This study is focused on the law of Bosnia and Herzegovina with its specific problems in international judicial cooperation in criminal matters. In the international law, hierarchy of interstate agreements is accepted and recognized, although, in practice, it is not always understood in the best way. Therefore, as in the case of Bosnia and Herzegovina, domestic law is subsidiary in cases of conflicts with interstate agreements. Nevertheless, it plays an irreplaceable role, as a regulator of international judicial cooperation in support of interstate agreements by interpreting their provisions. This power of national legal provisions must be properly used.
According to the UN GUIDELINES ON THE ROLE OF PROSECUTORS (1990), prosecutors shall perform an active role in criminal proceedings and, where it is authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations. This prosecutorial involvement constitutes an increasing tendency, even in countries where the prosecutor has no formal role in investigations, using the mechanism of the police seeking advice at the investigative phase (particularly in complex cases, such as fraud, corruption or terrorism). Somali law declares the leading role of the public prosecutor in the investigation of crime-Article 8.1 (A) of the Organization of Judiciary Law and Article 12 (3, 4) of the Criminal Procedure Code. These declarations, however, are not sufficient to guarantee the leadership of the Somali public prosecutor in pre-trial criminal procedures. His/her leading role should be strengthened by further developing the Criminal Procedure Code. The objective of this article is to identify the issues which should be additionally regulated to consolidate the leading position of the prosecutor, especially in his/her relations with police investigators.It must always be taken into consideration that the relationship between the prosecution office and police is a complex one and does not follow a single model in all countries of the world. Two different models exist, namely: a common law one, where cooperation per se between the two bodies is necessary, and a civil law model, where cooperation per se between them is inapplicable.
The recognition and enforcement of foreign criminal judgments is a modality is opposite to the extradition of sentenced parsons for the execution of the punishment imposed on them. This is a traditional modality international judicial cooperation in criminal matters. Although it assists future execution proceedings in the country which has accepted the foreign judgment, this modality is not any part of them. Moreover, it is a specific procedure based on different principles. This procedure is rarely used; its efficiency is low. As a result, it constitutes a serious challenge to both lawmakers and judicial actors (criminal judges, prosecutors, investigators), especially in countries with outdated criminal legislation and weak criminal justice system, such as Somalia. This research paper describes the current situation and resorts to the comparative law approach, mainly. It aims at explaining Somali law on the recognition and enforcement of foreign criminal judgments to eventually, facilitate the process of turning Somalia into a predictable international partner in the common struggle of nations against crime.
This research paper explores the confiscation under the Somali Penal Code, its compatibility with confiscations in foreign countries as well as the possibilities of cooperation between Somalia and other countries with different confiscation systems for the purposes of depriving serious criminal offenders of their financial powers. The problem of such mutual legal assistance occurs when the confiscation has been ordered in one country while the target property is located, in whole or in part, in the territory of another country. Even in such cases, the confiscation should be achieved so that-crime does not pay‖. The successful solution to this complex problem requires serious legislative work and operational efforts by competent authorities. The aim of this paper is to prompt some ideas to Somalia as to how progress in this area might be made.
This paper deals with the legal frameworks in Bosnia and Herzegovina {BiH} for confiscation and criminal assets recovery. It contains proposals for improvement of local laws regulating domestic activities and international judicial cooperation for confiscation and criminal assets recovery. The presentation is in pursuit of two goals: increase the efficiency of confiscation in BiH and intensify international legal contacts of BiH with other countries for the purpose of depriving offenders of their wealth and deter them from committing new crimes. Several legislative proposals are made, namely: abandon the crime-related confiscation and adopt the unexplained wealth confiscation, create two domestic rules: for international sharing of crimeconditioned assets and for confiscation on foreign requests of assets when the conditioning crime is beyond the applicability of the local criminal law. Also, it is argued that BiH is in need of submitting a declaration to European Convention on Mutual Assistance in Criminal Matters and the Second Additional Protocol thereto. This declaration should state that BiH accepts letters rogatory from Parties to the Convention through the EUROJUST channel.
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