Appeals Court Row Stalls Bosnia’s Judicial Reforms

The state court and its appeals chamber. Photo: BIRN.

Bosnia’s justice ministry and its judicial overseer, the High Judicial and Prosecutorial Council, both support of the idea of creating a new appeals court on the state level, but the country’s Serb-led entity Republika Srpska is refusing to approve the plan because it objects to its powers of jurisdiction.

In a reflection of the wider political divisions in the country, Republika Srpska wants more judicial autonomy, while the country’s other entity, the Bosniak-dominated Federation would like a more strongly centralised, state-level judiciary.

A draft law on courts in Bosnia and Herzegovina – which envisages the creation of an appeals court, moving the appeals chamber of the Bosnian state court into a separate institution – was prepared in 2012.

Since then however, the draft law has not been sent to the Bosnian parliament because of the rival views within the country about state-level jurisdiction.

The issue has now come to a crisis point: the European Union stopped its funding for war crimes prosecutions at the start of the year until a justice sector reform strategy is adopted. The appeals court is the only issue still to be agreed within the justice sector reform strategy.

The European Commission’s Western Balkans director Jean-Eric Paquet told BIRN that funds required to pay the salaries of over 140 prosecutors, judges and assistants working on war crimes cases throughout the country will not be released unless the Bosnian authorities adopt the justice reforms.

Paquet said that Brussels repeatedly warned the authorities in Bosnia and Herzegovina that this financial assistance would stop if nothing was done.

“Nothing has come as a surprise for the authorities concerned. However, the adoption of the justice sector reform strategy remains an unfulfilled key condition for the continuation of the extraordinary IPA [Instrument for Pre-Accession] budget support for war crimes case processing. This requirement will not change,” he said.

The EC released the first tranche of funds in December 2013, but the second tranche was halted at the beginning of this year. This has already caused problems in the judiciary – some prosecutors are working without salaries, assistants have been fired and there is no funding for investigations.

Milorad Novkovic, the president of the High Judicial and Prosecutorial Council’s supervisory board for the implementation of the Bosnian war crimes strategy, said that the situation is “alarming” and that if a solution is not found soon, “the consequences will be far-reaching because work on war crimes will be brought into question”.

The scale of the remaining task is immense: according to the council, there are still about 1,200 open war crimes investigations against known perpetrators, and even more against unknown ones.

Strengthening public trust

Milorad Novkovic, president of the High Judicial and Prosecutorial Council’s supervisory board for the implementation of the Bosnian war crimes strategy.

Republika Srpska justice minister Anton Kasipovic told BIRN that the Serb entity’s biggest objection to the Bosnian state court – and the proposed state-level appeals court – is the current jurisdiction which allows it to “take over cases from Republika Srpska and the Federation entity courts at its own discretion”.

However the Bosnian justice ministry and the High Judicial and Prosecutorial Council said in written statements to BIRN that the new court would “increase the perception of independence” and “strengthen public trust” in the state-level judiciary.

The logic in dividing the first instance and appeals chamber of the Bosnian state court, they claim, is that “each person has a right to appeal a verdict to a higher court” – which is not possible now.

However, the Bosnian Serb justice ministry is refusing to approve the plan, with minister Kasipovic citing “numerous objections to the organisation and jurisdiction of the state-level judiciary”.

“It is well known that the court of Bosnia and Herzegovina was created by a law which was forced through by the High Representative [the top international official in the country responsible for overseeing the implementation of the Dayton peace deal], despite the fact that the Bosnian constitution offers no basis for such an institution. Thus, one of the objections of Republika Srpska is to the appeals chamber within such a court,” Kasipovic said.

He said that Republika Srpska would approve the creation of an appeals court only once the state level judiciary’s authority to “take over cases from Republika Srpska and the Federation at its own discretion” is removed.

The Bosnian justice ministry and the European Commission meanwhile do not believe the state-level judiciary should lose this jurisdiction, but that it should be more “precise – to avoid future abuse”, according to Pacquet. Clearly defined criteria, they believe, should be put in place to lay out when a case can be taken over by state-level judicial institutions.

Paquet believes however that this should not block the creation of an appeals court.

“Let me remind you that at present, there is already an appellate division within the court of Bosnia and Herzegovina. The competence is already there,” he explained.

Too high a price to pay?

The president of the Bosnian state court, Meddzida Kreso, believes that the creation of a new appeals court would be “economically unjustified”, and that a supreme court on the state level should be created instead – a view backed by some legal experts.

“Creating a court which would only decide on appeals to decisions made by the Bosnian court is difficult to economically justify, since that would mean a new budget, infrastructure, administration, staff and other support mechanisms,” Kreso told BIRN.

“However, creating a supreme court on the state level would help create a unique pyramidal judiciary structure which would harmonise the law and ensure equality before the law for all citizens,” she said.

In her view, such a move would not necessarily infringe on the positions of entity-level judiciaries.

“I am not questioning the legality of the entity-level supreme courts. I cannot see why we cannot have entity-level supreme courts and a state-level supreme court. We had the same situation in the former Yugoslavia. Republics had supreme courts and the federal state had a supreme court and everyone knew what their role was,” said Kreso.

Sarajevo-based legal expert Denis Gratz said he shared Kreso’s view, arguing that the creation of a supreme court would be the “ideal solution”.

“It would be a tip of the judiciary structure which should be aspired to, especially in the sense of strengthening state-level institutions,” said Gratz.

But Bosnian Serb justice minister Kasipovic said that Republika Srpska “will never accept a state-level supreme court, and this is final”.

“I think we have drawn a line under the idea of creating a supreme court. We believe there is no need to create such a Court. The question is, what would a state-level supreme court do when we have entity-level supreme courts? Creating such an institution would disrupt the entire judicial system in the entities and would bring their functioning into dispute,” said Kasipovic.

Playing politics with the judiciary

Kasipovic said that he plans to hold a meeting with state and Federation justice ministers and the president of the judicial chamber of the Brcko District soon to find a compromise which would help move judiciary reforms forward.

But despite this, Gratz fears that the Bosnian Serb leadership might use the EU insistence on an appeals court to win “other benefits”.

“In this situation, the ruling majority from Republika Srpska has two options and they are winners in both. In the first, they block the judiciary reform and weaken state-level institutions, thereby strengthening their autonomy, and in the second they get benefits in other places just to make sure they accept some form of an appeals court, which is again a victory, since the international community will praise them as negotiators willing to compromise,” he said.

Novkovic said he hoped that “reason will prevail” before serious damage is done.

“I am not sure why this is happening. At the Structured Dialogue [talks between Bosnian judicial institutions, justice ministries and EU officials], we discussed the draft law to create an appeals court and everyone agreed this was important,” Novkovic noted.

“I believe and I expect this will be solved soon, otherwise we will have a situation that funding for war crimes will be stopped and also the EU will stop giving about 16 million euros for the reconstruction of courts,” he said.