The High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC BiH) submitted to the House of Representatives of the Parliamentary Assembly of BiH negative opinions on the Draft Law on the High Judicial and Prosecutorial Council of BiH and the Draft Law on Amendments to the Law on the Court of BiH.
They warn that their adoption in the proposed form could seriously threaten the functioning of the judiciary and the foundations of the rule of law in Bosnia and Herzegovina. Both opinions were adopted today through electronic and telephone voting by Council members.
In both documents, the HJPC emphasizes that the legislative proposals were submitted to the parliamentary procedure without first obtaining the opinion of the Council, immediately before the emergency session of the House of Representatives, which, as stated, violated the jurisdiction of the HJPC prescribed by law and effectively prevented its timely action as a collegial body.
Such an approach, according to the assessment of the Council, undermines its institutional role in ensuring an independent, impartial and professional judiciary.
Serious objections to the amendments to the Law on the Court of Bosnia and Herzegovina
In its negative opinion on the Draft Law on Amendments to the Law on the Court of Bosnia and Herzegovina, the HJPC warns that this is a legislative initiative of exceptional reform importance, and that it was therefore necessary to ensure full and substantial involvement of the Council in the legislative process.
The provision prescribing special rules regarding the seat of the Appellate Division of the Court of Bosnia and Herzegovina is particularly problematic, with the assessment that the proposed normative solution is flawed both in principle and in practice.
The Council points out that with the proposed solution, the beginning of application of part of the law is tied to a special decision of the HJPC, which is not in accordance with the established nomotechnical principles, since the issues of entry into force and beginning of application of the law are the exclusive competence of the legislator. In this context, as stated, the question of the constitutionality of delegating such powers to the HJPC also arises.
In addition, the HJPC warns that the seat of the Appellate Division is practically determined for an uncertain future time, subject to the fulfillment of material and technical prerequisites, which deviates from the basic principles of legal clarity and precision. According to the assessment of the Council, such a solution can lead to legal uncertainty and make it difficult to apply the law in practice.
It is particularly emphasized that the absence of transitional provisions that would ensure the continuity of the work of the existing Appellate Division may result in a complete blockage of the work of the Court of Bosnia and Herzegovina in the part of its jurisdiction. The HJPC warns that, bearing in mind political blockages and frequent delays in the adoption of the BiH budget, the establishment of the new Appellate Division may become uncertain in the long term, which would seriously jeopardize the efficiency of the Court of BiH.
Negative assessment of the Draft Law on the HJPC of BiH
In its opinion on the Draft Law on the HJPC of BiH, the Council states that the text of the law to a large extent mirrors earlier solutions prepared by the Ministry of Justice of BiH, but that it does not bring substantial reform progress in key areas.
It is particularly emphasized that the proposed solutions regarding the appointment of judges and prosecutors do not correspond to the recommendations of the European Commission and the Venice Commission, nor do they establish a clear and functional career system in the judiciary.
The HJPC also warns about the inconsistency of certain provisions related to ethnic and gender representation in the composition of the Council, stating that some rules are sketchy, unclear and mutually contradictory, which could lead to serious problems in their application.
A significant part of the remarks also refers to the system of reporting and checking assets and interests. The Council expresses serious reservations about expanding the circle of persons covered by the reporting obligation, warning that such an approach could lead to excessive administrative burden, violation of the right to privacy and reduction of the effectiveness of the verification system. According to the HJPC assessment, the effects of such solutions could be contrary to the declared goal of strengthening integrity and the fight against corruption.
The Council additionally questions the provisions on disciplinary responsibility, stating that some solutions directly undermine the principle of proportionality, because they prescribe the strictest disciplinary measures in advance, including dismissal, without the possibility of determining an appropriate sanction in a specific case. Such an approach, as pointed out, may contradict the practice of the European Court of Human Rights and threaten the sustainability of the law.
Warning of serious consequences
In the conclusion of both opinions, the HJPC BiH concludes that the adoption of these legal solutions in their current form could threaten 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 Council invites the Parliamentary Assembly of Bosnia and Herzegovina to reconsider the proposed texts, take into account the expert comments and ensure a legislative process that will be in accordance with the constitutional standards and the needs of the judiciary.
At the emergency session scheduled for today, the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina should consider the proposals of two laws in the field of justice, the adoption of which is presented in the political discourse as one of the key conditions for the opening of negotiations between BiH and the European Union.
It is about the Draft Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina and the Draft Law on Amendments to the Law on the Court of Bosnia and Herzegovina, which were submitted to the parliamentary procedure by members of the opposition parties from Republika Srpska – Darko Babalj, Branislav Borenović, Mira Pekić, Nenad Grković and Mladen Bosić. It is planned that both legal proposals will be considered in the first reading, that is, at the level of basic principles, and that by abbreviated procedure.
At the previous session, the House of Representatives did not accept the request of the proposer to discuss the laws under an urgent procedure, which would imply their adoption without the possibility of introducing amendments, but it was decided to apply a procedure that still leaves room for additional interventions in the text of the law.
The proponents stated in the explanation of the Draft Law on the HJPC that it is a comprehensive text which, according to their claims, resolves key issues in accordance with the recommendations of the Venice Commission, the Priebe report, GRECO recommendations, as well as the relevant reports of the European Union on Bosnia and Herzegovina. A similar explanation was given with the amendments to the Law on the Court of Bosnia and Herzegovina, where the need for urgent harmonization of domestic legislation with the acquis of the EU and European standards in the field of independence, efficiency and functionality of the judiciary is highlighted.
However, these claims are directly linked to the negative opinions of the HJPC of BiH, which in both cases warns that the proposed texts contain serious normative, systemic and practical shortcomings, and that their adoption in their current form could produce the opposite effects – from jeopardizing the independence of the judiciary, through legal uncertainty, to possible blockages in the work of key judicial institutions at the state level.
This raises the question of not only political, but also institutional responsibility for the deputies of the House of Representatives, since the laws formally related to the European path of Bosnia and Herzegovina are under serious professional criticism of the highest judicial body in the country, writes Klix.
