Nepravilnosti i neujednačenost u praksi disciplinske odgovornosti sudija i tužilaca
Irregularities and unevenness of the practice of disciplinary proceedings against judges and prosecutors in Bosnia and Herzegovina

Author(s): Mirza H. Omerović
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, Public Law
Published by: Fondacija Centar za javno pravo
Keywords: BIH; public law; judiciary; disciplinary proceedings regulations; HJPC; VSTV;
Summary/Abstract: The purpose of this analysis was to point out need to amend the regulations governing disciplinary proceedings, as well as the practices of disciplinary bodies in Bosnia and Herzegovina. The Law on HJPC needs to be amended in order to establish the explicit disciplinary responsibility of the HJPC members and to make judges and prosecutors acting as HJPC members, in addition to being the most authoritative, also the most responsible persons in the judiciary. In doing so, careful steps should be taken to ensure that their responsibility is not misused as a possible deterrent to exercise of everyday duties. HJPC members should not be held accountable for the decisions and opinions they have made in performing their duty to the best of their ability. The example cited in the analysis illustrates the need to exclude HJPC members from the process of determining the disciplinary responsibility of their colleagues in order to remove doubts about corporatism in the decision-making process. Other legal provisions should also be specified, in line with the analysis's observations: the possibility for the HJPC to rule in the third instance should be eliminated or substantially reduced, and judges and prosecutors being investigated or indicted should be suspended ex lege. However, the greatest room for improvement of existing practice exists in the need for consistent application of positive rules in disciplinary proceedings, as well as equal treatment of respondent judges and prosecutors in cases with substantially similar factual state. In doing so, the corrective role of the general public, especially the professional associations of judges and prosecutors, and their reaction to the views expressed in disciplinary decisions is crucial. So far, this reaction has been sporadic or completely absent. In order to enable the public and the professional community to make their corrective influence, it would be necessary to make available to the public all key documents from disciplinary proceedings, which could be achieved through their publication on the HJPC website. Consistent application of the rules in disciplinary proceedings, equally to all judges and prosecutors, would represent a key contribution of disciplinary bodies to the integrity of the judiciary and, as stated in the introduction to this analysis, to the rule of law in our country.

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