Interview: Kees Van der Weide: Bosnia is Afraid to Punish Top Judicial Office Holders

Kees Van der Weide. Photo: Ron Magielse

Interview: Kees Van der Weide: Bosnia is Afraid to Punish Top Judicial Office Holders

15. September 2021.09:54
15. September 2021.09:54
The Dutch advisor to Bosnia’s High Judicial and Prosecutorial Council, HJPC, says the proceedings conducted against the state court president and chief prosecutor highlight the system’s reluctance to impose serious penalties.

This post is also available in: Bosnian

In his blog on LinkedIn, where he writes about problems in the judiciary, he opined that when Bosnian judicial office holders are charged with disciplinary offences, they tend to defend themselves under the line of, “anything goes”, ignoring the boundaries of decency that any judge or prosecutor should respect.

“Accounting for their behaviour is rarely part of the respone. Instead, the game seems to be to kill everything at the procedural level, avoiding as much as possible going into what it [the case] is actually about,” he wrote.

“In general, I see not so very harsh penalties also in cases against not so high-rank positioned judicial office holders, so there is a reluctance to impose severe penalties,” he told BIRN BiH, adding that both judges and prosecutors tend to protect each other.

In his blog, he wrote that he considered that the three decisions by the HJPC and Office of the Disciplinary Prosecutor concerning state court president Debevec, chief prosecutor Tadic and Council member Svraka were “all far from applying the principle that high [levels of] independence and high responsibility need to go together with high penalties, when failing to comply with integrity rules”.

He added: “In the cases against the President of the Court of BiH and against the Member of the HJPC, the panels showed that they are not willing (or able?) to be harsh when needed.”

He thinks the stance of panels in the cases against Tadic and Debevec also differed from those in cases against other judicial office holders.

“It’s a general thing I notice in Bosnian society; the higher ranked people are, the more others will be careful before engaging – and this also might be the case when it comes to disciplinary decisions,” he said.

The background to the Tadic and Debevec cases is that both institutions are performing poorly, which Van der Weide notes has also been pointed out by others, including the OSCE Mission and Judge Joanna Korner.

However, he says the public is more interested in stories about “politics and ethnicity” than poor performances of “parties who refuse to talk to each other.

“It is no secret that there is a personal animosity between Tadic and Debevec,” he observed.

Debevec’s weak penalty ‘sent a bad message’

Gordana Tadic and Ranko Debevec. Photo: BIRN BiH

He attended the disciplinary hearings against Tadic and Debevec and analyzed the evidence in those first instance proceedings.

Under first instance decisions, Tadic was released from duty for failing to use the automatic case management system and for failing to respect security protocols.

Debevec was given a warning for not filing his ownership of a property in Spain and for meeting the director of the Intelligence-Security Agency, OSA, who was then on trial.

Debevec was handed disciplinary measure for the offences of “conduct in court and out of court that damages the reputation of the judicial office, and for intentionally providing false, misleading and insufficient information with any other matters within the competence of the Council”.

He was cleared of responsibility for sending inappropriate messages to the state prosecutor conducting an investigation against him.

In his article, Van der Weide criticized the decisions of the disciplinary panel members, as well as the conduct of the judge and prosecutor.

Criticizing Tadic’s request for recusal of members of the second instance disciplinary panel, he interpreted this request as saying, “a Bosniak judge cannot decide independently because the media are speculating that her (she is Croat) removal is a political move in a Bosniak conspiracy.

“Does this mean that all Bosniak judges should be removed, or is it maybe time this Chief PO finds another position?” he queried.

Van der Weide dedicated a significant part of his article to an analysis of the proceedings against Debevec, examining the count on which the state court president was acquitted of sending messages concerning an investigation against him conducted by the state prosecutor.

He found it strange that the prosecutor who appeared as a witness said she did not feel intimidated by his messages – and that the panel then acquitted him on this count.

Analyzing the count against Debevec related to his property in Spain, the Dutch judge criticized the panel’s decision to close this part of the proceedings to the public, to protect Debevec’s privacy.

“Again, [this is] proof of rather walking away from transparency that the Bosnian judiciary is so desperately in need of,” he wrote, criticizing the fact that Debevec failed to provide any evidence of his life in Spain and that “the change of ownership was just never registered in the official registry in Spain”.

He went on to criticize the decisions by the Office of Disciplinary Prosecutor in this case, noting that the prosecutor decided not to charge Debevec with failing to publicly announce his Spanish citizenship or his stay in Spain in the company of a female court employee, justifying this by saying it was his private life and that no crime had taken place.

The Dutch judge considers that such conduct violated the rule to behave in accordance with the dignity of a state court president’s office.

Van der Weide thinks the decision to impose a public penalty on Debevec, which is the least possible measure in disciplinary cases, sent a bad message – that hiding assets is not sanctioned.

“Mild sentences confirm that, although the behavior of judges or prosecutors is not OK, it is tolerated, which leads to serious consequences,” the judge said.

He conceded that disciplinary reports are sometimes more personal than professional and are used as instruments in battles with the judiciary.

Van der Weide considers using disciplinary proceedings as a management tool as a bad practice, adding that in serious cases of disciplinary offences the sanctions imposed are rather mild.

