IX. Defense

The right to a fair trial is enshrined in both Bosnian and international law.[187] This includes the right of defendants to a lawyer of their choice.[188]

The elimination of the position of investigative judge had a major impact on defense attorneys. Prior to the 2003 changes in criminal procedure, it was the investigative judge who was most responsible for protecting the interests of defendants. Following the changes, defense attorneys took on a much more prominent role at trial than they had previously.[189] Under this new system, which more closely resembles an adversarial system than its predecessor, defense attorneys now have a very significant role in promoting the fair trial rights of the defendants. Learning this new role has created many difficulties for defense attorneys, as have problems with payment of fees and access to legal and investigative resources. Where there is competition for limited resources, as in the justice systems of Bosnia, there may be a tendency not to prioritize the needs of the defense. This is unacceptable from the standpoint of the rights of defendants. Conditions that facilitate a vigorous defense must be created in order to ensure that trials are, and are viewed to be, fair.

A. Training and resources for defense attorneys

Defense attorneys who spoke to Human Rights Watch expressed dissatisfaction with their ability to handle certain aspects of their new roles. This underscores the need for further training to ensure that defense attorneys can work within the structure of the new procedural codes to provide a vigorous defense. Several defense attorneys, for example, stated that they felt themselves at a disadvantage compared to prosecutors, since prosecutors may conduct lengthy investigations prior to indictment, but defense attorneys must investigate quickly once an indictment has been issued.[190] Others noted that defense attorneys had no assistance with investigations comparable to what prosecutors received from police. Some attorneys have been able to compensate for this by cooperating with other attorneys within their offices or by using fees for co-counsel to pay other attorneys to act as investigators.[191] It is important that defense attorneys receive adequate training and support so that these aspects of the new criminal procedure codes are not viewed as obstacles to the protection of defendants' rights.

At the State Court, the Criminal Defense Support Section provides training and support to defense attorneys. Unfortunately, no similar body exists to support attorneys who represent defendants at cantonal and district courts.[192] Cases involving crimes under international law generally involve vastly different law and evidence than do other types of cases, even other criminal cases. Especially since most attorneys do not specialize in one type of legal practice in Bosnia, they may need special training and support to be able to effectively defend these cases. OKO trainings are theoretically open to any interested attorney, but in practice, would most likely only be known to attorneys who practice before the State Court.[193] OKO also provides access for defense attorneys to the Judicial Database and Evidence Disclosure Suite of the ICTY, but these services too are only available to attorneys practicing before the State Court.[194]

OKO also provides legal research assistance to attorneys practicing before the State Court on key international law issues of concern in cases dealing with war crimes, crimes against humanity, and genocide.[195] In contrast to this, one defense attorney who works at the cantonal, but not the state, level told Human Rights Watch that his only education in international law came from his work on cases at the cantonal court. Additionally, his only access to ICTY materials came from reading verdicts posted on the ICTY website.[196] Making OKO's legal research memoranda generally available could provide some help to defense attorneys working before cantonal and district courts.

B. Payment of defense attorney costs

Both the Federation and Republika Srpska mandate legal defense in certain cases and have provisions to provide legal defense to indigent defendants.[197] Attorneys for both indigent and non-indigent clients are paid for their services according to tariffs, which are set by the bar associations and approved by the Ministries of Justice in both entities.[198]

Some defense attorneys with whom Human Rights Watch spoke argued that the rates of tariffs are too low to cover the costs of trials.[199] One attorney reported that problems with compensation made it impossible to specialize in cases dealing with international law crimes and that attorneys' practices in other areas of law had to underwrite work on these cases.[200] One defense attorney, however, pointed out that while direct financial compensation for representing defendants accused of war crimes, crimes against humanity, or genocide may be low, the press coverage that attorneys received because of this work often boosted their practice in other areas.[201]

A more serious problem may be that delays in fulfilling budgetary requests from courts affected the availability of funds for attorneys who represent indigent clients and that this caused delays in payment for services.[202] The President of the Cantonal Court in Sarajevo reported that such attorneys had essentially been working on credit due to unavailability of funds in the previous year.[203]