Information on the nature and type of the accusation
With Article 6 of the European Convention requiring that the appellant be informed in the shortest period possible of the accusation against him, it is not implied that he must be informed about it in the arrest warrant, but in the shortest period possible.
• Decision on the Merits No. AP 86/05 of 13 October 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 17/06
As to the appellant’s allegations, the Constitutional Court points out that the Supreme Court had undisputedly incorporated into the foundation of the accusation certain facts and circumstances which the very court found to be “relevant for correct consideration of the entire incriminating event…”, as stated in the reasoning of the challenged judgment. However, the Constitutional Court holds that objective identity of the indictment was disturbed thereby in the manner which could bring into question the appellant’s enjoyment of the right to a fair trial, as the identity was preserved considering that the appellant was convicted for the same act he was accused of.
• Decision on Admissibility and Merits No. AP 2323/06 of 3 April 2008, paragraph 35, published in the Official Gazette of Bosnia and Herzegovina, 47/08; criminal proceedings, exceeding the scope of the accusation
Information in the language he/she understands
The appellant’s right to be informed promptly and fully in a language which he understands, of the nature and cause of the accusation against him, shall not be violated when in the proceedings before the court the finding and opinion of an expert in the field of traffic were used as evidence by showing a diagram of braking force made on a computer with the textual part in German language, which the appellant did not understand, whereby the court assessed as evidence the finding and opinion of the expert and not the diagram.
• Decision on Admissibility and Merits No. AP 1158/05 of 12 April 2006, paragraphs 34 and 37, published in the Official Gazette of Bosnia and Herzegovina, 59/06; criminal proceedings, use of the finding and opinion of the expert while using the report on vehicle technical inspection made in German language; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
Adequate time for the preparation of defense
There is no violation of the right under Article 6(3)(b) of the European Convention, considering the established facts from the case file of the criminal case and especially bearing in mind the fact that the appellant and his newly appointed defense counsel stated that they did not need additional time to prepare the defense.
• Decision on Admissibility and Merits No. AP 639/03 of 14 October 2004, published in the Official Gazette of Bosnia and Herzegovina, 8/05
There is no violation of the right to adequate time for the preparation of defense under Article 6 paragraph 3(b) of the European Convention, when such allegations are based exclusively on arguments that evidence presented at the main hearing and attached to the case file were not communicated to the appellant directly, in a situation when the appellant had cross-examined such evidence and had not requested from the court additional time for the preparation of defense. In addition, there is no violation of the principle of impartiality of the court when the appellant did not justify and prove such claims.
• Decision on Admissibility and Merits No. AP 651/08 of 28 October 2008, paragraph 42, published in the Official Gazette of Bosnia and Herzegovina, 18/09; criminal proceedings, equality of the parties to the proceedings; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
Adequate facilities for the preparation of defense
The very presence of an official in adjacent rooms separated by glass, as stipulated by the then applicable law, is not desirable, yet it does not violate the rights protected by the Constitution within the meaning of Article 6 of the European Convention. Otherwise, the right to defense could be considered “illusory”, “theoretical” and unfeasible in practice.
• Decision No. U 2/02 of 27 June 2003, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 41/03; criminal proceedings, the right to defense; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
However, a question arises as to whether it is possible, within the meaning of Article 6 of the European Convention, bearing in mind all the circumstances of the present case, to note that the appellant, by having the time allotted for one conversation between the appellant and his defense counsel limited to ten minutes with the presence of the prison ward, was deprived of the right to communicate freely with his defense counsel, namely that it violated his right referred to in Article 6(3)(b) of the European Convention (to secure time and conditions necessary for the preparation of the defense). In the opinion of the Constitutional Court the mentioned fact is an omission on the part of the competent bodies (which is indicative based on the case file of the appeal, as well as on the reply of the Basic Court wherein the appellant’s objection was not explicitly challenged in that a prison ward was present during the conversation). However, based on the aforementioned, it was not possible to observe that the appellant and his defense counsel complained that they were not provided for appropriate conditions for defense, and that the court, which had the responsibility regarding the continuation of the proceedings, failed to react. Also, it is not possible to observe that the appellant complained during the proceedings that he was deprived of the right to communicate freely with his defense counsel. In addition, based on all the other circumstances of this case, it follows that there were no other limitations in the contacts between the appellant and the defense counsel, i.e. it does not follow that the respective proceedings, essentially, made it impossible for the appellant to communicate with the defense counsel to such an extent that a violation of his right to defense under Article 6(3)(b) of the European Convention occurred. That means that, primarily bearing in mind the subsequent free communication between the appellant and his defense counsel that the appellant nevertheless had conditions secured for the preparation of the defense in accordance with Article 6(3)(b) of the European Convention. In that respect, the Constitutional Court finds that the appellant’s allegations concerning the violation of this aspect of the right to a fair trial were ill-founded.
