Oslobođenje daily, 21. September 2015

by Amra BRKIĆ-ČEKIĆ

Meddžida Kreso, President of the Court of BiH

THE HJPC MUST APPOINT PROFESSIONAL, NOT LOYAL JUDGES

The solution lies in the reform of the entire judicial sector, starting from the HJPC, which I hold responsible for the biggest problems the judiciary has been facing, and which has done nothing to improve the situation

Given the events that took place over the past eight months, do you believe that the BiH judiciary has found itself in the probably most difficult position so far, and that it is now facing, if we can put it like that, huge difficulties?

- I don't think it is now facing the most difficult situation, but surely there are problems. I believe that the solution lies in the reform of the entire judicial sector, starting from the HJPC, which I hold responsible for the biggest problems the judiciary has been facing, and which has done nothing to improve the situation, then there are the Court of BiH and the BiH Prosecutor's Office, followed by all other judicial institutions on lower levels which also have significant problems, even bigger ones that those experienced by the state judiciary, yet they are not talked about so much.

Ultimatums from the RS

Entity courts and offices of prosecutors have not been under public scrutiny, at least not to the extent the state-level judicial institutions have been, which, as such, leaves them exposed to a greater risk of political control.

Representatives of the judiciary – the Court of BiH and the BiH Prosecutor's Office – have been excluded from the Structured Dialogue. You reacted to that almost immediately after such a decision was made. Has anything changed and will anything change, can anything change at this moment? Which way is the Structured Dialogue actually heading now?

- I have strong arguments to claim that Milorad Dodik has made a mockery of the Structured Dialogue by his continued blackmails and threats, because under constant ultimatums this process is no longer consistent and compliant with the conclusions it has made. If you take a look at the latest events in Brussels, it is quite clear that the talks are not heading in the right direction, which is confirmed by the signed Protocol in which the state- and entity-level ministers of justice agreed, under the auspices of the EU Commissioner (at least that is what the Protocol says) to develop the reform of the Law on Courts in BiH based on the wording of the mentioned law as proposed by the RS Ministry of Justice, which, as such, fulfils all the wishes of Milorad Dodik with regard to the Court of BiH. To be specific: the proposed draft completely removes the jurisdiction of the Court of BiH, which is what Dodik has requested, with the intention to separately define that jurisdiction through amendments to the Criminal Code. In fact, these deft manipulations, as has been the case thus far, might bring us in a situation that a possible adoption of the submitted draft law, with concomitant delays in the adoption of the CC, might create conditions, given the transfer and time vacuum, where we might lose our hitherto jurisdiction. Also, the draft at issue does not include the current organizational structure that has been existent for a long time now, and thanks to which out trial panels have been able to do their job successfully.

Besides, it is envisioned that the justice minister should set the criteria for the exact number of legal officers, which constitutes a direct interference of the executive branch with the affairs of the judicial one, which is unacceptable. The Justice minister has been given additional powers, according to which he can now determine the total number of employees in the courts, and give consent to rulebooks on internal structure, which has not been the case thus far.

OWN TRAP At one of the latest Structured Dialogue meetings, held in Banja Luka, Milorad Dodik realized that the establishment of yet another judicial institution at the state levels actually strengthens the Court of BiH as well, and that it effectively leaves him with no possibility to challenge or abolish it. That is when he stood against his own idea. Therefore, he has fallen into his own trap.

Appellate Court

- The draft law further envisions the establishment of a Higher, not an Appellate Court, whose seat would be in Banja Luka, including a provision that both the Court of BiH and the Higher Court should have the same number of judges from within the ranks of all three constituent peoples, plus a certain number of judges from within the ranks of Others, which is completely unacceptable, for so far the appointments were made based on the 1992 Census, in all courts in BiH as well as in the other state-level institutions.

Will you participate in the Structured Dialogue in some other capacity? As an advisor or…?

- Apparently not, for our profession is in their way here. You know that the Council of Ministers has made a decision on the establishment of a Working Group to participate in those meetings, and that group does not include representatives of the judiciary. Therefore, professional opinions, advice and suggestions are not welcome, which sufficiently speaks for itself. Our interests are represented by two entity-level ministries of justice, and we have had the opportunity to see just how they operate after their first meeting. If they intend to “represent” our interest like this in the future, it seems to me we will fare much better if they do not do so at all.

Is it possible for the ministers of justice to solve problems in the BiH judiciary?

- Of course not, for those are persons who have been appointed to those positions without the necessary professional experience to be able to cope with such complex and above all professional intrinsic matters. I do not want to be misinterpreted, I personally do not have anything against them, perhaps they are experts in the areas in which they operated so far, but facts are facts – and they are not on their side. Those are persons without legal experience, but perhaps that fact was their biggest recommendation for appointment. I have reason to suspect that ministers of justice are not the only ones behind this protocol, since in this particular case they were but the executors of previously agreed decisions coming from certain political centers of power.

