Jasmin Hasić wrote “Governing Diversity: The Unexposed Rules of Engagement within the Justice System of Bosnia and Herzegovina” as part of the Humanity in Action Diplomacy and Diversity Fellowship. Jasmin is a PhD candidate at LUISS Guido Carli of Rome and is a Humanity in Action Senior Fellow. He particapted in the Humanity in Action Fellowship in Germany in 2009 and the Diplomacy and Diversity Fellowship in 2014.
Abstract
The process of Europeanization had a measurable impact on the democratic transformation of the Western Balkans in the aftermath of violent conflicts in the 1990s. The case of Bosnia and Herzegovina is particularly relevant in this context, as it reflects a wider platform of the EU’s engagement in the reform of the political system, both in the sphere of public policy and in institutional capacity building.
Europeanization has been the latent driving force of BiH’s political development in the post-conflict period, and a guarantor of its territorial integrity. The aim of this paper is to give an overview of the Europeanization concept and to analyze its influence on the transformation of Bosnian-Herzegovinian judicial system in the context of advancing inter-ethnic diversity and pluralism. The paper addresses the impact of Europeanization on promoting diversity within Bosnia and Herzegovina’s judicial system reform and the extent to which it has been successful in accomplishing the set tasks.
The author questions whether the current system of appointing judges and prosecutors in line with their ethnic identity and pre-set schemes of ethno-territorial diversification of the system can have an effect on consolidation of an independent, effective, efficient and professional judicial system and move BiH further along on its path toward EU membership.
Keywords: Europeanization, Bosnia and Herzegovina, judiciary, HJPC, democratization.
Introduction
Bosnia and Herzegovina’s broadly federal, but overly complicated, post-conflict structure is the result of the Dayton Peace Agreement, signed in December of 1995. From this perspective, BIH can be seen as a decentralized, con-federal state divided into two highly self-governing entities. (1) In its short historical development as an independent state, from its original multiethnic foundation as part of former Yugoslavia through a four year long war to its post-conflict constitutional structure, BiH reached a point of strong social and political disintegration, rather low levels of post-conflict societal reconciliation, a dreadful state of the economy and sky-high unemployment. The limited progress achieved in the past 19 years is mainly constrained by the absence of a shared vision of the country’s democratic future, unsteady economic development and unstructured social dialogue among relevant political actors.
Ever since the end of the tragic Bosnian war in 1995, scholars have been dwelling on a number of the extensive consequences of this extremely brutal conflict, which negatively reflect on the peaceful coexistence of the three ethnic communities. Even though Bosnia and Herzegovina has made some progress in the post-conflict government reforms, the risk of the state’s political and constitutional disintegration is still viable. Instead of accommodating ethnic plurality, thus positively endorsing the advancement of both democratic institutions and decision-making processes, several political actors further cement the importance of ethnic divisions. The state of Bosnia and Herzegovina has not only been struggling with these severe ethnic divisions among different constituent communities, but also with the issue of accommodating the needs of national minorities. Achieving a pluralistic, democratic and more efficient mode of governance is still a very complex issue.
The EU has employed various approaches of Europeanization in many non-EU countries. (2) Most of those are designed to “teach” EU policies – as well as the ideas and norms behind them – to outsiders and potential candidate states, to persuade outsiders that these policies are appropriate and, as a consequence, to motivate them to adopt those policies. (3) Effects of the EU’s “social learning” and “constructive impact” in Bosnia and Herzegovina are exercised on three levels: the citizens of Bosnia and Herzegovina, (4) the institutions of Bosnia and Herzegovina (at all government, administrative and territorial levels) and the civil society. (5)
The plurality of legal orders and the fragmentation of the judicial and prosecutorial system in BiH give rise to several concrete challenges, primarily seen in the lack of supreme judicial bodies, issues relating to the High Judicial and Prosecutorial Council (HJPC), the cooperation among various judicial and prosecutorial institutions, the structure of the judicial and the prosecutorial system and the tenure of judges and prosecutors. (6)
The focus of this particular research is set on the issue of diversity in the BiH judicial system (since the Reforms of 2003) (7) in the context of the Europeanization of BiH’s judiciary. It is crucial to examine the ways in which this reform has contributed to promoting and sustaining “diversity” within the BiH judicial system and whether endorsing the “diversity” component to the previously segregated mono-ethnic judicial system has correlated with fairer, more secure, transparent and trustworthy judiciary. More specifically, it is necessary to investigate the following research questions:
• Did the process of appointing judges and prosecutors of a certain ethnic group in the office situated in a city where the majority population belongs to one of the other two ethnic groups in BiH help to promote values like objectivity, legitimacy, impartially of the judicial system, and in what way?
• Was promoting diversity in the BiH judicial system (based on ethnic diversification and tendency of equal territorial dispersion of different ethnic groups) the necessary and sufficient condition for fostering further societal consolidation and ensuring a more stable accession process of BiH to the EU? Was there an alternative model?
The research methodology of this paper is a disciplined case study, an analysis of judicial system of Bosnia and Herzegovina, its legal, political and constitutional development in the post-conflict period within the context of the EU accession and the Europeanization process with a particular focus on promoting ethnic diversity. The overarching objective of this paper is to investigate the cause and effects of the 2003 judicial reform and specific cases of interactions between relevant actors, groups and institutions in the judicial system of BiH.
Uncovering the Hidden Mechanisms: Tiptoeing around the Fragile Construction and Structure of the BiH Judiciary
It is reasonable to assume that a successful democratic transformation of the post-conflict and formerly communist Bosnian society, presently aspiring to integrate into the European family, requires an active role of the EU institutions and actors in the process. The EU, although not very effective in bringing to an end the 1992-1995 war in BiH, eventually took a more active role in the country’s post-conflict reconstruction. The European Union was not only able to address a wide range of democratic transformational challenges at once, but also to focus on strengthening BiH’s political stability, enhancing societal consolidation and preserving territorial unity.
From the European Union’s point of view, Bosnia-Herzegovina, Albania, FYR Macedonia and Montenegro are classified as partially free regimes. (8) This is one of the key reasons why the EU integration process, as a vital interest of all Bosnian peoples and all levels of government, has been perceived as a venue for overcoming the legacies of the turbulent past.
