Judiciary in the 2014 Progress Report on Bosnia and Herzegovina
The Progress Report on Bosnia and Herzegovina is part of the 2014 Enlargement Package adopted by the European Commission on 8 October 2014. The Report assets progress achieved within past 12 months in fulfilling political and economic criteria for EU membership and progress in harmonizing BiH legislation with the legislation of the European Union.
Following are excerpts from the Report related to the judicial system of Bosnia and Herzegovina:
The Structured Dialogue on Justice, broadened to other rule of law matters, remained a sustained confidence-building process, delivering some positive results in the area of regional cooperation, the processing of war crimes, professionalism and the efficiency of the judiciary. The implementation of the Justice Sector Reform Strategy (JSRS) 2009-2013 was completed in part, while the follow-up strategy 2014-2018 and action plan are still in the process of receiving final political endorsement. The State-level Ministry of Justice has finalised a draft law on the High Judicial and Prosecutorial Council (HJPC) that was reviewed by the Council of Europe's Venice Commission with an opinion adopted in March 2014. The politicisation of the appointment procedures for the Council's members and that of the Chief Prosecutors at all levels, through involvement of executive and legislative branches, remains problematic. The final adoption of amendments to the law on the Courts of Republika Srpska, which harmonises the law with the HJPC's existing prerogatives, is still pending. The draft Law on the Courts of Bosnia and Herzegovina, providing for the establishment of a separate State-level Appellate Court, and the draft law on the Prosecutor's Office of Bosnia and Herzegovina have been finalised by the Ministry of Justice. Following the earlier Venice Commission opinion and relevant Structured Dialogue recommendations, this reform needs to be achieved with the largest possible political consensus as a matter of priority. There was some progress in enhancing the harmonisation and consistency in applying substantive criminal law at the State-level judiciary and other instances throughout the country.
There are persistent flaws in the independence and impartiality of the judiciary. Political interference has continued. In particular, the political establishment has applied pressure on issues related to processing war crimes, including the enforcement of the European Court for Human Rights judgment in the case of Maktouf and Damjanović vs Bosnia and Herzegovina.
Sources of budgeting for judiciary and prosecution services in Bosnia and Herzegovina continue to be highly fragmented, particularly in the Federation, and capacities for planning within the 14 budgetary institutions remain weak. Streamlining budgetary responsibilities, necessary to increase efficiency in resource allocation and the overall independence of the sector, remains a key structural objective. The total adopted budget for 2013 was € 110 million, representing 0.82 % of the country's GDP.
Due to budgetary restrictions, 13 % of positions for regular and reserve judges, as well as prosecutors, cannot be filled across the country. In an effort to examine the current situation, the HJPC is undertaking a comprehensive analysis to facilitate reaching optimal numbers.
On accountability, the number of complaints submitted regarding judicial office holders, particularly prosecutors, has increased at the Office of the Disciplinary Council. The overall trend has been to reduce the number of pending cases, as well as to shorten processing time. The number of disciplinary cases opened ex officio due to the elapse of the statute of limitation has increased, totalling 50 % of all disciplinary proceedings. Out of 18 disciplinary proceedings, 17 were completed and sanctions disposed. Due to the current legal framework, there is a lack of adequate disciplinary sanctions against wrongdoing judicial office holders. A rulebook on conflict of interest for members of the HJPC has been adopted.
As regards efficiency, there has been progress on the package of measures and technical reforms provided by the HJPC as well as other relevant stakeholders, reducing the backlog of cases. Each court has developed a backlog reduction plan complying with the judicial quotas adopted. In 2013, seven courts reached the target of bringing their caseload up to date. The rise in of unpaid utility bills cases continues to be a significant burden on the judiciary and represents 79 % of unresolved cases (total: 1.709 million). Productivity in courts rose by 9 % in 2013 compared to 2012, partly thanks to the implementation of a rulebook with suggested quotas for the work of judges and judicial associates in courts. As recommended by the Structured Dialogue on Justice, cooperation with Entity notary chambers was established to relieve the pressure on first-instance courts by transferring certain court competencies to public notaries.
The judicial information and communication system is fully functional throughout the country. The case management system in courts and prosecutors' offices covers over 3.9 million cases and now produces automated reports on judicial performances that contribute to policy and strategic planning decisions. In January 2014, a tool was introduced to enable all parties in proceedings to receive information on the predicted duration of their cases in court.
Access to the judicial web portal has improved substantially. The Judicial Documentation Centre has also registered a significant rise in online visits. The number of visits to this site has increased by 35 %. New electronic services such as a web calculator for court fees and a web address book listing lawyers are available on this portal.
A uniform human resources management information system for courts and prosecutors' offices has been established, improving efficiency in the appointment, management and planning of such resources.
