Struggle Against Corruption and Incompetence of the Judiciary

In a country where the judiciary has political masters it is impossible to expect it to efficiently fight against corruption

AIM Sarajevo, 5 September, 1999

As a specific contribution to the struggle against corruption a proposal was launched that the judges and the prosecutors in Bosnia & Herzegovina be paid three thousand convertible marks a month. Those who launched the proposal hope that in this way honesty of the judges and prosecutors could be bought with high salaries and their independence from the political authorities increased. However, few believe that this measure in itself would enable the judiciary to come to grips with corruption, and bring the regime which is above the law within the limits of the legal system.

This is the second time in the past twenty years in B&H that similar measures are proposed with the same explanation, but the problem has remained the same. In October 1983, party leadership in B&H launched a announced with great pomp a campaign for protection of lawfulness in which the courts were given a prominent role. At the time, somebody also thunderously shouted: "The judges are poorly paid!" Inefficiency of the judiciary was justified by low salaries of the employees in the whole chain of social control (the police, inspectors, auditors) which render services to the judiciary, but this assessment was not at all true. Policemen, prosecutors, judges, were extremely efficient, and even rigidly so, if a specific case they prosecuted was backed by a political decision.

What has changed in the meantime? Both then and now, the judiciary was and still is a service of the regime - once it was united, and nowadays, depending on the place of operation, it is in the service of the party in power. Without a political decision it is inconceivable to even se the judicial machinery in motion concerning some serious business. In public life in B&H there is an abundance of accusations of the politicians for meddling in the work of courts, as international officials often tend to say. Has not the head policeman of the Sarajevo canton, Ismet Dahic, on the occasion of the arrest of Ramiz Delalic, revealed that there were political interventions to hush up the whole affair. But there are better examples. Is there a single prosecutor who will in Mostar, for instance, raise charges of his/her own accord against, say, Bruno Stojic and investigate the origins of his wealth? Or in Pale, against Momcilo Krajisnik for his transactions, or in Sarajevo, in order to find out where Fikret Prevljak got the money for the motel on the lake of Jablanica or Bakir Alispahic for the factory of dye? Who was actually taken to court after Biljana Plavsic had provided evidence of crime in Centreks and Selekt-impeks? Is it possible for the judiciary to start an investigation on how political parties are financed or against a high official, who had not fallen into political disfavour? All these are examples which the local press has often written about. Let us say: the prosecutors and judges were not motivated to open complicated and difficult cases because they were poorly paid. But, will they dare do uncompromisingly their jobs once they get 3000 marks a month? They will not, because the presumption of independence of the judiciary and implementation of laws is not solely in the financial position of its officials. If the cadres in the judiciary were obedient with the salary of 700 marks a month, with 3000 convertible marks they will have four times more reason to obey those from the parties in power who issue orders.

The main problem lies in the manner the cadres in the judiciary are selected which is the responsibility of the minister of justice on the level of the entities (in Republika Srpska) or of the cantons in B&H Federation. Practically, nomination of judges is in the hands of political parties. In such conditions an ambitious judge will try to recommend himself as "suitable for the regime" if he wishes to be on the list for nomination and promotion. That is how "loyalty to the party" as the measure of value becomes a more important criterion than loyalty to the state. The result of such a manner of selection is that the judges get political masters who nominate them, but who also have the possibility to punish them for possible disobedience when time of reappointment comes.

When lawlessness and lack of respect for the institutions are added to this, then the judges are stretched between bare pressure and political dependence. In such a situation the law suffers. Only the local politicians are astonished why the foreigners are warning against corruption. In the 1998 report of Transparency International "dominance of mafia-style gangsterism" which rules B&H since the beginning of the war in 1992 is summed up as follows: "Local power-wielders from the world of crime are ready to threaten judges, prosecutors or police officers in order to force them to make certain unprofessional concessions. In Milici, Vlasenica municipality, the judiciary and local police are unable to restrain the local power wielder Rajko Djukic. At the moment he is indicted for more than 20 criminal acts for various deeds, but he has not been taken to court for any of them.

In Novi Travnik, the apartment of the municipal judge was sprinkled with gasoline and set on fire during one night. Nobody has been convicted for this crime. If this is how judges are threatened in Novi Travnik, one should not be surprised that in 1996 Mostar court released Ivica Rajic who was accused of having murdered four Croats in Kiseljak. During the trial, members of the union of volunteers headed by Tuta and Stela were in the courtroom in order to make sure that "the trial would be fair and honest". In Bihac, Bahra Coralic, judge of the municipal court was kidnapped from her apartment and then beaten up because she "gave the autonomy-lovers back their jobs". It is shocking that this case was treated only as another episode of the "black chronicle" and that it did not disturb the politicians or anybody from the cantonal or federal judiciary.

The judiciary in Bosnia & Herzegovina, exposed to pressure and controlled by party leadership, nowadays cannot cope with corruption. In order to at least partly qualify it for this struggle, a profound reform of the judiciary is necessary which must be accompanied by a serious change of the attitude of the state. The International Crisis Group proposed abolishment of the jurisdiction of the cantons and municipalities in nomination of judges and prosecutors. Judges should be selected by a commission for the judiciary, an agency which would be established on the level of the state from the ranks of representatives from the Chamber of Representatives of B&H Federation, from the National Assembly of RS, and a foreign judge who would chair the commission. Along with this proposal comes the recommendation to centralise financing of the judiciary. The idea is that this method of selection judges would ensure their independence from political parties which has so far had the monopoly over it.

But even this is not sufficient. The main issue is consistent division of power among the legislative, the executive and the judicial, as it is stated in the Constitution. However, none of the parliaments in B&H are centres of real power which would be capable of offering judges real protection. Years will pass before the parliament in B&H acquires the needed authority which would be capable of opposing the arbitration of the executive, or rather of parties in power which are running the show in whole of Bosnia.

Emir HABUL

(AIM Sarajevo)