Counting The Cost Of Justice

By Erna Mackic in Sarajevo

In the two years since the war crimes chamber within the Court of BiH started hearing trials, only two indictees have covered the costs of their defence, Justice Report has learnt.

Momcilo Mandic, who was acquitted of all charges by a first instance verdict, recruited a team of attorneys from Serbia and one attorney from BiH to defend him of charges of war crimes committed by Bosnian Serb forces while he was the Minister of Justice.

Sefik Alic, whose trial is underway, has also engaged a couple of attorneys from Sarajevo To defend him of charges of crimes committed over prisoners of war.

Other indictees have told the court that they are unemployed and under financial duress and therefore unable to engage own defence team. The Court of BiH is obliged by law to appoint ex-officio attorneys to represent such suspects.

According to the Court of BiH data, the defence of a single indictee can cost tens of thousands of convertible marks (KM). On Average, lawyers receive between 20,000 and 40,000 KM (10,000 to 20,000 euro)per case, depending on how often hearings take place.

Lawyers say the figure is not too high considering that “a lot of money has to be spent on defence preparation”.

Some 40 indictments against 72 persons have been filed so far before the war crimes chamber.

Those who said they could not afford defence lawyers had an opportunity to select an ex-officio attorney from a list of more than 140 attorneys who are qualified to represent persons indicted of war crimes before the Court of BiH.

Some attorneys consider that the form of this selection is unfair, and results in some of their colleagues being engaged in several cases, while others are almost never selected.

Additionally, Justice Report has discovered that indictees’ claims about financial incapacity have never been checked or confirmed by court officials.

Point rating

Indictees select their attorneys from a list drawn up by the Criminal Defence Section (OKO), which provides legal,educational and administrative support to defence lawyers at the Court of BiH.

Both local attorneys and those coming from other states can be appointed as ex-officio attorneys in war crime cases, and the Court of BiH pays them. Most indictees, whose cases were referred to BiH by the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague for further processing, opted for lawyers from neighboring countries such as Serbia And Croatia.

Under the Criminal Procedure Code of BiH, court appointed lawyers are entitled to fees and reimbursement of travel costs and accommodation if they live outside Sarajevo, as well as field trips necessary for the preparation of defence.

The payment of designated attorneys is made on the basis of the so-called “point rating”. The value of one point is 3 KM (1.5euro). When an attorney appears before the Appellate Chamber, which is the most expensive service, he or she is entitled to 260 points or 780 KM (340 euro).The submission of a motion to the court brings 15 points or 45 KM (about 20euro).

According to the Court of BiH, the fees paid to the attorneys vary from one case to another. The fees depend on the number of hearings and the complexity of the crime with which an indictee is charged.
For example, the defence attorney of former Visegrad policeman Boban Simsic received a payment of about 46,000 KM (about 23,000euro) for his services during a three-year long first instance trial and appellate procedure.

Simsic, who claimed he could not afford to pay his own defence, was found guilty and sentenced to 14 years imprisonment for having committed crimes in Kuka and Velji lug villages in Visegrad municipality in June and July 1992.

Taxpayers in BiH covered the defence costs of the runaway convict Radovan Stankovic, who was sentenced to 20 years imprisonment for crimes committed in the Foca area. The defence of Stankovic, who escaped from prison on May 25, 2007, cost about 30,000 KM (about 15,000 euro).

The court appointed lawyer in the case of Dragoje Paunovic was paid about 43,000 KM (about 21,000 euro). At the end of the trial,Paunovic was pronounced guilty of having shot 24 civilians on mount Jacen In Rogatica municipality in 1992 and sentenced to 20 years imprisonment.

The Court of BiH has not got the complete data on the defence costs of the 11 indictees charged with genocide in Kravica. This Process is the court’s largest ongoing trial, and involves 22 defense attorneys. The process has been underway for more than two years.

Indictees who are referred to Sarajevo by the ICTY for further processing,often decide to employ the same attorneys who represented them before the Hague Tribunal. Most of these come from other countries in the region.

For instance Pasko Ljubicic, a former member of the Croatian Defence Council (HVO) charged with crimes committed in central Bosnia, is represented by Tomislav Jonjic from Croatia.Jonjic S engagement in this case was justified in the courtroom by the fact that “his English was very good” and most documents sent from The Hague are written in English.

Another similar example is the case of Zeljko Mejakic, who is charged, together with Momcilo Guban, Dusan Fustar and Dusko Knezevic, with crimes committed in Omarska and Keraterm detention camps in1992. Mejakic is represented by defence attorney Jovan Simic from Serbia.

Trust

Although there are legal provisions which allow forsuch action to be taken, indictees’ claims that they cannot afford to pay fortheir own defence have never been checked by the judiciary.

“The Court of BiH does not check if someone has thefinancial resources to pay for an attorney. That should be done by the stateprosecution,” Manuela Hodzic, the spokesperson of the Court of BiH told Justice Report.

However, prosecution officials claim that the courtis responsible for the inspection.