• Decision on Admissibility and Merits No. AP 3138/08 of 9 March 2011, paragraph 44, published in the Official Gazette of Bosnia and Herzegovina, 48/11; criminal proceedings, the right to defense; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The right to defend oneself
The right to defense shall be violated in a situation where the accused was not secured a stipulated right to defend himself or through assistance of defense counsel, whereas the decision of the court is exclusively or mainly based on the statement of a person who identified oneself as the representative for the accused legal person, without a stipulated power of attorney issued by the accused.
• Decision on the Merits No. AP 599/04 of 13 October 2005, paragraphs 30 to 32, published in the Official Gazette of Bosnia and Herzegovina, 17/06; minor offense proceedings, the accused (legal person) did not have legal representation; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
The right to legal assistance
The presence of the defense counsel while carrying out procedural action, as well as the main hearing, is obligatory only in the event of compulsory defense. In the present case, given that it concerns optional defense, there were no legal restrictions that would make it impossible for the appellant to use his right to expert defense. Bearing this in mind, as well as the fact that the appellant voluntarily, without coercion, waived the right to the defense counsel’s assistance at the main hearing, the first instance court was not obliged to postpone the main hearing in such a situation.
• Decision on Admissibility and Merits No. AP 502/04 of 30 November 2004, paragraph 21, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, justified absence of defense counsel at the main hearing; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the right to defense as an element of the right to a fair trial in the event when the Supreme Court adopted a decision, in accordance with the law, at the session of the chamber attended by the appellant who agreed that the session of the chamber of the Supreme Court be held without his defense counsel being present.
• Decision on Admissibility and Merits No. AP 2050/05 of 16 January 2007, paragraph 38, published in the Official Gazette of Bosnia and Herzegovina, 34/07; session of the chamber held without the lawyer with the consent of the accused; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the appellant’s right to defense counsel under Article 6(3)(c) of the European Convention in a situation where the appellant was informed of this right, and did not request from the court to appoint a defense counsel ex officio, and the courts assessed that, given the nature of the accusation against the appellant, the potential punishment that may be imposed, the complexity of the case and the material status of the appellant, it was not necessary.
• Decision on Admissibility and Merits No. AP 877/07 of 29 April 2009, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 50/09; criminal proceedings, there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The right to examine prosecution witnesses under the same conditions
In the present case, there was a violation of the principle under Article 6(3)(d) of the European Convention, guaranteeing to the accused persons the right to summon and examine any witness whose testimony they consider relevant for their respective case and to examine any witness they call or whose testimony the plaintiff relies on.
• Decision on Admissibility and Merits No. U 146/03 of 26 March 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 24/04; additional hearing of a protected witness; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
There is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(3)(d) of the European Convention for the reason that the challenged convicting judgments were based exclusively on the statements of witnesses that the appellant was in no position to examine at any stage of the proceedings.
• Decision on Admissibility and Merits No. U 117/03 of 29 October 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 24/05; judgment based exclusively on the testimonies of witnesses whom the appellant had no chance to examine; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
There was no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(3)(d) of the European Convention since in the present case previously given statements of witnesses were read at the m36ain hearing, without them being present in person at the main hearing in the capacity of witnesses. However, the ordinary courts had valid reasons for such a procedure based on Article 333 paragraph 1 item 1 of the Criminal Procedure Code.
