Banja Luka Attorney Represents Clients Despite Breach of Fiduciary Duty

Lawyer Marinko Brkic. Photo:

Banja Luka Attorney Represents Clients Despite Breach of Fiduciary Duty

19. July 2023.11:40
19. July 2023.11:40
Despite a 2021 conviction for breaching his fiduciary duty, Marinko Brkic continued to represent clients after the Republika Srpska Bar Association missed the deadline to remove him from the registry of attorneys. This has left several war crimes trials in a state of uncertainty, Detektor reveals.

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This was a full 15 full months after Brkic was found guilty of breaching his fiduciary duty to former clients, a criminal offence which disqualifies attorneys from practicing law.

The Republika Srpska (RS) Bar Association was required to remove Brkic from the registry of authorized attorneys within 15 days of the issuance of the final verdict against him. However, they delayed this action for nearly a year after the December 2021 judgement was delivered.

The Court of Bosnia and Herzegovina remained unaware of the situation until early April of this year, when it was informed by the entity Bar Association.

At the next hearing of the case in June, Suzana Tomanovic, Dragan Djurdjic’s new defense attorney, recommended either that a mistrial be declared or that the proceedings against her client be severed from those of the other eight defendants in the Kandic et al case.

“I propose that all witness testimonies and material evidence be sealed, as if non-existent, and that we start from the beginning on account of the significant violations of the right to a fair trial. My client is accused of the gravest of crimes, and he cannot defend himself,” said Tomanovic.

She added that while she does not dispute her colleague’s expertise, Brkic failed to inform the Bar Association that he was continuing to practice law following the second instance verdict.

Tomanovic cited the Law on Legal Practice and Statute of the RS Bar Association, stating that “in the event of an attorney being convicted of a criminal offence, rendering them unfit to practice law, their right to practice law ceases on the day the judgment is finalized.”

“My client has not had an attorney since the beginning of the trial and none of the actions taken during the proceedings thus far have been legally valid,” Tomanovic argued.

The court rejected her request for a mistrial but has yet to decide whether the proceedings against Djurdjic will be severed. Should the court opt for severance, it could require the re-examination of certain witnesses, and would necessitate that all future witnesses testify in two separate trials. Along with increasing trial costs, this course of action risks exposing witnesses to additional trauma.

According to Serif Bojicic, the president of the Return for Bosnia and Herzegovina Association, re-examining witnesses would constitute harassment and reduce the overall efficiency of the proceedings.

“It’s difficult for a witness to come to testify once. Statements are taken many times from the same witnesses, and then they simply say, ‘Well, we’re being harassed, nothing is coming of this.’ They become jaded,” says Bojicic.

Kandić i drugiZdravko Kandic et al. Photo: State Court of Bosnia and Herzegovina

Previous reports by Detektor noted the disappointment among victims with the slow progress in prosecuting war crimes cases. Furthermore, Bosnia and Herzegovina is behind schedule to complete the work on these cases by the end of 2023, as outlined in the revised strategy for their resolution. All of this diminishes the hope of victims’ families that justice will be served.

Brkic now hopes that the delay in the proceedings will ultimately enable him to avoid being banned from practicing law, seeing as his suspended sentence has expired, and he can request its removal from his record.

He claims that the decision to terminate his license to practice law is not yet legally binding.

According to Brkic, the second instance verdict did not include a ban on practicing law, and thus separate proceedings must be conducted in accordance with the provisions of the RS Law on Legal Practice.

Brkic claims that the proceedings against him were not conducted in compliance with this law, explaining that certain norms and deadlines that should have been respected were not followed in his case.

“I have not been removed from the directory of attorneys. The procedure has not been followed […]  The fact that they didn’t comply, and I didn’t hide it – that was already in the media,” said Brkic.

He contends that the RS Bar Association submitted the first instance verdict to the Court of BiH and other courts in the RS via e-mail.

Brkic says that he continues to represent clients.

