There is a violation of the right to a fair trial, especially of the principle of equality of arms, in case where neither the appellant nor his/her legal counsel are given the opportunity to attend a court hearing dealing with factual and legal aspects of the appeal in the presence of the deputy public prosecutor, even if this is founded on the applicable law.
•    Decision No. U 28/01 of 21 June 2001, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 5/02; criminal proceedings, the appellant was not given the opportunity to attend the second instance proceedings; the violation of Article 6 of the European Convention established

Taking into account that the appellant’s defence counsel took part in appellate proceedings and the appellant and his counsel were duly summoned to the public hearing before the second instance court, the principle of “equality of arms” and the adversarial principle are not infringed by the appellant’s failure to attend the public hearing before the second instance court.
•    Decision No. U 13/03 of 24 October 2003, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 39/03

In case where the witnesses were present and examined at the main trial so that the appellant had the opportunity to question the witnesses in person, the fact that the testimony was obtained by questioning one of the witnesses outside the main trial proceedings in the presence of the prosecutor, while the accused was not summoned, is not of a decisive nature. Therefore, there is no breach of the principle of “equality of arms” before courts.
•    Decision on Admissibility and Merits No. U 101/03 of 17 May 2004, paragraphs 26 and 27, published in the Official Gazette of Bosnia and Herzegovina, 40/04

In proceedings before the ordinary courts the appellant was not placed in an inferior position in relation to his opponent and there were no procedural errors which would affect the principle of a fair trial in case where the courts considered all the assertions of the appellant, giving more importance to some and less to others, and sufficiently substantiated their decisions.
•    Decision No. U 34/03 of 17 May 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 34/04;
•    Decision on Admissibility and Merits No. U 80/03 of 26 August 2004, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 48/04;
•    Decision on the Merits No. AP 161/05 of 12 April 2006, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 49/06;
•    Decision on the Merits No. AP 711/05 of 14 March 2006, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 59/06

There is no breach of the principle of equality before the law, as an element of the right to a fair trial under Article 6 paragraph 1 of the European Convention in case where the second instance court, in accordance with the law, took the decision at the session of the panel without holding a hearing and presenting new evidence and no party to the proceedings attended the second instance session.
•    Decision on Admissibility and Merits No. AP 415/04 of 23 July 2004, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 43/04; criminal proceedings, equality between the parties in proceedings, misapplication of the law; there has been no violation of Article 6 of the European Convention Article II(3)(e) of the Constitution of BiH;
•    Decision on Admissibility and  Merits No. AP 444/04 of 17 February 2005, paragraphs 27 and 31, published in the Official Gazette of Bosnia and Herzegovina, 40/05; criminal proceedings, offence in traffic safety; equality of the parties in proceedings; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

In the view of the Constitutional Court, Article 6 of the European Convention does not stipulate an unrestricted right to put questions to witnesses before the court.
•    Decision on  Admissibility and Merits No. AP 114/02 of 27 October 2004, paragraphs 23, 24 and 26, published in the Official Gazette of Bosnia and Herzegovina, 60/04; criminal proceedings related the offence of abuse of office

The principle of fair trial under Article 6 of the European Convention, i.e. the principle of equality before the law, is not breached because of the fact that the findings of the expert, who was proposed by the appellant, are not taken into account since expert examinations are carried out by the experts from a list established by the civil courts.
•    Decision  on Admissibility  and  Merits  No.  U  95/03  of  29  September  2004, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 10/05

Considering that it related to the stage of proceedings that was not attended by either of the parties to the proceedings, the principle of equality before the law was met. Therefore, this part of the complaints of a violation of the right to a fair trial is ill-founded.
•    Decision on Admissibility and Merits No.  AP 592/03 of 14 October 2004, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 8/05;
•    Decision on Admissibility and Merits No. AP 639/03 of 14 October 2004, published in the Official Gazette of Bosnia and Herzegovina, 8/05

