By Branko Perić , Judge of the Court of Bosnia and Herzegovina
1. Brief overview of the history of judicial reform
Establishment of an independent regulator in the area of judiciary was one of the most important steps in the reform designed by the international community (OHR) in BiH, after a comprehensive analysis of the functioning of the judicial system. The process commenced with the imposing of the law on three high judicial and prosecutorial councils, which functioned as a single body consisting of national and international members. The main goal was to eliminate the powerful political influence from the election of judicial office-holders and establishment of independent judiciary. The next step was the signing of the Agreement on the transfer of competences in the area of judiciary from the entity to the state level and establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (hereinafter the HJPC). These measures laid the foundation for an independent national judicial system.
Under the HJPC mandate, in the first period of the reform, the process of reappointment of all holders of judicial offices in line with the best European standards and procedures was completed. The process included interviews with candidates, the system of initial and regular education, rationalization of the network of courts, informatization and connecting of judicial institutions into a network, refurbishing of existing and construction of new premises for the courts and offices of the prosecutor, reform of the system of magistrates’ courts, establishment of the center for court documentation, as well as a number of projects in the area of cooperation with the social community and users of court services.
The eighteen years of the functioning of the HJPC were marked by inconceivable controversies: impressive successes on the redesign, personnel and technical development of the judicial system, on one side, and enormous mistrust of the public in the capability of the regulator to manage the judiciary, on the other.
Since its very inception, the judiciary was exposed to strong criticism by the ruling political actors and the public. From the public perspective (nongovernmental organizations, media) the independent regulator was perceived as a center of “alienated power” and an institution that has no accountability for the “reform of the judicial system”. The political sphere strongly criticized the policy of processing of war crimes, judicial ineffectiveness and controversial judicial decisions. The HJPC did not find a way to respond and reduce the tensions between the judiciary and the public. This undermined the public trust in the judiciary and provided additional arguments for perceiving the HJPC as a center of “alienated power.”
Serious problems in the functioning of the judiciary emerged in 2014. Not only that new members of the HJPC were appointed, but a president and a deputy from the lowest level of the judicial system (basic and municipal court) came to the helm of the institution. The institution was transformed into a range for mutual contentions and conflicts in the communication with the public. A number of controversial decisions triggered strong responses of both the international community and the public (Conclusions of the investigation into war background of judges and prosecutors, election of judges at the Municipal Court in Čapljina, election of the HJPC member from Brčko District, renewal of mandate of HJPC members, scandalous election of the President of the BiH Court and BiH Chief Prosecutor, decision on rejection of cooperation with the parliamentary commission for oversight). The scandal related to corruption in the judiciary, which involved the HJPC President Milan Tegeltija (the “greasing” affair), including the support extended to the President by all HJPC members and the decisions of the disciplinary commissions that conveyed to the pubic the message that the HJPC President cannot be subject to disciplinary action, definitely shattered the image of the institution and the trust in the judiciary. It became evident that the independent regulator was not able to manage the judiciary and implement the necessary reforms.
For quite some time already, regular reports of international institutions, as well as the reports of nongovernmental organizations, highlighted the limited progress achieved in specific areas (money laundry, human trafficking drug abuse, organized crime) and lack of response (corruption). The prospects for an independent judiciary were uncertain. Lack of interest of political actors in the stabilization of the system and evident penetration of politics into the judiciary by using the levers of the HJPC, distanced the BiH society from the rule of law. The then HJPC President resigned in December 2020, after prolonged pressures by the public and the international community. It was expected that the new convocation of the HJPC will make clear and radical steps to stabilize the institution and the system. Although more than a year has passed since the establishment of the new convocation of the HJPC, there are still no results!
In mid-2021 came a fierce and unexpected political attack on the judicial system. Namely, in response to the imposed decision of High Representative Valentin Inzko on prohibition of genocide denial Milorad Dodik, political leader from Republika Srpska and member of the BiH Presidency, announced boycott of the work of state level institutions and return of entity competences that had been transferred to the state level. The announced process of return of competences was opened at the session of the Republika Srpska National Assembly on 10 December 2021, at which a set of conclusions was adopted. One of the conclusions tasked the RS Government to refer within six months to the RS National Assembly a Law on High Judicial and Prosecutorial Council of the RS for consideration and adoption. With the adoption of this law, the Law on HJPC would no longer be applied on the territory of the RS. If this Dodik’s political plan is implemented, the judiciary will be returned to the pre-reform phase and the HJPC will cease to exist as an independent state institution that manages the judiciary in BiH.
