On the Law on Courts of Bosnia and Herzegovina: The Key is Jurisdiction, Not Court Seat!

By: Slaven Kovačević

We have been able to read in recent days that the Head of the EU Delegation to Bosnia and Herzegovina, Johann Sattler, has very explicitly stated that the two remaining laws: the Law on Conflict of Interest and the Law on Courts of Bosnia and Herzegovina need to be aligned with European standards. We have seen so far how "European standards" are a flexible category, which domestic and foreign actors interpret as needed, and very often outside of actual European standards, so it is useful to make a few remarks concerning the Law on Courts of Bosnia and Herzegovina, based on the Venice Commission's Opinion from March 2023 on the draft law.

Likewise, as there are several versions of the proposed law in circulation, and we do not know what the actual proposal that emerged from the draft Law on Courts of Bosnia and Herzegovina is, I will share with you some of the Venice Commission's views.

First, the "abolition" of state-level courts without replacing them with equivalent institutions is not recommended as it may hinder the state in exercising its implied powers. Finally, it would be necessary to consider adding provisions on state-level judiciary to the Constitution of Bosnia and Herzegovina, in order to set clear constitutional limits on the discretionary decision-making of the legislator itself. The European Commission's Opinion on our country's application for EU membership, in key priority 4, also calls on Bosnia and Herzegovina to "Guarantee the independence of the judiciary, including its self-governing institution (HJPC)". Such a reform would ensure the constitutional consolidation of the organization of the judiciary at the state level.

Second, the Venice Commission unequivocally states that any judicial authority, i.e., courts, cannot be filled based on ethnic affiliation, as this directly undermines the professionalism, impartiality, and quality of the court itself. This applies to all courts, with a special emphasis on state courts, which certainly includes the Constitutional Court of Bosnia and Herzegovina. Therefore, ethnic filling of courts is not a good, nor satisfactory, solution according to the Venice Commission's Opinion.

Third, although at first glance it appears that the jurisdiction of the Court of Bosnia and Herzegovina has been expanded, it has actually been narrowed, and the Venice Commission argues this by stating that the determination of the full jurisdiction of the Court of Bosnia and Herzegovina for criminal offenses is in the provision of the draft law which states that the Court will prosecute all acts from the Criminal Code of Bosnia and Herzegovina as "... and other laws adopted by the Parliamentary Assembly of Bosnia and Herzegovina". Regardless of the fact that the High Representative amended the Criminal Code of Bosnia and Herzegovina and added that the non-enforcement of the High Representative's decisions is a criminal offense, with such a provision in the Law on Courts of Bosnia and Herzegovina, the jurisdiction for prosecuting such a criminal offense would lie with the entity courts, because a specific law was passed by the High Representative, not the Parliamentary Assembly of Bosnia and Herzegovina. This is certainly not good.

Fourth, the scope of jurisdiction of the Court of Bosnia and Herzegovina could be reduced, in such a way that it bases its jurisdiction on a number of criminal offenses that, for example, cross the entity administrative line, which then, due to the insufficient precision of the law itself, and without sufficient precision on who decides on the jurisdiction of state or entity courts, could actually lead to situations where the scope of jurisdiction of the Court of Bosnia and Herzegovina is significantly reduced, in favor of the jurisdiction of entity courts. This is also not a good solution.
Fifth, as a good example, it is necessary to mention the judicial resolution of disputes related to the conduct of elections, where, by applying the solutions from the draft on which the Venice Commission gave its opinion, this would fall under the jurisdiction of entity courts, because then, by the logic of determining jurisdiction by the place of commission of the offense, it would actually be the jurisdiction of entity courts.

Imagine a situation where those who want to rig elections and have control over an entity court, ultimately have full control over the election results.

Sixth, the Venice Commission, based on the discussions it had with domestic actors, considers it a good solution that the court's jurisdiction is determined by the extent of damage to the state of Bosnia and Herzegovina, not damage to the institutions of Bosnia and Herzegovina, which are two different things. Determining the jurisdiction of the Court of Bosnia and Herzegovina in the first instance based on damage to the state of Bosnia and Herzegovina would give the Court of Bosnia and Herzegovina the necessary powers to judge acts that cause damage to the state of Bosnia and Herzegovina itself. For example, the non-enforcement of decisions of the Constitutional Court of Bosnia and Herzegovina concerning state property must be part of the jurisdiction of the Court of Bosnia and Herzegovina, because otherwise, transferring these jurisdictions to entity courts, without intending to presume, could actually leave the state without its property.

Seventh, all these proposals that are circulating, and we don't know which one is actually in procedure, have a common denominator: to create a "grey zone" or ambiguity regarding the determination of the jurisdiction of the Court of Bosnia and Herzegovina, as well as regarding who actually determines that jurisdiction, which as a final consequence can lead to a reduction in the powers of the state court. That is why some claim that the jurisdiction of the Court of Bosnia and Herzegovina is increasing, while others say it is decreasing, and they are probably talking about the same draft law. This is certainly not good.

In conclusion, the logical question arises whether those who are passing this law know these elements or not, and whether every discussion about this very important issue is in the realm of populist competition, while the citizens of Bosnia and Herzegovina are not being fully and accurately informed about what is actually happening "behind the curtain".

It is not just a story about whether the Appellate Division/Court will be in Banja Luka or Lukavica (East Sarajevo), but it is about the jurisdiction of the Court of Bosnia and Herzegovina. In particular, how much are the various proposals for the Law on Courts of Bosnia and Herzegovina aligned with European standards, which is important for the possibility of opening EU negotiations? What is the exact answer to these dilemmas, conclude for yourself.