“I just came from Mrkonjic Grad, where I had a plea hearing. Seven days ago, I told the preliminary hearing judge, ‘Please ask. I don’t know, everybody keeps telling me I’m dead as an attorney, but I don’t have a death certificate. Please ask for an explanation, so I know what my status is. I’m hanging in limbo now,’” Brkic stated during an interview in June.

before the Banja Luka District Court in September 2021, he received a suspended sentence of six months. However, the sentence was not to be enforced unless he committed a new criminal offence within a year and six months of the verdict’s finalization. Additionally, according to the ruling, he was ordered to compensate the injured parties in the amount of 12,400 KM.

Attempts were made to appeal the verdict, but in December 2021, the verdict was upheld by the RS Supreme Court. The court found Brkic guilty of a criminal offense, stating that he had breached his fiduciary duty to three clients during property-related proceedings.

As their attorney, Brkic was found to have retained the amount of 12,400 KM, which had been mistakenly transferred into his account as compensation for non-material damages. Instead of returning the money to the injured family or the insurance company, he kept it for himself, according to the verdict.

During an interview with Detektor, Brkic asserted that the decision to terminate his right to practice law was not yet final. He cited four ongoing administrative disputes before the Banja Luka District Court as the reason for this, reiterating that his name had not yet been removed from the directory of attorneys.

Brkic announced that he intends to request a review of the second instance verdict because he considers himself innocent.

Meanwhile, the RS Bar Association claims not to know in which cases Brkic is currently representing clients in court.

District Court in Banja Luka. Photo:

The High Judicial and Prosecutorial Council confirmed that they received the Bar Association’s decision to terminate Marinko Brkic’s right to practice law only in early April 2023. They claim to have implemented the decision the very same day, through the automated case management system, removing Brkic’s name from the list of authorized attorneys.

According to the RS Law on Legal Practice, the Bar Association is obligated to procedurally establish the grounds for an attorney’s removal from the directory. Moreover, within 15 days of this determination, the Bar Association must appoint a transferee to take over the cases previously managed by the attorney in question.

However, documents obtained by Detektor, reveal that the RS Bar Association delayed the initiation of the procedure until a year after the verdict was delivered.

In late November 2022, the Bar Association’s Executive Board commenced the procedure to determine the grounds for removing Brkic from the registry of attorneys. One month later, the Bar decided to terminate his right to practice law. As stated in the decision, Brkic’s removal from the directory would be carried out upon the finalization of an order for his removal by the entity Bar.

According to the provisions of the Law on Legal Practice and the Statute of the RS Bar Association, the verdict renders Brkic unfit to practice law, as confirmed to Detektor by the Bar Association.

However, Brkic filed administrative appeals against the decisions, leading the Bar to postpone his removal from the directory until the court reached a decision. Despite this, the Bar contends that Brkic’s right to practice law ended on September 23rd, 2021, the day that the Banja Luka District Court delivered its final judgement.

The Bar Association has not responded to Detektor’s inquiry regarding the reason for the nearly year-long delay in initiating the procedure.

The Court of BiH provided Detektor with a document issued by the entity Bar, which underscored the 15-day deadline for the procedure but lacked any explanation for the almost one-year delay in initiating the process.

According to Attorney Radivoje Lazarevic, removal from the directory of attorneys is merely “declarative,” and it is the verdict itself that terminates the right to practice law. Nevertheless, he points out that the Bar erred in failing to initiate the procedure by the designated deadline.

“Someone was lax at work,” he said.

Attorney Slobodan Peric notes that there are several points of contention in Brkic’s case. For now, the only recourse is to await the final decisions on the administrative disputes.

“Obviously both sides failed. Marinko put himself in a position to be convicted, and I assume that the Bar Association should have made the decision to remove him from the directory,” stated Peric.

As the Court of BiH informed Detektor, after the second instance verdict against Brkic was passed, he continued to represent clients in war crimes cases. This included the cases against Dusan Milunic et al., accused of murders in Zecovi, near Prijedor, Zdravko Kandic et al., indicted for crimes against humanity committed in the vicinity of Nevesinje, and Bosko Uncanin et al., on trial for murders in Velagici, near Kljuc.

In the case of Dusan Milunic et al., the Court of BiH severed the proceedings against Radomir Stojnic following the defendant’s death, after which Brkic was relieved of his duties in the case.

