Before the reform…
The establishment and the development of an independent judiciary represents a process that began before all other processes in Bosnia and Herzegovina. European standards in the field of independence and efficiency of the judiciary required major reforms of the judicial system which have, from the mid-nineties and to this day, largely been completed.
The significance of the achievements is all the greater if we look at the circumstances under which the reform of the judiciary was carried out. The complexity of the economic and social situation in the country immediately after the war inevitably affected the performance of the judiciary. The war resulted in numerous war crime cases that would represent a weight even for better regulated and more functional systems. The effects of the war, the devastation of industry and the socio-political transition generated many specific cases such as property return, labour disputes, bankruptcy, war related damages and other cases that represented new challenges.
The postwar judiciary did not have available the necessary material/technical and staffing resources to process such complicated cases, while the political ambiance at the time served as an added aggravation for the judicial institutions in their work.
The organisation of the judiciary in BiH was exceptionally complex and we can say that the judicial system was divided into four separate systems. Apart from this, parallel judicial structures were operating separately within certain cantons of the Federation of Bosnia and Herzegovina. Inter-Entity cooperation was below standard and was not institutionalised.
Financing for the judiciary was inadequate compared to the number and influx of cases in the courts and prosecutors offices and depended on the political will of individuals and institutions.
Courts and prosecutors offices were unequipped while many years with no capital investments led to deteriorating facilities in the courts and prosecutors offices that were unsuitable for accommodation.
The assessment at the time was that the current legislative framework did not contribute towards efficient performance.
Appointments to judicial office were entrusted to the legislative and executive branches. As a consequence this lead to the appointment of politically suitable candidates to judicial office, which included people lacking the necessary qualifications or corresponding experience to perform the duties of a judge or prosecutor.
The general situation, the unfavourable standing of the judicial institutions and the appointment procedure for judicial office represented sound reasons to initiate the reform of the BiH judiciary, and was also supported in the reports coming from relevant international institutions and organisations.
Judicial System Assessment Program
Article I of the BiH Constitution which was agreed upon within the framework of the Dayton Peace Accords, defines BiH as a “democratic state, which shall operate under the rule of law”, while the European Convention for the Protection of Human Rights and Fundamental Freedoms is directly applied in BiH, in accordance with Article II of the Constitution.
While the Constitution of BiH firmly establishes the primacy of the rule of law and fundamental freedoms, the principles have rarely been applied in the practices of the judiciary that was set up immediately after the war.
In order to clearly “diagnose” the problems of the judiciary, towards the end of 1998 the United Nations Security Council (UNSC) established JSAP – Judicial System Assessment Program within the UN Mission to BiH. The Program, was tasked to “monitor and assess the court system of Bosnia and Herzegovina as part of an overall program of legal reform”. The assessment focused on three aspects i.e. technical which referred to laws, regulations and other standards; institutional which looked at physical and human resources and organisation; and political which dealt with the political framework and other factors that determined the performance of the judicial system and its level of independence.
Thirteen reports were compiled within the Program between 1998 and 2000 which expressed the need for judicial reform in BiH. Specifically, the analysis of the aforesaid aspects showed that judges were not operating independently, that they did not consider themselves to be independent and that other institutions did not address judges in accordance with the principles of independence.
The assessment resulted in a decision of the Peace implementation Council in Bosnia and Herzegovina and the High Representative for BiH to establish an Independent Judicial Commission in March 2001, with the task of leading and coordinating the continued reform of the BiH judiciary.
Independent Judicial Commission
Immediately with the establishment of the Independent Judicial Commission, activities began for the realisation of reform objectives and the creation of conditions to strengthen independence and improve the quality and efficiency of the judiciary. Accordingly, this required reforms to the appointment process, improving court financing, the establishment of mechanisms for greater efficiency of case resolution including reforms to the procedural laws, court administration reform to achieve greater efficiency, ensure ongoing training for judges and prosecutors, improve access to legal information and ensure the implementation of minor offence reforms.
As part of Independent Judicial Commission efforts, three high judicial and prosecutorial councils were established in 2002, on the levels of FBiH, Republika Srpska and BiH which had competences for the appointment and disciplinary liability of judges and prosecutors. The Independent Judicial Commission operated as a secretariat for all three councils and performed the duties of disciplinary counsel. The establishment of the councils was preceded by the adoption and application of the laws on judicial and prosecutorial function of the entities, which represented the first major step towards the creation of a harmonised legal framework for the organisation and operations of the judiciary and the gradual strengthening of its independence.
