Bosnia’s Justice Sector Reform: Optimism and Delay

In late February, the Bosnian authorities adopted an action plan   containing deadlines for implementation of the Justice Sector Reform Strategy for the period from 2014 to 2018. The Council of Ministers of Bosnia and Herzegovina believes that the work can be completed in fewer than two years.

The establishment of an appellate court and the separation of the first and second instance chambers of the Bosnian state court is foreseen to happen at the end of this year.

Adoption of the Law on the High Judicial and Prosecutorial Council (HJPC) is also planned for this year, while the adoption of the Law on the Constitutional Court of Bosnia and Herzegovina is expected to take place next year.

The action plan, which runs to more than 40 pages and contains dozens of measures, foresees the adoption of new regulations for better quality financing of judicial institutions, the improvement of ethical standards among judges and prosecutors, the improvement of the communication strategies of courts and prosecutions and a better quality system for the execution of criminal sanctions and amnesties in the coming two years.

Justice minister Josip Grubesa told the Balkans Investigative Reporting Network in Bosnia and Herzegovina that some of the measures contained in the action plan, like the adoption of the Law on Free Legal Aid, have already been implemented.

“Citizens have waited for this law for a long time. It has now been adopted. I hope it will bring the results all of us want,” Grubesa said.

The action plan also foresees the reduction of the number of cases by promoting a “system of court settlements”, which is to be implemented through an HJPC project titled ‘Court Settlement Weeks’.

Grubesa said that although not all of the measures mentioned in the Strategy will be implemented, the Justice Ministry is already working on drafting the next strategy for the period until 2022.

“We have turned towards the future. In that sense, I cannot have a negative perspective about these tight timeframes,” he said.

The Justice Sector Reform Strategy for the period from 2014 to 2018 was adopted as late as September 2015 after the European Commission exerted pressure by blocking funds intended for paying salaries to prosecutors and legal associates who had been recruited in order to speed up the processing of war crimes.

The OSCE Mission to Bosnia and Herzegovina has said that problems associated with adoption of the strategy and the action plan demonstrate a “lack of political will” to implement reform measures.

A higher court: possibility or dream?

One of the most anticipated measures in the strategy is the creation of an appellate or higher court. This would see the court of Bosnia and Herzegovina divided into two separate institutions – into first- and second-instance courts.

The action plan envisages that the court will be established this year, although a discussion about the proposed institution has been ongoing for years within Bosnia’s EU-led ‘structured dialogue’ on justice issues. Despite the fact there is agreement that the new court is needed, there is no agreement about the jurisdiction of the state judiciary over it.

At the moment the Bosnian state court has so-called ‘expanded jurisdiction’, through which it can take cases from other judicial levels if it considers that the cases are of interest for the reputation of the state or that they could cause damage to the constitutional order.

The state court, as well as international organisations, have previously expressed the opinion that the state judiciary should keep its extended jurisdiction, but the authorities in Bosnia’s Serb-dominated entity Republika Srpska think it should be abolished.

Although no final agreement on this issue was reached at the last few structured dialogue sessions, minister Grubesa insists the higher court will have to be established, and believes that great progress has already been made.

“Speaking about the higher court, we had a difficult time agreeing on the issue, but we did come to an agreement, because the current situation whereby judges of the Court of Bosnia and Herzegovina and the Appellate Section [of the court] sit in the same building and, sometimes, on same councils, does not make people trust those councils,” Grubesa said.

“This is why we should separate the higher court from the Court of Bosnia and Herzegovina and even locate it in another town, if possible,” he added.

The justice minister explained that all the parties agreed that one of the roles of the higher court would be to examine whether the Bosnian state court established its jurisdiction in a fair manner, and clarify exactly what its ‘expanded jurisdiction’ means in practice.

New Bosnian state court president Ranko Debevec, who took over the office at the beginning of the year, said he believed the state court had to keep the expanded jurisdiction, but it should be clearly defined.

“I am firmly convinced that this issue has to be defined on the basis of expert arguments in accordance with recommendations by international experts, with the overall aim of specifying the jurisdiction of the Court of Bosnia and Herzegovina as precisely as possible and eliminating potential dilemmas,” Debevec said.

He also said he considered it rational and practical for the higher court to be geographically as close to the Bosnian state court as possible.

HJPC president Milan Tegeltija also said that the issue of jurisdiction of the Court of Bosnia and Herzegovina has “almost been agreed upon”, but he did not want to discuss specifics. Nevertheless, he said he hoped the higher court would be set up in Banja Luka, the administrative centre of Republika Srpska.

