Modern and independent B&H judiciary

Publisher:

Law Institute in Bosnia and Herzegovina

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Team of authors:

Muhamed Mujakić, PhD, Dragomir Vukoje, PhD, Monika Mijić, LL.B, Arben Murtezić, PhD

Reviewers: Academician Borislav Petrović and Academician Mirko Pejanović

Editor: Nedim Hogić, LL.M

Co-editor and proofreader: Adisa Busuladžić, MA

Word processing: Ivica Jukić

Policy Brief was produced within the Project: “Project for Enhancement of Euro-Atlantic Reforms (PEER)”/”Projekt za jačanje euroatlantskih reformi (PEER)” and supported by the United States Embassy in Bosnia and Herzegovina.

The views in Policy Brief do not necessarily reflect the views of the United States Embassy in Bosnia and Herzegovina, but authors’ views.

Excerpt from reviews

Excerpt from Academician Borislav Petrović’s Review

By choosing the title “Background of the Problem“, the authors wished to suggest that they would deal with the causes of the topic/issue they researched. Initially, they put the focus on the affirmative segments related to the formation of the highest judicial instances in Bosnia and Herzegovina, such as the Court, the Prosecutor’s Office, and the establishment of the HJPC and the Office of the Disciplinary Prosecutor. This indicated that the judicial system in BiH should have been reached the required level by now. However, that has not happened. On the contrary, today we have a judiciary burdened with many problems, the most questionable of which is its independence. In the elaboration of this subheading, it is evident that the authors chose the correct methodological approach that made it possible for them to get a comprehensive insight into the issues they researched. This is indicated by comparative considerations of various causes that have led to ineffective judiciary. The authors also discuss its management, conflict and damaging policies, as well as negative public perception. Such negative synergies simply do not leave enough space for the judiciary in BiH to function properly. As suggested in this critical review, in my opinion, the HJPC is particularly inefficient.

Key Reform Issues Today” is, in fact, a central part of this text. Right at the beginning, the authors rightly pointed out that the way of financing the judiciary in our country is not good and that it contributes, to a certain extent, to its dependence on fragmented budget areas, particularly in the Federation BiH, where a significant part of budget policy is created at the cantonal level. Therefore, the recommendation of the authors for “the judiciary to be financed by a single budget, with the decisive role of the HJPC”, seems very good to me, for its financial independence would greatly contribute to the functional independence of the judiciary. But I think it would have to be a different HJPC, as can also be deduced from this text. Furthermore, one of the factors contributing to this situation is the position of the Office of Disciplinary Prosecutor, whose independence is questionable, while being of utmost importance. When we put this in the context of previous statements, and when it comes to our judiciary, we might conclude that none of independence standards has been met.

Having analyzed and evaluated this text of a group of researchers, my opinion is that this is an extremely high-quality, responsible and comprehensive approach. I believe this requires no extensive review, because any further elaboration would go beyond the framework of a regular review.

Excerpt from Academician Mirko Pejanović’s Review

Judicial reform in Bosnia and Herzegovina is an integral part of the comprehensive reform that is ongoing in Bosnia and Herzegovina on its path to the European Union integration. In this context, the research team started from the position that the judiciary in Bosnia and Herzegovina is far from the European standards. There is a widespread perception of a high level of corruption throughout the government and public institutions in Bosnia and Herzegovina in the course of its post-socialist transition. The judiciary, as the third branch of government, has the greatest role and responsibility in sanctioning crime and corruption and creating legal security.

The research team formulated several recommendations for judicial reform in Bosnia and Herzegovina. The focus is placed on judicial institutions at the level of the State of Bosnia and Herzegovina, and the establishment of new ones such as the Supreme Court of BiH.

Taken as a whole, the insight of the research team into a modern and independent judiciary and their recommendations for the reform can be useful to all the employees in the institutions of the judicial system in Bosnia and Herzegovina.

