Series:Fondacija Centar za javno pravo - Analize

Analysis of the BiH judiciary with reference to the practical problems of the party in the open market

Analiza pravosuđa BiH s osvrtom na praktične probleme stranke u postupku

Author(s): Senad Pizović / Language(s): Bosnian

Keywords: BiH judiciary; High Judicial and Prosecutorial Council of BiH; public prosecutor; judicial practice; public law;

I have tried to show practical problems in the BiH judiciary I encounter in my daily work. They cast doubt on the proper functioning of the judiciary as a whole. One should not neglect the positive features of the judiciary, especially the honorable and responsible holders of judicial functions, but addressing problems in the daily work of a lawyer can certainly contribute to the articulation of practical problems and their resolution. With regard to the issue of public self-representation, I believe that the High Judicial and Prosecutorial Council of BiH should take measures to avoid inappropriate behavior of the public prosecutor and their mutual accusation. At the same time, measures should be taken to protect the holders of judicial functions from inappropriate and unprofessional reporting of the media in relation to their work of judicial functionaries. When it comes to problem-solving issues within a reasonable time, I consider that the first step would be for the BiH High Judicial and Prosecutorial Council to take measures to determine the responsibility for not making a decision within a reasonable time. This would, I believe, prevent or at least significantly reduce the length of court proceedings in BiH. If there are objective circumstances such as court overload or lack of material and human resources, the HJPC should initiate the initiative to provide appropriate courts and tribunals with adequate material and human resources to assist the work of targeted courts. Such a HJPC initiative that would precede the analysis of critical points in the work of the courts should be presented as an elementary public interest by which responsibility would be transferred to the hands of the legislative authority. With regard to uneven judicial practice, I consider that it is necessary to appoint a judge for the harmonization of court practice in each court, whose exclusive task would be to avoid the different case law of the courts, which would ultimately lead to greater public confidence in the BiH judiciary and facilitated the exercise of the rights of parties in the proceedings.

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Commentary on the Draft Code of Conduct and Clothing at the University of Sarajevo

Komentar Nacrta Kodeksa ponašanja i odijevanja na Univerzitetu u Sarajevu

Author(s): Vladimir Mikić / Language(s): Serbian

Keywords: University of Sarajevo; BiH; Draft Code of Conduct and Clothing; general legal framework of the UNSA ;

Nastavnicima na Univerzitetu u Sarajevu podeljen je, početkom meseca jula 2018. dokument koji nosi naziv Nacrt Kodeksa ponašanja i odijevanja na Univerzitetu u Sarajevu (Nacrt). Nacrt je usvojen na sednici Senata ove visokoškolske ustanove održanoj 11. jula ove godine. Reč je o aktu koji je, prema rečima odgovornih lica sa Univerziteta u Sarajevu (UNSA), „u fazi javne rasprave“, u okviru koje nastavno i administrativno osoblje, kao i studenti, mogu da iznesu svoje komentare i predloge. Pošto je deo akademske zajednice UNSA primio sa ogorčenjem vest o ideji svojevrsne uniformizacije nastavno-istraživačkog osoblja koje je na njoj zaposleno, odnosno o propustu da se jasnije utvrde obaveze studenata na planu poštovanja normi o pristojnom oblačenju, raste potreba da se pruži odgovor na izvesna pitanja vezana za opšti pravni okvir UNSA i odnos pojedinačnih normi Nacrta prema njemu.

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Admissibility of Appeals Against Decisions of the Constitutional Courts of the Entities in Bosnia and Herzegovina

Dopustivost apelacija protiv odluka ustavnih sudova entiteta u Bosni i Hercegovini

Author(s): Igor Popović / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; constitution; Constitutional Court of entities; appellation; court case; human rights;

