EVIDENTIARY PROCEDURE Article 261

Presentation of Evidence

(1) Parties and the defense attorney are entitled to call witnesses and to present evidence.

(2) Unless the judge or the Panel, in the interest of the justice, decides otherwise, the evidence at the main trial shall be presented in the following order:

a) evidence of the prosecution;

b) evidence of the defense;

c) rebutting evidence of the prosecution;

d) evidence in rejoinder to the Prosecutor’s rebutting evidence;

e) evidence whose presentation was ordered by the judge or the Panel

f) all relevant information that may help the judge or the Panel in fashioning appropriate criminal sanction, if the accused is found guilty on one or more counts in the indictment.

(3) During the presentation of the evidence, direct examination, cross-examination and redirect examination shall be allowed. The party who called a witness shall directly examine the witness in question, but the judge or the presiding judge may at any stage of the examination ask the witness appropriate questions.

Article 262

Direct Examination, Cross-examination and Additional Examination of Witnesses (1) Direct examination, cross -examination and redirect examination shall always be permitted.

The party who called a witness shall directly examine the witness in question, but the judge or the presiding judge and members of the Panel may at any stage of the examination ask the witness appropriate questions. Questions on cross-examination shall be limited and shall relate to the questions asked during direct examination. Questions on redirect examination shall be limited and shall relate to questions asked during cross-examination. After examination of the witness, the judge or the presiding judge and members of the Panel may question the witness.

(2) Leading questions shall not be used during the direct examination except if there is a need to clarify the witness’s testimony. As a rule, leading questions shall be allowed only during the cross-examination. When a party calls the witnesses of the adversarial party or when a witness is hostile or uncooperative, the judge or the presiding judge may at his own discretion allow the use of leading questions.

(3) The judge or the presiding judge shall exercise an appropriate control over the manner and order of the examination of witnesses and the presentation of evidence so that the examination of and presentation of evidence is effective to ascertain the truth, to avoid loss of time and to protect the witnesses from harassment and confusion.

(4) During the presentation of evidence referred to in Item e. Paragraph 2 of Article 261 of this Code, the Court shall question the witness and then allow the parties and the defense attorney to pose questions to the witness.

Article 263 Forbidden Questions

(1) The judge or the presiding judge shall forbid the inadmissible or the repetition of irrelevant questions as well as answers to such questions.

(2) If the judge or the presiding judge finds that the circumstances that a party tries to prove are irrelevant to the case or that the presented evidence is unnecessary, the judge or the presiding judge shall reject the presentation of such evidence.

Article 264

Special Evidentiary Rules When Dealing With Cases of Sexual Misconduct

(1) The evidence offered to prove that injured party was engaged in other events related to sexual behavior and to prove a sexual predisposition of the injured party is not admissible.

(2) Notwithstanding Paragraph 1 of this Article, evidence offered to prove that semen, medical documents on injuries or any other physical evidence may stem from a person other than the accused, is admissible.

(3) In the case of the criminal offense against humanity and values protected by the international law, the consent of the victim may not be used in a favor of the defense.

(4) Before admitting evidence pursuant to this Article, the Court must conduct an appropriate hearing in camera.

(5) The motion, supporting documents and the record of the hearing must be sealed in a separate envelope, unless the Court orders otherwise.

Article 265

The Consequences of Accused’s Confession

If a confession of the accused during the main trail is complete and in accordance with previosuly presented evidence, then, in the evidentiary proceeding, only evidence related to the decision on criminal sanction shall be presented.

Article 266

Taking an Oath or Affirmation

(1) All witnesses shall take an oath or affirmation replacing an oath before testifying.

(2) The text of the oath or the affirmation is as follows: “I swear or affirm on my honor and conscience that I shall speak the whole truth on everything the Court asks me and shall not conceal, add or alter anything known to me on this subject.”

(3) Mute witnesses who are able to read and write shall take an oath by signing the text of the oath or affirmation, and deaf witnesses shall read the text of the oath or affirmation. If mute or deaf witnesses are not able to read or write, the oath or affirmation shall be given through an interpreter.

Article 267

Protection of Witnesses from Insults, Threats and Attacks

(1) The judge or the presiding judge is obligated to protect the witness from insults, threats and attacks.

(2) The judge or the presiding judge shall warn or fine a participant in the proceedings or any other person who insults, threatens or jeopardizes the safety of the witness before the Court. In the case of the fine, provisions of Article 242, Paragraph 1 of this Code shall be applied.

(3) In the case of a serious threat to a witness, the judge or the presiding judge shall inform the Prosecutor for the purpose of undertaking criminal prosecution.

(4) At the petition of the parties or the defense attorney, the judge or the presiding judge shall order the police to undertake measures necessary to protect the witness.

Article 268

Sanctions for Refusing to Testify

(1) If the witness refuses to testify without providing a justified reason and after being warned of the consequences, the witness may be fined an amount up to 30.000 KM.

(2) An appeal is allowed against the decision referred to in Paragraph 1 of this Article but it shall not stay the execution of the decision.

