The International Institute for Middle East and Balkan Studies (IFIMES) from Ljubljana, Slovenia, regularly analyzes developments in the Middle East and the Balkans. IFIMES has analyzed the current situation in the judiciary and the rule of law in BiH, and proposed possible solutions for overcoming the present situation. We bring the most important and interesting parts from the analysis titled “2020 Bosnia and Herzegovina: There will be no rule of law without the comprehensive reform of the BiH judiciary – Fadil Novalić case illustrates the state of the BiH judiciary.”
In Bosnia and Herzegovina, the judiciary is an obstacle to any progress in the country. Domestic and international experts have identified the situation in the judiciary but it is necessary to take a step forward, with strong international support and leadership. Without cleaning up the judiciary, the country’s overall progress and profound political changes will remain impossible.
The diagnosis of the state of the BiH judiciary is based on unquestionable, credible and relevant reports of neutral and impartial parties, including:
· Reinhard Priebe, “Expert’s Report on Rule of Law issues in Bosnia and Herzegovina” from December 2019 and
· OSCE, “Third Annual Report on Judicial Response to Corruption: The Impunity Syndrome ” from November 2020.
Since the diagnosis has been established, the question is what would be an effective treatment for curing the judiciary, which is indubitably the cancer of the BiH society.
IFIMES has recently published an analysis called “2020 BiH: Stumbling judiciary is the cancer of BiH society,” link: https://www.ifimes.org/en/
There is no denying that judicial reforms implemented in BiH to date must be declared a failure and that, with the assistance of European legal experts, judges and prosecutors must be re-selected on the basis of their professional competency and integrity; they also must be provided with continuous training. First appointments should be provisional, for a four-year period, with the indefinite term in office granted after the expiration of that period, based on the performance evaluation.
The term in office for the President and members of the High Judicial and Prosecutorial Council (the HJPC), court presidents and heads of prosecutorial offices should be set to four years only in order to avoid situations similar to that in the Brčko District where the same person has been the President of the District’s Basic Court for 24 years, the same person the President of the District’s Appellate Court for 26 years, and the same person the Chief Prosecutor of the District Prosecutor's Office for 25 years.
It will be necessary to adopt a legal framework to terminate the tenure for all judges and prosecutors and appoint them to their first provisional office for a period of four years. The legal framework also needs to be put in place in order to disband the current HJPC led by President Milan Tegeltija. A temporary regulatory judicial body needs to be formed instead. Persons with high professional and moral qualities would need to be selected as members of that body, including European legal experts.
This temporary regulatory judicial body would be tasked with leading and coordinating a future judicial reform, and proposing, after a broad discussion within the professional community, a judicial reform model and related legislative framework.
The body would also make first appointments to the four-year term in office. This would ensure the continuity in the work of the judiciary. Under the current system, in fact, appointments for a definite period of time do exist, for additional judges and additional prosecutors. During the four-year period, the work of each judge and prosecutor would be appraised based on their actions regarding their cases. A report on each individual's work would be drawn up and it would serve as the basis for appointing judges and prosecutors for the indefinite term of office.
What would be the objective criterion for these reports?
The main control criterion would be whether judges and prosecutors make same decisions in same or similar cases. In other words, whether judges and prosecutors have adhered to the fundamental principle of equality before the law as the basis of legal certainty and the rule of law. In this way, incompetent and immoral judicial office holders would be eliminated.
Equality before the law is the foundation of the rule of law and democracy; the corrective factor for this criterion would be the number of cases solved in the previous period and the quality of judgements rendered.
Comprehensive reform requires interventions to the legislative framework governing the work of the judiciary, including bylaws. There are serious and often simple to prove allegations that second and third instance courts and different prosecutorial offices diverge in their application of case law. In simple terms, case law is applied inconsistently, even by same second or third instance courts. Different legal positions are taken in same or similar cases. Bylaws regulating the work of courts and prosecutorial offices must introduce the obligation to harmonize case law pertinent to courts and prosecutorial offices. The chamber, the judge in the chamber, the prosecutor who invokes his/her independent opinion, without having accepted the harmonization of legal positions, give room to the doubt that it could be a pretext for corruption, lobbying, political influence, personal vanity or intolerance for a different opinion.
