Spain, Sindic de Greuges of Catalonia
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Spain, Sindic de Greuges of Catalonia
Program for institutional co-operation with Bosnia-Herzegovina (1999)
Introduction
It was at the meeting of the Board of Directors of the European Ombudsman Institute (EOI), held on the 20th and 21st of November in Amsterdam, that the Ombudspeople of the Federation of Bosnia-Herzegovina, Vera Jovanovic, Esad Muhibic and Branca Raguz publicly requested the support of all the member institutions of the EOI. The Síndic de Greuges (Catalan Ombudsman Institution), which participated in that meeting as a member of the Board of Directors, wanted to respond to the request of the Ombudspeople and, with the aim of defining their specific needs, invited the three representatives of that organisation to Barcelona in June of the following year. The conversations held during that visit established the base on which the program for institutional co-operation for 1999 was developed.
This program was jointly conducted by the Síndic de Greuges of Catalonia, the Honourable Bar Association of Madrid, and the Defensor del Pueblo (Ombudsman of Spain) according to the Collaboration Agreement that the three institutions signed in Madrid on 10 June, 1998, by virtue of which they pledged to jointly seek funding for the execution and development of co-operation with the Ombudsman Institutions of Bosnia-Herzegovina, in the fields of legal advising, training, exchange of experience, etc., with the objective of promoting justice, collaborating in the full consolidation of the State of Rights, and reinforce the figure of the Ombudsman in modern constitutional political systems as a vehicle for the full exercise of Human Rights.
The co-operation activities are intended to be continued. It is planned that they be carried out through the execution of annual programs partially funded by the Agencia Espanola de Cooperación Internacional (AECI, i.e. Spanish Agency for International Co-operation).
Brief introduction to the political evolution and present situation in Bosnia-Herzegovina
The Republic of Bosnia-Herzegovina, in conjunction with the Republics of Slovenia, Croatia, Serbia, Montenegro and Macedonia formerly comprised the country of Yugoslavia. Yugoslavia was created after the fall of the Ottoman Empire in the First World War. The new country was established as a monarchy, with a Serbian king and a clear supremacy of this ethnicity over the others. Several years before the onset of the Second World War, civil war broke out in Yugoslavia. Croatia gained independence under a pro-Nazi fascist regime and millions of Serbians, Muslims and gypsies were killed. After the Second World War, Yugoslavia emerged as a socialist republic, led by Marshall Tito. He respected the structure of a country with six republics and attempted to impose a single nationality, that of Yugoslavian. In the year 1989, Yugoslavia began to disintegrate. Regarding the Republic of Bosnia-Herzegovina, a referendum was held in the year 1992 which favoured its independence. The Serbian Bosnians boycotted the referendum. In the summer of that year, a bloody civil war broke out which was to last three years. The causes of the war were complex and all subject to various interpretations. The factors to consider are: 1) the economic crisis; 2) the contrast between rural Bosnia, traditional and of a single ethnicity, and the modern, plural, urban Bosnia; 3) the influence of the Croatian and Serbian Republics' radical nationalist stances, and posterior incitement and military funding, on the rural population of either Croatian ethnicity (and Catholic religion) or Serbian ethnicity (and Orthodox religion). It is debated whether the nationalist component was the cause or the instrument in the war. In any case, the opposed parties initiated ethnic cleansing so that Serbians, Croatians and Muslims expelled the other ethnic groups from cities where they maintained or had gained power. The communal graves found were the product of slaughters perpetrated by both Serbs and Croats. The Peace Treaties signed by the parties were the Washington Agreement (1994) between the Croats and Muslims, and the Dayton Agreement (1995) between the Muslims and Serbs. Through the first Agreement, the Federation of Bosnia-Herzegovina was born (known as the Croatian-Muslim Federation), and with the second Agreement, the division of Bosnia-Herzegovina into two political entities was consolidated: the Federation of Bosnia-Herzegovina, and the Serbian Republic of Bosnia-Herzegovina (Republika Srpska).
Why the co-operation of the Síndic de Greuges with its counterparts in Bosnia-Herzegovina?
The Ombudsman in Bosnia-Herzegovina constitutes a key piece in the country's process of civil reconstruction. In both Peace Treaties signed by the parties (Washington Agreement in 1994 between Croats and Muslims, and the Dayton Agreement in 1995 between Muslims and Serbs), the figure of the Ombudsman is indicated as the institution that will allow people access to justice when they are denied it through administrative or judicial channels. It is especially intended for the protection of those individuals who, being members of cultural, political or religious minorities, are impeded from exercising their rights.
The innate characteristics of the figure of the Ombudsman throughout the world make this institution particularly necessary and worthy of special attention in Bosnia-Herzegovina. It must be kept in mind that some of the characteristic features of this institution are its independence and neutrality, as well as its complementary nature with regard to existing personal defence and legal institutions. Among the fundamental duties of the Ombudsman are protecting the legality and quality of the Administration, especially in areas where control of the Administration becomes difficult due to its exercise of powers of discretion. Nor can we omit the Ombudsman's functions of orienting citizens in their actions regarding requests before the Administration, and creating confidence in the citizenry and the Administration. In this respect, the Ombudsman can carry out the function of mediator, especially with regard to minorities, who are often mistrustful, sometimes with reason, of the State and its administrative organs.
