KREHO WROTE TO THE BIH PROSECUTOR'S OFFICE 'Ex officio defense': For four years, the same lawyer acted in 57 cases

President of the Court of Bosnia and Herzegovina Minka Kreho sent a letter to the BiH Prosecutor's Office on Monday, July 21, in which she pointed out that the Court of BiH has recently received almost no proposals from the Prosecutor's Office for the appointment of defense counsel for the first interrogation, and that a pattern of engagement of a small number of constantly present lawyers is noticeable.

Kreho pointed out that Article 45, paragraph 1 of the Criminal Procedure Code of BiH is being applied less and less frequently, which stipulates that the Court is involved in the process of appointing defense counsel ex officio even before the first interrogation of the suspect.

“In these cases, a certain pattern of conduct has been observed where suspects, upon being informed of their right to have defense counsel, either choose a defense counsel themselves or are suggested a choice by the acting prosecutor. For years, a pattern of engagement of a small number of the same constantly present lawyers has been observed,” Kreho stated.

She added that situations are increasingly common where a suspect already has a chosen defense counsel at the time of submitting a proposal for detention, whether chosen by themselves or suggested to them.

“Such a lawyer, at their request and with the suspect's consent, is issued a decision at the hearing appointing them as defense counsel ex officio, in accordance with the imperative of Article 45, paragraph 2 of the BiH CPC, because the suspect must have defense counsel during the consideration of detention and while detention lasts. In practice, it has become very rare for the Prosecutor's Office to inform the Court that a suspect has no defense counsel, so that the Court can submit the OKO list and appoint a lawyer ex officio. Instead, the defense counsel who was present at the interrogation in the Prosecutor's Office is most often appointed as defense counsel ex officio,” wrote Kreho.

The largest number of cases in this regard last year was handled by lawyer Denisa Gačanin, a former associate of former state prosecutor Dubravko Čampara, a total of 17. She received most of the cases through the joint action of Čampara and prosecutor Džermin Pašić. According to information from the Investigation, she received a total of 57 ex officio cases in four years: 14 in 2021, 9 in 2022, and 17 each in 2023 and 2024. In the number of cases received, Gačanin is convincingly first on the list for last year, 2024. In second place in the same year is Damir Samardžić with 13 cases, followed by Ahmed Fejzić and Rusmir Karkin with 10 cases each received ex officio.

It is precisely this practice that is one of the reasons why Kreho addressed the Prosecutor's Office with a letter. She also added that at the mentioned hearings, these defense counsels use the possibility of Article 45, paragraph 2 of the BiH CPC and request that their status be changed to ex officio defense, with which the suspect immediately agrees.

“Given the nature and urgency of such proceedings, and the fact that the defense counsel is already present, the Court in these situations does not conduct the procedure from paragraph 6 of the same article, but immediately issues a decision appointing the chosen lawyer as defense counsel ex officio. Also, we point out the problematic practice where, after the lifting of detention and the imposition of restraining measures, ex officio defense counsels continue to act even though the legal basis from Article 45, paragraph 2 of the BiH CPC no longer exists,” states Kreho.

She emphasizes that in these cases, according to the understanding of the Court of BiH, it is necessary to issue decisions on the release of the ex officio defense counsel, because the basis for their appointment has ceased. In this regard, she called for a more consistent application of the Criminal Procedure Code of BiH.