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It’s 9 p.m. on a Friday night, and the State Court is sending out a statement on behalf of itself and the State Prosecutor’s Office to inform the public that Milorad Dodik had “voluntarily” dropped in to be questioned – after no police force in the country was able to bring him in.
The press release also said that a decision to remand Dodik in custody was being cancelled because “the reasons for the custody that was previously imposed no longer exist”.
Dodik’s willingness comes three-and-a-half months after his detention was originally ordered following his conviction for disobeying the decisions of the High Representative, the overseer of the implementation of Bosnia and Herzegovina’s peace deal.
From the moment he was ordered into custody until the cancellation of the measure, Dodik readopted laws banning the work of state judiciary and police in Republika Srpska, threatened state judges and prosecutors, started establishing his own umbrella judicial body and election commission, used the entity police to prevent state inspectors from arresting him, illegally crossed the border, and caused the biggest post-war crisis in the country with his openly secessionist actions and decisions.
There are four reasons for which a person may be ordered into custody – the risk of flight, the risk of concealing evidence, the risk of committing a criminal offence, and the potential disturbance of public order.
In Dodik’s case, each of these individual reasons still exist. Dodik has demonstrated that he will not comply with the decisions of the Court of Bosnia and Herzegovina, going so far as to criminalize cooperation with it.
He has also announced the adoption of even more drastic moves in the future, and his statements and posts on social media unsettle the public anew almost every week, reducing trust in the rule of law – leading directly to a danger of the peace being breached.
It is important to point out that in this case, both the Prosecutor’s Office and the Court of Bosnia and Herzegovina made huge oversight, but it should be made clear who is responsible for which of these oversights.
The Prosecutor’s Office assigned this case to a prosecutor who is the daughter of a former high-ranking official from Dodik’s Alliance of Independent Social Democrats (SNSD) party and also and a personal associate of Dodik. This immediately cast doubt on the case. After that, the Prosecutor’s Office failed to request custody and left it to the court to decide.
The court violated every principle of openness and transparency, and held Dodik’s hearing behind closed doors without informing the public in advance. BIRN Bosnia and Herzegovina has been monitoring the judiciary and war crimes, terrorism and corruption cases for more than 20 years, and every hearing at which detention or restrictive measures were ordered was public.
The public has every right to attend these hearings – and it was prevented from doing so in Dodik’s case.
There’s a lot of talk – and a lot of lies – about transparency and openness when it comes to the judiciary.
It’s worth comparing the manner in which this hearing was conducted with the recently adopted communications strategy of the High Judicial and Prosecutorial Council, the national judicial overseer, which states the Council has an obligation and responsibility to build an independent, impartial, professional and transparent judiciary, thus strengthening the rule of law and public trust in the work of the judiciary.
“It is precisely the transparency of the judiciary that is a necessary prerequisite for building public trust in its work. The public, therefore, must be able to access accurate, verified, up-to-date and comprehensible information about the work and functioning of the judiciary, and this should be legislatively and institutionally guaranteed,” the strategy declares.
There should certainly be transparency in cases of special public interest; ones that involve politicians or attacks on constitutional order. The judiciary turned a blind eye to these needs. By sending a joint statement with the Prosecutor’s Office, which is another party in the proceedings, its actions appeared even worse.
Here we could cite decisions made by the European Court of Human Rights on the obligation to inform the public. But the first things that come to mind are the powerful words of the well-known British lawyer Lord Hewart, who said that “justice should not only be served, but be seen to be served”.
In countless situations, BIRN Bosnia and Herzegovina and other non-governmental organisations has come to the defence of the judiciary after politically-motivated attacks.
We said the judiciary was Bosnia and Herzegovina’s last line of defence against complete political capture by would-be autocrats. The State Court and Prosecutor’s Office put an end to all that on Friday when they decided to cut a deal with a politician who stifles every last bit of free speech and corrupts every part of society he touches.
Dodik shows his middle finger to journalists in front of the court. Photo: BN TV
We’re deliberately use the collective term judiciary, including the Prosecutor’s Office, the Court of Bosnia and Herzegovina and the High Judicial and Prosecutorial Council. Dodik’s deal must be a red line for every judge, prosecutor and even professional legal associate who has integrity.
Judges and prosecutors rarely make public statements. But this decision, and particularly the way in which it was made, is so disturbing that each of them should ask themselves some questions – about the decision itself, the way it was made, its consequences – and who was involved in making it. We have reported on the domestic judiciary and the role of the international community, but this decision requires us to rethink how we report on the judiciary as a whole.
With this decision, the judiciary confirmed that it is not a ‘victim’ whose integrity and independence needs to be defended in print. By making an agreement with Dodik, the judiciary is an accomplice. It is not only failing to resist political pressure but acquiescing to political control.
If judicial professionals, through their actions or through their silence, together with representative of the ‘international community’, are ready to extinguish the last hope for this society, media and civil society should not take the same approach.
In the hours after the lifting of Dodik’s custody order, it’s difficult to find words that can describe the bitterness caused by the way the judiciary has amnestied attacks on itself and the constitutional order, and to make sense of what awaits us as the Dodik case proceeds. Perhaps the words attributed to the Nobel laureate Niels Bohr could help – “the best weapon of a dictatorship is secrecy, but the best weapon of a democracy should be the weapon of openness”.
We keep hearing that there are judges and prosecutors who have integrity, and that their bad colleagues, operating under political influence, create a bad image for all of the judiciary. In informal conversations and correspondence, they distance themselves from their colleagues; at conferences, they say that they do their work with integrity – but that they must not risk confronting their superiors for fear of losing their jobs.
If there has ever been a turning point, a moment when the silence must be broken, that moment is now.
As a society, we have long been sliding towards an authoritarian system in which there is no rule of law – the opposite of a system under which every person is equal and there are no untouchables.
On Friday night, Dodik managed to bring down darkness on the judicial system.
In this darkness, he is now dealing with the warrants issued for the arrest of his political allies Nenad Stevandic and Radovan Viskovic, with the second-instance verdict convicting him of disobeying the decisions of the High Representative, and with the numerous investigations in which he is the central figure.