In reports issued by both the Ombudsman Institution of the Federation of Bosnia-Herzegovina and the Office of the Ombudsperson of Bosnia-Herzegovina, it is evident that, despite the strong legal structure in favour of human rights established in the peace treaties, their degree of application is minimal. Numerous violations of fundamental rights are committed, some local authorities hinder minority groups' exercise of their rights, and arbitrary decisions are made that cause doubts as to the democratic nature of the Administration. In this context, promoting the figure of the Ombudsman becomes essential in order to consolidate democracy in Bosnia-Herzegovina and assuage the consequences of the ethnic cleansing.
Program for institutional co-operation of judicial nature with the ombudspeople, bar associations and associations of judges in Bosnia-Herzegovina
Given that 1999 was the year in which the program for institutional co-operation was first put into practice, we can say that it was the year in which this co-operation materialised.
The Spanish Agency for International Co-operation (AECI) approved the project called "Program for institutional co-operation of judicial nature with the ombudspeople, bar associations and associations of judges in Bosnia-
Herzegovina" through the Resolution of 29 December 1998. The AECI itself funded 70% of the total cost and the institutions signing the agreement contributed the remaining 30%. The activities planned were the following: 1) training courses in Barcelona and Madrid, directed at the legal advisors of the Ombudsman institutions existing in Bosnia-Herzegovina; 2) seminars in Bosnia-Herzegovina on subjects indicated by the Bosnian jurists as crucial for the attainment of a fully democratic state; 3) establishment of two Spanish jurists in Bosnia-herzegovina for a period of four months to facilitate co-ordination of the different activities, promote interrelations between the two political entities of Bosnia-Herzegovina, offer assistance in projects arising as a result of the seminars, and define the program of activities to be carried out in the year 2000 through periodic meetings held with the judges, lawyers and ombudsman institutions of Bosnia-Herzegovina.
The Centre for Human Rights of the University of Sarajevo was our local counterpart in putting the program into practice. In order to formalise this collaboration relationship, the Síndic de Greuges of Catalonia, the Spanish Ombudsman and the Bar Association of Madrid signed an Agreement with the Centre regulating the economic conditions, and rights and duties of each party in the execution of the program. Thus the activities carried out in Bosnia-Herzegovina were done in collaboration with the Centre for Human Rights, which also placed at the disposal of the two Spanish jurists temporarily established in Sarajevo the human and material means necessary for carrying out the program.
Below is a description, in chronological order, of the activities carried out both in Bosnia-Herzegovina and in Spain.
Courses aimed at the legal advisors of the Ombudsman Institutions of Bosnia-Herzegovina
Two courses were organised, each lasting 15 days and held at the offices of the three institutions. The first week of each course was held in Madrid (at the offices of the Ombudsman and the Bar Association of Madrid) and the second week in Barcelona, at the Síndic de Greuges offices.
The subjects and contents of the work sessions at the Síndic were defined by the Síndic's Co-ordinator for Co-operation with Bosnia-Herzegovina, Judit Salas Calduch, according to the suggestions made by the two Ombudsman Institutions of Bosnia-Herzegovina to a work group representing the institutions of the Catalan Ombudsman, the Spanish Ombudsman and the Bar Association of Madrid on their trip to Sarajevo in October of 1998.
The objective of the work sessions was to show the Bosnian jurists how the Síndic de Greuges operates from a wholly practical point of view. To this end, with the help of an interpret who was to interpret during the courses, various documents were translated into the Bosnian as well as English to facilitate the participants' comprehension. The work sessions were conducted by the institution's various personnel members according to the subject matter. With regards to the first course, its four work sessions took place on the 4th, 5th, 8th and 9th of March, mornings and afternoons. Morning sessions lasted from three to four hours, while afternoon sessions involved two to three hours of work.
In conjunction with the work sessions, some institutional visits were organised to allow the Bosnian delegation to get to know the most relevant public institutions of Barcelona and Catalonia first-hand.
The sessions of the second course offered to advisors of the Ombudsman institutions existing in Bosnia-Herzegovina were held in the same place from the 15th to the 21st of April, 1999.
The program of the second course was essentially based on that of the first, as the objective was to offer the same training to the different advisors of the Bosnia-Herzegovina Ombudsman institutions. In order to adapt the contents of the sessions to the preferences and needs of the participants, the sessions on Procedure and Actions of the Síndic de Greuges were given by the advisors in charge of the work areas in which the Bosnian jurists had expressed an interest.
The sessions were inaugurated by the Ombudsman of Catalonia, who personally greeted the Bosnian representatives and introduced his collaborators. In addition, on the 9th of March and 20th of April, the Ombudsman offered the respective Bosnian delegations a dinner on behalf of the Institution.
With regard to the institutional visits conducted in these last courses, the Bosnian delegation was received by the highest authorities of Catalonia as a result of their manifest desire to personally meet the Bosnian representatives and provide express support to the present program of co-operation.
At each of these meetings, the Catalan authorities showed their interest in the political, economic and social situation in Bosnia-Herzegovina and took advantage of the opportunity to obtain first-hand information on the work carried out by the Ombudsman institutions of Bosnia-Herzegovina and the process of civil stabilisation and reconstruction that the country is presently undergoing. Furthermore, they were interested in the Bosnian delegation's opinion on the latest conflicts occurring in the region, as well as in the progress of the work sessions at the Síndic de Greuges offices.
The Bosnian jurists had the opportunity to present the principal difficulties that they face in the daily exercise of their functions. They appreciated the efforts of the Authorities and population, both of Catalonia and Spain in general, to help their country.
