country.
(c) Children in detention
The UNODC-UNICEF Manual describes this indicator as “children detained in pretrial, pre-sentence
and post-sentencing [sic] in any type of facility (including police custody)” at any specific date. 200
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska.
(c) Children in pretrial or pre-sentence detention
The TransMONEE matrix defines this indicator as “the number of children who are placed in pretrial
detention during the year.” The UNODC-UNICEF Manual describes it as including children deprived
of liberty while awaiting trial and convicted juveniles awaiting sentencing, but not those who are
sentenced and awaiting the outcome of an appeal.
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska.
(d) Duration of pretrial detention
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska.
(e) Duration of post-sentencing detention
Data on this indicator are not published in Bosnia and Herzegovina or in Republika Srpska.
The Federal Office of Statistics publishes data on the length of sentences imposed on older juveniles,
but no data are published on the length of sentences actually served. Data on placement in facilities
that are not part of the correctional system are published by this Office. However, as placement in them
is not for a specific period of time, no data are published about the actual length of placements.
(f) Child deaths in detention
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska.
(g) Separation from adults
The UNODC-UNICEF Manual defines this indicator as “the percentage of children in detention not
wholly separated from” adult prisoners. The TransMONEE project does not include this indicator.
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska. In any event, juveniles who reach age 18 while serving a sentence are allowed to remain in
juvenile units, and for this reason only a small minority of the population of juvenile correctional
facilities is actually under age 18.
200
Manual for the measurement of juvenile justice indicators , supra, p. 11.
49
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
(h) Contact with parents and family
The UNODC-UNICEF Manual defines this indicator as “the percentage of children in detention who have
been visited by, or visited, parents or guardian or an adult family member during the last three months.”
Data on this indicator are not published in Bosnia and Herzegovina, in the Federation or in Republika
Srpska.
(i) Sentences
The UNODC-UNICEF Manual does not include this indicator, but the TransMONEE matrix includes
the indicator “juveniles sentenced for criminal activity.” A glossary explains, “A competent authority
passes a sentence when… it makes a final decision about a child’s case and rules that the child shall
be subject to certain measures.”
Data on the number of juveniles sentenced are not released for the whole country, but are published
in the Federal Office of Statistics’ annual bulletin. They are disaggregated by age group at the time
of the offence (14–15 years; 16–17 years), by the sentence or measure imposed, and by canton. The
data include both ‘sanctions’ (roughly equivalent to sentences) and ‘security measures’ such as
confinement to a facility for the treatment of drug abuse or mental illness.
(j) Custodial sentences
The UNODC-UNICEF Manual defines this indicator as “the percentage of sentenced children who
receive a custodial sentence,” i.e., one of confinement to an open, semi-open or closed facility.
The data on convictions published by the Federal Office of Statistics are disaggregated by the
sentence or measure imposed, as well as other criteria (see above).
(k) Alternative sentences
The TransMONEE matrix requests information on the kind of sentences imposed on convicted
juveniles. The 12 categories used are: committal to a penal institution; committal to an educational/
correctional institution; pre-sentence diversion; formal warning/conditional discharge; apology; fine/
financial compensation; community service or corrective labour; supervision order; probation order;
postponement of sentencing; release from sentencing; and other. The language used in this definition
is misleading, because some of these dispositions (e.g., pre-sentence diversion, postponement of
sentencing) obviously are not sentences.
Data on this indicator, as indicated above, are not published in Bosnia and Herzegovina or in Republika
Srpska. The data on sentences and security measures published by the Federal Office of Statistics are
disaggregated by the specific sentence or measure imposed. There are five measures that are noncustodial, and one (assignment to disciplinary centre) that may be either custodial or non-custodial.
(l) Pre-sentence diversion
The UNODC-UNICEF Manual defines this as “the percentage of children diverted or sentenced
who enter a pre-sentence diversion scheme,” adding that it is intended to measure “the number
of children diverted before reaching a formal hearing.” This is somewhat contradictory, 201 and the
Manual recognizes that what constitutes diversion “will need to be identified in the local context.”
201
50
Hearings often occur before trial begins, which means that diversion before any hearing takes place would be only part of
‘pre-sentence diversion’. And it is unclear why the percentage of offenders diverted should be calculated with reference to
the number diverted or sentenced, rather than the number accused or prosecuted. In addition, diversion can consist of a
mere warning, without entry into a programme.
