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Third meeting of the “Structured Dialogue on Justice between the European Union and Bosnia and Herzegovina”

Mostar (Bosnia and Herzegovina), 5-6 July 2012

Recommendations from the European Commission

 

On Statistics and applied criteria for the referral of investigation cases from the State to Entities and Brcko District jurisdictions, the European Commission:

• Welcomes the agreed common interpretation of the objective criteria between the Court and Prosecutors Office of BiH, as also acknowledged by the Supervisory Body for implementation of the National War Crimes Strategy (hereinafter: the Supervisory Body), which led to the increase of the referral of war crimes cases from the state level to Entity and Brcko district jurisdictions.

• Reminds the importance to continue the process of referrals by maintaining the identified objective and fully transparent criteria.

• Asks the competent authorities at all levels to secure the financial and human resources necessary to properly investigate and process cases in a timely manner. In this regard, notwithstanding the foreseen EU assistance, the budgeted vacant posts throughout the judicial and prosecutorial network should be filled as a matter of priority.

 

On equality of citizens before the law through the application of criminal codes in war crimes cases, the European Commission:

• Welcomes the initial expert discussions on the matter launched under the auspices of the Supervisory Body.

• Reiterates the need to fully respect the principle of equality of citizens before the law and basic principles of criminal law, by maximising possibilities for the harmonised application of the criminal codes in war crime cases through periodic high-level judicial consultations.

• Asks the HJPC to explore and recommend possible options for institutionalising the format of regular consultations between the highest judicial instances on the matter of harmonisation of the case law. This format might also be extended to other areas of case law, beyond the scope of war crimes in line with relevant conclusions of the Venice Commission Opinion on Legal Certainty and Independence of Judiciary in Bosnia and Herzegovina of 16 June 2012 no. 648/2011 (hereinafter: the Venice Commission Opinion).

 

On National War Crimes Strategy implementation and regional cooperation, the European Commission:

• Regrets that the Protocol on exchange of information and evidence in war crimes cases between the Prosecutor’s Office of BiH and the War Crimes Prosecutor’s Office of Serbia has not yet been signed.

• Reiterates that the conclusion of such protocol is a fundamental step to avoid impunity, bearing in mind the absence of the regime on extradition for war crimes cases between BIH and neighbouring countries.

• Expects that the related deadlock is overcome as a matter of urgency so that the Prosecutors’ Office of BiH is enabled to sign the protocol.

• Welcomes the progress recently achieved in negotiating extradition agreements with neighbouring countries and expects the entry into force of such agreements by the next Structured Dialogue session.

• Welcomes the arrest of Radovan Stankovic on 21 January 2012. Reiterates that serious efforts shall be invested by all law enforcement agencies to locate all current fugitives.

 

On the witness protection legal framework and the support mechanisms for its implementation, the European Commission:

• Expresses concerns about the delay in drafting and further adopting a BiH Law on Witness Protection Program.

• Expects the Draft of the BiH Law on Witness Protection Program to be introduced into parliamentary procedure by the next session of the Structured Dialogue.

 

On the reform of judicial institutions in BiH with the establishment of an Appellate Court of BiH, the European Commission:

• Reiterates that the BiH Ministry of Justice shall finalise drafting of the necessary legislative framework for the creation of a separate Appellate Court of BiH, taking into account the relevant conclusions of the Venice Commission opinion.

 

On the coordination of competences between different judicial instances throughout BiH, the European Commission:

• Welcomes the efforts in seeking consensus amongst practitioners on the need to further objectivise parameters regulating the BiH Court jurisdiction over criminal offences encompassed in Entity and Brcko District Criminal Codes.

• Expects the BiH Ministry of Justice to propose legislative solutions, taking into consideration the conclusions reached in the context of the process led by the HJPC on Art.7.2 of the Law on Court of BiH.

• Encourages all relevant authorities to continue working towards further harmonization of the Civil Procedure Codes.

 

On the backlog of cases, the European Commission:

• Acknowledges that some steps have been taken to tackle the backlog of cases. Moreover, as a matter of priority, asks that all relevant pending measures are adopted.

• Urges the competent authorities to ensure that all pending drafts are adopted without delay, in particular: the laws on execution procedure that affect utility cases, as well as the legislation on inheritance.

• Regrets that introduction of in-court and out-of-court mediation is still behind schedule and calls on all levels of authority to present an assessment of the prospects for introduction of mediation that will be based on European standards and best regional practice.

 

On the consolidation of HJPC functions, including by revision of the relevant law, in line with European standards, the European Commission:

• Reiterates its support to the integrity of the High Judicial and Prosecutorial Council and the fundamental role it plays for the entrenchment of the rule of law in BiH.

• Expects the BiH Ministry of Justice to draft amendments to the Law on the High Judicial and Prosecutorial Council, by taking into consideration the contribution of the HJPC and suggestions presented in the Venice Commission opinion.

 

On Free Legal Aid Laws, the European Commission:

• Welcomes the Draft Law on Free Legal Aid of BiH, thus providing the minimum standards required for the alignment with the European Convention on Human Rights.

• Urges the Ministry of Justice of BiH to ensure that the Draft Law has the largest possible support in the parliamentary procedure, including introducing subsequent amendments, if necessary.

