Bosnia and Herzegovina: dissuasive legal costs
The Constitutional Court of Bosnia and Herzegovina has dismissed the request for a review of the civil procedure laws on court fees, made by twelve members of parliament in collaboration with TRIAL International. Currently, citizens who sue state entities and lose their case must cover the expenses of public prosecutors according to the same tariff applied to private lawyers, thus discouraging vulnerable people, including victims of war crimes.
It is a known rule in civil proceedings that the party who loses a litigation bears its own costs, and also those of the adverse party. But when citizens, particularly vulnerable groups such as victims of war crimes, find themselves on the losing side of a verdict, the fees become a major challenge. The costs of the public attorneys are calculated in the same way as the costs of lawyers (including lawyer’s fees), all in accordance with the profession’s fee and remuneration tariff. The costs for unsuccessful complainants are therefore very high.
In an attempt to resolve this problem, twelve members of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina submitted a request for a revision of the Law on Civil Procedure to the Constitutional Court last year. The latter has just issued its decision and rejects their request, considering that these provisions are in accordance with the Constitution and international standards. In its view, only the relevant legislature is competent to determine the rules and principles of civil procedure, including the reimbursement of expenses.
“The high cost of these fees is particularly problematic for victims who have been traumatized for many years because of the horrors they have experienced. They still have to endure additional psychological harm”, said Adrijana Hanušić Bećirović, TRIAL International’s Senior Legal Advisor. “International and regional standards, however, require states to provide their citizens with effective remedy and minimize the risk of re-traumatization of victims of human rights violations.”
For Nedim Ademović, a lawyer at the European Court of Human Rights who also supported the request for review before the Constitutional Court, “because of the fear of large expenses, citizens are not guaranteed the full right to access the court”. In his view, this practice constitutes both a violation of the right to property and a violation of constitutional principles such as the “rule of law” and the principle of the single market. “It is absurd that public attorneys are enabled an identical system of calculating the fees and remuneration for lawyer’s work while they are not subject to the same charges and are financed by public budgets.“
This setback does not discourage the Bosnian office of TRIAL International, which intends to continue working with parliamentarians to amend these legal provisions.