Conceptual Apparatus
Europeanization is a very broad term and there is an overabundance of literature that deals with definitions of this concept. One of the very first authors to provide a comprehensive and widely acknowledged definition of Europeanization was Robert Ladrech. He defines it as the process that led to changing trends and characteristics of policies to such an extent that the political and economic sphere of the EC/EU became a part of the organizational structure, policies and processes of decision-making in nation states. (9)
Radaelli and Blumer further developed this definition. In their view, the process of Europeanization denotes not only a mere norm diffusion into organizational structures and policies of individual EU member states, but also a process consisting of (a) forming, (b) expanding and (c) institutionalization of formal and informal rules, procedures, policy, paradigms, styles and shared values, which are first defined and consolidated at the EU level and then incorporated into the policies of domestic discourse, identities, political structures and public policies. (10) According to this definition, the process of Europeanization influences domestic politics in all its spheres (i.e., polity, politics and policy), not only in EU member states but also in (potential) candidate countries – for instance Serbia, FYROM, Montenegro or Bosnia and Herzegovina – or countries that, for whatever reason, do not participate in the EU integration process, such as Norway or Switzerland. (11) Overall, Europeanization signifies an application of a set of rules, for example on regulation and distribution in specific policy areas or on administrative and judicial process, set-up and competencies of the state and its sub-units, and so on. In particular, these can include association of the EU’s standards and practices into national laws and even setting up formal institutions and procedures that would be in line with these standards. (12)
This paper aims to test the hypothesis of whether the Europeanization of the BiH judiciary, in the context of promoting diversity through a multiethnic judiciary, was a long term strategy of the EU Commission in the BiH accession path towards full membership in the Union, and whether these efforts will continue in the future through the mechanism of The Structured Dialogue on Justice. (13)
Issues on the Policy Level
The independence of the justice system is immensely important in post-conflict societies like Bosnia and Herzegovina, as this principle reflects social norms and values towards other social structures and is considered to be the basic prerequisite for successful transformation of social dynamics. In this sense, establishing an independent judiciary and the rule of law in Bosnia and Herzegovina is directly dependent on a set of both institutional and material guarantees.
The court system of post-conflict Bosnia and Herzegovina reflects the complexity of the country’s constitutional organization. Bosnia and Herzegovina has 76 courts, out of which three are constitutional, two are supreme, one is on the state level, six are commercial and the 64 remaining ones are courts with general jurisdiction. (14)
The post-conflict judicial system was increasingly subject to different political attacks and interference. Significant changes were introduced in 2003 when the reform was imposed. (15) Judicial reforms aimed at reinforcing and ensuring that the rule of law takes root in BiH. The whole process assumed restructuring of courts and prosecutorial services, the re-appointment of judges and prosecutors and the establishment of state-level judicial institutions: the national level Ministry of Justice and the High Judicial and Prosecutorial Council (HJPC), (16) a body in charge of the appointment of the judiciary at all levels in BiH, the disciplinary responsibility of judges and prosecutors. (17)
The appointment procedure of judges and prosecutors has become one of the central themes of the reform. Dynamic legislative changes illustrated the need to carefully consider this part of the transformation procedure and the selection of judges and prosecutors has been taken outside of the executive and legislative branches of the government, with the aim of strengthening and maintaining the independence, accountability, efficiency, professionalism and harmonization of the judicial system, which would as a result ensure the rule of law in BiH and the Strategy for Justice Sector Reform in Bosnia and Herzegovina.
However, surprisingly little attention has been paid to the essence and purposefulness of the appointment procedure. The official measures taken were unclear, often not transparent, based on a procedure that lacked outside oversight and was not accountable to any other body than to itself. The design of the appointment scheme lacked long-term goals and was torn between desires to accommodate permanent solutions while also satisfying the basic needs of the transitional period in which its true effectiveness could be objectively evaluated.
Namely, in the context of promoting diversity in the previously territorially segmented monolithic judiciary, the High Judicial and Prosecutorial Council HJPC has been reappointing judges and prosecutors mostly based on the ethnic origin of the candidates whose profiles fit the vacant position in a court or prosecutor’s office located in the city where the majority of the population belongs to one of the two other dominant ethnicities. Certainly, other parameters like gender and years of experience have also been taken into consideration. Still, the key assumption of promoting diversity through a multiethnic judiciary was based on filling in the spots based on 1991 national population census results. (18) These decisions on appointments were apparently taken as granted and not cautiously evaluated.
And so the process of relocation began. Many of the re-appointed judges or prosecutors of one ethnic group were transferred to territorially often distant judicial institutions situated in the cities where their ethnic group was in the minority. At first, many engaged officials did not welcome this change in the system, because they feared becoming potential collateral damage of yet another poorly designed and externally imposed post-conflict reform. They protested the purpose of relocation and did not want to transfer or resign under pressure. Some feared that this structural change in judicial human resources composition might be a way to get rid of some people, move those who are unwanted in their own institutions or to pave the way for accepting less experienced and unqualified jurists into the judiciary.
Only a handful of those appointed in offices situated outside of their place of residence or institution where they worked willingly accepted to be relocated. Later on, many others joined the cause, out of fear for losing their jobs or under pressure of being unable to get ahead in their careers if the refused to be relocated. Many of the reappointed judges and prosecutors were not only repositioned to another city/institution, but they were also appointed as the Court presidents or Chief prosecutors, which was very unusual to both them and the other employees of the institutions they were brought to.
The ethnic diversification scheme highlighted some additional structural problems. Most of the jurists who were relocated did not bring their family members with them, thinking that their relocation was only temporary, and there was no need to disrupt their children’s or their spouses’ lives. Often, their family members would not want to move out of fear or personal prejudices towards people or the destination city. Relocated jurists would refuse to purchase any real estate or settle down permanently, thinking of their own position in the reform process as a kind of diplomatic mandate with an expiration date. The diversification of the judiciary in Bosnia and Herzegovina through relocation was thus not complete because the judges would frequently apply for new posts in their former places of residence, with strong hopes of returning there or to other cities with a majority of “their own people.”
The HJP Council would rarely consent to these applications, and in time the situation became quite dubious. Many of judges and prosecutors, (19) for 11 years now, live away from their families, which they initially left behind thinking that their resettlement would be only a temporary solution. Most of them do not want to continue this life style, but they are unable to relocate to another city within the system due to the Council’s imprecise policy of mixing and diversifying the judicial personnel.
In Service of Polarizing Strategy: Finding Meaning in Reforms and Multiethnic Judiciary
The Role and Impact of the High Judicial and Prosecutorial Council (HJPC) in Diversifying Bosnia and Herzegovina’s Judiciary
National level policy making in Bosnia and Herzegovina is highly dependent on foreign factors and an inner struggle between different political stakeholders, caught in a gap between the end of the post-war international supervision and management of the country’s transition into a fully functioning democratic society. Reforming the judicial system in Bosnia and Herzegovina is in the focus of both domestic and international efforts to consolidate a democratic and politically stable country. Despite the noteworthy progress, much remains to be done, as the completion of these reforms is fundamental to BiH securing its rightful place in Euro-Atlantic institutions to meet internationally recognized standards. Many commentators, chief among them the Venice Commission, emphasize that in practice the HJPC has played an extremely important role in strengthening the independence of the judiciary and cooperation among judges and prosecutors. In their view, the HJPC has helped to increase the institutional and individual independence of the judiciary. It has done so by introducing more transparent criteria for the appointment of judges and prosecutors, by applying these criteria and also by seeking to modernize the judiciary with the help of new means of communication and the automatic selection of cases. The Venice Commission concludes that the HJPC has the potential to play an even more important role, notably by becoming the main driving force behind a more general reform of the judiciary in BiH. (20)
However, achieving the balance between autonomy and accountability of the judiciary is a serious question for Bosnian society in transition. Only the law on the HJPC and no other legal provision regulates the responsibility of all members of HJPC, which remains a serious issue in practice. (21)
High Judicial and Prosecutorial Council’s Legacy
The following paragraphs summarize the last six years of data on the ethnic component of the appointment of judges and prosecutors made by the HJPC, from 2007 until 2012. (22)
In 2007, the ethnic breakdown of judges and prosecutors in Bosnia and Herzegovina was completely aligned with Article 43 paragraph 2 of the Law on the HJPC, when the Council applied appropriate constitutional provisions that regulate equal rights and representation of constitutive ethnic groups and others. During 2007, just as in the period before it, the HJPC continued to face an obligation to adhere to the above provision of the constitution.