The participants in the first course were five jurists from the Ombudsman Institution of the Federation of Bosnia-Herzegovina, from the offices in Sarajevo, Mostar, Zenica, Tuzla and Bihac, and a jurist from the Banja Luka office of the Ombudsperson Institution of Bosnia-Herzegovina. In the second course, another five jurists participated, this time from the Ombudsman Offices in Orasje, Capljina, Sarajevo, Livno and Travnik.
General Assessment of the Courses
The Síndic makes a very positive assessment of the courses, as its program allowed the Bosnian delegation to have a wide perspective on the institution of the Síndic de Greuges, how it functions and its social significance. Not only was technical knowledge on the operation of the Síndic taught, but also an overview of our judicial and political system.
During the course of the sessions, the Bosnian jurists informed us of the difficulties they encounter in exercising their work, bringing the reality of their country to our attention.
With the aim of insuring that the contents of the course be as useful as possible for the participants, a basic program was designed that was gradually adapted to the concrete requests of the recipients. Thus, in the section on procedure and actions by the Síndic de Greuges, the advisors responsible for the areas in which the course participants had shown interest on the first day taught the rest of the course. For this very reason, a presentation was added to the program which had not been planned previous to the arrival of the Bosnian representatives, on the sentences issued by the European Court for Human Rights and their application in the State of Spain. The participants were actively involved in all of the sessions. They appreciated the efforts of the institution to give such a practical content to the work sessions and expressed that the experience obtained through the course would be of great utility to them in their country. Proof of this is the Federation's new Law of the Ombudsman Institution, which, regarding procedures, is based on the model of internal procedure norms used by our Institution, as the Ombudsmen themselves later informed us.
Seminar on Judicial Independence and Effective Judicial Tutelage (held in Sarajevo on the 6th, 7th, 8th and 9th July, 1999)
Given that it had become evident that one of the principal obstacles to the process of democratisation which Bosnia-Herzegovina is presently undergoing is the lack of judicial independence and effective judicial tutelage, the first of the four seminars planned was on this subject.
The seminar had a high index of participation, and brought together judges, magistrates, lawyers, ombudsmen and authorities from the entire country, both from the Federation of Bosnia-Herzegovina and the Republika Srpska, as well as representatives of international organisations competent in the territory of Bosnia-Herzegovina. Some of the people speaking were: the Minister of Justice of the Federation of Bosnia-Herzegovina in the opening session, the members of the Constitutional Courts and of the Courts of the two political entities of Bosnia-Herzegovina, the representatives of the Ministry of Justice of the Republika Srpska, representatives of the Supreme Courts of Mostar East and Mostar West, and a member of the Ombudsman Institution of the Federation of Bosnia-Herzegovina. In addition to the speakers, 90 participants more attended the seminar.
Furthermore, the speakers from Spain were of the highest level: Carlos Granados, Magistrate of the Supreme Court; Joaquín Bayo, Senior Judge of the Barcelona Courts; Fransesc de Paula Caminal, Speaker of the General Council of the Judicial Branch; Juan Gil, Representative of the Bar Association of Madrid; Ángel Luis Ortíz, Head of the Justice Section of the Spanish Ombudsman Institution; and Enric Bartlett, Deputy Ombudsman of the Síndic de Greuges of Catalonia.
The seminar was inaugurated by the Deacon of the Bar Association of Madrid, the Honourable Mr. Luis Martí Mingarro, the Ombudsman of Catalonia, the Honourable Mr. Anton Canellas Balcells, and the Ombudsman of Spain, the Honourable Mr. Fernando Álvarez de Miranda. These three people gave a press conference on the same day as the inauguration, attended by local and European members of the press. The objective of the seminar was also announced the day before on Bosnian television by the Director of the Centre for Human Rights of the University of Sarajevo. Taking advantage of their stay in Bosnia, they also met with the Prime Minister of the Federation of Bosnia-Herzegovina with the aim of supporting the Institution of the Ombudsman before the political authorities.
Round Table on the Institution of the Ombudsman in the Republika Srpska, and on the Division of Powers and Independence of the Judicial Branch (held in Banja Luka on the 28th and 29th October, 1999)
This Round table, which took place in two day-long sessions, dealt with two matters that had been requested by the judicial agents of the country. As is evident from the program and the list of speakers, people invited to the round table, and participants, there were jurists from Ombudsman Institutions, judges, lawyers, representatives of the principal international institutions operating in Bosnia-Herzegovina, as well as members of the Executive and Legislative Branches present. The subjects were approached from different perspectives, based on the idea that, in order to attain certain objectives, the joint effort of different groups is necessary.
The topic discussed by the Ombudsman Institution of the Republika Srpska was particularly relevant, since on the same day that this was being discussed at the round table, it was also being discussed in the National Assembly of the Republika Srpska, which was deciding whether to approve the bill of law providing for the establishment of this institution in the Republika Srpska. This caused some of the participants to have to alternate their presence at the round table with attendance at the National Assembly. Although no-one questioned the advisability of establishing this figure in the Republika Srpska, disagreement arose with regard to the ethnic group to which the members of said institution should belong.
Regarding the subject discussed on the second day, the division of powers and the independence of the judicial branch, it complimented the agreement that had been reached by judges of the Republika Srpska during the first seminar held in Sarajevo, as it was agreed to hold a seminar in Banja Luka on the judicial branch.
