politics intrudes on judge selection - cin.ba · sion set up to interview the candidates and review...

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A Newsletter of the Center for Investigative ReportingN° 4 | Sarajevo, July 25, 2008

Ferhadija 27/I71 000 Sarajevo

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FIrSt puBlISHed Between 6/24/08 - 7/17/08

T he nine judges of the Constitutional Court hold powerful, high-paying positions

at the top of the court system in Bosnia and Herzegovina (BiH). They can examine and cancel the verdicts of every other court in the land, and their decisions become the model for all future decisions in similar cases. And they can serve until they retire at age 70.

But it is harder to become a legal counselor in BiH or a judge in a lower court than it is to rise to one of these prominent nine jobs. Would-be coun-selors or lesser judges must pass exams, have written extensively in their areas of expertise and show years of experi-ence on their resumes. None of that is required of Constitutional Court candidates.

The Constitution set up by the Day-ton Peace Agreement only asks vaguely that top judges be “distinguished jurists of high moral standing.” No law, nor any provision in the Rules of the Court, requires anything more specific.

The issue of who should be appointed to the top court is prominent once again because of a looming vacancy. Hatidža Hadžiosmanović-Mahić is retiring in August as judge and president of the Constitutional Court of BiH.

Fourteen people have applied for the job, which pays 4,200 KM a month. On June 24, the Commission for Selection and Appointments of the Federation of BiH (FBiH) Parliament will discuss the five finalists it has identified and decide which to recommend to the full body. Two of the five have supe-rior legal backgrounds, while two are well-connected politically but have less impressive experience with the law. One has both political and professional credentials.

Picking the Qualified Over the Partisan

A lack of clear qualifications for Constitutional Court judges in the Constitution, law or court rules leaves it mostly up to lawmakers in the two entities to insure that the best qualified

Politics Intrudes on Judge Selection

One danger to the future of BiH’s Constitutional Court is that there are few required

qualifications for top judges, and lawmakers may be unqualified to select good people.

The Constitutional Court of BiH is the highest judicial authority in the country. It is responsible for upholding the Constitution and protecting the human rights it guarantees.

BiH, however, is the only country in the world to have a

Constitutional Court without having a unified Supreme Court. That, and the fact that the Constitutional Court has been given the authority of an appeals court has resulted in such a burden of cases that citizens are waiting increasingly long times for justice.

Many experts also worry that the political independence of the Constitutional Court is endangered by the possibility of entity parliaments ignoring professional qualifications and appointing judges on the basis of political affiliations.

The Center for Investigative Reporting in Sarajevo (CIN) conducted dozens of inter-views with judges, their legal assistants, lawyers and others in examining the efficiency, independence and power of the Constitutional Court.

Many believe that international judges are still essential to the operation of a fair Constitutional Court of BiH. PHOTO: CONSTITuTIONAl COuRT OF BIH

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ConStItutIonal Court: Between law and polItICS - politics Intrudes on Judge Selection

candidates are put on the bench. The Parliament of FBiH selects four of

the top judges; the Republika Srp-ska (RS) Assembly two more and the European Court of Human Rights in Strasbourg chooses three international jurists who also must be approved by the BiH Presidency.

Relying on entity-level politicians to put the best people on the court makes many people nervous. Politicians, legal experts say, have to be tempted, at the very least, to forgo the top legal minds for the candidates most loyal to their own interests.

For example, the Constitution is silent

on the issue of ethnic origin of judges, yet lawmakers have adopted a strict for-mula in practice that does not give an individual’s professional qualifications the highest priority. The Constitutional Court always consists of two Serb, two Croat and two Bosniak judges, in addi-tion to the three internationals.

Earlier this month, High Representa-tive Miroslav lajčak wrote to a working group of the parliamentary commis-sion considering judge candidates and urged that it spell out precisely the qualifications to which the Constitution only alludes.

Judges should be appointed based

on objective criteria that underline their merits, lajcak wrote, including educa-tion, moral integrity, ability and effi-ciency. “Judges should be capable and experienced and properly qualified if we want an independent Constitutional Court.” He also said that better defini-tion of qualifications would improve the transparency of judge selection and help ensure the integrity of the Consti-tutional Court.

The 2005 appointment of Seada Palavrić to the bench put form to fears about encroachment on the court’s political independence.

Palavrić, at the time vice-president of the Party of Democratic Action (SDA), was widely viewed as not as experienced and skilled in law as other candidates. Her competitors held ad-vanced degrees in law and had taught university classes, according to Nurko Pobrić, a judge from the Cantonal Court in Mostar.

Nonetheless, she won the approval of the five-member work group that the Selection and Appointments Commis-sion set up to interview the candidates and review their qualifications.

Two judges on the work group, Pobrić plus Marija Čolić from the Cantonal Court in Odžak, voted against deeming Palavrić qualified. Both favored Kasim Trnka, who had exten-sive judicial experience in the pre-war Constitutional Court of BiH and the Constitutional Court of FBiH.

They were outvoted by the three members of Parliament, two of them

Hatidža Hadžiosmanović-Mahić, the soon-retiring president of the Constitutional Court of BiH, is strongly opposed to the appointment of judges who have as qualifications only their political connections. PHOTO: CONSTITuTIONAl COuRT OF BIH

PHOTO: CONSTITuTIONAl COuRT OF BIH

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ConStItutIonal Court: Between law and polItICS - politics Intrudes on Judge Selection

SDA party members, who formed the rest of the work group. The commis-sion then included Palavrić on a list of qualified candidates it handed over to Parliament. In a secret ballot she was picked for the judgeship.

In 2007, Krstan Simić, vice president of the Alliance of Independent Social Democrats (SNSD), the party of RS Prime Minister Milorad Dodik, was ap-pointed to the Constitutional Court. The RS Assembly made the appointment us-ing a procedure much like that of their counterparts in the FBiH. Simić, how-ever, had been a prominent lawer who defended former RS president Biljana Plavšić, the most prominent political figure to be convicted of war crimes, before the Hague Tribunal.