1. Executive summary

Despite nearly three decades of various reforms implemented under the influence of domestic and international actors, the justice sector in Bosnia and Herzegovina is still undergoing the reform process with the main goal of ensuring its independence, impartiality, professionalism and overall efficiency. In this Policy brief we argue that the main problem stems from the interaction of the following factors: more demanding standards of the normative ideal of the justice sector imposed by external reform promoters, namely the United States of America and the European Union; inability of local political actors to honor the justice sector independence, and the lack of competencies and unwillingness of some judicial authorities to perform the duties assigned to them. The interaction of these three factors leads to a perception that the justice sector is not reliable branch of the government and cannot serve as a barrier to irresponsible behaviors for the two remaining governmental branches, nor can it be considered an impartial social arbiter. However, we are of the opinion that the justice sector in Bosnia and Herzegovina is a better part of the institutional framework, or, at a minimum, not as bad as the rest of it, and, as such, the justice sector in Bosnia and Herzegovina is capable of achieving all proclaimed objectives, with a few modifications and a much greater resolve in safeguarding its independence.

2. Background

In the process of creating a modern justice sector, Bosnia and Herzegovina was, in many aspects, a pioneer and a front runner of reforms. High Judicial and Prosecutorial Council of Bosnia and Herzegovina (hereinafter HJPC BiH) was first established through two entity authorities (2003), and then as a single institution at a state-level.

As such, it leveled up, or, perhaps, was at one point a step ahead of similar projects implemented in the countries that joined the EU during the 2004 EU enlargement. The establishment of The Court of BiH and the Prosecutor’s Office of BiH as the institutions responsible for prosecuting war crimes, corruption and organized crime can be compared to similar institutions specializing in anti-corruption missions and fighting organized crime in certain EU member states. The procedures of appointing and nominating judges and prosecutors in BiH in 2003 were of the highest quality in the Western Balkan countries. In the neighboring Serbia a similar process was completed in 2009, followed by a collective complaint filed by judges removed from the office against the State, while the similar process is yet to be completed in Albania. Introduction of the institute of an accusatorial procedure into the criminal procedural law, and streamlining of civil procedures were the processes that had completed some five to ten years before their completion any other regional jurisdiction. However, not even to this day has Bosnia and Herzegovina established, what in most countries is the highest court within the hierarchy of courts, i.e. the High Court. Instead, the BiH Constitutional Court has many time acted as the de facto Supreme Court of BiH and pointed out to omissions of various judicial bodies in BiH as such, in an attempt to harmonize judicial practices, particularly in cases requiring the application of the European Convention on Human Rights, and in accordance with constitutional responsibilities embedded in the BiH Constitution. Joint sessions of the Supreme Courts of both entities and the informal practice of mutual citing of their decisions, have resulted in the improvement of the harmonization of judicial proceedings. The establishment of the Judicial Practice Harmonization Panel in 2014 provided a continual dialogue between the highest judicial instances of both entities and enabled the creation of the platform for the harmonization of judicial practice and the discussion on other common issues. In addition, such exemplary judicial practice of BiH Constitutional Court led to improved and more harmonized judicial practice amongst ordinary courts. The establishment and work of the Office of the Disciplinary Counsel within the HJPC BiH, with the main task of investigating the allegations of misconduct among judges and prosecutors, was also during the time of its formation, the best practice example in the region. The question then arises why it is so that BiH judicial community does not enjoy the trust of either domestic or international public, and why it’s perceived as still falling short of the EU standards? And more importantly: what steps should be taken in order for the justice sector would rebuild its reputation?

We argue there are two main reasons for the decline of public trust in judicial institutions. The first reason lies in extremely high expectations from the justice sector in BiH, despite all the challenges it has been facing. What we mean by ‘high expectations’ is a wide-spread belief that almost all societal problems, i.e. corruption, mistrust of foreign investors, lack of improvement in the EU integration process and general lack of responsibilities of the other two branches of government (legislative and the executive) – all have their origins in a dysfunctional justice sector. Direct relation between the justice sector and the abovementioned issues notwithstanding, it is important to point out that neither the justice sector bears sole responsible for those issues, nor can it be deemed responsible for the creation of a political and legal system conducive to corruption. Justice sector is not responsible for accelerating the process of outstanding debt payments or enforcement of other contractual arrangements stemming from a set of social and legal contracts, nor it takes part in creating the budget planned for those activities. As it possess no state monopoly on violence and no budget planning capabilities, the justice sector is in an unenviable position which creates its bad reputation. What is of utmost importance to highlight is the fact that overall bad reputation of the BiH justice sector has been rooted in various processes that are generally beyond the authority, duty and control of this particular sector.

