EXPERT OPINION: Political Pressure on the FUP: The Prime Minister Has No Constitutional Right to Order Arrests

Written by: Emir Efendić

According to the Constitution, the Government of the Federation implements laws and ensures their enforcement. However, from the aspect of police operations, the executive branch has no authority to directly influence the operational activities of police bodies. It is obliged to provide material-technical and financial support, demand legality, political independence and transparency in the fight against crime.

According to the Law on Internal Affairs of the FBiH, the Federal Police Administration is an independent body within the Federal Ministry of Internal Affairs, which must be politically independent in its work.

The Director of the FUP is responsible for the legality of the Administration's work, and in his operational activities he is independent and must not receive orders from political bodies or individuals.

Supervision over the work of the FUP is carried out by the Independent Board of the Parliament of the FBiH, not by the Government or the Prime Minister.

According to the Criminal Procedure Code of the FBiH, the investigation is led and managed by the prosecutor, and police bodies act according to his orders and instructions.

A police body may carry out an arrest only by order of the prosecutor or the court, or if it catches a person in the act of committing a criminal offense. Therefore, a political official, including the Prime Minister, has no authority to initiate, request or direct the arrest of any person.

Any action by which the political leadership interferes in the operational decisions of the police or influences arrests, the conduct of investigations in individual cases through intermediaries, may give rise to reasonable suspicion of abuse of office, influence peddling, obstruction of justice or unlawful mediation.

According to the factual framework based on available information from the media and statements of the actors, the Prime Minister of the FBiH communicated with the Director of the FUP via messages and informally suggested the arrest of certain persons, using the phrase “to nab some criminal.”

Also, in that conversation, the Prime Minister was only interested in one case, in which the actors were politicians of opposing policies, about which the Director promised him concrete steps.

To make matters even more complicated, according to media reports, the Director of the FUP informs the Executive Director of the Motorways of the Federation, who was very likely appointed to that position by politics, about the planned activities regarding the said case. This is unacceptable from the aspect of the police profession, expertise, pre-investigation and investigative actions.

Looking from a legal aspect, the Prime Minister has no constitutional or legal authority to interfere in the operational work of the FUP. Such conduct can be interpreted as an attempt at political influence and abuse of office. Communication that is outside institutional procedures represents a serious violation of the principles of legality and professional police conduct. This undermines the integrity and independence of police structures.

If it is established that orders, suggestions or political influences led to specific police actions, there is a basis for initiating an investigation for abuse of office and influence peddling.

Even without a formal criminal qualification, the political responsibility of the Prime Minister and the professional responsibility of the Director of the FUP are indisputable; their communication had to be transparent, institutional and in accordance with the law.

Any “informal” direction of the police undermines the rule of law and the independence of the police. If the Director of the FUP acted under political influence, this represents a serious violation of the law and professional ethics, and the competent Prosecutor's Office would have to initiate an independent investigation.

Otherwise, the Federation of BiH risks the police apparatus turning into an instrument of political score-settling, rather than the protection of the law and citizens.

It is also alleged that a lower-ranking police officer mediated between the Prime Minister and the Director of the FUP, thereby influencing the Director's personnel decisions and inquiring about individual cases under the pretext of the Prime Minister's interest.

According to the same allegations, the Director of the FUP received information from the same source about the extension of his mandate at the head of the FUP, certain positioning based on family ties, thereby very likely becoming politically dependent on the role and influence of the provider of such information.

If an inspector subordinate to the Director acts as an intermediary between the Prime Minister and the Director of the FUP in decision-making, his role is completely illegitimate. He has no legal authority to influence the Director's personnel and other decisions, and if he transmits the “views” of politicians within the police structure, he is in fact engaging in unlawful mediation.

Even if he defends himself by claiming that he is “just passing on a message,” this does not change the fact that he is thereby participating in unlawful influence. In a state governed by the rule of law, such an act would have to be the subject of disciplinary proceedings and internal control.

If the Director accepted such a “suggestion” and acted in accordance with it, his responsibility is multiple: disciplinary, for violation of official duty and political bias; professional, because he allowed a lower-ranking police officer to mediate political messages to him; institutional, because he thereby shows that the police are not autonomous, but obedient to politics.

If it is true that a lower-ranking inspector conveyed to the Director that he “must not appoint a certain police officer to an important position because the Prime Minister is angry,” this is a stark example of political corruption in the police.

Such communication means that the FUP no longer acts in accordance with the Constitution and the law, but according to political preferences. In a state governed by the rule of law, after such a discovery, an internal investigation in the FUP and the FMUP would have to follow, as well as action by the competent Prosecutor's Office due to possible political influence and influence peddling.

Hearings of the Director and the inspector who mediated the messages before the Independent Board, as well as the Prime Minister before the Security Committee of the Parliament of the FBiH.

Because if police positions are filled according to the will of politics through intermediaries, then the line between political parties and the police is erased, and the police are placed under political control. This is contrary to democratic principles and the rule of law.