Judicial and prosecutorial training centres were opened in the entities in 2003.
During this period we also saw the establishment of the Court of Bosnia and Herzegovina and the Prosecutors Office of Bosnia and Herzegovina.
The court and prosecutors office networks were reorganised, draft laws on courts were prepared in the entities as was a strategic proposal for the informatisation of the judiciary and necessary funds from donors was secured.
The final phase of operations of the Independent Judicial Commission targeted the establishment of a single HJPC BiH as well as its own transition into the Secretariat of the HJPC BiH.
The Independent Judicial Commission stopped operating in March 2004 as did the aforesaid high judicial and prosecutorial councils. The functions of the institutions were taken on by the HJPC BiH.
When assessing the court system it was determined that the procedural laws and the manner in which they were being interpreted represented obstacles to the efficiency of court procedures. Also, in the context of BiH membership to the Council of Europe, an obligation was assumed for rendering and applying new criminal legislation in accordance with the standards of the Council of Europe. Thus legislative reform had its own special place within the overall reform processes.
In January, 2003, the High Representative for BiH passed a “set of laws to combat crime” including the BiH Criminal Code and the BiH Criminal Procedure Code. Throughout 2003, criminal legislation in the entities and the Brcko District BiH was harmonised with the regulations adopted on state level.
Legislative reform in the field of criminal law had the objective of achieving greater efficiency in combating corruption and organised crime as well as introducing new methods to battle the most complex forms of crime, expediting criminal procedure and the protection of human rights and freedoms through harmonisation with international standards.
Apart from criminal legislation reform, another strategic objective was to increase efficiency in processing civil cases through the introduction of modern laws that are in line with European standards. The new laws were adopted mid-2003 and represented the result of the collaborative efforts of the Independent Judicial Commission, the entity ministries of justice and experts appointed to the working groups that were appointed at the time.
During the most notable period of new legislation, between 2001 – 2004, the following laws were introduced:
Since the passing of a range of initial reform-related laws, the dynamics of legislative reform have somewhat receded. Still, in that time important regulations have been adopted such as the Law on curbing organised crime and the most serious forms of commercial crime in the RS and the Law on the seizure of property gained through the commitment of a criminal offence of the RS, with similar laws also prepared in the FBiH. Criminal codes, laws on criminal, civil and enforcement procedures have on a number of occasions been amended while the RS has adopted a new Criminal Procedure Code. Laws have also been adopted regarding the protection of and conduct with children and juveniles in criminal proceedings, with the exception of the FBIH where the law is still in procedure. The RS has also adopted a new Law on non-litigation procedure.
The Court of Bosnia and Herzegovina and the Prosecutors Office of Bosnia and Herzegovina
The establishment of the HJPC BiH was preceded by the establishment of the Court of Bosnia and Herzegovina and the Prosecutors Office of Bosnia and Herzegovina.
The Court of BiH was founded in 2002 and its competencies are stipulated in the Law on the Court of BiH and cover criminal, administrative and appellate jurisdiction.
Within its criminal jurisdiction, the Court of BiH presides over cases that refer to criminal offences such as, among others, war crimes, organised crime, commercial crime and corruption.
Administrative jurisdiction implies that the Court of BiH decides on complaints against final administrative acts rendered by the institutions of BiH. The Court of BiH decides on requests for the protection of citizen freedoms and rights as guaranteed with the Constitution of BiH when such rights and freedoms are violated by acts of BiH institutions. Also, the Court of BiH presides over property disputes between BiH, the entities and the Brcko District BiH, property disputes between BiH institutions, property disputes stemming from damages caused as the result of the performance of duties by administrative authorities and other BiH institutions and the officials of such authorities and institutions as well as other property disputes if jurisdiction of the Court is determined by BiH law or international agreements.
As part of its appellate jurisdiction the Court of BiH presides over appeals against decisions rendered within the Criminal and Administrative departments and decides on objections dealing with BiH Electoral Law violations.
