Institucija Ombudsmana Federacije Bosne i Hercegovine

Institucija Ombudsmana Federacije Bosne i Hercegovine, Bosnia and Herzegovina

Independent and efficient judiciary in Bosnia and Herzegovina

Far from constitution

Independence and autonomous operation of the judiciary is one of highest achievements of civilization; the right to a fair trial and to a neutral judge is one of fundamental human rights.

In the previous system, as it was set forth in the Constitution of Socialist Republic of Bosnia and Herzegovina (SRBH), judicial power was part of a unified system of power and self-management of the working class; the independence of courts was proclaimed, but not the autonomy of judges.

Before and now

Courts, as part of a unified system of power, were obliged to follow principles and opinions of the Communist Party in order to protect the socialist revolution and its heritage, socialistic relations in society, and socially owned property (I will explain later why I remind you on these facts).

Today, the Constitution of the Federation of Bosnia and Herzegovina, in its Preamble, says: "Holding that democratic institutions based on respect for human rights and freedoms best produce harmony among themselves and their communities desiring to support individual liberty and to develop a free market guided by the principles of the Charter of the United Nations, the Universal Declaration of Human Rights determined to ensure full national equality, democratic relations, and the highest standards of human rights and freedoms."

Therefore, it is no surprise that the Constitution of the Federation of Bosnia and Herzegovina contains all democratic principles. The principle of independence and autonomy of the judiciary is among them, and this independence, i.e. separation of powers, represents a barrier to totalitarianism.

Substantial differences

There is a substantial difference between definitions of judicial power in the SRBH Constitution and the Federation Constitution. The SRBH Constitution puts an emphasis on protection of the system and the political party in power, while the Federation Constitution gives priority to the protection of human rights and fundamental freedoms of all persons within the Federation, and also contains the provision: "No amendment to the Constitution may eliminate or diminish any of the rights or freedoms set out in Sub-Chapter II.A.1.7 of the Federation Constitution."

I mentioned these few opening remarks because:

the principle of combined power was in place for 50 years and still is deeply rooted in the comprehension of the courts role and the way proceedings are carried out;
it should be clear that the constitutional principles on the organization of powers have changed completely there no longer is a one-party system, combined power or socially owned property as a basis for ownership relations; - current authorities want to power unified, but in a modified version: by protecting its ethnic groups through political parties; by making decisions within centers of political power that are implemented through organs of authorities; by intolerable delays in privatization, i.e. restitution of expropriated property;
according to the Constitution of the Federation of Bosnia and Herzegovina (Article II.A.6) courts and other governmental organs are obliged to apply and to conform to the rights and freedoms provided in the instruments listed in the Annex to the Constitution (international human rights standards).

Declarative autonomy

Through separation of powers -- legislative, executive, and judicial the latter acquires absolute autonomy in organizational, staffing, and financial matters.

However, the system of separation of powers and independence, eo ipso, does not ensure autonomy. This is the prerequisite for independence.

By this, the prerequisites for "autonomous and independent application of the law laws as a supreme principle of judicial authority" are created. Relationship between legislators and courts is of high importance for independence of courts.

This relationship is established by law. Therefore, it is very important that the creation of laws is based on comprehension of fundamental individual and collective values that guarantee rights and freedoms. When a law enters into force, it obligates citizens and all state institutions equally.

Delays in passing laws that conform to international conventions and human rights standards (Labor Law, Law on Restitution, and many other) is obvious.

Constitution and European convention

The European Convention on Human Rights and Fundamental Freedoms is directly applied in Bosnia and Herzegovina and has the priority over all other law. However, we have no information about the application of the European Convention by any court within the Federation. Courts still apply laws from the previous system that are do not conform to the Convention and Constitution.

I would like to draw your attention to the constitutional provision from Article C.3.11 that reads: "Whenever the Supreme Court, the Human Rights Court or a Cantonal court should consider, in the course of a proceeding currently pending before such court, that an applicable law is not in accord with this Constitution, it shall stay the proceeding and present the question to the Constitutional Court in accordance with Article 10(3)".

I think there was no such case in practice, and this is not caused by ignorance, but by judges lack of courage and determination. Interpretation of law is the highest duty of the legal profession:

discriminatory laws cannot be applied in a proceeding pending before a court. Article 6 of the Convention is a standard for a democratic state. It reads: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

Ombudsmen are not substitutions for courts

It is useless to talk about human rights if these rights cannot be applied, if there is no possibility and guarantee of preventing arbitrary behavior of individuals or the state.

An independent and autonomous judiciary can give such guarantees. Courts are guarantors for such rights.

The Ombudsmen cannot be substitutions for courts. They are additional instruments mechanisms for the protection of rights and they may examine the activities of any institution of the Federation, including courts that may be negating human dignity, rights, or liberties. Finally, an Ombudsman is entitled to initiate proceedings in competent courts and to intervene in pending proceedings (Law on Civil Procedure Article 189, as intervening party; Law on Administrative Procedure in administrative proceedings).

The lack of achievement and protection of human rights and the non-functioning of the legal system within the Federation is disturbing. Courts are part of this system; the Ombudsmen, therefore, assess that the situation in courts is very difficult.

