PROHIBITING MEASURES AS AN ALTERNATIVE TO PRE-TRIAL CUSTODY IF DANGER OF ITERATION EXISTS, YES OR NO?
PROHIBITING MEASURES AS AN ALTERNATIVE TO PRE-TRIAL CUSTODY IF DANGER OF ITERATION EXISTS, YES OR NO?

Summary/Abstract: The measure of pre-trial custody as the most serve measure to secure the presence of the suspect or accused in criminal proceedings and its successful conduct has always attracted due attention of both legal doctrines and judicial practices at all levels due to the consequences concerning the imposed restriction on the right to freedom of movement. Hence, the interest of science and the judiciary was primarily aimed at defining very strict criteria in which the measure of pre-trial custody could be used and the rules that should be used by courts when considering the use of possible alternative measures to ensure the presence of the suspect or accused that may be the most appropriate, in the particular situation, without the need to apply a more severe measure if the purpose of the imposed measure can be achieved with a milder measure. Regarding the code of criminal proceedings in Bosnia and Herzegovina, all four laws on criminal procedure regulate, in a largely identical manner, when and under what circumstances the custody can be ordered, including the situation of custody order due to the danger of iteration (danger of repetition of criminal offense or completion of an attempted criminal offense or committing a threatened criminal offense).2 However, the reason of confusion and perplexities among the judicial practitioners at various levels of judicial decision-making is whether the pre-trial custody imposed due to the danger of iteration can bere placed by prohibiting measures, as milder measures, given that the purpose, in the specific case, is not ensuring the presence of the suspect or the accused in criminal proceedings, rather than the elimination of the danger of committing a (repeated) criminal offense. It is precisely this problem that is the central point of author’s interest of this scientific paper and the author will analyze the theoretical reasons that are for and the reasons against the possibilities of replacing the custody measure when the danger of iteration exists with the prohibiting measures, as well as the current judicial practice in Bosnia and Herzegovina regarding this issue.

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