Analysis by Branko Perić: Reform laws are a new model of political influence on the judiciary

By Branko Perić/Istraga.ba

The Council of Ministers of BiH did not discuss the Law on the High Judicial and Prosecutorial Council (HJPC) and the Law on the Court of Appeals of BiH in its second attempt. Both times, ministers from the Republika Srpska (SNSD) did not vote for the proposed agenda, which led to the postponement of the sessions. The explanations are brief and unclear. However, the political background and procedural acrobatics are not the main topic of this analysis.

These two laws have been called "reform" laws and have become a condition for opening BiH's negotiations with the European Union. The story behind them has a long history. It intensified after the case of HJPC President Milan Tegeltija and the "Potkivanje" affair in 2020. BiH Minister of Justice Davor Bunoza claims that the ministry has been working on these laws for two years.

Tegeltija's affair is almost forgotten, but the story of reform is still showing signs of life. Today, it seems that the European Commission is more interested in the adoption of the laws than our ruling political parties. Brussels has not had much to boast about regarding BiH for a long time, nor have our politicians when it comes to reforms and the Brussels agenda.

From what could be heard in the scarce public discussions about these two laws, one can rightly ask whether they are truly reformist. This short analysis aims to point out some controversial solutions.

First of all, it is necessary to point out the fact that reform implies normative interventions to solve serious problems in the functioning of an area within the state government system. This means that it would be necessary to conduct a comprehensive analysis of the situation in the area being reformed in order to arrive at the best solutions. No one has conducted a detailed analysis of the functioning of the judiciary and the problems citizens face. However, even without it, it has long been known that the main problems of the judiciary are lengthy trials, the system being overwhelmed with cases, problematic appointments of judges and prosecutors, internal corruption, poor institutional management results, lack of results in prosecuting corruption and organized crime, lenient sentencing policies, and the quality of laws.

Considering these problems, the question arises whether the Law on the HJPC and the Law on the Court of Appeals will solve them, or at least some of them. It seems they will not! The problems remain, with a tendency to increase. Are we then on a reform path or on a dead-end track?

The Law on the HJPC highlights three key issues being addressed: 1) the number of HJPC members is increased from 15 to 20, 2) a Department for Integrity is established within the HJPC Secretariat, and 3) the approach to the issue of ethnic balance is changed. Increasing the number of HJPC members is an anti-reform idea for two reasons: cumbersome decision-making bodies are inherently inefficient, which will lead to slowness in decision-making, which is the institution's main mandate. On the other hand, new members broaden the scope of external, and above all, political influence on decision-making. Also, the increase in budget expenditures for financing the institution should not be overlooked.

Addressing the issue of integrity of judicial office holders has been reduced to the issue of their assets. An obligation to report personal assets and those of extended family is introduced. This is a kind of paradox: a competition is announced, and the most professional and moral candidates are sought, and then they are collectively suspected and subjected to the obligation to report and prove the origin of their and their family's assets. Such an obligation in the public administration system is imposed only on judges and prosecutors. For what reason? Why should someone be obliged to prove their honor and dignity? Even in criminal law, the accused is not obliged to prove their innocence. Why are judges and prosecutors so suspicious that they need to be investigated and verified?

Suspicion without evidence is the worst kind of moral discredit. Any party dissatisfied with a judge's decision will seek a reason in their assets to discredit and humiliate them. Judges and prosecutors could find themselves in a situation where, due to the volume of their and their family's assets, they are hung on the pillory and publicly branded as unworthy individuals. Stories about unworthy judges and prosecutors will be constant topics in an already poisoned public space. Will this strengthen the integrity of the judiciary, or will it completely destroy it?

Such an obligation for judges and prosecutors does not exist in any European country. It is neither a legal nor a cultural value. BiH is the only country on the planet where judges are required to report and verify their assets and are denied the right to hold public office due to suspicion about the origin of their assets.

It is incomprehensible that the idea of reforming a system that is a prerequisite for all social reforms in such a way could have been conceived. And it is incomprehensible that the Venice Commission considers it a legitimate interest of a state where political influence on the judiciary is the main problem of its functioning. It would not be surprising if this perverse idea originated in the minds of domestic politicians, as its implementation will shift the focus from criminal ruling policies to the judiciary. Unfortunately, this will be a tragic consequence of these reform experiments.

Regarding ethnic balance, the old solution has been retained in the Draft Law, with modifications and bureaucratic variations (two rounds of elections, minimal representation, and a quota of four seats) that will lead to new absurdities. The issue of ethnic balance has been misused in practice as a mechanism of hidden internal corruption. Namely, it has turned into a decisive criterion for selection for judicial positions. For example, the last candidate from the list of successful candidates was chosen instead of the first one solely due to ethnic affiliation. This controversial issue of our constitutional structure should have been resolved with a formula that, between two candidates with the same ratings, ethnic affiliation takes precedence, and only if there is a serious imbalance at the state level. This would be an acceptable and reasonable approach, as its application would not jeopardize the criterion of professional competence.

The Law on the Court of Appeals of BiH only partially solves the problem. Namely, the structure of the Court of BiH included a first-instance court and an Appellate Division that ruled on appeals against decisions of the first-instance court. Judges of the Appellate Division were appointed by the President of the Court. This is a nonsense that does not exist in European legislation. The European Convention on Human Rights speaks of such a situation as an exception, which cannot be applied to the Court of BiH. Such a structure of the Court of BiH did not give the public the impression of an impartial and independent court.

The proposal that was before the Council of Ministers leaves the appellate division within the structure of the Court of BiH, but provides for the election of judges by the HJPC. It also provides for the position of the president of that appellate division. A division within the first-instance court is not an independent court as envisioned by international conventions and as developed in the practice of modern states. The president of the appellate division is also not the president of the appellate court. A model is established that also does not exist anywhere in regular justice. Why? What was the goal of such solutions? Why are political compromises made at the expense of legal principles and tenets?

It is interesting that at the same time, the same model is established with the prosecutorial structure of the Special Department for Organized Crime and Corruption (POSKOK). Cases within the jurisdiction of this prosecutorial body are handled by the Supreme Court of the Federation of BiH as a first-instance, appellate, and third-instance court. Thus, the legal principle of two-instance proceedings is consciously ignored, without any reason.

These exceptions should be read as politically designed mechanisms for effective political influence on prosecutors and judges. No other reasons can be found.

Therefore, both of these laws are not reform steps but a new scheme of political influence on the judiciary and the transformation of judicial institutions into instruments of ruling policies.