Defence Lawyers Complain of Unfair Treatment

Attorneys for war-crime indictees before local courts say they don’t get the same help that prosecutors do – and wait too long to get paid.

Most defence lawyers representing war-crimes indictees before the lower courts say their position with prosecutors is unequal. This is mainly because they don’t have same access to experts to assist them in investigations and trials.
 
They think they should have help of the Criminal Defence Section, OKO, as is the case of lawyers before the Court of Bosnia and Herzegovina, the State Court. But they doubt this will happen soon because of the recession.

Apart from a lack of investigators and experts, defence lawyers representing indictees or suspects before cantonal and district courts have a problem with getting paid for the costs that they have incurred. They say they often wait more than a year to get paid.

Experts say the main reason for this is insufficient funds in the cantonal budgets. Only at the end of each fiscal year, in January or February, do ministries start to clear their debts and pay expenses to ex-officio defence lawyers.

Insufficient support:

According to the OSCE data, in the past six years, 142 war crimes cases have been completed in local and state courts. Of these, 85 cases were completed by local courts.

According to the OSCE, of the cases that local courts completed, 40 persons were acquitted and 96 were convicted of war crimes. Sentences ranged from one to 20 years in prison.

By law, indictees for war crimes have no right to represent themselves in court proceedings, so they have to engage ex-officio lawyers who are paid for by the state or whom they pay themselves.

The rates that these lawyers receive for their work depend on the type of work. The usual fee to represent an indictee at one hearing on trial before a district court is 600 marks [300 euros] and 900 marks [450 euros] before a cantonal court.  

According to the OSCE Mission, about 40 cases of war crimes committed during the 1992-5 war are ongoing before 11 courts in Bosnia and Herzegovina. In most cases, ex-officio defence lawyers are involved because the indictees and suspects do not have the money to pay for their own defence.

These ex-officio defence lawyers claim they “usually work alone” on war crimes cases, while their colleagues, the prosecutors, have the help of investigators, experts, and more funds.

Nenad Gvozdic, a defence lawyer from Mostar who has represented war-crime indictees, says it is hard to work without the aid of investigators. He does not have the same capacities as a prosecutor to conduct investigations and establish the facts.

Alaga Bajramovic, defence attorney from Bihac, has had the same experience before the cantonal courts. He considers that defences in which investigators are hired are of “higher quality”.

“Investigations are often led by lawyers themselves,” he says. “But if the client has the funds, investigators are hired and the quality of the investigation and preparation of the defence is much better,” Bajramovic continues.

Work on war-crime cases in local courts has its advantages, says Zlatko Knezevic, president of the Executive Committee of the Bar Association of the Republika Srpska. “It’s easier to work before the district courts, as witnesses are more available, as well as data from various archives,” he says.

“You also have the support of the family of the accused or indictee in the sense that you can engage somebody to find you something, or make contact with potential witnesses,” Knezevic adds.

The “biggest advantage” that defence lawyers have before district courts is that, in war-crimes cases, the old Yugoslav criminal code, KZSFRJ, applies, he continues.
     
Several different criminal codes are applied in Bosnia. The Criminal Code of Bosnia and Herzegovina, KZBiH, which is applied only before the Court of Bosnia and Herzegovina envisages prison terms of up to 45 years. The maximum prison term under the old Yugoslav code is less than half this – 20 years.

The different penalties that the two codes apply is the most common argument that defences use before the Department of War Crimes of the Court of Bosnia and Herzegovina.

They often plead for implementation of the KZSFRJ because that code was in effect when the crimes were committed, and because it is more favourable to indictees.

In proving the innocence of clients before the Court of Bosnia and Herzegovina, defence lawyers are supported by experts from OKO, which is not the case before courts at lower level.

“Defence lawyers in lower-level courts do not have any help. The OKO provides a lot of really good help for the defence… and such a thing would be good for the lower-level courts, too,” Bajramovic says.

More than 200 defence lawyers before the Court of Bosnia and Herzegovina obtain assistance from this office in legal advice – in obtaining evidence from various institutions, including the International Criminal Tribunal for the Former Yugoslavia, ICTY, and in preparation of witnesses and other matters.

“At the other [court] levels, there is no specialized body to provide legal and technical support for lawyers in a trial… An office of this kind is more than desirable in the prosecution of war crimes and also in the entity judiciaries,” a source in the OKO said.

Although they deem the help of such a body essential, defence lawyers doubt it will be established soon. “At entity level, such a thing does not exist and obviously won’t be soon established,” Knezevic says.

“I don’t believe that in a time of recession such a body can be established,” he adds. “The problem of personnel is also important here since this country has a chronic lack of personnel in all areas,” Knezevic adds.

Despite the existence of OKO in the Court of Bosnia and Herzegovina, the Association of Veterans of Republika Srpska, with the support of certain political parties there, early in March 2011 announced the possible formation of a foundation to provide financial assistance for defences before the Court of Bosnia and Herzegovina. As announced, this Foundation will offer legal assistance to suspects and indictees of Serbian nationality.

Late payments:

An additional problem for defence lawyers is the lack of financial resources, which sometimes affects the outcomes of trials.

This problem is pinpointed by Vesna Rujevic, defence attorney for Zeljko Despot, a former Army of Republika Srpska member, sentenced by second-instance verdict to 12 years’ prison for killing two civilians in Kljuc.

Early in January 2011, while presenting an appeal before the Supreme Court of the Federation of Bosnia and Herzegovina, against the first-instance verdict of the Cantonal Court in Bihac, Rujevic said the “collection of evidence was not made possible” for the defence.
“The Cantonal Court in Bihac did not pay compensation for my client so that we could collect further evidence,” she said. “The defence had several witnesses, which we had to interrogate, but because we did not get an advance, we were unable to reach and prepare them,” Rujevic added, at the hearing in January 2011.

In her appeal, the defence attorney asked for the abolition of the first-instance verdict but the Supreme Court of the Federation rejected this and confirmed the Bihac Cantonal Court’s verdict.

The costs of ex-officio assigned lawyers are only paid after the verdict is delivered by the court before which the trial was conducted. The defence lawyer submits the bill, which is than compared to the documentation from the case, after which it should be paid.

In practice, lawyers wait for about a year from the date of the conviction for payment of their costs.

“It is harder for me to defend somebody ex officio than when my client pays me,” Gvozdic says.

In the former cases, “your work is not paid for, but the client still thinks that you will be paid and that he has the right to ask whatever is in his interest,” he explains. “In such a situation I don’t receive adequate compensation for my work,” Gvozdic says.

One example of late payment of defence lawyers occurred in the Cantonal Court in Bihac last year. Payment was delayed for more than a year because while the budget envisaged payment of 100,000 marks [50,000 euros], the final amount owed to the defence lawyers came to 170,000 marks [65,000 euros].

Edina Arnautovic, President of the Cantonal Court in Bihac, said the rest of the money for the payment of ex-officio defence lawyers should have been taken from reserves, but sometimes this is impossible.

Knezevic says lawyers’ costs are usually dealt with annually, or every six months. “At the end of each fiscal year [January and February], the ministry cleans up its debts and then the costs of ex-officio lawyers are paid,” Knezevic says.

Aida Mia Alić is a reporter for BIRN – Justic Report. [email protected] Nenad Trbic contributed to the article. Justice Report is BIRN’s online weekly publication.