Judicial Challenges of Bosnia and Herzegovina – Court of BiH

The International Institute for Middle Eastern and Balkan Studies (IFIMES) from Ljubljana, Slovenia, regularly analyzes events in the Middle East and the Balkans. In response to the unsatisfactory state of the judiciary in BiH at all levels, IFIMES has prepared an analysis of current judicial events with an emphasis on the process of electing the President of the Court of Bosnia and Herzegovina.

From the analysis "Judicial Challenges of Bosnia and Herzegovina – Court of BiH?", we highlight the part concerning the selection and election process of officeholders in the highest judicial positions in BiH.

The Law on the High Judicial and Prosecutorial Council (HJPC) stipulates that the HJPC is an independent and autonomous body tasked with ensuring an independent, impartial, and professional judiciary. One of the HJPC's fundamental tasks is the election and appointment of judges and prosecutors in BiH. The prevailing opinion is that the HJPC has largely distanced itself from the judiciary in BiH and does not protect the social role of the judiciary. The Law on the HJPC must be systematically changed, especially in the context of defining the conditions for membership and election to the HJPC, establishing a legal framework for the accountability of HJPC members, limiting the mandate duration, and adopting a code of ethics for HJPC members. During the election of HJPC members, the primary focus is on meeting national and gender criteria rather than possessing professional and moral qualities.

Thus, judicial institutions are required to propose candidates for HJPC membership who meet pre-defined national and gender quotas, thereby preventing a genuine process of selecting qualified candidates. In this regard, the Venice Commission of the Council of Europe has pointed out that "the authorities in BiH should reconsider the current model according to which the mandatory composition of the HJPC is defined by the 'ethnic principle'", which is found in the reports and analyses of European institutions and USAID.

According to the Protocol of the Structured Dialogue held at the end of last year, it was concluded that the reform of the Law on the HJPC would be based on three principles: 1) preserving a unified HJPC for the entire BiH, 2) forming two sub-councils within the HJPC, namely a sub-council for judges and a sub-council for prosecutors, which will separately, in accordance with clearly defined competencies, elect judges and propose/elect prosecutors, respectively, and 3) defining the criteria for the composition of the HJPC, which will follow the constitutional and legal structure of BiH and ensure proportional representation of representatives from different levels and parts of the judicial system, entities, Brčko District of BiH, and BiH institutions.

Changing the National Affiliation of Judicial Officeholders

Precisely defining the criteria that will follow the constitutional and legal structure is currently the HJPC's Achilles' heel and is being violated by this very umbrella judicial institution. It is common knowledge that candidates for judicial positions change their national affiliation to be elected to very responsible positions, most often declaring themselves as belonging to the "Others" category, which has been most utilized by candidates of Bosniak nationality in the Federation of BiH and at the state level of BiH. In Republika Srpska, "thanks" to the HJPC, the judicial structure is almost 90% composed of individuals of Serb nationality, and it will be very interesting for the competent authorities to determine how many individuals of Serb nationality declared themselves as Others, Croats, or Bosniaks, and what role the HJPC and current politics play in this.

It appears that the HJPC is only trying to "train" on its own composition and respect the BiH Constitution and national representation, and it is obvious why. After the suspension of Goran Salihović ("Others"), the Chief Prosecutor of BiH, Gordana Tadić (a Croat) was appointed as the acting Chief Prosecutor. The procedure for electing the President of the Court of BiH is underway. The President of the HJPC is Milan Tegeltija (a Serb). The Minister of Justice of BiH is Josip Grubeša (a Croat). In international broader methodology, ministries of internal affairs and police agencies are also included in the judiciary, and individuals of Serb nationality head the Ministry of Security of BiH and the State Investigation and Protection Agency (SIPA). It should be recalled that the President of the Supreme Court of the Federation is Milorad Novković (a Serb), and Zdravko Knežević (a Croat) is the Federal Chief Prosecutor.

Numerous analyses and surveys have shown that the police, media, and non-governmental organizations in BiH are most dedicated to fighting crime and corruption, followed by international organizations, while judicial institutions are almost at the level of political parties, i.e., at the very bottom of the corruption fight ladder. It is evident that politics in BiH has a key influence on the work of judicial institutions. The appointment process of judicial officeholders, which falls under the jurisdiction of the HJPC, according to the opinion of international experts and international research, and even the views of the judicial community in BiH, represents the most controversial and sensitive issue of the judiciary in BiH.

Election Based on Nationality, Dodik, or Merit?

The question is justifiably raised on what criteria Gordana Tadić was appointed to the position of acting Chief Prosecutor of BiH and on what criteria the President of the Court of BiH will be appointed. Besides Gordana Tadić and Goran Salihović, there are several more experienced and better prosecutors in the BiH Prosecutor's Office in terms of knowledge and experience, if someone were to be chosen from the BiH Prosecutor's Office. What was the criterion for the election of the said Gordana Tadić? Nationality, knowledge, experience, ability, good management, vision, or did Milan Tegeltija and his associates choose a person who will not "disturb" Milorad Dodik, while Milan Tegeltija and his associates do not elect "their" President of the Court of BiH who will also not disturb Dodik, but also other more or less ranked politicians from other national corps?

According to analysts, the only criterion for electing the President of the Court of BiH is that the person is trusted by Milan Tegeltija and his associates, or rather, Milorad Dodik. All other effects, such as the cases of Fahrudin Radončić, Dragan Čović, Jerko Ivanković-Lijanović, Kemal Čaušević, are of secondary importance. Analysts estimate that by appointing Tegeltija's man, Dodik will definitively gain control of the judicial system and thus remove the only threat to himself, considering that Goran Salihović was suspended, among other things, for allegedly protecting Milorad Dodik. Milan Tegeltija had two options: either suspend Salihović or expose himself to pressure from the USA. He chose the first option and succeeded in placing a person in the BiH Prosecutor's Office with whom he can manipulate and protect Milorad Dodik.

Gordana Tadić has a chance to refute this analysis as early as the beginning of 2017 when a decision on the indictment of Milorad Dodik regarding the illegally held referendum is to be made. The issue of the nationality of the future President of the Court of BiH is irrelevant to the HJPC and Milan Tegeltija. The HJPC, led by Tegeltija, will try to appoint a person who will realize Milorad Dodik's goals. It will be interesting to see if Bosniaks will be left without any judicial position at the state level, because Bosniak candidates, especially Mira Smajlović, do not suit the team around Tegeltija, as they are prepared to confront crime and corruption in Republika Srpska (RS).

In this way, all of Milorad Dodik's political friends may have the opportunity to soon begin settling scores with their political opponents. Of course, if Dodik allows them to. Analysts warn that the conduct of judicial officeholders must be honorable and dignified, not only during the performance of their professional duties but also in their private lives; it must not be motivated by amorality, deception, and lies. There are no degrees in defining integrity. Integrity is an absolute category, and the role of the USA and the EU in selecting the Chief Prosecutor of BiH must be decisive, because if Tegeltija and Dodik win, it will show that this is precisely what the international mentors wanted.