Judicial challenges of Bosnia and Herzegovina – the Court of Bosnia and Herzegovina?
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. Due to the unsatisfactory situation at all levels of the judicial system of Bosnia and Herzegovina, IFIMES has prepared an analysis of current events in the judiciary with an emphasis on the process of selecting the President of the Court of Bosnia and Herzegovina. The most relevant and interesting sections from the analysis entitled “Judicial challenges of Bosnia and Herzegovina – the Court of Bosnia and Herzegovina?“are given below.
Bosnia and Herzegovina:
Judicial challenges of Bosnia and Herzegovina – the Court of Bosnia and Herzegovina?
This article contains a part from the analysis entitled “Judicial challenges of Bosnia and Herzegovina – the Court of Bosnia and Herzegovina?“ that deals with the process of selecting and appointing the highest officials in the judicial system of Bosnia and Herzegovina.
The Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina lays down that the High Judicial and Prosecutorial Council (hereinafter: “HJPC” or the Council) is an independent and autonomous body whose task is to ensure independent, impartial and professional judiciary. One of its main tasks is to appoint judges and prosecutors of Bosnia and Herzegovina. However, it seems that HJPC has become too distanced from the judicial system and no longer advocates the social role of the judicature.
The Law on HJPC needs systemic changes, especially regarding the conditions for membership and election of HJPC members, the legal framework that regulates the responsibility of HJPC members, the duration of their terms of office and the adoption of the code of ethics for HJPC members.
The main criteria in appointing HJPC members seems to be the ethnic and national affiliation instead of professional and moral competences. The judicial institutions are thus required to propose candidates for the Council on the basis of those predetermined criteria of nationality, which prevents them from selecting the candidates that possess real qualities. In this relation the Venice Commission stressed that authorities of Bosnia and Herzegovina should once again review the present model which defines the obligatory composition of the Council based on the “ethnic principle“; the same finding was stated in reports and analyses of other European institutions and USAID. According to the Protocol on the Structured Dialogue held last year it was concluded that the reform of the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina should be based on three principles: 1) to maintain a single High Judicial and Prosecutorial Council for the whole territory of Bosnia and Herzegovina; 2) to establish, within the High Judicial and Prosecutorial Council, two sub-councils: the sub-council of judges and the sub-council of prosecutors, which will, separately, in accordance with clearly defined jurisdictions, appoint judges or appoint/select prosecutors; and3) defining of criteria for the composition of the High Judicial and Prosecutorial Council shall necessarily follow the constitutional and legal structure of Bosnia and Herzegovina and shall ensure proportional representation of different instances and parts of the judicial systems of entities, the Brčko District of Bosnia and Herzegovina and institutions of Bosnia and Herzegovina.
Changing nationalities of judicial office holders
Defining the criteria following the constitutional and legal structure of Bosnia and Herzegovina is the burning issue of the High Judicial and Prosecutorial Council. This principle is actually violated by HJPC itself. It is a generally known fact that candidates for judicial functions change their nationality in order to be selected for the highest positions and most often declare themselves to belong to the group of “Others“ – this option has been most often used by the candidates of Bosniak nationality in the Federation of Bosnia and Herzegovina and at the state level. In Republika Srpska the judicial structure is composed of almost 90% Serbian nationality thanks to HJPC. It will be a challenge for the competent bodies to find out how many persons of Serbian nationality declared themselves as Others, Croats or Bosniaks, and what role do HJPC and the current politics play in this. It seems that HJPC is eager to practice and respect the Constitution of Bosnia and Herzegovina and the principle of national representation – however, only as far as the composition of HJPC is concerned.
