Comments of the Court of BiH on Kojović's Draft Law: Restore the Removed Competences of the Court of BiH

(Patria) - Acting President of the Court of BiH Minka Kreho submitted to the Constitutional and Legal Committee of the House of Representatives of the Parliamentary Assembly of BiH the comments of the Court of Bosnia and Herzegovina on the Draft Law on the Court of BiH proposed by representative Predrag Kojović. This proposal should be on the agenda of the session on June 12.

The Court of BiH considers that instead of the Appellate Division, a more adequate name would be the Appellate Court if it is separated as a special second-instance institution at a separate location with separate infrastructure. Kojović stipulated that the seat should be in Pale (City of East Sarajevo).

Kreho also recalls the opinion of the Venice Commission, which states:

"Therefore, international standards do not limit the discretionary right of Bosnia and Herzegovina to retain a system in which appeals are considered in a special division within the same court, provided that division has all the attributes of a judicial body with appellate jurisdiction. The same standards, however, do not prevent Bosnia and Herzegovina from establishing two institutionally separate courts - one for first-instance and the other for second-instance jurisdiction."

The Court further recalls that the Venice Commission recommended that the seat location be determined based on an evidence-based analysis, taking into account the impact on the prosecution, detention and prison conditions, legal proceedings, as well as security issues related to the parties in the proceedings and the archive. This analysis should be in line with the CEPEJ Guidelines on the creation of judicial maps, with the aim of supporting access to justice within a quality judicial system, provided it does not lead to further delays in the adoption of the Law.

"Due to all the above, we propose that the Appellate Division of the Court be retained at the existing seat of the Complex of Judicial Institutions at the state level (given that capacities already exist in the Complex, which could be used in the future to ensure the physical separation of the two courts) along with parallel amendments to the law that will enable the institutional and financial separation of the Appellate Division from the Court of Bosnia and Herzegovina," states Kreho.

It is also stated that separating the Appellate Division outside the complex of judicial institutions would require building new courtrooms, which would significantly increase costs.

Regarding Article 16, Criminal Jurisdiction of the Court, Kreho states that the Court is not aware why points a. and b. of paragraph 3 of Article 7 of the Law on the Court of BiH (in Kojović's proposal Article 16) were not incorporated into the draft text.

And those points read: a) adopts a final and legally binding position regarding the implementation of the laws of Bosnia and Herzegovina and international treaties at the request of any entity court or any court of the Brčko District of Bosnia and Herzegovina entrusted with the implementation of the laws of Bosnia and Herzegovina;

b) The Court is also competent to issue practical instructions for the application of the substantive criminal law of Bosnia and Herzegovina within the Court's jurisdiction related to criminal acts of genocide, crimes against humanity, war crimes and violations of the laws and customs of war, and individual criminal responsibility related to these acts, ex officio or at the request of any entity court or the court of the Brčko District of Bosnia and Herzegovina;

The Law on the Court of BiH currently in force

"The mentioned points were not disputed in previous expert discussions.

Bearing in mind also the opinion of the OSCE BiH, in the opinion of the Court there are no obstacles to returning them to the draft law, and that as the competence of the Appellate Division of the Court. We note that the existence of points a) and b) of paragraph 3 has no impact on the further work of the Court of BiH on war crimes cases, because the Court adjudicates based on the criminal law as substantive law, and the Court's jurisdiction for this type of criminal acts is prescribed by Article 16, paragraph 1 of the Proposal.

The Court has not so far used its powers from the mentioned provision, bearing in mind that for several years now, judicial practice at the level of the highest courts has been harmonized through Panels for the Harmonization of Judicial Practice in the absence of a Supreme Court at the level of the state of Bosnia and Herzegovina. However, if the intention is to maintain the same jurisdiction of the Court, then it is necessary to incorporate points a. and b. of paragraph 3 of Article 7 of the Law on the Court of BiH into the existing draft," states Kreho in her response.

Incidentally, in the current Law on the Court of BiH, the word genocide is mentioned only in that part which was, intentionally or unintentionally, omitted from the new proposals, but according to the recommendations of the OSCE, as well as the Court of BiH, it is necessary to restore the removed parts so as not to reduce the jurisdiction of the Court of BiH.