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Data related to this indicator are not published by the Agency for Statistics of Bosnia and Herzegovina
or by the Republika Srpska Institute of Statistics. The data on offending published by the Federal
Office of Statistics are disaggregated by whether the offence was prosecuted and, if not, the reason it
was not, but the criteria used for disaggregation do not clearly indicate the number of cases diverted.
(m) Aftercare
This indicator is defined as “the percentage of children released from detention receiving aftercare.”
There is a problem with the way this indicator is defined, because aftercare programmes are generally
considered important for offenders released from custodial facilities after serving a sentence, not
those released from pretrial detention.
Data on this indicator are not published by the Agency for Statistics of Bosnia and Herzegovina or
the Federal Office of Statistics, but the Social Welfare Statistics Bulletin published by the Republika
Srpska Institute of Statistics does include data on the caseload of children ‘on release from
imprisonment’ disaggregated by sex and age.
2. Other relevant data and information
Recidivism
Data on this indicator are not published by the Agency for Statistics of Bosnia and Herzegovina or by
the Republika Srpska Institute of Statistics. Data on cases prosecuted published by the Federal Office
of Statistics are disaggregated by prior to conviction, but data on convictions are not.
Ethnicity
No published data on offending are disaggregated by ethnicity.
Juveniles prosecuted
Data on this indicator are not published by the Agency for Statistics of Bosnia and Herzegovina or by
the Republika Srpska Institute of Statistics. Data on juveniles prosecuted are published annually by
the Federal Office of Statistics. Data on cases prosecuted are disaggregated by sex, by the nature of
the offence, by canton and by the outcome of the prosecution.
Begging and vagrancy
Data on this indicator are not published by the Agency for Statistics of Bosnia and Herzegovina
or by the Federal Office of Statistics. However, the Social Welfare Statistics Bulletin published by
the Republika Srpska Institute of Statistics includes data on the caseload of children ‘inclined to
committing criminal acts’, disaggregated by sex and age cohort (0–7 years; 7–14 years; 15–16 years;
and 17–18 years) and by the situation associated with a higher risk of offending (e.g., dependency on
alcohol, addiction to drugs, vagrancy, begging and prostitution). The data also indicate the kind of
assistance provided or the measures taken.
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Annex 2. List of persons interviewed
Government of Bosnia and Herzegovina
M. Smajević, State Coordinator on Juvenile Justice
J. Kosović, Judge of the Supreme Court
S. Popović, Agency for Statistics
M. Nenadić, Agency for Statistics
Government of the Federation of Bosnia and Herzegovina
G. Šimić, Ministry of Justice
A. Zečević, Ministry of Labour and Social Policy
Emira Slomović, Ministry of Labour and Social Policy
J. Pećanac, Prosecutor
J. Džumhur, Ombudsperson, Bosnia and Herzegovina
L. Zita, Office of the Ombudsman
M. Agić, Director, Hum correctional institution
N. Spahić, Director, Zenica prison
H. Alić, Director, Federal Office of Statistics
F. Strik, Federal Office of Statistics
Government of the Republika Srpska
N. Mirkonj, Ministry of Justice
L. Lepir, Ministry of Health and Social Welfare
P. Vuksan, educational-correctional facility, Tunjice, Banja Luka
N. Ðajić, educational-correctional facility, Tunjice, Banja Luka
B. Radić, Institute of Statistics
D. Uletilović, Judge
S. Vuksan, Centre for Social Work
S. Bijelić, Juvenile police
V. Mandić, Director, Juvenile unit, Kula prison
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Canton of Sarajevo
M. Letić, Head, Juvenile police
S. Suljagić, Director, disciplinary centre Vogošća
Ðenita Ljuca, Deputy Director, disciplinary centre Vogošća
G. Kadić, Head, Social Protection Unit, Centre for Social Work, Novi Grad
Canton of Tuzla
J. Mijatović, Minister of Justice and Governance
I. Šarić, Spokesperson, Ministry of Internal Affairs
M. Dževdetbegovića, Director, disciplinary centre
Civil society
E. Lukačević, NGO Bureau for Human Rights
M. Budimlić, Professor, Faculty of Criminal Sciences, University of Sarajevo
S. Bajraktarević, Attorney
UNICEF
F. Bauer, Representative
A-C. Dufay, Deputy Representative
S. Turkić, Child Protection Officer
Other international organizations
