Recommendations of the Sixth Plenary Meeting of the “Structured Dialogue on Justice between the European Union and Bosnia and Herzegovina”

Banjaluka, Bosnia and Herzegovina, 11-12 November 2013

Recommendations by the European Commission Services

On equality of citizens before the law and harmonisation of court practice in war crimes cases, the European Commission
•    Takes note of the recent rulings of the European Court of Human Rights (ECtHR) and the Constitutional Court of Bosnia and Herzegovina where a number of judgments of the Court of Bosnia and Herzegovina were found in violation of Article 7 of the European Convention of Human Rights.
•    Recommends that any measures related to the implementation of the ECtHR ruling in the Maktouf and Damjanović case is prepared and assessed with great caution at the domestic level. The Committee of Ministers at the Council of Europe is expected to examine the measures taken or envisaged by BiH authorities for the execution of this case in one of its upcoming Human Rights meeting.
•    Recalls that harmonised courts practice in the application of substantive criminal law to war crimes processing remains an important objective. Equality of citizens before the law and harmonised jurisprudence are key aspects in the on-going effort to advance clearing the war crimes cases backlog throughout the BiH judiciary.
•    Recalls that justice for war crimes is a crucial endeavour for the victims, their families, as well as for the broader efforts towards reconciling societies. All war criminals must be brought to justice and duly processed.
•    Reiterates the need to establish an effective Joint Panel of highest judicial instances, under the leadership of the High Judicial and Prosecutorial Council (HJPC). The panel would play an important advisory role and become an established guiding framework. It may also include relevant departments (Criminal, Civil, and Administrative). The new Appellate Court of BiH, once established, should also be represented in this context.

On the Draft Law on the Courts of BiH, the European Commission
•    Commends the efforts of the BiH Ministry of Justice to consolidate a revised draft law, taking into consideration elements provided by relevant stakeholders, along the recommendations handed over in the context of the Structured Dialogue thematic session of July 2013 and in the Venice Commission Opinion of June 2013.
•    Recommends the BiH Ministry of Justice to conclude the drafting process and submit it to the Council of Ministers. Deliberations in the Council of Ministers shall however allow reaching an agreement on such legislative proposal that is supported by the widest possible political consensus. Adoption shall remain a priority for the current legislature. 
•    Reiterates that the principle of the extended criminal jurisdiction of the state level judiciary should be retained through the objectivisation of parameters in order to eliminate any possible prejudice to the principle of the natural judge.

On the draft amendments to the RS Law on Courts, the European Commission
•    Considers the recent impasse regarding the adoption of previously agreed amendments to the RS Law on Courts extremely disappointing.
•    Requests the RS authorities to reinstate the Proposal for amendments into the procedure in view of its final adoption, taking into account the full compliance with HJPC Law defining competences of the latter.

On the draft amendments to the HJPC Law, the European Commission
•    Reiterates support to the integrity of a single state-wide competent HJPC, as established through a transfer agreement between the two Entities, and the fundamental role it plays for the entrenchment of the rule of law throughout BiH.
•    Welcomes that the Ministry of Justice of BiH has activated the procedures to seek the opinion of the Venice Commission on the draft legislation prior to its presentation to the Council of Ministers.
•    Recalls the need to prevent overexposure of appointments to the influence of political parties. The process of appointment must continue to be based on merit and transparency at all levels.
•    Strongly supports the HJPC in the efforts to make the appointment process of judges and prosecutors as objective and transparent as possible, particularly when it comes to the consolidation of additional measures to prevent conflict of interests and strengthen accountability.

On the referral of war crimes cases, the European Commission
•    Reminds competent ministries of their obligations to support the resolution of the backlog of war crimes cases by allocating prosecutor’s offices the needed human and financial resources and highlights once more that the budgetary support through IPA 2012 is topping up, not replacing such resources.
•    Also notes that with the obligation to process transferred cases, prosecutor’s offices and ultimately courts also take on the obligation to provide appropriate support to witnesses and victims.
•    Welcomes the launching of activities by the Unidentified Bodies Working Group and a constructive role by the Prosecutor’s Office of BiH. Encourage stakeholders at all levels to engage in a structured and supportive fashion to resolve the issues of remaining unidentified mortal remains and ensure that exhumations are properly coordinated under the auspice of the BiH Prosecutor’s Office.

On regional cooperation between prosecutors in war crimes cases, the European Commission
•    Welcomes the positive developments in the implementation of the cooperation protocols between the Prosecutor’s Office of BiH with, respectively, the State Attorney’s Office of Croatia and the War crimes Prosecutor’s Office of Serbia.
•    Welcomes also that implementation of these protocols has begun to involve prosecutors at all levels within the BiH judiciary.
•    Underlines that regional cooperation is a crucial element for effective prosecution of war crimes and supports the signatures of a similar protocol with the relevant authorities in Montenegro.

On other issues and the follow up of previous sessions of the Structured Dialogue, the European Commission
•    Invites the BiH Ministry of Justice to complete the drafting process of the revised Justice Sector Reform Strategy, taking into account the need to ensure effective monitoring of its implementation.
•    Recalls that adoption of the JSRS is a key strategic step, also in view of IPA support. In this regard, recalls the set of relevant recommendations issued after the plenary session in Brčko under heading 9.
•    Reminds that all the recommendations previously issued that still require due follow up by domestic authorities, remain valid and must be duly implemented without any further delay.