The parties to proceedings are entitled to propose evidence and facts upon which the fair proceedings before the ordinary courts depend. If the courts fail to examine all relevant allegations presented by the parties to proceedings, there is a danger that the ordinary courts take an arbitrary decision in violation of the rights guaranteed by the Constitution of Bosnia and Herzegovina.
•    Decision No. U 47/01 of 24 October 2003, paragraph 48, published in the Official Gazette of Bosnia and Herzegovina, 8/04; enforcement proceedings, payment of pecuniary claim, the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

In the proceedings before ordinary courts, both prosecution and defence were given a reasonable opportunity to present evidence at two judicial instances. The appellant was given the opportunity to present all evidence relevant for establishment of the facts decisive for the judgment and to summon and hear witnesses. In addition, the relevant expert was engaged to conduct the expert examination and the necessary expertise was performed.
•    Decision on Admissibility and Merits No. AP 278/04 of 18 January 2005, published in the Official Gazette of Bosnia and Herzegovina, 38/05

Given that the State is one of the parties to the dispute and taking into account the provision stipulating that the new facts must be presented before the completion of the main trial, the Constitutional Court holds that the first instance court should have taken all necessary measures to ensure equal participation of the appellant (the State of BiH), in first instance proceedings, since the appellant was not adequately represented and the sole issue for the court to resolve who was to be held liable to fulfil the obligations under
the contract.
•    Decision on Admissibility and Merits No. AP 473/04 of 18 March 2005, paragraph 34, published in the Official Gazette of Bosnia and Herzegovina, 40/05; procedure of the payment of the debt in respect of the contract for printing, packaging and distribution of the banknotes – BH Dinar, entered into with the State of BiH; the violation of Article II(3)(e) of the Constitution of BiH established

No party to the proceedings will have an advantage with respect to the presentation of evidence.
•    Decision on Admissibility and Merits No. AP 447/04 of 12 April 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 40/05; criminal proceedings, the presentation of all evidence by the prosecution; there has been 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 equality principle, as an element 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 case where the appellant’s defence counsel presents the defence at the main trial and fails to request in the course of the main trial the postponement of the main trial as a consequence of the specified indictment of the public prosecutor.
•    Decision on Admissibility and Merits No. AP 990/04 of 12 April 2005, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 48/05

There is no breach of the right to a fair trial in case where the judge in investigative proceedings, acting under his/her legal authorities, dismisses a procedural motion filed by the defence counsel.

•    Decision on Admissibility and Merits No. AP 447/04 of 12 April 2005, paragraphs 29 to 31, published in the Official Gazette of Bosnia and Herzegovina, 40/05; criminal proceedings, the presentation of all evidence by the prosecution; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Domestic courts enjoy a margin of appreciation in deciding, on their own motion, to hear witnesses that can assist in determining the truth, i.e. in assessing whether or not it is necessary to summon the proposed witnesses. In addition, the courts ought to observe the purpose and objective of the right to a fair trial, which stipulates that trials are conducted “under equal conditions” and with “equality of arms”. Article 6 of the European Convention requires that the courts state their reasons for which they decide not to summon those witnesses whose testimony is explicitly requested.

•    Decision on Admissibility and Merits No. AP 637/04 of 22 July 2005, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 40/06; criminal proceedings, the presentation of new evidence; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Article 6(1) of the European Convention does not stipulate an unrestricted right to put questions to witnesses before the court. In fact, the court ought to assess whether or not the presentation of the proposed evidence has relevance to decision-taking in the relevant case.

•    Decision on the Merits No. AP 620/04 of 13 September 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 80/05; minor offences proceedings; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is a breach of the principle of equality between the parties in proceedings in case where the court fails in administrative dispute to submit the indictment to an interested party, as stipulated by the Law on Administrative Disputes, given that the court decision is relevant for the civil rights of the interested party.

•    Decision on Admissibility and Merits No.  AP 307/06 of 18 October 2007, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 2/08;
•    Decision on Admissibility and Merits No. AP 2998/07 of 14 February 2008, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 23/08; administrative dispute related to the occupancy right, the violation of the principle of equality between the parties, and not the violation of the right of access to court, established for the failure to submit the indictment; the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

The Constitutional Court concludes that there is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and 3(d) of the European Convention in relation to the principle of equality of arms in a procedure where the sentencing judgement is based on evidence presented at the main hearing and where the appellant was not prevented from examining all the evidence of the Prosecutor’s Office of BiH in compliance with the adversarial principle, or from presenting his own evidence.