According to the Official HJPC Report for 2007, (23) there were two prominent trends in the appointment procedure: the candidates who were applying for the first time were mostly applying for positions that were vacant in their place of residence or not far from it. On the other hand, the judges and prosecutors who were performing the duty for a certain period of time in a place that was far from their place of residence were applying to positions in their place of residence or in a place nearby. There were also examples of candidates applying to positions at a lower level, for example from the district/cantonal level to the basic/municipal, exclusively for the sake of returning to their permanent place of residence and family reunification. There were several examples of resignations to judicial office due to separation from family and difficulties of separate life and the costs that it entails. The consequence of this trend is that it is increasingly difficult to adhere to the principle of ethnic representation of constituent ethnic groups and the category of others in accordance with the 1991 census. In its attempt to follow and respect this obligation, the Council in 2007 operated under the previously adopted position that when the vacancy is published for the first time, all attempts are made to fully comply with the legal provision and any possible deviation was allowed only in exceptional cases and only when a repeated vacancy candidates from a specific ethnic group or from the rank of others could not be reached (i.e., the candidates who were supposed to fill the vacant position). (24)
In November 2007, the report of the Working group for the appointment policy was adopted. This working group deliberated upon the best methods to attract quality young staff to judiciary, as well as developing the motivation factors that would ensure the highly qualified staff to remain in the judiciary. One of the working group recommendations resulted in the Memorandum on long-term cooperation in the sphere of professional and practical development of law school students, which was previously signed in October between the HJPC and all law schools in Bosnia and Herzegovina.
In the course of 2008, (25) as in the previous period since the initiation of the reforms, the HJPC was faced with problems as a result of the obligation to apply certain constitutional provisions regulating equal rights and representation of constituent groups and others at the time of passing decisions on appointments. Namely, during the selection and appointment of candidates to certain positions and in certain regions of BiH, there were no interested candidates or skilled personnel from the ranks of some of the constituent groups or others to be appointed, in accordance with the consensus from 1991. Candidates applying for the first time mostly apply for vacant positions in their place of residence or close to it. However, judges and prosecutors who work outside their place of residence for a considerable period of time (of minimum of three years), maintain applying in order to get appointed to positions in their place of residence or nearby. Again, in case they are unsuccessful in their attempts to relocate to such positions they often decide to hand in their resignations due to difficulties related to life away from home and family and the expenses thereof.
In spite of this, the HJPC believes that it has reached a satisfactory level of ethic balance in judicial institutions in BiH, thought it notes that it is increasingly difficult to maintain the principle of ethnic representation of constituent groups and others from the ranks, as per the consensus from 1991.
In their report for 2008, the HJPC was constantly facing the dilemma of, on one hand, how and in what way to respect the constitutional and legal obligation of equal rights and representation of constituent groups and Others during appointments to judicial positions and, on the other hand, how to adequately meet its legal obligation to provide an effective and professional judicial system.
The HJPC Report for 2009 (26) highlights the same problems as in the past. The novelty of this Report is the mention of “Others” alongside three constituent groups of peoples – Bosniaks, Croats and Serbs. The trend whereby candidates would generally apply for positions which were vacant in their places of residence or close to it, continued. Moreover, the similar development where judges and prosecutors who have for some time now held office in a place that was a greater distance from their place of residence, had applied for positions in their places of residence or close by, which as a consequence made it more and more difficult to fulfill the principle of ethnic representation of the constituent peoples and Others according to the 1991 census. Lesser deviations were made only in exceptional circumstances such as when even after many repeated competitions it was not possible to appoint a candidate from the relevant constituent peoples or “Others” based on the 1991 census.
The HJPC’s Report for 2009 also refers to the Gender Balance of Judges and Prosecutors in Bosnia and Herzegovina, but there is no indication or direct reference to the 1991 census, or any other international standard. The Report only states the number of employees in a Gender breakdown table, and compares the ratio between the number of men and women working in judiciary.
High Judicial and Prosecutorial Council of Bosnia and Herzegovina, in its Annual Report for 2010 (27) highlights that, in spite of their best efforts to appoint the best candidates for judicial office, they still felt bound to the constitutional provisions on equal representation of the constituent peoples and “Others”. In other words, the HJPC was unable to find the appropriate methods to resolve this acute identified in the previous reports.
In the Reports for 2011 (28) and 2012 (29) the HJPC does not repeat the same old excuses, but the ethnic appointment component becomes an integral part of every decision on appointment. In other words, the HJPC does not highlight this issue as independent or worth noting, but rather as a natural and inseparable component of their each appointment decision. An extract from the Report for 2011 is can be found in the following tables:
‘Reality Check’: Matching the Standards and Obligations
The focus of domestic and foreign actors engaged in justice reforms in Bosnia and Herzegovina, especially within the framework of a Structured Dialogue with the EU, has been directed towards improving the efficiency of the judiciary in BiH. (30)
Commenting on pending reforms to the High Judicial and Prosecutorial Council, the EU Delegation spokesperson Andy McGuffie said: “The EU attaches the utmost importance to issues pertaining to the independence, professionalism, efficiency and accountability of the judicial system. The EU-BiH Structured Dialogue on justice was launched with a view to establish a platform, firmly based on the local ownership principle, for debate on reforms that would allow strengthening judicial institutions throughout BiH, including at the state level.” (31)
At this point, it is noteworthy to cite the words of Stefan Füle, EU Commissioner for Enlargement, presented at the beginning of the process of Structured dialogue in Banja Luka, where he underlines that the EU strongly supports the work of the State Court of Bosnia and Herzegovina, the State Prosecutor’s Office of Bosnia and Herzegovina and the High judicial and Prosecutorial Council. In his view, all these bodies provide an important contribution to ensuring the rule of law in the country in line with European standards. Therefore, it is crucial that their existence is no longer called into question and that any discussion on their functioning is guided by acknowledging their role in the national judicial system. (32)
Obviously, the establishment and functioning of the HJPC, as well as the activities in its competence (including appointment of judges, disciplinary procedures etc.), are subject to international standards. The standards are enshrined in instruments adopted both at the universal and at the European level. And some of these instruments are legally binding for BiH national government. (33)
The essential question to be answered, however, is whether this “diversification” of the BiH judiciary, based on an ethnic foundations and respect of the constitutional provisions for ethnic balance, can be considered as a part of the requirement imposed by the EU Commission or a model fitting the Europeanization efforts of BiH, or is it simply something that has been adopted as a inner norm within the HJPC and projected as an obligatory standard forced onto the system by the EU?
According to the Article 3.4. of the European Charter on the Statute for Judges from 1998, in principle, the judge who is already working within the judicial system cannot be reassigned to another judicial function or be relocated elsewhere, even on the basis of promotion, if he does not voluntarily agree with the decision. Exceptions to this principle are allowed only if the transfer of judges is considered to be a disciplinary sanction, in the event of a lawful reform of the judicial system and in the case of temporary resettlement aimed at pick up the work pace, where the law expressly limits the maximum duration of a task.