In this paper I consider if it is possible to file an appellation (constitutional complaint) to the Constitutional Court of Bosnia and Herzegovina against one of the entity's Constitutional Court’s decision on a normative abstract review procedure. The paper is based on the decision of the Constitutional Court of Bosnia and Herzegovina in case AP-2567/16 rendered in December 16, 2018. Here, the Court decided that the appellation was inadmissible because the Court does not have a jurisdiction in these types of cases. It argued that it is not in accordance with the “spirit” of the Constitution of Bosnia and Herzegovina to have jurisdiction in these cases. I argue that it is not possible to have en generale and a priori conclusion that appellations should be inadmissible. Instead, the Court should use the standard test regarding the admissibility conditions and decide on the question of admissibility. After the introductory remarks, I present the summary of the decisions of the Constitutional Court of Bosnia and Herzegovina (AP-2567/16) and the Constitutional Court of Federation Bosnia and Herzegovina (U 15/10). Afterwards, I summarize the legal opinions of several authors regarding this issue. In the fourth part I analyze the admissibility of the appellation in the case of AP-2567/16 using standards from the admissibility test developed in the case-law of the European Court for Human Rights. The test points out that state can interfere into a person’s rights in various ways – by ordinary court’s judgment, non-facere, even mere parliamentary act (statute) can be regarded as an act of interference. I argue that the decision of the Constitutional Court of Federation Bosnia and Herzegovina can be seen as an act which interferes into the property of appellants. Therefore, it seems that the appellation should have been declared admissible. In the fifth part, I argue that the manner in which the Constitutional Court of Bosnia and Herzegovina has changed its jurisprudence is not in accordance with the European standards introduced by the European Court for Human Rights and the Consultative Council of European Judges. In the sixth part I present the case-law of the German Federal Constitutional Court which shows that constitutional complaint against a decision of а constitutional court of federal unit or parliament act can be admissible. In the seventh part I analyze the merits of the case and argue that the decision of the Constitutional Court of Federation Bosnia and Herzegovina lacks quality in its substance that it can be regarded as an arbitrary one. Bearing in mind that interference into person’s property should be based on a law, which must be clear and non-arbitrary I conclude that the lawfulness condition from the ECtHR’s case-law is not fulfilled. Thus, there was a violation of the right to property. Therefore, it is possible to argue that an appellation against a decision of entity’s Constitutional Court may be admissible in special case like the one I have analyzed in this paper.

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The Constitutional Court of Bosnia and Herzegovina and Deciding Suspension on Violation of the Right to Trial within a Reasonable Time

Ustavni sud BiH i obustava odluka o povredi prava na suđenje u razumnom roku

Author(s): Nikolina Bajić / Language(s): Bosnian

Keywords: Constitutional Court; Bosnia and Herzegovina; constitution; right to trial within a reasonable time; appeals; human rights;

In 2018, the Constitutional Court of Bosnia and Herzegovina received over 1,700 new cases, in which the appellants invoked a violation of the right to trial within a reasonable time. A review of statistics shows that the same court, in the period from January 2008 to February 2017, made a total of 1,447 decisions, in which it was established that domestic courts did not make a decision within a reasonable time. The Constitutional Court and the most important judicial bodies recognized this "hyper-production" of appeals (in which appellants complained of (alleged) violations of the right to trial within a reasonable time) as a systemic problem. In that sense, the only remedy available to potential victims was to make an appeal to the Constitutional Court. Decisions of this court in cases of violation of the right to a trial within a reasonable time have, over the years, tensely moved in the direction of relativizing the appeal as an effective remedy. In November 2018, this court decided that a certain period will not decide on appeals that raise the question of the length of court proceedings that are ongoing in Bosnia and Herzegovina. Other words, every person within a particular group, in principle authorized to submit an individual appeal, can not enjoy the right to file an appeal for breach of the right to trial within a reasonable time. This practice represents a radical precedent in the practice of this court and after such a decision in the domestic legal system, there is no (effective) remedy for this violation of human rights. In this paper, I will, through the stages, present the decisions of the Constitutional Court of Bosnia and Herzegovina that have considered the violation of the right to a trial within a reasonable time, with special emphasis on the last stage, which took place in November 2018. I will focus on analyzing the practice of this court. One part of this paper makes a brief reference to the right to trial within a reasonable time and the right to an effective remedy in the context of their legal foundation and practical manifestation in Bosnia and Herzegovina. Apart from the questions considering the practical consequences of this precedent, I will also point to the state of legal insecurity and the urgent need for making concrete steps towards finding an effective solution to this legal issue.

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The Right to Freedom of Assembly in Republic of Srpska – de lege lata and de lege ferenda

Pravo na slobodu okupljanja u Republici Srpskoj – de lege lata i de lege ferenda

Author(s): Franjo Dragičević / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; Republic of Srpska; right to freedom of assembly; public law; human rights;

The author analyzes the reasons for proposal of the draft Law on Public Assembly in Republic of Srpska, the similarities and changes prescribed in the draft Law in relation to the effective Law on Public Assembly from 2008., as well as adherence to the standards established in the European Convention on Human Rights (ECHR) and other human rights standards that should be applied to a peaceful assembly and freedom of expression. The analysis shows that the draft Law, without any significant progress, contains identical restrictions on the right to freedom of peaceful assembly as the Law from 2008. Namely, the draft either introduces new or specifies the existing constraints for more efficient and expedient implementation of the regulations in practice, however the existence of legitimate goals and the necessity of a democratic society for the further existence of such constraints, was not taken into account. Therefore, the author considers that it is necessary to draft a new Law based on a proper analysis of the right to freedom of peaceful assembly prescribed in ECHR, article 11, which will be a sign of the maturity of democratic order in which there is no resistance toward acceptance of social activism expressed through the use of the right to freedom of assembly.

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New Criteria for Appraisal of Judges in Bosnia and Herzegovina: Building a High-quality Judiciary or Attack on the Concept of an Independent Judiciary?

Novousvojeni Kriteriji za ocjenjivanje rada sudija u Bosni i Hercegovini: izgradnja kvalitetnog pravosuđa ili atak na koncept nezavisnog pravosuđa?

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: Bosnia and Herzegovina; high-quality judiciary; independent judiciary; performance of judges; courts; evaluation; evaluation criteria;

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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The Appellate Jurisdiction of the Constitutional Court of BiH in Relation to the Decisions of the Entity Constitutional Courts

Apelacijska nadležnost Ustavnog suda BiH u odnosu na odluke entitetskih ustavnih sudova

Author(s): Petar Mrkonjić / Language(s): Bosnian

Keywords: Constitutional Court; constitution; Bosnia and Herzegovina; appellate jurisdiction; court case;

The issue of the appellate jurisdiction of the Constitutional Court of BiH in relation to the decisions of the entity constitutional courts is a complex legal issue. It primarily refers to the definition of the character of entity constitutional courts and constitutional courts in general. The interpretation of the Constitutional Court of BiH, not to consider the decisions of the entity constitutional courts within the framework of the appellate jurisdiction, is compromised by its own practice and interpretations of the Constitutional Court of BiH in cases U-9/09 (Statute of the City of Mostar), U-8/17 (Ordinance on amendments to the Ordinance on Wearing Uniforms Border Police of BiH), and AP-3051/14 (Decision of the Government of the Federation of BiH). The wording of all interpretations of the Constitutional Court of BiH on its own jurisdiction in these cases is to expand its own jurisdiction in order to enable the protection of fundamental human rights and freedoms. It remains questionable (and insufficiently explained) that the Constitutional Court of BiH did not solve the dilemmas about the character of the entity Constitutional Court in favor of its own competence for deciding on issues contained in the BiH Constitution. In the meantime, it remains questionable in which way the Constitutional Court of BiH is examining Entity Constitutional Courts, when it ignores the provisions of the Constitution of BiH on appellate jurisdiction in relation to their decisions. Finally, the Constitutional Court of BiH is very contradictory in determining whether the Constitutional Court of FBiH is a court in the proper sense of the word. The decisions of the Constitutional Court of BiH in which the Constitutional Court of the Entity is designated as part of the judicial authority, which is, by and large, understandable in the light of the text of the Constitution of FBiH, have much better reasoning than the decisions in which the argument of the final and binding nature of the decisions of the entity constitutional courts was highlighted. I believe that this analysis showed that the BiH Constitutional Court was wrong when in suspending its unquestionable appellate jurisdiction in favor of the principle of the final and binding nature of the decisions of the entity constitutional courts rendered within their abstract jurisdiction. However, the right question is what kind of legal acts can be the subject of consideration by the Constitutional Court of BiH within the framework of appellate jurisdiction. It is undeniable that according to the constitutional text in force, this may be the decision of all courts in Bosnia and Herzegovina. Considering the position taken by the Constitutional Court itself, this can be the decisions of the entity constitutional courts. Finally, the Constitutional Court also considered the decision of the Government of the FBiH by justifying such conduct by argumentation of a broad interpretation of the authority to protect human rights and freedoms. In view of this, there should be solutions from the Federal Republic of Germany, where the decision-making within the framework of the appellate jurisdiction can be all decisions of the public authority, provided that all other remedies have been exhausted before, including the court proceedings. Such a broad formulation of appellate jurisdiction ensures effective protection of fundamental human rights and freedoms. In the absence of the activities of the constituent, this matter can be resolved by its own legal activism only by the Constitutional Court by making decisions and interpretations which define its appeal jurisdiction in a clear, reasoned and consistent manner. Such decisions should eliminate the damage expressed through legal uncertainty and inconsistency in the previous practice of the Constitutional Court of BiH. Exposed practice from the Federal Republic of Germany is also important because of the busy doctrinal approach of the German constitutional court that the Federal Constitutional Court is an indisputable authority for all issues arising from the state constitution and that there are no restrictions for the Federal Constitutional Court in that regard. I believe that in this direction the Constitutional Court of Bosnia and Herzegovina should also begin to confirm the supremacy of the state constitution in relation to all the lower legal acts in Bosnia and Herzegovina.