H. van Eck Koster, Organisation for Security and Co-operation in Europe
M. Velinas, Organisation for Security and Co-operation in Europe
I. Sladoje, Organisation for Security and Co-operation in Europe
S. Tabbò, Director, Italian Development Cooperation
O. Di Loreto, Italian Development Cooperation
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Annex 3. List of documents consulted
Legislation
Code of Criminal Procedure of Bosnia and Herzegovina, 2003
Criminal Code of Bosnia and Herzegovina, 2003
Code of Criminal Procedure of the Federation of Bosnia and Herzegovina, 2003
Criminal Code of the Federation of Bosnia and Herzegovina, 2003
Decree on the Application of Correctional Recommendations for Juveniles, Government of the
Federation of Bosnia and Herzegovina, 2009
Law on Protection and Treatment of Children and Juveniles in Criminal Proceedings [of the Republika
Srpska], 2010
Draft Law on Juvenile Criminal Offenders and Protection of Children under Criminal Legislation
Government documents
Agency for Statistics of Bosnia and Herzegovina, Bosnia and Herzegovina in Figures 09 , Sarajevo,
[undated]
Human Rights Ombudsman, Special report on the rights of the children in institutions, with specific
reflections on normative and standards, Office of the Ombudsman, Sarajevo, 2010
Ministry for Human Rights and Refugees, National Action Plan for Children in Bosnia and Herzegovina
(2002–2010) , Sarajevo, April 2002
Ministry for Human Rights and Refugees, The Strategy against Juvenile Offending for Bosnia and
Herzegovina (2006–2010) , Sarajevo, 2006
Institute of Statistics, Social Welfare Statistics: Beneficiaries, Forms, Measures, Services and
Institutions, Social Welfare Statistics Bulletin No. 6 , Banja Luka, 2008
Ministry of Health and Social Welfare, Current Status and Development Prospects of the Social
Welfare System in the Republic of Srpska, Banja Luka, 2008
Federal Office of Statistics, Reported, Accused and Convicted Adults and Juveniles and Economic
Contest [sic] in Federation of Bosnia and Herzegovina, Statistical Bulletin No. 130 , Sarajevo, 2009
United Nations documents
Combined Second, Third and Fourth Periodic Report of Bosnia and Herzegovina on its Implementation
of the Convention on the Rights of the Child, Sarajevo, 2009, issued as United Nations document
CRC/C/BIH/2-4
Committee on the Rights of the Child, Consideration of reports submitted by States parties under
Article 44 of the Convention, Concluding observations: Bosnia and Herzegovina, CRC/C/15/Add.260,
2005
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Committee on the Rights of the Child, Consideration of reports submitted by States parties under
Article 44 of the Convention, Initial report of Bosnia and Herzegovina, CRC/C/11/Add.28, 2004
United Nations, Manual for the measurement of juvenile justice indicators , Office on Drugs and Crime
(UNODC) and UNICEF, New York, 2006
UNICEF documents
Protection of Children at Risk and Children in Contact with the Justice System in BiH – Support
to Juvenile Justice Reform in BiH – project Proposal to the Swiss Agency for Development and
Cooperation and the Swedish International Development Cooperation Agency, UNICEF, September
2009
Sijerc̆ić-C̆olić, H., Bubalović, T., and Kosović, J., Criminal-Legal Provisions on Juveniles in the Federation
of BiH Related to the Perpetrators of Criminal Offences , Soros Foundation-UNICEF, Sarajevo, 2001
European documents
Organisation for Security and Co-operation in Europe, Juvenile Justice Findings in BiH: Submission
to the Judicial and Prosecutorial Training Centres, OSCE, Sarajevo, 2009
Report to the Government of Bosnia and Herzegovina on the visit to Bosnia and Herzegovina carried
out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, CPT/Inf (2010) 10, Strasbourg, 2010
Other documents
Kosović, J., Young People in Conflict with the Law in the Light of Topical Problems concerning
Juvenile Criminal Justice , Association of Criminal Law and Criminology, Sarajevo, 2001
Simović, M., Young Criminal Offenders in view of the Current Problems of Juvenile Criminal Justice in
the Republic of Srpska , Faculty of Law, University of Banja Luka, 2001
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
Annex 4. Note on terminology
Since the English version of this report has been written for an international and multidisciplinary
readership, generic terms frequently are used in preference to literal English translations of terms
used in the relevant legislation. The terms used are based on international norms and indicators.