Article IX.3. of the BiH Constitution provides that only “Officials appointed to positions in the institutions of Bosnia and Herzegovina shall be generally representative of the peoples of Bosnia and Herzegovina.” By implication, this should not relate to judges or prosecutors, but rather those who acquire political mandate.
The principle of equal representation of the constituent peoples among the judges of a particular court has not codified anywhere in the judicial system of BiH, except in the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, (34) in a way that is compatible with the Constitution. In the Article 43 (Criteria for appointment), paragraph (2) of the Law stipulates, “the Council shall apply the relevant constitutional provisions respecting the equal rights and representation of the constituent peoples and Others.”
The Venice Commission, in its Report on Judicial Appointments, stated that an appropriate method of guaranteeing the independence of the judiciary is the establishment of a judicial council endowed with constitutional guarantees for its composition, powers and autonomy. (35) Although there is no standard model for a judicial council, the Venice Commission believes that balance should be struck between judicial independence and self-administration on the one hand and the necessary accountability on the other, in order to avoid negative effects of corporatism in the judiciary. (36) It also stated that a substantial element or a majority of the members of such a council should be elected by the judiciary itself and other members could be elected by Parliament in order to provide for democratic legitimacy of the council. (37) Members of the European Commission for Democracy through Law, in their Opinion no. 648 / 2011 on Legal certainty and the independence of the judiciary in Bosnia and Herzegovina have also stressed that all decisions concerning the professional career of judges must be based on objective criteria and must avoid any bias and discrimination. (38) The selection of judges and their promotion must be based on merit (professional qualifications, personal integrity) – implying that the ethno-based appointments should be minimized.
Furthermore, in the context of evaluating the efforts to ensure equal representation of the people within the courts of Bosnia and Herzegovina, the Commission noted that although such efforts are justified in the political sphere, for example, in determining the parameters of the voting system. They are, however, very problematic to apply to the judiciary. The judiciary is not a representative institution. In this case, the principle of independence and impartiality of judges should have more power than other considerations. The Commission also believes that the organization of courts along ethnic lines would be wrong, counterproductive and damaging to the credibility of the judicial institutions. Such an approach might also be contradicting the Article 14. of the European Convention on Human Rights relating to the prohibition of discrimination, and it therefore should be approached with particular caution.
Such harsh comments are not common in the opinions of the Commission, which further confirms the problematic nature of the regulations on ethno-based composition of the BiH Courts.
Perceiving the Roles of ‘One Another’: Modifications or Alternatives to the Current Practice
The Practice of Appointing of Judges and Prosecutors
Until the system of transparent competitive examination of candidates was introduced by the HJPC in 2012, there were no clear, codified criteria for assessment of candidates for the Judiciary. Formerly, the principles were laid down in the Law on the HJPC (39) and have not been adequately developed in any of the internal acts, primarily in the Rules of Procedure. (40) The general public did not have access to biographies of the candidates, nor into the procedure itself. Candidates did not have the ability to use an adequate remedy to the decision on the appointment. In the process of interviewing for positions in the judiciary, there was no written record of the conversation, although they were supposed to be kept for every candidate and signed by them after the interview is over, according to the Law on Administrative Procedure Code of Bosnia and Herzegovina. (41)
The Law on HJPC sets out detailed requirements that a candidate must meet, but the written final decisions on appointment made by the members of the HJPC do not reflect precisely which of these criteria were taken into account. Decisions of the appointment issued by the HJPC do not contain the words like “qualifications, knowledge and experience” or “previous professional accomplishments, and their ability to perform duties of Judge” etc. The appointments acts do not contain these details since there is no legal provision or a by-law prescribing such an obligation for the HJPC. (42) The lack of these components prevents all non-elected candidates to pursue any legal remedy. (43)
The Bosnian Triangle: Politics vs. Competence vs. Ethnicity
In spite of the fact that BiH judiciary is severely infected with many different problems, key among being nepotism, corruption and other structural problems found in every other post-conflict/transitional country of the world, the issue of tripartite ethnic “pillarization” of judiciary remains the most troublesome aspect of the 2003 Reforms. Some would argue that these former segmented micro islands of mono-ethnic judiciary have no place in a multiethnic country. To them, it is only natural that multiethnic country has a multiethnic judiciary. Others would oppose to these intuitive stances by stipulating that the judicial system is apolitical in its inherent nature and it should not be founded on a democratic system, depended on popular vote, majority or opinion.
Giving preference to ethnic quotas over expertise and experience in appointing judges and prosecutors is not a model that satisfies the objective and professional work of the HJPC. Criteria of expertise and professionalism should not be overlooked or shadowed by ethnic quotas. (44)
The importance of systemic reforms in the context of breaking down the ethnic mandated appointing judges and prosecutors in BiH judiciary has been recognized by all of the interlocutors. Diversity has perceived as a tool in service of promoting equality, reconciliation and multiculturalist’s vision of the country. However, it has been accepted as a purpose in itself, and it had a very little to do with promotion of other values which could be traditionally attached to the judiciary – like objectivity, impartiality and/or fairness.
Thus, instead of promoting substantive diversity and multiethnic judiciary, long-term tensions between the ethnicities in the political and social sphere have been virally transferred onto judiciary. The B-H-S (45) paradigm present in the society has been translated to the battlefield between the domicile vs. non-resident judges and prosecutors, “us vs. them”. Many of the judges and prosecutors find that politics is heavily reflected in judiciary, which should not be the case, because judiciary is comprised of all professionals who are equipped to deal with the spillover conflicts from both legislative and executive branches.
Different interviewees have perceived the role and functions of the HJPC differently. However, most of them agree that the Council had a strong responsibility in the period after its establishment, though its power has been shifted towards some sort of ever growing authoritarian oligarchy. At the beginning, the Council had strong independence, not only with respect to the executive government, political parties and other lobbies, but also towards the international community, the US and the EU. Today, it is quite a different story.
Critics of the work of High Judicial and Prosecutorial Council of Bosnia and Herzegovina blame the Council for being out of control, without direct responsibility towards the people or any other democratic institution or accountability to anyone else but themselves.
Still, majority of interviewed judges and prosecutors consider the existence of HJPC to be an important, even vital, part of the judicial system, as it indirectly increases the level of democracy in Bosnia and Herzegovina. Any other alternative, like appointing judges and prosecutors through political channels of legislative or executive government, would be fatal to towards the entire political and constitutional system. In their view, the HJPC served as a guarantor of fair and impartial procedures of appointing judges and prosecutors.
