Right to attend a trial

The proceedings conducted by the Supreme Court of the Republika Srpska on the basis of the Minor Offences Law cannot be deemed to involve the complete review of all aspects of a case. The Supreme Court examines the application of the law and it does not review the facts established by administrative authorities. In addition, the Supreme Court does not hear witnesses, nor does it examine evidence. The proceedings before the Supreme Court are not held in public. Moreover, the Supreme Court does not of itself take a Decision on Merits but refers a case back to the first instance or second instance administrative authority. Consequently, the Constitutional Court finds that the proceedings before the Supreme Court of the Republika Srpska in the present case do not fulfil the requirements of Article 6(1) and (3) of the European Convention since these proceedings do not involve an examination of the indictment.

•    Decision No. U 19/00 of 4 May 2001, paragraph 33, published in the Official Gazette of Bosnia and Herzegovina, 27/01
Irrespective of the appellant’s explicit request and contrary to Article 6(1) of the European Convention, the Supreme Court failed to ensure that the appellant attends and takes part at the hearing in proceedings to determine a criminal charge.

•    Decision on Admissibility and Merits No. U 59/03 of 17 May 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 40/04; minor offence proceedings related to failure to pay customs duty on goods imported

In case where the appellant is entitled to file a petition for reopening the proceedings within the time limit of one year from the date on which he has learnt about the judgment, by which he/she has been convicted in absence, and where the petition for reopening the proceedings imposes no particular requirements, the courts are obliged to grant such a request and to hold a new hearing in such a case. Therefore, it cannot be said that the appellant’s right to a fair trial has been violated because the trial was conducted in the absence of the appellant.

•    Decision on Admissibility and Merits No. U 103/03 of 28 May 2004, paragraphs 27 and 28, published in the Official Gazette of Bosnia and Herzegovina, 38/04

Right to public hearing has not been secured in proceedings conducted before customs authorities and before the Supreme Court of the Federation of Bosnia and Herzegovina and the appellant has not been given the opportunity to examine, in person, the allegations against him or to present the reasons for which he had filed a lawsuit in administrative proceedings. Therefore, the right to a public hearing has not been complied with in the present case.

•    Decision on Admissibility and Merits No. AP 236/03 of 15 June 2004, published in the Official Gazette of Bosnia and Herzegovina, 38/04; Lijanovići

There is no violation of Article 6 of the European Convention in case where neither a plaintiff nor a defendant nor defence counsel attended the session of the panel which decided on the defendant’s appeal (the appellant’s appeal).

•    Decision on Admissibility and Merits No. U 119/03 of 15 June 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 40/04; neither plaintiff nor defendant were present at the session of the panel; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

Contrary to the appellant’s allegations, there is no violation of his right to defence on the ground that his counsel was not present when a photo-documentation was produced. In addition, this photo-documentation is not related to the evidence on the basis of which the court took its decision.
•    Decision on Admissibility and Merits No. U 50/03 of 21 July 2004, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 41/04

Therefore, the principle of equality between parties has been called into question by the fact that neither the appellant nor his counsel attended the criminal proceedings in their entirety and that the appellant did not explicitly renounce his right to be heard and to participate in proceedings. Nevertheless, in addition to the aforementioned, the Constitutional Court states that, taking into account that it is mandatory to apply the former Criminal Procedure Code in these proceedings, the appellant, in the case at hand, has the opportunity to avail himself of an extraordinary remedy - a petition for reopening the proceedings. By filing the extraordinary remedy with the competent court, automatically and with no discretionary right to decide, the mentioned court is obliged to issue a ruling allowing renewal proceedings. Thus, in the reopened proceedings, the appellant will enjoy all rights and procedural guarantees under Article 6 of the European Convention and he will be in a position to participate in proceedings to resolve the grounds of charges pending against him. In addition, the Constitutional Court is not aware of any single fact suggesting that the appellant will not have a fair trial in the reopened proceedings.
•    Decision on Admissibility and Merits No. AP 407/04 of 23 July 2004, paragraph 24, published in the Official Gazette of Bosnia and Herzegovina, 43/04; right to attend criminal proceedings, neither the appellant nor his counsel attended the criminal proceedings; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

It cannot be said that the appellant had a fair trial as he was not notified of the place and date at which the hearing would be held and neither the appellant nor his counsel were given the opportunity to attend the session.
•    Decision on Admissibility and Merits No. AP 145/02 of 26 August 2004, paragraph 27, published in the Official Gazette of Bosnia and Herzegovina, 48/04; attendance at the session of the panel in appellate proceedings

