In October of this year Inforadar published that at least 18 million marks have been paid from the budget of Bosnia and Herzegovina, cantons and entities over the three and a half years to the attorneys and law offices on the ground of “ex-officio” defense counselling. Only a dozen of attorneys benefited the most, cashing in more than BAM 100.000 in a year.
Attorneys Senad Kreho and Damir Beglerović have sent to the Ministry of Justice of the Federation of Bosnia and Herzegovina the Initiative to amend the Criminal Procedure Code of the Federation of Bosnia and Herzegovina, proposing a special module that would enable the selection of ex officio defense attorney in all stages of the criminal proceedings based on the principle of automatism.
They made the proposal taking into account spending of the budget funds and the individuals getting wealthier off the state budget. In October of this year Inforadar published that at least 18 million marks have been paid from the budget of Bosnia and Herzegovina, cantons and entities over the three and a half years to the attorneys and law offices on the ground of “ex-officio” defense counselling.
According to data collected by Inforadar from 22 courts in Bosnia and Herzegovina, only a dozen of attorneys benefited from defending offenders ex-officio at the expense of the state, thereby cashing in more than BAM 100.000 in just one year.
A large number of attorneys we have spoken to confirmed that there is corruption and abuses.
“There have been elements of a crime in this matter for many years now. There is an organized criminal group of attorneys in Sarajevo who are connected to the police, and I have been pointing this out for years. I have also suggested conduct of special investigative actions that would discover that very easily. The institutions of Sarajevo Canton and the Federation of Bosnia and Herzegovina can easily destroy this criminal organization and bring them to justice,” said attorney Mirza Kovač. A similar opinion was shared by Senad Dupovac, an attorney from Sarajevo, who said that the police have the greatest influence on suspects/accused persons in choosing of the attorney, but that this is difficult to prove.
Attorney Kreho and Beglerović believe that the Criminal Procedure Code of the Federation of Bosnia and Herzegovina (including other Criminal Procedure Codes on the territory of Bosnia and Herzegovina) is “the only law in the regionthat allows the suspect or the accused to have an ex-officio defense attorney of their choice”.
Considering the state of the Federation of Bosnia and Herzegovina, and taking into account spending of the budget funds on ex-officio defense counselling in cases prescribed by law for mandatory defense and indigence, analyses have been done over the past 20 years and attention has been repeatedly drawn to the individuals getting wealthier off the state budget. The FBiH Bar Association prepared an analysis of data on ex-officio defense cases, which was considered and adopted by the High Judicial and Prosecutorial Council of BiH at the session held on February 10, 2021, and the conclusions of the analysis as well as the report on the ex-officio defense counselling of the FBiH Bar Association were also adopted, which is why the relevant permanent commission of the Council has been tasked with continuing work on this issue, said our interlocutors, Beglerović and Kreho.
They explain that, inter alia, the Council adopted the conclusion that it is necessary for bar associations to compile lists of ex-officio defense attorneys, in line with the proposals from the Report, and submit them to all courts and prosecutor’s offices in BiH as to record this data in the CMS and the TCMS, in order to enable, through a special module, the selection of ex-officio defense attorneys at all stages of criminal proceedings according to the principle of automatism, as it is in the case of assigning an adjudicating judge. The aforementioned issues have not been resolved in practice to this day, claims Beglerović and points out that the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) clearly state the right to effective representation and legal assistance for defendants who do not have the means to pay for representation.
Inforadar’s interlocutors have analyzed the Criminal Procedure Code of the Republic of Serbia, the Republic of Croatia, the Republic of Montenegro and the Republic of Kosovo, which have solved the aforementioned problem of abuse in such a way that the suspect or the accused can choose the defense attorney in the case when the defense attorney acts as the chosen defense attorney in the criminal proceedings, while the appointment of an ex-officio defense attorney in the case of mandatory defense and indigence is at the disposal of the bodies that appoint the defense attorney i.e. of the bar associations.
– Thus, it is evident from the mentioned documents that the suspect or the accused cannot be deprived of the right to choose the defense attorney in the cases when they chose the attorney by themselves. However, in the case of mandatory defense and defense due indigence, when an ex-officio defense attorney is appointed, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the Constitution of Bosnia and Herzegovina set forth the duty of the state to provide a defense attorney, but do not set forth the right of a suspect or an accused to choose ex-officio defense attorney, explains Beglerović. Some of the changes proposed by him and his colleague Kreho are to have Article 53, paragraph (2) read “Attorneys, legal representatives of cantonal as well as Federation institutions (legal aid services/offices) who have passed the bar exam and have at least three years of work experience in legal matters can be hired as defense attorneys under the conditions prescribed by the FBiH Law on Attorney’s Profession,”, “An attorney can be hired as a defense attorney under the conditions prescribed by the FBiH Law on Attorney’s Profession”, Article 59, paragraph (6), “When appointing a defense attorney the suspect or the accused will first be asked to choose a defense attorney from the presented list. If the suspect or the accused fail to choose a defense attorney from the presented list, the defense attorney will be appointed by the court, then “The defense attorney will be appointed by the court in the order from the list of the competent bar association”…
Vedran Škobić, Federation Minister of Justice believes that it would be good to introduce an algorithm i.e. connection to the CMS.
