Three proposals for the BiH Court Law in circulation: Reduction of jurisdiction, 'missing war crimes and genocide', seat at RS's will

By: Amra Vrabac

Urgent sessions of the House of Representatives of the BiH Parliamentary Assembly and the House of Peoples of the BiH Parliamentary Assembly have been scheduled for next week, with various proposals for the Law on the Court of BiH on their agenda. One was proposed by delegate in the House of Peoples of the BiH Parliamentary Assembly Marina Pendeš (HDZ BiH), and another by state representative Predrag Kojović (Naša stranka). The session of the House of Representatives of the BiH Parliamentary Assembly will be held first on May 28, and the House of Peoples of the BiH Parliamentary Assembly the following day.

A session of the BiH Council of Ministers is also scheduled for next week, and there is a Draft Law on the Court of BiH prepared by the BiH Ministry of Justice, but there was no agreement on it within the BiH Council of Ministers, and it has been repeatedly removed from the agenda of the BiH Council of Ministers.

What is problematic in all three existing proposals is the reduction of the jurisdiction of the Court of BiH, i.e., the specification of certain criminal offenses that the Court of BiH would try, while all other matters would be handled by entity or lower courts.
Also, in these three proposals, the seat of the Appellate Division of the Court of BiH is in different locations. In the law proposed by the BiH Ministry of Justice, the possibility is left to determine the seat of the Appellate Division of the Court of BiH within a year if an agreement cannot be reached now.

We remind you that SNSD insisted that the seat be in Banja Luka, while the parties of the 'Trojka' found this unacceptable and offered East Sarajevo.

Even the BiH Minister of Justice Davor Bunoza (HDZ BiH) stated on February 6 this year that the seat of the Appellate Court and criminal jurisdiction are problematic in the Draft Law on the Court of Bosnia and Herzegovina. He proposed that the Appellate Court be located in Mostar, but there was no support for this.

In the proposal unexpectedly submitted to the procedure by Marina Pendeš, the seat of the Appellate Division of the Court is in the municipality of Istočno Novo Sarajevo.

In the proposal also unexpectedly submitted to the procedure by Predrag Kojović, the seat of the Appellate Division of the Court of BiH is foreseen in Pale (City of East Sarajevo). Given the statements coming from the 'Trojka' parties, this proposal is also agreed upon with the opposition from Republika Srpska.

When it comes to the jurisdiction of the Court of BiH and the Appellate Division, neither Pendeš's nor Kojović's proposals include war crimes and genocide crimes, as stipulated by the current Law on the Court of BiH.

Jurisdiction of the Court of BiH in the valid law

Kojović's and Pendeš's proposals

Besides the seat of the Appellate Division of the Court of BiH, the issue of the jurisdiction of the Court of BiH is more important. The proposed provisions narrow the jurisdiction of the Court of BiH, leaving room for prosecution of cases in entity or lower courts, regardless of the provision that the court will process offenses from the Criminal Code of BiH, especially since war crimes and genocide crimes are no longer explicitly specified in the proposals as they are clearly defined by the current Law on the Court of BiH.

Furthermore, the Venice Commission unequivocally states in its recommendations that any judicial authority, i.e., courts, cannot be staffed based on ethnic affiliation, as this directly undermines the professionalism, impartiality, and quality of the court itself. This applies to all courts, with a special emphasis on state courts, including the Constitutional Court of Bosnia and Herzegovina, as well as the HJPC.

All three draft laws on the Court of BiH currently in circulation do not meet EU standards. The name of the law itself is also a particular problem. If BiH was asked to adopt a law regulating the existence of courts at the state level, which also provides for an Appellate Court as a separate judicial institution, then the correct name of the law should be "Law on Courts of BiH". The essence is that there is an Appellate Court of BiH as a second-instance court and that it is finally separated from the Court of BiH. The adoption of such half-hearted solutions hinders the further work of the Court of BiH, as any change in the law affects the work of the institution and judges. And the EU will obviously have to return this law to the BiH politicians again.