The BiH HJPC did not respond to such a destruction of the judicial system and undermining of its independence. The impression was that nobody took the political threats from the RS seriously. Nowadays, it is clear to all that the threats are serious and that Dodik has caused a crisis with the intent to create an edge for the negotiations within the process of resolution of accumulated problems in the functioning of different levels of the government, calculating that in the negotiations he would return the judicial competences to the RS.
It is difficult to forecast how this political crisis will be resolved. Its escalation threatens to completely destroy the judicial system. The brief analysis below is aimed to highlight the basic causes of the judicial crisis and its key problems, so that a public and professional dialogue on the priorities in its resolution could be initiated.
2. Shortcomings in the reform concept
2.1. Problem of joint regulator
A large part of the problems in the judiciary stems from the concept of the independent regulator. The HJPC is a single regulator of the judicial and prosecutorial system. Such a model opened the problem of substantial judicial independence, which is linked to the court. Namely the question to be asked is why are judges and prosecutors made equal in the level of independence when it is common knowledge that a prosecutor is a party in a criminal procedure, as well as that by the nature of their mandate prosecutors belong to the executive branch structure? Can parties to a procedure decide on status issues of judges and is that the best possible way for establishment of an independent judicial system?
The HJPC has 15 members, 11 elected among judges and prosecutors, two elected among attorneys at law by the entity Bar Association, one member elected by the House of Representatives of the BiH Parliamentary Assembly and one by the BiH Council of Ministers. This leads to a conclusion that such a structure discredits the independence of the regulator. On the other side, bringing prosecutors to the same level as judges undermines the principle of equality of parties in a court proceeding. Usually five judges and five prosecutors are elected as HJPC members. The exception is the Judicial Commission of the Brčko District, which can elected either a judge or a prosecutor. Therefore, because of such an arrangement the HJPC can include more prosecutors (6) than judges (5). In fact, this happened in the first convocation of the HJPC (2004-2008). The preponderance of prosecutors in the regulatory body directly brings into question the standard and the guarantees of independence of judges.
As the HJPC makes decisions by a majority vote of the present members that make a quorum (11), this means that it is possible to have a decision on status issues of judges made by a majority consisting of prosecutors, or prosecutors and external members of the HJPC. In fact, such a situation was common. The President of the BiH Court was elected by a majority of 6 members including only two judges.
This problem needs to be resolved urgently. A possible solution would be to separate the single regulator into a judicial and a prosecutorial council, as some countries in the region have done (Slovenia, Croatia and Serbia).
The draft law on modifications to the Law on HJPC still envisages the model of a single regulator including two independent sub-councils (judicial and prosecutorial), which would elect judges and prosecutors (statutory issues), but would decide on other issues together. Such a model may have a financial justification, but does not resolve the essential problem of autonomy and independence. “Socializing” of judges and prosecutors in no way contributes to the objective standard of substantial independence and autonomy and therefore should not be considered at all. Furthermore, such a model would open a number of other internal problems of financial and personnel nature. One should not lose from sight the fact that dominance of individuals is always a determining factor of real power, which is why such a model entails the potential for inappropriate and unallowable influence on independence and autonomy.
In addition to the above, a single collective body implies full equality of all members, which would mean that a prosecutor can be elected and appointed president of the HJPC. Prosecutors and external members of the HJPC can provide the majority support for such an election, which would be an absurdity. Anyway, what explanation could possibly be provided for having a prosecutor head an independent institution that elects judges and guarantees independence of the judiciary?
2.2. Accountability of members of the regulatory body
The existing Law on HJPC does not sufficiently specify the mechanism for effective accountability of HJPC members for performance of the duties of members of the regulatory body. Not a single provision of the law defines the obligations of members that could be used as the basis for accountability in case of non-performance of duties. In example, there is no obligation to justify absence from sessions, nor an obligation to act in line with the adopted decision. As a result, it is very difficult to conclude when an action of a member of the regulatory body can be qualified as non-performance of duties, which requires deliberation at the level of the regulatory body and initiation of the accountability mechanism.
