“Equality of arms” and the right to a hearing

The right to a fair trial also extends to the principle of “equality of arms”, according to which each party to the proceedings must have a reasonable opportunity to present his/her case in such a manner and under such conditions so as not to be essentially neglected in comparison with the other party to the proceedings.¹³⁰¹ This type of protection shall be guaranteed also in the previous criminal proceedings,¹³⁰² and shall also extend to the appellate instances.

Equality of arms in the evidentiary proceedings is one of the most important elements of this principle. First and foremost, it presumes that the parties take part in the evidentiary proceedings, in order to be heard; the court must make sure to eliminate procedural obstacles preventing a party from presenting its case.¹³⁰³ In doing so, the court has the right of discretion when it comes to allowing¹³⁰⁴ certain evidence and its assessment.¹³⁰⁵ Certainly, the court must make sure that no party to the proceedings is privileged; there is not, however, an obligation on the part of the court to establish a certain rapport and proportion between evidence which the parties have requested to be presented and evidence which the court has allowed to be presented.¹³⁰⁶ Any error on the part of the court in the evidentiary proceedings need not necessarily constitute a violation of the right to “equality of arms”. What is necessary is for that error to actually bring one of the parties to the proceedings into an unfair position, i.e., to disturb the equality of arms. Thus, certain irregularities in refusing certain evidence,¹³⁰⁷ or in presenting certain evidence¹³⁰⁸ do not automatically constitute a violation of the principle of “equality of arms”. Similarly, if the court fails to forward an appeal to the other party to the proceedings, and the appeal is dismissed, such an error shall be irrelevant.¹³⁰⁹ Moreover, the principle of “equality of arms” shall not be disturbed if the reply to the appeal is not forwarded to the appellant, as there is no legal obligation to do so.¹³¹⁰

If the indictment is based on the statement of a witness, and the accused fails to request the hearing of the respective witness, no violation of the principle of “equality of arms” shall exist even if it is proven that the prosecution has concealed facts related to the availability to the prosecution authorities of such witnesses who may have been key witnesses for his/her defence.¹³¹¹ Nevertheless, it would not be acceptable if the court heard seven witnesses for the prosecution, and no witness whatsoever for the defence, albeit it turned out that some of the witnesses who had been refused were important for establishing the correct facts of the case.¹³¹²

In relation to the right to a hearing, the principle of “equality of arms” shall apply in the same way in both the first instance proceedings and the appellate proceedings. However, it is necessary to view the proceedings as a whole, as well as the role of the very appellate proceedings in an individual case. Should a public hearing be held in the first instance proceedings, ruling out the possibility to hold a public hearing in the second instance proceedings might be justified if it concerned a problem related to the application of legal regulations, and not the establishment of the facts of the case.¹³¹³ Therefore, it is not necessary for the accused or his/her defence counsel to be present at all times in the appellate proceedings.¹³¹⁴ However, if the appellate proceedings concern the establishment of facts, then Article 6, paragraph 1 in conjunction with Article 6, paragraph 3(c) of the ECHR shall be violated if the accused, despite the request filed, fails to attend the session of the second instance criminal panel.¹³¹⁵ Therefore, the final decision on the obligation of participation in the second instance proceedings shall be assessed on the basis of the very regulation of the respective proceedings under the domestic regulations and circumstances of each individual case. The failure on the part of the accused to take part in the proceedings requires, first and foremost, a legal basis;¹³¹⁶ the right to “equality of arms” shall be violated if the session of the second instance criminal panel is attended by the representative of the prosecution, and not by the representative of the defendant, i.e., his/her defence counsel.¹³¹⁷ Pursuant to Article 371 of the Law on Civil Procedure of the RS, there is a provision entitling the president of the panel or the very panel of the RS Supreme Court to summon the accused and the accused’s defence counsel to attend the session of the panel. Thereby, the Constitutional Court interprets the notion “session” as “a public hearing” within the meaning of Article 6, paragraph 1 of the ECHR.¹³¹⁸ The Human Rights Chamber for BiH, unlike the Constitutional Court, deems that making a distinction between the notions “session” and “hearing, i.e., public hearing” before the court is justified in light of Article 6, paragraph 1 of the ECHR, as these two legal terms have different aims to follow under the law: at a “session”, one discusses legal issues, while at a public hearing one establishes a substratum of the facts.¹³¹⁹ However, within the time limit provided for filing an appeal, the accused must request to attend the session of the second instance court. In order to do so, he/she must be informed of the session to be held. If the accused fails to request this, and the first instance court has presented sufficient evidence for the correct establishment of the facts of the case, his/her absence at the session shall be in compliance with Article 6 of the ECHR.¹³²⁰ According to the aforementioned, legal restrictions on the participation of the accused in the appellate proceedings (such as, for instance, pursuant to Article 371 of the RS Criminal Procedure Code) can only be partially justified from the perspective of Article 6, paragraph 1 of the ECHR. If the accused requests the review not only of the application of relevant positive regulations, but also of the established facts of the case, that is of the sentence determined in the first instance proceedings, the accused or his/her defence counsel must be guaranteed the right to a public hearing in the second instance proceedings regardless of whether he/she has filed a request previously requesting so. The exception shall exist in the case when the accused or his/her defence counsel have forgone explicite such right.¹³²¹ An additional criterion for judging whether the accused should be guaranteed the right to participate in the second instance proceedings would be the degree of the punishment pronounced in the first instance proceedings: the graver the punishment, the greater the interest of the accused to be present during the second instance, i.e., the appellate proceedings, in order to have the possibility to defend his/her rights.¹³²²

A violation of the right to “equality of arms” committed at an earlier stage of the proceedings may be redressed at a later stage of the proceedings. Should a violation of the right of the accused occur at a preparatory stage of the criminal proceedings in relation to proving his/her innocence, and the person is fully acquitted in the first instance proceedings, it would be possible to say that the first instance proceedings were a legal remedy for all the omissions made by the investigating judge during the pre-trial investigation.¹³²³ Also, a violation of this right in the appellate proceedings (due to a denial of the right to a public hearing) may be redressed in the procedure on a revision appeal.¹³²⁴

The defendant may waive his/her rights referred to in Article 6, paragraph 1 of the ECHR. However, the waiver might not be accepted solely on the grounds of the fact that the accused had failed to make a timely request from the criminal panel of the second instance court to be notified on the session of the panel. Such a conclusion might not be admissible in particular if the defendant submitted a request to attend the session, only after the time limit laid down by law had expired.¹³²⁵