Legal positions must be harmonized and consistent. The exclusive legal basis for that harmonization must be legal norms laid down in the Constitution, laws or the European Convention.
Unless case law for courts and prosecutorial offices is harmonized and consistent, the result will be inequality before the law, arbitrary application of justice, and the rule of law and democracy will be threatened.
The independence of judges and prosecutors is indisputable, but they are not completely independent when making decisions. They absolutely depend on the Constitution, laws, and the European Convention. A quality control of judges and prosecutors of lower level courts and prosecutorial offices by higher instance courts and prosecutorial offices should be introduced.
In the past, every six months higher courts and prosecutorial offices would carry out a “control” of lower courts and prosecutorial offices and would draw up records of that review with instructive recommendations, which were not only the basis for harmonizing the pertinent case law but also the best practical training in the application of laws. It is necessary to introduce through bylaws such controls again. It is also necessary to prescribe the criteria for professional advancement in the judiciary, based on competency, integrity, personal courage and prior judicial career.
It must not happen that “legal expert simply land at” the BiH Court or the BiH Prosecutor’s Office without having written a single judgement or indictment before that.
The criterion of step-by-step career advancement needs to be incorporated in the judiciary. The lack of that phased advancement criterion has led to the appointment of incompetent judicial office holders to some important positions in judicial authorities.
There are several reasons why it is necessary to introduce first 4-year long provisional appointments.
One reason is the need to conduct a thorough review of the work of all judicial office holders to date, as described here before. If this is not done, in 15 or 20 years the judicial reform in BiH could be once again recognized as a failure because maybe those who do not abide by the principle of equality before the law, those who apply the law arbitrarily and have no professional or moral qualities required for working in the judiciary will have become part of the judicial system.
The other important reason is to avoid selecting incompetent and immoral judicial office holders as a consequence of speedy selection.
It is necessary to return to the previous criminal procedural law similar to that countries like Italy, France and other European countries with the deeply rooted tradition of the rule of law have in place. The question is if judicial scandals in David Dragičević and Dženan Memić cases would have happened had the investigation been led by an investigative judge?
In the David Dragičević case, if the investigative judge, in his/her capacity as an impartial judge, came to the scene, no evidence of the criminal offense would have disappeared nor the possible scene where the criminal offense was committed would have been contaminated.
Namely, evidence of criminal offenses cannot be removed before the eyes of an impartial judge, or the scene contaminated. The investigative judge would have immediately ordered the collection of evidence, proper investigative actions, forensic expertise, etc. Essentially, it is very important that instead of the prosecutor, who is a party to criminal proceedings, an impartial judge leads the investigation.
The fact that the investigations are in fact handed over to incompetent police inspectors is a separate issue.
The investigative judge would conduct an investigation at the prosecutor's request, as used to be the case under the previously valid criminal procedural law.
The role of the injured party as a party to proceedings whose role during the main hearing would be similar to that of the prosecutor should be reinstated in criminal procedural law.
Under current criminal procedural law, the injured party, as a party in the proceedings, and his/her counsel (the certified holder of the power of attorney) play no active role (for example regarding the disclosure of evidence at the main hearing, questioning of witnesses or experts, etc.).
It is necessary to reinstate the legal instrument of the injured party as the prosecutor, in the situation when the prosecutor decides to dismiss criminal charges.
The injured party's active role in criminal proceeding and reinstitution of the injured party as the prosecutor are aimed at achieving a better and additional control of the prosecutor as the state body by the injured party.
In the end, the aim is to preserve the court's control in the event criminal prosecution charges are dismissed. This is in the interest of justice and truth.
