Part 1 Basic Provisions

Chapter 7 Defense Attorney

Article 39

Right to a Defense Attorney

The suspect or accused shall be entitled to have a defense attorney throughout the course of the criminal proceedings.

Only a lawyer who fulfils the conditions set forth in the Law on the Court of Bosnia and Herzegovina may be engaged as a defense attorney.

If the suspect or accused does not himself hire a defense attorney, a defense attorney may be
engaged for him by his legal representatives, spouse or extramarital partner, blood relatives
in a direct line to any degree whatsoever, adoptive parents, adopted children, brothers, sisters
or foster parents, if the suspect or the accused does not explicitly oppose it.

The defense attorney must submit his entry for appearance on the occasion of taking his first action in the proceedings.

Part 1 Basic Provisions

Chapter 7 Defense Attorney

Article 45

Mandatory Defense

A suspect shall have a defense attorney at the first questioning if he is mute or deaf or if he is offense for which a penalty of long-term imprisonment may be pronounced.

A suspect or accused must have a defense attorney while deciding the proposal for ordering pre-trial custody, throughout the pretrial custody.

After an indictment has been brought for a criminal offense for which a prison sentence of
ten (10) years or more may be pronounced, the accused must have a defense attorney at the time of the delivery of the indictment.

If the suspect, or the accused in the case of a mandatory defense, does not retain a defense attorney himself, or if the persons referred to in Article 39, Paragraph 3, of this Code do not retain a defense attorney, the preliminary proceeding judge, preliminary hearing judge, the judge or the Presiding judge shall appoint him a defense attorney in the proceedings. In this case, the suspect or the accused shall have the right to a defense attorney until the verdict becomes final and, if a long-term imprisonment is pronounced for proceedings under legal remedies.

If the Court finds it necessary for the sake of justice, due to the complexity of the case, or the mental condition of the suspect or the accused or the other circumstances, it shall appoint an attorney for his defense.

In the case of appointing a defense attorney, the suspect or the accused shall be asked to
select a defense attorney from the presented list himself. If the suspect or the accused does not select a defense attorney from the presented list himself, the defense attorney shall be appointed by the Court following the order of the list of attorneys.

If the requested attorney is unable to take over the defence, the Court shall request the next attorney from the list of attorneys. The Court shall inform the relevant bar association about the refusal of the requested attorney to assume the ex officio defence

Part 1 Basic Provisions

Chapter 7 Defense Attorney

Article 46

Appointment of Defense Attorney for the Indigent Person

When conditions are not met for the mandatory defense, and the proceedings are conducted for an offense for which a prison sentence of three (3) years may be pronounced or more or when the interests of justice so require, regardless of the prescribed punishment, a defense attorney shall be assigned to the accused at his request if, due to an adverse financial situation, he is not able to pay the expenses of the defense.

The request for appointment of a defense attorney referred to in Paragraph 1 of this Articlepursuant to Article 45, Paragraph 6 may be filed at any time during the criminal proceedings. The preliminary proceeding judge, preliminary hearing judge, the judge or the Presiding judge pursuant to Article 45,
Paragraph 65 shall appoint the defense attorney after the suspect or the accused was given an opportunity to select a defense attorney from the presented list.

The Request for Appointment of a Defense Attorney due to adverse financial situation shall be recorded in the case file. After having established the financial situation of the suspect or accused, the Court shall issue a decision on the request without delay.

Part 1 Basic Provisions

Chapter 8 Actions aimed at Obtaining Evidence

Section 4 Questioning of the Subject

Article 78

Instructing the Suspect on His Rights

At the first questioning the suspect shall be asked the following questions: his name and surname; nickname if he has one; name and surname of his parents; maiden name of his mother; place of birth; place of residence; date, month and year of birth; ethnicity and citizenship; identification number of Bosnia and Herzegovina citizen; profession; family situation; is he literate; completed education; has he served in the army, and if so, when and where; whether he has a rank of a reserve officer; whether he is entered in the military records and if yes with which authority in charge of defense affairs; whether he has received a medal; financial situation; previous convictions and, if any, reasons for the conviction; if convicted whether he served the sentence and when; are there ongoing proceedings for some other criminal offense; and if he is a minor, who is his legal representative.