Round Table on the Penal Procedure in Bosnia-Herzegovina (held in Tuzla on 1st December, 1999)
This round table once again brought together representatives from both political entities of Bosnia-Herzegovina. Hence, professionals from Tuzla (Federation of Bosnia-Herzegovina) as well as from Bijeljina (Republika Srpska) attended. A judge from Brcko, now a multi-ethnic district, also participated.
The matters discussed were: Strengthening Police-Public Prosecutor and Police-Examining Magistrate co-operation; the role of the Examining Magistrate and the lawyer defending/protecting the rights of the accused.
Fourth Seminar: Work Meeting and Classes at the University (30th November and 2nd and 3rd December)
This itinerant seminar was held from the 30th of November to the 3rd of December in different locations of Bosnia-Herzegovina.
The Spanish experts who participated in the various work sessions were the following: Xavier Bover, Cabinet’s Chief of the Síndic de Greuges (Ombudsman) of Catalonia; Fernando Oliván, in charge of the Co-operation Program for the Bar Association of Madrid and Director of this seminar; José Luis Santamaría, Member of the Legal Orientation Office for Foreigners, of the Bar Association of Madrid; Arancha Díaz Ugarte and Judit Salas Calduch, lawyers and co-ordinators of the Co-operation Program.
In conjunction with the Spanish delegation, Ermin Sarajlija, Director of the Centre for Human Rights of the University of Sarajevo, also participated in all the work sessions.
PROGRAMME:
30th November:
A work session was held in the morning at the offices of the Ombudsman Institution of the Federation of Bosnia-Herzegovina in the city of Tuzla, in response to the request made by Tomislav Ljubic, Deputy Ombudsman of the Federation and Head of the Tuzla Office. Specifically, the request focused on an analysis of the Ombudsman intervention in the area of Justice Administration. With this aim, the Tuzla Office previously provided the Spanish delegation with various files regarding the delay in the Administration of Justice. Also dealt with were Ombudsman research methods for resolving complaints filed, as well as specific aspects of drawing up special reports.
In the afternoon, the aforementioned delegation moved to Brcko, a district with a special status. After a visit to specific sites, a meeting was held with Montserrat Radigales, of the Information Department of the Office of the High Representative of Brcko. At this meeting, the effectiveness of the arbitration decision affecting this district was discussed. Future activities were indicated focusing on the debate regarding the judicial problems derived from the application of the arbitration decision.
2nd December:
In the morning, in response to the requests of the Deans of the Law Faculties of Mostar East and Mostar West, Fernando Oliván, Professor of Constitutional Law at the "Rey Juan Carlos" University in Madrid, gave a class to the students of both faculties on the protection of rights in the Spanish Constitutional Court, a model which is presently being considered for incorporation into the Bosnian judicial system. The lecture was complemented by work meetings with Ljubo Zovko, Dean of the Law Faculty of Mostar West; Zvonko Miljko, Professor of Constitutional Rights at said institution and Magistrate of the Constitutional Court of Bosnia-Herzegovina; and Suzana Bubic, Dean of the Law Faculty of Mostar East. At these meetings, requests were received for concrete collaboration in the field of legal education. In all the activities carried out at the University, the delegation was assisted by the collaboration of Nenad Bago, Professor of the Law Faculty of Mostar West and Representative of the Office of the High Representative in Mostar.
The Mostar session ended with a meeting of judges, which took place at the Office of the High Representative in Mostar. It was organised and supported by Javier Mier, judicial specialist of the Office of the High Representative in Mostar. The judges present at the meeting were Damir Sadovic and Nurko Pobric, Magistrates of the Mostar Canton Court. This is a new court which, as opposed to the majority of the institutions in this divided city, is a joint organisation, with magistrates from both parts of the city. The meeting ended with concrete ideas on continuing co-operation with the judiciary of Bosnia-Herzegovina, and in particular, with the judges and magistrates of Mostar. Thus, the judges requested collaboration in the area of education, proposing the study of the Spanish judicial system and the advisability of organising debate forums to discuss the topics most relevant to the judicial establishment of their country.
3rd December:
In Sarajevo, at the Office of the Ombudsperson in Bosnia-Herzegovina, our experts held a work meeting with Gret Haller, Ombudsperson of Bosnia-Herzegovina, who was accompanied by two of her colleagues: Valerija Saula, Deputy Ombudsperson at the Banja Luka Office, and Nedim Osmanagic, legal advisor of the Sarajevo Office. At the meeting, the present relation between the Office of the Ombudsperson - the State Ombudsman - and the Institution of the Ombudsmen of the Federation - the Regional Ombudsman - were discussed, as well as the two bills of law on the two institutions that are pending approval by parliament. Furthermore, the consequences that would arise from approval of the new laws were analysed, i.e. a greater similarity of functions between the two Ombudsman institutions, which would oblige closer co-ordination. Gret Haller explained the delicate role, in a political sense, that her institution should assume when, once the institution of the Ombudsman were established in the Republika Srpska, this Ombudsman would have to co-ordinate with the Ombudsman institutions of both political entities within the framework of a State that is not yet consolidated. In this respect, she requested the institutional support of her Spanish colleagues to handle this situation and be able to take advantage of the experience of a country that has a State Ombudsman and various Regional Ombudsmen.
Afterwards, the Spanish delegation went to the Spanish Embassy in Sarajevo, where they had a meeting with the Ambassador, the Honourable Mr. José Ángel López Jorrín.
4th December:
The delegation that had gone to Sarajevo visited various locations of the Republika Srpska with the aim of inspecting on site the situation of this political entity of Bosnia-Herzegovina.