Reinstate the principle of substantive truth in the criminal procedural law. Give up on the principles according to which the party will get as much justice before the court as much evidence it presents. The abandoning of the principle of substantive truth before a criminal court caused damage to the truth, justice and rule of law.
Regarding civil law, it cannot be disputed that interventions in the legislative framework need to include the acceleration of the civil procedure, as a good solution. However, it is also necessary to reinstate the principle of substantive truth in civil procedural law.
Similarly to criminal procedural law, it is certainly possible to do this without sacrificing the principle of economy and faster conduct of civil proceedings. An important intervention to the legislative framework is necessary, which is to prescribe by law that commercial disputes be treated as priority disputes for speedy resolution.
Foreign and domestic capital demand legal certainty, demand the resolution of simple commercial disputes within a year at the longest, or within two years for more complex cases.
The opposite means no increase in economic activity, investments, no development or new jobs. It is unacceptable that business money is blocked by protracted proceedings. A single property law and a new law governing contracts and torts (contractual relations) need to be passed. Foreign and domestic capital demand legal certainty and equal legal protection of property and contractual relations across BiH, before all the courts, in all four judicial systems. The establishment of the Supreme Court of BiH would guarantee equality before the law, non-arbitrary justice, equal protection of property, and the protection of resources under criminal law.
The BiH Supreme Court, through its uniform case law and the harmonization of that case law with binding legal positions would offer legal certainty and equality before the law, through the correct and uniform application of substantive law and procedures.
The fragmentation of the judicial system necessarily brings about different legal stances regarding the application of procedural and substantive law, protection of property and contractual relations, and the protection of resources, which are protected under criminal law.
In the past, the fragmentation of the judicial system has resulted in legal uncertainty, inequality before the law, and arbitrary justice.
Through its legal positions, the BiH Supreme Court would have to ensure equal protection of property and contractual relations; it would also have to ensure that in the area of criminal law, similar sanctions are rendered for similar offenses, which has not been the case as far as an examination of the court and prosecutorial practice to date has shown.
Under the Constitution, the Constitutional Court of BiH has no competence to review whether substantive or procedural laws have been properly applied. Appeals lodged with the BiH Constitutional Court against judgements rendered by ordinary courts are neither ordinary nor extraordinary legal tools.
An appeal lodged with the BiH Constitutional Court is an alternative legal tool.
Exactly for those reasons, because the BiH Constitutional Court is not an ordinary court, it does not provide for the uniform application of substantive and procedural law across BiH.
Thus, the BiH Constitutional Court's decisions regarding appeals do not ensure equality before the law, since under the Constitution the Court does not have the power to review the proper application of substantive or procedural law by ordinary courts.
The BiH Constitution (Article III/1 g) allows for the establishment of the BiH Supreme Court. Annex I of the BiH Constitution, Additional Human Rights Agreement to be Applied in BiH, also lays down the legal basis for the BiH Supreme Court.
The principal legal basis is contained in Article II/2 of the BiH Constitution.
This provision provides for the direct application of the European Convention in BiH, and has priority over all other laws.
The European Convention is directly applied in BiH, and only the ordinary BiH Supreme Court can ensure the application of that supralegal and supraconstitutional act across the entire BiH territory.
Furthermore, Amendment I to the BiH Constitution also represents the legal basis for the formation of the BiH Supreme Court, with regard to the BiH Brčko District.
Namely, BiH does not exercise its sovereignty, i.e. does not have jurisdiction in the Brčko District of BiH because of the absence of the ordinary BiH Supreme Court. It has been explained here earlier that the BiH Constitutional Court is not an ordinary court, and as such, it cannot provide that protection due to the lack of constitutional competence. Because of that, a future appeal of the BiH Brčko District before the BiH Constitutional Court could concern the fact that the 2009 Amendment to the BiH Constitution regarding the Brčko District prevents BiH from exercising its jurisdiction on the territory of the District, which would allow the BiH Constitutional Court to render a decision whereby it would order the state of BiH, i.e. the BiH Parliamentary Assembly, to establish the Supreme Court.
