Criminal Proceedings and Article 6 of the European Convention on Human Rights
On the 22 and 23 of September 2016 the AIRE Centre and the Judicial Training Centre of the Federation of Bosnia and Herzegovina organised a seminar for the senior advisors and lawyers of the Constitutional Court of Bosnia and Herzegovina (BIH) and the Court of BIH.
The seminar forms part of a three-year project (2016 – 2019): ‘Underpinning Bosnia and Herzegovina's Stability and Integration into Europe through Rule of Law Reform’. This project, implemented by the AIRE Centre in cooperation with key judicial institutions in BIH, and funded by the UK Foreign and Commonwealth Office, will contribute to a more independent and professional judiciary in BIH, better capable of implementing the rule of law and European Convention on Human Rights at national level. That is crucial to securing stability, accountability, protection of fundamental rights, as well as integrating BIH into Europe.
The topic of this seminar was Criminal Proceedings and Article 6 of the ECHR. Biljana Braithwaite, Programme Manager for the Western Balkans, AIRE Centre opened the event and outlined main objectives of the three year project and planned activities. Radoslav Marjanovic, Assistant Director, Centre for Judicial and Prosecutorial Training of the Federation of Bosnia and Herzegovina (CEST FBIH) spoke about Centre’s commitment to the project and providing opportunity for the advisors of most senior courts in BIH to benefit from specialist legal training. Elma Veledar-Arifagic, legal expert with broad experience in the field of ECHR caselaw, moderated the debates.
The key issues discussed over this two days event included the definition of a criminal charge, the right to a hearing within a reasonable time, the right to a reasoned decision, admissibility of evidence, access to evidence held by prosecutor(s) by the defense, equality of arms and the right to an effective remedy considering Article 6 and 13.
Speakers included Sevima Sali-Terzic, Senior Legal Advisor to the Constitutional Court of BiH, Navtej S. Ahluwalia, Barrister at Garden Court Chambers, London and Cedo Radnic, Lawyer at the Registry of the European Court of Human Rights, Strasbourg.
Specific issues to BiH and examples of local caselaw where discussed. A reoccurring concern for legal advisors is the adequacy and sufficiency of reasons given in each judgment. Speakers specifically looked at how reasoned decisions are necessary so the accused is able to establish the basis for their conviction. In their concluding remarks speakers outlined that reasons will include reasons relating to procedural issues, the reasons used to secure a conviction and the elements which led to the court being persuaded of the guilt, as well as the reasons evidence was/is accepted or rejected.
Participants highlighted that many cases that appear before their courts relate to the transfer of cases from other jurisdictions. Speakers drew from their litigation experience to illustrate examples of best practice. Issues of admissibility of evidence and special investigative measures where extensively and thoroughly discussed. Some concluding remarks included the fact that evidence should not be automatically accepted from abroad. The fundamental question was whether evidence is proved to be unlawfully obtained and how the courts in BiH need to make sure efforts are properly discharged to enquire on the evidences legality. Domestic courts need to make an assessment as to whether or not this admittance would be a violation of the Convention.
The AIRE Centre will be analysing comprehensive feedback and suggestions received at the end of the event in order to further develop capacity building training for advisors of Constitutional Court of BIH and Court of BIH in 2017.