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III. Fair Trial Rights of Defendants

A. Overview of developments in criminal defense support

Justice must be done and seen to be done to make an effective impact on the rule of law. It is therefore necessary to ensure that defendants are afforded a fair trial, a right enshrined explicitly in Bosnia’s constitution⁸⁰ and incorporated via the European Convention on Human Rights (ECHR)⁸¹ and the International Covenant on Civil and Political Rights (ICCPR), to which Bosnia is a party. ⁸² An important component of a fair trial is the “equality of arms,” which refers to the principle that every party must be afforded a reasonable opportunity to present his or her case under conditions that do not place the party at a substantial disadvantage vis-à-vis the opponent.⁸³

There has been an improvement in the past year with respect to the representation of indigent defendants appearing before the chamber. Human Rights Watch expressed concern in “Looking for Justice” about the quality of representation available to indigent defendants since payment of defense counsel by the state under the law was not required until the end of proceedings.⁸⁴ The Office of the High Representative has since amended the law to require the payment of defense counsel at regular intervals during the course of proceedings.⁸⁵ We look forward to the meaningful implementation of this provision so that ex officio defense counsel are adequately and regularly paid for services rendered in relation to defendants before the chamber.

In terms of substantive legal support, the Criminal Defense Support Section, known by its Bosnian acronym OKO (Odsjek krivicne odbrane), was established to provide support to defendants appearing before the War Crimes Chamber to ensure equality of arms in relation to the prosecution. In terms of assistance offered to defense counsel, OKO continues to develop the training and general assistance it provides. National staff members now formulate the agendas and conduct all of the trainings in the local languages. The training will continue even after international staff members have been transitioned out of OKO. Beginning in early 2007, OKO will be headed by a national director, although a contingency fund will be available for the employment of international consultants on short-term contracts as needed for the first six months of 2007. ⁸⁶  

The focus of training offered by OKO has broadened to include Continuing Legal Education (CLE). OKO will devise the criteria that must be satisfied in order to obtain CLE credit and establish the number of credits needed to maintain membership on the list of advocates who can appear before the chamber. This training will begin in early 2007.⁸⁷ OKO has indicated it will make efforts to ensure the participation of lawyers based outside of Sarajevo in these sessions.⁸⁸ 

OKO offers a range of assistance to defense counsel. For example, every morning there is a meeting where senior lawyers in OKO present summaries of the trials monitored the previous day to identify substantive issues that may impact on the defense. Further, OKO staff can assist defense counsel in preparing legal arguments by researching issues relating to international humanitarian law for use in court briefs.⁸⁹

In addition, OKO provides important assistance to defense counsel in accessing and researching material in the possession of the ICTY. This includes accessing the Evidence Disclosure Suite (EDS), which contains all non-confidential material entered into evidence in cases before the ICTY, and the Judicial Database (JDB), which consists of non-confidential ICTY orders and decisions as well as judgments. It also includes liaising with the ICTY to obtain information outside of these databases, such as statements from protected witnesses or statements not entered into evidence. Together with the CLE training, this manner of assistance is considered more sustainable over the longer term than drafting legal briefs for defense attorneys on novel legal issues.⁹⁰

Overall, the assessment of OKO’s work has been positive. One national defense counsel expressed his satisfaction with the trainings provided by OKO.⁹¹ Others have indicated that OKO has done a good job of raising the skill level of defense counsel appearing before the chamber.⁹² There is also good cooperation between OKO staff and those defense counsel who use its services.⁹³

Human Rights Watch appreciates OKO’s strong commitment to the transition process and its focus on providing sustainable assistance. Since OKO manages the list of approved counsel that can appear before the chamber, most lawyers are aware of OKO’s role in providing training to satisfy the requirements in order to be included on the list. However, Human Rights Watch has been informed of concerns that many national lawyers are unaware of the extent of services OKO can provide. ⁹⁴ For example, defense counsel often ask prosecutors in the Special Department for War Crimes for information that would otherwise be available on the EDS. This has led to a perception that defense counsel appearing before the chamber do not use the assistance provided by OKO to access ICTY materials. ⁹⁵

OKO should make more efforts to inform defense counsel about the range of services available. One possible means of publicizing the work of OKO could involve preparing a package of information for distribution at a training seminar. This package could include a selection of translated briefs that have already been provided to lawyers, memoranda on aspects of law that have been researched, and examples of assistance provided in accessing ICTY information. For those lawyers who attend seminars in Sarajevo, OKO staff could also provide a tour of the office and an overview of the services offered.⁹⁶ Greater awareness of OKO’s many services could further improve the caliber of defense counsel and positively influence the overall quality of representation in war crimes proceedings before the chamber.

B. Challenges that may affect a defendant’s fair trial rights

1. Access to ICTY material

The ICTY has accumulated a wealth of information and evidence in relation to its cases including witness statements, documentary and physical evidence, as well as audio and video recordings. In addition to facilitating domestic war crimes prosecutions, this material can be extremely useful for defendants, particularly where there are overlapping witnesses in proceedings before the ICTY and the chamber. For example, a witness may have provided a statement in a case before the ICTY that is inconsistent with his or her testimony before the chamber. Such a discrepancy could have an effect on the witness’s credibility and, depending on the nature of the discrepancy and the role of the witness in the trial, on the outcome of the trial.