The Prosecutors Office of BiH was established in 2003 as an institution with special jurisdiction to prosecute before the Court of BiH criminal offences prescribed by the Law on the Court of BiH, the Law on the Prosecutors Office of BiH, the BiH Criminal Code, the BiH Criminal Procedure Code, the Law on the transfer of cases from the ICTY to the Prosecutors Office of BiH.
Jurisdiction and area of action are prescribed by the Law on the Prosecutors Office of BiH, according to which the Prosecutors Office of BiH is:
Judicial and prosecutorial training centres
The Judicial and Prosecutorial Training Centre of the Federation of Bosnia and Herzegovina and the Judicial and Prosecutorial Training Centre of Republika Srpska were established in 2003 with the objective to improve the professionalism of the judicial system through ongoing professional training for judicial office holders.
The centres operate as autonomous public institutions with seats in Sarajevo and Banja Luka and conduct training for judges and prosecutors while cooperating with the judicial institutions in BiH, universities and other national and international organisations.
Training programs are created on the basis of surveys within the judicial community, reports from local and international organisations, monitoring legislative amendments, the implementation of existing laws as well as according to the needs and recommendations presented in the country, region and abroad.
Training is carried out through seminars and advisory sessions together with the utilisation of various methods and techniques in the teaching field, such as various exercises with moot trials and video presentations.
Judges, prosecutors, professors of law and other sciences as well as experts in other fields relevant to the work of judges and prosecutors are used as trainers by the centres.
Restructuring the network of courts and prosecutors offices
One of the strategic objectives of the judicial reform was the restructuring of the court and prosecutors office networks. Specifically, during and after the war, numerous new courts were opened in both entities without any consideration given to real needs and available funding. In general, the courts were underfinanced during this period, while certain courts didn’t have any funds secured. Such a system proved itself to be questionable both from an organisational and economic aspect, as well as with reference to court independence which was much more difficult to preserve in smaller localities.
The restructuring of the courts for both entities was carried out gradually, by terminating and merging the municipal and basic courts. The process was based on objective criteria such as population figures, incoming caseloads, geographic distance between the courts and other criteria.
By way of merger 16 new courts were established from 41 municipal courts in FBiH, while 12 municipal courts continued operating under their current capacities. In doing so, the number of municipal court in the FBiH was reduced from 53 to 28.
In the RS, six new courts were established through the merger of 12 former courts, while 13 courts remained unchanged. After the restructuring, the RS had 19 basic courts instead of the 25 it had previously.
Generally speaking, the number of municipal and basic courts in both entities dropped from 78 to 47.
The structure of the cantonal and district courts in the entities was not changed, even though objective criteria pointed to the need to merge a number of cantonal courts in the FBiH. The issue, however, could not be addressed due to the constitutional set up in the FBiH.
Apart from establishing fewer courts, the restructuring process also analysed the situation regarding the number of judges. The total number of judges pre restructuring was 868 and as part of the process was reduced to 629 judges for the basic, municipal, district and cantonal courts. The merging of the courts and reducing the number of judges inevitably led to the downsizing of administrative and support staff in the courts.
Together with the restructuring of the court network, action was also taken towards restructuring the prosecutorial network by dissolving the municipal and basic prosecutors offices. The scope of the reform is best illustrated through the fact that the number of prosecutors offices in BiH had dropped from 103 to 19. Specifically, the structure of the prosecutorial system which contained district/cantonal along with basic/municipal prosecutors offices was, financially speaking, difficult to sustain.
The effects of the downsizing of the courts in BiH within the judicial reform have, however, in part been lost in recent years. Immediately after the entity laws on courts came into effect, numerous initiatives surfaced for amending the regulations in order to establish new courts and branch offices. The HJPC BiH considered the initiatives as premature and was of the view that more time had to pass before any reexamination of the court network began. Also, it was stressed that any review of the court network should be performed based on the objective criteria for the establishment of courts and branch offices that was applied as part of the initial court network restructuring.
However, the legislative and executive powers of the entities insisted on increasing the number of courts and branch offices and so rendered laws on courts prescribing the establishment of new courts and branch offices.
Even though the laws stipulated the establishment of nine new courts and seven branch offices in the RS and five new courts and four branch offices in the FBiH, the HJPC BiH in its opinion noted that only two courts in each entity partially satisfied the criteria for establishment.