The suspect shall be instructed to obey summonses and to inform the authorized officials immediately about every change of an address or intention to change his residence, and the suspect shall also be instructed about consequences if he does not act accordingly.

At the beginning of the questioning, the suspect shall be informed of the grounds for the charge and he shall be informed of the following rights:

the right not to present evidence or answer questions;
the right to retain a defense attorney of his choice who may be present at questioning and the right to a defense attorney at no cost in such cases as provided by this Code;
the right to comment on the charges against him, and to present all facts and evidence in his favour, and that, if he does so in the presence of the defence attorney, the statement made shall be admissible as evidence at the main trial and may, without his consent, be read and used at the main trial;
that during the investigation, he is entitled to study files and view the collected items in his favor unless the files and items concerned are such that their disclosure would endanger the aim of investigation;
the right to an interpreter service at no cost if the suspect does not understand the language used for questioning.

The suspect may voluntarily waive the rights stated in Paragraph 2 of this Article but his questioning may not commence unless his waiver has been recorded officially and signed by the suspect. To waive the right to a defense attorney shall not be possible for the suspect under any circumstances in case of a mandatory defense under this Code.

In the case when the suspect has waived the right to a defense attorney, but later expressed his desire to retain one, the questioning shall be immediately suspended and shall resume when the suspect has retained or has been appointed a defense attorney, or if the suspect has expressed a wish to answer the questions.

If the suspect has voluntarily waived the right not to answer the questions asked, he must be allowed to present views on all facts and evidence that speak in his favor.

If any actions have been taken contrary to the provisions of this Article, the Court’s decision may not be based on the statement of the suspect.

Chapter 21 The Main Trial

Section 6 Commencement of the Main Trial

Section 259

Instructions to the Accused

(2) The judge or the presiding judge shall advise the accused that he may give a statement in the capacity of a witness during the evidentiary proceedings, and if he decides to give such a statement, he shall be subject to directly- and cross-examined as provided for in Article 262 of this Code, i.e. cautioned and instructed as provided for in Article 86 of this Code. In that case, the accused as witness shall not take an oath or affirmation. as a witness. The Court shall give the accused the opportunity to the accused to consult about this right with his defense attorney beforehand, and if he does not have a defense attorney, the Court shall carefully assess whether the legal assistance he needs a defense attorney is necessary.

Chapter 23 Regular Legal Remedies

Section 1 Appeal Against the First Instance Verdict

Article 297

Essential Violations of the Criminal Procedure Provisions

(1) The following constitute an essential violation of the provisions of criminal procedure:

(d) if the right to defense was violated;

Chapter 26 Juvenile Procedure

Section 1 General Provisions

Article 343

Mandatory Defense

A minor must have defense attorney from the outset of the preparatory proceeding.
If the minor does not understand the language in which the criminal proceeding is being conducted, the Court shall appoint an interpreter for him.

If in the cases referred to in Paragraph 1 of this Article the minor himself, his legal
representative or relatives do not retain a defense attorney, the judge for juveniles shall
appoint him ex officio.

Chapter 27 Proceeding Against a Legal Persons

Article 377

Representative of the Legal Person in the Criminal Proceeding

Every legal person must have a representative in the criminal proceeding and the
representative is authorized to undertake all actions for which, under this Code, the suspect or
the accused and the convicted person are also authorized.

A legal person may have only one representative in the criminal proceeding.

The Court shall each time verify the identity of the representative and his authority to
represent the legal person.

Chapter 27 Proceeding Against a Legal Persons

Article 382

Defense Attorney of the Legal Person in the Criminal Proceeding

A legal person may have a defense attorney in addition to a representative.

A legal person and a physical person, as well as a suspect or an accused may not have the same defense attorney.