As outlined above, OKO facilitates access to the ICTY’s electronic databases and acts as a liaison with the ICTY to obtain material not in these databases, such as statements from protected witnesses. For such statements, it may be necessary to alter the protective measures that were originally afforded to the witness so that the statement can be released to other parties, including prosecutors and/or defense counsel involved in war crimes proceedings in other jurisdictions. The Trial Chamber of the ICTY has the authority to alter these protective measures based on a motion of the ICTY prosecutor or the defendant appearing before the tribunal (or his or her defense counsel).⁹⁷

Since defendants appearing before the chamber are not parties to ICTY proceedings, to obtain material related to protected witnesses OKO must make a request to the Office of the Prosecutor (OTP) of the ICTY.⁹⁸ Unlike the Special Department for War Crimes, OKO does not have a formal Memorandum of Understanding with the OTP of the ICTY outlining the terms of cooperation.⁹⁹ Therefore, the manner of cooperation between OKO and the OTP of the ICTY proceeds on an ad hoc basis.¹⁰⁰ We are concerned that this informal manner of operation may invite inconsistencies in addressing individual cases (for example, in terms of the time and the level of scrutiny afforded to each request).

Further, the prosecution’s obligation vis-à-vis protected witnesses may conflict with the interests of the defense. In order to process a request relating to the statement of a protected witness, the OTP of the ICTY must first consult with the witness to obtain his or her consent to release the statement.¹⁰¹ If the witness does not consent, the Trial Chamber could still decide to release the statement if there is an overriding interest in doing so; otherwise, the tribunal could be “held hostage” by a witness’s unreasonable refusal.¹⁰² However, the option of approaching the court directly to release the statement is not available to a defendant outside of the ICTY since he or she lacks standing to make such a motion. So, the defendant appearing before the chamber must rely on the OTP of the ICTY (through OKO) to make a request on his or her behalf. The OTP has the discretion to refuse to do so, however.

This issue proved problematic in the Simsic case that was recently tried before the chamber.¹⁰³ Defense counsel obtained uncertified copies of statements given by witnesses in a separate trial before the ICTY. The statements revealed significant inconsistencies with the testimony of the same witnesses in proceedings before the chamber and were used by the defense in cross-examination. However, because the statements were not certified, they could not be admitted into evidence under Bosnian law. Since the witnesses did not consent to the release of their statements, the OTP of the ICTY initially refused to provide certified copies and indicated it was not in a position to make a motion to the Trial Chamber to alter the protective measures.¹⁰⁴ Certified copies of the statements were eventually provided by the ICTY to the defense on the basis that it was in the “interests of justice” to do so.¹⁰⁵

Inconsistent access to valuable material in the ICTY’s possession, including potentially exculpatory material, can have a significant impact on a defendant’s fair trial rights. ICTY officials have acknowledged that the lack of standing for outside defense counsel to address the court directly to seek an alteration of protective measures creates difficulties.¹⁰⁶ Human Rights Watch has been informed that there are efforts underway to amend the Rules of Procedure and Evidence to grant national judicial authorities standing to make applications to the tribunal to seek an alteration of protective measures.¹⁰⁷ We look to the ICTY to ensure this amendment is appropriately drafted, proposed to the relevant body and implemented as soon as possible. In the interim, we urge the ICTY to cooperate with OKO in a consistent and efficient manner to provide requested material.

2. Quality of defense counsel

The new Criminal Procedure Code in Bosnia, which was adopted in 2003, introduced complex elements of the adversarial system, including the cross-examination of witnesses.¹⁰⁸ A good cross-examination requires maintaining control over a witness to maximize the amount of favorable testimony admitted through the witness, while simultaneously limiting the witness’s ability to provide unfavorable testimony. When used effectively, testimony provided on cross-examination can discredit a witness by revealing inconsistencies in his or her testimony and thus bolster a party’s case.

Human Rights Watch notes concerns regarding the quality of defense counsel, particularly in the ability of some counsel to conduct effective cross-examination.¹⁰⁹ Cross-examination by defense counsel is often very poor and undirected.¹¹⁰ Further, many defense counsel seem to lack forensic focus and basic advocacy skills.¹¹¹ There is a perception that defense counsel need more training in the adversarial system.¹¹² Human Rights Watch has been informed that while OKO initially planned to provide advocacy training to defense counsel, these plans were not implemented because of funding constraints.¹¹³ As such, OKO has not yet provided to defense counsel training on cross-examination.

The ability to conduct cross-examination can, in some instances, have a significant impact on the outcome of a case. To a certain extent, improvements in conducting cross-examination can only be achieved through experience in the courtroom. However, in light of the concerns expressed regarding the ability of defense counsel to cope with this important element of the adversarial system, it is apparent that defense counsel would benefit from practical training on cross-examination. OKO has indicated to Human Rights Watch that it plans to offer training on cross-examination in 2007, although the format and number of sessions to be provided remains uncertain.¹¹⁴ We urge OKO to ensure that there are enough sessions offered on cross-examination on an ongoing basis to provide defense counsel with as many opportunities as possible to refine their skills outside of the courtroom. We further encourage OKO to ensure its curriculum covering cross-examination is adequate to prepare defense counsel for some of the challenges that may arise during court proceedings. To the extent financial support is an issue, we urge the donor community to ensure that OKO has sufficient funding to conduct this essential training.