B&H Judiciary

Law Amid Parties and Nations

AIM Sarajevo, October 21, 2000

The inquiry into the propriety of judges and public prosecutors conducted by the OHR and various entity and cantonal commissions on the territory of B&H is under way at the moment. For example, the Center for Human Rights has granted Edin Garaplija, the notorious member of AID (secret police of Izetbegovic's party) a new trial and the International Crimes Tribunal for Yugoslavia (ICTY) has licensed the Cantonal Court in Mostar to examine evidence against 23 members of the Fourth Corps indicted for crimes against Croats, an uncommon decision in the light of the attitude the Tribunal has demonstrated towards the local courts up to now. In an attempt to protect their independence and prevent corruption among the dispensers of justice, Office of High Representative of the international community (OHR) has prescribed monthly salaries of two to five thousand German marks for the highest ranking judges in the country. Following years and years of promoting corrupt and politically suitable judges and public prosecutors, battering and excommunication of the adamant, these are the first steps on the road leading to the reconstruction of the B&H judiciary into a truly autonomous profession. Yet, judging by the present state of corruption in the country, the road will be exceptionally long and tiresome.

For the most part, objections to the practice of the judges and public prosecutors refer to the sluggishness of the legal process (many claim, caused by political interests), another major controversial issue being the fact that anonymous charges are being disregarded by the courts. The struggle for the establishment of the State Court, one of the prerequisites for the admission of B&H to the Council of Europe is, sure enough, not being fought either by the Ministerial Council or any other governmental institution but, once again, by the OHR.

One of the most excruciating indicators of the actual state of affairs in the local judicial system is the study concerning B&H judges and public prosecutors entitled "Justice, Responsibility and Social Reconstruction" which will, after being kept a secret for almost a year, be presented to the top representatives of the B&H judiciary and Public Prosecutor's Office, The Hague Tribunal (ICTY), UN Mission and OHR. The authors of the study - Center for Human Rights, the International Clinic for Human Rights of the University of Berkeley and the Center for Human Rights of the University of Sarajevo - have waited long enough to make public the scandalous results of a series of interviews with 36 B&H judges and 6 public prosecutors, carried out with the aim of clarifying their views on subjects such as the Hague Tribunal, the penal proceedings concerning war crimes, the adoption of the international law order and, finally, social reconstruction.

AIM has come into possession of the mentioned study prior to its disclosure and, even after the first reading of the document, it becomes obscenely apparent why the judicial system in B&H has stooped so low. That is to say, the 32 interviewed " chief champions of legality" in B&H are incapable of reconciling views on issues as vital as: which law is, in fact, supreme in the country, whether a B&H Supreme Court should be founded at all and - if genocide ever really took place in their country.

Although all subjects declared themselves to be devoted to the "principles of justice" and identified themselves as professionals "eager to integrate into Western Europe", even at the price of " changes within B&H " - one of them possibly being, as an examinee put it, the necessity "to give up the 'opanak'" (traditional Serbian softsoled footwear), because "we cannot join Europe wearing them" - the study testifies to the decisive impact of the ethnic or, more precisely, party affiliation on standpoints concerning quoted issues. If not for the fact that the judges and prosecutors encompassed by the study are the very same to whom individuals belonging to other nationalities turn to for help, the highly pronounced ethnic/party attitudes of the so called " Sarajevo Group " (12 judges and prosecutors from the predominantly Bosnian part of B&H), the group from Banja Luka (10 subjects from Republic of Srpska and Brcko) and the Mostar Group (10 examinees from the part of the Federation with the Croat majority ) concerning issues such as the responsibility for the outbreak of the war, genocide, the role of the Hague Tribunal and the future of B&H, might not seem as controversial.. But, since the 32 "Righteous", mostly middle-aged men, occupying their posts for 13 to 17 years, are also engaged in trials concerning war crimes and corruption, the fact that, with but a few exceptions, the majority of them does not support the goals proclaimed by the Hague Tribunal - although, as it turned out, most of them couldn't say what they were! - leaves hardly any room for indifference. One of the judges said: "None of us are familiar with the governing principles. Only a few in contact with the Tribunal know a little about the matter, while the rest of us know next to nothing!"

