HJPC gave a negative opinion on the laws on the BiH Court and HJPC: Will parliamentarians listen to the experts?

(Patria) - The High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC BiH) at an extraordinary session held on December 22 gave a negative opinion on the Bill on the High Judicial and Prosecutorial Council of BiH, as well as on the Bill amending and supplementing the Law on the Court of Bosnia and Herzegovina, which are today the subject of consideration in the House of Representatives of the Parliamentary Assembly of BiH.

In an extensive opinion that N1 had access to, and which the HJPC BiH submitted to the Parliamentary Assembly of BiH, it is stated that the proposed legal solutions can seriously jeopardize the independence, functioning, and efficiency of the judicial system, and lead to institutional blockage.

The Council reminds that previously, on December 12, it requested the withdrawal of the Bill on the HJPC from the parliamentary procedure, warning that the matter contained in the proposal has a direct impact on the judiciary and that the law should not be adopted under an urgent procedure, without prior expert and institutional discussion.

Risk to the independence and functioning of the judiciary

The opinion states that the proposed law on the HJPC contains a number of unclear and contradictory provisions relating to the composition of the Council, the appointment of members, additional checks on assets and interests, as well as issues of mandate and continuity of the HJPC's work.

It is particularly warned that additional checks on the assets and interests of Council members, if not carried out in a clear and legally precise manner, could lead to the paralysis of the HJPC's work and jeopardize its basic functioning. The HJPC states that it does not dispute the fight against corruption, but warns that solutions must be proportional, implementable, and aligned with constitutional and international standards.

The Council also points out that certain provisions may lead to discrimination against family members, particularly regarding the obligation to report assets and income, and that the proposed mechanisms are not precise enough to prevent arbitrary application.

The HJPC further problematizes the provisions on disciplinary responsibility, stating that certain solutions directly undermine the principle of proportionality, as they prescribe the strictest disciplinary measures in advance, including dismissal, without the possibility of imposing an appropriate sanction in a specific case.

Such an approach, as they state, may be contrary to the practice of the European Court of Human Rights and jeopardize the sustainability of the law.

Objections to amendments to the Law on the Court of BiH

The negative opinion of the HJPC BiH also applies to the Bill amending and supplementing the Law on the Court of BiH, particularly to the provisions concerning the seat of the Appellate Division of the Court of BiH.

The HJPC warns that the proposed solutions do not contain clear deadlines, criteria, and transitional mechanisms, and that they can lead to legal uncertainty, delays in the work of the Court of BiH, and additional burden on the judicial system.

It is also stated that the amendments are not in line with the recommendations of the European Union and the Venice Commission, which insist on strengthening the independence of the judiciary, not on further political or administrative burdening.

They warn that this is a legislative initiative of exceptional reform significance, and that for this reason it was necessary to ensure the full and substantive involvement of the Council in the legislative process.

The HJPC points out that the proposed solution links the start of the application of part of the law to a special decision of the HJPC, which is not in line with established nomotechnical principles, since the issues of entry into force and start of application of the law are the exclusive jurisdiction of the legislator. In this context, as stated, the issue of the constitutionality of delegating such powers to the HJPC also arises.

Regarding the Bill on the Court of BiH, the HJPC stated that they express serious reservations regarding its quality, which form the basis of the negative opinion.

In the conclusion of both opinions, the HJPC BiH concludes that the adoption of these legal solutions in their current form could jeopardize the efficiency, functionality, and very existence of the judicial system in Bosnia and Herzegovina, and undermine one of the three basic pillars of the rule of law. The HJPC emphasizes that it remains open to dialogue and improvement of legal solutions, but exclusively through a transparent process, with full respect for expert comments and international standards of an independent judiciary.

Call to parliamentarians

The Council called on the Parliamentary Assembly of Bosnia and Herzegovina to re-examine the proposed legal solutions once again, take into account the expert comments made, and ensure a legislative procedure that will be aligned with the constitutional framework and the actual needs of the judicial system.

The House of Representatives of the Parliamentary Assembly of BiH should consider two draft laws in the field of justice at an urgent session scheduled for today, which are often presented in political circles as a key step towards opening negotiations between Bosnia and Herzegovina and the European Union.

These are the Bill on the High Judicial and Prosecutorial Council of BiH and the Bill amending and supplementing the Law on the Court of BiH, which were submitted to the parliamentary procedure by MPs from opposition parties from Republika Srpska – Darko Babalj, Branislav Borenović, Mira Pekić, Nenad Grković, and Mladen Bosić. Both proposals are planned for consideration in the first reading, at the level of basic principles, and under an abbreviated procedure.

At the previous session, the House of Representatives rejected the proponents' request to consider the laws under an urgent procedure, which would have meant their adoption without the possibility of amendments. Instead, it was decided to apply a procedure that allows for additional interventions through amendments.

In the explanation of the Bill on the HJPC, the proponents stated that it is a comprehensive legal text which, according to them, resolves key issues in accordance with the recommendations of the Venice Commission, the Priebe report, GRECO recommendations, and relevant European Union reports on Bosnia and Herzegovina. A similar explanation was given with the amendments to the Law on the Court of BiH, emphasizing the need for urgent harmonization of domestic legislation with the European Union acquis communautaire and European standards of independence, efficiency, and functionality of the judiciary.

However, it is precisely these claims that the High Judicial and Prosecutorial Council of BiH has questioned, giving a negative opinion in both cases. The HJPC warns that the proposed solutions contain serious normative, systemic, and practical shortcomings and that their adoption in the current form could have the opposite effect – from undermining the independence of the judiciary and increasing legal uncertainty, to blocking the work of key judicial institutions at the state level.

This presents the representatives of the House of Representatives, in addition to political responsibility, with the issue of institutional responsibility, given that the laws that are publicly presented as part of Bosnia and Herzegovina's European path are under serious expert criticism from the highest judicial body in the country.