Provisions on accountability can be derived from Article 6, paragraph 1, item d), which envisages termination of the mandate if a member “perform duties improperly, ineffectively and in a biased manner.” Truth be told, this provision of the law leaves room for broad interpretation, but also gives the basis for narrow and manipulative interpretation. The conduct of the HJPC President in the case of the “greasing” scandal is an illustration of how the conduct of the President is not treated as problematic or irregular, despite the fact that it is obviously contrary to the law. The provision that regulates that a member will be relieved of duty if he/she commits an act “that would make him/her unworthy to perform duties in the Council” (item f) is rather unclear and problematic. What specific act could that be? Or, to be more specific, is it acceptable at all that a member of a regulatory judicial body commits a criminal act? There is no practice of regulatory bodies that could help in this respect and provide some guidance. Furthermore, the provisions laid down in item g), which specifies that the mandate of the member against whom a criminal procedure has been initiated shall be automatically terminated if he is sentenced to imprisonment, but only once the sentence is final and binding, also make little sense. This practically means that the mandate continues all until the criminal procedure is underway, which is contrary to the provisions laid down in item d).
Such confusions require a new approach to the issue of accountability of members of the regulatory body and a precise definition of obligations, forms of responsibilities and procedures for establishment of accountability, including termination of mandate.
The question to be asked is to whom members of the regulatory body should be accountable? Only to the institution or also to those who had elected them? The existing concept recognizes only the accountability to the regulator, which can render a decision on the basis of a two-third majority of members and only if there is a proposal of one third of members. Hence, a proposal requires support by five members, and decision by ten members. It remains unclear why does a decision on termination of mandate require a two-third majority support, while a decision on election of judges and prosecutors or a decision at the third level with respect to disciplinary responsibility of judges and prosecutors requires a simple majority of the quorum, which consists of 11 members (six members)!? It appears that it would be more acceptable to envisage a simple majority support for accountability of a member of the regulatory body as well.
The issue of accountability to the bodies that elected the members could be limited to a proposal for initiation of the accountability procedure, which would include the description of the conduct, qualification of the misconduct and proposal of the sanction.
3. Negative trends (practical level)
3.1. Independence as a point of misunderstanding in the dialogue between judiciary and political level
The conflict between the judiciary and the executive branch emerged from the mutual misunderstanding of the principle of independence, which implies noninterference in individual and specific cases. Such independence is basically applied to both the judicial and prosecutorial system. The executive and legislative branches cannot reach an understanding that they have the same goals and bear the same responsibility for development of an independent judiciary. It is often not understood that independence is not a privilege of judges and prosecutors, or judicial institutions, but a right of citizens! All three branches of the government are responsible to ensure respect of that right of citizens.
Independence with respect to actions in specific cases (judicial and prosecutorial decisions), in practice is often expanded also on the performance of administrative authorities and case management. Several years ago, BiH Chief Prosecutor was exposed to strong criticism by politicians for refusing to appear at the session of the parliamentary board for security in relation to the case of blockade of the Parliament. In his response the Prosecutor referred to the principle of independence and qualified the invitation to the Parliament as political pressure on the Office of the Prosecutor.
This relation between the management of judicial institutions, the executive and legislative branch could be more clearly defined in the Law on HJPC and laws on courts, in order to avoid misunderstandings and conflicts.
The basic complaints by politicians were related to the complete marginalization of the executive branch of the government (ministries of justice), which adopted the imposed model of the independent regulator. Politicians obviously could not understand why the HJPC has been given such broad competences and why the ministries of justice were left with almost no competence with respect to the organization and functioning of the judiciary, not even those related to judicial administration. The Law on HJPC attributed to the ministries of justice only some minor, shared competences.. On the other side, the executive branch has a decisive role in the funding of the judiciary. This raises a legitimate question for the executive branch and politicians: how to manage a system and launch legislative initiatives if they have no role or influence on the judicial system and how to fund something they do not control?
This controversy has major political potential. In our legal tradition, the ministries of justice played a key role in the organization of the judiciary, and particularly the judicial administration. Transfer of almost all competences on the independent regulator has marginalized to a significant extent the role of the ministry of justice and its accountability for the results of the judiciary. Such a radical solution required strong arguments and clear explanations. Absence of constructive public dialogue with the executive branch (ministries of justice) deepened the tensions between the judiciary and the political level.
