The Court of Bosnia and Herzegovina has published a thematic issue of the Court Bulletin, which focuses on certain topics of particular importance to the legal and professional public. This issue represents a novelty in its approach, given that, instead of a general overview of case law, one has carefully selected topics that have been of particular interest in the past period.

The central topic of this issue relates to the legality of evidence obtained in criminal proceedings, with special emphasis on the challenges brought by the use of modern means of communication, including encrypted applications. Through a review of domestic and international case law, the Bulletin offers an analysis of legal standards and dilemmas that accompany this complex area, without taking a position, but with the aim of better understanding and professional debate.

The Bulletin has paid particular attention to electoral justice, given the exclusive jurisdiction of the Court of BiH in the matter, and presented the decisions of its appellate panels relating to the premature election campaigning, as well as other novelties resulting from recent amendments to the Election Law.

The third key topic is the right to asylum, where the case law of the first-instance panels of the Court of BiH is analyzed in detail, especially in relation to the issue of the existence of a justified fear of persecution. Taking into account the position of BiH as a transit country, this review is particularly important in the context of current migration trends.

Finally, the Bulletin provides an expert overview of the long-standing polemics regarding the organization of the Court of BiH, with special reference to the draft Law on the Court/Courts of Bosnia and Herzegovina. The emphasis is placed on the legal aspects of this topic, with the note that the authors have distanced themselves from political interpretations and discussions.

By publishing this thematic issue, the Court of Bosnia and Herzegovina once again confirms its commitment to transparency and professional dialogue in the field of justice.

The thematic issue of the Bulletin of the Court of BiH can be found at the following link: link

Below you can find the paper drafted by the Head of the Appellate Division of the Court of BiH, Judge Hilmo Vučinić, and the Legal Advisor at the Appellate Division of the Court of BiH, Nedim Muminović;

Hilmo Vučinić, Judge and President of the Appellate Division of the Court of BiH

Nedim Muminović, Legal Advisor at the Appellate Division of the Court of BiH

1. AN OVERVIEW OF THE DRAFT LAW ON THE COURT/COURTS OF BOSNIA AND HERZEGOVINA

The need for reform of the judicial system at the level of Bosnia and Herzegovina dates back to the development of the Strategy for Justice Sector Reform in Bosnia and Herzegovina for the period 2008-2012. Back then, one could notice the problem of the lack of a Supreme Court of BiH that would contribute to maintaining substantive legal certainty and protecting freedoms and fundamental rights.

Aware of the problem posed by the absence of a Supreme Court of BiH, the Parliamentary Assembly of the Council of Europe has adopted Resolution 1564 (2007) on the “Prosecution of offences falling within the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY)”, calling on the authorities in BiH to, inter alia: “ensure the harmonisation of case law, consider setting up a national supreme court, or grant the powers of a supreme court to an existing court so as to secure legal certainty.”

The lack of consensus during the drafting of the strategy led to the exclusion of certain strategic programs/recommendations from the strategic framework, including the establishment of a Supreme Court of BiH, but a proposal was made for the establishment of an Appellate Court of BiH. Thus, a key reform measure such as the issue of the Supreme Court of BiH ended up being sidelined in favor of the idea of ​​establishing the Appellate Court of BiH.

However, this issue was never really brought up until the beginning of the Structured Dialogue, in the framework of which a series of gatherings, round tables and meetings were held in the period 2011-2015. It is important to note that the dialogue was not held as a strategic response to the failure to implement the Strategy for Justice Sector Reform in BiH for the period 2008-2012, but exclusively to the demands of politicians from Republika Srpska to review the purpose and role of the High Judicial and Prosecutorial Council, the Court of BiH and the Prosecutor's Office of BiH.

During the structured dialogue, the BiH Ministry of Justice drafted the Law on the Courts of Bosnia and Herzegovina, which actually sought to revise the criminal jurisdiction of the Court of Bosnia and Herzegovina, and establish the Appellate/Higher Court of Bosnia and Herzegovina. Although there was talk of specifying this jurisdiction, the proposed draft actually sought to narrow the existing jurisdiction of the Court of BiH.

Judicial reform, with particular reference to the establishment of the Appellate/Higher Court of Bosnia and Herzegovina, was also discussed elsewhere and through various other discussions, proposals and reports, the most significant of which are the opinion of the Venice Commission and the Priebe Report, which also noted the need to establish the Supreme Court of BiH, and to precisely define the jurisdiction of the Court of BiH.

It is important to note that, although international institutions have recommended the establishment of a separate appellate court and the specification of jurisdiction, those issues have never been imposed as obligations, nor has the issue been a condition on Bosnia and Herzegovina's path to the European Union.

The issue of the Law on Courts of Bosnia and Herzegovina was once again raised during 2023 and 2024, but this time viewed through the 14 priorities set forth in the Opinion of the European Commission. According to priority number 4 (inter alia), in order to guarantee legal certainty, it is necessary to establish a judicial body that would be entrusted with ensuring consistent interpretation of law throughout Bosnia and Herzegovina. i.e. such a judicial body should be established that will ensure consistent interpretation of law and harmonization of case law.