The following is a list of some, with a definition, reference to international sources and the
corresponding terms used in the relevant legislation.
References to domestic legislation are limited to the Criminal Code and Code of Criminal Procedure
of the Federation of Bosnia and Herzegovina and the Law on Protection and Treatment of Children
and Juveniles in Criminal Proceedings of the Republika Srpska, which were the most relevant laws in
force in Bosnia and Herzegovina at the time this note was prepared (January 2011).
***
accused: A person who has been formally charged with a crime or offence, and consequently is no
longer a mere suspect – especially but not exclusively a person whose trial has not begun. See, e.g.,
Convention on the Rights of the Child, Article 40.1 and 40.2(b).
Article 20(b) of the Code of Criminal Procedure defines the term ‘accused’ as “a person against whom
one or more counts in an indictment have been confirmed.” The chapter of that Code concerning
juvenile proceedings uses the term ‘accused’ only once, in Article 369, which refers to a provision
of the Code applicable to both juveniles and adults. It also refers to ‘bringing charges’ and ‘filing
indictments’. Most references to juveniles in this chapter use the term ‘minor’ without an adjective,
regardless of the stage of proceedings.
Article 12 of the Law on Protection and Treatment (Basic Terms) mentions ‘accused’ juveniles,
but indicates that the preferred terms are ‘juvenile perpetrator of criminal offence’, ‘juvenile in
conflict with law’, and ‘juvenile delinquent’ – terms that do not distinguish between persons who
enjoy the presumption of innocence and those who have been found responsible for an offence.
The term ‘accused’ is also used in Article 113(2). This law also refers to the placement of charges.
See, e.g., Articles 5 and 87(1).
pretrial detention: Deprivation of liberty before trial has begun, especially after formal charges have
been placed and, by extension, detention during trial. See, e.g., United Nations Standard Minimum
Rules for the Administration of Juvenile Justice (The Beijing Rules), Rule 13.
The Code of Criminal Procedure uses the term ‘pretrial custody’ (Articles 59(2), 61(2), 124(4) and
196). The term ‘custody’ seems to be used as a synonym, and is employed with regard to both
juveniles and adults. See, e.g., Articles 10(3), 14(3), 62, 124(4), 137(1), 140(4), 141, 145–146, 148–152,
160, 261, 302 and 330 (custody during appeal of a verdict), 379–380 (juveniles). Persons in custody
are referred to as ‘detainees’. ‘Placement in the care of the juvenile welfare authority’ (Article158) is
an alternative to ‘custody’ (Article 378).
The Law on Protection and Treatment recognizes different forms of detention during preliminary
proceedings, including ‘temporary placement in the course of preparatory proceedings’,
‘prosecutorial custody’ and ‘custody’ ordered by a court (Articles 94, 97–98 and 99–103, respectively).
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
diversion: A decision not to prosecute an individual who recognizes his/her participation in a crime,
that often (although not necessarily) involves voluntary acceptance of some measure intended to
prevent reoffending. See, e.g., The Beijing Rules, Rule 11; also Convention on the Rights of the Child,
Article 40.3(b).
Articles 8 and 12(n) of the Law on Protection and Treatment indicate that diversion consists of the
resolution of criminal cases by application of ‘correctional measures’. The decision to impose such
measures is normally taken by the prosecutor, before the initiation of criminal proceedings (Article 90).
The measures imposed (Article 22) are similar to diversion measures used in other countries, but this
decision differs from diversion, as usually defined, in that it is not final: the juvenile may be prosecuted
if he/she does not fulfil the measures agreed upon.
Prosecutors also may decide not to initiate criminal proceedings without ‘correctional
recommendations’ on the grounds that prosecution would not be ‘purposeful’ (Article 89). This
also can be considered a form of diversion, although the Law on Protection and Treatment does
not identify it as such. Both decisions are governed by the ‘principle of opportunity’. In addition,
the police have discretion to dispose of cases by imposing warnings (Articles 22 and 88). This is
another form of diversion, although the Law on Protection and Treatment does not identify it as such.