• Decision on Admissibility and Merits No. AP 105/03 of 30 November 2004, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 15/05; criminal act of human trafficking – reading statements given during the investigation
Therefore, a condition stated under Article 6(3)(d) of the European Convention providing that in the event when the accused cannot directly pose questions to the prosecution witness, the judgment establishing his guilt cannot be based exclusively on statements of witnesses read at the main hearing, has been met.
• Decision on Admissibility and Merits No. AP 91/04 of 23 March 2005, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 30/05
Using statements of anonymous witnesses as evidence while establishing the well- foundedness of criminal charges may lead to a violation of the right to a fair trial under Article 6 of the European Convention in two cases: a) when the judgment is based exclusively on the testimony of an anonymous witness and b) when the accused or his defense lawyer are not given a chance to challenge a testimony of anonymous witness during the course of the trial, or to give their respective opinion about it.
• Decision on the Merits No. AP 506/04 of 23 September 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 80/05; criminal proceedings, the right to defense; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the right to a fair trial or the right to defense in the event when the appellant was not communicated a ruling determining a hearing of a protected witness if such an omission, that occurred during the preparations of the main hearing, was redressed at the main hearing, when the appellant had a chance to state her opinion and to challenge the statement of the protected witness while the challenged judgments were not exclusively based on the testimony of the protected witness.
• Decision on the Merits No. AP 506/04 of 23 September 2005, paragraph 30, published in the Official Gazette of Bosnia and Herzegovina, 80/05; criminal proceedings, the right to defense; there no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The right of the accused to be allowed to examine prosecution witness has no absolute effect, i.e. this right of the accused is not unlimited. For instance, there are cases when the law does not allow for the accused to directly examine the prosecution witness, in which testimonies of the so-called protected witnesses are being used. In addition, there are situations when, due to objective circumstances, it is not possible to hear at the main hearing a witness who had already deposited a testimony in the preliminary proceeding without the accused or his defense counsel being present.
• Decision on the Merits No. AP 679/04 of 13 September 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 86/05; criminal proceedings, statements of witnesses given during the pre-trial investigation were read out at the main hearing; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
Presenting evidence by reading the testimonies of witnesses at the main hearing, in the manner stipulated by law, does not constitute in itself a violation of the right to a fair trial, while the challenged judgments are not based exclusively on the above referenced testimonies, but also on the testimonies of other witnesses and other material evidence.
• Decision on the Merits No. AP 679/04 of 13 September 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 86/05; criminal proceedings, statements of witnesses given during the pre-trial investigation were read out at the main hearing; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is no violation of the right to a fair trial in the event when the challenged judgments are not based only on the testimonies of witnesses that the appellants objected to, and the procedural omissions related to the testimonies of such witnesses that they gave by way of a petition before the investigative judge were redressed at the main hearing as the first instance court heard them directly and read out their testimonies, with the consent of the parties, from the minutes taken before the investigative judge.
• Decision on the Merits No. AP 1083/04 of 13 October 2005, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 22/06
There is no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and (3)(d) of the European Convention, for the reason that the reading of the testimony of a witness who was unable to attend the main hearing “due to important reasons”, in the manner stipulated by the law, did not constitute in itself a violation of the right to a fair trial, while the challenged judgments were not based exclusively on such testimonies, but rather on the testimonies of other witnesses and other material evidence.
• Decision on the Merits No. AP 977/04 of 17 November 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 20/06
Article 6 of the European Convention does not grant to a party an unrestricted right to hear witnesses before the court and to propose the presentation of other evidence.
• Decision on the Merits No. AP 2345/05 of 14 March 2006, paragraph 32, published in the Official Gazette of Bosnia and Herzegovina, 66/06; discretion of the court to assess as to whether the testaments of the proposed witnesses or presentation of other proposed evidence would be relevant for decision-making in the present case
There is a violation of the appellant’s right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and (3) c) and d) of the European Convention, in the situation when it was undisputedly established that witnesses were heard before the first instance court, the appellant was not present during their hearing and that expert analysis by the expert in the field of traffic was determined and carried out without giving a chance to the appellant to give his opinion about the selection of an expert or about the expert finding prior to the adoption of a first instance decision, while the appellant was not informed of the session of the appellate panel to be held before the second instance court.