The executive branch will always have a decisive role in the funding of the judiciary and creation of the judicial budget. There is no country that had given up this axis of government. The question to be asked is to what extent will specific competences for management of the system be transferred to the regulator of the judicial system, that is what shared competences will look like. Shared competences mean shared responsibility, which is why ministers of justice should have an active partner role in the reform processes. Of course, it would be desirable that the judicial system develops in the direction of complete transfer of competences for organization and functioning of the judicial system to independent bodies, but that has to be the political strategy. To move in that direction, it would be necessary that the judicial and executive branches engage in a dialogue and find a common language.
The US Embassy responded to a misunderstanding between the legislative branch and the HJPC with a release that read: “Healthy democracies need checks and balances. It is not just parliament’s right, but its obligation to hold the judiciary accountable to citizens of BiH.”
It is clear that the judiciary is a part of the society and cannot stay out of any control. It is necessary to also legislatively regulate that relation.
3.2. Corruption in the judiciary
Over the past years the judicial system topped the lists of the level of corruption. Several criminal procedures initiated against judges and prosecutors, controversial appointments and several judicial scandals contributed to such an image. In the last couple of years, criminal procedures were conducted against a number of judges and prosecutors, and several of them were relieved of duty. Incriminations of judges and prosecutors were predominantly related to abuse of office and violation of the law by judges for the purposes of financial or other gain for themselves or others.
The scandals that attracted the most public attention and informed negative public perception included the “greasing” case, involving the HJPC President, and the case of the judge of the Municipal Court in Sarajevo, who is suspected of violating the law for the purposes of financial gain of another person and who fled BiH during the investigation (an arrest warrant was issued against her). The “greasing” case led to a number of dubious procedures in the HJPC with respect to the responsibility of the HJPC President.
Although some cases resulted in pressing of charges against judges and prosecutors, there was no effective trial that would return the public trust in the judiciary. The case of the female judge of the BiH Court lasted six years and was ended with the final decision of acquittal. The case of the BiH Chief Prosecutor has been going on for five years already and has still not been finalized.
The media reported daily on the scandals related to the judiciary, thus creating a perception of crime of unimaginable scale. One investigating journalism text read that the HJPC President was a member of three ad hoc arbitration panels in the lawsuits of two public companies and that he earned an annual salary of a judge from such an engagement. The President publicly admitted this and explained that the HJPC had previously adopted a decision that engagement on an arbitration panel was not incompatible with holding a judicial position. The respective decision was not presented to the public. Even if it existed, according to the Book of Rules on conflict of interest, annual honorariums of a judge should not exceed 20% of the annual salary of the judge.
Media also reported that the mandate of a judge in the Cantonal Court of Sarajevo was extended despite the fact that a disciplinary procedure had been initiated against him. Namely, when he applied for a position in the judiciary he omitted to mention that he had been convicted two times, once for an attempt of rape. Individual members of the HJPC publicly presented different information, which is impermissible for such an institution. After the media report, the European Commission required an urgent response and suspension of the judge, if the information is proven correct. After a couple of days the HJPC adopted a decision on suspension of the judge. The Delegation of the European Commission in BIH also had to respond in the case of the prosecutor who had omitted to mention that he had been convicted for the criminal offence of violation of copyrights.
Recently the media reported that 20,000 BAM, seized in the course of a criminal procedure as evidence of commission of a criminal offence, went missing from the safe of the Una-Sana Canton Office of the Prosecutor. In fact, similar things have happened several times in relation to the seized items in criminal procedures. In the Basic Court in Banja Luka fire broke out in the premises where items seized in the course of criminal procedure were stored. The cause of the fire has never been established.
The European Commission and international organization were forced a number of times to publicly respond to the decisions of the HJPC (case of the Conclusions on investigation of war background of judges and prosecutors). Due to all the controversial decisions and actions, the work of the institutions is constantly monitored by the Delegation of the European Commission in BiH and some embassies.
Individual and uncoordinated public appearances of specific members of the HJPC also informed the bad public perception of the judiciary. Furthermore, the HJPC President and his two deputies initiated several private lawsuits for defamation against a number of reporters, politicians and their colleagues who had criticized them, which the public regarded as an abuse of power and undermining of the standard of impartial court.
3.3. Penetration of political influence
Politician have always had an interest to influence and control the judiciary. They did that through police services, which are under their direct control, as well as through the election and appointment of judicial-office holders.
When the political level lost the possibility to influence the election and appointment of judges and prosecutors, this interest became even more prominent. In our conditions, it is particularly profound because the entity political level cannot always influence police and other services that work for the judiciary at the state level.
