FIFTH SECTION
DECISION
Application no. 40110/16
Bilsena ŠAHMAN
against Bosnia and Herzegovina
The European Court of Human Rights (Fifth Section), sitting on 25 April 2017 as a Committee composed of:
André Potocki, President,
Síofra O’Leary,
Mārtiņš Mits, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 2 July 2016,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Bilsena Šahman, is a citizen of Bosnia and Herzegovina and Montenegro, who was born in 1971 and lives in Sarajevo. She was represented before the Court by Ms N. Kisić, a lawyer practising in Sarajevo.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 January 2016 the applicant was arrested on suspicion of perverting the course of justice. On the same day the applicant appointed V.V., a lawyer practicing in Sarajevo, as her defence counsel. On 25 January 2016 she also appointed M.D., a lawyer practising in Tuzla, as a co-counsel.
On 5 February 2016 the prosecutor issued an indictment against the applicant, F.R., B.D. and Z.H. which was confirmed by the Court of Bosnia and Herzegovina (“the State Court”) on 15 February 2016. It was alleged, in particular, that the applicant together with F.R. and D.B. had tried to exert pressure on A.S., a witness in a criminal case against N.K. pending before the Court of First Instance in Pristina, Kosovo.[1] The EULEX Special Prosecution Office in Kosovo had indicted N.K. on charges of organised crime, murder and drug trafficking.
In the indictment of 5 February 2016 the prosecutor also lodged a motion for the applicant’s defence counsel V.V. to be summoned as a witness in the trial. On 15 February 2016 the State Court decided that V.V. could no longer act as the applicant’s defence counsel, as she was summoned as a witness in her trial. It relied on Article 41 § 2 of the 2003 Code of Criminal Procedure which provides that a person who has been duly summoned to the main trial as a witness cannot act as a defence counsel. That decision was confirmed on 8 March 2016 by the Appeals Chamber of the State Court which emphasised that the function of a witness was irreplaceable and had priority over the function of a defence counsel. The applicant continued to be represented by M.D.
On 24 March 2016 the applicant lodged a constitutional appeal complaining that her right to legal assistance of her own choosing guaranteed by Article 6 § 3 (c) of the Convention had been violated. On 20 April 2016 the Constitutional Court dismissed her appeal as premature since the criminal proceedings against the applicant were still pending.
The first hearing in the applicant’s case was held on 30 March 2016. The case is currently pending before the State Court at first instance.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that she has not been allowed to be represented by a lawyer of her own choosing in the criminal proceedings against her. She alleges that V.V.’s testimony was unnecessary for the criminal trial in question, and that the real reason for summoning her as a witness was to exclude her from the trial as a defence counsel. The applicant further argues that this has irretrievably prejudiced her defence rights and undermined the fairness of the proceedings as a whole.
THE LAW
The applicant alleged a breach of her rights under Article 6 §§ 1 and 3 (c) of the Convention, which, as far as relevant, read as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself ... through legal assistance of his own choosing ...”
According to Court’s established case-law the question of whether a trial is in conformity with the requirements of Article 6 must be considered on the basis of an examination of the proceedings as a whole (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 68, Series A no. 146). The Court reiterates that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1 (see, among many other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999‑I). The Court notes that the criminal proceedings brought against the applicant are still pending before the State Court at first instance. The Court further recalls that after the conclusion of the criminal proceedings and following the exhaustion of constitutional remedies (see Mirazović v. Bosnia and Herzegovina (dec.), no. 13628/03, 16 May 2006), the applicant may re-submit her complaints to the Court if she still considers herself to be a victim of the alleged violations. It follows that the application is premature and must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 May 2017.
Anne-Marie DouginAndré Potocki
Acting Deputy RegistrarPresident
[1]. All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with the United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
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