The second reason is the model of jurisprudence based on judicial autonomy meant to be secured by the creation of the HJPC BiH. The same model was introduced in several other countries throughout the 1990s. The model has proved to be largely insufficient in shielding judges and prosecutors from political influence. When the councils were first established, there was a wide-spread belief that the very fact they were staffed with judges and prosecutors, represented the bulwark of independence adequate to shield them from all societal ills. However, as the events in Poland and Hungary have clearly demonstrated, the judicial and prosecutorial councils cannot fully protect the justice sector’s autonomy, nor can they prevent nepotism and corruption. The power which had earlier rested with to the executive and legislative branches of the government has now been transferred to the presidents of the courts and chief prosecutors, bestowing upon them the power to assess and evaluate the work of other judges and prosecutors. Due to high expectations, these glitches in the system of judicial autonomy often result in disappointments whenever it has been deemed the HJPC BiH deviates from the highest norms of jurisprudence.

It can be concluded that the HJPC BiH does not adequately respond to the challenges of judicial autonomy. The institute of judicial autonomy is based on a supposition that all justices and prosecutors harbor undisputable trust in all council members and the council as institution stands for court autonomy, while general public perceives as non-biased. This is simply not the case. Also, legal interventions initiated by the HJPC are rarely if ever supported by executive and legislative bodies in a timely manner. This indicates the lack of coordination between different branches of the BiH government. This is further confounded by inadequate functioning of the Secretariat of the HJPC which does not provide efficient and adequate service to HJPC members in their analyses and search for intricate legal and budgetary solutions.

Since the above stated prerequisites were not adequately met, the HJPC remains exposed to constant public scrutiny which is unprecedented, when compared with other state-level regulatory authorities; the HJPC has been continually lambasted by domestic and foreign actors; due, in part, to live broadcasts of HJPC sessions made available by various local media; those live broadcasts undoubtedly contributed to transparency of HJPC’s work; however, they have also left a door wide open for hammering public criticism.

3. Essential questions about the reform today

Bosnia and Herzegovina’s justice sector must restore its reputation in the public eye and among relevant international actors. Relevant international actors form their opinions on the basis of opinions and recommendations formulated by international organizations’ and experts’ reports (the Experts’ Report on Rule of Law issued in Bosnia and Herzegovina in December 2019, known as ”The Priebe Report”, OSCE’s reports on the monitoring of corruption cases and war crimes before courts, recommendations made by the Council of Europe’s Committee – GRECO, peer reports and others). Those reports are public domain, and, as such, constitute the basis of their formed opinions. Sharp political divide in BiH has resulted in opinion-making based primarily on media sound bites and remains out of justice sector’s control. However, the justice sector should be able communicate to the media its successes and concerns about the issues the public is most interested in.

Financial independence of judicial institutions and Public Outreach as the Way of Presenting Important Issues

Improving public outreach of the justice sector would contribute to a better communication with general public and other stakeholders. This fulfills two major goals: firstly, it properly communicates the role of the courts in a democratic society, and secondly, it engages the public opinion and the stakeholders with regard to certain issues that have remained neglected in our social and political life. While sensitizing public opinion is actually possible to achieve in a wide range of questions related to the functioning of the judicial governmental branch, the issue of judicial institutions’ funding remains a tricky one. Namely, the budgetary planning treats the judicial institutions same as any other on-budget institution. As a result, the availability of the justice sector personnel suffers. For example, the HJPC’s Annual Report for 2019 suggested the freeze of full-time employees hiring, while the courts in the Federation of BiH have mostly been dependent on the funding provided by cantonal ministers of finance. All of this not only contrasts with the recommendations of the Judicial and Prosecutorial Councils about the courts budgets, but also has an adverse impact on solving the problem related to poor efficiency of commercial courts (repeatedly ranking BiH by this criterion as the lowest ranked in the region in the World Bank’s Doing Business), and the issue of inadequate capacity of Cantonal and District Prosecutors’ Offices (as underlined in the OSCE Assessment of corruption cases before courts in BiH).