Newsletter No. 21
Spain, Sindic de Greuges of Catalonia
Program for institutional co-operation with Bosnia-Herzegovina (1999)
Introduction
It was at the meeting of the Board of Directors of the European Ombudsman Institute (EOI), held on the 20th and 21st of November in Amsterdam, that the Ombudspeople of the Federation of Bosnia-Herzegovina, Vera Jovanovic, Esad Muhibic and Branca Raguz publicly requested the support of all the member institutions of the EOI. The SĂndic de Greuges (Catalan Ombudsman Institution), which participated in that meeting as a member of the Board of Directors, wanted to respond to the request of the Ombudspeople and, with the aim of defining their specific needs, invited the three representatives of that organisation to Barcelona in June of the following year. The conversations held during that visit established the base on which the program for institutional co-operation for 1999 was developed.
This program was jointly conducted by the SĂndic de Greuges of Catalonia, the Honourable Bar Association of Madrid, and the Defensor del Pueblo (Ombudsman of Spain) according to the Collaboration Agreement that the three institutions signed in Madrid on 10 June, 1998, by virtue of which they pledged to jointly seek funding for the execution and development of co-operation with the Ombudsman Institutions of Bosnia-Herzegovina, in the fields of legal advising, training, exchange of experience, etc., with the objective of promoting justice, collaborating in the full consolidation of the State of Rights, and reinforce the figure of the Ombudsman in modern constitutional political systems as a vehicle for the full exercise of Human Rights.
The co-operation activities are intended to be continued. It is planned that they be carried out through the execution of annual programs partially funded by the Agencia Espanola de CooperaciĂłn Internacional (AECI, i.e. Spanish Agency for International Co-operation).
Brief introduction to the political evolution and present situation in Bosnia-Herzegovina
The Republic of Bosnia-Herzegovina, in conjunction with the Republics of Slovenia, Croatia, Serbia, Montenegro and Macedonia formerly comprised the country of Yugoslavia. Yugoslavia was created after the fall of the Ottoman Empire in the First World War. The new country was established as a monarchy, with a Serbian king and a clear supremacy of this ethnicity over the others. Several years before the onset of the Second World War, civil war broke out in Yugoslavia. Croatia gained independence under a pro-Nazi fascist regime and millions of Serbians, Muslims and gypsies were killed. After the Second World War, Yugoslavia emerged as a socialist republic, led by Marshall Tito. He respected the structure of a country with six republics and attempted to impose a single nationality, that of Yugoslavian. In the year 1989, Yugoslavia began to disintegrate. Regarding the Republic of Bosnia-Herzegovina, a referendum was held in the year 1992 which favoured its independence. The Serbian Bosnians boycotted the referendum. In the summer of that year, a bloody civil war broke out which was to last three years. The causes of the war were complex and all subject to various interpretations. The factors to consider are: 1) the economic crisis; 2) the contrast between rural Bosnia, traditional and of a single ethnicity, and the modern, plural, urban Bosnia; 3) the influence of the Croatian and Serbian Republics' radical nationalist stances, and posterior incitement and military funding, on the rural population of either Croatian ethnicity (and Catholic religion) or Serbian ethnicity (and Orthodox religion). It is debated whether the nationalist component was the cause or the instrument in the war. In any case, the opposed parties initiated ethnic cleansing so that Serbians, Croatians and Muslims expelled the other ethnic groups from cities where they maintained or had gained power. The communal graves found were the product of slaughters perpetrated by both Serbs and Croats. The Peace Treaties signed by the parties were the Washington Agreement (1994) between the Croats and Muslims, and the Dayton Agreement (1995) between the Muslims and Serbs. Through the first Agreement, the Federation of Bosnia-Herzegovina was born (known as the Croatian-Muslim Federation), and with the second Agreement, the division of Bosnia-Herzegovina into two political entities was consolidated: the Federation of Bosnia-Herzegovina, and the Serbian Republic of Bosnia-Herzegovina (Republika Srpska).
Why the co-operation of the SĂndic de Greuges with its counterparts in Bosnia-Herzegovina?
The Ombudsman in Bosnia-Herzegovina constitutes a key piece in the country's process of civil reconstruction. In both Peace Treaties signed by the parties (Washington Agreement in 1994 between Croats and Muslims, and the Dayton Agreement in 1995 between Muslims and Serbs), the figure of the Ombudsman is indicated as the institution that will allow people access to justice when they are denied it through administrative or judicial channels. It is especially intended for the protection of those individuals who, being members of cultural, political or religious minorities, are impeded from exercising their rights.
The innate characteristics of the figure of the Ombudsman throughout the world make this institution particularly necessary and worthy of special attention in Bosnia-Herzegovina. It must be kept in mind that some of the characteristic features of this institution are its independence and neutrality, as well as its complementary nature with regard to existing personal defence and legal institutions. Among the fundamental duties of the Ombudsman are protecting the legality and quality of the Administration, especially in areas where control of the Administration becomes difficult due to its exercise of powers of discretion. Nor can we omit the Ombudsman's functions of orienting citizens in their actions regarding requests before the Administration, and creating confidence in the citizenry and the Administration. In this respect, the Ombudsman can carry out the function of mediator, especially with regard to minorities, who are often mistrustful, sometimes with reason, of the State and its administrative organs.