Mahić, who is strongly opposed to the political appointment of judges, has few complaints about Simić, whom she desribed as profesional, easy to work with and someone who “observes things in a judicial manner.”

Recognizing Good CandidatesZvonko Mijan, the acting registrar of

the Constitutional Court, believes the fundamental problem in selecting good judges arises not from a lack of guid-ance from the Constitution, but rather the inability of members of Parliament to make sound decisions on judiciary positions.

The people deciding on appoint-ments to the court are doctors, engi-neers and other professionals uncon-nected to law, and simply don’t know, in

his view, who is the most qualified. “Had somebody put me on the commission to select a doctor, I would thank them and say I can’t do it and I don’t know how,” said Mijan.

Of the 11 members of the Selection and Appointments Commission, only one is a lawyer, Munib Jusufović, who was sentenced by the Appeals Court in Brčko in 2004 for abuse of official position while head of the Ravne Municipality in Brčko. A pardon from the BiH Presidency saved Jusufović from serving any prison time. Triggered by this case, th en-High Representative Paddy Ashdown revoked the law on pardons.

Commission President Ismet Osmanović and member Muhamed Ibrahimović have master’s degrees in political science. Other members include a biologist, an ophthalmologist, engineers, a graduate of comparative literature and librarianship and a pop singer studying management at the Sa-rajevo university School of Economics.

How to Raise the QualificationsIn 2005, the Selection and Appoint-

ments Commission took the initiative to come up with new judge selection criteria compatible to what the High Judicial and Prosecutorial Council adopted for the regular courts in BiH, which it oversees.

This came about after the commission put out ads for a judge opening that called specifically for Bosniaks to apply. The court declared this discriminatory

and unconstitutional. To amend the judge selection criteria, the court said, required a change to the Constitution.

Constitutional changes require a two-thirds vote of both houses of the BiH Parliament, a degree of consensus difficult to achieve because of political division in the country and reluctance to make structural changes that weaken the entities.

A senior legal advisor to the Constitu-tional Court, who is one of the five final-ists for the current vacancy, said there are ways around the ruling. Sevima Sali-Terzić suggested that the Constitu-tional Court could add to the qualifica-tions required of a judge by amending its own internal regulations called The Rules of the Constitutional Court of BiH.

The rules are intended to regulate the daily procedures the Court follows. One such rule, for example, requires that the entity parliaments secure the opinion of the court about any candi-dates under consideration for appoint-ment. Entity lawmakers are not bound by these opinions, but they can be influenced by them.

Sali-Terzić said in the same way that the court in the past has regulated the duties and role of judges and granted judges immunity from criminal pros-ecution, it could regulate the conditions for the selection of judges through the rules.

Quality of Seated JudgesWhile experts warn of the dangers,

there is little evidence that the Consti-tutional Court has been hindered by incompetent or politically motivated judges, just the opposite.

“I see solid legal standpoints being taken and I see real experts working there,” said Bijeljina lawyer Slobodan Cvijetić, who admits that he sometimes feels smarter than some of the lower court judges he presents cases to. He can see their mistakes. That does not happen before the Constitutional Court, he said. “There are working people who know their business.”

Similarly, Adil lozo, a Travnik lawyer said: “Even when the Constitutional Court brings decisions that are not in my or my clients’ favor, my colleagues and I stand strongly in support of the court. We believe that the Court stands on the healthy foundation of the Euro-pean law and Convention on Human Rights.”

Before she was appointed to the country’s highest judiciary body, party politician Seada Palavrić had not spent a day working in a court body.PHOTO: CONSTITuTIONAl COuRT OF BIH

Judge Krstan Simić had strong party connections at the time of his appointment to the court, but he also has extensive legal experience.PHOTO: CONSTITuTIONAl COuRT OF BIH

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ConStItutIonal Court: Between law and polItICS

O f the five finalists for the judgeship that will open in August when Constitutional

Court of Bosnia and Herzegovina (BiH) President Hatidža Hadžiosmanović-Mahić retires, two have extensive legal expertise and experience, but neither is favored to win the job.

Sevema Sali-Terzić has been a senior legal advisor in the Constitutional Court since 2004, and Faris Vehabović, now a judge on the Federation of BiH (FBiH) Constitutional Court, is a former reg-istrar of the state-level Constitutional Court.

But the other three candidates all have strong political connections that they lack. The opening is one of four on the nine-member court that the Parliament of FBiH fills.

Court watchers say the most formida-ble candidate may be Damir Arnaut, who has had an extensive legal career and is a member of the Party for BiH (SBiH).

Fourteen people in all applied for the judgeship. A five-person work group that studied resumes and interviewed applicants winnowed the list to five, and the Selection and Appointments Commission of the FBiH Parliament will now turn over one or more of the five names to the full Parliament for voting. The Commission is set to meet on that matter June 24.

Here is a look at all five judge candidates:

Sevima Sali-Terzi} Sali-Terzić has been a senior legal

advisor in the Constitutional Court for four years. A Sarajevo native, Sali-Terzić, 47, graduated from the Sarajevo law School in 1983.

She began her career with Dunav, a Sarajevo insurance company. She spent the first two years of the war as a lawyer in the Stari Grad Municipality and the next two as a judge in the civil law department of the Basic Court I in Sara-jevo. From 1997 to 2004 she was head of Global Rights - Partners for Justice in BiH, where she promoted civil society and human rights.

She has written and coauthored a number of publications on hu-man rights and discrimination and is considered an expert on the European Convention on Human Rights and Fun-damental Freedoms.

Amor Ma{ovi} Mašović was born in Sarajevo in

1955 and graduated from the city’s law School. He began his career as an intern in his father’s and uncle’s law firm and worked as a lawyer until the war broke out.