There are several visions of the HJPC’s future shared among the consulted officials, but none of those advocates for its termination. Mainstream opinion is that the HJPC should be divided into two bodies or two independent chambers (one for appointing judges, other for prosecutors). It is also necessary to find ways to include independent attorneys in law into the decision-making process, in both bodies. Without this, the whole system might be subjective and partial, as prosecutors and judges would be completely isolated in their decisions, with no accountability or legitimacy towards anyone. The attorneys would serve as a safety mechanism that ensures the professional competencies, validity and reliability of the selection procedure. (46)
Most interlocutors perceive ethnic divisions within the system, under the umbrella of promoting diversity in the system, with respect of constitutional provisions and 1991 census, as erroneous. Ethnic-based selection preferences should not come first to professionalism and personal qualities of the candidate. The whole system has not point if it does not serve a greater purpose, like reconciliation or stabilization of the negative societal dynamics or other factors. Even though vast majority of interviewed jurists agreed that multiethnic has no sense in the case of ordinary court proceedings, all of them expressed a view that this recipe for diversification on an ethnic line has a purpose in the war crime trials, but it is very limited. Other than that, the whole procedure makes no sense to them. (47)
Job vacancies for any of the positions in the judiciary are public and open to all candidates who fulfill the legal requirements (law degree, bar exam, sufficient number of years of experience). However, the candidates who apply are only evaluated within their own ethnic groups. The criterion for selection is the overall quality; however the only candidates truly considered by the HJPC are those of a certain deficient ethnicity with respect to the vacant position. Namely, the Members of the Council receive a very detailed report of all candidates who have applied for a certain position located in the city XYZ, containing all their biographies, past achievements, scores and related statistics of their work. Nevertheless, before making any final evaluation, the Members of the Council are resolutely warned about the status of “ethnic deficiency” in the institution they are about to fill in (according to the 1991. national census). The list with desired numbers of candidate, belonging to a certain ethnic group, is very clear and points out the exact instruction of how to proceed with an appointment and which group of candidates is to be considered. The others are only a collateral damage of the procedure, wasting their time and money for showing up and applying.
Further on, the selection competition takes place within the certain ethnic group, and not amongst all candidates coming from an ethnic group that is already sufficiently represented in the institution with a vacant position.
In attempt to find an answer whether there is a remedy to this situation, and whether there can be any exemption to this rule, an explanation was given that if the first two job vacancies, which essentially secretly target a certain ethnic group members, are not successful (meaning that none of the candidates of the underrepresented group cannot be admitted on the basis of his/her quality or performance), a third job vacancy will be open for all candidates, regardless of their ethnic background. In that case, the candidate with best score will be appointed, unless there is another candidate belonging to the underrepresented “deficient” group, whose performance and scores minimally acceptable for appointment. (48)
This very confusing system is discouraging future potential young judges and prosecutors for applying. In addition to this never ending “ethnic combinatorics”, potential new candidates are also dissuaded to apply due to the infamous reputation of the HJPC in media as a private enterprise of senior judges, prosecutors, their families and friends, an impenetrable fortress of nepotism and personal interests.
The interviewed Presidents of couple of Courts and Prosecution offices, as well as some of current Members of the HJPC admit to having huge troubles with filling in places with quality candidates belonging to particular targeted ethnic group. The reform has been going on for almost ten years; many candidates have realized that the appointment procedures have gone terribly wrong in many cases. This remark was not brought up not only in the context that some of the less qualified and less experienced candidates have irrevocably penetrated into the system, but also in the perspective the judges and prosecutors who were affected by the reform, and had been relocated to other cities, are currently not able to go back to their homes or to be reassigned elsewhere closer to their homes and families, even after the minimum of serving the bench three years in their destination city (as they were initially promised). This is an additional reason why the new candidates are discouraged to apply for jobs – the fear of being forced to move elsewhere and with no real or rational time prospect of coming back to their former place of residence within the system.
And what about those officials who have been victims of this ethnic diversification experiment? A municipal court judge, with 18 years of experience in the justice system, 8 of those spent in a foreign city, replies that he has lost the faith of being reunited with the family. In his view, only two options remain in this situation: continuing this “charade” at a great personal expense or quitting the job. After 15 consecutive applications for relocation to the former place of employment or a nearby city, the second option is apparently more viable.
Above mentioned judge, as well as two others, share a common view on circulation issues, which have been overlooked in the system. They believe that the relocation should have been designed as a some sort of blood transfusion scheme: after initial appointment in 2003 and fixed 3 year-long mandate, they expected to be replaced by younger and less experienced colleagues of the their own ethnic group, who would later be replaced by their younger colleagues and so on. They all accepted as true that the system would continue to function in this way – permanently keeping the system multiethnic, while enabling all professionals to advance in their careers. (49) Only this option would have been fair in their view. This is why, they say, they did not bring they families with them in the first place, purchased real estates in the new city of their residence etc… They thought that that their relocation is only a short-term and temporary solution for them, and now they are stuck in time, place and the justice system. In conclusion, they deem this part of the reform to be an unsuccessful experiment.
Vast majority of interlocutors trust that the new census (October 2013) will only cement the reality and finally show how much the situation has been different since 1991 and how much the EU and the HJPC have “tried to patch up the broken system with their multiethnic vision of judiciary” and “counting ethnic blood cells, though unsuccessfully”.
The EU side of the justice reform is quite optimistic about the results of 2013 census, which will be published in the end of 2014. Interviewed officials at the EU Delegation believe that the situation is not as black and white as it seems, and that a lot of formal and informal negotiations will take place before any radical changes in judiciary happen. It would be irresponsible to give firm predictions of how the 2013 census results will be used to reconfigure the judiciary stricture and how will it affect the future appointments, without any hard research data and long negotiations.
The EU continuously supports the reform of the justice system, with hopes of consolidating an independent, effective, efficient and professional judiciary. Their role is not to pressure for indictments of high profile cases, or prioritize certain cases over others, but rather to facilitate process of change and move BiH further along its path towards the EU membership.
The EU values are widely appealing and should find their place within the Bosnian constitutional system. However, the interviewed gentlemen in the EU Delegation acknowledge that every European idea calls for some serious contextualization. Not many people have thought through all the possible outcomes that the justice reform could bring to the judiciary in Bosnia and Herzegovina, and this is why the EU Delegation in BiH struggles with overseeing the implementation of something that was not designed well in the first place. Ethnic component and diversity in the judiciary is not something they consider often or as a key part of any justice system reforms, yet this issue has always, surprisingly, come through as one of the most pressing concerns of local government.
Promoting ethnic diversification in judiciary is not essentially a EU value. However, given that Bosnia and Herzegovina is in a transitional phase and certain legacies of the past are still relevant in all spheres of the society, balancing the ethnic identities and group belonging has to come sometimes at the expense of justice, quality of judiciary and sometimes professionalism. It has been noted that the EU has, if anything, been critical of the supremacy the ethnic component has in the judiciary; nevertheless, recognizing the specificities of the BiH political system and transitional period, the EU has agreed that judicial reforms of 2003 should incorporate the multi-ethnicity requirement, based on the 1991 census.
This requirement was certainly not imposed as an imperative, but rather as a component that might facilitate the other processes in the country – mainly because judiciary cannot be isolated from the other segments of the political system. The ethnic requirements would be beyond of what the EU expects from the Government of Bosnia and Herzegovina, as this requirement is not firmly uphold in the EU itself. In principle, judiciary should be blind, and ethnic requirement should not be a part of the job description. In Bosnian context, unfortunately, it is a matter of coping with the current political reality. It is also a matter of ethnic hypersensitivity that has been present in the country ever since the end of the war of 1992-1995. (50)
Thus, it is important to know that the officials at the EU Delegation in BiH predominantly see this ethnic diversification of judiciary as a transitional solution, and that they are still seeking for adequate alternatives and enforcing further reforms. Still, a matrix of ethnic and gender components in appointing judges and prosecutors cannot be avoided in the future, even though they might be often seen as undermining factors in the process.
Nonetheless, in the context of BiH, it is believed that a proper representation will recalibrate the existing relationships, both within and amongst different ethnic groups, and thus promote further reconciliation. Parallel reforms will take place at the same time, and they will also have an effect on development of judiciary, in the same way as the reforms taken within the judiciary will impact other changes in the political system. So far, these mutual effects have been noticeable and have created a better working environment. Perceptibly when BiH joins the EU family, the ethnic standard will not apply, as the country’s judicial will reach the point of complete ethnic blindness, or at least loose sensitivity towards it.
Concluding Remarks
National level policy making in Bosnia and Herzegovina is highly dependent on foreign factors and inner struggle between different political stakeholders, caught in a gap between the end of the post-war international supervision and management of the country’s transition into a fully functioning democratic society. In that context, independent and fully functioning justice system is immensely important as it reflects social norms and values towards other social structures and is considered to be the basic prerequisite for successful transformation of the social dynamics.
Reforming the judicial system in Bosnia and Herzegovina was in the focus of both domestic and international actor’s efforts to consolidate a democratic and politically stable country. Many commentators, chief among the Venice Commission, emphasized that establishing an independent judiciary and the rule of law in Bosnia and Herzegovina is directly dependent on a set of both institutional and material guaranties and that setting up the High Judicial and Prosecutorial Council played an extremely important role in strengthening the independence of the judiciary and co-operation among judges and prosecutors. It has done so by taking the appointment of judicial official outside of executive and legislative branches of the government, and introducing more transparent criteria for the appointment.
However, dynamic legislative changes illustrated the need for careful reconsideration of some parts of the transformation procedure and the selection of judges and prosecutors in the context of their ethnic diversity, as well as relation of this reform’s aspect to strengthening and maintaining the independence, accountability, efficiency, professionalism and harmonization of the judicial system. The overarching objective of this paper was to investigate the course and effects of the 2003 judicial reform in BiH, within the framework of the Europeanization process, and to highlight some specific features of top-down mandated “diversification” based on an ethnic belonging of appointed officials, with respect to the constitutional provisions for ethnic balance and 1991 population census results. The aim was to examine the ways in which this reform has contributed to promoting and sustaining “diversity” within the BIH judicial system and whether endorsing the “diversity” component within, previously segregated mono-ethnic, judicial system has correlated with fairer, more secure, transparent and trustworthy judiciary.
The EU continuously supported the reform of the justice system, with hopes of consolidating an independent, effective, efficient and professional judiciary. During the course of the research, it had become obvious that promoting diversity in the judiciary through directed appointments by an independent body (HJPC) was not a permanent and underlying policy of the EU within BiH’s accession path towards full membership in the Union. It has been strongly noted that promoting ethnic diversification in judiciary is not essentially a EU value. The interviewed officials working in the EU Delegation to Bosnia and Herzegovina predominantly see “ethnic diversification” of judiciary as a transitional solution, and that they are still seeking for adequate alternatives and enforcing further reforms. Nevertheless, a matrix of ethnic and gender components in appointing judges and prosecutors cannot be avoided in the future, even if it undermines the quality of the process and the outcomes.
In that sense, one can conclude that giving preference to ethnic quotas over expertise and experience in appointing judges and prosecutors is not a permanent model that satisfies the objective and professional work of the HJPC. Criteria of expertise and professionalism should not be overlooked or shadowed by ethnic quotas. Even though most interlocutors perceive mandated and balanced ethnic composition within the system, as erroneous, the function and work that the HJPC does is principally observed as an important, if not vital, part of the judicial system, as it indirectly increases the level of democracy in Bosnia and Herzegovina. Certainly, there are diverging views of the HJPC’s future among the consulted officials, but none of those advocates for its termination. Any other alternative to HJPC, like appointing judges and prosecutors through political channels of legislative or executive government, would be fatal to towards the entire political and constitutional system.
The “ethnic diversification” component of the 2003 judicial reform has been going on for almost ten years now, and it has become apparent that the appointment procedures have gone terribly wrong in many different cases. It can also be accepted as true that this very confusing system and “ethnic combinatorics” is discouraging future quality and young jurists for applying to open vacancies in the justice system, and that it leaves opportunities for less qualified and less experienced candidates to perpetually penetrate into the system, thus damaging the entire credibility of the entire process.
Overtly, the process of appointing judges and prosecutors of a certain ethnic group in the office situated in a city where the majority population belongs to one of the other two ethnic groups in BiH had no measurable impact on objectivity, legitimacy, impartially within the judicial system. However, it can be argued that it was a necessary and sufficient condition for fostering further societal consolidation and building capacity for a more stable accession process of BiH to the EU. This process is in a transitional phase and certain legacies of the past are still relevant in all spheres of the society, balancing the ethnic identities and group belonging has to come, sometimes, at the expense of justice, quality of judiciary and sometimes professionalism. Recognizing these specificities of the BiH political system was certainly not imposed as an imperative by the EU as the key component of the reform, but it has been strongly encouraged in order to facilitate the other processes in the country, mainly because judiciary cannot be isolated from the other segments of the political system.
It is believed that a proper ethnic representation in the justice system will recalibrate the existing relationships among different actors and thus promote further reconciliation. Audibly, when BiH joins the EU family, the ethnic standard will not apply, as the country’s judicial will reach the point of complete ethnic blindness, or at least loose current hypersensitivity towards it.
Citation
Hasić, Jasmin. “Governing Diversity: The Unexposed Rules of Engagement within the Justice System of Bosnia and Herzegovina.” Article, “Knowledge & Action,” Humanity in Action, 2015. Humanity in Action, Inc.
References
1. Federation of Bosnia and Herzegovina (the Muslim-Croat Federation) is a highly decentralized entity with 10 cantons. Each Canton has a legislative and executive branch controlling internal affairs, education, culture and justice. There is very limited harmonization on the entity level, which mainly leads to non-functional entity governance, extremely high budget administration costs and sharp political disputes. The other entity, Republic of Srpska, inhabited mainly by Serbs, is a highly centralized part of BIH, with a single legislative body and executive government on the entity level, making decisions and covering all aspects of social and political life.
2. Heather Grabbe (2003:312-317) lists five of the most commonly used mechanisms of the Europeanization process: (1) transfer of the existing EU legal norms; (2) providing financial and technical assistance for the successful implementation of institutional capacity building; (3) providing examples of best possible practices (benchmarking) and the creation of regular evaluation reports (monitoring); (4) providing advice to enable the replication of civil servants (twinning); (5) ensuring the prospect of accession through negotiations (gatekeeping). For more details, see Grabbe H. (2003): “Europeanization Goes East: Power and Uncertainty in the EU Accession Process,” in The Politics of Europeanization, ed. Keith Featherstone and Claudio Radaelli, Oxford University Press.