Article 269

Engagement of the Expert

(1) The parties, the defense attorney and the Court may call for an expert.

(2) Expenses of the expert referred to in Paragraph 1 of this Article shall be paid by the one who engaged the expert.

Article 270

Examination of the Experts

(1) Before an examination of an expert, the judge or the presiding judge shall remind the expert of his duty to present his findings and opinion to the best of his knowledge and in accordance with the ethics of his profession and shall warn him that the presentation of false findings and false opinions is a criminal offense.

(2) The expert shall take an oath or affirmation prior to presenting his testimony.

(3) The oath or affirmation shall be taken orally.

(4) The text of the oath or affirmation is as follows: “ I swear/affirm on my honor that I shall testify truthfully and shall present my findings and opinion accurately and completely.”

(5) The expert shall present his findings and opinion orally in the main trial. In that case, the expert shall be cross-examined by both parties and the defense attorney.

(6) The written findings and opinion of the expert shall only be admitted as evidence if the expert in question testified at the main trial and was subject to cross-examination.

Article 271

Discharging Witnesses and Experts

(1) Witnesses and experts who have been examined by both parties and the defense attorney shall remain outside of the courtroom until the judge or presiding judge discharges them.

(2) The judge or the presiding judge may order ex officio or on the motion of the parties or the defense attorney that examined witnesses and experts leave the courtroom and be subsequently recalled and reexamined in the presence of other witnesses and experts.

Article 272

Examination out of the Court

(1) If it is learned during the proceedings that a witness or expert is not able to appear before the Court or that his appearance would be of great difficulty, the judge or the presiding judge, if he deems the testimony of witness and expert important, may order that he be examined out of the Court. The judge or the presiding judge, the parties and the defense attorney shall be present at the examination, and the examination shall be conducted in accordance with Article 262 of this Code.

(2) If the judge or the presiding judge finds it necessary, the examination of the witness may be carried out during a reconstruction of the criminal offense out of the Court. The judge or the presiding judge, the parties and the defense attorney shall be present at the reconstruction, and the examination shall be carried out in accordance with Article 262 of this Code.

(3) The parties, defense attorney and injured party shall always be notified about the time and place of the examination of witnesses or the reconstruction, with an instruction that the parties, defense attorney and witnesses must attend these proceedings. Examination shall be carried out as it is at the main trial in accordance with Article 262 of this Code.

(4) If the judge or the presiding judge finds it necessary, the examination of minors as witnesses shall be carried out in accordance with Article 86, Paragraph 6, and Article 90 of this Code.

Article 273

Exceptions from the Imminent Presentation of Evidence

(1) Prior statements given during the investigative phase are admissible as evidence in the main trial and may be used in cross-examination or in rebuttal or in rejoinder. The person must be given the opportunity to explain or deny a prior statement.

(2) Notwithstanding Paragraph 1 of this Article, records on testimony given during the investigative phase, and if judge or the Panel of judges so decides, may be read or used as evidence at the main trial only if the persons who gave the statements are dead, affected by mental illness, cannot be found or their presence in Court is impossible or very difficult due to important reasons.

Article 274 Records on Evidence

(1) Records concerning the crime scene investigation, the search of dwellings and persons, the forfeiture of things, books, records and other evidence, shall be introduced at the main trial in order to establish their content, and at the discretion of the judge or presiding judge, their content may be entered in the record in summarized version.

(2) To prove the content of writing, recording or photograph, the original writing, recording or photograph is required, unless otherwise stipulated by this Code.

(3) Notwithstanding Paragraph 2 of this Article, a certified copy of the original may be used as evidence or the copy verified as unchanged with respect to the original.

(4) Evidence referred to in Paragraph 1 of this Article shall be read unless the parties and the defense attorney do not agree otherwise.

Article 275

Amendment of the Indictment

If the Prosecutor evaluates that the presented evidence indicates a change of the facts presented in the indictment, the Prosecutor may amend the indictment at the main trial. The main trial may be postponed in order to give adequate time for preparation of the defense. In this case, the indictment shall not be confirmed.

Article 276

Supplement to the Evidentiary Proceedings

(1) After the presentation of evidence, the judge or the presiding judge shall ask the parties and defense attorney if they have additional evidentiary motions.

(2) If the parties or the defense attorney has no evidentiary motions, the judge or the presiding judge shall declare the evidentiary proceedings completed.

Article 277 Closing Arguments

(1) Upon the completion of the evidentiary proceedings, the judge or the presiding judge shall call for the Prosecutor, injured party, defense attorney and the accused to present their closing arguments. The last words shall be always given to the accused.

(2) If the prosecution is represented by more than one Prosecutor and if the accused is represented by more than one defense attorney, all Prosecutors and defense attorneys may give their closing arguments, but their closings may not be repetitive and they may be time limited.

Article 278 Closing the Main Trial

Once all closing arguments are completed, the judge or the presiding judge shall declare the main trial closed and the Court shall retire for deliberation and voting for the purpose of reaching a verdict.