8
SMAJIĆ v. BOSNIA AND HERZEGOVINA DECISION
a waiver to be effective it must be shown that the applicant could reasonably
have foreseen the consequences of his conduct (see Idalov v. Russia [GC],
no. 5826/03, § 173, 22 May 2012; Sejdovic, cited above, § 87; and Jones
v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). The right
to counsel, being a fundamental right among those which constitute the
notion of a fair trial and ensuring the effectiveness of the rest of the
guarantees set forth in Article 6 of the Convention, is a prime example of
those rights which require the special protection of the “knowing and
intelligent waiver” standard established in the Court’s case-law
(see Dvorski, cited above, § 101).
21. Turning to the present case, the Court notes that the Appellate Court
and the Constitutional Court examined this complaint and established that
before the questioning of 12 March 2010 the applicant was informed of his
rights and signed a form stating that he did not require legal assistance
(see paragraphs 4, 8 and 11 above). The Constitutional Court furthermore
emphasised the fact that that questioning had not resulted in any specific
incriminating evidence against the applicant. Looking at the overall fairness
of the proceedings, it concluded that the applicant’s right to legal assistance
had not been restricted (see paragraph 11 above). The Court does not see
any reason to disagree with these findings. It further notes that there is no
suggestion of any compulsion having been exerted in the course of the
questioning.
22. As to the applicant’s claim that Mr Mulahalilović was misinformed
of his whereabouts when he phoned the police (see paragraph 7 above), the
Court notes that the applicant did not ask for Mr Mulahalilović or any other
lawyer to be present at the questioning of 12 March 2010. Furthermore,
there is no indication in the case file as to whether at that time
Mr Mulahalilović was already the applicant’s lawyer. The applicant did not
indicate that he, or a member of his family, had given a power of attorney to
Mr Mulahalilović prior to his arrest on 12 March 2010 (contrast, mutatis
mutandis, Dvorski, cited above § 90). In these circumstances, the Court
considers that the applicant, who was a lawyer himself, unequivocally
waived his right to legal assistance.
23. Therefore, this complaint is manifestly ill-founded and must be
rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Alleged arbitrary interpretation of domestic law
24. The applicant argued that the domestic courts had arbitrarily
interpreted the relevant domestic law in finding that his actions had resulted
in criminal liability for the offence of inciting national, racial and religious
hatred, discord or intolerance.
25. The Court reiterates that it is not its task to deal with alleged errors
of law or fact committed by the national courts unless and in so far as they
may have infringed rights and freedoms protected by the Convention – for
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