Due to difficulties encountered by the legislative and executive powers of the entities and cantons in fulfilling the prerequisites for the courts and branch offices to begin operating, only three courts in the FBiH were opened in 2012 and 2013, while not a single court that was stipulated in the Law on Courts in RS has opened yet.
In the meantime we have seen the establishment of specialised courts and prosecutors offices. Amendments to the Law on Courts in Republika Srpska from 2008 allowed for the establishment of specialised courts to process commercial cases. Specifically, five district commercial courts were founded as well as a High Commercial Court which started operating in 2010. The National Assembly of Republika Srpska adopted the Law on curbing organised crime and the most serious forms of commercial crime in 2006 which established a Special Prosecutors Office for curbing organised crime and the most serious forms of commercial crime of Republika Srpska (Special Prosecutors Office of RS) within the District Prosecutors Office in Banja Luka.
Minor offence reform
Apart from the restructuring of the regular courts, between 2003 and 2006 minor offence courts were also restructured. This was a radical and successful reform process carried out by the HJPC BiH in cooperation with the entity ministries of justice together with the financial support of the EU.
The objective of the reform was to harmonise the minor offence system with the requirements of the European Convention on the Protection of Human Rights and Fundamental Freedoms and to have it organised within the regular judiciary.
Prior to the reform minor offence cases were presided over by minor offence courts which despite their name, were not organised to be part of the judicial branch, while minor offence court judges were not subjected to legislation that regulated judicial office. Keeping in mind the nature of minor offence cases and the sanctions meted out in minor offence procedure, such an approach was not in line with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which calls for trails to be held before “an independent and impartial tribunal”.
Apart from the above, the minor offence system itself was organised in a cumbersome, complex and unequal way and required the presence of a first instance court in every municipality. Jurisdiction in the second instance and for extraordinary legal remedies was regulated in varying ways, especially in the FBiH. More so, certain types of minor offence courts were resolved by minor offence committees within administrative authorities. The complicated structure required many employees to work on processing minor offences.
Furthermore, minor offence court judges were appointed by the legislative and executive branch while conditions for appointment were not harmonised with those for appointment to judge positions. A disciplinary system to deal with minor offence judge liability was non-existent.
The above reasons resulted in the designing of a Minor Offence Reform Strategy which covered the drafting and adoption of necessary legislation, the restructuring of the minor offence system, the appointment of minor offence judges, developing and implementing a Register of Fines as well as training on the application of new laws and the use of the Register.
During the reform amendments were adopted to the Law on the HJPC BiH which prescribed the mandate termination of minor offence judges and a procedure for the appointment to regular courts which had received jurisdiction for minor offence. Amendments were also adopted in the entity laws regulating the termination of minor offence courts and the carry-over of cases to the minor offence departments of the regular courts. Entity laws on minor offences were adopted including the Law on Minor Offences of BiH as well as a range of other laws linked to minor offence reform.
The restructuring of the minor offence courts was carried out by merging the minor offence courts with the regular courts which lead to the termination of 122 minor offence courts. Apart from this, all first and second instance minor offence commissions in the entities also ceased operating. Minor offence departments were established within the regular courts. A decision was passed regarding the additional number of judges for the regular courts to work on minor offences and their appointment was subsequently carried out.
We can state that the minor offence restructuring represents one of the greatest successes of the judicial reform in BiH.
Establishing the High Judicial and Prosecutorial Council of Bosnia and Herzegovina
The founding of the HJPC BiH as the guarantor of the independence of the judiciary in BiH was preceded by a range of reform-related steps. In 2000 and 2001, laws on judicial and prosecutorial service were adopted which established committees for the appointment of judges and prosecutors on federal and cantonal levels in the FBiH and a High Judicial and High Prosecutorial Council in Republika Srpska. The bodies, comprised exclusively from representatives of the judiciary and legal experts, had competences to provide proposals for appointment to the legislative and executive authorities in charge of the election of judges and prosecutors. The committees and the councils also received powers for disciplinary process. However, the unwillingness of the political powers to accept the recommendations of the committees and the councils slowed down appointment procedures and hindered, even obstructed the work of the judicial institutions that were operating under reduced capacities for many years while positions remained unoccupied.
