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A new draft law on state-level courts, proposed by the authorities in the Serb-dominated Republika Srpska entity as a part of reform plans with the European Union, is aimed at “overturning the structure, jurisdiction and even the existence of the Bosnian state court”, the state court in Sarajevo has warned.
BIRN has seen copies of the draft law prepared by the Bosnian Serb justice ministry, as well as responses to it from the state court and EU experts.
The most problematic issues in the draft are in connection to the jurisdiction of the state-level judiciary, especially in regard to taking over cases from Bosnia and Herzegovina’s two entities, as well as the election of judges and the location of the country’s future appeals court.
In its comments, the Bosnian court claims that the Bosnian Serb entity has proposed the changes because it want to minimise the power of the Sarajevo judicial institution or abolish it altogether.
But the Republika Srpska justice ministry told BIRN that this was not true, and it only wants to “abolish the expanded jurisdiction under which the Bosnian court can take over cases opened according to entity laws”.
European legal experts believe however that the Bosnian Serb proposal is unclear in regard to the issue of the jurisdiction of the Bosnian court.
They suggest that the Republika Srpska justice ministry should clarify whether it wants the state court’s jurisdiction over entity cases totally quashed or transferred into a different law, such as the criminal code.
Appeals court row
Republika Srpska prepared the draft law on the state judiciary after a meeting in Brussels in September as part of the so-called ‘structured dialogue’ aimed at overhauling Bosnia’s judiciary.
The meeting came after weeks of pressure from the Republika Srpska leadership, which has vowed to stage a referendum questioning the authority of Bosnia’s international supervisor, the Office of the High Representative as well as the powers of the state-level judiciary because of its alleged bias against Serbs, especially in war crimes cases.
Within the structured dialogue meetings, Bosnia has agreed a significant reform which envisages the creation of an appeals court, by moving the appeals chamber of the Bosnian state court into a separate institution.
However, the jurisdiction of the planned new court and the Bosnian state court remains a stumbling block.
“The aim of the new law should only be to create the appeals court, which would mean that the current court is divided into two. However, the Republika Srpska proposal foresees a creation of two completely new courts, with organisations and jurisdiction which differ from the current ones,” the Bosnian court said in its comments.
“It is as if the Bosnian court never existed,” it added.
The Bosnian Serb justice ministry has told BIRN that these allegations are untrue, and that only the appeals chamber of the state court would be abolished.
The state court also objects to the fact that the Republika Srpska proposal envisages the election of new judges for both the new appeals court and the state court itself.
“The continuity of the work of our judges should not be brought into question,” the state court said.
“The law should clearly define if there are reasons for the dismissal of judges. If there are not, then the judges currently employed in the first instance cases should remain Bosnian court judges, while appeals judges should be named as appeals court judges,” it added.
The court also said that the issue of the election of judges and the timing of the introduction of the new law could have a strong bearing on current cases.
It therefore proposed that either appeals judges finish the cases assigned to them before new cases are sent to the new appeals court or these judges automatically become appeals court judges.
Republika Srpska has asked for the election of new judges because it wants both courts to have an equal number of judges from all three ‘constitutional peoples’ – in other words, the main three ethnic groups: Bosniaks, Croats and Serbs.
The Bosnian court however said this was “discriminatory”.
European Union experts also said that the election of judges should be based on professional and not ethnic reasons.
“It is necessary to avoid jeopardising the public perception of the independence of each elected judge by enacting an election procedure which highlights ethnic background more than professional demands,” the EU experts said in their comments.
Case takeovers disputed
There are also opposing views on the location of the future appeals court.
While Bosnian Serbs want the court to be in Banja Luka – the capital of Republika Srpska – the Bosnian court would prefer it to be in Sarajevo, near the state-level judicial institutions.
However, the biggest stumbling block is the jurisdiction of the state-level judiciary, especially in regards to taking over cases from the entities’ courts and prosecutions.
The Bosnian state court has jurisdiction over all criminal acts covered in the state-level criminal code, adopted in 2003. According to section 7 of the legislation, the institution can also demand that cases relating to criminal acts covered by the laws of entities be sent to state level if they undermine the sovereignty, territorial integrity or national security of the country.
This ability to take over cases from the entity-level judiciaries has been strongly criticised by the Bosnian Serb leadership.
The Bosnian court has said that the Bosnian Serbs’ propsed new law cuts out the jurisdiction altogether.
But Republika Srpska justice minister Anton Kasipovic told BIRN that it was important to stop “the arbitrary taking-over of cases”.
“The jurisdiction of each court should be clearly defined by law and cases cannot be arbitrarily taken, like the Bosnian court often does. So the idea here is not to abolish the Bosnian state court, but to remove some solutions form the current legal framework,” said Kasipovic.
EU experts said however that Republika Srpska’s draft law would remove the state court’s jurisdiction over entity cases, although the agreement within the structured dialogue talks was only to clarify its jurisdiction, not end it completely.
One option for a solution to the dispute would be to transfer jurisdiction to Bosnia’s criminal code, listing all the types of cases which can be taken over by the state court from the entities.
But the state-level court expressed concern about this possibility, claiming the listing of all circumstances when cases can be taken over would “overburden the criminal code”.
“The point of the jurisdiction now is that the Bosnian court can take cases if it thinks they can cause consequences for the country. In this sense, it is impossible to list all crimes which can cause such consequences. So it is clear that such an attempt would definitely result in the reducing of jurisdiction,” said the court.
The court would prefer to keep the situation as it is, but to define specifically the situations in which it can take over cases from the entities.
Kasipovic said however that the Republika Srpska draft law does not envisage any situation in which the state court could take over cases from the entities.
“Our version does not recognise the expanded jurisdiction and taking over of cases from entity courts at all. This means that the Bosnian court can only have authority over cases under the state criminal code and other laws passed by the state level parliament,” he said.
Because of these opposing views, it is unclear how the issue of jurisdiction will be resolved, but justice ministers from all levels in Bosnia have told the EU to expect an agreed proposal by the New Year.