When these priorities are carefully analyzed, it can be clearly concluded what the task of Bosnia and Herzegovina really is. The priorities set in this way (i.e. priority number 4) do not mention the obligation to establish an Appellate/Higher Court of Bosnia and Herzegovina at all, nor do they question the current jurisdiction of the Court of Bosnia and Herzegovina. However, the proposed draft law(s) are focused on completely different issues, so the question arises whether they are fulfilling the tasks set in the aforementioned priority at all.

First of all, the public and the professional community have been deprived of knowing how many versions there are and which version of the draft law is being discussed among political elites. On several occasions, completely contradictory information about the drafts was released to the public, with some politicians even stating that they did not know which draft they were supposed to discuss. Also, some media outlets and organizations have criticized the BiH Ministry of Justice for the lack of transparency in the process of drafting this or these draft laws.

According to available information, (at least) two versions have been discussed, i.e. the draft Law on the Courts of Bosnia and Herzegovina and the draft Law on the Court of Bosnia and Herzegovina, but neither of them essentially addresses issues that should ensure the harmonization and consistency of case law.

Instead, the three most important issues in these drafts appear to be as follows: the very title of the law, and the seat and jurisdiction of the Court of Bosnia and Herzegovina.

When it comes to the name of the law, the original version, the Law on the Courts of Bosnia and Herzegovina, has been replaced by a version dubbed the Law on the Court of Bosnia and Herzegovina. It can be concluded from the very title of the latter draft that it does not seek to establish a judicial institution by which to reform the appeals system in the judiciary at the level of Bosnia and Herzegovina. A legitimate question arises as to what is actually achieved with this name of the draft law? It neither fulfils the priority set forth by the European Union nor the recommendations on the establishment of a separate appeals body. It apparently seeks to establish the appellate chamber that already exists under the current Law on the Court of BiH (titled the Appellate Division) and to move it to another location. Therefore, a contradiction arises in the very name and introduction of the law because it does not mention two judicial institutions. On the other hand, the appellate chamber is given certain features characteristic of a separate institution (president, budget, internal structure, etc.), so that the very status of this second-instance institution essentially remains unclear.

The second issue that is being discussed the most is the seat. According to available information, several proposals were discussed: Mostar, Banja Luka, Istočno (East) Sarajevo, and even Doboj. A purely technical issue has been turned into a political issue. However, during this discussion about the seat, no one took into account the objective circumstances, especially the costs to the budget.

This has completely ignored the current capacities of the judicial institutions complex (which is where the Court of BiH, the Prosecutor's Office of BiH, the HJPC and the Court Police are located), which has more than enough space to accommodate the Appellate Court, since the premises where the Appellate Division is currently located could simply be converted into the premises of the new court. The recent construction of the new Prosecutor's Office building has freed up additional premises within the Court of BiH. The use of these premises would be the most economical solution because, in addition to not having to build new premises, the new court could use some of the infrastructure together with the first-instance court. This primarily applies to courtrooms in which large funds have been invested and where the highest security standards have been ensured. Courts of appeal do not hold trials as often as first-instance courts, but they still need to have courtrooms with the highest security standards and a capacity to accommodate multiple persons, so the courtrooms of the new court, although it must have them, would actually be empty most of the time. With the solution that the two courts are located in the same building, the joint use of courtrooms would be ensured, which is a much more rational solution, and such a solution does not contradict any international document that addresses the issue of impartiality of courts and the rule of law. The same applies to the premises for holding persons deprived of their liberty, which could be used jointly by both courts (as they are used today). Then, in the same way, the two courts could have certain joint services, such as security, maintenance, IT, finances, witness protection service, registry offices, etc.

Certainly another very important issue is the proximity of institutions, such as the BiH Prosecutor's Office and the Court Police, which also significantly affects judicial economy and efficiency. The existing complex of judicial institutions was designed in such a way that all key judicial institutions are located in one place for the purpose of efficient operation.

Moving the existing Appellate Division from the current complex of judicial institutions would mean that a large part of the Court's premises should remain empty. Also, the construction of a completely new building in a different seat would imply large financial resources for the construction of the building, new courtrooms, IT network, and the duplication of numerous services. It would also make it more difficult for prosecutors of the BiH Prosecutor's Office to travel to the new location of the court, thus wasting time for work. In addition, financial aspects should not be ignored in terms of additional costs from the budget that would have to be allocated for the transportation of prosecutors and staff to the Appellate Court. The same applies to the court police, which would have to be located in two locations, which again leads to an increase in the state budget expenses. Therefore, locating the seat of the Appellate Court in another place outside Sarajevo would only mean the construction of a completely new infrastructure, additional accumulation of administrative apparatus and the creation of higher costs. Unfortunately, we have not seen any constructive discussions on this.