So, what do the judges and prosecutors, according to this study, think about the burning issues in the country? As a reminder, we're dealing here with self-proclaimed professionals, supposedly unwavering in their devotion to the principles and practice of law, resistant to the daily political propaganda - even if it might not seem so, judging from the views they've expressed.

GENOCIDE: The Sarajevo Group believes that the genocide has taken place and that Bosnians are victims of Serb aggression. Srebrenica is the resume of that genocide and aggression. A part of the Banja Luka Group thinks that the genocide did happen, but on all sides, while others have no opinion on the subject since, as one of them put it, " Where I live, we have no information about it" ! On the whole, the Mostar Group is of the opinion that the genocide involving all three nations maybe took place but, on the other hand, maybe not..." In a sense, the genocide both did and didn't happen, since none of the nations was wiped out entirely", runs the confused explanation of one professional lawman.

THE HAGUE TRIBUNAL: The Banja Luka Group opposes the precedence in authority of the Tribunal for War Crimes which, it is said, " is targeting only Serbs ". Paradoxically enough, although all the examinees from this group believe that this institution doesn't influence the everyday life of people in the region in any significant manner and that it is a mere instrument of the Western dictate, only two think that the Tribunal should be dissolved. The Mostar Group, on the other hand, claims that the ICTY is a place of imprisonment reserved solely for the B&H Croats. Even though convinced that it is much better for the Tribunal to be placed in The Hague, in view of the political pressures the judges would be exposed to in B&H, they have also expressed concern regarding the manner in which cases of crimes committed by the Army of B&H against the Bosnian Croats are being handled. According to the Sarajevo Group, the Tribunal is a " neutral and honorable court of law " which should concentrate on those who bear the biggest responsibility for the war. One of the judges admitted that it would be extremely hard to process such cases in the Federation itself because of the " political pressures " coming from various sources, as for example the Ministry of Justice (!?), certain politicians and criminal gangs. Controversial regulations of the international community, for instance, the provision of the Rome Agreement which stipulates that the B&H authorities may pursue and take into custody alleged war criminals only with the approval of the Tribunal, as opposed to the objections of OHR and JSAP on account of the B&H legal system for failing to do so, have contributed considerably to the confusion and intolerance towards the Tribunal too.

WAR IN B&H: The Mostar Group perceives it as an act of aggression of the JNA and Serbia. HVO was a response to the said aggression, because " the Bosnian Croats were the only ones prepared to defend themselves." The opinion of the Sarajevo Group is that the aggression did take place and that Karadzic and Milosevic are responsible for the war. The Banja Luka Group claims that "a civil war was forced on the Serbs" and that there can't be any talk of aggression coming from any of the sides. The disappearance of the Muslim population in some regions of RS was termed as "migration" by one the interviewed subjects. For the most part, the members of this group did not put the blame for the outbreak of the war on individuals, placing it into "broader categories" such as "a nation, the international community, politicians, national parties".

Still, the majority of the examined judges and prosecutors at least agree on two issues: none of them ascribe the responsibility for the war to just one or two of the three nations and all of them regard it as being individual. They also believe that the international community could have done much more in preventing the sufferings.

Researchers have noted that the subjects, though frank in their interviews, avoided provocative questions concerning the relation between law and justice as unfitting due to their "political nature". Five years have gone by since the signing of the Dayton Agreement, but the skepticism of the B&H lawmen towards the Tribunal (whose very existence, to their minds, is a sign of the inadequacy of the B&H legal system) is still enormous and causes concern. Although asked to give a professional opinion rather than their political views on the existence/ absence of genocide, but for a few exceptions, no one offered a legal definition of the term, tending instead to use it in a broader sense of war crimes in general. This strikes the human rights activists as a "mechanism of diluting the responsibility for the war". Nevertheless, by far the most ominous warning of the study is that " the inflexibility demonstrated by the subjects regarding the issue of the responsibility for the war, has serious implications as to the ability of the B&H lawmen to conduct impartial legal proceedings in cases involving war crimes." In post-war societies, the concept of reconciliation has remained vague, while reconstruction is still a controversial issue.

Since, as it seems, year 2000 is to be the year of the Dragon in the B&H judiciary, a law permitting citizens to lodge complaints before the Federal Committee for the Election and Appointment of Judges and Public Prosecutors and the Public Prosecutor's Councils in RS, against judges and prosecutors who, to their judgment, do their jobs poorly, was adopted in May. Obviously dissatisfied with the publicity it received and the almost nil application of the law, OHR launched a more extensive campaign in July in the hope of bringing the offered opportunity closer to the people. The campaign ensued following the announcement of Charles Forrest from JSAP ( the UN B&H Mission's team for the assessment of the local judiciary) that one and all of the 800 judges in the Federation and 400 of their colleagues in RS, including the prosecutors, will, in the course of the next 18 months, be submitted to a thorough reexamination . " I know of many honest judges and prosecutors, but some of their colleagues appointed during the war lack the necessary qualifications. This should be regarded as a sort of a cleansing of the trade which will provide us with a sound basis for a professional practice of law" - said Forrest - stressing at the same time that the number of corrupted judges is small, but that many are subject to political, i.e. party influences.

Matt Hodes from OHR's Department for the Reform of the Judiciary has told AIM that in some cases the choice and appointment of judges and prosecutors was carried out according to political instead of professional standards. Hodes pointed out the perceptibly small number of charges for corruption and abuse of office, particularly in the 10th Canton (the Herzegovinian-Bosnian canton) in which the High Commissioner, because of the inefficiency and partiality of the legal system, removed from office governor Ivan Ivic and mayor Mirko Mihaljevic. An Independent Judicial Commission (IJC) made up of local and international jurists which will, in the next two years, monitor and supervise the practice of the committees for the election and appointment in order to assure the enforcement of law, was established under the patronage of the OHR. Matt Hodes proclaims that IJC will apply sanctions against any member of the committees in cases of inadequate or partial conduct.

Suada Selimovic, member of the Federal Committee for the Election and Appointment of Judges and Chairwoman of the FB&H Supreme Court, has told AIM that the Committee has received 255 complaints up to now and that 90 percent of them refer to the lingering of the legal proceedings and the inefficiency of the judges. According to Selimovic, this was to be expected, a fact she justifies by the shortage of judges and great numbers of cases in some courts: " There are, admittedly, instances of judges who lack professional knowledge and examples of improperly conducted trials but, as of yet, in none of these cases did we find proof that any of the judges consciously delivered a wrong sentence." Up to the present, no charges of corruption were brought before the committee, but the instigation of disciplinary actions against three judges on the grounds of breach of duty is under consideration at the moment. On the other hand, the Federal Committee for the Election and Appointment of Prosecutors is not willing to give out any information about the number and nature of complaints it is processing, since the " proceedings are in progress".

The Committee for the Election and Appointment of the Sarajevo Canton, one of the cantons marked by extremely long-lasting trials, has received around 100 citizens' complaints, only one of them logged by a legal entity. Idriz Kamenica, chairman of the Committee, asserts that not a single case of corruption was brought before it.

Up to this year, a number of the representatives of the law justified the caving in of the profession with the hold the Cantons and the Federation had over them through meager or insufficient incomes. From now on, owing to the recent law regulating the salaries of the judges for instance, guardians of various budgets will not be able to manipulate them any longer. And, according to B&H circumstances, these salaries are not insubstantial : around 2 800 KM for cantonal judges and approximately 3 400 KM for the judges of the Supreme Court. Moreover, judges may no longer be members of any parties or participate in managerial boards of companies.

The existing physical threats, as well as political pressures exerted by various party activists upon the independent judges, remain a threat - as do the evident political affinities towards certain parties of many B&H judges themselves. The reinstalment of the legal system will take time and will require more than the mere retirement of the " old judge ". The social reconstruction of B&H remains in the domain of science-fiction. Some believe, up to the final collapse of the present concept of power which has built corruption even into the legal regulations, legalizing it in this manner as one of the firmest postulates of its rule. Will the November elections be a turning point?

Dzenana ALADZUZ