According to him, “the disciplinary system is [otherwise] flourishing”, given that judges and prosecutors “are being disciplined all the time” and reports are flowing in to the Office of the Disciplinary Prosecutor.

“As soon as someone is dissatisfied with whatever, the first reflex [is] a disciplinary complaint and then an investigation starts and often turns into a case before the panel of the Council … It is a hobby, widely spread,” Van der Weide said.

He suspects that disciplining judges is something to be done when nothing else seems to have worked.

“Primarily, Chief POs and Presidents should much more closely manage colleagues in their institutions by following their work and actively offering support when needed. Through decent management, a lot of what can go wrong will be prevented,” he said.

Commenting on calls for privacy in disciplinary cases, the HJPC advisor says that exposing yourself to the public is a part of the terms of reference of judges and prosecutors, because the public wants them to justify their trust.

“In the Debevec and Tadic cases, I know there is a lot of reluctance and calls for privacy, but once you are under fire and under suspicion of not complying with the rules of decency and integrity, you should be even more forward, even more open, to show there is nothing wrong, or at least to show what is going on and then have the competent bodies give an opinion on you and also the public through the media.

“They are playing hide and seek, and by doing so are fueling distrust and the way they are regarded. If you hide your story, everyone will think there is something to hide, and that is the general attitude, not just by them, but quite widely spread,” Van der Weide considered. The HJPC should generally improve its transparency, he noted.

Courts and prosecutions ‘not well managed’

VSTVHigh Judicial and Prosecutorial Council of Bosnia and Herzegovina. Photo: BIRN BiH

Van der Weide also pointed out that the OSCE, as an international partner designated to monitor the performance of courts and monitor disciplinary proceedings, “was not present or not present very often”, which is “a shortcoming that could be put before the international community”.

He says the European Union has no such job to monitor, but when the president of Bosnia’s state court is being disciplined, Van der Wiede does consider that, “everyone should jump up and should try to get a seat in the hearing, to hear what is going on”.

“The interest of press and the international community is surprisingly low,” he said.

Speaking about transparency, he says the level of openness of Council sessions sometimes affects the behaviour of HJPC members.

“This whole thing with transparency from council sessions prevents the council from going into real debates every now and then because they know that Big Brother is watching them and that every word will be put on a gold scale and weighed and published in the media,” he said.

During his work as judge Van der Weide observed that while prosecutors offices and courts in Bosnia have educated professionals trying to do their best, the media focuses on misconduct.

“The higher up we go, the poorer the image gets. In general, I feel free to say that the courts and prosecutor officers are not very well managed,” he said, adding he has noticed that poor results are mainly the result of poor management of cases and poor leadership.

Politicization, especially at entity and state level, is a real problem. He thinks that a lot of people in high positions are played by politicians “asking people to do indecent things”. Decisions at those levels are made often on the basis of “a power balance between ethnicity and political colours”.

To escape this situation, the Bosnian judiciary needs new people from the postwar era, not the generation that grew up “in old Yugoslav times”.

In any judiciary, he concedes, it takes time to find people who are suitable for leadership. “Once you find one, you should be very happy and appoint him or her immediately, and not rank someone with the desirable [political] colour number one, no matter what you think of their capacities,” Van der Weide said.

During HJPC sessions, he used to see judges in their seventies presenting their workplans, and considers that Bosnia “should not be led by people of that age”.

Kees Van der Weide. Photo: Ron Magielse

The most important thing the HJPC can do for the judiciary is “to emancipate it from the traditional dominant relations”, adding that the judiciary is one of the pillars of any state.

He also said that any big issue is immediately put on the plate of the judiciary and judiciary is then blamed for it.

“Any big issue is immediately transferred to a problem of the judiciary and served in Sarajevo on the plate of the HJPC. That’s a nasty game, to make the judiciary all the way responsible because … the ones who are really responsible, or more responsible, should be addressed themselves. They should not duck attention from themselves by pointing at the judiciary. But then the judiciary itself also feels obliged to comply and enter into the game with politicians,” Van der Weide said.

In his opinion, the HJPC should stay well away from politics.

“It is actually a body that could demonstrate that other [ways of] decision making are possible … meaning away from the division of the country,” he said.

Commenting on the work on war crimes, he thinks the perception the war crimes are not being dealt with as they should is correct, but the causes can sometimes be found outside of Bosnia.

“We have defendants who hide themselves in neighbouring states who will not cooperate with Bosnia in proceedings. You cannot charge the Bosnian judiciary for that. This is beyond their abilities,” Van der Weide said, explaining this was often a political question and about a lack of willingness in neighbourng states.

Speaking about the changes to the law on the HJPC, he explains that the current situation is such that the amendments will be presented to parliament but he does not know what will happen.

“If I listen to people I work close with, we should be ready for a rejection by parliament because certain parties have expressed that they are not willing to accept these amendments, which will bring us back to the starting point of having a law which needs to be modernized,” Van der Weide said.

Although asset declarations by judicial office holders is a big request, Van der Weide considers it is needed in Bosnia “to deter people from corruption”.

He says it is also vital that the HJPC is permanently confronted with challenges to improve, and expresses confidence in the present chair.

“The only thing I can do is give an opinion of what I see – what is being done and not done. And that is very important because I also sense that it is appreciated as support and not as criticism – so I am grateful for that,” he concluded.

Lamija Grebo

This post is also available in: Bosnian