Alongside the appointment of a chief negotiator with the European Union (EU), judicial reform – namely the adoption of two key laws, the Law on Courts and the Law on the High Judicial and Prosecutorial Council (HJPC) – is crucial for the continuation of Bosnia and Herzegovina’s (BiH) European path. So far, none of the several proposed legislative solutions has received the necessary support for adoption, and without this, BiH cannot expect the start of accession negotiations with the EU, European officials have clearly stated.
BiH is missing the opportunity to open negotiations because there is still no consensus on the key tasks for continuing the European path – the Law on Courts, the Law on the HJPC, and the chief negotiator.
“The main conclusions regarding the composition of the HJPC are that this composition must, above all, be based on the principles of integrity and expertise. As for the ethnic element, the Venice Commission has concluded that it should have a temporary character and that it has the status of a transitional solution,” says Milos Davidovic, a legal expert.
The emphasis must be on independence, expertise, and integrity, both of the members of the HJPC and of holders of judicial functions. The proposed versions are modifications of existing laws that are not a solution, especially not a permanent and reform-oriented solution, according to a former judge of the Court of BiH.
“The essential shortcoming is that they do not resolve the problems in the judiciary. The main problems in the judiciary are the slowness in resolving cases, the lengthy duration of trials, and the lack of cases of corruption and organized crime,” said Branko Peric, retired judge of the Court of BiH.
The two laws that are a precondition for continuing the European path, in their proposed forms, could bring a step forward for the judiciary, but the question is whether they will meet European conditions, Transparency International (TI) says.
“Essentially, what is key is, first and foremost, the verification of assets and the integrity of holders of judicial functions. This remains inadequately regulated. It is about some formality, cosmetic changes. Also, the method of appointment does not resolve the so-called ‘cooling-off’ period either,” says Damjan Ozegovic, TI BiH.
The fight against corruption, an independent judiciary, and harmonized judicial practice are the basic pillars of the rule of law that the EU requires from its candidates.
“When this will happen depends on the political structure of the state and consensus,” says Almin Dautbegovic, a lawyer.
The story of judicial reform in BiH has been ongoing for almost two decades. However, domestic authorities, TI BiH concludes, cannot boast that they have done enough. Most reforms and initiatives have come from outside. International and foreign donors have mainly improved the technical prerequisites for work, while almost nothing has been done to enhance the independence of holders of judicial institutions.