Milorad Barasin, Deputy Chief Prosecutor, explainedto Justice Report that, after anarrest a suspect can request a lawyer to represent him which has to be donewithin 24 hours of his detention.

“It is not possible to check someone’s financialstatus in such a short time,” Barasin said. He added that the court isresponsible for appointment of defence attorneys.

Apart from the fact that, in most cases, suspectsand indictees do not pay for their attorneys, the verdicts rendered by theCourt of BiH often order that the main trial costs should be covered by thestate. So far, only two second instance verdicts ordered the indictees to coverthe costs of the main trial.

The first such case was the verdict against formerArmy of BiH member Abduladhim Maktouf, sentenced to five years imprisonment forparticipation in crimes against civilians in the Travnik area. The secondinstance verdict indicated that “the costs of the criminal proceeding should becovered by the indictee“, but added that the reimbursement rate would bedetermined by a separate decision.

The second precedent was the verdict against GojkoJankovic, who participated together with the Republika Srpska Army (VRS) incrimes committed in Foca area. He was sentenced to 34 years of long-termimprisonment for rape, torture, sexual slavery, murder, imprisonment andforcible deportation of Bosniaks.

Manuela Hodzic, the spokesperson of the Court ofBiH, told Justice Report that decisions on collection of criminalproceeding charges in these two war crime cases have still not been rendered.The second instance verdict against Maktouf was pronounced on April 4, 2006 andthe one against Jankovic on November 19, 2007.

ICTY experiences

The provisions related to the payment of ex-officiodefence attorneys are more rigorous in The Hague.
Court appointed lawyers have been used in somecases, but only after the Tribunal has checked that the suspect or the indicteeis indeed unable to pay for their own defence.

ICTY makes an estimate of all resources which theindictee directly or indirectly utilises or which he can freely dispose of,including direct income, bank accounts, movables and fixed property, pensionfunds and so on. The resources in the possession of all other members of theindictee’s household are also taken into consideration.

After a certificate, confirming that the indicteedoes not have the necessary resources, has been issued and verified bycompetent authorities the ICTY’s Registrar approves the appointment of an ex-officioattorney, who is entitled to a fixed lump sum and a fee calculated on the basisof a fixed hourly wage multiplied by the number of working hours.

According to available data, the fixed lump sum is2,000 USD. It covers the first appearance before the court,plea hearing, reading of indictment and reading of the necessary literature.The hourly wage is determined on the basis of the attorneys’ work experienceand years spent in service. The daily fee for an attorney who has 15 years ofexperience is 100 USD. In addition, attorneys coming from other countries arereimbursed for travel costs and daily subsistence allowances.

Asked about the daily allowances paid to defenceattorneys in BiH, President of the Chamber of Attorneys of Republika Srpska,Zlatko Knezevic – who represented some indictees before the War Crimes Chamberin Sarajevo – claims that the amount paid to the attorneys “is not so big, ifthe attorneys perform their job properly“.

Court appointed lawyers “do not profit out of this”,Knezevic told Justice Report.

Knezevic criticises the Court of BiH for appointingthe same ex-officio attorneys in many cases.
“It is not fair that the Court of BiH appointsalways the same attorneys in war crime cases. The attorneys who are on the listare extremely competent and they have been trained for working on complex casesprocessed by the Court of BiH,” says Knezevic.

He considers that, “so far, most selected attorneyscame from Srebrenica and Sarajevoregions“.
“I think that the Office of the Registrar within theCourt of BiH should consider those remarks, because I know that the CriminalDefence Section (OKO) has filed an objection against this phenomenon. I thinkthat the attorneys should be selected automatically and they should come fromall parts of BiH,” Knezevic added.

Josip Muselimovic, president of the Chamber ofAttorneys of the Federation of BiH says that he “has not noticed that the samepersons are always appointed as ex-officio attorneys”, but he points out that, ifthis is really the case, it can be considered as an “unlawful act”.

Fahrija Karkin, President of the Chamber ofAttorneys of Sarajevo Canton, who acts as an ex-officio attorney in a fewtrials conducted before the state court, says that “the Court of BiH doesappoint ex-officio attorneys”, but “it is the indictee who chooses his/herattorney”.

“The Court of BiH does not protect anyone.Everything is done according to European conventions, which stipulate thatindictees have the right to choose their own attorneys,” Karkin told JusticeReport.
The staff at OKO have told Justice Report that theysubmit the list of all attorneys to suspects who are due to appear before thecourt. After that, these persons make their own selection of attorneys.

Nevertheless, Knezevic considers that the CourtRegistry should consider complaints on the appointment of the same attorneys innumerous cases. He suggests that the attorneys be selected “automatically”,which would enable all those on that list to be appointed as ex-officioattorneys at some stage.

Knezevic explained that all the attorneys on thelist “have completed the adequate training” and they are competent to beex-officio attorneys in the complex cases conducted before the War CrimesChamber of the Court of BiH.

ErnaMackic is a journalist with BIRN’s Justice Report.