NES BiH: Current Government Reducing the Jurisdiction of the Court of Bosnia and Herzegovina

(Patria) - The People's European Alliance (NES) of Bosnia and Herzegovina issued a press release today, warning that the current government is reducing the jurisdiction of the Court of Bosnia and Herzegovina.

"At the held 42nd session of the Council of Ministers of Bosnia and Herzegovina, as stated in the session's press release, it was informed about the activities of the Minister of Justice and the working group on harmonizing the Proposal for the Law on the Court of Bosnia and Herzegovina.

A day earlier, the Ministry of Justice submitted to the Council of Ministers of Bosnia and Herzegovina a harmonized new text of the Draft Law on the Court of Bosnia and Herzegovina, which also changes the name of the law compared to the earlier Draft Law on Courts of Bosnia and Herzegovina, as well as the name and seat of the second-instance judicial body.

The Ministry of Justice of Bosnia and Herzegovina states that the name of the Appellate Division of the Court, as the second-instance body, is not contrary to international standards and the opinion of the Venice Commission.

However, the opinion of the Venice Commission from 2013 refers to the Law on Courts in Bosnia and Herzegovina, which envisaged the establishment of the High Court of Bosnia and Herzegovina, not the Appellate Division of the Court.

With the aim of strengthening legal certainty and the functioning of the judiciary, especially in the fight against the most serious forms of crime, the European Commission requested that Bosnia and Herzegovina adopt the Law on Courts in Bosnia and Herzegovina, which would also provide for a special second-instance appellate court, thereby strengthening independence in the judicial review of decisions of the Court of Bosnia and Herzegovina.

The Draft Law on the Court of Bosnia and Herzegovina does not achieve these goals. On the contrary, these technical and cosmetic changes relating to the Appellate Division of the Court are being used to reduce the jurisdiction of the Court of Bosnia and Herzegovina.

Even in the current Law on the Court of Bosnia and Herzegovina, there is an Appellate Division, and the difference between the existing and the proposed new solution is that, under the new proposal, the president of the Appellate Division is elected by the High Judicial and Prosecutorial Council.

Article 10 of the current Law on the Court of Bosnia and Herzegovina stipulates that the Court has an Appellate Division, while the Draft Law on the Court of Bosnia and Herzegovina in Article 1 stipulates that the law regulates the continuity of the existence of the Court of Bosnia and Herzegovina and the establishment of the Appellate Division of the Court of Bosnia and Herzegovina.

The difference between these two regulations is also that the seat of the Appellate Division under the current law is in Sarajevo, while the Draft Law on the Court stipulates that the seat of that division shall be in the entity of Republika Srpska.

Article 2 of the current law stipulates that 'the Court consists of the President and a certain number of other judges as prescribed by this law,' while the new law stipulates that 'the composition of the Court and the Appellate Division of the Court reflects the diversity of the peoples of Bosnia and Herzegovina in terms of ethnic, gender and other composition,' thereby introducing legal novelties, which have also been applied in previous practice, that priority in the selection of judges is given to national affiliation, not the expertise of candidates.

The current Law on the Court (Article 7) prescribes criminal jurisdiction as follows:

'(1) The Court is competent for criminal offenses established by the Criminal Code of Bosnia and Herzegovina and other laws of Bosnia and Herzegovina,

(2) The Court is further competent for criminal offenses established by the laws of the Federation of Bosnia and Herzegovina, Republika Srpska and Brčko District of Bosnia and Herzegovina when those criminal offenses:

a) endanger the sovereignty, territorial integrity, political independence, state security and international subjectivity of Bosnia and Herzegovina;

b) may have serious repercussions or harmful consequences for the economy of Bosnia and Herzegovina, or may cause other harmful consequences for Bosnia and Herzegovina or may cause serious economic damage or other harmful consequences outside the territory of a given entity or Brčko District of Bosnia and Herzegovina.'

From the Draft Law on the Court, the provision of the current law (Article 7. 2. b) 'may have serious repercussions or harmful consequences for the economy of Bosnia and Herzegovina, or may cause other harmful consequences for Bosnia and Herzegovina or may cause serious economic damage or other harmful consequences outside the territory of a given entity or Brčko District of Bosnia and Herzegovina' has been deleted.

This practically means that perpetrators of criminal offenses may cause serious harmful consequences for Bosnia and Herzegovina, but they will not be tried for this by the Court of Bosnia and Herzegovina, as has been the case so far, but entity courts will be competent for those criminal offenses.

Article 7, paragraph 3 of the current law stipulates:

'(3) The jurisdiction of the Court also includes:

a) taking 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 Brčko District of Bosnia and Herzegovina entrusted with the implementation of the laws of Bosnia and Herzegovina;

b) The Court is also competent for issuing practical instructions for the application of the substantive criminal law of Bosnia and Herzegovina within the jurisdiction of the Court in connection with the criminal offenses 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 court of Brčko District of Bosnia and Herzegovina'.

These provisions have also been omitted from the Draft Law on the Court of Bosnia and Herzegovina, thereby further reducing the jurisdiction of the Court of Bosnia and Herzegovina, which does not contribute to the unification of judicial practice, especially in relation to the application of criminal legislation in connection with the criminal offenses of genocide, crimes against humanity, war crimes and violations of the laws and customs of war.

Article 19 of the Draft Law on the Court of Bosnia and Herzegovina allows the Appellate Division of the Court to decide on the transfer of jurisdiction from the Court of Bosnia and Herzegovina to another court in the entity or Brčko District of Bosnia and Herzegovina when the Court of Bosnia and Herzegovina is prevented from acting due to factual or legal reasons.

Such a provision does not exist in the current Law on the Court, and the question justifiably arises as to why the jurisdiction of the Appellate Division for transferring jurisdiction to another court is prescribed, without defining the factual and legal reasons for preventing the Court of Bosnia and Herzegovina from acting in a specific case," NES BiH stated.