He then worked on a commission for the exchange of prisoners of war that later became the State Committee for the Search of Missing Persons. He has been involved in the discovery and exhumation of bodies from more than 3,350 mass and individual graves. He and his team have found about 18,000 individual remains, mostly Bosniaks.

A member of the Democratic Action Party (SDA), he has held public posi-tions from 1998 to the present. He is a member of the House of Representa-tives of the Parliament of the FBiH.

Damir ArnautArnaut holds a Ph.D. in law from the

university of California at Berkley in the u.S. In addition to fluent English, he also speaks French and German.

A run-down of the top contenders to become the new judge of the Constitutional Court of BiH.

Skeptics Say Job Will Go to the Strongest Party

Candidate

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ConStItutIonal Court: Between law and polItICS - Skeptics Say Job will Go to the Strongest party Candidate

He is a former legal assistant for the American State Department, where he worked on cases involving the united Nations and associated international organizations. In 2006 he worked for the White and Case llP international law firm in Washington. last year he became the advisor for constitutional and legal matters for BiH Presidency member Haris Silajdžić.

Faris Vehabovi}Vehabović, 41, is another Sarajevo

native and graduate of the Sarajevo law School. From 1992 to 1996 he worked for the Sarajevo police and then became a lawyer for the office of the Human Rights Ombudsman of BiH. He began working at the Constitutional Court of BiH in 2001 as registrar. He is now a judge in the Constitutional Court

of FBiH. Fluent in English, he holds a

master’s degree in European studies from the Center for Interdisciplinary Postgraduate Studies of the university of Sarajevo and university of Bolo-gna. His thesis was on “Relation of the Constitutions of BiH and European Convention: Role of the Constitutional Court of BiH and possible development directions.”

He has also studied human rights and democracy at the university of Bolo-gna and the Institute Balkanica. He has trained and worked with the European Court of Human Rights in Strasbourg.

Mirsad ]emanĆeman, born in 1955 in the village of

Miljanovci near Tešanj, graduated from

the Banja luka law School and then went to work in the legal department of the Tešanj Munici-pality. After two years he went to work for the Energoinvest RO Enker spark-plug company, where he remained until 1990.

He quit as head of the Municipality Executive Board at that time to work in the legislative body of the Zenica-Doboj Canton and in the Parliament of FBiH.

He became a senior SDA official and worked in Parliament on committees dealing with human rights and con-stitutional matters. He passed his bar examination in 1998 at the age of 43. last year he left the party to dedicate himself to his legal practice.

The Candidates

Amor Mašović has the least professional experience of the candidates, but he has been politically active for years and is the best-known. PHOTO: OSlOBOĐENJE

Amor Ma{ovi}

The only experience in constitutional law Mirsad Ćeman has had is as a member of various parliamentary committees during his political career in SDA.

Mirsad ]eman

Sevima Sali-Terzić is an acclaimed jurist with a long career in human rights.

Faris Vehabović worked as registrar of the Constitutional Court of BiH for almost seven years.

Damir Arnaut is the only nominee who has both the political connections and professional qualifications to win an easy appointment to the Court.

Sevima Sali-Terzi}

Faris Vehabovi}

Damir Arnaut

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M irsad Ćeman, a former high official of the Party of Democratic Action (SDA), was appointed judge of the Constitutional Court of Bosnia and

Herzegovina (BiH) Thursday by a majority of votes from the members of the House of Representatives of the Parliament of the Federation of BiH (FBiH).

The former MP for the SDA, currently a practicing law-yer, received the most votes in both rounds of a runoff in secret voting to defeat the youngest candidate, 33-year-old old Damir Arnaut, an advisor for constitutional and legal matters for BiH Presidency member Haris Silajdžić. Ćeman’s selection was affirmed twice publicly by the voters, who granted him the majority of votes. The second public vote was conducted at the insistence of Munib Jusufović, MP for Silajdžić’s Party for BiH. In that final vote, Ćeman won 54-19, with four abstentions.

In the second round, Ćeman obtained the support of the leading opposition party, the Social Democratic Party (SDP), whose MP Damir Mašić asked how it was possible for Arnaut, a person who hadn’t even accredited his American university degree for employment purposes in BiH, and has only one year of work experience in this country, to enter the final contest for the position of judge of this court. Ar-naut earned his bachelor’s degree and later his master’s and Ph.D. degrees with honors in the united States.

The president of the Commission for Selection and Ap-pointments, Ismet Osmanović, said the committee knew

that his degree wasn’t accredited, while commission mem-ber Amila Alikadić-Husović said that three foreign judges working at this court hadn’t accredited their degrees either.

Although the majority of MPs said they believe that Ćeman meets the professional requirements for this job, some MPs stated that the major factor in his appointment was political, and that precise criteria for the future choice of judges of the Constitutional Court of BiH need to be established. Currently, the Constitution requires that judges be only “distinguished jurists of high moral standing.” They serve until age 70, unless they retire or are removed by their colleagues.

The new judge is one of the 14 candidates who participat-ed in the April contest, which was prompted by the retire-ment of Judge Hatidža Hadžiosmanović-Mahić. The Com-mission for Selection and Appointments narrowed down the list to five candidates and recommended the House of Representatives choose a new judge by secret voting. Amor Mašović, Faris Vehabović, the former registrar for the Consti-tutional Court of BiH, and Sevima Sali-Terzić, a senior legal advisor in this court, failed to make it to the second round.

Ćeman, born in 1955 in the village of Miljanovci near Tešanj, graduated from the Banja luka law School and then went to work in the legal department of the Tešanj Municipality. After two years he went to work for the Ener-goinvest RO Enker sparkplug company, where he remained until 1990.

He quit as head of the Municipality Executive Board at that time to work in the legislative body of the Zenica-Doboj Canton and in the Parliament of FBiH.