During the trial of Uncanin et al., which was held in May of this year, Minka Kreho, the chairperson of the trial chamber, stated that the Bar Association had informed the Court of BiH about the dismissal of Marinko Brkic, who had been representing the third accused Dragan Despot. She explained that the trial was in recess from March 30th until the appointment of Vesna Rujevic as the new defense attorney.

State Court of Bosnia and Herzegovina. Photo: BIRN BiH

The Court of BiH confirmed that Brkic was relieved of his duties as the official defense attorney in two active cases, namely that of Zdravko Kandic et al, and Bosko Uncanin et al.

The procedural regulations of the Court of BiH stipulate that a case may not go forward if an attorney is facing criminal charges or penalties, which, according to the RS laws on legal practice, includes removal from the directory of attorneys.

Long-time attorney Miodrag Stojanovic holds the view that in cases where an attorney representing the accused is relieved of their duties, it is the court’s decision whether to declare a mistrial and restart the proceedings.

“In professional practice and the public, there are differing opinions about the provision in the Law on Criminal Proceedings which governs this issue,” Stojanovic explains. He also raises the question of whether it better serves the interests of justice to restart proceedings anew or to continue from the point where the case was interrupted following the removal of the attorney.

“Realistically speaking, the defendant did not have a lawyer when the examination was conducted because he was represented by someone without the status of attorney. In that sense, he would have the right to an attorney and to re-examine the witness,” he asserts.

Stojanovic highlights another possibility, favored by some judges, which is that if the prosecutor has no new questions for a particular witness, the witness’s previous statement should be read, and the proceedings should resume where from where they left off. The argument is that the dismissed attorney, despite being officially unauthorized to practice law at the time, acted as defense counsel and did nothing that would be detrimental to the interests of the client.

“Therefore, the accused’s right to a defense was not violated because he was represented by someone who did no harm to him and the trial should continue from where it left off,” Stojanovic said.

The Bar Association appointed Vesna Rujevic to take over Brkic’s office. However, she claims she was not informed or consulted about the decision. At the time, she had already filed lawsuits against the Bar Association on Brkic’s behalf for its decisions to remove Brkic from the registry.

“I didn’t even know that I was considered the liquidator of his office,” she said.

It was only after drafting an appeal against the Bar’s decision that she found out she had been assigned as the liquidator.

“I mean, it isn’t right, given that they had my power of attorney, stating that I represented him in disputes, they really should have called me in and talked to me,” Rujevic said.

She took over some of Brkic’s cases but says she is waiting for the Bar’s final order before closing the office.

Rujevic confirmed that Brkic is still representing clients. “He has some new cases, where clients have come to him who trust him and have worked with him before,” she explained.

Brkic informed her about these clients, as well as the judge in Mrkonjic Grad, she says. This judge then reached out to the Bar Association and was told that the decision to remove Brkic from the directory of attorneys was not yet final.

Brkic sued the Bar Association for failing to initiate the procedure for his removal from the registry within the specified deadline. Rujevic notes that a new factor is also working to Brkic’s advantage – the expiration of his suspended sentence on June 28th.

“His suspended sentence is to be deleted from the record, which means rehabilitation. It’s deleted as if it never existed. So, this is a new fact which he is now using in the procedure to protect his rights,” Rujevic said.

Brkic hopes that the Bar Association will act in accordance with the law and acknowledge the expiration of his suspended sentence. He says that in November of last year, they sent him a warning to pay his late membership fee.

“Due to the pending status, I was late paying my monthly membership fee to the Association. In November 2022, they sent me a reminder, treating me like an active attorney. For this reason, I didn’t inform anyone. Nowhere does it say that it’s my responsibility to do so,” Brkic said.

In the Kandic et al. case, in which Brkic previously acted as an attorney, the decision on the severance motion was initially scheduled for July 12th but was later postponed. As of the publication of this article, a new hearing has not been scheduled.

This story is part of the project “Strengthening Accountability Networks among Civil Society,” implemented by Transparency International in BiH and the Balkan Investigative Reporting Network in BiH, with financial support from the European Union. The views expressed in the analysis represent the views of the authors and do not necessarily reflect the opinions of the European Union.

    Aida Trepanić

    This post is also available in: Bosnian