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