Interview with Pierre Mirel, Director for Albania, Bosnia and Herzegovina, Montenegro, Serbia and Kosovo Issues in the Directorate-General for Enlargement, European Commission

* How do you judge the Structured Dialogue on Justice one and a half years after it started?

The Dialogue provided the proper context first of all for practitioners to discuss in an open and constructive ways the current shortcomings in the judicial structures of Bosnia and Herzegovina. In this regard, I have witnessed a process of convergence of technical opinions, also on the most critical issues. Such convergence was sometimes difficult, due to the complexity of the issues at stake and the great distance between some of the position on the table. This has paved the way for a progressive identification of sets of possible solutions for the various matters at stake. To be absolutely frank, we started from strong and apparently irreconcilable views on most of the issues on the agenda. On some items, we were even confronted with an initial reluctance or to some extent, resistance to even open a debate. Eighteen months later, it is clear that all key actors engage, they are willing to do that constructively, and no-one among the domestic practitioners say that there are any issues that shall not be developed or  discussed. There are no more taboos, and this is also an important achievement. There is a widespread readiness among all practitioners to review the current system for reforms that would bring BiH closer to the European Union. That is where Bosnia and Herzegovina and its citizens belong, in the European family. The experience of other countries is indicative in this sense. Sustainable solutions can only come through well thought out and well considered reforms.

* You emphasise how the dialogue has impacted on relations amongst practitioners and in general representatives from judicial institutions. What about the political environment?

The Dialogue might have taught an important lesson to politicians throughout the country. In early 2011, plans for a platform for reforms of the justice sector had been in the pipeline for some time, pending the entry into force of the Stabilisation and Association Agreement. Then we were confronted with a sudden controversy on the judiciary, its structures and performances. Preparations from the EU side therefore intensified and this present process was launched, also as a concrete and pragmatic response to political actors who raised questions and in some cases even contested the legitimacy of the current system or some parts of it. Criticism is always welcome, but any stance that is not grounded on clear technical standpoints cannot go far. Therefore we proposed to divide responsibilities. The debate had to be depoliticised and the conduct of the process handed over to those who best know the system, as they are an integral part of it: these were obviously the members of the judiciary. The executive and legislative institutions were expressly asked to accompany and support the process. Whenever the inclusive debate based on ownership produced technical results, they have been called to guarantee that democratic procedures would do their due course by translating them into reforms that consolidate the system and strengthen its approximation to the relevant EU acquis and European standards. In some cases this follow up arrived promptly, in some other circumstances we still witnessed some reluctance to engage and guarantee the expected developments. Rather, I am asking political elites to not depart, under any circumstance, from the main objective: strengthen the judicial system at all levels throughout BiH for the benefit of all citizens.

* Do you believe such message has been well understood by Politicians?

This was clarified since the inauguration of the Dialogue by Commissioner Füle in June 2011. The work ahead has to be done to guarantee to all citizens the consolidation of a truly independent, impartial, professional and efficient judiciary. This is what matters first and foremost.

* What are the most tangible and specific developments that took place in the framework of the Structured Dialogue?

The list of actual developments has started to fill up. When it comes to war crimes related issues for instance, the positive environment guaranteed by the Dialogue had a concrete impact, which directly contributed to address the issue of the existing backlog of war crimes cases and helped decisions to be taken on the referral of war crimes cases from the state level judiciary to other competent instances throughout the country. Credit goes to the Court and the Prosecutor’s Office of BiH, the two institutions that were responsible to move the process forward and that indeed replied to the requests from the EU and other members of the international community with valuable normative and technical progress. Clarity, consensus on parameters and procedures, genuine willingness to move the process forward and tackle the existing backlog: these were all positive aspects that stemmed directly from the work carried out in the context of the Structured Dialogue. In addition to that, regional and international cooperation was also intensified and a number of extradition agreements, for instance, were initialled, negotiated and recently signed. Very valuable work was also guaranteed by the HJPC in relation to the backlog of cases, in particular utility cases.  But let me add that from the beginning of this process, the European Union has made it very clear that the quality of the work delivered through the Structured Dialogue is our priority.

* What are the most tangible issues that the SD still did not manage to solve?

