The New Law on the High Judicial and Prosecutorial Council at the Crossroads Between Profession and Politics

Sarajevo, November 5, 2024 – The professional public is dissatisfied with the content of the Draft Law on the HJPC, as well as with the drafting process itself, which was conducted non-transparently, without the participation of the public or representatives of the judiciary. Moreover, there is a concerning degree of influence from the executive branch in shaping one of the most important reform laws within the EU integration process of Bosnia and Herzegovina.

The Draft of the new Law on the HJPC does not include clear criteria for selecting Council members, whose appointment remains subject to external influences, with an obligation to adhere to ethical quotas rather than candidate qualifications. This leaves room for appointments that could undermine the integrity and independence of the judicial system.

Furthermore, the new Law on the HJPC, drafted by a Working Group and prepared by the Ministry of Justice, contains numerous shortcomings, including insufficiently precise provisions for preventing conflicts of interest, property declaration, and verification. The Council composition and the appointment commissions are also problematic, according to the message from the roundtable titled “The New Law on the High Judicial and Prosecutorial Council: A Crossroads Between Expertise and Politics” held in Sarajevo.

“It is of utmost importance that the Ministry of Justice of Bosnia and Herzegovina responds to the comments and recommendations on the draft law submitted by professional associations and representatives of civil society, so we can know whether these were taken into account by the Working Group responsible for drafting the law,” stated Judge Goran Nezirović, presenting the recommendations and observations of the Joint Coordination Body of Judges and Prosecutors regarding the proposed text of the law.

Focusing on competence and measurable criteria of expertise, rather than ethnic affiliation or regional representation in the appointment of judges and prosecutors, is also among the recommendations of the Venice Commission and the EU that were not taken into account during the drafting of the new proposed law.

“Numerous shortcomings have been identified, including insufficiently precise provisions regarding the criteria for selecting Council members, the process of appointing judges and prosecutors, preventing conflicts of interest, and asset verification,” said Ivana Korajlić, Executive Director of TI BiH, commenting on the draft of the new Law on the HJPC. She emphasized that there must be no room for varied interpretations and that this opportunity should be used to establish a clear system of accountability, as well as high standards for the appointment, evaluation, and integrity of judges and prosecutors.

Transparency International in Bosnia and Herzegovina, in cooperation with the Joint Coordination Body of Judges and Prosecutors of Bosnia and Herzegovina, organized a roundtable where representatives of the judiciary, the professional public, and non-governmental organizations presented their comments and analyzes of the proposed legal framework, which, in its current form, contains many shortcomings.

On this occasion, TI BiH urged decision-makers to make substantial improvements to the draft law in line with the recommendations of the Venice Commission, as well as the professional public in Bosnia and Herzegovina, particularly regarding the criteria for selecting HJPC members, transparency, and meritocracy in the process of appointing judges and prosecutors. Concerns were reiterated that the draft law does not define the procedure for appointing commission members or mechanisms for testing candidates for judicial positions, leaving room for manipulation in the appointment process. Additionally, many key issues are left to be regulated by secondary legislation, which reduces the quality of the final solution and further excludes the public and professionals from the process of defining provisions to minimize undue influence and irregularities.

The Law on the HJPC is one of the key reform laws, on which the complete functioning of the judiciary depends, and therefore the functioning of society as a whole, and requires a thorough and systemic approach. That is why it is necessary to prevent the adoption of inadequate and truncated legal solutions whose consequences can be far-reaching, while the question arises of true commitment to the implementation of essential reforms necessary for the establishment of a minimum of responsibility and the rule of law in BiH.