Proving guilt beyond reasonable doubt: Evidentiary standards in criminal proceedings in Bosnia and Herzegovina

Abstract

This article examines the development, interpretation, and practical application of evidentiary standards in Bosnia and Herzegovina within comparative, doctrinal, and supranational contexts. It begins by situating the Bosnian model within the broader distinction between common law and continental traditions: the Anglo-American formula of proof beyond a reasonable doubt, designed for communication with lay juries, and the continental notion of certainty (certitudo), rooted in rationalist legal culture and professional adjudication. While these two standards are functionally equivalent in requiring exclusion of rational doubt, their conceptual emphases and historical trajectories differ. The article then analyzes the traditional tripartite structure of Bosnian criminal procedure – certainty, probability, and doubt – and demonstrates that the standard of certainty has long performed the same role as beyond reasonable doubt. The growing use of the latter phrase in Bosnian jurisprudence is therefore interpreted not as a doctrinal transformation but as a shift in nomenclature, reflecting comparative influences and harmonization with international human rights law. Special attention is given to the case law of the European Court of Human Rights, whose jurisprudence binds domestic courts under Article II/2. of the Constitution of Bosnia and Herzegovina. By employing its own “beyond reasonable doubt” standard and emphasizing reasoned judgments, the Court shapes the domestic articulation and justification of evidentiary thresholds. The article concludes that Bosnia and Herzegovina illustrates both continuity and adaptation: while retaining its continental doctrinal foundations, it increasingly rearticulates evidentiary standards in a vocabulary aligned with European and comparative practice.