Novousvojeni Kriteriji za ocjenjivanje rada sudija u Bosni i Hercegovini: izgradnja kvalitetnog pravosuđa ili atak na koncept nezavisnog pravosuđa?
New Criteria for Appraisal of Judges in Bosnia and Herzegovina: Building a High-quality Judiciary or Attack on the Concept of an Independent Judiciary?

Author(s): Demirel Delić
Subject(s): Law, Constitution, Jurisprudence, Politics and law, Evaluation research
Published by: Fondacija Centar za javno pravo
Keywords: Bosnia and Herzegovina; high-quality judiciary; independent judiciary; performance of judges; courts; evaluation; evaluation criteria;
Summary/Abstract: At the beginning of 2019, new Criteria entered into force. In the current absence of media reaction, a great opportunity was given to the judiciary. Opportunity to set up a strong internal evaluation mechanism of work without pressure. In that vacuum, which will not last more than twelve months, i.e. until the first results of the application of the Criteria, the role of judges and the entire judiciary community is crucial. We all need to be directed towards a constructive contribution for the proper application of the standards prescribed by the Criteria. Thus, this analysis should also be understood as an attempt to bring the standards of the newly adopted Criteria closer to the judiciary, by critical (affirmative and negative) approximation, to point out potential neuralgic points that can be remedied by the active holding of directly involved Criteria applicants in order to encourage participation in the practical overcoming of internal difficulties in the community for the benefit of the society. The remark that the Criteria is unconstitutional and illegal because is not justified. First of all, the Criteria are not imposing judges an explicit obligation to evaluate colleagues, since it is clearly indicated that judges of the courts are assessors who independently make a work evaluation and are responsible for the accuracy of the data and the objectivity of the assessment. Secondly, the unlawfulness of the Criteria is not founded either in the objection that factual judges judge their colleagues, as they only give an opinion on their work. Namely, in Europe, many countries apply the same concept and scheme of the appraisal process as it is in BiH under the new Criteria. Judges who give an opinion on the work of their colleague are nothing more than one of the sources of information on the basis of which the president of the court makes a conclusion on the quality of the work of the judge. Indeed, if the judges actually created their final assessments with their opinion, and that the presidents of the courts do not have any independent observation on the work of judge, then the remark would have been justified. Nevertheless, the Criteria gave the presidents of the courts absolute authority to create final opinion, but they also imposed a serious burden of responsibility. In conclusion, apart from the quantity of work and the statistical quality of the decisions, now there is an element: analytical quality of work and decisions. This incorporated element according to the current content of the Criteria affects 30% of the final grade. The idea of a descriptive analysis of work is a step towards building a responsible judiciary that stimulates quality competitiveness, and not a dominance of mediocrity. Nevertheless, still the main influence on the appraisal has statistics, which makes it possible to mimic the results of the work. The level of practical success of applying the element of analytical quality of work will fully reflect the state of the true quality of the presidents of courts, the heads of the court departments and judges. In theory, it is quite logical that the presidents of the courts will have the greatest confidence in the opinions of the heads of the department, because precisely the presidents of courts influence directly the election of the president of the department. Therefore, they themselves decide what kind of staff they surround themselves. If they have chosen their selection according to the qualitative selection system, then they will have an exceptionally facilitated position in applying the Criteria. Furthermore, big exam will be true collegiality, the quality of interpersonal relationships in the court, team work, objectivity, judge's impartiality and the knowledge of judges. The court presidents will receive information on the analytical quality of work and the decisions of the evaluated judges from the higher court, which means that the newly adopted Criteria also systematically encourage the co-ordination of the judges from different instances. In this context, it is important that the HJPC, takes a proactive role and does not allow that the success of the Criteria depends exclusively on the will of the courts. In order to feel the benefits of applying the Criteria, the precondition is that judges who apply it, begin to understand Criteria as a help in daily work. The evaluated judges are encouraged by Criteria to be involved in the appraisal process, and in fact be promoters of personal competencies and skills, nominating decisions, and writing a report on their own work. Self-reflection as the basis for objectifying the appraisal process! The presidents of the courts are obliged to analyze this source of information in the appraisal. I wonder, is there any possibility of more complete securing of transparency and deprivation of the subjectivity of the entire process? If the complaint of some members of the legal community is then still focused on competencies, now extended by fellow judges, to presidents of courts, and ultimately to members of the HJPC, I do not see this as a critical suggestion. Why? The suspicion of the individual competencies of certain colleagues is an internal matter of the individual and the legitimacy of such a point of view can not be called into question (provided that it is argued), but the objection to the non-objectivity of the content of the Criteria must be based on a systemic failure of the Criteria for leaving room for personal battle with appraised judge. There is no such system-wide failure in the Criteria.

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