Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
unproven, i.e. doubtful. This is why in such a case, as well as in other
cases when the court has reasonable doubt about the existence of decisive
facts of the case, it shall apply the in dubio pro reo principle. This theoretic
approach is also supported by case law of the Supreme Court of Croatia:
In the given case there were serious omissions during the
investigation, primarily because the evidence was not gathered on
basis of which it could have been confirmed with great certainty
who was driving the vehicle during the traffic accident, as well
as the fact that there were no eyewitnesses of the event, nor has
the accused provided relevant data in that respect. Bearing in
mind that during the proceedings three medical and one traffic
expert witnesses provided their findings and opinions, and that a
combined medico-legal and traffic expertise were performed, and
what is particularly important, all of the expert witnesses agreed
that it could not be determined with certainty who was behind the
wheel in the moment of the accident, and that none of the evidence
exculpates the accused directly, the conclusion of the First instance
court that in determining these adjudicating facts and following
the complete assessment of the evidence a dilemma remains, can
be considered logical. This dilemma was correctly resolved by the
court who acquitted the accused of the charges in compliance with
the in dubio pro reo principle contained in Art. 340 point 3 CPC”.355
In practice, it is possible that the expert witness cannot give a definite
answer to a certain question and his/her opinion only allows the possibility
of existence of a decisive fact. Therefore, the question is whether the court
can accept the opinion of the expert witness that is not adamant but only
expresses the possibility of existence of a fact which was subjected to the
expertise. The court can accept an opinion of the expert witness who
expresses only possibility that a decisive fact exists, as it can be seen from
the case law of the Supreme Court of the Federation of BiH:
Therefore, this Court examined, whether due to the expert’s use of
the phrase “most likely”, which relates to the assessment whether
the injury caused to the victim was a result of assault, a doubt
incurred as to the existence of facts defining the criminal offense,
which would, if such is the case, result in the application of the
principle of in dubio pro reo prescribed in Article 3, paragraph 2
of the CPC FBiH. This principle provides that any such doubt or
uncertainty about the existence of facts that define the crime shall
be adjudicated by the Court in a manner that is most favourable
for accused, so the significance and validity of the use of the
aforementioned words by the expert witness should have been
appropriately evaluated. Before answering these questions, the
Court took into account the explanations given by the forensic
expert witness and therefore opted for the conclusion that the stab
355
86
Supreme Court of Croatia, Judgment I Kž-28/1995-3, 21.01.1997.
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