When it comes to the BiH Office of the Prosecutor and the BiH Court, the story about political influence on the judiciary has been long present in the political and media space. Politicians, primarily from Republika Srpska, publicly stated that these two institutions were under the control of the international community and Bosniak politics. Media published assertions that interests of two Bosniak political parties (SDA and SDP) were intertwined in the BiH Office of the Prosecutor.
A number of investigations and court proceedings were conducted by the BiH Office of the Prosecutor and BiH Court against high ranking politicians. Majority of them ended in decisions of acquittal. In some of them, the BiH Court issued final suspended sentences for criminal offenses within the purview of the entity level (negligent performance of a service!). Trials in such cases were given special priority. In some cases the political background of the process was rather conspicuous. All the above informed the belief of the public that politics has strong influence on the judiciary.
The situation escalated in the recent years with the renewal of the mandate of the HJPC President and election firstly of the BiH Court President, and then the BiH Chief Prosecutor. There was a plethora of media reports that the appointments were a result of an agreement of three political leaders. Such assertions published in the media cannot be proven, but also cannot be absolutely excluded. Both elections were followed with an array of controversies regarding the criteria used in the process, and particularly with respect to the managerial experience and professional qualifications of the elected candidates. Interestingly enough, disciplinary procedures were conducted against the BiH Chief Prosecutor and the BiH Court President. The Chief Prosecutor was relieved of duty, and the BiH Court President was acquitted of charges.
4. Messages of traumatic experience
The brief analysis of the reform process and temptations of independence lead to an educated conclusion that the ruling political structures have successfully conducted the operation of destruction of the judiciary from within using the weaknesses in the concept of the independent regulator. In essence, the operation boiled down to corruption of individuals and interest groups within the HJPC with the aim of bringing to managerial positions in the judiciary judicial-office holders close to political structures. As the worst and least competent are always close to political structures, the judiciary became a system of incompetent and irresponsible individuals. In such a way, room was created for internal corruption, violation of the law and the code of ethics, abuse of process-related authorities and “simulating” performance through good statistics, but poor results.
Today, there is no doubt that for six years HJPC President Milan Tegeltija implemented a political project of internal undermining of the judicial system and the HJPC institution. After resigning from the position of a member and the President of the HJPC, Tegeltija went to the position of the legal advisor in the Office of the Member of the BiH Presidency Milorad Dodik. A year after the transfer, Milorad Dodik organized boycott of state institutions and announced return of the transferred judicial competences back to the RS. It would be naive to believe that Milan Tegeltija was the only man whom political structures had installed in the HJPC to work on a special task. How was it possible that 15 members of the HJPC participated in this destructive project for six years? There is no reasonable answer to this question. The only conclusion that can be made is that there is a serious problem with their integrity, as well as the effective and responsible functioning of collective independent bodies. Accountability of HJPC members to the institution, accountability of the independent regulator to the legislative branch and the accountability of the judiciary to the society must be the backbone of the future reform process. This problem in the judiciary requires special attention.
The personnel structure of the HJPC includes people of different backgrounds and interests. By the nature of things, the judges and prosecutors do not have many common interests. Neither do attorneys at law have common interests with prosecutors and judges. The members elected by the legislative and executive branch have an interest to transmit political influence. Their common interests can be related only to corruption and trade in influence, which, apparently, was the rule. This problem cannot be easily resolved in a society that is left without a moral basis. An option is to start moving in the direction of separation of the judicial and prosecutorial regulator and elimination of members coming from the attorney-at-law community.
It seems that the structure of an independent regulator in which judges, or prosecutors, would form a majority, and the rest would be just representatives of the legislative and executive branch should be seriously considered. Narrowing down the circle of interested groups and having only members that are representatives of the three branches of the government would facilitate the decision-making process, provide for mutual control of the legality of exercise of authorities and divide social accountability among the key factors of the state government. This would also establish the necessary dialogue of the three branches on judicial reforms and problems, as well the system of accountability to the society. Today, the public regards the HJPC as an alienated center of judicial power, and the entire judiciary as a system without social control or accountability.
About the author:
Branko Perić has served in many positions in the judiciary: judge, president of the court, prosecutor and attorney at law. From 2001 to 2003 he was a member of the BiH Central Election Commission. Since 2003 he has served as a Judge of the Court of Bosnia and Herzegovina, and from 2004 to 2008 he was a member and president of the BiH High Judicial and Prosecutorial Council (HJPC).
*The author’s stances presented in the article is his personal..