Disciplinary proceedings against judge Branko Perić suspended

(Patria) - Due to retirement, disciplinary proceedings against BiH Court judge Branko Perić are suspended because there is no legal possibility to conduct such proceedings against a judicial office holder whose mandate has been terminated, Detektor has learned.

The Office of the Disciplinary Prosecutor initiated a case against Judge Perić ex officio after the first-instance verdict in the "Respirators" case was delivered, and a disciplinary lawsuit was later filed against him.

No logic

In the meantime, the Disciplinary Commission returned the lawsuit to the Office for revision due to a determined omission of the factual description of the offense in one of the points related to untimely and ineffective action in making a decision, which Perić pointed out.

A hearing in this proceeding was supposed to be held in early November, but it was postponed to mid-December 2023, and at that time, Judge Perić stated that he was retiring and that he had an interest in concluding this proceeding.

Perić confirmed to Detektor that he had received the decision of the High Judicial and Prosecutorial Council (HJPC) that his mandate as a judge was ending due to retirement, which Detektor had access to.

- If a judge retires, all proceedings are suspended. At least, that has been the practice so far, and I think they will apply it now. There is no logic, they cannot impose any measure against me as a judge.

Therefore, there is no basis for disciplinary proceedings, i.e., disciplinary responsibility. They cannot impose a measure of termination of employment because it has already ended, they cannot deduct from my salary, I no longer receive a salary as a judge - Perić explains.

He says he has not received any information about the disciplinary proceedings against him.

Perić states that he has an interest in the proceedings continuing even after his dismissal, adding that his proceedings began in September last year, and even if hearings were held every day, they could not have been concluded “given their practice so far and that they conduct disciplinary proceedings for up to a year”.

- Imagine, the disciplinary commission knows I am retiring and they schedule the continuation of the disciplinary proceedings for January 30th. Disciplinary proceedings are planned in advance, and they could have at least tried to conclude it. You saw how it was postponed, a month between hearings - says Perić.

The HJPC previously responded to Detektor that a decision by the First-Instance Disciplinary Commission to suspend the disciplinary proceedings would be made for Judge Perić due to his retirement.

"There is no legal possibility to conduct proceedings against a judicial office holder whose mandate has been terminated," the Council stated.

According to them, the First-Instance Disciplinary Commission actively handled this case, scheduling and holding hearings. They reminded that the lawsuit was filed in May 2023, and its supplement in July 2023.

When asked if the case could have been concluded before Perić's retirement, the Council responded that disciplinary proceedings must be concluded within one year from the date of filing the official lawsuit to the disciplinary commission, unless a reason is found that justifies an extension of that deadline.

Former Chief Disciplinary Prosecutor Arben Murtezić explains to Detektor that if a judge or prosecutor against whom disciplinary proceedings are being conducted retires, no sanction can be imposed.

Corrective factor

- Most of these sanctions cannot be imposed; he no longer receives a salary, there is no suspension, no transfer from his position. You cannot issue a warning to a pensioner. There is no explicit provision, but it simply loses its meaning. I don't know what the decision will be, but there are no more proceedings - says Murtezić.

Given that the disciplinary proceedings have been ongoing for several months before Perić's mandate ended, Murtezić says that they could theoretically have been concluded. He explains that it is usual for the first-instance proceedings to last three to four months, but that after that, there are possibilities for appeals to the Second-Instance Commission and the Council, as the third instance.

The disciplinary lawsuit accuses Perić of the offense of “making decisions that clearly violate the law or persistently and unjustifiably violate procedural rules” due to a dissenting opinion he expressed when announcing the verdict in the case of “Fadil Novalić and others”.

The lawsuit also accuses him of behavior that constitutes a serious violation of official duty or calls into question public trust in the impartiality and credibility of the judiciary, due to a statement in which he claims that the “prosecutorial-media mafia wants to criminally sanction him for expressing his opinion”.

Damjan Ožegović from Transparency International says that regardless of this situation, it is questionable what effect a disciplinary sanction would have on someone who is retiring, and even if they were sanctioned immediately before the end of their term, except for possible moral satisfaction.

He is of the opinion that disciplinary measures are such that they do not leave significant consequences, so a written or public warning, a salary reduction for a period of up to one year, or any other measure would not have a significant punitive effect on the person concerned, if their term of office ends immediately afterwards.

- The HJPC should be a corrective factor, but we really do not see that it is, and in the previous period, we have witnessed very serious disciplinary offenses for which minor penalties were imposed - emphasizes Ožegović.

Detektor previously wrote about the suspension of disciplinary proceedings against judges due to their retirement, which raised questions about the effectiveness of these proceedings.

Chief Disciplinary Prosecutor Alena Kurspahić Nadarević said at a conference on October 5th that there is a large number of suspended proceedings, and the main reasons for this are retirement or if judicial office holders are finally convicted of criminal offenses and dismissed from duty.

- However, what could be considered is simply accepting the submitted requests for termination of mandate - stated Kurspahić Nadarević.

The OSCE Mission believes that, as a fundamental principle of the right to a fair trial and the rule of law, the timely and final conclusion of all disciplinary proceedings is of fundamental importance not only for those directly involved but also in terms of preserving the credibility and effectiveness of the judicial system as a whole.