While the local authorities’ decisions on funding the justice sector are often inadequate, the international community continues to invest in modernization of the judicial system and its reform, mostly guided by its own priorities rather than the priorities of the justice sector. In order to achieve desirable results from the investments made by the international community, it is necessary for the HJPC to make a detailed cost-benefit analysis to necessary judicial reforms which would also help direct both donors’ funds and domestic allocations more efficiently.

We recommend that the justice sector be funded out of a single budgetary line with the HJPC playing a decisive role in determining the quality of the proposed financial solutions. However, we are of the opinion that the presidents of courts and the HJPC should both keep open its communication with decisions makers, and openly air these issues in public in order to sensitize the public and decision makers to the fact that Courts and Prosecutor’s Offices cannot efficiently perform their tasks without adequate funding. This way, the justice sector will be capable to overcome one of the problems mentioned in or our introductory remarks – that of the perception of justice sectors’ exact responsibilities. We therefore propose creating a single budget for the entire judicial system in Bosnia and Herzegovina with the HJPC being responsible for its creation and management. There can be no true independence of the justice sector without its financial independence.

Disciplinary proceedings and appointment of judges and prosecutors

In line with current practices, the Office of the Disciplinary Counsel (hereinafter the ODC), an office inside the HJPC, performs prosecutorial functions concerning the alleged misconduct of the judges and prosecutors. The ODC is fully autonomous and independent with respect to how complaints are investigated and, on the issue whether a complaint will be filed or not as a result of an investigation. However, functional dependency of the Office of the Disciplinary Counsel on the HJPC Secretariat, and the way the Chief Counsel of the Office of Disciplinary Counsel is appointed, make the entire institution highly questionable. For those reasons the European Commission, upon their expert analysis of the disciplinary proceedings, made recommendations (Peer Review from 2016) suggesting that the ODC should become an independent body with its own budget, separate headquarters and administrative support.

In the process of discussion of the ODC’s position and its future status, it is important to keep in mind the recommendation given by the European Network of Councils for the Justice sector Report stating that ”There should be a separate body responsible for receiving and administering complaints, independent of the Ministry of Justice and answerable only to the Justice sector”. In other words, separation of the ODC from the HJPC must not lead to the former falling under other two branches of the government. A possible solution to this problem might be the establishment of a separate institution that would have an independent board that would appoint the Head of the ODC, similar to the authorities that evaluate and appoint the heads to the law enforcement agencies. Also, we note that the decisions of the Disciplinary Panels must be better explained as to achieve appropriate development of the practice of the ODC and to ensure more rigorous standards within this field.

As indicated in the recommendations dealing with the issue of appointing judges and prosecutors, the proceeding conducted by the ODC formally satisfies all standards of independency, but is facing two main problems. The first one is related to the perception that the HJPC members are trading in influence in the appointment of justice office holders, and the second one that the ethnic criteria is of major significance for the candidate’s appointment. Certainly, influence trading is a criminal offence within the category of criminal acts of corruption and should, as such, be taken seriously. However, it seems that this problem is more dependent on the quality of the HJPC members than on the quality of standards of the appointment of justice office holders. Namely, if the HJPC mostly consists of judges and prosecutors who have been directly elected, based upon their individual candidacy, then a quality selection of the individuals representing judges and prosecutors in the HJPC become the key element in the evaluation of their work performances. If this process is conducted in such a transparent way which encourages judges and prosecutors to openly and resolutely declare their candidacies and then conduct campaigns to join the Council, it would enable the best candidates to be selected so much so that trading in influence becomes pointless or kept at a minimum. As for the Constitutional provisions requiring the respect of the criteria of ethnicity in the appointment of judges and prosecutors, those criteria should not take precedence over professional competences.

