Structural dependence of the Disciplinary Prosecutor's Office on the Draft Law on the High Judicial and Prosecutorial Council of BiH

Expert analysis - writes prof. prof. dr. Genc Trnavci

The Ministry of Justice of BiH has prepared the Draft Law on the HJPC of BiH, which has been in public consultation since the end of November until today. According to the Draft, the independence of disciplinary mechanisms in the judiciary is one of the key elements of the rule of law and institutional guarantees of judicial and prosecutorial accountability.

In this context, as before, the position of the Disciplinary Prosecutor's Office (DPO) within the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC) has not been adequately improved, as it continues to raise serious questions about the actual, not just declarative, independence of disciplinary prosecution, especially in situations where potential subjects of disciplinary responsibility are precisely members of the HJPC or when the HJPC itself decides on the disciplinary responsibility of the disciplinary prosecutor.

Therefore, according to the Draft, the Law on the HJPC of BiH retains the existing model according to which the DPO is organizationally located within the HJPC, with a normative claim of its "functional independence". Such a solution requires a critical constitutional-legal and systemic analysis.

Normative framework: declaration of independence

According to the Draft Law on the HJPC of BiH, the disciplinary prosecutor declaratively:
- acts independently in initiating and conducting disciplinary proceedings;
- is not subject to the instructions of the HJPC in individual cases and
- enjoys procedural guarantees in performing his function.

However, at the same time:
- the disciplinary prosecutor is appointed by the HJPC;
- the disciplinary prosecutor is dismissed by the HJPC;
- disciplinary commissions for proceedings against the disciplinary prosecutor are appointed by the HJPC;
- the HJPC decides in the second-instance disciplinary proceedings and
- the budgetary and administrative framework of the DPO is under the control of the HJPC.

Such a normative construction produces an obvious discrepancy between the declarative independence and the actual (de facto) dependence of the DPO on the HJPC.

Structural dependence and the principle of nemo iudex in causa sua

One of the fundamental principles of a fair procedure is the prohibition of any body being a judge in its own case (nemo iudex in causa sua). Although the HJPC does not formally judge itself, its relationship with the DPO produces a situation of institutional excessive concentration of power and conflict of interest. This is the case when members of the HJPC, who could be subject to disciplinary proceedings, fully participate in the work of that body, when it appoints and dismisses the disciplinary prosecutor. Therefore, there is a real risk of:
- indirect influence;
- selective prosecution and
- the so-called chilling effect (i.e., deterrence).

In such a normative environment, the disciplinary prosecutor, even when performing that function with the highest degree of professional integrity, objectively acts in an atmosphere where his professional existence depends on the will of the body he is potentially supposed to prosecute.

Functional independence as a legal fiction

The concept of "functional independence", without institutional and personal independence, in this case, remains a legal fiction. No matter how brave and qualified the holder of the disciplinary prosecutor's office is, if the key levers of power remain in the hands of the same body, their independence cannot be based solely on the personal integrity of the office holder, nor on abstract procedural dismissal limitations.

In constitutional-legal theory, real independence requires a separate source of legitimacy, institutional distance, and avoidance of hierarchical or personal dependence.

None of these elements are fully realized in the model offered by the Draft of the new Law on the HJPC.

Comparative legal and European standards

The Venice Commission and relevant EU documents do not necessarily insist on the complete institutional separation of the DPO from the HJPC, but they clearly emphasize the need for:
- effective independence;
- perception of impartiality and
- avoidance of self-regulation without external oversight.

The model established in BiH nominally meets European standards, but not in substance. The exclusion of special mechanisms for proceedings concerning the potential disciplinary responsibility of HJPC members is particularly problematic.

According to the proposed Draft of the new Law on the HJPC, the Disciplinary Prosecutor's Office in Bosnia and Herzegovina cannot be considered a truly independent body, but rather a functionally non-autonomous body within a hierarchically closed system.

The proposed model can possibly function under conditions of high professional integrity and individual courage of disciplinary prosecutors, but it remains structurally vulnerable in terms of institutional conflict of interest, especially in disciplinary proceedings against HJPC members themselves. The proposed solution represents a political-legal compromise, not an optimal attempt to implement the principle of the rule of law.

Contrary to the proposed solutions, the new law on the HJPC should ensure that, instead of the HJPC, the entire judicial community directly:
- appoints the disciplinary prosecutor;
- provides for mechanisms in a special procedure for forming commissions for the dismissal of the disciplinary prosecutor at the first and second instance and
- creates a special normative framework for the budgetary and administrative independence of the DPO, separate from the HJPC.

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