Ineffectiveness of courts is particularly disturbing. For example: at the end of 1998, the Municipal Court in Travnik had 804 criminal proceedings pending, or 80% of pending cases; the Municipal Court in Zavidovi i had 1,218 criminal proceedings pending; the Municipal Court in Te anj had 1,240 civil cases pending, or more than 75% of its total caseload; the Municipal Court in Zenica had 3,472 civil cases pending, or 74% of its total caseload. Most of the courts are understaffed and their professionals usually are of weak knowledge and expertise; these facts are reflected in the large number of canceled court decisions. In some cantons the courts are not yet established in accordance with the Federation Constitution (Herzegovina-Neretva Canton; establishment was announced last year, but there were no elections until now).

In some cases judges are members of one or more steering boards for public or other enterprises, some judges are members of executive bodies of political parties.

On the question: Whether a citizen can realize his rights in the Federation? My answer is: Hardly! Many facts established in our cases lead to this conclusion.

I would like to point to some of them, in connection with Article 6 of the Convention on Human Rights. These are:

1. Citizens distrust of courts

In many cases citizens, especially minority members, complain about judges partiality.

Impartiality, in the sense of Article 6, has to be established by a subjective test, i.e. on the basis of the personal conviction of a judge in concrete cases, as well as by objective test, i.e. making sure that judges offered enough guarantees for the elimination of any legitimate suspicion in this sense.

Personal impartiality of a judge has to be presumed as long there is no evidence to the contrary.

A judge has to perform his duty without prejudices or hatred; however, these are not easy to prove.

Under the objective test, it has to be established whether, regardless of the personal behavior of a judge, there are facts that may lead to suspicions about his impartiality.

So, the matter in question is trust, which courts in a democratic society must acquire by making a positive impression on the general public, primarily in criminal proceedings.

When a judge makes a decision on detention before trial and other decisions in preliminary proceedings, a judge makes an assessment of all available information in order to establish whether the police prima facte have a basis for their suspicions; when a judge pronounces his verdict, he has to assess whether the evidence presented and discussed is sufficient to convict the accused person.

Some reasons for distrust of courts is present in the way that judges are elected and in the attempts made to keep unity of power by influencing elections of judges and prosecutors. In this way by prosecuting or non-prosecuting the perpetrators of criminal offenses, persons involved in corruption and organized crime, by qualification of offenses (for instance, terrorism: many times the public was warned about the increased number of terrorist acts, however, it is important to ask how many persons were accused for terrorism), by penal policy, by pressure of executive authorities on public prosecutors the implementation of political parties policies is ensured.

2. Inefficiency in implementation of court decisions

All organs of government shall carry out and assist in implementing judgments and orders of all courts (Articles C. 1 and 2 of the Federation Constitution).

I was surprised when I learned that about twenty decisions of the Constitutional Court were not implemented, as well as decisions of the Human Rights Court, not to mention decisions of regular courts. Statistics are disappointing: citizens wait for implementation of court decisions for several years!

3. Unjustifiable postponement of hearings

There are many cases of obstructing or violating the requirement for a "hearing within a reasonable amount of time". The following are a few examples:

the case of judge Bahra Eorali: proceedings began on 28 July 1995, hearings were scheduled 12 times and postponed 12 times; there were 28 hearings in total;
an example of scheduling and postponing nine hearings because the defendant, illegal occupant of an apartment, was not duly summoned. Instead of coming to the court in person, the defendant sent his father with a doctor s findings;
an example where the proceeding was initiated on 28 July 1997; the defendant was "unduly summoned" seven times. The defendant is an illegal occupant;
the eviction of an illegal occupant: the decision on eviction was rendered on 19 June 1998, but remains unenforced.

4. Protection of property

This also is one of the troublesome areas. Courts, particularly in areas of Mostar, Stolac and Eapljina, had proceedings for cancellations of apartment occupancy-right contracts in accordance with provisions of the Article 47 of the Law on Housing Relations because the occupants were not living in their apartments.

The issue of socially (now state) owned property is also indicative of the assessment of the autonomy and independence of courts. The Law on Sale of Apartments With Occupancy-Rights stipulates that if the sale contract is not signed within three months the court should deal with it, i.e. the buyer has the right to initiate proceedings. The court generally delays a first hearing for 5 months and on the hearing finds that the summons were not delivered on time.

These are just some of the facts which lead to conclusions that the rights and freedoms of citizens of the Federation are won very hard, and slow. There are a few additional facts:

inefficient resolution of disputes that are of an urgent nature (invasion of property, disputes regarding illegal occupancy, labor disputes, etc.);
vertical and side pressures and threats to judges (examples in Sarajevo, Livno, Tuzla, Central Bosnia, etc.).

The fact that should be added to this picture of a dependent and a non-autonomous judiciary is that 50% of citizens who addressed our offices this year complained about violations of the right to equality before the law, which indicates how much discrimination is present, which may be present in court proceedings.

So, problems are enormous. Therefore, we welcome the Resolution No. 1184 of July 16, 1998 by which the Security Council of the United Nations (UN) approved the establishment of a UN Mission in Bosnia and Herzegovina (UNMIBH) Judicial System Assessment Program (JSAP) as part of comprehensive program of judicial reform.

For the achievement of the truth and everything that is good and decent, human rights and freedoms must be in an atmosphere of morality, legitimacy, and legality.

Therefore all of us must play our role in this matter in the territory of Bosnia and Herzegovina, otherwise there will be no human rights in concreto, and, consequently, no associations that deal with this matter. (Speech of the Ombudsman Branka Raguz delivered on behalf of the Federation Ombudsmen on International Seminar "Independent Judiciary and Efficient Judicial Protection" held in Sarajevo, 6-9 July 1999).

Newsletter No. 19