The Association for Democratic Initiatives along with the Center for Human Rights, and the Justice Network in Bosnia and Herzegovina, sent a Joint Report to the UN Human Rights Council on the Justice Network in Bosnia and Herzegovina for the 2nd Universal Periodic Review on Human Rights Situation in Bosnia and Herzegovina.
During the consultations that preceded the final version of the report, ADI added recommendations regarding free legal aid in the report.
Recommendations for legal aid contained in the section of the report ACCESS TO JUSTICE can be read below:
1.4. Exercising the right to free legal aid and court without discrimination remains to be only partially regulated throughout BiH. The Centre and Office for Free Legal Aid were established in Republika Srpska (RS) and Brčko District. The approach to free legal aid in the Federation of BiH (FBiH) is decentralised, i.e. the cantons have taken the role of free legal aid providers. A state-level law on free legal aid in civil disputes is non-existent although the Ministry of Justice of BiH has on several occasions submitted the Draft law on free legal aid for adoption by the Parliamentary Assembly of BiH. The current system is complicated and reflects the existing political structure of the state which has proven to be non-functional in nearly all sectors. Also, the criteria and procedures for obtaining free legal aid vary, depending on the jurisdiction of where the person resides. The lack of state-level law and harmonisation of legislation in this area has resulted in a situation where citizens have been discriminated against by the very legislation that regulates access to free legal aid. In addition, there is the issue of availability of free legal aid for citizens who do not live in cities where free legal aid centers/institutes are established. All entity and cantonal centers/institutes were established in the larger cities within these jurisdictions. The cost of travel to the larger cities constitutes a considerable expenditure for indigent citizens, whereas the remoteness of these institutions also indicates that rural communities probably lack information on the existence of such aid. In this way, it is necessary to adopt a state-level Law on Free Legal Aid that will initiate the process of harmonisation of rights and procedures for access to legal aid, thus enabling the equal access to justice for all citizens of BiH.
1.5. Under the state and entity-level laws on criminal procedures, the defendant is entitled to ex-officio counsel appointed by the court when he/she is: financially unable to cover the costs of the trial, when the possible prison sentence may exceed 3 years, or when it is in the interest of justice. However, it remains unclear what criteria is applied in the process of the appointment of a defendant’s counsel and what are the criteria used to determine when the defendant is not able to bear the costs of his/her defence. Various abuses of the mechanism of ex-officio counsel appointment have been reported . On the other hand, neither the laws on criminal procedures nor the laws on free legal aid stipulate the right to free legal aid for victims or aggrieved individuals. These shortcomings have resulted in various negative trends that have become visible, in particular, in the processing of war crimes and domestic violence. Thus, the legislative solutions in BiH do not include the mechanism for providing free legal aid to victims and injured parties in criminal damage compensation cases. Therefore, the only possibility left for victims and injured parties is to initiate additional litigations in which the material and non-material damages should be subsequently determined. These proceedings are costly and lengthy, and this is something many victims cannot afford. Free legal aid in criminal matters should be the subject of thorough evaluation. It is necessary to introduce a mechanism that will enable a more transparent evaluation process for the appointing of ex officious counsels and also to introduce a free legal aid service for victims and witnesses of criminal offenses.
1.6. In addition, the role of the non-governmental organizations in providing free legal aid services has not been recognized. Although NGOs can provide free legal aid, the public funds allocated for their activities are scarce, notwithstanding the fact that non-governmental organisations represent the key free legal aid providers in BiH. Also, the legal imbalance was observed with regards to associations of citizens and other civil society organizations. They were disadvantaged in terms of their poor procedural position and a lack of possibility to participate in civil proceedings on discrimination in BiH. The state level law on free legal aid, which needs to be adopted, should recognize the role of non-governmental organizations and all other potential actors play in providing free legal aid.