FIFTH SECTION
DECISION
Application no. 40139/16
Vasvija VIDOVIĆ
against Bosnia and Herzegovina
The European Court of Human Rights (Fifth Section), sitting on 10 January 2017 as a Committee composed of:
Ganna Yudkivska, President,
Faris Vehabović,
Carlo Ranzoni, 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 Vasvija Vidović, is a citizen of Bosnia and Herzegovina, who was born in 1954 and lives in Sarajevo. She was represented before the Court by Ms N. Kisić, a lawyer practising in the same town.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a practicing lawyer.
On 11 January 2016 B.S. was arrested on suspicion of perverting the course of justice. On the same day she appointed the applicant as her defence counsel.
On 25 January 2016 F.R. was arrested on a suspicion of having been a member of an organized criminal group, of perverting the course of justice and of offering reward or other benefits for illegally interceding. The applicant also acted as his defence counsel on the basis of a power of attorney initially signed on 18 September 2014.
On 25 January 2016 members of the State Investigation and Protection Agency seized the computer of I.C., a part-time journalist and the applicant’s investigator, pursuant to the order of the Court of Bosnia and Herzegovina (“the State Court”) of 22 January 2016, as part of actions aimed at obtaining evidence against B.S. and F.R.
On 5 February 2016 the prosecutor issued an indictment against B.S. and F.R. and delivered it to the State Court on the same day. The prosecutor also lodged a motion for the applicant to be summoned as a witness in the trial against B.S. and F.R.
On 15 February 2016 the State Court decided that the applicant could not act as a defence counsel for B.S. and F.R., as she was summoned as a witness in their 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. The State Court also rejected the request of the applicant to conduct the procedure for disqualification of the defence counsel under Article 43 of the 2003 Code of Criminal Procedure, which provides that the decision for disqualification of a defence counsel is in principle issued at a separate hearing attended by the prosecutor, the suspect or the accused, the defence counsel and a representative of a Bar Association, to which the defence counsel belongs. It concluded that such a procedure only applied when the conditions under Article 42 § 1 of that Code obtained, namely when defence counsel misuses a contact with a suspect or an accused in custody to the effect that the later commits a criminal offense or threatens the security of the detention facility in question, which was not the case.
On 8 March 2016 the Appeals Chamber of the State Court rejected the applicant’s appeal against the decision of the State Court of 15 February 2016. It emphasized that the function of a witness was irreplaceable and had priority over the function of a defence counsel.
On 20 April 2016 the Constitutional Court of Bosnia and Herzegovina dismissed the applicant’s constitutional appeal as manifestly ill-founded. It held that the State Court had given a sufficiently clear explanation in relation to the procedure of the applicant’s exclusion as a defense counsel from the trial of B.S. and F.R. The decision was served on the applicant on 30 April 2016.
COMPLAINTS
The applicant complained that the right to a fair hearing, under the criminal limb of Article 6 § 1 of the Convention, was violated by the seizure of her investigator’s computer. She further complained that her inability to act as a defence counsel for B.S. and F.R. violated the right to a defence of one’s own choosing under Article 6 § 3 (c) of the Convention.
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, reads as follows:
“1. 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 ...”
As regards the applicability of Article 6, the Court notes that the impugned criminal proceedings were initiated against B.S. and F.R. The applicant acted as their defense counsel until the decision of the State Court of 15 February 2016, after which she could no longer act in that capacity in their trial. The computer used by the applicant’s investigator was also seized as part of the measures aimed at obtaining evidence in the proceedings against B.S. and F.R.
Article 6 in criminal matters guarantees a right to a fair trial to anyone “charged with a criminal offence” (see for general principles, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 249, ECHR 2016, with further references). The proceedings complained of did not involve the “determination of a criminal charge” against the applicant. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 February 2017.
Anne-Marie DouginGanna Yudkivska
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy