Farce and Procedural Manipulation: Draft Law on HJPC Sent to Council of Ministers Despite Ongoing Consultations

Sarajevo, 28 November 2025 – The Draft Law on the High Judicial and Prosecutorial Council (HJPC), which has been sent for public consultation, does not represent a step forward but rather a risk of further undermining the independence of the judiciary. Moreover, the Draft Law was placed on the agenda of the Council of Ministers even before the consultations were concluded, indicating procedural manipulation and that public consultations are merely a farce.

Regarding the content of the Draft, or the version currently under public consultation, instead of addressing previously identified issues, the draft further entrenches them by, among other things, solidifying ethnic quotas in the Council’s membership, which become a permanent rule. Additionally, it retains the principle of pre-determined distribution of positions based on ethnic affiliation and the institution from which candidates for judicial functions are nominated, which has already led to manipulations in practice to rig positions.

Instead of ethnic quotas being a temporary corrective mechanism, as recommended by the Venice Commission, the draft permanently embeds them into the law, making them a permanent rule for selecting HJPC members. Transitional provisions even allow for the quotas to remain in effect until potential EU membership, and even beyond, thereby long-term entrenching the practice of selecting members of the most important judicial body based on ethnicity rather than expertise, experience, and professional integrity. Besides establishing national affiliation as a permanent instrument of control over the Council’s work, this form of political influence can have serious consequences for its independence and functionality in the years to come.

An additional problem is the fact that the Rulebook on the Lottery Procedure under this draft is adopted by the HJPC and the Ministries of Justice at the state, entity level, and Brčko District level, giving the executive branch direct influence over a key part of the process of appointing Council members, and the composition of the Council further determines the application of all other provisions of the law.

On the other hand, key procedures are left to by-laws, and political influence on the selection of Council members remains possible through non-transparent procedures for selecting members who are chosen outside the judicial community, by the Council of Ministers, the Parliamentary Assembly, and the Bar Associations of FBiH and RS.

In addition, the HJPC would further regulate a series of essential provisions concerning conflicts of interest, the selection of electoral commissions, appointment and promotion procedures, and rules for deviating from ranking lists through its rulebooks. Such a wide scope for arbitrary decision-making by HJPC members regarding their own obligations, oversight, and procedures, as well as the discretion thus created in terms of appointments, will not contribute to strengthening accountability and oversight. This weakens the already shaken public trust in the integrity of the judiciary and the accountability of judicial office holders, given the previous practice in which the HJPC changed the meaning of legal norms through secondary regulations.

The integrity and accountability of Council members can be seriously undermined by allowing members to assume office before asset and interest checks are completed, calling into question the legality of decisions in which they participated if negative findings are subsequently obtained. Additionally, the draft does not introduce a mandatory “cooling-off period” after the expiration of the mandate, i.e., a ban on candidacy for certain positions, meaning that Council members can immediately apply for judicial functions they previously decided on, effectively influencing their own appointment.

Furthermore, the solution that previous mandates of Council members, as well as leaders in courts and prosecutor’s offices, would not count towards the new mandate limit, practically allows the same individuals to remain in positions longer than is allowed for other judicial office holders, thereby weakening controls and mechanisms for limiting the concentration of power in the judiciary.

Transparency International in BiH (TI BiH) has pointed out these and other shortcomings of the draft through improvement proposals submitted to the Ministry of Justice of BiH. Nevertheless, the Draft Law on the HJPC has meanwhile been placed on the agenda of the Council of Ministers meeting scheduled for December 2, even though consultations are still ongoing. This clearly shows that the proposer does not intend to consider the views of the expert public, and it raises the question of which version will be presented to the Council of Ministers.

Adopting the most important judicial law in an atmosphere of pressure to quickly meet the conditions for starting negotiations with the EU and without real space and political will for quality public debate carries a serious risk of permanently undermining the rule of law in BiH. Instead of real reforms, an illusion of swift action is created, while serious shortcomings are presented as something that will supposedly be corrected through negotiations with the EU. Past experiences of adopting reform laws on the EU path show that poor norms are rarely corrected, while adopting inadequate solutions subsequently creates problems in their implementation and causes long-term damage.

Besides the fact that public consultations were evidently conducted only as a display of inclusivity, without real intent to consider proposals, this means that there is no time for adopting proposals gathered through public consultations, and the draft text is being changed while public consultations are still ongoing. Information on what exactly was presented to the Council of Ministers and what is ultimately adopted will not be known until it is already adopted and too late for any interventions and public participation.

TI BiH calls on the proposer to address the clearly identified shortcomings, as the law in its proposed form is not aligned with international recommendations and can create long-term negative consequences for the functioning of the judiciary. Considering that this is one of the key reforms in the process of accession to the European Union, we also call on EU institutions to publicly communicate expectations regarding the quality of provisions, the level of alignment, and “red lines” concerning this law, to prevent political manipulations and abuses of the European path at the expense of judicial independence.

Press rls_28_11_2025