Following the suspension of BiH Chief Prosecutor Goran Salihović (Others) Gordana Tadić (Croatian) became new Acting Chief Prosecutor. The process of selecting the President of the Court of Bosnia and Herzegovina is underway. The President of HJPC is Milan Tegeltija (Serbian). The Minister of Justice of BiH is Josip Grubeša (Croatian). According to general international methodology the judiciary also comprises interior ministries and police agencies – in Bosnia and Herzegovina the Ministry of Security and the State Investigation and Protection Agency (SIPA) are led by persons of Serbian nationality. Moreover, the President of the Supreme Court of Federation of Bosnia and Herzegovina is Milorad Novković (Serbian), and Chief Prosecutor Federation of Bosnia and Herzegovina is Zdravko Knežević (Croatian). Several analyses and surveys show that the police, the media and NGOs in Bosnia and Herzegovina are most active in fighting crime and corruption, followed by international organisations, while the activities of judicial institutions are almost at the level of political parties, i.e. at the bottom of the ladder of corruption-fighting activities.
It is obvious that the politics have a direct influence on the work of judicial institutions in Bosnia and Herzegovina. According to international experts and even in the opinion of the judicial community of Bosnia and Herzegovina, the process of appointing the holders of judicial functions which falls within the competence of the High Judicial and Prosecutorial Council represents the most controversial and sensitive issue of the justice system in Bosnia and Herzegovina.
Selection based on criteria of nationality, competence or Dodik-friendliness?
The above facts point to the question of what criteria were used as the basis for appointing Gordana Tadić as the Acting Chief Prosecutor of Bosnia and Herzegovina and what criteria will be used for appointing the President of the Court of Bosnia and Herzegovina. Besides Gordana Tadić and Goran Salihović there are several more experienced and competent prosecutors in BiH Prosecutor's Office, if the candidates are to be selected from among the employees of that body. What criterion was used for selecting Gordana Tadić? Was it nationality, professionalism, competence, experience, management abilities or vision? Or did Milan Tegeltija and his colleagues select the person who would not “disturb“ Milorad Dodik until they appoint “their“ President of the Court of Bosnia and Herzegovina, again someone who would not disturb Dodik as well as other higher or lower ranking politicians from other national corps? According to analysts the only criterion applied in the selection of the President of the Court of Bosnia and Herzegovina was that the candidate should enjoy the trust of Milan Tegeltija and his colleagues, i.e. Milorad Dodik. All other factors such as Fahrudin Radončić, Dragan Čović, Jerko Ivanković-Lijanović and Kemal Čaušević are of minor importance. Analysts have estimated that with the appointment of Tegeltija's person Dodik will finally gain complete control over the judicial system and thus remove the only threat he has been exposed to, bearing in mind that Goran Salihović was suspended among other because he allegedly protected Milorad Dodik. Min that case Milan Tegeltija had to possibilities: to suspend Salihović or to be personally exposed to the US pressures. He opted for the first possibility and managed to appoint an official to BiH Prosecutor's Office who can be manipulated and who can protect Milorad Dodik. Gordana Tadić will have a chance to deny the findings of this analysis already at the beginning of 2017 when the decision will have to be made on charges against Dodik regarding the recent illegally organised referendum.
The nationality of the future President of the Court of Bosnia and Herzegovina is irrelevant for HJPC and for Milan Tegeltija. High Judicial and Prosecutorial Council headed by Tegeltija will try to appoint a person who would realise Dodik's goal. The question is whether the Bosniaks will be left without any judicial office at the state level, since Bosniak candidates, especially Mira Smajlović, do not suit Tegeltija's team due to their willingness to deal with crime and corruption in Republika Srpska. In this way all Dodik's political friends will soon have an opportunity to deal with their political opponents – if Dodik allows them to, of course.
Analysts have noted that the behaviour of holders of judicial functions should be honourable and dignified and not motivated by immorality, deception and lies, not only in performing their professional duties but also in their private lives. There are no degrees in defining integrity: it is an absolute category. The US and the EU should play a decisive role in the selection of Chief Prosecutor of Bosnia and Herzegovina – if Tegeltija and Dodik win, it will be obvious that this is in the interest of their international mentors.
Ljubljana, 11 December 2016
 The Structured Dialogue on Justice is a mechanism of the European Commission. It aims to advance structured relations on the rule of law with potential candidate countries. The Structured Dialogue assists 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. The Structured Dialogue was launched by Commissioner Fuele; the first meeting of the EU-BiH Structured Dialogue on Justice was held on 6 and 7 June 2011 in Banja Luka.