Brussels, 29 April 2014
On the Draft Law on the High Judicial and Prosecutorial Council (HJPC), the European Commission
• Reiterates its strong support to the integrity of a single state-wide competent HJPC, as established through a transfer agreement between the two Entities; and recalls the fundamental role it plays for the entrenchment of the rule of law throughout BiH.
• Emphasises that the preliminary draft legislation for HJPC reform shall undergo a thorough debate amongst competent domestic authorities. The draft reform shall be developed based on ownership and the necessary broad consultations practices. Only through a systematic and thorough internal dialogue, at both technical and political levels, will it be possible to guarantee a reform based on the largest possible support, which will help the consolidation of the HJPC functions and further strengthen its role and contribution towards the entrenchment of the rule of law throughout BiH.
• Recalls the conclusions of the experts seminar held in December 2012 through TAIEX support. In particular, recalls that “any structural reform that reintroduces a strong role of the other pillars of the state, the executive and the legislative, would determine a rollback, especially if specific safeguards are not introduced to prevent overexposure of appointments to influence of political parties”. This assessment is valid in relation to the rules regulating both the appointments of the members of the judiciary by the HJPC, as well as the procedure for the appointment of HJPC members itself.
• Recalls also from the conclusion of the TAIEX seminar that, while several models exist in Europe, “yet, these have to be considered within the particular context and tradition of the countries concerned and cherry-picking and decontextualizing examples should therefore be avoided … When it comes to recently formed democratic states, the system of formal guarantees for the independence of the judiciary has to be possibly more rigorous.”
• Recalls that legislation regulating the functioning of judicial institutions at all levels in BiH, shall be maintained in full consistencies with the HJPC prerogatives. In this regards, recalls previous recommendations on the need to complete the full harmonisation of the law on the Courts of RS with the Law on the HJPC through the necessary amendments.
• Recalls the need to prevent overexposure of appointments to the influence of political parties and expects the Ministry of Justice of BiH to carefully review the recommendations of the Venice Commission and translate them into concrete amendments to the draft law, particularly looking at the recommendations related to the appointment/dismissal procedure of HJPC members and the composition as well as the structure of the council.
• Expects the Ministry of Justice of BiH, in close coordination with the HJPC, to carefully consider recommendations related to the appointments of judges and prosecutors, the appraisal procedures, the organisation and functioning of the Disciplinary Council and, more generally, the right to appeal.
• Support the continuous efforts of the HJPC to implement through technical steps the recommendations of the Venice Commission issued in earlier opinions on the improvement of the objectivity and transparency of the appointment process of judges and prosecutors, on the reduction of cases backlog, as well as on the more general requirement to consolidate and enact additional measures to prevent conflict of interests throughout the BiH judiciary.
• Further reiterates the importance of effective disciplinary proceedings and sanctions in case of breach of professional duties, and functional system for submission and monitoring of assets declaration of judges and prosecutors.
On the Justice Sector Reform Strategy (JSRS) 2014 – 2018, the European Commission
• Reminds that the adoption of the JSRS 2014 -2018 is a key strategic requirement to be fulfilled in view of the upcoming IPA 2014-2020 support.
• Reiterates that all activities stemming from the JSRS and the Action Plan for its implementation have to be duly incorporated in the annual work programs of all relevant ministries, the Brčko Judicial Commission and the High Judicial and Prosecutorial Council, which all are directly responsible for the implementation of the strategy along-side the BiH Ministry of Justice.
• Expects the Ministry of Justice of BiH to include in the related Action Plan clear implementation indicators and clear reference to how responsibilities have to be shared for the various envisaged actions.
• Implementation of the JSRS remains the common responsibility of the entire justice sector in BiH, under the coordination of the BiH Ministry of Justice.
On the revised Draft Law on Courts of BiH, the European Commission
• Reminds that in the process of finalising and moving the draft of the law forward in the legislative pipeline, priority shall be assigned to securing the widest and most consensual political support to this legislative proposal.
• Further reminds the positions earlier expressed, for which the principle of the extended jurisdiction of the state level judiciary is to be retained through objectivisation of the relevant parameters, in order to eliminate any possible prejudice to the principle of the natural judge.
• Takes note of the revised draft circulated by the BiH Ministry of Justice in January. Invites the Ministry to incorporate the additional technical suggestions by the Venice Commission, which were transmitted to the Ministry in February and further presented by the Venice Commission in the context of its 98th plenary session in March 2014.
• In particular, further emphasises the issues raised by the Venice Commission on the new draft art. 15(2)(b), which among other possible adjustments, still requires that a reference at crimes committed by individuals be outlined as an additional separate paragraph.
• Further encourages BiH to ensure the legal preconditions for designation of specialized court chambers competent for specific cases that require priority, such as corruption and organized crime cases.
• Reminds the need to avoid any disruption of operations at the various instances after a new Law on the Courts of BiH is adopted and the need for a continuous compatibility between all provisions of the new legislation and related dispositions on the Law on High Judicial and Prosecutorial Council. Budgetary, staffing and other technical consequences of the new law shall be carefully evaluated, as well the needs to ensure full capacity and independence of the envisaged Appellate Court.