THE PRELIMINARY DRAFT OF THE NEW LAW ON THE HIGH JUDICIAL AND PROSECUTORIAL COUNCIL IS FLAWED IN MANY WAYS, THE DRAFTING PROCESS IS NON-TRANSPARENT

Banja Luka, July 5, 2024 – The Ministry of Justice of Bosnia and Herzegovina prepared a preliminary draft of the new Law on the High Judicial Prosecutorial Council (HJPC), whose contents the public had access to only through the opinion of the Venice Commission, which was recently published. Transparency International in BiH (TI BiH) warns that apart from the non-transparent process of drafting, for which a working group with dominant participation of the executive power and insufficient involvement of the judiciary itself was responsible, the content does not meet the relevant recommendations in terms of strengthening the independence and integrity of holders of judicial functions.

The observed shortcomings, which were confirmed by the opinion of the Venice Commission, primarily relate to the undefined disciplinary responsibility of the members of the Council, insufficiently precise provisions on the prevention of conflicts of interest, the declaration of assets, the composition of the Council and the competence of auxiliary bodies, but also insufficient transparency and the exclusion of the public from the law drafting process.

Commenting on the preliminary draft of the new Law on the HJPC, the Venice Commission repeated many of the comments made by the TI BiH on earlier changes to this key reform law, with warnings that the reform of the judiciary is being implemented in an inadequate, partial manner, which does not lead to the fulfillment of the key criteria that have been set in front of Bosnia and Herzegovina on the way to EU membership.

In its Opinion, the Venice Commission expressed the view that when selecting judicial office holders, priority should be given to competence in relation to the ethnicity of candidates, and that the selection of key judicial offices should primarily rely on objective criteria based on measurable competencies.

Additionally, the need for clear provisions regulating the independence of the HJPC from the executive power was emphasized, both through the role defined by the Constitution, and through the clear exclusion of the HJPC from the application of the Law on Administration and the Law on Ministries and Other Administrative Bodies of BiH, which was removed from the proposed text without explanation.

In addition, TI BiH emphasizes that the preliminary draft of the Law on the HJPC does not define the method of appointing members of the commissions that conduct interviews, score and test candidates for judicial positions, nor does it define the mechanisms for conducting qualification and written tests. This increases the risk of inappropriate influences and irregularities, leaving room for manipulation of the process through influence on the composition of commissions, which play a key role in the selection of judges and prosecutors, especially when taking into account the large share of subjective evaluation.

The preliminary draft also ignores certain mechanisms introduced by the latest amendments to the current HJPC Law, which relate to the disciplinary responsibility of HJPC members, while the provisions on conflict of interest have not been improved. It is precisely the provisions on conflict of interest in the Opinion of the Supreme Court that are highlighted as problematic, since the definition is not clearly specified, as the TI BiH warned during the last amendments to the Law. In addition, TI BiH still adheres to earlier recommendations that when submitting a report on assets and interests of judges, prosecutors and members of the Council, it is necessary to include all close relatives, including those who do not live in the same household, in order to reduce the possibility of evading the declaration of assets in this way, which is not foreseen in the draft.

When it comes to property verification, the submitted text still does not clearly regulate the obligations of all institutions in the process of providing data and verification, which was pointed out by the TI BiH during the last changes, as a potential mechanism for blocking the verification of property records.

Furthermore, in accordance with the comments of TI BiH, the Venice Commission also recommends that the HJPC should have an odd number of members in order to facilitate decision-making, with recommendations to include more independent members who are not holders of judicial functions in the composition of the Council. The opinion reiterated the proposals of the TI BiH for a clearer definition of disciplinary responsibility in order to make a difference between serious and minor offenses, and therefore sanctions.

Finally, pointing out that civil society representatives and other interested actors were not familiar with the content of the preliminary draft, nor were they involved in the process of drafting this or other reform laws in the field of justice, the Venice Commission notes that transparency and an open process of passing laws are necessary preconditions for a high-quality completion of the process.

TI BiH reminds that this is one of the most important laws for BiH, which will guide the direction of action of the entire judicial system, and that the opportunity must be used to ensure the basic foundations of independence and responsibility. TI BiH therefore appeals to the Council of Ministers and the Ministry of Justice of BiH as proponents to ensure broad consultations on this important law, to include the opinions of all relevant actors, especially the judicial community and the professional public, which is insufficiently represented in the process of creating the law.

Press rls_05.07.24_

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