Brčko District, Bosnia and Herzegovina 08-09 April 2013
Recommendations by the European Commission
Almost two years after the initiation of the EU BiH Structured Dialogue, and extensive consultations on key judicial reform issues, the European Commission urges the respective executive authorities to finalise the draft laws thus far elaborated and introduce them into parliamentary procedure.
The European Commission reminds authorities that during the process of legislative drafting any new proposal must be in compliance with the current legal framework and the relevant European standards, thus avoiding conflicts in application of Laws.
Moreover, the European Commission requests all authorities involved in the adoption of laws, to take immediate steps in order to secure the necessary consensus on technical issues, and once relevant, the largest possible political support.
1. On continuous referral of war crimes investigations and cases from state to entities and adequate timely allocation of the necessary financial and human resources, the European Commission:
• Acknowledges progress in the referral of war crimes cases. Reiterates that the remaining backlog of the most complex war crimes cases at the level of BiH should be tackled as a priority. In doing so, the Prosecutor Office of BiH must be provided with necessary human and material-technical resources, as also supported by the associations of victims.
• Stresses that significant progress in terms of war crimes processing can only be achieved through adequate financial support by the Entity and cantonal governments. Therefore urges the respective ministries of finance to approve the funds necessary to allow the High Judicial and Prosecutor Council (HJPC) to open vacancies in accordance with the identified needs.
• Reminds the importance to advance further the process of referrals of war crimes cases, by continuing with the application of clear, objective and fully transparent criteria, as commonly determined by the Court and Prosecutors Office of BiH, and in accordance with the National War Crimes Strategy (NWCS).
• Regrets that only two authorities – Federal Cantons of Zenica-Doboj and Canton 10 –have so far allocated necessary funds for the recruitment of new prosecutors.
• Invites the Supervisory Body for implementation of the NWCS to coordinate the provision of detailed work plans by the relevant Prosecutors’ offices, which contain timeframes for the resolution of their respective backlogs, including a qualitative assessment thereof, by end of May 2013.
• Invites all competent bodies in the process of referral of investigations and cases from the State level to other judicial instances throughout BiH to take into account the needs of the respective entity law enforcement agencies, and be timely and duly informed.
• Encourages all relevant Prosecutors’ offices to address the issue of investigation of rape and violence against women as a matter of priority.
2. On securing the equality of citizens before the law and application of criminal codes to war crimes cases, the European Commission:
• Welcomes the holding of periodic meetings between the President of the Court of BiH, the Presidents of the Entity Supreme Courts and the President of the Brčko District Appellate Court. In line with the relevant Venice Commission observations, this practice should be considered for establishing the Joint Panel of highest judicial instances.
• Takes note of a trend in the war-crimes jurisprudence of the BiH Court, which evaluates the possible retroactive application of the criminal Law on a case-by-case basis.
3. On regional Cooperation in Prosecution of Perpetrators of War crimes, Crimes against Humanity and Genocide, the European Commission:
• Welcomes and congratulates the respective authorities for the signing of the “Protocol on Cooperation in Prosecution of Perpetrators of War crimes, Crimes against Humanity and Genocide” between the BiH Prosecutor’s office and the Serbian Prosecutor’s office for war crimes.
• Encourages the BiH Prosecutor’s office to sign the protocol on cooperation with its Croatian counterpart as soon as possible.
• Invites the NWCS Supervisory Body, in cooperation with the BiH Chief Prosecutor, to define a mechanism for the domestic implementation of the cooperation protocols.
4. On concluding extradition agreements between BiH and countries in the region, the European Commission:
• Welcomes the signing and entering into force of bilateral extradition agreements with Croatia and Montenegro.
• Encourages the finalisation of the agreement on extradition with Serbia and amendments to the existing agreement on extradition with the Former Yugoslav Republic of Macedonia.
• Urges the necessary coordination between the BiH Ministry of Justice, the HJPC and Court of BiH in order to avoid any misunderstanding in the application of extradition agreements.
5. On drafting the Law on Courts of BiH, the European Commission:
• Building on the common understanding for establishing a separate appellate court and the need to further objectivise the criminal jurisdiction of BiH Courts, urges the BiH Ministry of Justice to undertake the following steps by the end of April:
i) Finalise the draft Law on the Courts of BiH, in line with the conclusions of the TAIEX legislation review exercise, carried out in March 2013.
ii) Initiate the process of public consultation and, in parallel, seek an Opinion of the European Commission for Democracy through Law (hereinafter, Venice Commission) at the Council of Europe.
• Expects the Council of Ministers of BiH to include the Law on BiH Courts on the Agenda in view of its adoption during the current legislature.
6. On amendments to the HJPC Law, the European Commission:
• Reiterates its full support of the integrity of the HJPC and its responsibilities as established through constitutional and legal procedure, and the role it plays for the entrenchment of the rule of law in BiH.
• Expects that the BiH Ministry of Justice:
i) Finalises the draft amendments to the Law on HJPC, in line with the conclusions of the TAIEX legislation review exercise, carried out in December 2012.
ii) Initiate the process of public consultation and in parallel seek an Opinion of the Venice Commission.
• Stresses the needs for the draft amendments to extensively regulate the issue of conflict of interest in the judiciary at all levels, both in its comprehensive prevention and suppression.
• Recalls that accountability of judges and prosecutors must be improved through better regulating the institution of the Disciplinary Prosecutor, including its prerogatives and role.
