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23 April 2008
Analysis

Ex-officio Lawyers Face Battle Over Fees

BIRN BiH
Ex-officio lawyers representing war-crime indictees complain of unequal treatment in court, and of problems in getting paid for their work.
By Erna Mackic in Sarajevo

Ex-officio lawyers who represent war crime indictees before local courts claim that they are not getting paid for their work.

They say payments are a particular problem in the District Court in Trebinje and the Basic Court in Brcko District.

Lawyer Rato Runjevac says the District Court in Trebinje does not want to finance ex-officio defence lawyers, forcing them to abandon their work or do it for free “out of moral obligations”. Lawyers from Brcko District claim they are underpaid.

Besides payment issues, lawyers often say they lack equal rights to the prosecution, because they cannot get help from investigators or use the equipment they need to adequately prepare their work.

According to them,this may also stem from the lack of material resources, but it brings into question the principle of equal treatment before the courts.

Interlocutors from cantonal and district courts in the Federation, Republika Srpska and Brcko District claim they pay defence lawyers “in accordance with their available financial resources”.

Moreover, Mladen Jurisic, president of the Cantonal Court in Mostar, says the cantonal authorities ensured “additional resources” for the payment of ex-officio lawyers last year.

According to existing legislation, following the pronouncement of a verdict, an ex-officio lawyer is entitled to submit a list of his expenses to the court, which is then considered by the relevant judge in order to check if it is in line with the facts in the files. If this list is approved, lawyers should receive payment of their fees.

But Rato Runjevac, from Trebinje, says the District Court there “does not want to pay the fees”and that for this reason, he “even thought of with drawing from the Mile Govedarica case”.

Govedarica was charged with murder and rape in the Gacko area in the course of the war.

“This court will not finance ex-officio defence and the indictees cannot do it, either,”Runjevac complained.

“Therefore it is left up to each lawyer to decide for moral reasons and in line with the code of ethics if he will represent the indictees or not,” Runjevac added.

He told Justice Report that in all other countries, lawyers appointed by the state were also paid by the state.

Owing to problems in collecting charges in the District Court in Trebinje, Milenko Vojo Radovic, from Foca, says that he has still not collected fees earned in 2005 for cases that have been completed.

The District Court in Trebinje explains this by saying that “no resources have been planned in the budget for this purpose”.

Four war crime verdicts have been pronounced by the District Court in Trebinje. One was a guilty verdict, but after a retrial before the Supreme Court of the Republika Srpska, this verdict was revised and the indictee’s release ordered.

Ex-officio lawyers who represented war crime indictees before the Basic Court in Brcko also claim to have faced problems in collecting fees.

Dusko Tomic told Justice Report that he was paid only KM 65,000 (around 32,500 Euro) for expenses related to the trial of Kosta Kostic, Milos Milosevic and Raca Simic before the Basic Court in Brcko District.

He says that,according to his cost-estimate, he was supposed to receive KM 180,000 (around 90.000 Euro).

``They applied the old rates from 2003 even though the new rates were in force at the time,” he said.

Lawyer Dragomir Dumic claims to have had the same problem with this court. He insisted “a very large payment was withheld” after the court applied the old rates from 2003 when they calculated his fees.

Dumic has appealed about this to the Constitutional Court of Bosnia and Herzegovina but has yet to receive a response.

The Brcko court has confirmed four war-crime indictments against seven indictees and acquitted three persons of charges.

Ex-officio lawyers who represented indictees before the Cantonal Court in Mostar have also faced problems in collecting fees.

However, the Court President, Mladen Jurisic, said the cantonal authorities secured “additional resources” last year and “the situation has improved”.

Dragan Barbaric, a lawyer from Mostar who represented most indictees before the Cantonal Court, said he “does not have any problems with collecting his fees” and the court acts “in a correct manner concerning this issue”.

Since its establishment in 1999, the Cantonal Court has pronounced 16 guilty verdicts of guilty and seven verdict of release.

Sead Topcic, from Zenica, who acted as an ex-officio lawyer at a war crime trial conducted before the Cantonal Courtin Zenica, is among the few lawyers who have not complained about the collection of fees for work there. He told Justice Report there had been “no big problems” over this issue in the Cantonal Court.

“Sometimes we face problems in ascertaining the costs but the money is eventually paid into our account,” Topcic said.

Since 2004, there have been five war-crime indictments before the Cantonal Court in Zenica. The Cantonal Prosecution filed two indictments for war crimes against civilians, while three of the five indictments were “inherited” from the previous prosecution.

Besides problems over collection of fees by lawyers, defence teams representing war-crime indictees before local courts often say they lack equal rights to the prosecutors.

Rato Runjevac claims this inequality stems from the law, which makes it “impossible for lawyers to collect all pieces of evidence in a quick and efficient manner” - as the prosecutions do.

By law,prosecutors’ offices may use investigators and expert associates, while,according to Runjevac, the Advocacy Law permits lawyers to “engage probationary workers only - and they can only perform this job for two years, i.e. until they are entitled to take their legal exams”.

“After an indictment has been confirmed, we are not able to conduct a proper preparation of the defence,” he added. “Our work is non-organized, and I am afraid that this violates the indictees’ rights to a fair trial.”

Nevertheless, Milenko Vojo Radovic, an ex-officio lawyer at local and the state court, says that despite these problems he still “has full confidence in the work of district and cantonal courts when it comes to war-crime processes”.

The complaints about defence lawyers being in a worse position than the prosecution staff can also be heard at the Cantonal Court in Sarajevo.

Representatives of the Court complain that the lawyers “do not have resources to adequately prepare the defence” and therefore the court often has to pay the costs for the examination of witnesses and court experts.

Adil Lozo, a lawyer from Travnik, is not satisfied, and explains that the mere fact that the prosecution gets support from the police speaks for itself about the unequal position of the defence.

“We do not have the possibility to conduct equal investigations as we always face resistance from state institutions when we try to collect certain data,” Lozo complained.

He added that the establishment of regional defence investigation centres might represent some kind of a solution to this problem.

Erna Mackic is a journalist with Justice Report. Justice Report is the online publication of BIRN Bosnia and Herzegovina. This article is produced as part of BIRN’s Justice Series project “Local Justice under Spotlight”, which has been made possible by the support of American people through USAID.

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