How Could Ante Nobilo Sit in the Courtroom of the Court of BiH Next to the Accused Milorad Dodik?

(Patria) - On Wednesday, the trial of the President of Republika Srpska, Milorad Dodik, began before the Court of BiH. One of Dodik's legal advisors was Croatian lawyer Ante Nobilo. Could Nobilo represent Dodik in the courtroom of the Court of BiH? This analysis for Istraga.ba was prepared by several Sarajevo lawyers.

In accordance with Article 6, paragraph 1 of the Law on the Court of BiH, for a representative to appear or act before the Court, they must be entered in the Registry of Attorneys of the competent BiH body recognized by the Court.

In accordance with paragraph 2 of the same article, the Court may, in each individual case, specifically allow a representative who does not meet the conditions from the previous paragraph to act before the Court, and such a procedure for special recognition of the representative is determined by the Court's Rules of Procedure.

The Rules of Procedure of the Court of BiH, adopted on June 16, 2020, prescribe in Article 52, referring to the provision of Article 6 of the Law on the Court of BiH, the procedure for issuing permits for special representation.

This provision stipulates that the Court may, exceptionally, in each individual case, issue a permit for special representation to a representative who is not on the OKO (Criminal Defense Section) list and approve their representation, i.e., practice before the Court, which includes lawyers who have a valid license to practice law issued by a recognized professional association of lawyers or another competent authority from a foreign country under conditions of reciprocity.

In that case, representatives submit their applications to the preliminary proceedings judge, the preliminary hearing judge, the judge, or the panel, depending on the stage of the proceedings, who, when considering such applications, may take into account the following facts:

a) Whether the representative has demonstrated specialized knowledge of domestic or international criminal law, international humanitarian law, international human rights regulations, or any other area of law that could significantly contribute to the efficiency of the proceedings;
b) Whether the representative possesses specialized knowledge of the factual situation of the geographical region, related or legally/factually similar cases processed before the Court of BiH or other courts, related to the case in which their appointment is being decided;
c) Whether the representative has previously represented the same defendant before a domestic or foreign court;
d) Whether the representative has previously represented before the Court of BiH in other cases;
e) Whether the arguments for appointing a representative not on the OKO list are qualitatively and fairly predominant compared to the arguments for appointing a defense counsel from the list;
f) The choice and wish of the suspect or accused and their reasons for proposing the representative;
g) The reason of fairness, as well as all other facts relevant to the rights of the suspect or accused person.

The Court, in accordance with the provision of this article, also informs the OKO of any decision to grant a permit for special representation to a lawyer not on the OKO list.

Furthermore, in accordance with the provision of Article 49, paragraph 1 of the same Rules of Procedure, the rules for representatives from Articles 49 to 58 of these Rules apply equally to all lawyers acting in criminal proceedings before the Court, regardless of whether they are defense counsel appointed ex officio or chosen defense counsel, to the extent that it is not expressly otherwise prescribed for lawyers acting before Department I for War Crimes and Department II for Organized Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of BiH. Paragraph 2 of this article stipulates that in case of conflict between the provisions contained in these Rules and the provisions contained in any other rulebook, rules of procedure, or other act of the Court, administrative body, or bar association, regarding the license to work and assignment of defense counsel in criminal cases, these provisions shall prevail.

From the aforementioned provisions, it clearly follows that the issuance of permits for special appearance or representation of a representative before the Court of BiH, in the case of reciprocity and fulfillment of the criteria prescribed by the Rules of Procedure of the Court of BiH, refers exclusively to defense counsel in criminal cases, therefore not to representatives who would be in the capacity of "legal advisors".

At the same time, the Criminal Procedure Code of BiH (CPC BiH) does not recognize the institute of "legal advisor" for a suspect or accused person, but only for witnesses, and in legally prescribed cases (e.g., Article 84, paragraph 6 of the CPC BiH when the Court assigns a lawyer as an advisor to a witness during questioning).

Also, in accordance with the provisions of Articles 244 and 257 of the CPC BiH, the judge or the president of the panel opens the session and announces the subject of the main trial by first determining whether all summoned persons are present. Unsummoned persons may attend the main trial, but only in the capacity of the public, within the meaning of Article 234 of the CPC BiH.

Based on the above, and in relation to the presence in the courtroom of Mr. Ante Nobilo, a lawyer from the Republic of Croatia, who is not a member of any bar association in BiH, at the trial before the Court of BiH on December 6, 2023, in the capacity of a "legal advisor", the following questions arise:

Was there a decision of the Court of BiH allowing the special appearance or representation of Mr. Ante Nobilo before the Court of BiH for such presence?

If such a decision existed:

Was it made in accordance with the principle of reciprocity from Article 52 of the Rules of Procedure?

Which criteria from Article 52 of the Rules of Procedure were applied for making such a decision?

What legal basis was applied for the appearance or representation of Mr. Ante Nobilo in the capacity of a "legal advisor" of the accused?

Was the OKO informed of such a decision in accordance with the provision of Article 52 of the Rules of Procedure?

Did Mr. Ante Nobilo receive a summons to appear before the Court in such capacity?

If such a decision did not exist:

What was the legal basis for the appearance or representation of Mr. Ante Nobilo in the courtroom in the capacity of a "legal advisor"?

Did Mr. Ante Nobilo receive a summons to appear before the Court in such capacity (or any other)?

Did the Court consider such an issue at the hearing of December 6, 2023, and if so, what decision did it make?

Answers to all the aforementioned questions are important for considering the legality of the work, i.e., the appearance and representation before the Court of BiH of lawyers-foreign nationals who are not entered in the Registry of Attorneys of any bar association in BiH and who do not meet the conditions for special representation before the Court of BiH, and for the protection of the rights of defense lawyers who, in accordance with positive regulations, have the right to appear or represent before the Court of BiH.

(Istraga.ba)