In reports issued by both the Ombudsman Institution of the Federation of Bosnia-Herzegovina and the Office of the Ombudsperson of Bosnia-Herzegovina, it is evident that, despite the strong legal structure in favour of human rights established in the peace treaties, their degree of application is minimal. Numerous violations of fundamental rights are committed, some local authorities hinder minority groups' exercise of their rights, and arbitrary decisions are made that cause doubts as to the democratic nature of the Administration. In this context, promoting the figure of the Ombudsman becomes essential in order to consolidate democracy in Bosnia-Herzegovina and assuage the consequences of the ethnic cleansing.
Program for institutional co-operation of judicial nature with the ombudspeople, bar associations and associations of judges in Bosnia-Herzegovina
Given that 1999 was the year in which the program for institutional co-operation was first put into practice, we can say that it was the year in which this co-operation materialised.
The Spanish Agency for International Co-operation (AECI) approved the project called "Program for institutional co-operation of judicial nature with the ombudspeople, bar associations and associations of judges in Bosnia-
Herzegovina" through the Resolution of 29 December 1998. The AECI itself funded 70% of the total cost and the institutions signing the agreement contributed the remaining 30%. The activities planned were the following: 1) training courses in Barcelona and Madrid, directed at the legal advisors of the Ombudsman institutions existing in Bosnia-Herzegovina; 2) seminars in Bosnia-Herzegovina on subjects indicated by the Bosnian jurists as crucial for the attainment of a fully democratic state; 3) establishment of two Spanish jurists in Bosnia-herzegovina for a period of four months to facilitate co-ordination of the different activities, promote interrelations between the two political entities of Bosnia-Herzegovina, offer assistance in projects arising as a result of the seminars, and define the program of activities to be carried out in the year 2000 through periodic meetings held with the judges, lawyers and ombudsman institutions of Bosnia-Herzegovina.
The Centre for Human Rights of the University of Sarajevo was our local counterpart in putting the program into practice. In order to formalise this collaboration relationship, the SĂndic de Greuges of Catalonia, the Spanish Ombudsman and the Bar Association of Madrid signed an Agreement with the Centre regulating the economic conditions, and rights and duties of each party in the execution of the program. Thus the activities carried out in Bosnia-Herzegovina were done in collaboration with the Centre for Human Rights, which also placed at the disposal of the two Spanish jurists temporarily established in Sarajevo the human and material means necessary for carrying out the program.
Below is a description, in chronological order, of the activities carried out both in Bosnia-Herzegovina and in Spain.
Courses aimed at the legal advisors of the Ombudsman Institutions of Bosnia-Herzegovina
Two courses were organised, each lasting 15 days and held at the offices of the three institutions. The first week of each course was held in Madrid (at the offices of the Ombudsman and the Bar Association of Madrid) and the second week in Barcelona, at the SĂndic de Greuges offices.
The subjects and contents of the work sessions at the SĂndic were defined by the SĂndic's Co-ordinator for Co-operation with Bosnia-Herzegovina, Judit Salas Calduch, according to the suggestions made by the two Ombudsman Institutions of Bosnia-Herzegovina to a work group representing the institutions of the Catalan Ombudsman, the Spanish Ombudsman and the Bar Association of Madrid on their trip to Sarajevo in October of 1998.
The objective of the work sessions was to show the Bosnian jurists how the SĂndic de Greuges operates from a wholly practical point of view. To this end, with the help of an interpret who was to interpret during the courses, various documents were translated into the Bosnian as well as English to facilitate the participants' comprehension. The work sessions were conducted by the institution's various personnel members according to the subject matter. With regards to the first course, its four work sessions took place on the 4th, 5th, 8th and 9th of March, mornings and afternoons. Morning sessions lasted from three to four hours, while afternoon sessions involved two to three hours of work.
In conjunction with the work sessions, some institutional visits were organised to allow the Bosnian delegation to get to know the most relevant public institutions of Barcelona and Catalonia first-hand.
The sessions of the second course offered to advisors of the Ombudsman institutions existing in Bosnia-Herzegovina were held in the same place from the 15th to the 21st of April, 1999.
The program of the second course was essentially based on that of the first, as the objective was to offer the same training to the different advisors of the Bosnia-Herzegovina Ombudsman institutions. In order to adapt the contents of the sessions to the preferences and needs of the participants, the sessions on Procedure and Actions of the SĂndic de Greuges were given by the advisors in charge of the work areas in which the Bosnian jurists had expressed an interest.
The sessions were inaugurated by the Ombudsman of Catalonia, who personally greeted the Bosnian representatives and introduced his collaborators. In addition, on the 9th of March and 20th of April, the Ombudsman offered the respective Bosnian delegations a dinner on behalf of the Institution.
With regard to the institutional visits conducted in these last courses, the Bosnian delegation was received by the highest authorities of Catalonia as a result of their manifest desire to personally meet the Bosnian representatives and provide express support to the present program of co-operation.
At each of these meetings, the Catalan authorities showed their interest in the political, economic and social situation in Bosnia-Herzegovina and took advantage of the opportunity to obtain first-hand information on the work carried out by the Ombudsman institutions of Bosnia-Herzegovina and the process of civil stabilisation and reconstruction that the country is presently undergoing. Furthermore, they were interested in the Bosnian delegation's opinion on the latest conflicts occurring in the region, as well as in the progress of the work sessions at the SĂndic de Greuges offices.
The Bosnian jurists had the opportunity to present the principal difficulties that they face in the daily exercise of their functions. They appreciated the efforts of the Authorities and population, both of Catalonia and Spain in general, to help their country.