War crimes

The War Crimes Processing Strategy for the processing of the most complex and high-priority war crime cases by the judicial institutions in BiH by the year 2023 has, process been adopted after a prolonged deliberation. However, serious doubts are expressed over the possibility of this deadline to be met. Implementation of this Strategy requires that all authorities in BiH make coordinated effort: not only the justice sector but also the executive branch of the government, especially with regard to providing proper financing of those efforts. It is therefore important, as previously stated, that the HJPC continually advocates for those efforts and openly confronts those who undermine them. Another problem is the excessive length of judicial proceedings in complex cases which, in correlation with judges’ quotas, leads to the so-called fragmentation of cases. This phenomenon refers to the situation where regardless of a body of evidence regarding a variety of criminal offences made in one area, the judges do not conduct the proceeding or the investigation of all the suspects or the accused, but they ”fragment” evidence in order to bring simpler forms of indictment.

It is important for judges to utilize their authority in case management to reduce the length of proceedings. In addition, the Prosecutor’s Office of BiH should make better planning of expenditures in order to reduce difficulties associated with attendance of witnesses in criminal proceedings if their testimony is postponed for the following day. It is therefore necessary to review the prosecutorial caseload and determine, in line with the existing evaluation criteria, if there are reasons for the fragmentation of the indictments and assess the damage caused by this practice. Also, the caseload of the BiH court judges in charge of war crime cases needs to be reconsidered, given that it is currently 5 cases per judge, while the prosecutors at the BiH Prosecutor’s Office have 4 cases each.

Organized crime and corruption

Experience of the countries that have run large anti-corruption campaigns against political corruption (Brazil, Romania and Italy) demonstrates that the key role in fighting corruption belongs to specialized courts as well as to the prosecutorial teams which act in collaboration with the specialized police units. The progress on this front has been incremental; the idea of establishing a specialized prosecutor’s office on the level of FBiH has become a hostage of political skirmishes between those who think it should not be established, those who believe that it should be and those who consider that it is more important to strengthen specialized units within the cantonal prosecutors’ offices to fight against corruption. The Structured dialogue held under the auspices of the European Union failed to clarify the issues of the scope of jurisdiction of the Court of BiH and of the Prosecutor’s Office in this matter.

We concur with the Constitutional Court of BiH Decision U-16/08, which states it is that it is utterly pointless to strive to establish a precise, strictly defined scope of competencies for the Court of BiH, and of the Prosecutor’s Office in each and every case, given the state complexity of BiH. We believe that the current judicial practice of the Court of BiH provides adequate guidelines on which police agencies and prosecutors’ offices may deduce specific competences of the court.

Another problem in this field is a reactive, – rather than proactive – action of the Prosecutor’s Office in dealing with criminal charges, i.e. reports on committed criminal offences submitted by citizens, institutions or police agencies. Simply put, the corruption threat in BiH requires an approach where the Prosecutors’ Offices lead the investigative effort against the corruption networks in different BiH institutions. Our judicial system has abandoned the idea of a prosecutor as a legal representative of the prosecution, primarily taking care of the quality of evidence and presentation of legal arguments at the court. Instead, the prosecutor now not only guides the investigation, but also conducts it. This requires a large amount of analytic capacities within the Prosecutor’s Office and the continuing education of prosecutors for the purpose of better understanding the corruption networks existing in the society. Corruption allegations against high level office holders before the judicial institutions and their rare resolution at court, gives the impression of the justice sector being weaponized in political skirmishes. The Prosecutors’ Offices are aware of this perception and their actions should not, therefore, be directed at singling out certain political actors. The decisive role in evaluating circumstances under which these allegations are made should belong to Chief Prosecutors and Courts Presidents.