– There is an algorithm to make the matter more transparent, fair and efficient, i.e. connecting to the CMS and putting it on a system that will be available to the Prosecutor’s Office, the Court or possibly the police, and to enable suspects/accused persons to still choose through that system, but to have the one who is chosen in the first month, for example, excluded from the algorithm in the next month and a half or two. After the passing of that period, the same attorney is reinstated in the algorithm and can be chosen again. Once the same attorney is chosen for a second time, then he/she cannot be chosen for the next three months. Once the three-month period passes he/she will be chosen again for the third time, and then cannot be chosen for the next four months. Now it’s a matter of time span, how to calculate it at a given moment or whether to tie it to other algorithmic functions or requirements. If all attorneys are chosen in four months, we go back to the beginning, said the Federation minister. As he explains, this will ensure that everyone on the list gets their turn during a year.
– It is where we prevent abuse, if it existed, and come to a fairer distribution of cases in the criminal proceedings, and I am convinced that we ensure a fairer, more adequate and more efficient defense. Because it cannot happen that one ex-officio attorney has 200 cases. We know what that means, emphasizes Minister Škobić, who had worked as an attorney before being appointed minister.
He believes that an attorney who has a huge number of ex-officio cases cannot adequately represent the client.
– We are thus helping the system and the attorney, and protecting budget users, and everything is distributed more fairly. That is the main point, emphasized Škobić. Referring to the Initiative presented by the attorneys Damir Beglerović and Senad Kreho, the Federation minister said that the idea is basically the same.
–The amendment to the Criminal Code Procedure is the key, and possibly introduction of a rulebook that would precisely define how ex-officio attorneys are selected, said the minister.
He noted that there is also mention of the free legal aid institutes.
– And they will be treated like all other attorneys, we will not remove them from the CPC, although this idea also exists, as it is regulated in Republika Srpska, and from the Court of Bosnia and Herzegovina. They should stay in the law, for now, but they will be treated like all other attorneys, said Škobić, adding that international partners have also expressed their willingness to solve this problem.
– The Council of Europe, USAID, and the HJPC of Bosnia and Herzegovina are ready for this, and we will definitely need them because of the CMS and possible technical support in the organization. We must also have the readiness of the bar associations, but I do not believe that they will make any problems because they are always ready for transparency, explained the Federation minister of justice.
He added that there has been some information in the public for the past few years that several attorneys were appointed through the CPC, even though the suspects/accused themselves do not know whom they choose as they are “being prompted”.
–Then the statistics looks differently. I do not know if this is true or not, but I do get the information that they are being prompted, said Škobić.
– There were cases when suspects, when detained with the court police, present business card of a certain attorney. They come and say call him. It means that while they were in the police someone had already proposed whom they should take to represent their interests, said a court police officer, who wished to remain anonymous, for Inforadar.
We were told in the Court Police in FBiH that one report against an officer of the court police (March 22, 2022) was filed in the last five years, and after the internal procedure (internal investigation) was conducted, it was not established that the officer had recommended a specific ex-officio attorney to the suspect, which is why the report was dismissed as unfounded.
– By reason of earlier media reports related to this topic the court police has conducted regular and extraordinary internal controls, and there were no events recorded and documented that any of the court police officers exerted influence on the selection of ex-officio attorneys, said the Court police of FBiH expressing their full readiness to prosecute any court police officer whose actions are outside the legal framework and the framework of the code of ethics.
Anti-Corruption and Quality Control Office of the Canton Sarajevo has so far received one anonymous report regarding alleged irregularities in the appointment of ex-officio defense attorneys who act before judicial institutions. The office confirmed that the report read that there is existence of a non-transparent procedure for appointment of ex-officio defense attorneys, and that although there is a List of ex-officio defense attorneys, some attorneys are being favored in practice, while other defense attorneys from the List are stigmatized.
– Taking into account the fact that the Office has no authority to respond to the reports related to the judicial institutions, it has submitted the report for information and further action to the Ministry of Justice and Administration of the Canton Sarajevo, said the Office. In its response to the Office, the Ministry stated that it is not competent to control and supervise the work of judicial institutions in the procedures for appointment of ex-officio defense attorneys in any way, and that it does not have mechanisms of action in this regard.
The Bar Association of FBiH told Inforadar that 17 attorneys were sanctioned in the last five years for violation of attorney’s profession. Although we were interested in why this happened, and what irregularities were observed and who were the sanctioned attorneys, the only thing shared by this institution was that “The Bar Association of FBiH has disciplinary courts and disciplinary prosecutor’s offices, which are elected at the General Assembly meeting. Attorneys with the most experience and high moral values are elected to these bodies, so each case is separate and the reasons for exclusion are different”.
We have asked the High Judicial and Prosecutorial Council of BiH whether these abuses were reported and how many reports were received in the last five years, and whether there were any reports against prosecutors and judges, and how many. We have received the following response “the Office of the Disciplinary Prosecutor of the HJPC BiH cannot provide the requested information since the complaints database cannot be searched by sufficiently detailed criteria of your partial or complete allegations in order to answer the questions raised”.
Empirically, the Office can state that it had worked on certain complaints even before the period covered by the inquiry, and/or had reviewed ex-officio the issue concerning appointment of ex-officio defense attorneys and that it did not find sufficient evidence of misconduct by judges or prosecutors.