The physical conditions in several courts in the Entities have improved, particularly regarding witness protection measures. Several Entity prosecutors' offices have benefited from renovations to improve their working conditions. Technical preconditions for more efficient processing of war and organised crime cases, as well as application of witness protection measures, have been met in a number of courts and prosecutor' s offices by introducing digital audio and video. Use of these systems will have a positive impact on reducing the costs/duration of proceedings and the quality of witness protection measures. Further improvements to the judicial and prosecutorial infrastructure are still required.
As regards professionalism, training for the judiciary is provided by the Judicial and Prosecutorial Training Centres of the two Entities. It is based on the three-year mid-term strategy for induction and continuous training adopted by the HJPC. Each training centre prepares an annual curriculum, which includes distance learning modules comprising 30 % of the training modules available. Although most judicial staff holders comply with the compulsory minimum days of training per year, institutional reforms of the training centres are necessary to improve both the delivery and substance of training. The HJPC successfully completed the test phase for new procedures regulating access to judicial careers. A new system of competitive written examinations for all candidates entering judicial careers and the systematisation of structured interviews for all applicants, including internal promotions, is expected to increase the objectivity and transparency of recruitment, based on merit and qualifications.
Progress has continued on tackling the large backlog of domestic war crimes cases. The implementation of the national war crimes strategy continues, although at an unsatisfactory pace, and the body in charge of its supervision requires additional support from all authorities. The State-level judiciary continues the referral of war crimes cases. The capacities of prosecutors' offices throughout the country were improved through recruiting more staff, and material conditions were significantly improved through international assistance. Appropriate financing of adequate staffing levels in prosecutors' offices and courts remains an issue to be addressed urgently to ensure timely and effective processing of the backlog. The competent authorities failed to allocate the funds needed to complete the support infrastructure.
Discussion on the lack of harmonisation of case-law through application of different criminal codes was re-launched following the European Court of Human Rights judgment in the case Maktouf and Damjanović vs Bosnia and Herzegovina. New jurisprudence in cases of war crimes against civilians and genocide was enforced. The court's earlier jurisprudence on crimes against humanity was confirmed. The institutionalisation of regular consultations among the highest judicial institutions led to the establishment of three fully functioning panels of the highest judicial instances in charge of ensuring harmonisation in criminal, civil and administration-related matters. The Criminal Codes Implementation and Assessment Team that had provided a forum for expert discussion was dissolved.
The prosecution of war crimes cases involving sexual violence further improved, and there is genuine commitment on the part of the authorities to delivering justice to survivors of sexual violence. However, efforts to investigate and prosecute these crimes need to be stepped up further, as the overall number of indictments for sexual violence is low in comparison to the prevalence of such crimes during the conflict. The low number of suspects and lack of evidence hampers the progress of investigation. A comprehensive approach to improving the status of victims of rape and sexual violence has still to be achieved. The adoption of a State-level programme to improve the status of victims of war crimes involving sexual violence is pending.
Steady progress on witness protection measures is primarily due to international financial support, particularly regarding psychosocial witness support in the Entities. Refurbishing of some court rooms for protected witness testimony and provision of adequate equipment has been completed in the majority of Cantonal/district courts. Recruitment of non-judicial witness support staff in courts and prosecutors' offices is ongoing, but a comprehensive witness protection system before and after proceedings is still not in place. The draft law on witness protection programme was adopted.
Access to justice has moderately improved, but equality in relation to rights, criteria and procedures is not uniformly guaranteed. Concerning free legal aid, the risk of discrimination continues to be of serious concern as a consequence of a fragmented and non-harmonised system. A free legal aid agency has been established in one more Canton of the Federation, bringing the total to eight. However, the free legal aid system is still unregulated in two Cantons and in the Federation. The adoption of a State-level law on free legal aid is still pending. Civil society organisations actively continue to provide free legal aid, particularly in civil cases, but their role is not consistently recognised or even regulated in the country. The Free Legal Aid Network has made steady progress, with additional training, strengthened cooperation between these organisations and governmental agencies, increased awareness and reinforced monitoring.
Overall, there was little progress in the area of judicial system reform. The Structured Dialogue on Justice remains an important platform to consolidate consensus on judicial reforms and has been further broadened to other rule of law-related matters. The reform of the State-level judiciary remains a priority. A new Justice Sector Reform Strategy has been prepared, but final political endorsement is still pending. Measures to reduce the backlog of cases have successfully started, but the backlog remains high, with a large number of unpaid utility bills cases that need to be addressed with structural solutions as a matter of urgency. The lack of human resources at all levels to tackle the backlog of war crime cases has been partly addressed, but sustainability still needs to be ensured with proper planning and relevant funding from competent domestic authorities. There was no progress on reducing the budgetary fragmentation of the judiciary, which also undermines independence. The judiciary requires further reinforcement of disciplinary tools and adequate regulations of conflict of interest. The law on the courts of Republika Srpska requires amendments in line with the recommendations of the Structured Dialogue on Justice.