3. The very first engagement of the EU in Bosnia and Herzegovina dates back to the so-called Royaumont Process. The concrete effects of the Europeanization process in Bosnia and Herzegovina can be seen later on, by examining the level of reforms in the constitutional order. This can be practically done by exploring the effects of work that the EU Delegation and the EU Special Representative in BIH have accomplished through the pre-accession negotiations and conditionality mechanisms.
4. In Bosnia’s case, this is particularly reflected in the Sejdic-Finci case. Ruling of the European Court of Human rights: Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06); in the merit of Prohibiting Rom and a Jew from standing for election to the house of peoples of the Parliament assembly for the state presidency, which is in direct breach of Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken together with Article 3 of Protocol No. 1 (right to free elections), and Violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention.
5. It is usually associated with the existence of non-governmental organizations involved in helping to overcome ethnic clashes and post-war trauma, restoring trust between each other by facilitating dialogue, etc.
6. Venice commission (European Commission for Democracy through Law) Opinion no. 648 / 2011 on Legal certainty and the independence of the judiciary in Bosnia and Herzegovina, CDL-AD (2012) 014, June 2012.
7. The reforms of 2003 were initiated and financed by the EU and the U.S. The process began with forming the High Judicial Council of foreign legal experts and a team composed of 100 domestic experts and with the aim of renewal of mandates for all judges and prosecutors and removal of those who were unworthy of their posts, functions and duties. In addition, the process sought to repair the mono-ethnic, politically controlled judiciary. For more details, see Visoko sudsko i tužilačko vijeće BiH (2012): VSTV kao temeljna i neopoziva komponenta reforme pravosudnog sistema u BiH, Informativni pregled.
8. Morlino L. (2008): Hybrid Regimes or Regimes in Transition? Fundación para las Relaciones Internacionales y el Diálogo Exterior (FRIDE) working paper 70, p. 3; and Morlino L. (2009): Are there hybrid regimes? Or are they just an optical illusion? European Political Science Review 1:2, 273–296.
9. Ladrech R. (2002): Europeanization and Political Parties. Towards a Framework for Analysis. Party Politics, p. 392.
10. Radaelli C. (2004): Europeanization: Solution or problem? European Integration online Papers, p. 16.; and Bulmer S. and Radaelli C. (2005): The Europeanization of National Policy. In: The Member States of the European Union. Eds. Bulmer, S. Oxford University Press.
11. Many authors stress the fact that Europeanization is not a synonym for European integration or convergence. It differs from European integration in that it results in a change of the behavior of political elites; however it does not entail a deeper integration as predicted by the theory of neo-functionalism. In other words, it is a process of structural changes that affect various actors, institutions, ideas and interests in a different way. For more information, see: Featherstone K. (2003): In the name of “Europe,” in The Politics of Europeanization, eds. Featherstone K. and Radelli C., Oxford University Press; and Börzel T. and Risse T. (2003): Conceptualizing the Domestic Impact of Europe, in Politics of Europeanization, eds. Featherstone K. and Radelli C., Oxford University Press, p. 71-73.
12. Schimmelfennig F. and Sedelmeier U. (2005): The Europeanization of Central and Eastern Europe, Cornell University Press, p. 7.
13. The Structured Dialogue on Justice is a newly established mechanism of the European Commission. It aims to advance structured relations on the rule of law with potential candidate countries, even prior to the entry into force of the Stabilization and Association Agreement (SAA). The Structured Dialogue will therefore assist Bosnia and Herzegovina to consolidate an independent, effective, efficient and professional judicial system. At the same time, the Dialogue helps the country move further along its path towards the EU. Commissioner Fuele launched the Structured Dialogue; the first meeting of the EU-BiH Structured Dialogue on Justice was held on June 6 and 7, 2011 in Banja Luka and the second on November 10 and 11, 2011 in Sarajevo. The third session took place on July 5 and 6, 2012 in Mostar. For more details, visit http://europa.ba/Default.aspx?id=87&lang=EN
14. In accordance with its administrative organization, there are 10 Cantonal courts in the Federation of Bosnia and Herzegovina; there are currently 28 Municipal courts in the Federation; there are altogether 32 courts in the Republika Srpska – the Constitutional Court and the Supreme Court of the Republika Srpska, five District Courts, 19 Basic courts, five District commercial courts and the High Commercial court. For more details see Ferizović J. (2004): The Court System in Bosnia and Herzegovina.
15. The European Commission’s Progress Reports on Bosnia and Herzegovina (from 2005 to 2011) highlight only “a modest progress,” while “Freedom House” in its report on “Nations in Transition” in 2008 underlines that “the judiciary in BiH is still struggling to maintain their independence.” For more details, please see Perić B. (2014) Tenzije između pravosuđa i politike: Da li najavljene izmjene Zakona o VSTV rješavaju probleme?, Foundation Public Law Centre – Fondacija Centar za javno pravo, http://www.fcjp.ba/templates/ja_avian_ii_d/images/green/Branko_Peric4.pdf
16. Similar models exist in France, where the Conseil Superieur de la magistrature has two councils – one for judges and one for prosecutors, as well as in Italy, Romania and Turkey. The HJPC of BiH consists of 15 individual members recruited among judges, prosecutors and other legal professionals. Apart from appointing judges and prosecutors pursuant to criteria that it sets, the HJPC monitors the activities of judges and prosecutors. In 10 years of its existence, the work of the HJPC has been marked with impressive successes in redesigning and staffing and technical development of the judicial system, process of renewal of the judiciary to the best European standards and procedures that included interviews with candidates and established a system of initial and continuing education, the further rationalization of the court network and many other accomplishments. Local elite members have also criticized the work of the HJPC as the center of “alienated power” and an institution that has no responsibility for “the failed reform of the judicial system.” Even Transparency International evaluated the work of the HJPC as “insignificant.” For more details, see Perić B. (2014) Tenzije između pravosuđa i politike: Da li najavljene izmjene Zakona o VSTV rješavaju probleme?, Foundation Public Law Centre – Fondacija Centar za javno pravo, http://www.fcjp.ba/templates/ja_avian_ii_d/images/green/Branko_Peric4.pdf
17. In addition, the Court of BiH and BiH Prosecutor’s Office became functional in 2005 with jurisdiction over the most serious crimes threatening social peace and security, including war crimes, organized crime and terrorism. For more details, visit: http://www.sudbih.gov.ba/ and http://www.tuzilastvobih.gov.ba/?jezik=e
18. According to the official statistics, the ethnic composition of the population in Bosnia and Herzegovina (for the three main constituent ethnicities) was: Bosniaks (Muslims in an ethnic sense) – 43,5%, Serbs – 31,2% and Croats – 17,4%. For more details, see the Institute for statistics of Federation of BiH data on the population’s ethnic breakdown in 1991, available http://www.fzs.ba/Dem/Popis/NacStanB.htm
19.There are no official statistics related to this matter available to the public.