• Welcomes the measures undertaken by the HJPC to improve the procedure for recruitment of judges and prosecutors, including the introduction of the written entry-level exam. Advocates further identification of mechanisms to consolidate procedures regulating the access to judicial careers that are as objective and transparent as possible.
• Underlines the importance to maintain a continuous compatibility, between the Law on BiH Courts and the Law on the High Judicial and Prosecutorial Council.
7. On capital investments: High Security State Prison, Special hospital for forensic psychiatry Sokolac, future premises of the Prosecutor’s Office of BiH, the European Commission:
• Following the publication of the tender, calls upon the BiH Ministry of Justice to ensure the timely, efficient and legally founded selection process.
• Calls upon the competent RS authorities to ensure that the required personnel for the Sokolac-based Psychiatric institution be recruited without delays, and be provided with adequate trainings, so that the institution can become operational shortly.
• Asks the relevant FBiH authorities to guarantee the timely allocation of financial resources and logistical support necessary for the relocation of the Federation Special Police Unit, thus allowing the installation of the Prosecutor’s Office of BiH in its premises.
8. On EU support to the justice sector (IPA 2012-2013), the European Commission:
(Measure 1: Construction, renovation and reparation of courts and prosecutors’ offices)
• Welcomes the progress achieved with the identification of relevant courts and prosecutors’ offices on the basis of technical preparedness, feasibility and a clear link to increasing judicial efficiency.
(Measure 2: Budgetary Support for the reduction of the war crimes backlog)
• Underlines the exceptional nature of EU budgetary support, and its expectation that BiH makes decisive progress in reducing the war crimes case backlog, at all levels.
• Welcomes the adoption of the Action Plan for the implementation of the NWCS as one of the pre-conditions for budgetary support.
• In this regard, also looks forward to the adoption of the individual work plans by the relevant prosecutors’ offices, as well as for an updated needs assessment to be provided for by the HJPC, no later than the end of May 2013, on the human and material needs for the war crimes processing by courts and prosecutors’ offices at state, entity and Brcko District levels.
• Emphasises that budgetary support is an extraordinary and temporary measure that cannot be, in any way, a replacement for the regular financing of the judiciary.
9. On the process of preparing the next Justice Sector Reform Strategy (JSRS) 2014-2018, the European Commission:
• Recalls that the preparation of the JSRS 2014-2018 is a key strategic step in view of the upcoming IPA 2014-2020 support.
• Therefore, invites all stakeholders to participate and actively contribute to the drafting of the JSRS 2014-2018 and the related Action plan for its implementation, setting realistic goals and measurable activities. Preparations must also be based on a thorough analysis of the results of the current strategy (2008-2012).
• Reminds that activities stemming from the next Strategy and the Action Plan for its implementation are expected to be duly incorporated in the annual work programs of all relevant ministries.
10. On Juvenile justice, the European Commission:
• Takes note of the initiation of the process for the adoption by FBiH authorities of the “Law on Protection and Treatment of children and juveniles in Criminal Proceedings”.
• Expects that strategic documents on juvenile justice be harmonised to the maximum extent possible, with a view to guaranteeing consistent application throughout BiH.
• Calls upon the competent BiH authorities to improve the conditions of all vulnerable prisoners, in particular juveniles and prisoners affected by psychiatric problems.
11. On the draft FBIH Law on Suppression of Corruption and Organised Crime, the European Commission:
• Expects that the draft for a new FBiH anti-corruption legislation, which has direct impact on the work and organisation of the judiciary, be discussed as a matter of urgency with all concerned judicial institutions and the HJPC, prior to further advancing in the parliamentary procedure.
• The FBiH Parliament shall take into due account the technical opinions expressed by all institutions concerned. In addition, recommends an ad-hoc technical meeting between key stakeholders on the matter.
12. On full alignment of the RS Law on Courts with relevant HJPC recommendations, the European Commission:
• Welcomes the adoption of the amendments to the RS Law on Courts by the RS Government and the subsequent adoption by the RS National Assembly in first reading. Expects the completion of the process as a matter of urgency.
• Congratulates all relevant institutions involved in this process for their constructive role, since they have once more confirmed that clear and open consultations the only possible was to resolve differences regarding any piece of legislation that deals with reform of the judiciary, as for all other sectors.
13. On the BiH Law on Witness Protection Programme, the European Commission:
• Welcomes the adoption of the Law on Witness Protection Program in BiH by the Council of Ministers, and expects that steps for overcoming the lack of consensus by all ministers are taken at the early phases of the parliamentary procedure.
• Highlights the particular needs of witnesses in war crimes cases involving sexual violence and expects from all the concerned parties to provide the highest level of victim-oriented protection and support mechanism before, during and after the trial, in particular through protection of victims’ identity and the provision of qualified psychological support to traumatised victims.
14. On care of court users, data protection issues and publication of rulings and proceedings the European Commission:
• Invites competent authorities to develop a balance between the necessary protection of personal data and the requirement for publicity of courts’ rulings and proceedings, especially with regard to cases of general interest to the public, such as war crimes, organised crime and corruption and terrorism. This can be achieved by looking at the relevant Council of Europe instruments, and the jurisprudence and practice of the European Court of Human Rights.
15. On follow up to the fourth plenary meeting of the Structured Dialogue, the European Commission:
• Reminds that all the previous sets of recommendations that still require implementation remain valid, and must be duly followed-up, without any further delay.
• Calls upon the institutions involved in this endeavour to prepare a detailed update report by the next plenary session of the Structured Dialogue.