Jahić for NAP: Finding a violation of the right to a fair trial should result in a retrial

(Patria) - If we were to follow previous decisions in which the Constitutional Court of BiH found that convicted persons had their right to a fair trial violated in the context of the presumption of innocence, all three convicted in the "Respirators" case should be released.

Fadil Novalić was illegally convicted by applying provisions of laws that ceased to be valid 20 years ago. The Constitutional Court of BiH also found a violation of the right to a fair trial, and the Court of BiH ignored these violations when issuing the verdict, even though the legal team pointed this out.

This was stated tonight in an interview with Patria by Elmir Jahić, a member of Fadil Novalić's legal team.

Jahić commented on today's media reports that the Constitutional Court of BiH ruled on the appeal of former FBiH Prime Minister Fadil Novalić, owner of the company "Srebrena malina" Fikret Hodžić, and former Director of the Federal Civil Protection Administration Fahrudin Solak.

Given that the legal team has not yet received the official copy of the Constitutional Court of BiH's decision, as the legal deadline for this is 30 days, today's statement by lawyer Jahić refers exclusively to the information published in the media.

- From what has been published in the media, it follows that the Constitutional Court of BiH found a violation of the right to a fair trial in relation to Fadil Novalić concerning the presumption of innocence. Considering the rights defined by the European Convention on Human Rights, and Article 6 of that convention permeates the entire procedure - from investigation to finalization of the proceedings, and even in segments before the Constitutional Court - then it is difficult to provide an answer on the next legal steps before we receive the decision of the Constitutional Court, Jahić said.

He presented data that during the regular proceedings before the Court of BiH, which was factually and territorially incompetent, as many as twelve violations were committed to the detriment of Fadil Novalić, which have elements of a significant procedural violation.

- In the environment in which we wrote the appeal, we knew that we could not expect the Constitutional Court of BiH to form an opinion on the case of Fadil Novalić, but we expect it to ensure the principle of equality for Mr. Novalić, i.e., that the parameters expressed through previous decisions in the context of the implications of the violation of the right to a fair trial, basing the verdict on invalid or non-existent provisions of substantive law, result in favor of the convicted person - said Jahić, adding that the legal team will certainly be able to provide a more detailed observation only after receiving the written copy of the Constitutional Court of BiH's decision.

He emphasized as very important that from the statement published in the media, it cannot be known how the Constitutional Court of BiH ruled on the claims of the appeal, which stated that "Fadil Novalić was convicted by applying the provisions of the Law on Government and the Law on Public Administration which ceased to be valid 20 years ago".

On the other hand, Jahić cited the case of the former Director of the Agency for Investigations and Protection (SIPA) Goran Zubac as an example, for which the Constitutional Court of BiH found that statements by public officials undoubtedly constitute a violation of the right to a fair trial in relation to the presumption of innocence, after analyzing statements by the former Director of the Federal Police Administration (FUP) Dragan Lukač, Member of the BiH Parliament Šemsudin Mehmedović, and member of the BiH Presidency Bakir Izetbegović, it decided that they violated the presumption of innocence in such a way that they ultimately contributed to Goran Zubac being convicted even before the verdict.

- I will remind both you and the public of the terror Mr. Novalić was exposed to during the four-year trial, where statements by holders of the highest executive authorities in BiH, the still current US Ambassador Michael Murphy, as well as other European officials, prejudged the outcome of the criminal proceedings, which, according to the media statement, influenced the violation of the right to a fair trial.

It is difficult to imagine that in this specific case a retrial could be avoided, especially in a situation where the Constitutional Court has unequivocally established that the right to a fair trial has been violated by committing significant violations and basing the verdicts on provisions of laws that ceased to be valid 20 years ago. That would be a precedent contrary to all previous decisions of both the Constitutional Court of BiH and the European Court of Human Rights.

From the statement published in the media, we only know that a violation of the right to a fair trial has been unequivocally established. When we put this in the context of the intention of the European Convention on Human Rights and the basic principles of the Criminal Procedure Code, it is undeniable that a conviction cannot be based on such violations.

It cannot be said that the violation of the right to a fair trial in the segment of the presumption of innocence did not have an impact on the conviction. It prejudged opinions in the public, as well as in the Trial Chamber, and completely predetermined what should protect the presumption of innocence.

On the other hand, the alleged proof of the commission of the criminal offense is based on provisions of substantive law, i.e., on the provisions of a blanket regulation that ceased to be valid 20 years ago.

From the statement published in the media, we do not know how, or if at all, the Constitutional Court of BiH considered the claim in the appeal that the verdict was based on provisions of a blanket regulation that ceased to be valid 20 years ago. Therefore, a non-existent regulation was applied to convict Mr. Novalić, Jahić said.

The expectations of the legal team, given the established violation of the right to a fair trial, are that Novalić will be released and that his trial will be retried.

- I remind you that Novalić was acquitted of all charges he was accused of, and he was convicted of the extended criminal offense of abuse of position, which was not the subject of the indictment. According to that logic, if this were to remain the stance, citizens can expect to be convicted based on presumed legal provisions that will only come into effect in 20 years, Jahić tells us.

Further legal battles await the legal teams of Novalić, Hodžić, and Solak. Novalić's legal team will determine the legal steps upon receiving the written copy of the Constitutional Court's decision.

Jahić notes that there is also an institute of extraordinary legal remedy - a request for a retrial in favor of the convicted person. The Criminal Procedure Code prescribes the grounds on which a retrial in favor of the convicted person can be based.

- We will also consider that possibility as a legal team, he concluded.

(D.K.)