C O M P A R AT I V E S T U D Y
observes that the appellant considers that there was a violation
of the principle in dubio pro reo in this case because the courts
should have interpreted all the dilemmas and contradictions in
favour of the appellant and not against him as they had done. The
Constitutional court emphasizes that the in dubio pro reo principle
is guaranteed in Art. 6 Para. 2 of the European Convention.
According to this principle, everyone is presumed innocent until
proven guilty in accordance with the law. In this sense, if there is
doubt whether a certain person committed a criminal offense he or
she is charged with, such a doubt should be resolved to the benefit of
the accused. However, in the opinion of this court, the application
of the principle of in dubio pro reo can be challenged in absence of
a comprehensive analysis of all evidence presented in the opinion
of the judgment which eliminates such a doubt. In this particular
case, the Constitutional court states that the explanation of the
analysis performed on all the presented evidence leaves no room
for doubt about the court’s conclusion about the accused’s guilt.
Hence, the Constitutional court finds that the principle of in dubio
pro reo contained in Art. 6 Para. 2 of the European convention has
not been infringed in this particular case, so the appeal is deemed
unfounded.(…)353
In dubio pro reo on expert opinions
The testimony of the expert witness is assessed as any other evidence,
according to the principle of unfettered evaluation of evidence. Expert’s
opinion is not binding for the court but represents evidence which the
court evaluates freely, so the court can either accept or reject it. If the court
rejects expert’s opinion, it shall ground its decision on other evidence, and
if there is no such evidence, the court shall conclude that the facts that
were supposed to be proven by an expert witness remain unproven.354
But the question is what the court should do in a situation when it
does not accept the final opinion of the expert witness because it is not
convinced in his/her accuracy whilst the fact must be determined through
expertise (mandatory forms of expertise). There are two solutions on this.
According to the first, the court can establish the questionable fact despite
the opinion of the expert witness, while according to the other, the court
shall consider the given fact unestablished and shall apply the in dubio
pro reo principle. The first solution can be unacceptable because the
court would, in that case, undertake the function of the expert witness
and violate the principle of division of functions in a criminal procedure
aimed at providing objectivity of the criminal proceeding. According to
the second solution, if the court does not accept the final opinion of the
expert witness, it must conclude that the fact subject of expertise remains
Constitutional Court of Bosnia and Hercegovina, Grand Chamber, Judgment AP 4378/10, 24.04.2014.
In this context see the judgment of the Supreme Court of Bosnia and Hercegovina, Kž. 1005/77,
See also Kreho, S., Zbirka sudskih odluka iz oblasti Zakona o krivičnom postupku, Sarajevo, 1996, p. 124.
353
354
85
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