Bar Association of FBiH to file a complaint against judge Adisa Zahiragić

(Patria) - The Management Board of the Bar Association of FBiH, at its session held on 07.11.2023, adopted a conclusion by which the Association demands from the competent institutions, primarily the Cantonal Court in Sarajevo, the Supreme Court of the Federation of Bosnia and Herzegovina, and the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, to undertake all necessary and effective measures within their jurisdiction to ensure the unimpeded practice of law by its members and to prevent any form of obstruction by the court in the performance of the legal profession as an independent, professional, and autonomous activity.

"On 06.11.2023, the Management Board of the Bar Association of FBiH received an act from Alen Nakić, a lawyer from Sarajevo, as the authorized representative of lawyers Senad Kreho, Damir Kočo, and Damir Beglerović, all from Sarajevo, titled: 'Request for protection of lawyers Senad Kreho, Damir Kočo, and Damir Beglerović, lawyers from Sarajevo, regarding the illegal actions of judge Adisa Zahiragić of the Cantonal Court in Sarajevo in case number: 09 0 K 045368 23 Kpp8, and for the undertaking of actions to protect the right to practice law and the right to defense in accordance with the UN Basic Principles on the Role of Lawyers from 1990 and Article 6, paragraphs 1 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2/II of the Constitution of BiH)'.

On 07.11.2023, the Management Board of the Bar Association of FBiH considered the submitted request at its session and expresses particular concern regarding the treatment of lawyers Senad Kreho, Damir Kočo, and Damir Beglerović, who were authorized by the suspects in the case to represent them as chosen defense counsel and who were prevented from attending the continuation of the hearing for determining detention against the suspects.

Namely, Article 2 of the Law on Advocacy of FBiH stipulates that advocacy is an independent professional activity, whose independence is particularly realized, among other things, by the client's right to freely choose a lawyer, while Article 7, paragraph 1, stipulates that every client has the right to freely choose a lawyer who is authorized to practice law in the Federation of Bosnia and Herzegovina.

It is undisputed that lawyers Senad Kreho, Damir Kočo, and Damir Beglerović are registered in the Register of Lawyers of the Bar Association of FBiH and that, in accordance with positive regulations, they are authorized to practice law.

Article 3 of the Law on Advocacy, in point 6), stipulates that legal practice includes 'defense and representation of the accused in criminal, misdemeanor, and other proceedings where the responsibility of natural and legal persons is decided'.

Article 6, paragraph 3, point c) of the European Convention on Human Rights and Fundamental Freedoms stipulates that everyone has the right to defend himself through legal assistance of his own choosing. Article 53 of the Law on Criminal Procedure of the Federation of Bosnia and Herzegovina stipulates in paragraphs 1 and 2 that the suspect may have
a defense counsel throughout the entire proceedings and that a lawyer may be engaged for this purpose under the conditions prescribed by the Law on Advocacy of FBiH. Paragraph 4 of this article stipulates that the defense counsel must submit a power of attorney for representation when undertaking the first action in the proceedings.

Considering all of the above, as well as the provisions of the Law on Criminal Procedure of FBiH, particularly regarding the exclusion of defense counsel from proceedings within the meaning of Articles 56-58 of the Law on Criminal Procedure of FBiH, the dismissal of defense counsel from Article 63 of the Law on Criminal Procedure of FBiH, and finally the provisions of Article 257 of the Law on Criminal Procedure of FBiH, the Management Board of the Bar Association of FBiH can conclude that the defense counsel chosen in the criminal proceedings in question were not treated in accordance with the aforementioned provisions.

Any action contrary to positive regulations, especially procedural laws, in terms of denying a lawyer the right to act as chosen defense counsel in all phases of the criminal proceedings, provided that the lawyer submits a properly signed power of attorney when undertaking the very first action, leads to the obstruction of lawyers in performing their professional activities. Respecting the right to practice law is the basis of all actions before the competent authorities, especially in criminal and other proceedings where the limitation of individuals' rights and fundamental freedoms is discussed.

The Management Board of the Bar Association of FBiH particularly emphasizes that any action contrary to positive legal regulations and the obstruction of lawyers in performing their legal activities primarily leads to the violation of clients' rights to effective defense. Due to all of the above, the Management Board of the Bar Association of FBiH has also decided to immediately
file a complaint against the presiding judge.

We note that the HJPC BiH, in its Communication Strategy 2022-2025, also emphasized the need to consider the role of the legal community in the judicial system, which is, in a broader sense, part of the judicial system, and that the HJPC BiH must ensure more intensive communication with bar associations, as their members represent multipliers of opinions about the judiciary, and that through cooperation and better communication with this target group, trust in the judiciary can also be built. In accordance with the above, the Management Board of the Bar Association of FBiH addresses the HJPC BiH through this channel, among other things.
Given the indicated stage of the criminal proceedings, but also the authorizations of the Management Board of the Bar Association of FBiH, the allegations from the Request concerning the specific criminal proceedings cannot be considered by this body.