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Is it constitutionall and lawfull to collect and process data on judges assets? (Prohibition of the Personal Data Protection Agency to process personal data of judges and prosecutors through the HJPC)

Da li je prikupljanje i obrada podataka o imovini sudija u skladu sa ustavom i zakonom? (Zabrana Agencije za zaštitu ličnih podataka da se putem VSTV-a obrađuju lični podaci sudija i tužilaca)

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: Privacy; personal data; judges; judges’ assets; personal data protection; financial statements; human rights; right to personal life;

The Agency for the Protection of Personal Data in Bosnia and Herzegovina, in an ex officio procedure, assesses the legality of processing personal data of judges and prosecutors in the manner prescribed by the Rulebook on Submission, Verification and Processing of Financial Statements of Judges and Prosecutors through the High Judicial and Prosecutorial Council of BiH, 05 in March 2019, issued a Decision (Decision of the Agency) that prohibited the HJPC BiH from processing the personal data of judges and prosecutors (paragraph I) in the manner prescribed by the Rulebook and paragraph II obliged the HJPC to notify the Agency within 15 days from the date of receipt of the decision on undertaken activities for the implementation of the said paragraph I. On the occasion of this Decision of the Agency, the HJPC of BiH, adopted the following conclusions: 1. The HJPC made a decision to postpone the application of the Rules for an indefinite period of time until the problem is resolved. 2. The HJPC has adopted the conclusion that it will organize a meeting with the Agency in order to overcome the problems. 3. Unless a favorable solution is found in negotiations with the Agency, the HJPC will, within the legal deadline, place an adequate remedy on the decision of the Agency. 4. After integrating with the Agency, the HJPC BiH Integrity Working Group will, in any case, proceed with the creation of a reserve option in terms of the Rulebook that will be applicable in 2019, and 5. Concerning the above conclusions, the Agency will be notified in order to execute the Agency's decision. In the explanation of the Agency's Decision, several points are noted that indicate serious failures in the procedure and in the application of legal solutions and standards on a particular case. In this case, the standard of fair treatment has been violated: the Agency received the complaint of the association of judges, which was clearly explained in detail, and then Agency stated that it acted ex officio, explaining that it was an indisputable fact because the Rulebook was published on the website of the HJPC. It is factually undisputed that it is not a procedure initiated ex officio and that the Agency fingers the action on its own initiative. Bearing in mind that all the arguments of the association of judges are related to the content of the Rulebook and that the Agency formally legally acted ex officio, it would be possible to present this procedure as an ex officio procedure. In order to understand the element of injustice, it is necessary to take into account the fact that the procedure was guided as an urgent (shortened) procedure. From the perspective of the legal layman, the question is whether the processing of financial statements is now controversial. If so, the explanation of the solution is completely contradictory. Namely, if only processing is controversial in the sense of the Rulebook, then the reasoning of the Decision goes beyond the boundaries of the pronouncement of the Decision, because the Agency enters into the argumentation of parts which were not even subject to the procedure ex officio. Asked whether the HJPC Rulebook is constitutional and legitimate, it is appropriate to implement the so-called tripartite test on allegations of violation of human right to private life (protection of personal data). The test consists of three steps. The answer to each of the questions asked must be positive (cumulative conditions) in order to establish that the Rulebook is constitutional and lawful. The Agency finds in the decision that the HJPC has adopted the Rulebook imposing obligations and interfering with the right to privacy of judges, prosecutors and their relatives, contrary to the provisions of the Law on HJPC BiH, the Law on Identification Number Act and the provisions of the Convention against Corruption. The provision of Article 86 of the Law on HJPC "Reporting of the HJPC on Activities" prescribes that judges and prosecutors submit to the Council an annual report stating, inter alia, the activities that they have performed outside the duties of the judge or prosecutor, including amounts that they have collected. [...] The Council sends forms for financial statements and may request additional information. In order to establish the limits of data (information) that the HJPC may require during the submission of annual reports, it is necessary to systematically interpret the relevant legal provision. The Agency applied a systemic interpretation of the norm. Nevertheless, the Agency has obviously overlooked (which was not allowed to do the following methodology of applying systemic interpretation) the general provision of the Law on the HJPC BiH prescribed (Article 3) that the HJPC has the task of ensuring independent, impartial and professional judiciary. In terms of the general provisions of the Act, as well as the provisions of Chapter VIII and in particular Article 86, the Agency concluded that the sole purpose of submitting, verifying and processing financial reports is to prevent conflicts of interest between judges and prosecutors, in the sense that the concept is understood by the Agency. This conclusion is wrong. Namely, the attitude that regulated data processing for the purpose of testing the origin of assets and determining the financial imbalance is not identical with the purpose of preventing conflict of interest is absurd and is in contrast to the purpose of the financial report. Accordingly, the incorrect conclusion is that the Law precludes the search for data that exceeds the annual financial activity. The law is really created by an abstract formulation, which does not concretize the details of the required elements from the financial report. But it does not demand anything that would be contrary to the ECHR in accordance with the standards of the required quality of the law. Namely, it is sufficient according to the standards of the ECHR that the law (here on the Law on HJPC BiH, but also the Rulebook) is accessible, predictable, assessable and understandable, then the criterion of the legality of the act is fulfilled. In the instruction on the legal remedy of the Agency's decision, it was indicated that an appeal is not allowed against the ruling, but an administrative dispute can be initiated before the Court of BiH within 60 days from the date of delivery of the decision. Therefore, the option is to initiate an administrative dispute in accordance with the Law in Administrative Disputes of Bosnia and Herzegovina.