Priebe's Report and the OSCE Third Report have established possible miscarriages of justice by HJPC President and members, as well as by chief prosecutors and court presidents. It has to be underlined, not by all judicial office holders. The reports have identified those miscarriages as an obstacle for the rule of law.
One of the ways of preventing such abuses of judicial power in the future is to limit the term of office for HJPC members, chief prosecutors and court presidents. In simple terms, shortening the term of office prevents the abuse of judicial powers over a prolonged period.
It is of the utmost importance to launch a broad public discussion about the judicial reform within the professional community (judges, prosecutors, attorneys, civil society, and others).
The public discussion would be focused on developing the judicial reform model and creating the legal framework for the reform.
The discussion would generate, in a quality way, numerous questions, including whether the HJPC should exist in this form or be divided in order to form a separate High Judicial Council and High Prosecutorial Council. The key issue is that the judicial regulatory body must be completely independent from legislative and executive power.
To date, a small circle of HJPC members, judges and prosecutors, have been putting forward proposals of legislative framework for the judicial model and the judiciary in general. Other parts of the professional community, including attorneys, public attorney's offices, and professors at law schools have had almost no influence on the creation of legislative framework for the judiciary.
In simpler terms, very often, the voice of the other side was not heard in the process of creating the legislative framework, and only proposals from judicial bodies would be taken into account. Such approach resulted in disciplinary and criminal impunity for HJPC members and its President Milan Tegeltija, judges and prosecutors.
It is commonly acknowledged that the inadequate justice system in BiH, popularly known as the “injustice system”, has considerably hurt the country’s progress and contributed to the slow growth of citizens’ standard of living as without the rule of law economic development and the revival of the war-destroyed economy are not possible.
Many so-called “instructed indictments” prove that the judiciary in BiH is controlled by the duet Milorad Dodik (SNSD) and Dragan Čović (HDZBiH), who control the High Judicial and Prosecutorial Council and the BiH Prosecutor’s Office; that control directly spills over to lower judicial authorities as well. The BiH Prosecutor’s Office issued an indictment against Fadil Novalić, Prime Minister of the Federation of BiH (FBiH), even though the FBiH Government had only given its consent to the FBiH Civil Protection Administration to procure medical equipment. The Civil Protection Headquarters, chaired by the Deputy Prime Minister and Finance Minister Jelka Milićević (HDZBiH), has compiled the specification of items for procurement. Deputy Prime Minister Milićević was also the proponent (not Prime Minister Novalić) of the decision on the allocation of funds for the procurement to the Government. Deputy Prime Minister Milićević also later presented the information to the FBiH Government that the contract for the procurement of 100 ventilators had been concluded, which the Government unanimously adopted. All the ministers were informed of everything. The Government as a collective body made all the decisions, not the Prime Minister alone.
The session at which the funds were allocated and the decision on the procurement of medical equipment adopted took place on 2 April 2020. The agenda of the session had two items: the decision on the allocation of funds (Deputy Prime Minister Milićević was the proponent), and the decision on the procurement of medical equipment (Fahrudin Solak, Director of the FBiH Civil Protection Administration, was the proponent).
The BiH Prosecutor’s Office issued an indictment against Deputy Prime Minister Jelka Milićević as well, in her capacity as the Minister of Finance and the Commander of the FBiH Cıvil Protection HQ. On 4 December 2020, a day after a majority of HJPC members had demanded Milan Tegeltija’s resignation, the Office of the BiH Prosecutor submitted the indictment against Fadil Novalić, Jelka Milićević, and Others to the BiH Court for confirmation. Monika Mijić, who has ties to the HDZBiH, was among most vocal HJPC members demanding Tegeltija’s resignation; analysts have not been surprised by the fact that, maybe because of this among other things, Jelka Milićević too was expressly indicted as an act of revenge by Milan Tegeltija, even though the BiH Prosecutor’s Office had not previously treated her as a suspect.
