Laws on BiH Court unacceptable until removed jurisdictions are reinstated, Pendeš changed procedure but not content

(Patria) - The session of the House of Peoples of the BiH Parliament was interrupted on June 4 at item three, after delegates previously did not support the Bill on Amendments to the Law on Financing of BiH Institutions, nor the Bill on the HJPC proposed by the Council of Ministers of BiH. We remind you that seven delegates voted for the laws (three from HDZ and SNSD each, and Ilija Cvitanović), while eight were against (Bosniak Caucus, Nenad Vuković from PDP, Želimir Nešković from SDS, and Zlatko Miletić).

The session, as announced by the Speaker Nikola Špirić, should continue next week.

The third item was the Request by delegate Marina Pendeš (HDZ) for the urgent procedure consideration of the Bill on the Court of Bosnia and Herzegovina. Before the session was interrupted, she requested that this law be considered under the regular procedure. She did not explain whether she decided this out of fear of it being rejected or due to the criticisms of the bill's text sent to all caucuses in the BiH Parliament by the Head of the OSCE Mission, Brian Aggeler. Amendments are possible in the regular procedure, while they are not in the urgent procedure.

What the Head of the OSCE Mission stated in his letter to all caucuses of both houses of the BiH Parliament on May 27 also applies to the proposed bill on the Court of BiH, which Pendeš submitted.

Because, just as two jurisdictions of the Court of BiH, which are present in the current Law on the Court of BiH, are missing from Predrag Kojović's proposal, the same applies to Marina Pendeš's proposal. The Council of Ministers of BiH did not consider the Law on the Court of BiH prepared by the Ministry of Justice of BiH, but given Pendeš's proposal, it is difficult to expect that she changed the jurisdictions listed by the Ministry of Justice of BiH. Therefore, the OSCE's criticism applies to all proposals that are in procedure.

The OSCE Mission expressed concern that by removing two jurisdictions, as foreseen in these proposals, the jurisdiction would be significantly narrowed for:

- taking a final and legally binding stance regarding the implementation of the laws
of Bosnia and Herzegovina and international agreements at the request of any entity court or any
court of Brčko District of Bosnia and Herzegovina tasked with implementing the laws
of Bosnia and Herzegovina, and
- issuing practical instructions for the application of criminal substantive law of Bosnia and
Herzegovina within the Court's jurisdiction concerning genocide, crimes against humanity, war crimes, and violations of the laws and customs of war, as well as individual criminal responsibility related to these acts, ex officio or at the request of any entity court or the Court of Brčko District of Bosnia and Herzegovina.

"The Mission emphasizes that the repeal of the Court's jurisdiction to take a legally binding stance on the application of domestic and international legal norms could have a significant impact on the
coherence of judicial practice and legal certainty in an already fragmented judicial system.
Furthermore, removing the possibility of issuing practical instructions on the application of legal norms in cases of genocide, war crimes, and crimes against humanity could create additional obstacles in the prosecution of war crimes cases in BiH and hinder the achievement of reconciliation and transitional justice for the most vulnerable members of society – victims of war crimes. This would also be contrary to one of the main strategic goals of the Revised State Strategy for War Crimes Cases, which is to ensure the continuous harmonization of judicial practice in war crimes cases, in the interest of legal certainty and equality before the law, and would negatively affect the results of transferring over 1000 war crimes cases from the state level to the entity and Brčko District of BiH levels.

Without these two jurisdictions, the Court of BiH would be deprived of an essential element of its
mandate, as it would be prevented from establishing reliable legal standards for other judicial institutions when conducting proceedings against perpetrators of serious criminal offenses within its original jurisdiction, prohibited by binding international agreements.
The inclusion of these jurisdictions is necessary for eliminating inconsistent interpretation and application of regulations, and it is also a necessary prerequisite for creating harmonized domestic judicial practice. For this reason, these jurisdictions must be included in the new Law. Therefore, the current provisions of Article 7, paragraph (3), points (a) and (b) of the current Law on the Court of BiH should remain in force, and the omitted provisions need to be reinstated in their current form in the Bill," stated the Head of the OSCE Mission in the letter dated May 27.

Kojović held a meeting with OSCE representatives, and his proposal will be on the agenda of the House of Representatives of the BiH Parliament on June 12.

The President of the Court of BiH, Minka Kreho, expressed the same concern. We reiterate the opinion of the Court of BiH regarding the removal of these two jurisdictions, about which the Legal and Constitutional Affairs Committee of the House of Representatives of the BiH Parliament was informed.