Conflict of interest in the judiciary still unregulated

The analysis of TI BiH has shown a lack of mechanisms to prevent and sanction conflicts of interest, and that in situations in which legal framework prescribes specific aspects of ensuring the integrity, there are no clearly specified competencies for determining and sanctioning the conflict of interest, or controlling property records.

Banja Luka, 29th March 2016 — Transparency International in Bosnia and Herzegovina (TI BiH) published an analysis entitled Conflict of Interest in the Judiciary – an overview of regulations and recommendations, whereby it has focused on key weaknesses and recommendations for improving the integrity of the judiciary and strengthening the preventive mechanisms in this field.
The analysis has determined several legal gaps that need to be resolved immediately:
– There are no unique and harmonized rules on the conflict of interest applicable to all judicial officials, but in this form, this has been regulated for the members of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC BiH) only.
– Rulebook on conflict of interest does not provide to the members of HJPC all instruments to prevent conflict of interest of the HJPC members, such as limited advancement during their mandate or after the expiry of the mandate. This is particularly disputable if you consider the fact that HJPC has the monopoly on decision-making process in regard to the advancement of the holders of the judicial functions.
– The membership of lawyers in HJPC is also disputable, and the membership itself represents a conflict of interest, since they decide on the engagement and advancement of the judges, before whom they represent parties later on.
– There are no restrictions regarding the professional engagement of the holders of the judicial functions after the expiry of their mandate in the judiciary, which would prevent the conflict of interest or the work of judges and prosecutors on cases against which they acted.
– There are no detailed and comprehensive mechanisms for the prevention of nepotism in employment procedures in the judiciary.
– Financial reports and property records of the holders of the judicial functions are not available to the public and there are no mechanisms and competencies for their verification, which makes their submission completely meaningless.
The analysis has shown that in situations in which legal framework prescribes specific aspects of ensuring the integrity, there are no clearly specified competencies for determining and sanctioning the conflict of interest, or controlling property records.
In its recommendations TI BiH puts emphasis on the need to expand the Rulebook on the conflict of interest for the members of HJPC to all holders of judicial functions, but also to improve it in a way to limit and clearly determine the maximum amount of money which can be earned from the additional engagement and employment upon expiration of the mandate of HJPC members. As for the competencies over the implementation of the rules on the conflict of interest in the judiciary and control of property records, the recommendations take two directions – to allocate the competence to an independent institution (e.g. the Agency for Prevention of Corruption and Coordination of the Fight against Corruption) which will be competent to implement all regulations related to the conflict of interest and property records for all officials, including the judiciary officials, or to establish a special department within HJPC that would be specialized and have the capacity to determine conflicts of interest and impose sanctions.
Measures proposed by TI BiH have also been emphasized in the Structured Dialogue on the Judiciary Reform, but there has been no progress in this process for almost three years, since these recommendations have been defined at the sessions of the Structured Dialogue. In the context of new pressures on the work of judicial bodies, TI BiH believes that it is, more than ever, necessary to complete the process of a detailed regulation of conflict of interest in the judiciary, especially the ways of its determination, in order to restore the violated trust of the citizens.

Press rls ENG – 29 3 2016