Journalists’ position as the damaged party during court procedures

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SARAJEVO, 28.09.2018.-If journalists’ safety is jeopardized by any criminal deed (felony) committed by certain suspects or the accused, journalists, during the court procedure, are treated as the damaged party. A damaged party is a person or persons whom personal or material right was violated or jeopardized, as a result of the committed criminal deed (felony).

Typical criminal deed (felony) committed against journalists include the following:

– “Minor Injury” (Anyone causing minor injuries to another person or persons or slightly violates his/her health, shall be fined or imprisoned for one year”), identical for Criminal Law of the Republic of Srpska and Criminal Law of the Federation of BiH”.

– “Major Injury” (Anyone causing major injuries to another person or persons or anyone who vastly violates his/her health, shall be fined or imprisoned for six months up to five years”), identical for Criminal Law of the Republic of Srpska and Criminal Law of the Federation of BiH”

– “Endangering Safety” (Anyone endangering the safety of a person or persons imposing serious threats that he/she or close members of their families, friends or relatives will be killed, seriously injured, deliberated or kidnapped or harmed by setting a fire, explosion or any other commonly known dangerous action or material, shall be fined or imprisoned for one year pursuant to Criminal Law of the Republic of Srpska / (Anyone endangering the safety of a person or persons with serious threats of assaulting and attacking the life or body of this person or disturbing the public with his/her deeds, shall be imprisoned up to six months, pursuant to Criminal Law of the Federation of BiH)

– “Damaging the property” (Anyone destroying, damaging or making the property of other parties unused, shall be fined or imposed for up to two years, pursuant to Criminal Law of the Republic of Srpska) / (Anyone damaging, destroying or making the property of another party unused, shall be fined or imprisoned for up to six months, pursuant to Criminal Law of the Federation of BiH).

– “Violation of Free Expression” (Anyone denying or delimiting freedom of expression or public exposure, foundation of public informing institutions, freedom of press or other means of public informing, shall be fined or imprisoned for up to one year) / (This felony is not defined according to the Criminal Law of the Federation of BiH).

– “Averting the publishing, distribution of printed material and broadcasting the program” (Anyone illegally averting publishing, selling or distribution of books, newspapers or other printed material or averting manufacturing and broadcasting of radio or television program, shall be fined or imprisoned for up to one year, pursuant to Criminal Law of the Republic of Srpska) / (Anyone illegally averting publishing, selling or distribution of books, newspapers or other printed material or averting manufacturing and broadcasting of radio or television program, shall be fined or imprisoned for up to one year, pursuant to Criminal Law of the Federation of BiH). And in more complex cases:

– “Constraint” (Anyone using the force or serious threats the other party to do or not do to, or make him/her suffer in any way, shall be fined or imprisoned for up to one year) / (This felony is not defined according to Criminal Law of the Federation of BiH).

– “Kidnapping” (Anyone using the force, threats, deceit or in any other way take away or keep someone against his/her will, with the purpose to extort money from him/her or extort money from third party or any other material benefit or to force him/her to do, not to do or suffer from something, shall be fine or imprisoned for one to eight years, pursuant to Criminal Law of the Republic of Srpska) / (Anyone illegally holding someone against his/her will or take his/her freedom or limits his/her moves with the purpose of forcing him/her to do or not to do something or to make him/her suffer in any way, shall be imprisoned for six months up to one year, pursuant to Criminal Law of the Federation of BiH)

– “Murder”(Anyone killing another person shall be imprisoned for at least five years), identical for both Criminal Law of the Republic of Srpska and Criminal Law of the Federation of BiH Any citizen or journalist is entitled and has the right to report criminal deed (felony) to local prosecutor either in written or personally. If the report is done personally, a person making the report shall be warned to eventual consequences for false reporting

. Personal reporting shall be followed by an official report and if the report is done by the phone, the official recording shall be done as well. If the report is submitted to the local court or authorized officials (the police), once they receive it, they will accordingly forward it directly to the authorized prosecutor. In cases of physical or mental injury, it is crucial that journalists (possibly immediately), as the damaged party, report the injury to local medical center and keep all medical records regarding this injury, including photos taken by the nearest photo shop (photos of injuries made by the authorized photographer shop).

As far as other evidence is concerned, it would be strongly advised to keep all necessary evidence, including threatening messages on the phone, letters, and e-mails and so on, and all mentioned evidence must be submitted to authorized officials and to the local prosecutor for further investigation. If there is suspicion that certain criminal deed (felony) was done, authorized officials or local prosecutor may by ex officio launch an investigation, which shall include the interrogation of the suspect, including interrogation of both damaged party and witness or witnesses, as they may also include required inspection and event reconstruction, collection of material evidence and required documents, and consequently they may order required expertise as well. Prosecutor may order investigation; if there is a suspicion that criminal deed (felony) was done. Investigation orders are imposed by the prosecutor where the prosecutor shall indicate the circumstances which should be subject to investigation and accordingly, the prosecutor shall require actions for further investigation accordingly.

