2020 BiH: Stumbling Judiciary is the cancer of BiH Society

International Institute for Middle East and Balkan Studies (IFIMES)[1] from Ljubljana, Slovenia, regularly analyses developments in the Middle East and the Balkans. IFIMES analyzed the situation in Bosnia and Herzegovina (BiH) after the local elections held on 15 November 2020 with an emphasis on the situation in the BiH judiciary and the rule of law sector. We bring the most important and interesting excerpts from the analysis titled “2020 Bosnia and Herzegovina: Stumbling Judiciary is the cancer of BiH Society.”

2020 Bosnia and Herzegovina:

 

Stumbling judiciary is the cancer of BiH Society

 

 

In Bosnia and Herzegovina, the elections of local authorities were held on 15 November 2020.

 

The results of the local elections are a prelude into tectonic changes on the political scene of Bosnia and Herzegovina. The wave of political changes has shifted from Montenegro to Bosnia and Herzegovina, and was most prominent in the entity of Republika Srpska were the ruling regime headed by Milorad Dodik and his Alliance of Independent Social Democrats (SNSD) suffered a strong political blow from the opposition, primarily in Banja Luka, the largest city in Republika Srpska, but also in major economic centers in the entity such as Bijeljina, Derventa i Brod. After the fall of the regime of Milo Đukanović (DPS) in Montenegro, the fall of Dodik's regime has become inevitable. Dodik displayed humility and attempted to curry favor with the Vice President of the European Commission and High Commissioner for Foreign and Security Policy Joseph Borell during his recent visit to Sarajevo when he requested financial support from the EU, which could prolong his regime for a short period of time. Hence, the question to be asked is will, this time as well, the international community financially support Dodik and save his regime from financial collapse?

 

In the Federation of Bosnia and Herzegovina (FBiH) the Party of Democratic Action (SDA) was seriously defeated in Sarajevo by four political parties popularly dubbed as “the four”: Social Democratic Party (SDP), Our Party (NS), Independent BiH List (NBL) and People and Justice (NiP). The SDA lost a number of municipal/city mayor positions, which will shake the position of the SDA President Bakir Izetbegović and lead to fermentation within the SDA, the required thorough reform of the party and freshening up of the party with new people.

 

In the BiH Brčko District the Party of Democratic Action (SDA) has become the strongest political subject, and the mayor should be from its ranks. The BiH Brčko District, once the most successful local community in Bosnia and Herzegovina, has been stagnating over the past decade.

 

Although these were local elections, their relevance goes beyond the local level, because the results of these local elections will indirectly reflect on the parliamentary elections in BiH, which will take place on 2 October 2022, as well as on the local elections in Mostar, which after 12 years will finally take place on 20 December 2020.

 

The local elections saw numerous deficiencies and irregularities. They were not completely fair and took place in an unfair atmosphere and conditions in which the ruling national/nationalist parties had “unlimited” resources at their disposal as a result of what the opposition was in an extremely unequal position. The biggest irregularities were established in the city of Doboj, were most probably the local elections will be repeated. A plethora of complaints were made also with respect to the local elections in Srebrenica with respect to the electoral roll, the election process itself and voting by mail. There are reasonable grounds for repetition of elections in Srebrenica.

 

Judiciary is the cancer of Bosnia and Herzegovina

 

The situation in the BiH judiciary is best illustrated in the two following reports: Johann Priebe's report titled “Experts’ report on Rule of Law issues in Bosnia and Herzegovina[2] from December 2019 and the OSCE report titled “Third Annual Report On Judicial Response To Corruption: The Impunity Syndrome[3]” from November 2020.

 

 

Priebe's report is based on the findings of high level missions, during which experts met with representatives of the Constitutional Court, members of the High Judicial and Prosecutorial Council (HJPC), the courts, prosecutors’ offices, law enforcement agencies, ministries of justice, ministries of security/internal affairs , the offices of members of the BiH Presidency, and other representatives of public authorities at all relevant levels of government, as well as civil society organizations and citizens. The report also incorporates the findings of expert peer-review missions in the areas of asset declarations and disciplinary responsibility of judicial office holders; fight against corruption, organized crime and money laundering; focused trial monitoring and assessment of recently concluded cases.

 

The Priebe's report singles out the High Judicial and Prosecutorial Council (HJPC[4]) as the single self-management body for the entire judiciary and a central institution in the rule of law area in BiH. Its mandate covers all four judicial systems and is intended primarily to shield the judiciary from political influence and interference, guarantee the proper functioning of all judicial systems and act as the driver of judicial reform. The HJPC selects, appoints and promotes judicial office holders and managers and exercises disciplinary powers. Furthermore, the HJPC by-laws apply in all four judicial systems, which is an important element for the coherence and consistency of judicial policy. These broad competences make the HJPC a powerful institution. It is therefore essential that the institution embodies the values and principles that it is intended to guarantee and that it leads the process by example with efficiency, responsibility and integrity.

 

The Priebe’s report also stipulates that over the last years, the HJPC has itself become a part of the problem. Serious miscarriages of justice have become apparent due to lack of leadership capacity, allegations of politicization and conflicts of interest, inefficient organization, insufficient outreach and transparency, and, finally, its failure to implement reforms.

 

The public opinion was particularly shaken by corruption allegations against the HJPC President Milan Tegeltija and alleged manipulations of appointment and disciplinary procedures. Taking into account the seriousness of the allegations, the reaction of President Tegeltija as well as the unanimous support for his actions by the HJPC members does not appear to be appropriate bearing in mind the importance of this institution. No substantive disciplinary investigation has taken place. An important opportunity to set a precedent of integrity was lost. This created deep reputational damage to the institution of the HJPC. Numerous interventions at the public debate “Right to Justice” have demonstrated that this incident remains an issue of deep concern in professional circles and among the broad public of the country.

 

Addressing rule of law shortcomings in BiH, remains a huge challenge. As the group has pointed out in particular: trust needs to be rebuilt, human rights and fundamental freedoms must be guaranteed, justice must better serve citizens, the HJPC needs a fundamental reform and a radical change of behavior, integrity of judicial office holders must be ensured, the untenable constitutional weaknesses need to be overcome, and politicians must act constructively and not obstruct.

 

The report of the OSCE Mission in BiH reads that a key factor that must be considered is the occurrence of illegal or unethical behavior of certain judges and prosecutors who may be manipulating the outcome of high and medium level corruption cases, as well as the unwillingness of the HJPC to uphold professional and ethical standards and ensure accountability within the judiciary. The HJPC has displayed a lack of accountability and made questionable judicial appointments. The “greasing” affair that saw the President of HJPC Tegeltija at its center casts a harsh light on the current situation within the HJPC. In May 2019, the Office of the Disciplinary Counsel (ODC) – the branch of the HJPC that is responsible for bringing disciplinary proceedings against judges and prosecutors accused of ethical and professional breaches – filed a disciplinary complaint against the HJPC’s President Milan Tegeltija in connection with video footage showing that he had improperly communicated with a party to an ongoing proceeding.

 

Members of the Presidency of the HJPC are absolved from disciplinary accountability and therefore also the possibility of suspension or termination of mandate. This interpretation of the Law on the HJPC thereby resulted in de facto impunity for the President of the HJPC – the highest-ranking member of the judiciary. This absurd outcome signals such a grossly erroneous interpretation of the law as to reasonably merit suspicion that it was made intentionally to reach the desired outcome.

 

In recent years, the Mission has observed that the HJPC is not the only judicial institution showing disregard towards the principles of accountability, impartiality and professionalism. As previously mentioned, the BiH Office of the Prosecutor and the Court of BiH have also displayed worrying signs of this.

 

What can be done to re-establish trust in the judiciary? The OSCE Mission report describes four recommended first steps:

 

The accredited diplomats in BiH from foreign embassies, Office of the High Representative, OSCE, as well as representatives of other international institutions have an absolutely negative opinion on the work of the BiH Office of the Prosecutor headed by Chief Prosecutor Gordana Tadić and the High Judicial and Prosecutorial Council (HJPC) headed by Milan Tegeltija. BiH Chief Prosecutor and HJPC President are personae non gratae for international representatives and they do not get invited to major events, because they are perceived as direct “outposts” of Milorad Dodik (SNSD) i Dragan Čović (HDZBiH). Therefore, it is necessary to provide international assistance to the media and journalists who expose crime and corruption through an independent and professional investigative approach.

Legal experts believe that the situation in the BiH judiciary is worrying and that the High Judicial and Prosecutorial Council (HJPC) and BiH Office of the Prosecutor are the “cancer” whose activities negatively reflect on lower levels in the judicial system in Bosnia and Herzegovina. The European Union is funding failing judicial systems. Namely, so far through various forms the European Union has vainly invested 250 million EUR of EU tax payers money in the BiH judicial system.

 

Case of FBiH Prime Minister Fadil Novalić – framing an indictment

 

The situation in the judiciary and the behind-the-scene games can be illustrated through the case of the FBiH Prime Minister Fadil Novalić. Namely, the BiH Office of the Prosecutor is conducting an investigation against Prime Minister Novalić regarding the alleged abuse of office, despite the fact that the FBiH Government had only given its consent to the FBiH Civil Protection Administration for procurement of medical equipment, without specifying the resources to be procured.  The specification of the equipment and resources that needed to be procured was made by the Civil Protection Headquarters, which is chaired by the Deputy Prime Minister/ Finance Minister Jelka Milićević (HDZBiH), who also proposed (not Prime Minister Novalić) the decision for the Government to appropriate funds for procurement of the equipment. Deputy Prime Minister Milićević also later presented the respective information at the level of the FBiH Government, which was unanimously adopted and reads that the contract on procurement of 100 ventilators had been concluded. All the ministers were informed on everything and all the decisions were adopted by the Government as a collective body, not by the Prime Minister.

 

The session at which the funds were appropriated and a decision on procurement of medical equipment was made, took place on 2 April 2020. The agenda for that session included two items: the decision on appropriation of funds (Deputy Prime Minister was the proponent), and the decision on procurement of medical equipment (Fahrudin Solak, Director of the FBiH Civil Protection Administration, was the proponent).

 

The FBiH Civil Protection procured ventilators, model: ACM812A manufacturer: Beijing Aerospace Changfeng c.o. Ltd. China, worth cca five million EUR. The ventilator have the CE marking and certificates, required by the EU and used around the world.

 

The use of ventilators is impeded by a shortcoming in the legal procedure which requires verification of the ventilators despite the fact that they have all the necessary certificates that are applicable in the EU. The use of ventilators also requires qualified medical personnel. Hence, the aforementioned indicates that Prime Minister Novalić is in no way connected with or responsible for this specific procurement. Nevertheless, the Office of the Prosecutor did not investigate the responsibility of Deputy Prime Minister Jelka Milićević in her capacity as the Finance Minister and the president of the Civil Protection Administration. Had the Deputy Prime Minister/ Finance Minister Milićević established or suspected any irregularities in the procurement of the ventilators she could have suspended or dispute financial payment for procurement of the ventilators.

 

However, the story behind the “ventilators” case is completely different. For quite some time already Prime Minister Novalić has been the target of political-mafia structures, primarily in the FBiH. The success of the FBiH Government, that is Prime Minister Fadil Novalić, is comparable to the successes of the Government of the Republic of Serbia headed by Prime Minister Ana Brnabić (SNS) and/or Government of North Macedonia headed by Prime Minister Zoran Zaev (SDSM).

FBiH Prime Minister Fadil Novalić's work has earned him strong support of influential international circles. In fact, his successes have led to a conflict between Prime Minister Novalić and politico-mafia structures. Namely, Prime Minister Novalić had stopped the plunder of the aluminum manufacturing company Aluminij d.d. Mostar, is trying to impose taxes on various kinds of betting shops which for years already have been avoiding to pay dozens of millions of Euros into the budget and instead pay a “sponsorship racket fee” to the political party of the Croat Democratic Union (HDZBiH), that is its leader Dragan Čović.  The above explains why the orchestrated attacks on Prime Minister Novalić and his closest associates are continuing, why attempts are made to produce new affairs and force him to resign and step down from the political scene.  

Furthermore, activities of the lobby in the FBiH defense industry, which is connected with the shareholders of the UNIS GINEX d.d. factory from Goražde and their cronies, aimed against Prime Minister Novalić were also noted. Novalić in cooperation with the relevant FBiH Minister of Energy, Mining and Industry Nermin Džindić, Prime Minister thwarted the intentions of the respective interest group to appropriate a part of the profit for themselves - to the detriment of the company and other shareholders, particularly the FBiH as a shareholder/co-owner of the company. The same interest group had some expectations from Prime Minister Novalić regarding some appointments, which he did not meet.  The same group also has influence on the legal entity that is authorized to verify the ventilators and now manipulates the public in relation to the aforementioned ventilators. The wife of one of the members of this interest group is employed as a high ranking “foreigner” in the EU Delegation in Sarajevo. In fact, she used her influence to ensure that the last EU report (which she had personally prepared) incorporates the part on influence on the judiciary and expresses discontent with the decision to grant provisional release to Novalić.

Prime Minister Novalić was “spectacularly” arrested on 29 May 2020 at the order of the BiH Office of the Prosecutor. He was put into a 68-hour detention, although there was no justified reason or legal basis for such a thing, bearing in mind that Novalić, as the FBiH Prime Minister, is available and at disposal for all information regarding the case in question. He could have normally given a statement in the premises of the BiH Office of the Prosecutor or his office. The question to be asked is why the BiH Office of the Prosecutor had not launched an investigation against Prime Minister Radovan Višković (SNSD) regarding the procurement of medical equipment in the entity of Republika Srpska? At the time of emergency caused by the Covid-19 pandemic, no other case of arrest of a prime minister regarding procurement of medical equipment has been recorded. In example, in Slovenia the public had openly criticized and accused Prime Minister Janez Janša (SDS/EPP) in relation to the intransparent public procurement of medical equipment worth cca 250 million EUR. However, according to available information, it is not known that any investigation had been initiated against him, let alone that Prime Minister Janša had been arrested.

The complexity of this scenario is reflected through the fact that this interest group is closely connected with some groups in the HDZ BiH, some Bosniak interest groups, and the security-intelligence service from the neighborhood whose agents are intensively operating in Bosnia and Herzegovina.  It is expected that the “crown” of their activities will “surface” at the upcoming local elections in the city of Mostar, scheduled to take place on 20 December 2020.

The investigation revealed that the FBIH Deputy Prime Minister Jelka Miličević (HDZ BiH) is also connected with the interest group from UNIS GINEX d.d. Goražde. For some unknown reasons, she is keeping the Non-Project Grant Aid funds from Japan, totaling around 34 million EUR in a bank that is on the verge of collapse and whose co-owner is also a member of the same interest group.  An inevitable question is why has no investigation been launched against Deputy Prime Minister/Finance Minister Milićević, who was only interviewed as a witness in the respective case, despite the fact that she is also the President of the FBiH Civil Protection Headquarters, which procured the aforementioned ventilators.

While the affairs that shake the entity of the Federation of BiH definitely have to get their investigative epilogue it is surprising that all the current affairs in the FBiH are processed or attempted to be processed at the state level by the BiH Office of the Prosecutor?

Not long ago Member of the BiH Presidency Milorad Dodik (SNSD) stated at a session of the Republika Srpska National Assembly that he was involved in wiretapping of the opposition. Dodik also stated that he personally had agreed the purchase of the mobile hospital which is at an unknown location abroad and has never been installed, and for which the BiH Agency for Drugs and Medical Devices had not previously issued an approval for import. However, such statements of his have never been look into or investigated.

In the entity of Republika Srpska affairs either “do not exist” or do not get their epilogue in court. Not even those that should be investigated ex officio by the BiH Office of the Prosecutor.

The Civil Initiative Center (CCI) warned in its report that in the report period from 2015-2018 in Republika Srpska, specifically during Milorad Dodik's mandate as the Republika Srpska President, 76% of subjects of audit did not apply legal and other regulations with respect to budget funds amounting to around 87 million EUR.

Priebe also prepared the report titled „The former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts' Group on systemic Rule of Law issues 2017[5] in which he had detected and analyzed in detail the situation in the Macedonian judiciary and insinuated the possibility of prosecution of judges and prosecutors with respect to abuse of office in relation to framing of indictments and other illegal actions, which essentially could also be applied on judges and prosecutors in Bosnia and Herzegovina. In example, eight female/male prosecutors have already been detected as candidates who in the future reform of the judiciary (vetting process) under the auspices of the EU could be permanently banned from holding a judicial position and the issue of their criminal responsibility could be raised.

 

BiH Office of the Prosecutor's media plan against Fadil Novalić

 

The history of staged and framed indictments by the BiH Office of the Prosecutor has a long tradition. In fact, the analysts have dubbed indictments of the kind as “instructed indictments.”

 

The “instructed indictment” that resonated the most was the one issued against the then FBiH President Živko Budimir (HSP), which ended in a judicial fiasco. Budimir was spectacularly arrested in his office on 26 April 2013 in a performance staged for the public.  Budimir was later acquitted of all charges, but removed from the political scene, which was the main goal of the order-givers.

 

On the other side, the BiH Office of the Prosecutor has never finalized the investigation into the abuses related to construction of the administrative center of the Government of the Republika Srpska in Banja Luka, announcement of the illegal referendum on secession, undermining of the constitutional order, etc. At the same time, processing of war crimes is of peripheral importance for the BiH Office of the Prosecutor, as Serge Brammertz, Chief Prosecutor of the Mechanism for International Criminal Tribunals, constantly warns in his reports to the UN Security Council.

 

Analysts believe that a point of concern is also the fact that the BiH Office of the Prosecutor has a media plan how to implement a media campaign with respect to the “Prime Minister Novalić” case, which is why it is important that the investigation in this case gets supervised and monitored by the US Embassy, OSCE, EU and other institutions dealing with investigations into abuses in the judiciary.

 

International institute IFIMES has beginning with the monitoring of the “Prime Minister Novalić” case, because this case could be the turning point in the fight against judicial mafia in Bosnia and Herzegovina and its exposure, and will regularly inform the public on the issue.

 

Ljubljana/Brussels/Sarajevo/Banja Luka, 30 November 2020                                          

 

Footnotes:

[1] IFIMES - International Institute for Middle East and Balkan Studies (IFIMES) from Ljubljana, Slovenia,has a special consultative status with the Economic and Social Council (ECOSOC)/UN since 2018.

[2] Source: Experts’ report on Rule of Law issues in Bosnia and Herzegovina, http://europa.ba/wp-content/uploads/2019/12/ExpertReportonRuleofLawissuesinBosniaandHerzegovina.pdf 

[3] Source: Third Annual Report On Judicial Response To Corruption: The Impunity Syndrome, https://www.osce.org/files/f/documents/4/e/471003.pdf 

[4] Recommendations of the Venice Commission (2012 and 2014); the adoption of a new Law on HJPC is also part of the Recommendations of Commission’s Opinion and the Analytical Report.

[5] Source: The former Yugoslav Republic of Macedonia: Assessment and recommendations of the Senior Experts' Group on systemic Rule of Law issues 2017, link: https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/2017.09.14_seg_report_on_systemic_rol_issues_for_publication.pdf

 



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