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IV. Defense

A.  Overview of the Criminal Defense Support Section

Ensuring that defendants receive a fair trial in accordance with international standards is essential to the rule of law.  A fundamental component of a fair trial is the principle of “equality of arms.”¹¹⁰  The equality of arms does not necessarily require the equality of means and resources between the prosecution and the defense.¹¹¹  Rather, this principle means both parties are entitled to full equality of treatment, so that the conditions of trial do not “put the accused unfairly at a disadvantage.”¹¹²  In light of the significant international presence within the Special Department for War Crimes to facilitate effective prosecutions, adherence to the principle of equality of arms requires a similar capacity to assist the defense.

Accordingly, the Criminal Defense Support Section, which is generally known by its Bosnian acronym OKO (Odsjek krivicne odbrane), was created to provide legal assistance to defendants in war crimes cases.¹¹³  The establishment of OKO is an important development in ensuring equality of arms.  Indeed, the establishment of an office devoted exclusively to defense support in war crimes cases at this early stage represents a step forward from the practice of the ICTY where, for example, an arrangement to assist defense counsel previously did not exist. 

OKO is headed by an international director and is part of the administrative and management structure of the Registry of the State Court.¹¹⁴  In terms of financial support, the Registry raises funds on behalf of OKO.¹¹⁵   However, both OKO staff and the defense attorneys it employs function independently of the Registry in the provision of legal advice to defendants.¹¹⁶  Further, it is anticipated that during 2006 OKO will evolve to become an independent institution.¹¹⁷

OKO offers essential support to the defense in two ways.  First, OKO provides assistance directly to defendants (for example, about how to select a qualified defense advocate).¹¹⁸  Second, OKO provides legal and administrative support to defense advocates.¹¹⁹  To that end, the defense support provided by OKO is organized into five regional teams, each consisting of one Bosnian lawyer, one Bosnian intern and one international intern (OKO recently received funding for a sixth team to address Srebrenica cases).¹²⁰  The respective teams provide advice to individual attorneys defending cases before the State Court and assist with the preparation and presentation of legal arguments,¹²¹ and there is a consultant budget for the payment of experts as the need arises in specific cases.¹²²  Further, OKO acts as a conduit on behalf of the defense with the Registry of the ICTY.¹²³ 

OKO is also the licensing authority for those attorneys who wish to appear before the State Court. ¹²⁴   Accordingly, OKO maintains a list of those eligible to appear as defense counsel, and outlines the criteria that defense counsel must meet in order to be included on the list.  In addition, OKO is charged with the responsibility of providing training courses for advocates seeking to fulfill the criteria for inclusion on the list, and continuing their professional training.¹²⁵  Maintaining a degree of control over the quality of defense counsel promotes effective representation of defendants in war crimes cases. 

B.  OKO efforts to enhance existing capacity of defense counsel

OKO has made considerable efforts to contribute to the existing capacity of local legal professionals in order to promote the effective representation of defendants in war crimes proceedings before the WCC.   In 2005, OKO, with assistance from the International Committee of the Red Cross and the American Bar Association Central European and Eurasian Law Initiative (ABA-CEELI), organized training for seventy-five lawyers in Sarajevo and Banja Luka on the international law of armed conflict and new elements of the domestic criminal law.  In the coming months, OKO will expand its training program to include sessions on advocacy, written legal argument, legal research, investigation and ethics.¹²⁶  By the end of 2007, it is estimated that OKO will have trained approximately 350 lawyers.¹²⁷  

C.  Challenges that could undermine effective representation

Despite efforts to increase local capacity, there are several obstacles that could prevent effective defense representation in war crimes proceedings.  Specifically, the current system of remuneration for defense attorneys in cases where a defendant has no means to pay is problematic.  In addition, there is no provision that explicitly provides for the payment of defense investigators under Bosnian law.  These factors may undermine the ability of defense advocates to provide quality representation.  Each of these factors is discussed in more detail below.

1. Payment of defense counsel

Under Bosnian law, an indigent defendant is assigned one defense attorney.¹²⁸   Remuneration of court-appointed attorneys is regulated by a payment scheme, which identifies particular work by defense counsel eligible for compensation from funds made available by the government of Bosnia.¹²⁹  Payment for a full day in trial is approximately €200, which is considered a good rate of compensation for a defense attorney in Bosnia.¹³⁰   

However, under the current system of remuneration, there is no explicit reference to the payment of defense counsel for preparation throughout the trial.¹³¹  This would include time spent reviewing witness statements, exhibits, evidence presented by the prosecutor, and any other material necessary in the preparation of the defense strategy for trial.¹³² Accordingly, it is unclear whether defense counsel will, in fact, be remunerated for time spent in preparation.¹³³  In light of the seriousness of the crimes alleged and the complexity of the cases at issue, the amount of preparation time to construct an effective defense is likely to be considerable.¹³⁴  Human Rights Watch is concerned that the lack of clarity in the existing scheme may discourage defense advocates from representing indigent accused.  When defense counsel assume these cases, there is less incentive to spend the time required to prepare an adequate defense. 