“In general, I think institutions should not be located in one part of the country only. Institutions must be visible throughout Bosnia and Herzegovina, because centralisation is never good,” Tegeltija explained.

Unlike the representatives of the judiciary, the chief of the OSCE mission to Bosnia and Herzegovina, Jonathan Moore, said he was not convinced that the higher court will be established any time soon.

“Considering the fact that less than two years remain, it is possible that many activities from the strategy will not be implemented, particularly those associated with establishment of the appellate court at the state level. No political consensus has been reached on the issue as yet. This reflects a general issue in Bosnia and Herzegovina – once strategies are adopted, attention and resources are not targeted towards their implementation,” Moore said.

He said that if the higher court was established, it was important for the Court of Bosnia and Herzegovina to keep its expanded jurisdiction in order to “overcome some of the problems associated with excessive fragmentation of the judicial system and secure processing of terrorism and corruption cases”.

Changes to the Law on the Constitutional Court seem even less possible, considering strong political pressures from Republika Srpska to abolish foreign judges’ positions on the court panel and objections by Bosniak representatives – opposing stances that were highlighted during the row that ensured after the the Constitutional Court declared the Day of Republika Srpska public holiday unconstitutional.

No constitutional guarantee for the HJPC

The adoption of the Law on the HJPC could also be challenging, said the Council’s president. He explained that the HJPC has no constitutional guarantees at the moment, as it is only included in the entities’ constitutions, not the state one. The Council currently only operates on the state level because of international pressure for it to be allowed to do so.

“Our basic law is the only platform we have. It is not easy to change such a law, because even minor mistakes can cause big problems in the system. This is why we consider that, although our law is not perfect, no changes to the composition and competencies of the HJPC should be made until a constitutional guarantee is instituted,” Tegeltija said.

Grubesa said the Law on the HJPC will be resolved within the EU-led ‘structured dialogue’ on justice issues once the issue of the higher court has been dealt with.

Tegeltija said he still hoped that some “bylaws” will be adopted in order to improve certain issues. He suggested that the focus should be on making sure that all judges and prosecutors are appraised, which is currently not the case, and that there are adequate sanctions for those who get low marks in the appraisals.

“In some situations, people constantly get the lowest marks, but the only sanction they face is the fact they cannot be promoted, but we cannot fire them. This has to change,” he said.

Tegeltija said he would like to see the HJPC getting a bigger role in assigning budgetary resources to the judiciary, but he cautioned that he was sceptical, because “the authorities are not likely to let money leave their hands”.

OSCE Mission chief Moore said meanwhile that “political pressure on judiciary causes concerns”.

“The excessive fragmentation of budgetary planning and allocation of resources to the judicial system also continues to undermine the independence of judiciary,” Moore said.

He added that it was important to improve the system of ensuring independence in the process of appointing judges and prosecutors in order to “improve efficiency, impartiality and transparency”.

Grubesa said that his experience with dealing with judicial institutions managers was good, adding that he thought these people were not under political pressures.

“However, if we consider the general situation and all the things happening in Bosnia and Herzegovina, on the basis of media reports, of course I am concerned about [judicial] independence, as a minister. I shall do all I can to improve, through the legislature, the efficiency and independence and professionalism, as well as the responsibility of all protagonists in the judicial system,” he said.

Transparency is key to professionalism

The action plan for the implementation of the Justice Sector Reform Strategy foresees the adoption of various steps in order to improve courts’ communication strategies, as well as achieving a better quality system of execution of criminal sanctions and amnesties.

When asked to what extent, judicial institutions are transparent and open to the media, the justice minister said he could not speak about it, while the HJPC president said that during his term in office, the sessions and disciplinary proceedings were open to the public.

“I am aware that it is not perfect, but we are making progress … As far as Mr. Debevec, the president of the Bosnian state court, is concerned, I know he has still not made a public appearance, but I have suggested to him to do it. I think this too will be resolved soon,” Tegeltija said.

Moore said transparency in the functioning of judicial institutions was of key importance to strengthening and maintaining public trust.

“The activities described in the Strategy, which are associated with spreading information available to public through internet pages of judicial institutions, are important for achieving that goal. The appointment and training of qualified spokespersons to represent each of the institutions is also of key importance,” he said.

The revisions to the system of execution of criminal sanctions refer to securing better conditions in prisons and also providing support to convicts following their release from prisons.

This currently represents a problem in Bosnia and Herzegovina due to the lack of psychologists in prisons and of financial resources for working with convicts after they have served their sentences.

“This [article] was funded [in part] by a grant from the United States Department of State. The opinions, findings and conclusions stated herein are those of the author[s] and do not necessarily reflect those of the United States Department of State”.