Legal analysis of the 'dissenting opinion' case: Deliberation is secret, but the judgment announcement is public

(Patria) - For days now, a fundamentally deeply (un)professional, but highly politicized and personally animosity-filled discussion has been ongoing regarding the dissenting opinion during the rendering of the judgment in the case of Novalić and others, which was issued by BiH Court judge Branko Perić. The Disciplinary Prosecutor's Office of the HJPC has "formed a case" with lightning speed regarding judge Perić, lawyers are presenting arguments that the issuance of a dissenting opinion was justified or a criminal offense, and the idle public is commenting.

Essentially, a concurring dissenting opinion and a dissenting opinion differ significantly. In the specific case, judge Branko Perić issued a dissenting opinion, in relation to the legal understanding of the assessment of evidence in the case of Novalić and others, and in relation to the other two members of the judicial panel.

First of all, it is worth noting that the publication and issuance of concurring and dissenting opinions are completely common at the Constitutional Court of BiH (which publishes its decisions in writing in a vast majority of cases, when a dissenting opinion is published as part of the decision), the European Court of Human Rights (where concurring and dissenting opinions are also published along with the decision), the International Criminal Tribunal for the former Yugoslavia (where a dissenting opinion is presented at the oral announcement of the judgment), and the International Court of Justice (where dissenting opinions are published at the same time as the decision). The dissenting opinions of US Supreme Court Justice Ruth Bader Ginsburg, which changed case law and legislation, are famous.

However, let's see what actually happened in BiH before the Court of BiH. Judge Perić read his dissenting opinion at the hearing for the announcement of the first-instance judgment held on 05.04.2023 at the Court of BiH, and he read it after the first-instance judgment was announced, i.e., after the decision on the guilt/innocence of the accused was read. What judge Perić read is his opinion on the evidence presented during the main hearing. Otherwise, the judgment is announced orally and publicly by communicating the decision (which judge Perić did) and the brief reasons for it in relation to the read operative part – judge Braco Stupar presented the reasons for the decision, and judge Perić his dissenting opinion. The written copy of the judgment contains a much more detailed explanation of the decision.

The judgment – the decision on guilt or innocence – is made by the judicial panel (if it is a multi-member panel) deliberating and voting in a secret session. Simply put, the vote is on whether the accused committed the criminal offense, whether they are criminally liable, on the sanction, etc. It is true that Article 166 of the Criminal Procedure Code of BiH stipulates that deliberation and voting take place in a secret session, but judge Perić did not violate the secrecy of that session by issuing his dissenting opinion. No one except the members of the judicial panel and the court reporter knows today how the deliberation and voting took place, what arguments were used. No one knows how each judge voted, and it seems that even the professional public has accepted the simplified understanding of "two judges think they are guilty – Perić thinks they are not." We note that Article 164, paragraph 3 of the Criminal Procedure Code of BiH stipulates:

"If, regarding individual issues on which a vote is cast, the votes are divided into several different opinions, so that none of them has a majority, the issues will be separated and the voting will be repeated until a majority is reached. If a majority is not reached in this way, the decision will be made by adding the votes that are most unfavorable to the accused to the votes that are less unfavorable, until the necessary majority is reached."

It is clear that it is not difficult to agree that no one except the members of the judicial panel and the court reporter actually knows whether the votes were divided, how they were divided, and how they voted, how the votes were counted – if they were counted, whether the voting was repeated on any issue. Because that is the content of the deliberation and voting that takes place in a secret session.

It seems that both the professional and unprofessional public, when explaining their position regarding judge Perić, have forgotten the key fact in this situation, which is that judge Perić expressed his opinion, and in relation to that, Article 87 of the Law on the HJPC, which states:

"Immunity of judges and prosecutors (1) A judge or prosecutor cannot be criminally prosecuted, arrested or detained, nor can they be held liable in civil proceedings for opinions they give or decisions they make within the scope of their official duties."

Judge Perić gave an opinion in the case of Novalić and others.

What is the value of a dissenting opinion? We recall two examples: in the case Maktouf, number AP 252/05, before the Constitutional Court of BiH, which was the first case concerning the application of substantive law in war crimes cases – or, to simplify, whether the Criminal Code of BiH or the Criminal Code of SFRY should be applied in war crimes cases, the appeal was rejected as unfounded, with the conclusion that the Criminal Code of BiH should be applied. Judge Mato Tadić issued his dissenting opinion, which 7 years later was confirmed as the only correct one by the ECHR in the now famous case Damjanović-Maktouf. Similarly, before the ICTY, Judge Justice Bakone Moloto issued an opinion in the case of Perišić during the announcement of the first-instance conviction, which was again confirmed as correct by the ICTY Appeals Chamber, which acquitted the accused Perišić. It is worth noting that in that case, similar to the case of Novalić and others, judge Moloto was the president of the judicial panel.
Finally, we also recall Opinion No. 11 (2008) of the Consultative Council of European Judges (CCJE) addressed to the Committee of Ministers of the Council of Europe on the quality of judicial decisions (of 18.12.2008), which states:

"In some countries, judges may give concurring or dissenting opinions. In these cases, the dissenting opinion should be published together with the majority opinion. Judges thus express their full or partial disagreement with the decision made by the majority of judges and state the reasons for their disagreement, or claim that the decision made by the court can or should be based on different reasons than those adopted. This can contribute to improving the content of the decision and help both in understanding the decision and in the evolution of law."

According to the classification considered most complete (Alder, J., Dissents in Courts of Last Resort: Tragic Choices?, Oxford Journal of Legal Studies, v. 20, no. 2, 2000., p. 222), dissenting opinions, among other things, contribute to confidence in independent, responsible, thoughtful and comprehensive consideration of issues, combining freedom of expression with the personal conscience of the judge, better understanding of complex legal issues, and identifying shortcomings in legal regulations with the prospect of their elimination.

(This analysis for Istraga.ba was prepared by a legal expert with international legal experience at the courts in The Hague)