Bosnia Under Pressure to Speed up Appeals Court

Brussels wants Bosnia to get a move on in establishing a state appeals court – but opinions in the country are divided on whether such a court is strictly necessary or financially justifiable.

On the other hand, some say establishing a special Appellate Court solely for the Court of Bosnia and Herzegovina is neither necessary nor economically justifiable.

 They believe that objections to the way the State Court functions can be corrected in other ways.

The initiative to establish the Appellate Court was supported in 2008 by an ad hoc working group, and recently the issue has again arisen within the scope of structural dialogue on judicial reform in Bosnia.

The European Commission notes that six months ago it prompted Bosnia’s Ministry of Justice to implement the conclusions of this working group. At the last meeting on judicial reform in November 2011, Brussels voiced concern on the lack of progress over this issue.  

“We expect the conclusions adopted in 2008 to be submitted in parliamentary procedure as a draft law before the next meeting of structural dialogue,” Andy McGuffie, a spokesman of the EU delegation to Bosnia, said.

According to Jusuf Halilagic, State Justice Ministry Secretary, the draft law on the Appellate Court is ready for submission to relevant institutionsin the coming days.

It should be submitted to parliament by March, when “the meeting on structural dialogue will probably be held,” he added.

The ministry official says the law has already been prepared, but because of the complex procedure and the need to harmonize stances to ensure adoption by parliament is secured, it has not yet been submitted.

“At this point we have several disputable matters, such as its authority and the number of judges, but this is not yet for the public,” Halilagic said.

He recalled that separation of the appeals procedure had been the main objective in establishing the institution.

“It is not common practice… in the world, that one court decides both the first-instance and the second-instance procedure,” Halilagic noted.

But Medzida Kreso, President of Bosnia’s State Court, is against establishing a court that would be an appellate court solely concerning the decisions of the State Court and without extended jurisdiction over appeals to decisions of entity courts.

“The establishment of the Appellate Court is not necessary since the objections [to it] are mainly about the manner of the appointment and allocation of judges in the Appellate Division, which can be easily resolved by changes to the law,” she said.

“We have started an initiative for changes that would imply that the judges of the Appellate Division will be appointed directly by the High Judicial and Prosecutorial Council and not by the President of the Court, but unfortunately, nothing has yet been done about it,” Kreso added.

She says the formation of the new court would also be difficult to justify economically, as it would need a new budget, infrastructure, administration, court staff and all the other support services that the State Court, the Court of Bosnia and Herzegovina, has today.  

“However the establishment of a new court whose jurisdiction would fill areas not now covered by the judicial system of Bosnia and Herzegovina would be completely justified,” she added.

“When it comes to war crimes, we all know that due to the application of different laws, citizens of Bosnia and Herzegovina are not equal before the law.

“One Supreme Court, with binding powers, could solve this problem,” the President of the Court of Bosnia and Herzegovina said.

Kreso said the existing system of regular courts in Bosnia would not be brought in question by this, nor would it endanger the existence and jurisdiction of the current Supreme Courts in the entities.

Other important opinion-formers have yet to clarify their positions.

Milorad Novkovic, President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, VSTV, was unavailable for comment regarding the establishment of the Appellate Court.

But earlier media reports say he has recently expressed support for the establishment of this institution, which would have “an expanded jurisdiction and decide in the appeal procedure and in decisions regarding war crimes cases”.

The VSTS noted only that the last meeting within the scope of structured dialogue on November 10 and 11 voiced concern regarding the lack of progress on this issue; they referred us to the Ministry of Justice for more details.

Zoran Mikulic and Gerard Selman, Justice Ministers of the two entities, the Federation of Bosnia and Herzegovina and Republika Srpska, were not available for comment.

Marija Taušan is a BIRN – Justice Report journalist. [email protected] Justice Report is BIRN’s online publication.