• Decision on the Merits No. AP 481/05 of 14 March 2006, paragraph 50, published in the Official Gazette of Bosnia and Herzegovina, 57/06
There shall be no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and (3)(d) of the European Convention, as reading the statement of a witness who was unable again to attend the main hearing “due to important reasons” in the manner prescribed by law, does not constitute in itself a violation of the right to a fair trial, and the challenged judgments are not based exclusively on such a testimony, but also on the testimonies of other witnesses and other material evidence.
• Decision on the Merits No. AP 154/05 of 12 April 2006, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 49/06
The principle of the right to a fair hearing or the adversarial principle shall not be violated if the testimony of only one of the witnesses was read at the main hearing without directly hearing the respective witness, whereby all other evidence and facts suggest that the person at issue, as the appellant in the present case, committed a certain criminal act and that he/she is criminally liable.
• Decision on the Merits No. AP 800/05 of 9 May 2006, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 77/06
There shall be no violation of Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(3)(d) of the European Convention, for the reason that the reading of the testimonies of witnesses who were unable to attend the main hearing “due to important reasons” in the manner prescribed by law, does not constitute in itself a violation of the right to a fair trial, while the challenged judgments are not based exclusively on such testimonies but also on other material evidence.
• Decision on Admissibility and Merits No. AP 1492/05 of 12 September 2006, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 7/07;
• Decision on Admissibility and Merits No. AP 223/06 of 15 February 2007, paragraphs 26 to 28, published in the Official Gazette of Bosnia and Herzegovina, 38/07; criminal proceedings, reading witnesses’ testimonies; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
There is a violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(3)(d) of the European Convention for the reason that the challenged convicting judgments are based exclusively on the testimony of the damaged party whom the appellant was in no position to examine at any stage of the proceedings.
• Decision on Admissibility and Merits No. AP 2238/05 of 17 November 2006, paragraph 22, published in the Official Gazette of Bosnia and Herzegovina, 12/07; judgment based exclusively on the testimony of the damaged person whom the appellant had no chance to examine; a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established
[…] The Constitutional Court observes that the appellants and their defense counsels, throughout the entire duration of the proceedings before ordinary courts, did not challenge the manner in which the ordinary courts presented evidence or requested new presentation of evidence by hearing witnesses. Quite the contrary the court read, with the consent of the appellants and plaintiff alike, the statements of some of the witnesses who had been heard during the proceedings – investigation, upon requests or at the main hearing. Considering the aforementioned, and especially the fact that the appellants did not challenge in the proceedings before the ordinary courts the indirect presentation of evidence, but agreed to it instead, the Constitutional Court is of the opinion that their right to defence under Article 6(3)(d) of the European Convention was not violated.
• Decision on Admissibility and Merits No. AP 3159/06 of 15 January 2009, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 28/09; criminal proceedings, reading witnesses’ testimonies from the investigation stage; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
The Constitutional Court emphasizes that, within the meaning of Article 270 (2) of the CPC, the Constitutional Court has the discretion to refuse to present evidence when it deems it unnecessary or when the facts which the party wishes to prove are irrelevant to the case. The Constitutional Court notes that the appellants pointed out that they could not effectively interrogate this witness since they were bound by direct interrogation by the prosecution, and therefore the witness could not answer all their questions. The Constitutional Court reiterates that the lack of reasons for the verdict regarding the rejection of the defense motion, which the defense claimed to be of great importance, in the specific circumstances of the particular case, violates the right to a defense and, consequently, the rights of the appellants in the instant case. Therefore, as to the present case, in the Constitutional Court’s opinion, the absence of relevant and clear reasoning by the ordinary courts regarding the appellants’ claim that they were not given an adequate opportunity to interrogate witness Milanko Popović leads to the conclusion that the appellants’ right to a defense under Article 6, paragraph 3 (d) was violated. That right is in connection with the right to equality of arms of the parties to the proceedings referred to under paragraph 1 of the relevant provision of the European Convention (see, the European Court of Human Rights, judgment of PS v. Germany of 20 December 2001, Application no. 33900/96, paragraphs 29 to 31).