In addition to the lack of clarity regarding the payment of defense counsel for time spent in preparation, the current format for the payment of defense counsel in Bosnian law is problematic.  Under Bosnian law, defense counsel are provided with funds in advance for “necessary expenses,” such as fees for expert witnesses and travel costs.¹³⁵  However, payment for the actual representation rendered by defense counsel appointed by the court is not required until the end of proceedings.¹³⁶  Human Rights Watch is concerned that the burden on defense advocates resulting from the delayed payment for services provided is another factor that could undermine the quality of representation.  High-quality defense advocates may be less willing to represent indigent accused in lengthy war crimes cases.¹³⁷ In addition, the defense advocates who agree to represent accused in war crimes trials may be required to take on a number of other cases to ensure financial solvency.  This could diminish the amount of time these advocates have available to put together an adequate defense in complex war crimes cases. 

The Bosnian authorities should amend the existing payment scheme to explicitly indicate that preparation time by court-appointed defense advocates will be compensated.  The Bosnian authorities should also amend the Criminal Procedure Code to make the compensation of defense advocates throughout the proceedings a “necessary expense.”  Formally amending the existing payment scheme and the Criminal Procedure Code as opposed to proceeding on an ad hoc basis in individual cases would ensure consistency in the treatment of defense advocates of indigent defendants.

2. Investigators

Adequate investigation in complex war crimes cases before the WCC is essential.  Access to investigators by defense counsel is therefore necessary in war crimes cases due to the seriousness of the charges and the complicated nature of these cases.¹³⁸ For example, defense investigators can establish leads for potential defense witnesses, pursue exculpatory or other evidence to support the defense, and follow up on statements made by prosecution witnesses.  Such assistance is necessary to ensure that the accused is not placed at a significant disadvantage vis-à-vis the prosecution.

Under Bosnian law, defense counsel do not have formal access to investigators.¹³⁹ There is a general provision in the law that requires defense counsel to take all the necessary steps to establish facts and collect evidence in favor of the defendant, and to protect his or her rights in the course of representation.¹⁴⁰ This could include conducting investigations on behalf of an accused in order to mount an effective defense.  Indeed, in the existing payment scheme relating to indigent defendants, there is a provision that permits the compensation of the court-appointed defense advocate who participates in actions aimed at obtaining evidence.¹⁴¹  

However, there is no provision in the existing payment scheme that explicitly provides compensation to other individuals who obtain evidence on behalf of the defense.¹⁴² Consequently, defendants may not have consistent access to individuals capable of conducting investigations in all cases.  Human Rights Watch is concerned that the absence of appropriate compensation could discourage persons trained in conducting investigations from taking on indigent cases.  We are also concerned that they might lack the willingness and ability to conduct investigations fully when such cases are assumed. 

Human Rights Watch was informed that, as a matter of practice, some defense attorneys send junior attorneys to conduct investigations.¹⁴³ Since these junior attorneys are not considered “authorized official persons,” their work product remains with the defense advocate during proceedings and is not subject to disclosure.  Not all defense attorneys have access to junior staff, however.

Where there is no assistance available in conducting investigations, circumstances may compel the defense attorney responsible for representing the defendant to conduct the investigation him or herself.  The defense counsel could in turn be requested to appear as a witness in the main trial in relation to his or her investigation, and be subject to cross examination.  Attacks on the defense attorney’s credibility as a witness during cross examination could in turn affect the perception of his or her credibility as an advocate before the court.  The defense attorney may also be requested to provide information as a witness that is inconsistent with his or her role as an advocate for the defense.  This could jeopardize the quality of defense representation received by indigent defendants.

The Bosnian authorities should amend the existing payment scheme to include payment for investigations undertaken by individuals other than the defense attorney on behalf of indigent defendants in war crimes cases.  Doing so would encourage individuals trained in conducting investigations (other than defense attorneys) to make their services available to indigent defendants in complex war crimes cases.  Providing adequate payment to those individuals also promotes thoroughness in the collection of information to assist the defense. 

In addition to ensuring adequate payment, it is important that these individuals receive payment throughout the proceedings.  As noted above, only “necessary expenses” are compensated throughout proceedings.  The Bosnian authorities should therefore amend the law to explicitly include defense investigators as a “necessary expense” of the defense in war crimes cases.¹⁴⁴  In addition to promoting consistency with the proposed changes in the payment scheme, this would ensure that such expenses are paid throughout the proceedings as necessary.  Further, clearly specifying the availability of defense investigators under Bosnian law, together with the proposed amendment to the payment scheme, could encourage the development of a body of professionals devoted exclusively to this task.