The answer to the question How much is the judiciary in Bosnia and Herzegovina regulated in line with the criteria of the European Union? we give in a second report within the regional research “Western Balkans in the EU Accession Process: Fulfilling Political Criteria” conducted by UG “Why not” in cooperation with partners in the countries of the region – Center for Democratic Transition from Montenegro, Center for Transparency and Accountability Research ( CRTA) from Serbia, and Metamorphozis Foundation from Macedonia.
The judiciary in Bosnia and Herzegovina experienced its major reform in 2004. The establishment of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (hereinafter HJPC), as well as the establishment of the Court of Bosnia and Herzegovina, were one of the main drivers of judicial reform. The establishment of the HJPC was also a request of the European Union, since the European Commission, in the Feasibility Study, set this requirement as one of the conditions for the start of negotiations for the conclusion of the Stabilization and Association Agreement between the EU and BiH. In March 2004, the Entity Prime Ministers and the BiH Minister of Justice signed an Agreement on the Transfer of Certain Entities’ Entities through the establishment of the High Judicial and Prosecutorial Council of BiH, creating preconditions for the adoption of the Law on the High Judicial and Prosecutorial Council of BiH, which was done by the Parliamentary Assembly of BiH in June 2004. The Law on HJPC BiH has been established by the HJPC BiH in accordance with European standards of independence, accountability, efficiency and quality of the judiciary.
Today, judicial problems are primarily reflected in lengthy judicial processes, and the lack of transparency and independence of the judiciary. International organizations warn that the judiciary is weak due to institutional fragmentation and the fact that entity laws are not horizontally harmonized. In addition, the establishment of a better control of the assets of the justice system holders in Bosnia and Herzegovina is also a challenge. Efforts still need to be made by local institutions of government and the academic community in BiH, as well as the international community, to implement the reform to the end of the judiciary in BiH.
In order to improve the work of judicial institutions in Bosnia and Herzegovina, it is necessary to approach the adoption of the following recommendations:
- Revise the existing Justice Sector Reform Strategy and the Action Plan for its implementation or to approach the adoption of a new strategy.
- In the shortest period of time, the Law on Courts of Bosnia and Herzegovina will be adopted by which BiH will receive a higher or appeal court.
- Adopt a new Law on HJPC BiH, which will regulate further issues.
- The issue of conflict of interest within judicial institutions needs to be defined by the HJPC Law, especially in light of the recommendations and conclusions adopted within the framework of the Structured Dialogue on Justice in BiH (restrictions on the promotion of HJPC members, in progress and immediately after the mandate , limitation of the selection of heads of courts and prosecutors’ offices for members of the HJPC, etc.).
- The conflict of interest rules need to be extended to the whole judiciary, in order to cover all holders of judicial functions.
- The Ordinance on Orientation Measures for the Work of Judges and Prosecutors shall be further improved in order to ensure not only the fulfillment of the standard set but also the quality of the work performed.
- Adopt the remaining recommendations of the Venice Commission regarding the judiciary in BiH.
- Ensure a more transparent choice of judges and prosecutors, as well as a more transparent system of promotion of judges and prosecutors.
- By adequately prescribing the HJPC procedure and powers, enable the accurate and transparent filing of the property by all the holders of judicial functions, respecting the right to their privacy, as well as to introduce more effective control of verification of allegations and prevention of false guidance.
- Introduction of sanctions for non-compliance with the submission of financial reports, both when appointing judges and prosecutors, as well as through regular periodic control over the duration of their mandate.
- Consider expanding the obligation to submit financial statements to the holders of judicial functions in order to include the obligation to deliver property cards, in a broader sense, which includes information on the acquisition of movable and immovable property in a larger amount.
Report in BHS language available on this LINK.