The Code of Criminal Procedure (Article 353) and the Criminal Code (Article 83) recognize measures
similar to the ‘correctional measures’ described above, called ‘developmental measures’ in the former
and ‘educational recommendations’ in the latter (not to be confused with ‘educational measures’,
which are a sort of sentence for juveniles recognized by the Criminal Code).
sentence: A disposition of a case by a court. It is based on a finding that a juvenile is legally
responsible for participation in a crime or offence and imposes a legal obligation (e.g., fine,
supervision, confinement in a correctional facility) on the offender. See TransMONEE Glossary;
UNODC-UNICEF Manual, indicator 9.
The Code of Criminal Procedure uses the term ‘decision’ to describe judicial rulings dismissing
charges against juveniles or imposing a ‘developmental’ or ‘educational measure’ (see below),
and ‘verdict’ to refer to the imposition of a prison sentence on a juvenile (Article 38).
Under Articles 31, 32, 47 and 50–59 of the Law on Protection and Treatment, the term ‘sentence’ is
used only to refer to sentences of imprisonment; other dispositions imposed on juveniles found to
have committed an offence – including confinement in ‘educational’ facilities – are properly referred
to as ‘decisions imposing a correctional measure’.
The term ‘sanction’ includes correctional measures and security measures (Article 30). Security
measures are not separate dispositions but rather requirements (such as psychiatric treatment
or treatment of substance abuse) imposed as part of a prison sentence or ‘correctional measure’
(Article 62).
suspended sentence: A sentence imposing a legal obligation on an offender, which the offender is
not required to comply with, provided that he/she complies with certain requirements (e.g., avoiding
further offending) for a specific period of time. See The Beijing Rules, Rule 17 (comment).
The Criminal Code recognizes suspended sentences (Articles 60 and 62–67), but provides that they
may not be imposed on juveniles (Article 84(5). The Law on Protection and Treatment also provides
that suspended sentences may not be imposed on juveniles (Article 30(4)), but it nevertheless
provides that the ‘enforcement’ of sentences of juvenile imprisonment may be ‘postponed’ if
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ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
the court concludes that the possibility of serving the sentence may suffice to prevent further
offending (Article 54). Conditions may be imposed during the period enforcement is postponed,
known as the ‘probation period’.
non-custodial sentence: A sentence that does not involve deprivation of liberty, i.e., placement
in a residential facility of any kind. Examples include warnings, fines, compensation of the victim,
community service, participation in counselling, vocational training, or any other non-residential
programme designed to prevent reoffending. See, generally, Convention on the Rights of the Child,
Article 40.4; UNODC-UNICEF Manual, indicator 9.
The Criminal Code recognizes a number of sentences or dispositions that do not involve deprivation
of liberty, but there is no generic term for them. Although the term ‘educational measures’ refers to
sentences other than imprisonment, it includes some dispositions – notably ‘institutional measures’ –
that involve confinement in other kinds of facilities for juvenile offenders (see Articles 87, 89, and
94–96). The Law on Protection and Treatment likewise recognizes a number of dispositions that
do not involve deprivation of liberty, but there is no generic term for them. A distinction is made
between ‘sentences of imprisonment’ and ‘correctional measures’, but the latter include dispositions
that involve deprivation of liberty, in particular ‘institutional measures’ (Articles 32, 36, 41 and 42).
References :
58
•
United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules)
•
Convention on the Rights of the Child
•
United Nations, Manual for the measurement of juvenile justice indicators , Office on Drugs
and Crime (UNODC) and UNICEF, New York, 2006. UNODC-UNICEF Manual, available at
www.unodc.org/pdf/criminal_justice/06-55616_ebook.pdf, accessed 15 January 2011
•
TransMONEE Glossary, UNICEF
ASSESSMENT OF JUVENILE JUSTICE REFORM ACHIEVEMENTS IN BOSNIA AND HERZEGOVINA
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UNICEF Regional Office for CEE/CIS
Child Protection Unit
Palais des Nations
1211 Geneva 10, Switzerland
www.unicef.org/ceecis
© The United Nations Children’s Fund (UNICEF), 2011