CMS Expert Guide To Mandatory Reporting Of Criminal Offences For Companies And Their Responsible Persons in Bosnia and Herzegovina

Please note that the constitutional, political, territorial and administrative structure of Bosnia and Herzegovina (“BiH”) is very complex. Namely, BiH consists of two separate and distinct administrative entities, i.e., the Federation of Bosnia and Herzegovina (“FBiH”) and Republika Srpska (“RS”), as well as Brčko District (“BD”) as a separate administrative unit. In addition, the entity of FBiH consists of ten (10) cantons. As a result of that, each of these levels has its own governmental structure, legislation, regulations and policies. The same applies to criminal matters, which are primarily regulated by the Criminal Codes of BiH, FBiH, RS and BD.

Bosnia and Herzegovina (BiH) and the Federation of Bosnia and Herzegovina (FBiH):

Any criminal offence punishable by:

• long-term imprisonment (21-45 years) under the BiH law (whether a person knows a perpetrator of a criminal offence, or who merely knows that such an offence has been committed) must be reported;
• five years of imprisonment or more severe must be reported by an official or responsible person who learns of it in the course of his or her duties.

In BiH there is also a legal obligation to report the location or whereabouts of a person indicted by the International Criminal Court, and other defined cases.

In FBiH, the preparation of a criminal offence by another must also be reported if such an offence is punishable by three years of imprisonment or a more severe penalty.

Republika Srpska (RS):

Any criminal offence punishable by:

• 10 years imprisonment or lifetime imprisonment (whether the identity of the perpetrator is known or not) must be reported;
• five years of imprisonment or more must be reported by an official who learns of it in the course of his or her duties.

The law also provides for a legal obligation to report the preparation of a criminal offence if such an offence is punishable by five years of imprisonment or more.

In addition, the RS law requires reporting or otherwise taking measures to eliminate a fire, flood, explosion, traffic accident or any other danger to life or limb or major property, if person could have done so without endangering himself or herself or others.

Brčko District (BD):

Any criminal offence punishable by:

• long-term imprisonment (21-45 years) (whether the identity of the perpetrator is known or not) must be reported;
• five years of imprisonment or more must be reported by an official or responsible person who learns of it in the course of his or her duties.

The preparation of a criminal offence if such an offence is punishable by three years of imprisonment or more must also be reported.

Generally, the responsibility to report a criminal offence in a company lies with an official or a responsible person who has learned of a criminal offence or a perpetrator in the course of his or her duties.

Although each law defines a 'responsible person' slightly differently, in general it means:

• a person in a company or other legal entity who, in the course of his/her duties, is entrusted with the implementation of laws or regulations, or related to management or supervision of production or other business processes. (BiH, FBiH, BD)
• a person who performs certain management, supervisory or other tasks from the business activity of a legal entity, as well as a person who is actually entrusted with the performance of these tasks. (RS)

The laws do not explicitly oblige a company to report a criminal offence. Such an obligation is more related to a responsible/official person in a company. however depending on the relevant circumstances, a duty on the company to report may arise from the responsible person’s obligation.

Reporting is done by filing a criminal complaint with the public prosecutor's office or the police.

If a criminal offence or preparation of a criminal offence or other relevant cases are not reported, a responsible person in a company can be prosecuted.

The criminal liability of a responsible person may trigger the criminal liability of a company, where a criminal offence is committed in the name of, on behalf of or for the benefit of a company:

1. when a purpose of a criminal offence is derived from a conclusion/decision, order or approval of a management or supervisory bodies of a company;
2. or when a management or supervisory bodies of a company have influenced a perpetrator or enabled him/her to commit a criminal offence;
3. or when a company disposes of unlawfully obtained material benefit or uses objects resulting from a criminal offence;
4. or when a management or supervisory bodies of a company have failed to exercise due supervision over the legality of the work of its employees.

In addition, there may be civil liability and/or reputational damage.

If prosecuted for failing to report, a person may face a fine or an imprisonment up to five years.

The obligation to report does not extend to the perpetrator's defence counsel, doctor or religious confessor, spouse, or close family members.

Should a criminal offence be reported as false, or should false information be provided, or other activities to evade detection be carried out, then a person making such actions may be prosecuted.

Otherwise, the risks associated with reporting generally relate to the various ways in which a reporting person can be put in the spotlight.

Once a criminal offence has been committed, providing assistance to a perpetrator is prohibited and punishable. 

In general, any individual who conceals a perpetrator of a criminal offence or helps him/her evade detection, shall be punished by a fine or imprisonment for up to 10 years (as applicable, depending on a criminal offence and applicable law).