C O M P A R AT I V E S T U D Y
The court may base its judgment, or ruling corresponding to a
judgment, only on facts of whose certainty it is convinced” and
on principle in dubio pro reo referred to in Article 16, paragraph
5 of the CPC. In case the Court has any doubts about the facts on
which criminal proceedings are resting, or about the existence
of the elements of a criminal offence, or about the application
of provisions of criminal law, it shall, in its judgment, or ruling
corresponding to a judgment, rule in favour of the defendant.359
In another case this court sent the case for a re-trial reasoning that:
During the retrial the court is obliged to examine the existing and
the new evidence, as needed, and to perform a comprehensive
analysis of the examined evidence and of the defence of the
accused, bringing these two together so that the factual evidence
can be established. Accordingly, the same court of first instance
is particularly obliged to assess the credibility of the evidence
presented. The First Instance Court shall comply with the in dubio
pro reo principle, as per Article18, paragraph 3 of the LCP. This
means that the court has to determine with certainty all facts
against the accused. 360
When the appellant claims violation of criminal procedure due to no
application of the principle of in dubio pro reo, he/she must elaborate on
the doubt in the decisive facts in the case and to point the moment in the
first instance decision that cased such a doubt. Cases in which, surely,
the court failed to apply the principle of in dubio pro reo are those where
the court, in its rationale to the judgement, explicitly refers to it or uses a
wording which states that the existence of certain decisive facts has been
established as a possibility only, e.g. “the existence of that fact is likely”,
“it is possible that the fact exists”, and yet the court failed to apply the
principle of in dubio pro reo. The wrongly established facts, which resulted
from such action of the court, are merely a consequence of the failure to
apply the principle.
Here one needs to take into account that the rationale of the first-instance
decision often does not provide grounds for such claims, simply because the
court does not elaborate, at least not frequently, that it had doubts about
whether a particular decisive fact exists or not. The opposite situation
is significantly more common in practice, where the basic court in its
rationale does not invoke any doubt when it comes to the decisive facts. In
such cases, obviously, it cannot be concluded that the first instance court
made a wrong decision because it acted contrary to the in dubio pro reo
principle violating the legal provisions from the criminal procedure, but
only that it has wrongly established the facts361, and as a result of it failed
Court of Appeal Belgrade, Judgment Kz 1 668/14.
Court of Appeal Belgrade, Judgment 108/12,15.03.2013.
361
Sijerčić-Čolić, H., Krivično procesno pravo. Book II. Tok redovnog krivičnog postupka i posebni
postupci (Criminal Procedural Law, Regular criminal procedure and separate procedures), Third
updated and revised edition, Law Faculty at the Sarajevo University, Sarajevo, 2012, p. 139.
359
360
89
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