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Falsified Diplomas and the Right to Privacy

Lažne diplome i pravo na privatnost

Author(s): Sevima Sali-Terzić / Language(s): Bosnian

Keywords: Higher education; university education; diplomas; falsified diplomas; public servants’ diplomas; human rights; right to privacy;

Credible media reports and resent arrests of those suspected to have been engaged in the falsification of high education and university diplomas, provoked public authorities to initiate a comprehensive review of public servants’ diplomas. However, the Data Protection Agency stated in its opinion that such review presents unnecessary “generalization” and puts under suspicion all public servants, thus violating the right to privacy and the Data Protection Law. The analysis shows that such review would be in accordance with law, would have legitimate aim and would be “necessary in democratic society”, as requested by Article 8 of the ECHR, but also by the Convention 108 and EU Charter of Fundamental Rights. The only way to achieve the legitimate aim – to detect and to prevent falsification and usage of falsified diplomas in public sector (which constitutes crime under the Criminal Law) is to review all diplomas of public servants, including those in managing positions. Diplomas are public documents, public servants act in public interest, and review of their diplomas, in a procedure prescribed by the Law, would not in any way “diminish [their] human dignity” (as Agency explained) or present unnecessary interference in their private life.

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Uncontrolled Prosecutorial Power

Nekontrolisana tužilačka moć

Author(s): Branko Perić / Language(s): Bosnian

Keywords: uncontrolled prosecutorial power; supervision; prosecutors; violation of law by prosecutors; transparency; investigation process;

The author discusses the issue of uncontrolled prosecutorial powers through an analysis of manifestations of abuse of prosecutorial powers in the segments related to granting immunity, concluding guilty plea agreements, witness intimidation, elimination of defense attorneys from criminal proceedings, undercover investigator’s inciting suspects to commit criminal offenses, and charging the accused repeatedly for the same facts, concluding that it is necessary to have an efficient control of the exercise of prosecutorial powers in order to check these tendencies and secure lawful prosecutorial operations. At the same time, the author puts forward, in the form of theses for consideration, certain proposals as to the ways in which it is possible to exercise control of prosecutorial powers, while avoiding the risk of jeopardizing prosecutorial independence. In that regard, the author points to possible amendments to the criminal code (incrimination of violations of law by prosecutors), introduction of internal and external control mechanisms, as well as broader judicial powers in supervising the investigation process.

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Proposal of modality for election of the President of BiH - a turn towards the integration of society and how to arrange lack of legitimacy for politics based on division

Prijedlog modela izbora predsjednika BiH - zaokret ka integraciji društva i delegitimiranju politike podjela

Author(s): Demirel Delić / Language(s): Bosnian

Keywords: BiH; public law; president; elections; integration of society; division based politics;

For the full ten years (the tenth anniversary of the Sejdić and Finci verdict), we witness the factual discrimination of the model used to elect the Presidency members. The perspective from which I analyze the necessarily forthcoming reform of the BiH Presidency's election model is the path to a country where all parts of the state are long-term oriented toward a common idea of a democratic rule of law. New modality for election of the president can be used for creating such a model that contributes to the creation of further divisions in society (on this idea, the ruling political nomenclature creates the existing system of the so-called coexistence of irreconcilable differences) or as an opportunity to strengthen the cohesion factor in the state. In the first next step, it is necessary to retain the direct election of the president, but with important corrections to the modality of election. Basically, I start with the thesis that one president is elected every four years by direct election. Such an idea, in principle, seems like a radical transition from the current collective composition to the typified democratic model - one head of the state. Electing one president in the country will, first of all, reduce the risks of possible dysfunctionality of the institution. Everyone has the right to be a candidate) from the entire BiH, with the winner being the highest-rated candidate (who won more than half the votes in the first election round, or the candidate who receives more votes in the second round). An additional condition is that, for the purposes of elections, (3) theoretical) electoral bases should be created that correspond to the areas in which the B / C / S dominant peoples currently reside, for the purposes of counting votes. According to these parameters, all municipalities with majority (50% + 1) members of a relevant constituent people would constitute a relevant electoral base. According to the four year rotation system, relevant electoral bases are also changing. The principle is based on three election cycles in which the various special electoral bases for counting the votes are relevant. In order for a candidate to be elected in the first round, apart from obtaining a majority of the votes, it is necessary that in the electoral area that is determined to be relevant for that election cycle (this is the base of municipalities with more than 50% of members of one of the constituent peoples) receives at least a sufficient number of votes (approximately 20%) from voters who actively participated in the electoral process, which would give it, in addition to general legitimacy, the partial legitimacy of that part of the population. In the case that there is no candidate in the first election who gets more than half of the total votes in the total electoral body (those who voted) and who simultaneously won at least 20% of the votes in the relevant basic electoral base (ethnocratic legitimacy), then a second round of elections is organized. The second election round would include two presidential candidates, who achieved the minimum required 20% of the vote in the primary election base. In the situation of organizing the second election cycle, simply applying the model of majority democracy would result in a newly elected president.

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Corona virus in the legal order of Bosnia and Herzegovina: a brief diagnosis of the disease

Koronavirus u pravnom poretku BiH: kratka dijagnoza bolesti

Author(s): Harun Išerić / Language(s): Bosnian

Keywords: BiH; public law; COVID-19; human rights; Republika Srpska; Constitution;

The Paper examines two main issues: interference with human rights during COVID-19 crises and declaration of the state of emergency in Republika Srpska (RS) as well as number of orders issued by different civil protection headquarters. The research shows that interference hardly meets legality and proportionality tests. State of emergency declaration in RS is found to be unconstitutional as well as number of orders issued by municipal and cantonal civil protection headquarters since they have been violating freedom of movement clause from the Constitution of Bosnia and Herzegovina. Civil protection headquarters become alienated decision-making bodies as executive failed to supervise their activities. In the meantime, parliamentary oversight in whole country has been a dead letter. Finally, coordination and harmonization of public authorities’ actions in combating COVID-19 has not been achieved.

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Prohibition and restriction of movement: criminal or minor offense?

Zabrana i ograničenje kretanja: krivično djelo ili prekršaj?

Author(s): Igor Cimeša / Language(s): Bosnian

Keywords: BiH; Republic of Srpska; public law; movement prohibition; COVID-19; criminal offense; minor offense;

Since the introduction of the prohibition and restriction of movement in Republic of Srpska, institutions having jurisdiction over criminal prosecution are faced with the question whether the violation of this prohibition constitutes the criminal offence of Non-compliance with Health Regulations during an Epidemic under Article 195 of the Criminal Code of Republic of Srpska or does it constitute the minor offence under Article 22 of the Law on Public Peace and Order of Republic of Srpska. After the introduction, this paper gives an overview of the elements of the criminal offence under Article 195 of the Criminal Code of Republic of Srpska. Further, the paper analyses whether the decision on prohibition and restriction of movement which is currently in force in Republic of Srpska represents a health measure - a measure for combating and prevention of spreading an epidemic of contagious diseases and it analyses the legal framework in Republic of Srpska in terms of measures for combating and preventing spreading of contagious diseases. The paper also provides an analyses of provisions of Article 43(2)(1) of the Law on Protection of Citizens of Contagious Diseases which prescribes restriction of movement as an extraordinary measure for combating and prevention of contagious diseases. Finally, the paper summarizes the presented arguments that violation of prohibition and restriction of movement may constitute the criminal offence under Article 195 of the Criminal Code of Republic of Srpska.