20. For more details see Venice commission (European Commission for Democracy through Law) Opinion no. 648 / 2011 on Legal certainty and the independence of the judiciary in Bosnia and Herzegovina, CDL-AD(2012)014, June 2012., available: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL%282012%29039-e
21. See article 6. and 7. of the Law on the HJPC, available: http://www.hjpc.ba/dc/pdf/1%20-%20Zakon%20o%20VSTV%20-%20Integralni%20tekst%202008.pdf
22. Reports of HJPC of Bosnia and Herzegovina from 2004 – 2013 are available in local languages here: http://www.hjpc.ba/intro/gizvjestaj/?cid=3209,2,1
23. HJPC of Bosnia and Herzegovina Annual Report for 2007, available: http://www.hjpc.ba/intro/gizvjestaj/?cid=3871,2,1
24. The HJPC of Bosnia and Herzegovina developed a preliminary analysis of costs for compensation of for separate life which would be paid to judges and prosecutors appointed to perform duties in a court or a prosecutor office located outside their home canton/district, if a court or a prosecutor office is located more than 70 km away from their family place of residence. This analysis should be used in discussions with representatives of relevant organs in the executive and legislative power, through which this problem should be resolved in the following period.
25. HJPC of Bosnia and Herzegovina Annual Report for 2008, available at http://www.hjpc.ba/intro/gizvjestaj/?cid=4276,2,1
26. HJPC of Bosnia and Herzegovina Annual Report for 2009, available at http://www.hjpc.ba/intro/gizvjestaj/?cid=4737,2,1
27. HJPC of Bosnia and Herzegovina Annual Report for 2010, available at http://www.hjpc.ba/intro/gizvjestaj/?cid=5066,2,1
28. HJPC of Bosnia and Herzegovina Annual Report for 2011, available at http://www.hjpc.ba/intro/gizvjestaj/?cid=5407,2,1
29. HJPC of Bosnia and Herzegovina Annual Report for 2012, available at http://www.hjpc.ba/intro/gizvjestaj/?cid=5726,2,1
30. The EU-BiH Structured Dialogue on Justice is a very important opportunity for Bosnia and Herzegovina (BiH). This new tool, developed by the European Commission, has been launched with a view to supporting reforms of the justice system in the country and bringing it closer to the EU. This platform provides the context to discuss all reforms that are necessary to allow BiH to progress in the alignment of its judicial system with the EU acquis and relevant standards. The Dialogue is a bilateral exercise between the EU and Bosnia and Herzegovina. The plenary meetings of the Dialogue are open to the participation of relevant high-level practitioners and authorities. For more details, please see http://europa.ba/Download.aspx?id=736&lang=EN
31. Statement of the EUD/EUSR regarding proposed reform of the High Judicial and Prosecutorial Council, available at http://europa.ba/News.aspx?newsid=5471&lang=EN
32. Opening Speech of Commissioner Stefan Füle 1st meeting of the EU/BiH Structured Dialogue on Justice 6 June 2011 in Banja Luka, available at http://europa.ba/Download.aspx?id=853&lang=EN
33. Others are soft law, but often codify existing customary rules or summarize best practices. 15. At the universal level, the International Bill of Rights, encompassing the Universal Declaration of Human Rights (1948) and the two International Covenants (1966), establishes fundamental human rights standards, including those relating to judicial power.
34. Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, the Official Gazette of BiH 25/04, 93/05. 48/07, 15/08.
35. Venice Commission (European Commission for Democracy through Law) Report on Judicial Appointments, available at http://www.venice.coe.int/docs/2007/CDL-AD(2007)028-e.pdf, paragraph 48.
36. Venice Commission (European Commission for Democracy through Law) Report on Judicial Appointments, available at http://www.venice.coe.int/docs/2007/CDL-AD (2007) 028-e.pdf, paragraphs 27-29.
37. See Article 6 of the ECHR; Article 47 of the Charter of Fundamental Rights of the European Union; the Venice Commission’s Report on the Independence of the Judicial System Part I: the Independence of Judges, paragraphs 73-81.
38. Venice Commission (European Commission for Democracy through Law) Opinion no. 648 / 2011 on Legal certainty and the independence of the judiciary in Bosnia and Herzegovina, CDL-AD (2012) 014, June 2012, paragraphs 80 and 81.
39. Official Gazette of BiH 25/04, 93/05, 15/08.
40. Rules of Procedure, HJPC BiH, available at http://www.hjpc.ba/intro/?cid=1790,2,1
41. Trlin D. (2013): Uloga VSTV BiH u imenovanju nosilaca pravosudnih funkcija: stanje i perspektive, Foundation Public Law Centre – Fondacija Centar za javno pravo, available at http://www.fcjp.ba/templates/ja_avian_ii_d/images/green/Davor_Trlin2.pdf
42. Ibid.
43. Dissatisfied candidates appealed some of the HJPC’s decisions to the BiH Constitutional Court, arguing procedural flaws and lack of clear insight into their records. However, their applications were not successful. Decision on the appointment, according to the BiH Constitutional Court, is not a decision judicial authority, but an independent and autonomous body of Bosnia and Herzegovina, thus outside of their jurisdiction and competence. For more details, please see Decisions of the Constitutional Court of BiH AP 1062/10/2012, and AP 1091/07/2010.
44. Conclusions from the expert symposium on HJPC and the legal system of BiH (May 28, 2014), available at http://www.fcjp.ba/templates/ja_avian_ii_d/images/green/Zakljucci_simpozija_o_VSTV.pdf
45. BHS stands for Bošnjak-Hrvat-Srbin or bosanski, hrvatski, srpski (eng. Bosniak – Croat – Serb).
46. Also, many of the interviewed officials believe that the financing of the judiciary should have been transferred to the budget of common (state level) institutions of Bosnia and Herzegovina, rather than left to the decision of local politicians on cantonal or entity level, who have blocked the work of courts and prosecutor’s offices or manipulated their work by financial conditionality, quid pro quo favors etc… Judges and prosecutors have become hostages of the current financing system, local politics and politicians due to the fact that their pay and their economic existence depend on them.
47. Ethnic-based appointments are extended also on the chairing positions. Most of judges and prosecutors support this solution, arguing that it is only way to full make the sense of balancing in unbalanced system they disagree in general. This practice has been standardized in larger judiciary centers, where concentration of chair positions is higher and has to be ethnically dispersed among the constituent peoples. For instance, if a member of one-ethnicity chairs cantonal institutions, president of the municipal court in the same city usually comes from another minority ethnic group. This rule, however does not apply to the HJPC itself. Even though the Presidium of the HJPC is usually ethnically balanced, all three Presidents of the Council have been of Serbian ethnicity.
48. When evaluating and appointing candidates, Members of the HJPC also takes into consideration the category of Others (those who do not belong to any of the three constituent ethnic groups in Bosnia and Herzegovina), although this population is not officially recognized in the constitutional system of BiH.
49. There have been cases when candidates have attempted to use an “ethnic camouflage” – pretending that they are belonging to another ethnic group (using a privilege of their parent’s mixed ethnic background) just to fit in the job vacancy requirements and claim their positions in the judicial system.
50. An interesting analogy was made on how the “ethnicization” of public institutions and places has been present in all spheres of life in Bosnia and Herzegovina. The example cited was the BiH prison system, where prisoners, upon receiving the final sentence are regularly applying to be relocated to a prison where the majority of prisoners belong to their own ethnicity.
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