• Reminds all relevant authorities of the importance to ensure that free legal aid is guaranteed for all citizens based on equal standards, provided through a professional, qualified and accountable system and calls those that have not adopted their own free legal aid legislation to do so.

 

On the full alignment of the Law on Courts of Republika Srpska (RS) with relevant HJPC recommendations, the European Commission

• Acknowledges that high level agreement to align the Law on Courts of RS with HJPC Law was reached.

• Notes with concern that such agreement was not translated into adequate legislative amendments, and that communication between the RS Ministry of Justice and HJPC was not fruitful.

• Calls upon the HJPC and RS Ministry of Justice to jointly define, without further delays, the concrete legislative text that reflects their agreement on the principle and that will be drafted in the form of amendments to the RS Law on Courts by the RS Ministry of Justice.

 

On the Law on Prosecutor’s Offices in the FBiH, the European Commission

• Regrets the lack of progress on the adoption of the FBIH Law on Prosecutors Offices, which the FBiH Ministry of Justice committed to have initiated as early as 17 February 2012. Calls for an immediate political engagement and constructive coordination between FBiH and Cantons to ensure this legislation is processed without delays.

 

On the Law on Execution of Criminal Sanctions in FBiH, the European Commission:

• Calls the FBiH Ministry of Justice to comply with its earlier commitments and initiate the legislative procedure.

 

On the Professionalism in the justice sector, the European Commission:

• Welcomes the adoption by the HJPC of a new rulebook on orientation measures for judges and takes note of the good results achieved so far through its implementation.

• Urges that all Courts Presidents enforce without delays the new rulebook and that all judges throughout BiH fully comply with its content. Supports the suggestion to devise orientation measures for prosecutor’s offices as well.

• Calls on the HJPC to continue its efforts to find ways to foster mobility in the sector and further reform the procedures to access judicial careers, as also suggested in the Venice Commission Opinion.

 

On the financing of the justice sector and in particular the reduction of the budgetary fragmentation, the European Commission:

• Recalls that in order to secure independence, efficiency, impartiality, accountability and professionalism of judicial institutions, proper financial resources are needed.

• Supports the efforts to reduce budgetary fragmentation, particularly in the FBiH, in line with the relevant recommendation in the Venice Commission Opinion and expects that all FBiH and Cantonal judicial, executive and legislatives authorities are properly included in the discussion process under the HJPC/Ministry of Justice of BiH coordination forum.

 

On the EU support to the justice sector in BiH, in particular through the IPA 2012-2013 planning exercise, the European Commission:

• Calls on all stakeholders to maintain the positive engagement throughout the final phase of the programming process.

• Reemphasises that constructive engagement in IPA programming is an essential element for the success in the Structured Dialogue and highlights the importance it attaches to help address the backlog of war crimes cases, as well as improve infrastructures with a view to achieve better efficiency of justice institutions.

• Acknowledges that the Supervisory Body performed the needs-assessment for all relevant prosecutor’s offices and courts. Regular updates of the needs (including for investigative capacities, as well as witness protection and support mechanisms) will be taken into account during the implementation of the program.

• Confirms its continued support for the reduction of the backlog of cases through IPA, in particular through the enhancement of the use of information and communication technology in courts and prosecutors’ offices.

 

On the management of infrastructures:

• Expresses concerns about the continued delays with the tendering and contracting of the high Security State Prison project and expects from the BiH Ministry of Justice to reinforce its involvement in support to this project through its leading role in the Management Board and by ensuring the Project Implementation Unit is properly and professionally driven.

• Calls upon the competent authorities to complete all preparatory activities as planned for the Sokolac psychiatric ward to enter into function.

• Supports the FBiH Government conclusion concerning the relocation of the FBiH Special Police Unit from the premises designated to be used by the Prosecutor’s Office of BiH and expects the relocation to be completed by November 2012. Further calls the BiH Attorney General Office to finalize the process of registering the premises under BiH Common Affairs Service ownership and the Council of Ministers to confirm the availability of the financial assistance earlier committed.

 

On the treatment of vulnerable groups in the context of execution of criminal sanctions, the European Commission:

• Calls on the ministries of justice to secure the adoption of harmonised legislations on and related to juvenile justice, and in particular the adoption of the “Law on the Protection and Treatment of Children and Juveniles in Criminal Proceedings” together with all the necessary by-laws in the FBIH.

• Further advocates the enhancement of the professional and institutional capacities of the juvenile justice in BiH to guarantee that conditions and treatment of juveniles in pre-trial detentions or serving a prison sentence are fully compliant with international and national standards and norms.

 

On follow up to the third plenary meeting of the Structured Dialogue, the European Commission:

• Commends the work of the Venice Commission that led to the adoption of the opinion at its 91st plenary session on 15-16 June 2012. Expects that all competent authorities will take stock of the detailed expert assessment provided on several key areas throughout the opinion.

• Recalls the high level consensus reached at the inauguration of the Structured Dialogue, by which amendments to key judicial legislation shall not be put into procedure prior to coordination with EU and domestic consultations, to ensure consistency with the overall structure and EU accession requirements.

• On the specific issue of domestic consultations, reminds to all parties in Bosnia and Herzegovina of the importance for a high degree of coordination and consultation between relevant levels of authority in the process of drafting laws, to ensure that legislation complies with systemic requirements and answers all needs.