•    Decision on Admissibility and Merits No. AP 408/07 of 11 February 2010, paragraph 53, published in the Official Gazette of Bosnia and Herzegovina, 50/10; criminal proceedings; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

The Constitutional Court concludes that there is no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and 3(d) of the European Convention in relation to the principle of equality of arms in a minor offence procedure where the appellant, in accordance with the legal obligation which is applicable under the same conditions for the opposing party, failed to secure the appearance of the persons in capacity of witnesses nor did he in any way prove that they refused to appear voluntarily before the court, whereby he could have requested the court to summon them. The Constitutional Court also concludes that there occurred no violation of the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6(1) and 3(d) of the European Convention where there is nothing indicating that he was brought in an unequal position in any way when compared to the opposing party and where the decision establishing the existence of minor offence and of minor offence liability was based on the statements of witnesses for the opposing party, whose presence was secured by the opposing party in accordance with the legal obligation.
•    Decision on Admissibility and Merits No. AP 3552/09 of 30 January 2013, paragraph 50, published in the Official Gazette of Bosnia and Herzegovina, 50/10; minor offences proceedings; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

By bringing the mentioned facts in the context of the principle of “equality of arms” under the provisions of Article 6 of the European Convention, the Constitutional Court notes that it follows from the mentioned facts that, despite the court’s order and only after more than four years of the respective proceedings, the plaintiff submitted to the appellant the documentation on which it based its claim and the court accepted that documentation, whereas it dismissed the appellant’s request for specifying a time limit for submitting the financial documentation related to the subject-matter of the dispute. Accordingly, the Constitutional Court holds that the Municipal Court, acting in the mentioned manner, did not afford a reasonable opportunity to the appellant to present in the further course of the ordinary proceedings its allegations on unfoundedness of the claim, including the evidentiary material, under the same conditions that applied to the plaintiff. Namely, the Constitutional Court holds that the Municipal Court, through such a decision, i.e. through the strictly formal interpretation of the provisions of the Law on Civil Procedure relating to the time limit within which the parties may propose evidence, placed the appellant at a substantially disadvantageous position when compared to the plaintiff. The reason being that the Municipal Court, at the preliminary hearing, which was held on 11 April 2005, dismissed the proposal of the appellant to be given the time limit for the submission of the financial documentation, thereby it tolerated the plaintiff’s lack of activity in the period from the date of filing the lawsuit to the date of the said hearing, that is for over four years, although the appellant, from the outset of the proceeding (starting with the reply to the lawsuit), persisted in asserting (that in the present case the preliminary issue was the assessment of well-foundedness of the claim) that the statement of claim was unfounded. According to the Constitutional Court, the courts actually made it impossible for the appellant to oppose the arguments presented by the plaintiff in proving its claims regarding the ill/well-foundedness of the statement of claim.
•    Decision on Admissibility and Merits No. AP 4659/11 of 22 January 2015, paragraph 49, published in the Official Gazette of Bosnia and Herzegovina, 17/15; civil proceedings; the violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH established

[…] the Supreme Court’s conclusion that there is no legal obligation of the prosecutor to transmit the case-file or evidence to the accused and his defence counsel during the investigation or after lodging the Indictment, when the inspection of the case-file is provided in the course of the investigation, including legal restrictions, and after the Indictment is lodged with no restriction, does not call into question the principle of equality of arms and the appellant’s right to defend himself, especially given that in the present case the appellant did not claim that the inspection of the case-file was denied or restricted to him at any stage of the proceedings or that he was prevented from using in the proceedings what he found out on the basis of the possible inspection of the case-file.
•    Decision on Admissibility and Merits No. AP 2137/14 of 15 April 2015, paragraph 52; criminal proceedings; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH