Bosnia’s civil judiciary is “overburdened”, the criminal justice system is “failing to combat serious crime and corruption” and the top judicial institution in the country has become part of the problem over the years, Senior EU rule of law expert Reinhard Priebe wrote in a 'Report on Rule of Law issues' which he presented on Thursday.
The 25-page Report suggests radical reforms to the State judiciary and the Constitution which would provide for a better functioning system and easier implementation of reforms on Bosnia's EU accession path.
“The High Judicial and Prosecutorial Council (HJPC) is the single self-management body for the entire judiciary and a central institution in the BiH rule of law area. Its mandate covers all four judicial systems (State, entity, cantonal and Brcko District courts) and is intended primarily to shield the judiciary from political influence and interference... The HJPC selects, appoints and promotes judicial office holders and managers and exercises disciplinary powers. These broad competences make the HJPC a powerful institution,” the report said.
“Over the last years, the HJPC has itself become part of the problem. Serious miscarriages of justice have become apparent due to lack of leadership capacity, allegations of politicisation and conflicts of interest, inefficient organization, insufficient outreach and transparency, and, finally, its failure to implement reforms,” the expert group headed by Priebe pointed out.
Presenting the report to international and State officials, Priebe also noted that the public opinion was particularly shaken by corruption allegations against the HJPC President and alleged manipulations of appointment and disciplinary procedures.
“Taking into account the seriousness of the allegations, the reaction of the President, 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,” the report said.
It claims that the HJPC is indispensable for the current Bosnian judicial order but that it needs serious reform and a radical change of behaviour.
“Attempts to reform the HJPC Law have been obstructed by politicians for almost a decade,” Priebe wrote in the Report. “The most recent HJPC initiative for a new HJPC Law has not resulted in any concrete action by the BiH Ministry of Justice since July 2018.”
The acute lack of trust in the judiciary with regard to the HJPC was also stressed.
The report notes that the HJPC is often perceived by citizens and even by members of judicial community as a centre of unaccountable power in the hands of persons serving the interests of a network of political patronage and influence.
Priebe then suggested that the election of the HJPC members and the disciplinary procedures and bodies within HJPC must be radically reformed.
“To address the above shortcomings the new HJPC law, which generally follows the (European) Commission’s recommendations and the recommendations of the Venice Commission, must be adopted to ensure that matters concerning judges and prosecutors in their specific functions are dealt with by separate HJPC sub-councils,” the report said
Addressing rule of law shortcomings in Bosnia remains a huge challenge and the expert group pointed out in particular that trust needs to be rebuilt.
“To overcome current dysfunctionalities, systemic reforms in important rule of law areas, such as the judiciary, are required. Human rights and fundamental freedoms must be guaranteed. Proper enforcement and sufficient remedies are needed to ensure effective legal protection against violations of such rights. In particular, the failure to comply with the ECHR’s case law is unacceptable,” the group suggested.
They also noticed that important improvements in the civil and criminal justice systems must be made and they have to deliver results.
“Civil justice proceedings are too laborious, complex and formalistic, and take an excessive amount of time. The criminal justice system in Bosnia and Herzegovina is failing to combat serious crime and corruption,” the report noted.
According to the expert group, the State, as well as the entity constitutions, need fundamental reforms, in particular, to overcome the “institutional overkill”.
The constitutions are not suitable to bring the country forward on its way to European integration and to enable it to progress further in consolidating as a stable democracy based on the rule of law, highest human rights standards and to enhance sound economic development, said the group.