He became a senior SDA official and worked in Parliament on committees dealing with human rights and constitu-tional matters. He passed his bar examination in 1998 at the age of 43.

P olitics again turned out to be the deciding factor in the election last week of a judge for

the Constitutional Court of Bosnia and Herzegovina (BiH).

Members of the House of Represen-tatives of the Federation of BiH (FBiH) Parliament June 26 eliminated the two candidates with the most professional experience, Sevima Sali-Terzić and Faris Vehabović, in favor of the least profes-sionally qualified candidate, Mirsad

Ćeman. He has spent most of his legal career as a lawyer for a spark plug company and was a former high official and MP of the ruling Democratic Action Party (SDA). Some say the fact that the two candidates with the strongest party credentials were finalists for the post is further evidence that political affiliation plays the key role in choosing a judge, and that this needs to be changed.

An original list of 14 candidates was cut to five by the Parliamentary

Commission for Selection and Appointments. In the first of four rounds of voting, Ćeman received 31 votes, three more than his chief opponent, Damir Arnaut, who is advisor of constitutional and legal matters for BiH Presidency member Haris Silajdžić. Supported by the Party for BiH (SBiH), he received his Ph.D. degree in law with honors from one of the premier universities in the united States.

Ćeman and Arnaut advanced to a new round of voting ahead of three op-ponents. Vehabović is a former lawyer for the office of the Human Rights Ombudsman of BiH, a former registrar for the Constitutional Court of BiH, and a judge in the Constitutional Court of FBiH. Sali-Terzić has been a senior legal advisor in the Constitutional Court for four years and spent two years each as a lawyer in the Stari Grad Municipality and a judge in Basic Court in Sarajevo. Amor Mašović is a high official of the SDA and also a director for the State

appointed by majority of votes from the members of FBiH parliament

Mirsad ]eman is New Judge of the Constitutional Court of BiH

newS - June 25th 2008

The House of Representatives of the FBiH Parliament turned its backs on Constitutional

Court Judge candidates with strong legal credentials in favor of an SDA party leader. Many

say the selection process needs reform.

MPs Again Put Politics over Qualifications for Judgeship

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Committee for the Search of Missing Persons.

Ćeman said that before he decided to run for judge, some members of the academic community assured him that he could do the job, and that he would not like to believe he was elected solely on the basis of his political affiliations.

“Politics are not irrelevant, because the members of Parliament choose the judge,” he said. “So either I or someone else had to be chosen by a combination of votes of many political parties.”

The selection commission suggested that voting be secret so that MPs could vote without fear of pressure from their political parties. Member of the SBiH, Munib Jusufović, countered that vot-ing should be public “because of the politicizing of the appointment and the doubts that were raised.” Other party members pointed out that more im-portant decisions were made by public voting.

Aida Čikić, an MP for the SBiH, said, “laws and constitutional changes are made publicly in this Parliament. Every-thing here is done publicly, so I see no reason why this should not be.”

As a compromise, the two top candi-dates were elected by secret ballot, but Ćeman’s appointment was confirmed in a public, roll-call vote. In that vote, he received 54 of 98 votes. Many MPs said they believe he was a good choice, although they did not deny that his po-litical background significantly affected the outcome.

“Appointment of judges of the Constitutional Court is a political mat-ter, and there is no doubt about that,” said Damir Mašić, an MP for the Social Democratic Party, the leading opposi-tion party.

Mašić said that Ćeman was not his favorite in the first round, but that he believes Ćeman is a better choice than Arnaut. Nevertheless, Mašić empha-sized that people should not delude themselves that the candidate with the best professional qualifications was chosen for the job.

Mato Franjičević, an MP for the Croa-tian Democratic Party (HDZ), pointed out that party support can sometimes coincide with professional qualifications.

“I do not doubt that he will make a good judge of the Constitutional Court because of his political experi-ence, maybe precisely because of that,” Franjičević said.

Writer Marko Vešović, MP for the SBiH, said he thinks prominent political figures should not be judges, but there is no prohibition against it.

“Since the law allows that, we must either respect it or alter it,” Vešović said.

The BiH Constitution, which is part of the Dayton Peace Agreement, states only that the judges, which have the highest judicial authority in BiH, must be “prominent jurists of high moral standing.” Such vague criteria leave much room for interpretation.

In 2005 and in April of this year, the Of-fice of the High Representative suggested that Parliament establish better criteria.

The suggestion was not acted upon.MP Muhamed Ibrahimović suggested

last week that that Parliament or the working group in charge write regula-tions on the criteria for judge appoint-ments. That went ignored as well.

Mašić said more precise criteria should be established so that “embar-rassing situations like the one that occurred during the last election of a judge for the Constitutional Court would not happen again.”

In 2005, Seada Palavrić, vice president of the SDA, who did not have much work experience, was appointed over her opponent Kasim Trnka, a prominent legal expert, professor and judge of the

Constitutional Court of FBiH.“The whole country, literally every-

one, laughed at the Parliament because of the last election of a judge to the Constitutional Court,” said Mašić.

One reason the FBiH Parliament did not consider Ibrahimović’s proposition in more depth is that the new criteria would not have influenced Ćeman’s ap-pointment, and the next judge opening is not anticipated for years. The Consti-tution allows judges to serve until age 70 or until they retire or are removed by the other judges. The FBiH Parliament is charged with filling four judgeships on the court, and currently the oldest

of those officeholders, Mato Tadić, has 14 years to serve. The Republika Srpska selects two judges and of those, the oldest is Krstan Simić, who is a decade away from mandatory retirement.

Franjičević said politics influences the choice of judges, but this does not mar the reputation of the court. He said he hopes the judges will be able to differentiate between arguments and political desires and pressure “despite the fact they came to their position due to political affiliation.”