The Dialogue is there to guarantee that the reform process has the right pace, the proper context for technical debate (meaning, a consensus-building platform that is inclusive), and the necessary assistance from the EU, which nevertheless commits to respect ownership. This recipe requires time. There are no easy and quick fixes. I am confident that this is the way to address and solve all outstanding issues for the benefit of all citizens throughout BiH. This happened because we were clear on the objective: dialogue means to agree on solutions that improve and protect the system. It does not mean to dismantle the system, challenge the existence of institutions or deprive the system of the key prerogatives that are structurally required for it to function in full independence. The political actors need to show their full support, which in the past few months has often come, but has often swung back and forth as well. There are no unsolved issues, there are only issues being addressed and the momentum remains positive.

* What are your expectations for the next dialogue?

Our expectation is that stakeholders will build on the consensus reached in July in Mostar. This consensus will be transposed in pieces of legislation which will implement concrete reforms. Important pieces of legislation must be further developed and we must provide the ground for enhanced clarity on competences, necessary praxes, modalities, and responsibilities that must be shared properly for the system to function effectively. We believe so much in the process and in the potentials of the judiciary in this country that we have earmarked around €46 million of assistance under the Instrument for Pre-Accession. This is a rather extraordinary commitment for a potential candidate country. With the support of EU member states we were even in a position to guarantee that part of this funding is transferred directly to BiH for the benefit of those institutions that are more overloaded and, in particular, that are responsible for the greatest deal of investigations and processing of cases related to war crimes. This is a commitment that is very concrete and shows the degree of expectation and trust in the main actors and institutions of this country. This also answers the scepticism raised in the past about the capacities of courts and prosecutor’s offices throughout BiH to handle the cases transferred from the State level judiciary. Budgetary support through the IPA funding is a concrete answer to boost investigative capacities, witnesses care, support and protection as well as processing of the cases by the courts, just to mention a few concrete areas of intervention. One of the core objectives of the Structured Dialogue is to ensure that all war crimes cases would ultimately be investigated and tried. Justice has to be guaranteed, for all the victims and their families

* What is your opinion on the platform established principally by SNSD and SDP, particularly in relation to their joint proposal on reforming the system for the appointment of Prosecutors?

I mentioned already that criticism and proposals, when they are really constructive are always welcome, whether they come from practitioners or from the political world. In this specific case, there are issues that shall be carefully considered. Supreme judicial councils, in their various configurations, have always had one key responsibility: to operate in full independence and become the engine that keeps the judiciary working effectively. In other words, such institutions are key for guaranteeing the independence but also professionalism of the judiciary in most countries, including in the widest majority of EU member states. Any change to procedures or prerogatives that regulates Supreme Judicial Councils shall therefore be carefully assessed against one question: does a proposed change alter the necessary balance between the three pillars of the state, the executive, the legislative and the judiciary. This is a first, structural, inescapable question. The second issue is always to contextualise reforms in the constitutional setting and in the history of the country. I am fully aware that the supporters of the recent proposal to modify the role of the HJPC in appointments of prosecutors claim that similar mechanisms are present elsewhere in Europe. Cherry-picking examples that serve ideological and political, not technical, objectives is not advisable. Some consolidated democratic systems might require different formal checks and balances. This is because a number of countries have consolidated both their democratic and judicial culture through decades and even centuries in some cases.  When it comes to recently formed democratic states, the system of formal guarantees has to be possibly more rigorous; at the same time the separation of powers and the necessary checks and balances shall be maintained with configurations that prevent that one power of the state can prevail and limit the independence of the other and undermine its proper balanced functioning.

* Has this message been passed to the main stakeholders?

The European Commission is organising a TAIEX financed round table with EU member states experts. They will gather this Monday 3rd December in the premises of the HJPC, where the main prospects for reform of this institution will be addressed in a brainstorming modality. Invitations were sent to relevant judicial authorities and institutions, the relevant ministries, as well as to representatives from the legislative branch. This is only one among other pieces of legislations that have been monitored in the framework of the Structured Dialogue. Other issues on the table include the preparation of a legislative framework that will streamline the state level judiciary through the establishment of a separate Appellate Court of BiH and with the contextual clarification of competences vis-à-vis other judicial instances of BIH. The Commission also continues to engage on the finalisation and the harmonisation of the Law on Courts of Republika Srpska with the prerogatives of the HJPC.