• Decision on Admissibility and Merits No. AP 136/16 of 11 January 2017, paragraph 62; criminal proceedings, reading the testimony of witnesses from the investigation; there is no violation of Article 6 of the European Convention and II(3)(e) of the Constitution of BiH
The right to attend and to hear defence witnesses under the same conditions
The right to a fair trial shall not be violated in the event when the ordinary courts, on the basis of evidence available to them, decide that presentation of certain evidence in the proceedings upon the proposal of the accused and his defence counsel is not purposeful, and provide valid reasons in the reasoning of such a decision whereby no other indications suggest that the proceedings were unfair.
• Decision on the Merits No. AP 1076/04 of 13 September 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 22/06;
• Decision on the Merits No. AP 215/05 of 12 April 2006, paragraph 98, published in the Official Gazette of Bosnia and Herzegovina, 68/06
In order to establish a violation of the appellant’s right to call witnesses, the appellant must prove that calling a witness was necessary for establishing the truth and that failure to call witnesses prejudged the outcome of the appellant’s case (see, the European Commission of Human Rights, X v. Switzerland, 28, Decisions and Reports, paragraph 136).
• Decision on the Merits No. AP 662/04 of 20 December 2005, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 41/06; disciplinary proceeding against the judge conducted before the High Judicial and Prosecutorial Council; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
In the event when the ordinary courts had a reasonable justification as to why they dismissed the appellant’s request for the presentation of evidence through additional expert analysis by an expert neuropsychiatrist, such dismissal, under the circumstances when the facts for which the expert analysis were being sought had already been established, is a discretionary right of the court and it does not constitute a violation of Article 6 of the European Convention.
• Decision on the Merits No. AP 257/05 of 20 December 2005, paragraph 26, published in the Official Gazette of Bosnia and Herzegovina, 37/06
In the event when the appellant had a chance to propose to the Basic Court to hear a witness but failed to do so and was not prevented to propose the hearing of such persons in the complaint against the indictment and subsequently during the course of the main hearing, even he was unaware of the fact as to whether such persons were available to the prosecution bodies, there is no violation of his rights under Article 6(3)(d) of the European Convention.
• Decision on the Merits No. AP 85/05 of 20 December 2005, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 37/06
As to the testimonies of witnesses and other presented evidence, Article 6 of the European Convention does not provide for a possibility for the court to examine all allegations, arguments and evidence presented and proposed by the parties during the course of the proceedings, but only those that the court considers relevant and necessary for lawful decision-making. This discretion, which any court has in a contradictory proceeding, exists for the sake of efficiency of the proceedings.
• Decision on Admissibility and Merits No. AP 74/05 of 23 February 2006, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 37/06
There is no violation of the right to a fair trial in the event when the appellant failed to submit any evidence whatsoever proving that the first instance court had arbitrarily dismissed his proposal for hearing witnesses, or that there is anything in the case suggesting such arbitrariness or that the evidentiary proceedings were misused to the detriment of the appellant. Quite the contrary, it follows from the first instance judgment that the appellant had and used a chance to present his evidence as well as to examine prosecution evidence in the same way as the prosecution.
• Decision on the Merits No. AP 215/05 of 12 April 2006, paragraph 62, published in the Official Gazette of Bosnia and Herzegovina, 68/06
The Constitutional Court concludes that the challenged judgments, in the portion of the decision confiscating property gain from the appellants, violated the right of access to court as the segment of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) of the European Convention in a situation when the appellants, as the persons from whom the property gain was confiscated, were not offered procedural protection before the first instance court, within the meaning of the provision of Article 414 of the Criminal Procedure Code of FBiH, which the Supreme Court failed to observe and correct in due time.
• Decision on the Merits No. AP 2062/11 of 17 July 2014, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 71/14; the confiscation of property gain from third persons; criminal proceedings; there is a violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
Free assistance of an interpreter
There is no violation of the right to a fair trial in the event when the hearing of the appellant, who does not understand the language in official use in court, in the preliminary proceeding before the investigative judge, at the appellant’s explicit request, was attended by a selected and not certified court interpreter.
• Decision on the Merits No. AP 1030/04 of 13 October 2005, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 4/06