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How to enter the culture of remembrance?

Kako ući u kulturu sjećanja?

Author(s): Ivan Šarčević / Language(s): Bosnian

Keywords: BiH; history; memory; culture of remembrance; 90s; wars and conflicts;

Suočavanje s prošlošću, izgradnja kulture sjećanja u istini i pravednosti, jedan je od urgentnih zadataka za zdravlje pojedinca, obiteljske, etničke i religijske zajednice, pogotovo u višeetničkim i višereligijskim postratnim društvima. Konflikti sjećanja nipošto nisu usputni ni beznačajni jer su kolektivna pamćenja odreditelji kako osobnih tako i kolektivnih identiteta, odakle onda proizlazi da konflikti sjećanja mogu imati i razorne posljedice u stvarnim konfliktima progona i ubijanja. Bliža povijest, ratovi '90-ih, potvrdili su da su naši ubilački identiteti takvi jer su osvetnički, jer nalaze svoje opravdanje u razornoj moći sjećanja, konkretno – u zlopamćenju. Osvajački ratovi, s elementima građanskoga rata, u kojima je „etničko čišćenje“ (potpuno uklanjanje drugih s nekoga teritorija) bilo njihov cilj, bili su prije, i ostaju nakon bojnog polja ratovi sjećanja na patnje i žrtve uzrokovane zločinima zlih susjeda.

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Constitutionality of emergency measures and legal consequences of COVID-19 pandemic in BiH

Ustavnost vanrednih mjera povodom pandemije COVID-19 u BiH

Author(s): Jasmin Muratagić / Language(s): Bosnian

Keywords: BiH; public law; COVID-19; emergency measures; Constitution; human rights;

Emergency measures, which the executive powers in BiH put in place tackling COVID-19 pandemic, are relevant in context of the rights and freedoms guaranteeded in the BiH Constitution. By violating freedom of movement, expression as well as freedom of assembly, executive power in BiH left citizens in state of legal uncertainty. Failure to coordinate prevention and public health activities and measures of entities and Brčko District BiH led to a violation of art. I/2 of the BiH Constituton. Different emergency measures throughout BiH infringed principle of legal normative hierarchy from art. III/3.b), which resulted in inconsistency and discriminatory legal solutions in contrast with imperative on prohibition of discrimination stipulated in art. II/4 of the BiH Constitution.

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Criminal liability for spreading infectious diseases and criminal proceedings in the F BiH based on the example of COVID-19: analysis of positive and proposed legal provisions

Krivična odgovornost zbog širenja zaraznih bolesti i provođenje krivičnog postupka u F BiH na primjeru COVID-19

Author(s): Maja Mirković / Language(s): Bosnian

Keywords: BiH; FBiH; public law; COVID-19; criminal law; criminal liability; Republic of Serbia;

The pandemic of COVID-19 was declared by the World Health Organization (WHO) on 11 March 2020 and, to this day, the disease was present in 207 countries in the world, according to the official data provided by the WHO. The first case in BiH was registered on 5 March 2020, which triggered the fast reaction on the side of the BiH authorities. The F BiH Government declared the state of natural disaster on 16 March 2020, as did the RS Government and the BiH Presidency. This extraordinary situation has posed numerous challenges and obstacles in front of all levels of governance in BiH, including the area of criminal justice and response of the judicial organs. The purpose of this paper is to analyze de lege lata solutions regarding criminal liability for spreading infectious diseases and the relevant principles of criminal proceedings in F BiH, as well as de lege ferenda proposed provisions. In that sense, the question of public announcement of personal data of persons that failed to comply with the imposed measure of self-quarantine and the issue of holding main trial hearings online will be explored, as well as their possible implications. Also, the example of Republic of Serbia will be explained.