The participants in the first course were five jurists from the Ombudsman Institution of the Federation of Bosnia-Herzegovina, from the offices in Sarajevo, Mostar, Zenica, Tuzla and Bihac, and a jurist from the Banja Luka office of the Ombudsperson Institution of Bosnia-Herzegovina. In the second course, another five jurists participated, this time from the Ombudsman Offices in Orasje, Capljina, Sarajevo, Livno and Travnik.
General Assessment of the Courses
The SĂndic makes a very positive assessment of the courses, as its program allowed the Bosnian delegation to have a wide perspective on the institution of the SĂndic de Greuges, how it functions and its social significance. Not only was technical knowledge on the operation of the SĂndic taught, but also an overview of our judicial and political system.
During the course of the sessions, the Bosnian jurists informed us of the difficulties they encounter in exercising their work, bringing the reality of their country to our attention.
With the aim of insuring that the contents of the course be as useful as possible for the participants, a basic program was designed that was gradually adapted to the concrete requests of the recipients. Thus, in the section on procedure and actions by the SĂndic de Greuges, the advisors responsible for the areas in which the course participants had shown interest on the first day taught the rest of the course. For this very reason, a presentation was added to the program which had not been planned previous to the arrival of the Bosnian representatives, on the sentences issued by the European Court for Human Rights and their application in the State of Spain. The participants were actively involved in all of the sessions. They appreciated the efforts of the institution to give such a practical content to the work sessions and expressed that the experience obtained through the course would be of great utility to them in their country. Proof of this is the Federation's new Law of the Ombudsman Institution, which, regarding procedures, is based on the model of internal procedure norms used by our Institution, as the Ombudsmen themselves later informed us.
Seminar on Judicial Independence and Effective Judicial Tutelage (held in Sarajevo on the 6th, 7th, 8th and 9th July, 1999)
Given that it had become evident that one of the principal obstacles to the process of democratisation which Bosnia-Herzegovina is presently undergoing is the lack of judicial independence and effective judicial tutelage, the first of the four seminars planned was on this subject.
The seminar had a high index of participation, and brought together judges, magistrates, lawyers, ombudsmen and authorities from the entire country, both from the Federation of Bosnia-Herzegovina and the Republika Srpska, as well as representatives of international organisations competent in the territory of Bosnia-Herzegovina. Some of the people speaking were: the Minister of Justice of the Federation of Bosnia-Herzegovina in the opening session, the members of the Constitutional Courts and of the Courts of the two political entities of Bosnia-Herzegovina, the representatives of the Ministry of Justice of the Republika Srpska, representatives of the Supreme Courts of Mostar East and Mostar West, and a member of the Ombudsman Institution of the Federation of Bosnia-Herzegovina. In addition to the speakers, 90 participants more attended the seminar.
Furthermore, the speakers from Spain were of the highest level: Carlos Granados, Magistrate of the Supreme Court; JoaquĂn Bayo, Senior Judge of the Barcelona Courts; Fransesc de Paula Caminal, Speaker of the General Council of the Judicial Branch; Juan Gil, Representative of the Bar Association of Madrid; Ăngel Luis OrtĂz, Head of the Justice Section of the Spanish Ombudsman Institution; and Enric Bartlett, Deputy Ombudsman of the SĂndic de Greuges of Catalonia.
The seminar was inaugurated by the Deacon of the Bar Association of Madrid, the Honourable Mr. Luis MartĂ Mingarro, the Ombudsman of Catalonia, the Honourable Mr. Anton Canellas Balcells, and the Ombudsman of Spain, the Honourable Mr. Fernando Ălvarez de Miranda. These three people gave a press conference on the same day as the inauguration, attended by local and European members of the press. The objective of the seminar was also announced the day before on Bosnian television by the Director of the Centre for Human Rights of the University of Sarajevo. Taking advantage of their stay in Bosnia, they also met with the Prime Minister of the Federation of Bosnia-Herzegovina with the aim of supporting the Institution of the Ombudsman before the political authorities.
Round Table on the Institution of the Ombudsman in the Republika Srpska, and on the Division of Powers and Independence of the Judicial Branch (held in Banja Luka on the 28th and 29th October, 1999)
This Round table, which took place in two day-long sessions, dealt with two matters that had been requested by the judicial agents of the country. As is evident from the program and the list of speakers, people invited to the round table, and participants, there were jurists from Ombudsman Institutions, judges, lawyers, representatives of the principal international institutions operating in Bosnia-Herzegovina, as well as members of the Executive and Legislative Branches present. The subjects were approached from different perspectives, based on the idea that, in order to attain certain objectives, the joint effort of different groups is necessary.
The topic discussed by the Ombudsman Institution of the Republika Srpska was particularly relevant, since on the same day that this was being discussed at the round table, it was also being discussed in the National Assembly of the Republika Srpska, which was deciding whether to approve the bill of law providing for the establishment of this institution in the Republika Srpska. This caused some of the participants to have to alternate their presence at the round table with attendance at the National Assembly. Although no-one questioned the advisability of establishing this figure in the Republika Srpska, disagreement arose with regard to the ethnic group to which the members of said institution should belong.
Regarding the subject discussed on the second day, the division of powers and the independence of the judicial branch, it complimented the agreement that had been reached by judges of the Republika Srpska during the first seminar held in Sarajevo, as it was agreed to hold a seminar in Banja Luka on the judicial branch.
Round Table on the Penal Procedure in Bosnia-Herzegovina (held in Tuzla on 1st December, 1999)
This round table once again brought together representatives from both political entities of Bosnia-Herzegovina. Hence, professionals from Tuzla (Federation of Bosnia-Herzegovina) as well as from Bijeljina (Republika Srpska) attended. A judge from Brcko, now a multi-ethnic district, also participated.