The appellant must be given an opportunity to attend the court session. This relates to, primarily, trials in the first instance. However, the right to a fair trial also includes the right to attend hearings before courts of higher instance, which decide on appeals. In cases where the considerations before the courts are limited to the procedural or solely legal issues, the personal attendance of the defendant is not relevant.
•    Decision on Admissibility and Merits No. AP 557/04 of 30 November 2004, paragraph 23, published in the Official Gazette of Bosnia and Herzegovina, 19/05; criminal proceedings, criminal offence in traffic safety; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH;

•    Decision on the Merits No. AP 656/04 of 13 September 2005, paragraph 25, published in the Official Gazette of Bosnia and Herzegovina, 83/05; criminal proceedings, the application of the more lenient law, the death penalty replaced with a 20-year prison term; there is no violation of Article 6 of the European Convention and Article II(3)(e) of the Constitution of BiH

There is  always  a  violation  of Article  II(3)(e)  of  the  Constitution  of  Bosnia  and Herzegovina and Article 6 paragraphs 1 and 3(c) of the European Convention in case where the appellant, who demanded to attend the session in appellate proceedings, was not summoned to the session of the appellate court, as stipulated by law, and the decision was about the facts, the allegations of the criminal offence and circumstances under which the offence was committed, and the perpetrator’s point of view on the facts.

•    Decision on Admissibility and  Merits No. AP 224/04 of 17 February 2005, published in the Official Gazette of Bosnia and Herzegovina, 38/05

In case where the appellant did not request to attend the session in appellate proceedings or to be invited to that session and where the authorized counsel did not attend the session of the appellate court, the right to a fair trial is not violated if the law stipulates the possibility to attend the proceedings and the decision does not concern the facts and the allegations of the criminal offence.

•    Decision on the Merits No. AP 1102/04 of 13 October 2005, paragraph 37, published in the Official Gazette of Bosnia and Herzegovina, 22/06

Minor offence proceedings, which resulted in challenged rulings by which a fine was imposed on the appellant, is deemed to be “criminal” proceedings. However, in passing the challenged rulings, the court did not examine the appellant and, therefore, his right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 paragraph 1 of the European Convention has been violated.

•    Decision on the Merits No. AP 1087/04 of 2 December 2005, paragraph 36, published in the Official Gazette of Bosnia and Herzegovina, 22/06

There is a violation of 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 case where the appellant in minor offences proceedings, in which he was not heard as the accused, was found guilty of a minor offence by the decision of the court

•    Decision on Admissibility and Merits No. AP 2255/05 of 16 January 2006, paragraphs 30 to 32, published in the Official Gazette of Bosnia and Herzegovina, 38/07; minor offences proceedings, the appellant’s guilt decided in the absence of the appellant

There is a violation of 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 case where it is indisputably established that the witnesses were heard before the first instance court and that the appellant was not present at that hearing and that a traffic expert witness presented his findings and the appellant, before the issuance of the first instance decision, was not given an opportunity to state his observations about the selection of the expert or about the expert’s findings, and that he was not informed of the hearing 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

In case where the accused and his counsel attend the session where all evidence are presented and assessed, so that the accused and his counsel have the opportunity to state their positions on the evidence, and where the confession must be proved, the fact that the accused, in the absence of his counsel, is heard before the indictment is served on him cannot have relevance for assessment that the entire proceedings are unfair. In addition, the fact that the appellant and his counsel were not present at the scene where certain evidence was examined, but they attended the main hearing when the evidence was checked and an expert was called to test the credibility of the evidence, does not give rise to a violation of the fair trial provision of Article 6 of the European Convention.

•    Decision on the Merits No. AP 263/05 of 14 March 2006, paragraph 28, published in the Official Gazette of Bosnia and Herzegovina, 49/06

As to the complaints of a violation of the right to a public hearing before a court of second instance, the Constitutional Court refers to the European Court of Human Rights’ case-law according to which a distinction must be drawn between the first instance trial and second instance trial, i.e. the proceedings upon an appeal.

•    Decision on Admissibility and Merits No. AP 1401/05 of 12 September 2006, paragraph 59, published in the Official Gazette of Bosnia and Herzegovina, 7/07; civil proceedings

In the present case, the Constitutional Court notes that, according to the appellant, the summons for the session of the Panel was served on him while he was in the detention unit and he was not apprehended from detention; however, the appellant failed to state the reasons for which he was not apprehended. Furthermore, the Constitutional Court finds that the Cantonal Court held a session of the Panel, finding that the appellate reasons that there was no sufficient evidence to support the claim that the appellant had committed the criminal offences did not indicate that there was a need to hold the main hearing, i.e. that it was necessary once again to present evidence already presented by the first instance court. In view of the above, given that the appellant, although duly summoned, did not attend the session and given the aforementioned principles, the Constitutional Court establishes that the appellant’s allegations do not call into question the fairness of proceedings.

•    Decision on Admissibility and Merits No. AP 3643/07 of 14 April 2010, paragraph 10; detention