The FBiH Civil Protection Administration bought ventilators model ACM812A, manufacturer Beijing Aerospace Changfeng c.o. Ltd. China, worth around five million euros. The ventilators bear the CE marking, are accompanied by certificates required by the EU, have the warranty period, and are in use across the world.
The BiH Prosecutor’s Office has been exercising illegal pressure on BiH Court President Ranko Debevec to confirm the indictment against Prime Minister Fadil Novalić, which could qualify as a sort of blackmail and is subject to criminal liability; there are expectations that BiH Court President Ranko Debevec will yield to the pressure. Following clear messages, including from the US Embassy, that Milan Tegeltija needs to resign, the position of the BiH Prosecutor's Office Chief Prosecutor, Gordana Tadić, is threatened and the rigged investigation against Ranko Debevec has lost all sense. Should Mr. Debevec yield to the pressure and confirm the indictment against Prime Minister Novalić, it is certain that he too will soon share the fate of Vladimir Špoljarić, President of the Cantonal Court in Sarajevo, because the goal is to remove Ranko Debevec from the position of the President of the BiH Court. Analysts' opinion is that Ranko Debevec will be used, and after that charged in order to open the way for judgements based on fabricated indictments.
It is worth reminding that the former BiH Chief Prosecutor, Milorad Barašanin, was caught meeting with an international arms dealer blacklisted by the UN. The BiH Prosecutor's Office Special Department for Organized Crime, Economic Crime and Corruption should have arrested Barašanin. His apartment, second residence, car and telephone should have been searched; papers could have been found proving that he took bribe from the dealer. It was not done back then. It is now necessary to start working on discovering abuses in the judiciary. Criminal proceedings were launched against BiH Court Judge Azra Miletić. The question arises why disciplinary and/or criminal proceedings have not been launched against Chief BiH Prosecutor Gordana Tadić or why has she not been arrested. If inside information available to the international community prove correct, criminal proceedings against several prosecutors could be soon expected. Unless Gordana Tadić holds back, following changes in the HJPC she could soon be the fourth BiH Chief Prosecutor who leaves the job before the end of her tenure. Personal relations in the BiH Prosecutor's Office must not be the “legal basis” for opening investigations or issuing indictments against undesirable individuals.
Analysts believe that the fabricated indictment against Novalić should mark the beginning of the end of Chief Prosecutor Tadić's career. If the BiH Court rejects the fabricated indictment against Fadil Novalić, the next person in line for removal will be automatically Gordana Tadić. The depth of the judicial abyss gaping in the BiH Prosecutor's Office is best illustrated by their announcement that they intend to issue an indictment against “accessories” to Fadil Novalić in the commission of the criminal act, which did not take place. According to inside sources, the BiH Prosecutor's Office is still conducting illegal surveillance of “accessories” to the alleged criminal act.
Analysts maintain that without the comprehensive reform of the judicial system in BiH it is not possible to pursue democratic political changes because political structures, and in particular the Dodik – Čović duo, have been securing their own impunity and survival in power using the judicial system. It is concerning that the BiH Prosecutor's Office has a plan in place for conducting a media campaign against Prime Minister Novalić aimed at his public discreditation. Because of that, it is important that the US Embassy, OSCE, the EU and other organizations involved in the monitoring and research of the abuses in the judicial system protect Prime Minister Novalić from fabricated charges.
Actions of the BiH Prosecutor's Office to date have discredited many individuals, ruined their careers, families, lives, and have introduced in the BiH public space legal uncertainty, a possibility for an “instructed indictment” to be illegally issued against any citizen as the indictment issued against Prime Minister Fadil Novalić shows.
IFIMES has initiated the monitoring of the Prime Minister Novalić case and the situation in the BiH judiciary because the Novalić case could become a turning point in the fight against the judicial mafia in Bosnia and Herzegovina and its unmasking. We will regularly inform the BiH and international public on related developments.