Therefore, the next step was the establishment of high judicial and prosecutorial councils. In May, 2002, the High Representative for BiH amended the entity constitutions concerning the judicial powers and rendered the Law on the High Judicial and Prosecutorial Council of BiH, the Law on the High Judicial and Prosecutorial Council of FBiH and the Law on the High Judicial and prosecutorial Council of RS.
The newly established councils were tasked with ensuring an independent, impartial and professional judiciary and the establishment of a professional effective court system and prosecutorial service.
The rendering of the said laws largely harmonised the procedure for the appointment of judicial office holders throughout the country drawing it closer to European standards.
The establishment of the councils together with competencies for deciding on the appointment of judges and prosecutors lead to the termination of the former committees and councils which only had advisory roles as proposers, with the appointment procedure now being ultimately depoliticised and entrusted to professional independent authorities.
Apart from competencies for appointment, the councils were also given powers to conduct disciplinary proceedings and decide on disciplinary liability of judges and prosecutors, to oversee training, decide on temporary reassignments and incompatibility issues, as well as having competencies for determining the number of judges and prosecutors, providing opinions for draft laws as well as for participating in drafting budgets for the courts and prosecutors offices.
Apart from their regular competencies, the councils were also entrusted the very important and demanding task of carrying out the reappointment process for judicial office.
The general objectives of the reappointment process were to improve the quality and professionalism of the performance of judicial office holders and to achieve the appropriate national balance in order to meet with the constitutional provisions on the representation of constituent Peoples and Others.
During the transitional period, the appointment and reappointment process covered some 1,000 positions in 83 courts and prosecutors offices, including appointments to newly established institutions on BiH level. In August, 2002, a public competition was announced for 107 positions in seven courts and prosecutors offices, while in December of the same year 920 positions were announced for the courts and prosecutors offices in BiH i.e. 674 judge positions and 246 prosecutor positions. All interested candidates who met with the prescribed criteria were able to participate in the competitions as well as those candidates who held judicial office prior to the reappointment procedure.
By March, 31, 2004, 878 positions were filled. After the reappointment process was completed some 30% of the judges and prosecutors who at the time held offices were not reappointed and some 18% of the candidates who were appointed had not previously held office, judicial or prosecutorial. Significantly, only 21% of the candidates who were court presidents or chief prosecutors, at the time, were reappointed to office.
The reappointment process also had a major influence on the establishment of an appropriate ethnic balance in the BiH judiciary.
The High Judicial and Prosecutorial Council of Bosnia and Herzegovina
When rendering the entity laws on the high judicial and prosecutorial councils, the High Representative for BiH also passed Instructions for the relevant entity authorities in order to begin negotiations on the transfer of competencies for the judiciary to the state in order to establish the High Judicial and Prosecutorial Council of BiH with comprehensive competencies for the judiciary.
Specifically, the establishment of the HJPC BiH was assessed as the best option for ensuring fully harmonised standards for the appointment and disciplinary processing of judges and prosecutors throughout all of BiH.
The establishment of the HJPC BiH was also a requirement of the European Union, considering that the European Commission Feasibility Study set the requirement as one of the conditions in order to initiate negotiations on concluding a Stabilisation and Association Agreement between the EU and BiH.
In March, 2004, the entity prime ministers and the Minister of Justice of BiH signed an Agreement on the Transfer of Certain Entity Responsibilities through the Establishment of the High Judicial and Prosecutorial Council of BiH, which was ultimately carried out by the Parliamentary Assembly of BiH in June, 2004.
The Law on the HJPC BiH established the HJPC BiH in accordance with the European standards for independence, accountability, efficiency and quality of the judiciary. Today, in regional terms, the institution stands for a judicial council that is predominantly organised according to the highest European standards as listed in Opinion no: 10 of the Consultative Council of European Judges (CCEJ).
Stemming from the competencies of the HJPC BiH as prescribed in Article 17 of the Law on the HJPC BiH is that the Council has exclusive jurisdiction for the appointment and disciplinary liability of judicial office holders. Apart from this, the HJPC BiH also executes its role through partnerships with the executive and legislative branches for various fields such as judicial and prosecutorial budgets, legislative initiates, judicial administration, the systematization of judge and prosecutor positions and securing funds for the positions as well as other competencies.
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