Professional training of judges and prosecutors

The Priebe Report recommends the establishment of the Judicial Academy as an institute in charge of education of candidates for judicial and prosecutorial positions. In this way the problem perceived as inadequate education of candidates would be resolved. We consider that before this solution is adopted, it is necessary to define the purpose of such Judicial Academy, given already existing Centers for education of judges and prosecutors. The Judicial Academy, as the institution is specific for countries with continental Europe law with so-called career justice sector where candidates for judges and prosecutors join the justice sector at early stage of their careers. On the other hand, the Centers for education of judges and prosecutors are specific for countries with Anglo-Saxon legal systems and for hybrid (mixed) legal systems. In those countries, as a rule, judges are not appointed at an early stage of their career but at later stages since the position of the judge is perceived as a matter of personal prestige rather than career commitment. For this reason, judges in this system are not necessarily appointed out of the best students – members of the Judicial Academy – but on the basis of reputation that they enjoy as lawyers and legal experts. We consider that there are supporting arguments for both a) keeping the existing model (thus preventing the appointment of judges and prosecutors with little practical experience, and securing appointments based on personal quality of an individual), and b) the establishment of the Judicial Academy (with the purpose of aligning the practice with EU practices)

Therefore, both solutions are acceptable but both require careful deliberations by decision makers in order to make everyone are aware of their advantages and disadvantages. It is also recommended that all the judicial office holders having large autonomy in choosing their training courses but also attend mandatory trainings on ethics, human rights and the integrity of judges and prosecutors. In that respect, we welcome the news about the prospect of establishing the Integrity Department within the HJPC.

The highest judicial authorities

The judicial system of BiH differs from most of the European judicial systems in that it still has no Supreme Court or a similar highest ranking judicial body which should harmonize judicial practices and be the court of final appeal. For this reason most domestic and international experts share the opinion that it is necessary to establish the Supreme Court of BiH in order to guarantee court practice harmonization. However, opinions differ with respect to the dilemma whether it is sufficient to establish the Supreme Court of BiH anew, or whether the Entities’ Supreme Courts should merge into one. The first scenario would ensure independence in the second instance proceedings upon ruling of the Court of BiH, while the second scenario would include not only the aforementioned but also include the jurisdiction of the court of final appeal for the rulings rendered by Cantonal i.e. Entities’ District courts.

In line with the recommendations of the Structured Dialogue on Justice between the European Union and Bosnia and Herzegovina and Commission Opinion on Legal Certainty and Independence of Justice sector in Bosnia and Herzegovina of June 2012, the representatives of the Court of BiH, the Supreme Courts of the Entities, and the Appellate Court of Brčko District of BiH in April 2014, adopted the Rules of the Judicial Practice Harmonization Panels. The Panel harmonizes positions and provides legal opinions where legal provisions are harmonized but their interpretation differs, it initiates legislative amendments if necessary where legislative solutions are not harmonized and, thus, result in inequality of citizens before the law. The panel may be used to share experiences and opinions in the interpretation and application of laws. Since this is the only currently active platform for the harmonization of judicial practice in BiH, we think it should be further improved and strengthened.

It is important to state here that the structure of the existing Court of BiH was not the result of the constitutional reform or copying of the legal solutions from other complex states but it has risen from the need to establish a forum for resolving issues related to the work of BiH institutions (the Administrative Division), and solving war crime cases and the most complex criminal cases (the Criminal Division). This led to specific jurisdiction of the Court of BiH which does not rely on the constitutional structure of the state, but on the specific law sources of the one hand, and specific issues, on the other. Weaknesses of this approach are visible today; no ordinary court has supervision over the judicial practice of the Court of BiH, this supervision is done by the Appellate Division of the Court. In its reaction to these circumstances, the Constitutional Court of BiH, acting upon citizens’ appeals in line with the implementation of the European Convention on Human Rights at ordinary courts, has developed rich jurisprudence, acting as de facto Supreme Court of BiH in those instances, while de iure and statutory, acting out of scope of its jurisdiction. However, as the Constitutional Court of BiH has significantly reduced the amount of revised decisions over the past decade, in an effort to limit its scope to the issues related to fundamental human rights and freedoms, and related violations in procedural legislation of BiH and the Entities. Therefore, Bosnia and Herzegovina has basically been left without the highest judicial body. Due to these reasons and having in mind the necessity of meeting the requirements of the European integration processes, we argue for the establishment of the Supreme Court of BiH is de lege ferenda necessary step forward.