Following the Brussels meeting, at which the state- and entity-level ministers of justice and European Commission representatives signed the Protocol on the BiH Judiciary, you warned that it represented a betrayal of the long agreed principles of the Structured Dialogue on the reform of the BiH judiciary. You have also pointed to the slow prosecution of certain cases…

- It is true that the European Commission has abandoned the previously agreed principles and conclusions that had been beyond dispute, pertaining to the jurisdiction of the Court of BiH. That was also the first conclusion of the Structured Dialogue, according to which Article 7 should not be abolished. It was also concluded back then that the jurisdiction of the Court of BiH should neither be augmented nor diminished, but that one should only specify the conditions under which we may take over cases from the entity courts. However, we now see that a Protocol was signed under the auspices of the High Commissioner in which that principle has been left out. And not only that, but European officials, as well as Mr. Paquet, had previously always guaranteed the participation of judicial members in the Structured Dialogue, yet that is no longer the case, not to mention other instances in which the European Commission has given in to the pressures and ultimatums from the RS, as was the case with the 2011 Law on Courts in the RS , which nobody ever mentions any more, which was back then opposed by the RS Association of Judges and Prosecutors, the HJPC, the OSCE and the OHR, because some provisions set forth in the law threatened the independence of the RS judiciary and constituted a violation of the Law on the HJPC.

Secret investigations

Mr. Mirrel, who used to lead this process and negotiations with the former Minister Selman and the then-President of the HJPC Milorad Novković, and an RS Supreme Court judge, agreed to a compromise to let the problematic articles remain unchanged, and that in case of any discrepancy the Law on the HJPC shall have priority. Such an accommodating attitude of the European Commission continued, which we have witnessed at these latest meetings, given that the Law on the Court has now been drafted using the version proposed by the RS Ministry of Justice.

What is your position on the OSCE’s request to have access to war crimes cases?

My position is that OSCE representatives have the right to access the war crimes cases, which is a possibility granted to them by the Dayton Peace Agreement as well as the HJPC Decision issued in 2006, which allowed this organization to have access to all materials. Some 10 years ago the Court of BiH allowed the OSCE to have free access to all documents in war crimes cases, to all hearings held before the Court of BiH in those cases, including those closed to the general public, and we have had no problems with that whatsoever. The truth is that at a certain point there emerged certain vague issues after the introduction of the notion of “secret investigations”, which is, as such, not known by our law. The law only provides for a possibility that certain documents be declared secret, and assigned a degree of confidentiality, but the so-called secret investigation is a completely invented notion.

The truth is that at both the Court of BiH and the BiH Prosecutor's Office there are certain statements taken from protected witnesses that are kept in sealed envelopes, but as far as I know the OSCE never really requested access to this type of material. Personally, I do not have any reason to doubt the good intentions of this organization.

There have been referendum threats again from the RS concerning the Court of BiH and the BiH Prosecutor's Office.

- It is not only now that they are threatening with a referendum. That is an option that has been kept open for years now, and is conveniently used to achieve certain objectives of Milorad Dodik. It would actually be good to finally see the show called “referendum”, after which, I promise you as an experienced lawyer, a big Nothing would happen. We all know that the so-called referendum is by itself unconstitutional, but even if it is eventually carried out and the citizens vote as Milorad Dodik would have them vote, the results of that referendum would be legally null and void – therefore they would not produce any legal consequences. Court decisions are binding, and any incompliance constitutes a criminal act – there is no dilemma about that. Besides, if that happens, the State of Bosnia and Herzegovina would invoke mechanisms of protection it beyond a doubt has at its disposal, and would via Court and Prosecutor's Office of BiH protect itself from any unconstitutional activities. So, let Milorad Dodik finally have that referendum so we could put an end to this narrative he has been using to play the RS citizens for years.

The Center for Security Studies, in collaboration with the Agency for Prevention of Corruption and Coordination of Fight against Corruption, recently presented the results of a survey conducted in the framework of the project named Mapping Corruption Risks in the Security Sector. The survey included 1500 subjects, chosen randomly, 77% of whom believe that security institutions have not done enough to fight corruption, and that the highest level of corruption is present among the judiciary. Can you comment on that, and how to restore public confidence in the judicial system?

I have been saying for a long time now that the situation in the judiciary is not good, and have been pointing to the obvious problems and failures. It wasn’t just me who said that, but also some of my colleagues who are not afraid to speak up about the HJPC’s inertia and its lack of interest to take part in finding a solution to the escalating problems. I have the impression that, for some reason, the HJPC sees themselves as if they are a roof judicial institution in one of the best organized European countries in which everything functions well, and in which the judiciary is on such a level that they need but observe and admire it. That, unfortunately, is not the case here.

Corruption in the judiciary

Certain cases we have had the chance to see give the right to the citizens of this country to suspect the corruption of the entire judiciary. That is why thorough reform is more than necessary, and I above all refer to the HJPC, which must begin to operate in the interest of the profession, by appointing judicial staff that is, above all, well-trained and moral, not loyal.

How would you explain the ever more frequent practice of revoking first-instance verdicts, most often because of errors of fact and violation of the right to a fair trial?

I would respectfully decline to state my opinion, for those are individual judgments.

Would the establishment of an appellate court of BiH change the situation in the BiH judiciary?

As a sign of our cooperative attitude, as former participants in the Structured Dialogue, we accepted Milorad Dodik’s idea on the establishment of an appellate court. However, at one of the latest Structured Dialogue meetings, held in Banja Luka, Milorad Dodik realized that the establishment of yet another judicial institution at the state levels actually strengthens the Court of BiH as well, and that it effectively leaves him with no possibility to challenge or abolish it. That is when he stood against his own idea. Therefore, he has fallen into his own trap, probably because he realized that he cannot, on the one hand, call for a referendum on compliance with the decisions issued by the Court of BiH and the Prosecutor's Office, while on the other hand seeking the establishment of a second-instance court that will only additionally strengthen the position of the Court of BiH and the BiH Prosecutor's Office.