Prosecutor shall disapprove the investigation if the report and associated documents, confirm that the reported criminal deed | (felony) cannot be legally considered and treated as the official criminal deed (felony) and if there is no suspicion that the suspect did not commit the alleged criminal deed (felony); also if the event is legally considered and treated as disused case; or if the criminal deed (felony) comprised of amnesty or pardoning; or if there are other circumstances that may exclude criminal prosecution. Regarding the non-implementation of the investigation, the prosecutor shall report the damaged party and the person submitting the claim within three days.

The damaged party and the person submitting the report are legally entitled to make an appeal within eight days to the Prosecutors Office. Prosecutor concludes the investigation when he/she determines that the issue and case have been clarified, so the indictment can be raised. If the investigation is not finished within six months, from the date when the investigation order was brought, certain measures shall be taken, in order to terminate the case with the involvement of the prosecutor’s colleagues and their opinion. After pressing charges, the indictment is submitted to the court for legal confirmation, and if the indictment is confirmed, the accused is called to plead guilty, and the damaged party should be invited to plead, regarding the property legal demand and claims.

If the accused party denies the guilt, the court schedules the main hearing, where suitor’s party presents the evidence, followed by the evidence presented by the defendant’s side, and when the damaged party is called to appear, witnesses are also called to be heard and interrogated directly and with cross-examination method by the prosecutor and the damaged party or his legal solicitor, regarding the circumstances of the criminal deed (felony) allegations, when, in case of explanation of their allegations, their statements from the investigation process, given to the police or prosecutor, can be used as evidence.

During the main hearing, the statement given by the journalist (as the damaged party) is crucial evidence, which, in accordance, in other objective evidence (expertise, photos, items, medical records and so on) and subjective evidence (statements given by other witnesses from the investigation process and from main hearings) has significant power for determining the facts crucial for the success of the indictment, during the entire criminal procedure. We should mention that, if the witness is regularly called to appear, but fails to appear without prior notice and excuse for his absence, the judge may order the officials to bring the witness to the court by the use of force. On the other hand, if the witness is also regularly called to appear and also fails to appear, the judge may apply the fine.

During the court procedure, after common questions, raised by the judge (first name, surname, occupation, date of birth etc), the witness is called to state every fact known to him/her regarding the case, and he will be asked questions due to checking procedure and because of additional issues and eventual explanations required. After direct interrogation (by the prosecutor) and cross-examining process (by the defendant’s side); the journalist (as the damaged party) shall be asked and required to answer the questions asked by the prosecutor or the court officials, whether he/she demands property and legal (compensational) claim against the accused.

Property and the legal claim may relate to compensational claims, returning of items or cancellation of certain legal actions. The recommendation for accepting the property and legal requests (demands) may be submitted no later than by the end of the main hearing, that is, until the hearing when the sanctions expected are to be passed before the court, and the person authorized to submit this claim (damaged party or his legal solicitor) is obliged to mark his/her claim and submit the required evidence. If the authorized person fails to submit the request for property and legal compensation claim during the criminal proceedings until the indictment is confirmed, he/she shall be informed that this claim can be submitted until the end of the hearing, that is, until the sanctions are imposed.

Prosecutor is legally mandatory to collect the evidence, regarding legal and property claims in relation with the criminal deed (felony) and he shall cooperate with the damaged and, pursuant to circumstances provided, he shall interrogate the suspect, that is, the accused party. Items used as the evidence shall be exempted temporarily and, after the completion of this procedure, they shall be returned to their original owner or the damaged party. If these items are needed by the owner, they can be returned to him/her, even prior to the termination of the procedure, but the owner will have to return them if required. During the main hearing and during the court procedure, the prosecutor, not the damaged person, shall present all the evidence available; otherwise, the court shall reject this evidence. After having the process of evidence procedure completed, the judges, that is, the chairman of the court council shall call the prosecutor, the damaged party, the defendant, and the accused party to give their final statements.

The accused party is always the last in this line; that is, in giving the statement. The court shall make the final decision regarding the legal and property claims. The court may, during the verdict process, where the court declares the accused guilty, make the decision and allocate (in full) the legal and property claim to the damaged party or the court may impose partial decision regarding the legal and property claim, and leave and forward the rest to the civil procedure trial. If the information regarding the criminal deed (felony) do not provide the reliable basis for the complete or partial verdict, the court shall direct the damaged party, advising him/her that he/she could claim his/ her legal and property claim in the civil procedure trial. Once the court passes the verdict with the accused party proclaimed not guilty or if the appeal is rejected, the damaged party shall be directed to civil procedure process, in order to claim his/her legal and property claim.

The damaged party may challenge the verdict only based on the court’s decision and regarding the costs and expenses of the criminal deed (felony) and the decision made, regarding the legal and property claims. The damaged party may appeal against the verdict passed, during the first instance procedure, within 15 days from the day of the submission of verdict process. The appeal is submitted to the court that had passed the first instance verdict in several copies for the court, including the opposite party so they can accordingly reply.

This text is a part of E-Bulletin–the second edition of the special serial of BHJ online bulletin implemented as part of the following project: Reinforcing Judicial Expertise on Freedom of Expression and the Media in South-East Europe (JUFREX). 


Svetozar Bajić, BHN Bulletin E-journalist, Sarajevo, 28/09/2018