The matters discussed were: Strengthening Police-Public Prosecutor and Police-Examining Magistrate co-operation; the role of the Examining Magistrate and the lawyer defending/protecting the rights of the accused.
Fourth Seminar: Work Meeting and Classes at the University (30th November and 2nd and 3rd December)
This itinerant seminar was held from the 30th of November to the 3rd of December in different locations of Bosnia-Herzegovina.
The Spanish experts who participated in the various work sessions were the following: Xavier Bover, Cabinet’s Chief of the SĂndic de Greuges (Ombudsman) of Catalonia; Fernando Oliván, in charge of the Co-operation Program for the Bar Association of Madrid and Director of this seminar; JosĂ© Luis SantamarĂa, Member of the Legal Orientation Office for Foreigners, of the Bar Association of Madrid; Arancha DĂaz Ugarte and Judit Salas Calduch, lawyers and co-ordinators of the Co-operation Program.
In conjunction with the Spanish delegation, Ermin Sarajlija, Director of the Centre for Human Rights of the University of Sarajevo, also participated in all the work sessions.
PROGRAMME:
30th November:
A work session was held in the morning at the offices of the Ombudsman Institution of the Federation of Bosnia-Herzegovina in the city of Tuzla, in response to the request made by Tomislav Ljubic, Deputy Ombudsman of the Federation and Head of the Tuzla Office. Specifically, the request focused on an analysis of the Ombudsman intervention in the area of Justice Administration. With this aim, the Tuzla Office previously provided the Spanish delegation with various files regarding the delay in the Administration of Justice. Also dealt with were Ombudsman research methods for resolving complaints filed, as well as specific aspects of drawing up special reports.
In the afternoon, the aforementioned delegation moved to Brcko, a district with a special status. After a visit to specific sites, a meeting was held with Montserrat Radigales, of the Information Department of the Office of the High Representative of Brcko. At this meeting, the effectiveness of the arbitration decision affecting this district was discussed. Future activities were indicated focusing on the debate regarding the judicial problems derived from the application of the arbitration decision.
2nd December:
In the morning, in response to the requests of the Deans of the Law Faculties of Mostar East and Mostar West, Fernando Oliván, Professor of Constitutional Law at the "Rey Juan Carlos" University in Madrid, gave a class to the students of both faculties on the protection of rights in the Spanish Constitutional Court, a model which is presently being considered for incorporation into the Bosnian judicial system. The lecture was complemented by work meetings with Ljubo Zovko, Dean of the Law Faculty of Mostar West; Zvonko Miljko, Professor of Constitutional Rights at said institution and Magistrate of the Constitutional Court of Bosnia-Herzegovina; and Suzana Bubic, Dean of the Law Faculty of Mostar East. At these meetings, requests were received for concrete collaboration in the field of legal education. In all the activities carried out at the University, the delegation was assisted by the collaboration of Nenad Bago, Professor of the Law Faculty of Mostar West and Representative of the Office of the High Representative in Mostar.
The Mostar session ended with a meeting of judges, which took place at the Office of the High Representative in Mostar. It was organised and supported by Javier Mier, judicial specialist of the Office of the High Representative in Mostar. The judges present at the meeting were Damir Sadovic and Nurko Pobric, Magistrates of the Mostar Canton Court. This is a new court which, as opposed to the majority of the institutions in this divided city, is a joint organisation, with magistrates from both parts of the city. The meeting ended with concrete ideas on continuing co-operation with the judiciary of Bosnia-Herzegovina, and in particular, with the judges and magistrates of Mostar. Thus, the judges requested collaboration in the area of education, proposing the study of the Spanish judicial system and the advisability of organising debate forums to discuss the topics most relevant to the judicial establishment of their country.
3rd December:
In Sarajevo, at the Office of the Ombudsperson in Bosnia-Herzegovina, our experts held a work meeting with Gret Haller, Ombudsperson of Bosnia-Herzegovina, who was accompanied by two of her colleagues: Valerija Saula, Deputy Ombudsperson at the Banja Luka Office, and Nedim Osmanagic, legal advisor of the Sarajevo Office. At the meeting, the present relation between the Office of the Ombudsperson - the State Ombudsman - and the Institution of the Ombudsmen of the Federation - the Regional Ombudsman - were discussed, as well as the two bills of law on the two institutions that are pending approval by parliament. Furthermore, the consequences that would arise from approval of the new laws were analysed, i.e. a greater similarity of functions between the two Ombudsman institutions, which would oblige closer co-ordination. Gret Haller explained the delicate role, in a political sense, that her institution should assume when, once the institution of the Ombudsman were established in the Republika Srpska, this Ombudsman would have to co-ordinate with the Ombudsman institutions of both political entities within the framework of a State that is not yet consolidated. In this respect, she requested the institutional support of her Spanish colleagues to handle this situation and be able to take advantage of the experience of a country that has a State Ombudsman and various Regional Ombudsmen.
Afterwards, the Spanish delegation went to the Spanish Embassy in Sarajevo, where they had a meeting with the Ambassador, the Honourable Mr. JosĂ© Ăngel LĂłpez JorrĂn.
4th December:
The delegation that had gone to Sarajevo visited various locations of the Republika Srpska with the aim of inspecting on site the situation of this political entity of Bosnia-Herzegovina.