Furthermore, the most controversial issue in all draft laws is jurisdiction. Before we offer an overview of the proposed solution, it is important to note that the currently valid solution provides a broad framework for establishing the jurisdiction of the Court of BiH for almost all criminal offenses codified in the entity criminal codes and that of the Brčko District, committed in the entire territory of BiH, if such offenses were committed against the interests of Bosnia and Herzegovina. Although there is a need to define this provision set forth in the existing law more precisely, we believe that it provides a better framework for the criminal law protection of the interests of Bosnia and Herzegovina as compared to the proposed solutions.

The proposed solutions (except for criminal offenses prescribed by the Criminal Code of Bosnia and Herzegovina and other laws of BiH) prescribe the jurisdiction of the Court of BiH only for a certain range of criminal offenses from the entity criminal laws, which results in a significant narrowing of the jurisdiction as defined in the currently valid law, i.e. limiting it to only certain areas. As for the areas in question, this is a proposal based on the acquis communautaire of the European Union – under Article 83 of the Treaty on the Functioning of the EU, which actually reflects cross-border cooperation in the fight against crime. However, if we take into account that the proposed solution is rather imprecise with regard to these acts, it is disputable whether the jurisdiction of the Court of BiH can be established only if the act was committed in the territory of two entities and the Brčko District, or the entity and the Brčko District, and not if it was committed in the territory of one of the entities only. The question here is whether something that maintains the acquis communautaire through interstate cooperation is being introduced into Bosnia and Herzegovina through the proposed draft laws as inter-entity cooperation. The currently applicable law does not set such limitations when establishing jurisdiction regardless of the territory in which the criminal act was committed. This draft law completely ignored the fact that the aforementioned Article 83 of the Treaty on the Functioning of the EU states that it refers to the establishment of minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. However, this list is not exhaustive, and the aforementioned article further states that, on the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. Therefore, the purpose of defining specific areas under European Union law is to harmonise laws in the sense of standardising the essential elements of these criminal offences in which states have common interests, and not to establish jurisdiction for such offences. What was ignored by the draft laws is that the European Union has additionally laid down provisions concerning criminal offences affecting the financial interests of the Union in a separate article, which means that it has not limited itself to the criminal offences under Article 83 of the Treaty on the Functioning of the EU. This is especially true when considering that the aforementioned drafts also provide for the jurisdiction of the Court of BiH for the exhaustively listed criminal law areas under Article 83 of the Treaty on the Functioning of the EU if their commission has caused large-scale damage to the state of Bosnia and Herzegovina. Therefore, these drafts completely ignore the fact that large-scale damage to BiH can also be caused by the commission of other criminal offenses, not only those from selected areas. Also, this issue of large-scale damage has been set in general terms, which can also pose a problem in practice when establishing the jurisdiction of the Court of BiH. Therefore, when drafting the law, it was neglected that this article should regulate the establishment of the jurisdiction of the Court of BiH for all criminal offenses from the entity criminal codes and the Criminal Code of the Brčko District that would endanger the state as a protected object.

What is very important to mention is that the provision relating to jurisdiction also mentions certain terminology that is not known in our criminal law (criminal groups), which can also lead to problems when establishing jurisdiction. Therefore, in addition to the previously mentioned controversial issues, there is also the problem of the incompatibility of the proposed drafts with the Criminal Code of BiH.

In addition to these three, most important issues, there are a number of other issues, also rather important for the functioning of the court, or courts. For example, certain competencies of the Ministry of Justice have been introduced that, according to the current legal provisions, are performed by the HJPC, which may eventually lead to duplication of the competencies of these institutions. It is also controversial that, according to the proposed solutions, the President of the Court, i.e. the President of the Appellate Chamber, is supposed to report to the Parliamentary Assembly of Bosnia and Herzegovina on the execution of the budget, which may lead to interference of the legislative authorities with the judicial branch. Likewise, some provisions on the continuity of the Court of BiH are not the most precise, which may lead to problems with regard to the functioning and staffing, and thus also to the start of operation and addressing second-instance cases of the Appellate Court/Chamber. Also, with the entry into force of such proposed legal solutions, one would have to amend a whole series of laws (the Law on the HJPC, the Criminal Procedure Code, the Law on Civil Procedure before the Court of BiH, the Criminal Code of BiH, the Law on Administrative Disputes, the Election Law, the Law on the BiH Prosecutor's Office, the Law on Salaries, etc.). Otherwise, there could be problems in the functioning of the court.

Therefore, all these issues impose the obligation of a wider discussion and in-depth analysis of the proposed solutions. Also, with such proposed solutions, the question arises as to what is actually the objective to be achieved? Strengthening the rule of law or forcing worse solutions to the detriment of the existing ones, and dismantling the Court of Bosnia and Herzegovina? It is indicative that the Court of Bosnia and Herzegovina has so far been, more informally than formally, involved in the process of drafting this law, although the Court of BiH is the most competent to actively participate in it, because the judges of this Court are the ones who apply the aforementioned law in practice.

In the end, it is obvious that the new drafts of the Law on the Court/Courts do not fulfill the tasks set in the above priorities, and that the intention is not to ensure consistent interpretation of law throughout Bosnia and Herzegovina, but rather the issue of EU integration has been skillfully used to redefine the jurisdiction and position of the Court of BiH in the judicial system of Bosnia and Herzegovina.

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