Vehabović said politically influenced appointments “become an epidemic fatal to the work of the Constitutional Court.” Interference of politics in the

Muhamed Ibrahimović, an MP for the SDA in the FBiH Parliament, has suggested the criteria for the appointment of judges should be more precise.

ConStItutIonal Court: Between law and polItICS - Mps again put politics over Qualifications for Judgeship

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T he appointment of the former member of the Party of Democratic Action (SDA) presidency Mirsad Ćeman as a judge of the Constitutional Court of Bosnia and Herzegovina (BiH) is yet another confirmation of the strong

political influence on the most important judicial institution in the country. last week, already in the first of the four rounds of voting, the Federation of BiH

Parliament shunned experts with extensive experience and opted for Ćeman, a former MP without a single day of working experience as a judge or in the court system.

MPs point out that Ćeman’s politics are moderate and fair and that he is well

acquainted with the Constitution. But they admit politics again were critical, as they were when the Republika Srpska Parliament made its last appointment: Krstan Simić, then vice president of Alliance of Independent Social Democrats (SNSD).

Appointing judges with extensive political backgrounds is an attempt to elect the loyal and the obedient. It happens even in the oldest democracies, but some countries like Germany try to balance professional qualifications and politics. The reputation of judges, and of the Constitutional Court itself, will remain clouded until the Constitution is amended or a law demanding precise qualifications for judges is passed.

election of judges can result in mistrust on the part of the citizens, he said.

“Personally I have nothing against the elected candidate, but the way judges are appointed is something that is going to leave far greater consequences on the work of this court,” Vehabović said.

Sali-Terzić also said she believes that the judiciary is tainted by politically motivated appointments. She said the procedure was “a farce,” and unnecessary.

“The Constitution does not specify that there should be a contest at all, so parties should conveniently arrange it

among themselves and pick someone without a contest and without pretend-ing their work is actually transparent, because, as we could see, that has noth-ing to do with the way things are,” said Sali-Terzić.

Arnaut said he believes the only real problem is “when political affili-ation alone determines the election of judges. Everywhere in the world political institutions appoint judges to the highest courts. The problem in our country is that political affiliation is the sole criterion.”

Hatidža Hadžiosmanović-Mahić, the judge Ćeman will replace, would not comment directly on his appointment. “Those others were appointed, too, Mrs. Palavrić, [Krstan] Simić, who until recently was associated with [RS Prime Minister] Dodik, and nothing happened. If they could come, why shouldn’t he? I’m not surprised,” she said.

Hadžiosmanović-Mahić said she can’t predict how Ćeman’s political affiliation will influence his work and reputation.

As president of the court, “I did not let them do whatever they want. Whether these [judges] will or not, I cannot tell,” she said.

Court and PoliticsBy Aldijana Omeragi}

Aldijana Omeragić

ConStItutIonal Court: Between law and polItICS - Mps again put politics over Qualifications for Judgeship


Mirsad Ćeman, a former member of the presidency of the SDA, is the newest judge of the Constitutional Court of BiH thanks to his appointment in June by the FBiH Parliament.

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W hen the municipality of Velika Kladuša expropriated Ahmet and Šefik Ćufurović’s

house and land near Hajrat for a quarry in 1986, the brothers protested. They appealed to government agencies for fair compensation but received no help. So they put their trust in the law and filed lawsuits in Basic Court.

Before it was over, their case would wind its way through at least six courts leading up to the Constitutional Court of Bosnia and Herzegovina (BiH). In the meantime, war broke out, raged, and peace returned. Yugoslavia disap-peared, and they found themselves living in a new country.

On Feb. 15, 2007 – 21 years later – the Constitutional Court finally ruled. In what probably did not come as a sur-prise to the brothers, the judges found

that the Ćufurovićs’ basic human right to a speedy trial had been violated. The court ordered a local court to decide the property matter promptly. In late May 2007, a local court delayed its deci-sion. Ahmed died five months later. The case remains active.

This may be an extreme case. But if the Ćufurović brothers brought the same lawsuit today, there is no guar-antee they’d have a ruling in less than a decade, say many of the 40 current and past judges, administrators, lawyers and other users of the court who were interviewed for this story.

Case Logjam in the Constitutional Court

The BiH Constitutional Court is the highest judicial authority in the land. It is charged with the critical task of

assuring that the entities and central government adhere to the Constitu-tion. But the approximately 20 cases per year that deal with those constitutional issues represent only a tiny fraction of the court’s work. Of the 9,987 cases the court received between 2005 and 2007, only 63, or 0.63 percent, were consti-tutional cases. The rest were appeals from lower courts. Thousands of these appeals each year are stretching the court’s capacity to the limit, distracting judges and the advisers who prepare cases for them from their primary focus on the constitutionality of laws, court watchers say.

“The court is in danger of being swamped” by appeals cases, said professor David Feldman, one of three international judges on the court. He said the growing case load was his No. 1 concern at the court.

Rajko Kuzmanović, president of the Republika Srpska (RS) Academy of Arts and Sciences, a former judge and president of the RS Constitutional Court, said, “The court falls into a daily grind, and matters that are important and for which the court was established physically catch up.” The constitutional justices become clerks, which is not good.

According to Article VI of the Con-stitution of BiH written into the 1995

The court charged with upholding the Constitution of BiH must also hear all appeals

from the lower courts, leaving it hard-pressed to keep up with its primary duty.

Glut of Cases SlowsHighest Court


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Dayton Peace Agreement, the sole duty of the nine-judge court is to uphold the Constitution. On one hand, it is respon-sible for deciding disputes between the entities, between the entities and the nation and issues involving national institutions. This includes ruling on the constitutionality of all laws.On the other hand, the court has the last word on all cases appealed from lower courts on constitutional grounds, usually concerning human rights, About 3,500 of these cases were filed each year in 2006 and 2007, up from about 2,700 cases in 2005. The court began 2008 with a backlog of 4,582 cases. Partly as a result, a case filed today will take 18 to 24 months to be decided. A number of these cases seem unworthy of the high-est court, some say.

“We have a target of 12 months” to hear cases, said Judge Feld-man, but he conceded that the court has been slipping further and further from that goal.

“There is an appeal for the costs of proceedings for 132 KM, and we get that case,” said Dušan Kalamber, secretary general of the Constitutional Court. “And it is admissible because it is within the [allowable] time frame, and we have to process it and lose time on it because of 132 KM.”

Constitutional cases, more com-plex and often requiring exten-sive correspondence with state institutions, can take even more time to work through than ap-peals. The judges and their advi-sors say that constitutional cases have priority, and they won’t wait in line with the thousands of appeals. But the same staff of 18 legal advisers prepares both kinds of cases, and the same judges hear them and thus share the burden. Appeals cases are heard by the Council of Five Bosnian judges, while the full court of nine judges, including three internationals, hears constitutional cases.

It is possible that human rights cases could be decided on hurriedly, said Kuzmanović, adding that many other countries have the same problem.

The vast majority of appeals are unsuccessful. Human rights violations are found in less than 5 percent of appeals, according to court records.

Kasim Trnka, an Federation of BiH

(FBiH) constitutional judge, agreed, saying ongoing debates worldwide are looking for a balance between the protection of human rights and the removal of all unjustified appeals from the courts.

Because cases appealed to the Con-stitutional Court must work their way through the lower court system before being referred to the highest court, citi-zens can wait as long as 10 years for the privilege of a Constitutional Court hear-ing, court watchers say. Cases filed in municipal court must pass up through the cantonal and supreme courts in FBiH before proceeding to the Constitu-tional Court. A parallel system exists in the RS. Each of these courts suffers from case logjams of their own.

Attorneys say they feel a duty to their clients to appeal cases to the Constitu-tional Court.

“I don’t want to miss an opportu-nity to save my client,” said Slobodan Cvijetić, a lawyer from Bijeljina.

until recently, even those appellants whose case was rejected by the court had to wait years to learn the bad news. Administrators often ruled a year or more after the appeal was filed that a

case can not be heard because proper paperwork was not filed or because the case did not concern human right.

The court recently has taken steps to stem the flow of less important cases. Since early 2008, legal advisors assigned to the new Department for Evaluation of Acceptability review cases and reject those that don’t meet the court’s criteria. A court spokesperson said it should be apparent at year’s end whether this case filtering process will ease the case backlog.

“This new department shows good results,” said Zvonko Mijan, acting regis-trar of the court. “We are talking about hundreds of cases already removed by the short procedure. The most impor-tant thing is that people don’t have

to wait a year or two to find out their case was rejected for formal reasons,” he said. But some jurists and court watchers want deeper reform.

New Court, or Clean Up the Present Ones?

Ideas about how to eliminate the Constitutional Court logjam and free the judges to focus on constitutional matters of state fall into two categories: fix the existing system or create a new court.

Branko Perić, former president of the High Judicial and Prosecutorial Council, which has no power over constitutional courts, but for all other courts, appoints and removes judges and prosecutors and hears complaints against their work said appeals should fall under the jurisdiction of entity supreme courts.

“The Constitutional Court can throw out the decisions of regular courts, and this is viewed as the Constitutional Court’s jurisdic-tion,” said Perić. “It’s not normal that this is so. This is not the case

anywhere else in the world.”Constitutional Court president

Hatidža Hadžiosmanović-Mahić agreed, saying the court should deal exclusively with the constitutional cases of state.

“However, the constitution also furnished us with appellate jurisdiction. That is terrible, this is why we have such an influx,” she said.

Others said cutting off the flow of ap-peals at the entity supreme court level

ConStItutIonal Court: Between law and polItICS - Glut of Cases Slows Highest Court

Valerija Galić, a Croat judge on the Constitutional Court of BiH, said the court is so slow that it comes close to violating the right to a speedy trial. PHOTO: CONSTITuTIONAl COuRT OF BIH

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doesn’t go far enough. They call for the establishment of a national supreme court that would hear appeals from the lower courts.

“I would like to see, I always wanted to see, regardless of our work-load, a Supreme Court of BiH,” said Hadžiosmanović-Mahić. “Besides civil, criminal and administrative depart-ments, there would be another one, an appeals department, and it could deal with appeals. let them be removed from the jurisdiction of the Constitu-tional Court.”

Ćazim Sadiković, former Constitu-tional Court vice president, said BiH is the only country in Europe that lacks a national supreme court.

“This means that the state has an invalid judicial system, which means that it doesn’t have a judiciary suitable for the modern needs of individuals and society. In that sense, we are in the Medieval Age.”

The Constitution doesn’t provide for a national supreme court, but that’s not an insurmountable problem, said Professor Omer Ibrahimagić, former president of the Constitutional Court of FBiH.

“The OHR-created Court of BiH and the BiH Prosecution Office were estab-lished without provisions in Dayton,” he said.

Constitutional Court Judge Valerija Galić said she believes that appeals

jurisdiction is important, and she does not want to see it taken away from the Constitutional Court.

“Yes, it does increase workload…but I think it is very important for complete protection of human rights,” she said.

Sevima Sali-Terzić, a senior legal advi-sor in the Constitutional Court and an unsuccessful candidate for a judgeship in the June selection, said she believes that increased efficiency of the lower court system could reduce the number of appeals and break the Constitutional Court’s case logjam. That would mean simpler procedures, internal re-organi-zation and better use of staff. The court should be educating lawyers and others about what kinds of cases the constitu-tional court will accept, she said.

It soon will become even more critical that the court be free to pursue consti-tutional cases, as the “OHR’s transition to an Eu-lead office will mean that the Constitutional Court will be the only arbitrator in disputes between different levels of government,” the High Repre-sentative said in May.

Court Rulings IgnoredThe Constitutional Court’s challenges

don’t stop with a glut of cases, critics say. Some rulings, especially those that involve high-level politicians or govern-ment agencies accused of human rights violations, stymie the state prosecutor’s office, they say.

Over the past three years, 20 rul-ings out of 6,269 handed down by the Constitutional Court have not been enforced.

For example, in three 2006 rulings (AP 1226/05, AP 129/04, and AP 228/04) the Constitutional Court ordered entity and Brčko officials and the BiH Council of Ministers to enforce provisions of

the law on Missing Persons. The cases were filed by 475 individuals who lost relatives during the war. The court ruled that they had the right to information about the fate of their loved ones.

The 2004 law, largely ignored, re-quires the government to set up and provide resources for the Institute for Missing Persons, the Fund for Providing Assistance to the Families of Missing Persons of BiH and the Central Registry of Missing Persons of BiH. The fund was to provide financial aid to the families while the registry was to put together entity records to help determine the fate of missing persons.

In its ruling, the Constitutional Court clearly defined steps the authorities must take. But nothing happened, and prosecutors have not followed up, according to the court and the prosecu-tor’s office.

Failure to enforce a ruling consti-tutes a crime and is punishable by imprisonment from six months to five years, according to the criminal code. The person who fails to implement a decision of the court goes to jail. When the court has established that its ruling has not been enforced past the dead-line, it renders a decision on the lack of enforcement and passes it to the chief prosecutor of the BiH Prosecutor’s Of-fice. The prosecutor is obliged to treat this as a criminal complaint.

A spokesperson for the prosecutor’s office said that indictments were not filed in this case because the Constitu-tional Court’s rulings are too broad and simply blamed agencies and not the politicians who run the agencies.

Court watchers say it is ironic that too often in considering human rights cases, the Constitutional Court is violat-ing the human right to a speedy trial.

ConStItutIonal Court: Between law and polItICS - Glut of Cases Slows Highest Court

Constitutional Court of BiH

British Judge David Feldman said that the Constitutional Court proceedings he participates in are always professional and do not center on politics or nationalism.PHOTO: CONSTITuTIONAl COuRT OF BIH

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T he Constitutional Court of Bosnia and Herzegovina (BiH) is part of a Frankenstein monster

of a judicial system, cobbled together in post-war BiH from parts of the old Yugoslav system, the Dayton Peace Agreement and bits and pieces added by international donors. The result is a confusing, dysfunctional justice system that too often poorly serves its citizens.

Consider these laments by some of the 40 people involved with the courts that the Center for Investigative Reporting in Sarajevo (CIN) interviewed for these stories:

The country has four distinct and •autonomous legal systems that are redundant and duplicative.It can take a decade or longer for •even a simple case to work its way through the court system.Most, if not all courts are inun- •dated with a flood of new cases, compounding existing logjams of unresolved cases and rendering speedy trials impossible.

Transparency International found in a 2007 report that, “The fact that there is no single structure of courts, has significant impact on the work and ef-ficiency of the judicial system.”

At the entity level, courts look like miniatures of most national court sys-tems. There are two parallel systems of municipal/basic and cantonal/district levels, and supreme courts. Municipal/basic cases are appealed to the canton-al/district courts and cantonal/district cases end in the supreme courts. The supreme courts have the final word on appeals unless there is a human rights element to a case, in which case it can be appealed finally to the BiH Consti-tutional Court. Each entity also has a constitutional court that hears cases regarding the constitutionality of laws, decisions and processes.

In the Brčko District, two courts – a basic and appeals court -- accomplish all the chores of the three-court system

the entities use. From those two courts some cases can be appealed to courts outside the district -- cases involving government agencies go to the Court of BiH, while matters involving human rights may be sent to the Constitutional Court of BiH.

Above all, and completely separate, is the Constitutional Court of BiH, which

hears cases involving constitutional rights similar to those of the entities, but on the state level. This court is also charged with hearing appeals with a constitutional element from all of the lower courts – a responsibility that has caused its own case logjam and, some say, interferes with its work on its pri-mary directive.

Finally, the Court of BiH was created by the Office of the High Representative and is staffed by national and inter-national jurists to handle cases of war crimes and organized crime.

Frustration and Delay A working group of BiH jurists found

in 2006 that, “Overall, BiH citizens noted that problems experienced at court caused frustration among both court staff and court users, and often meant that visiting a courthouse was an un-comfortable and, occasionally, frighten-ing experience.”

The findings were included in the Strategy for Care of Court users com-posed by officials from the ministries of justice of BiH and the Republika Srpska, the High Judicial and Prosecutorial Council of BiH (HJPC), and from judge associations at the state and two entity levels.

The source of much of the public’s frustration with the legal system is the snail’s pace at which it moves.

Citizens can wait a year for a first hearing on a routine matter like a wrongful termination. Decade-long trials make a mockery of the courts and verdicts, court watchers said. In those circumstances, even when courts provide relief to a business or person, it can be too late to matter.

Behind delayed justice lies jammed court dockets. All courts are busy, ac-cording to the HJPC, which counted at the end of 2007 almost 1.9 million unsolved cases pending in the nation’s courts (excluding entity and state level

A Cobbled Together Justice System

At all levels justice suffers because multiple layers of courts with murky jurisdictions and

too many insignificant cases cannot get through their workloads.


Perception of Court Service Users

Does the court treat citizens equally?

Do some individuals enjoy preferential treatment?

Does the court always treat citizens with respect?

Does the court process cases in a timely fashion?

Source: Prism Research & JSDP East West Management Institute

21%

79%

74%

26%

17%

83%

45%

55%

Does the court adequately inform intere- sted parties on the handling of cases? 52%

48%

Does the court always provide information on court services? 10%

90%

Is it always known to whom complaints can be filed? 15%

85%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

YESNO

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constitutional courts). First-level courts are especially

clogged with utility companies trying to collect payments, many for piddling amounts, from customers. The HJPC found in its 2007 annual report that nearly 1.2 million utility cases were on

the dockets of the country’s courts. As one example, Sarajevo Municipal Court figures show that even if the court didn’t get a single new case – while actually 150,000 might be expected – it would still take nearly four years to clear the backlog. Reformers have studied the

problem for years, but no one has yet figured out how to take utility bills out of the courtroom. BiH lacks debt collection systems, and politicians are unwilling to risk angering constituents by allowing utilities to cut off service to non-paying customers.

T he new president of the Con-stitutional Court of Bosnia and Herzegovina (BiH) will have a

strong political background, but will be among the least experienced of all nine judges.

This outcome is guaranteed by the court’s rules on selecting its president.

The rules were set up to ensure a rota-tion of the presidency on ethnic lines every three years among Serbs, Croats and Bosniaks.

But the selection process this time has been complicated this time by the fact that on Aug. 19 current Court President Hatidža Hadžiosmanović-Mahić turns 70 and is constitutionally mandated to retire from public office. She will leave before the end of the final year of her term, requiring it be finished by a fellow Bosniak.

Seada Palavrić will be the only other Bosniak on the court. Mirsad Ćeman, appointed by the Federation of BiH (FBiH) Parliament to Hadžiosmanović-

Mahić’s seat, does not take office until the first week in October.

In the mean time, the judges last week appointed Palavrić temporary president until Oct. 3, after which she said she will compete for a permanent position against Ćeman. Acting court registrar Zvonko Mijan called that “an

elegant way” to give everyone a chance. The question remains, however,

whether the rules of the court insure that everyone really has a chance or that the best judge sits in the presi-dent’s seat.

David Feldman, a British international judge of the court, said that rotating

Court’s Next President Will Be Political Pro - But

Novice JudgeIn October, the BiH Constitutional Court will

decide on a new president. Ethnically sensitive rules will restrict the judges to picking their new leader from between only two candidates – the

two judges who have the least time on the bench but strong political backgrounds.

ConStItutIonal Court: Between law and polItICS - a Cobbled together Justice System

5district courts

19basic courts

10cantonal courts

28municipal courts

Constitutional Court of BiH

BiH’s Complex Structure for Justice

Court of BiH

Supreme Courof FBiH

human rights appeals only



Source: High Judiciary and Prosecutors’ Council of BiH

Supreme Courtof RS

Constitutional Courtof FBiH

Constitutional Courtof RBiH

Appeals Courtof Brčko District

Basic Courtof Brčko District

appeals: only casesinvolving governmentagencies

human rightsappeals only


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the presidency actually diminishes the possibilities of choice. Instead of choosing a president from among six national judges, the choice is always only between two people – the two Serbs, the two Croats or this year, the two Bosniaks.

“It’s fine as long as the judges, or one of the judges…is not just a good lawyer and judge, but also has the good administrative and people skills and necessary networking capacity…”

Ćeman’s appointment reopened the issue of what qualifications should be demanded of judges. The Constitution puts the entity parliaments in charge of appointing judges, and it sets no cri-teria for picking judges other than that they be “jurists of high moral standing.” The lawmakers have not always picked candidates with the longest experience or most impressive legal scholarship.

Ćeman was appointed over two other finalists for the job who were experts with years of experience at the Consti-tutional Court. Although his knowledge of the Constitution was never disputed, the fact remains that he is a former politician, a member of parliament and a former member of the Presidency for the ruling Party of Democratic Action (SDA). He doesn’t have a single day of working experience as a judge.

The situation with Palavrić is similar. In December 2005, she came to the court straight from a post as vice-pres-ident of the SDA, having been selected over Kasim Trnka, a candidate with a PhD. in law and a current judge of

the FBiH Constitutional court. Palavrić worked as a corporate lawyer for years before politics but was never a judge.

She defends her appointment and her performance, however. “When a reputable lawyer comes from politics people say – oh my God, he is incom-petent. It does not necessarily have to mean that a lawyer working as a politi-cian has to be a bad lawyer.”

She, Ćeman and Krstan Simić, the last judge appointed by the Republika Spr-ska Parliament, all “come from politics,” she said, “but this does not mean that we do not have a high-quality legal background or that we’d neglected law or the Constitution when we were in politics.”

Hadžiosmanović-Mahić said that in a group of judges appointed six years ago, she was the only experienced judge.

“No one but me had a minute of work experience in the court. Not a single one of them. Not once in their lifetimes had any of them worked as a judge,” she said. She is not shocked that her replacement will be a newcomer to judging.

The outgoing president has spent 41 years on the bench.

The court president is an important post, Hadžiosmanović-Mahić said. The president schedules and presides over assemblies, deals with all court adminis-trative matters, serves as the public face of the court and manages relations with other institutions.

Hadžiosmanović-Mahić said the presi-dent ensures that trials are conducted fairly. “I have to examine every record,” she said. “I have to know exactly what is written in every judge’s record, because I lead every assembly.”

Palavrić agreed, saying: “ultimately, the president is in charge of what hap-pens in the court.”

While judges are paid 4,200 KM, the president gets 4,800.

The Office of the High Representative (OHR) has no comment on the quality of the possible incoming president. OHR has twice recommended, in vain, that federation lawmakers set more careful qualification criteria for judges.

ConStItutIonal Court: Between law and polItICS - Court’s next president will Be political pro - But novice Judge

Hatidža Hadžiosmanović-Mahić, departing president of the Constitutional Court of BiH, said none of the other judges appointed at the same time she was six years ago had even a minute of experience as a judge.PHOTO: CONSTITuTIONAl COuRT OF BIH

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