The ordinary courts have the discretion to decide whether or not they will hear the parties. There is no violation of the adversarial principle and the right to a fair trial in cases where the appellants’ authorized representative gave before the court the statement in the name of all the appellants and, in the course of the proceedings, none of the appellants made an objection stating that he/she had a separate statement to make.
• Decision No. U 12/03 of 26 March 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 18/04
There is a violation of the principle of adversarial proceedings because the competent public prosecutor took part in appellate proceedings and the appellant and his authorized representative were not given such an opportunity.
• Decision on Admissibility and Merits No. AP 54/03 of 23 July 2004, published in the Official Gazette of Bosnia and Herzegovina, 43/04; criminal proceedings – appellants’ non-attendance at the session of the second instance court
The proceedings must comply with the adversarial principle so that the accused must be provided all information about the allegations and evidence given by the public prosecutor as well as the opportunity to reply on the allegations presented and to submit evidence in support of his defence.
• Decision on Admissibility and Merits No. AP 557/04 of 30 November 2004, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, offence in traffic safety; there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
Taking into account that neither the appellant nor the public prosecutor took part in the appellate proceedings, the principle of “equality of arms” and the respect of adversarial proceedings are not infringed by the appellant’s failure to attend the session of the County Court.
• Decision on the Merits No. AP 1065/05 of 13 September 2005, paragraph 29, published in the Official Gazette of Bosnia and Herzegovina, 22/06;
• Decision No. AP 1245/05 of 13 June 2006, paragraph 41, published in the Official Gazette of Bosnia and Herzegovina, 77/06; criminal proceedings
There is no violation of the right to equality before courts, as an element of the right to a fair trial, 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 the Merits No. AP 1124/05 of 9 February 2006, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 45/06; criminal proceedings, criminal offence of tax evasion
There is no breach of the right to a fair trial and the adversarial principle in case where one of the witnesses refused to testify and all other evidence and facts indicated the criminal offence and criminal responsibility of the accused, i.e. the appellant in the case at hand. Indeed, Article 6(2)(d) of the European Convention stipulates that everyone charged with a criminal offence has the right “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him” but the refusal to allow the defence witness testimony cannot in any way be treated as a violation of the right to a fair trial in criminal matters.
• Decision on Admissibility and Merits No. AP 702/05 of 30 March 2007, paragraph 31, published in the Official Gazette of Bosnia and Herzegovina, 57/07; criminal proceedings, war-crime, there has been no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
As to the appellant’s claims that he was prevented from examining the minor injured persons in the capacity of witness, the Constitutional Court notes that it follows from the case-file that after the indictment had been confirmed (on 3 November 2011) the defence, i.e. the appellant and his defence counsel appointed ex officio failed to request the court to examine the minor injured persons in the capacity of witnesses, which is prescribed by Article 186(4) of the Law on Children and Minors Protection Code of Conduct (the opportunity of the accused person as a party to the proceedings and his defence counsel to question such a witness) in conjunction with Article 2 of the same Law, which stipulates that a hearing can be conducted at most twice. Furthermore, the Constitutional Court notes that it is not disputable that a minor girl was not heard at the main hearing. However, it follows from the case-file that the defence did not propose that such an evidence be presented. Also, the Constitutional Court observes that it follows from the case-file that a video was presented at the main trial before the County Court, i.e. an audio record of the testimonies given by the minor injured persons during the investigation, and that the appellant’s defence counsel clearly stated that it did not have any question to ask these persons, nor did the defence counsel have any complaints against those testimonies in terms of their content, with the exception of the complaint related to the competence of the persons who examined the minor injured persons. Given the aforementioned, the Constitutional Court holds that the County Court gave the defence counsel an opportunity to contest effectively the statements that the minor injured persons had given during the investigation. In support of such a view, the Constitutional Court indicates that the ordinary courts, notably the County Court, analysed and assessed the credibility of the statements given by the minor injured persons, which were carried out in a detailed and satisfactory manner so that the ordinary courts had the opportunity to take the view on the credibility of the girls as witnesses based on the recorded behaviour of minor girls. Taking into account the aforementioned, the Constitutional Court holds that although the appellant and his defence counsel did not cross-examine orally the injured persons in the criminal procedure, such a restriction of the adversarial principle did not in itself resulted in disregard of the appellant’s right to defence as an aspect of the right to a fair trial for the purposes of Article 6(1) and (3)(d) of the European Convention. Therefore, the allegations in that part of the appeal are unfounded.
• Decision on Admissibility and Merits No. AP 2717/13 of 10 October 2016, paragraph 50; criminal proceedings, judgment essentially based on the statements which the injured parties gave during the investigation, no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH