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Irregularities and unevenness of the practice of disciplinary proceedings against judges and prosecutors in Bosnia and Herzegovina

Nepravilnosti i neujednačenost u praksi disciplinske odgovornosti sudija i tužilaca

Author(s): Mirza H. Omerović / Language(s): Bosnian

Keywords: BIH; public law; judiciary; disciplinary proceedings regulations; HJPC; VSTV;

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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Notification of derogation from the European Convention of Human Rights – the right avenue for Bosnia and Herzegovina?

Obavještenje o derogaciji Evropske konvencije za zaštitu ljudskih prava i temeljnih sloboda – pravi put za Bosnu i Hercegovinu?

Author(s): Nasir Muftić / Language(s): Bosnian

Keywords: BiH; public law; COVID-19; European convention; human rights;

The global pandemic caused by the COVID-19 requires state action for purposes of protecting public health. The hitherto measures undertaken by Bosnia and Herzegovina for purposes of tackling the pandemic interfere with the rights guaranteed under the European Convention of Human Rights. As Article 15 of the Convention allows a state to derogate from certain provisions guaranteeing human rights, the point of focus is whether this avenue should be pursuit in case of Bosnia and Herzegovina. The paper argues that derogation would do more harm than good. It presents the role of notification as a formal requirement for derogation and elaborates on its connection with the expanded of margin of appreciation. Due to the previous experiences, the European Court of Human rights is likely to afford a wide margin of appreciation to Bosnia and Herzegovina regardless of the derogation. Furthermore, the paper outlines the issues related to derogation and COVID-19, focusing on the impact of vagueness of the information provided in notification, the problems with the supervision of the European Court of Human Rights, and the potential of abuse.

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COVID-19 and Decision of the Personal Data Protection Agency in Bosnia and Herzegovina

COVID-19 i Rješenje Agencije za zaštitu ličnih podataka BiH

Author(s): Nihad Odobašić / Language(s): Bosnian

Keywords: BiH; public law; COVID-19; personal data protection; European Convention on Human Rights;

At the time of the COVID-19 pandemic spread, state authorities may introduce various measures and activities to protect public health. Such an activity was undertaken by authorities at certain levels in Bosnia and Herzegovina, who publicly disclose personal data of infected persons, as well as of those who are in isolation or self-isolation. The disclosure of this information was carried out regardless of the fact that the specified persons did not violate any measures previously introduced by the authorities. Given the possible limitation of the right to the protection of personal data, the Personal Data Protection Agency in Bosnia and Herzegovina reacted. With its decision from 24. 03. 2020. the Agency banned the disclosure of such personal data, and has ordered the removal of publicly released information so far. The paper presents basic provision of the Law on personal data protection in Bosnia and Herzegovina, as well as the most important international conventions that protect the right to protection of personal data. However, the focus of this paper is on examining the legality of Agency's decision, through the criteria from Article 8, paragraph 2, of the European Convention on Human Rights. The analysis in the paper concludes that the Agency has justifiably forbidden the disclosure of the personal data in question and thus properly protected the personal data of infected persons as well as of persons in isolation. The measure taken by the authorities is a measure that is not necessary in a democratic society, and it is concluded that the pursuit of the legitimate aim of protecting public health could also be achieved by a more lenient measure.

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Strengths and Weaknesses of the new Evaluation System: Experiences of Judges after the First Year, Proposals for Amendments

Prednosti i slabosti novog sistema vrednovanja: iskustva sudija nakon prve godine, prijedlozi za izmjene i dopune

Author(s): Nives Abdagić / Language(s): Bosnian

Keywords: BiH; public law; HJPC; VSTV; judges work evaluation;

Visoko sudsko i tužilačko vijeće BiH je u 2018. godini donijelo nove Kriterije za ocjenjivanje rada sudija u BiH (Kritreriji). Oni se imaju primijeniti na ocjenjivanje rada sudija za 2019. godinu i dalje. Kriteriji su u pravosudnoj zajednici dočekani s značajnim kritikama o čemu se govorilo i na Stručnoj raspravi o vrednovanju rada sudija i tužilaca u BiH u organizaciji Centra za javno pravo i Pravnog fakulteta Sarajevo, održanoj 02. novembra 2018. godine. Nakon prve godine ocjenjivanja sudija po novim Kriterijima vrijeme je da se saberu prva iskustva, da se identificiraju sporne tačke, te da se pokušaju dati prijedlozi za njihovo unapređenje. Ovim prilogom ću obraditi nekoliko uočenih problema radi nastavka stručne rasprave o vrednovanju rada sudija i tužilaca u BiH koju kontinuirano organizira Centar za javno pravo.

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