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BiH Citizens need an Independent and Accountable Judiciary

By Genoveva Ruiz Calavera,
Director for the Western Balkans
European Commission Directorate-General
for Neighbourhood and Enlargement Negotiations

In the European Union we are concerned when we read that 9 out of 10 BiH citizens - according to a recent opinion poll - do not trust the efficiency of their justice system. While such lack of confidence is probably based on perceptions more than on facts, yet, it means that the judiciary in BiH has so far failed to convince BiH citizens that it can deliver.
But let us take a look at the wider context. The judiciary is a key pillar of every democratic society built on the rule of law. When the judiciary is weak, the rule of law and democracy itself risk falling apart. Citizens need a well-functioning judiciary for the protection of their human rights and fundamental freedoms as well as for supporting their socio-economic development. Citizens need a strong judiciary in the fight against corruption and organised crime. Citizens need also legal certainty, meaning that they must know precisely which conduct is subject to liability and which judicial institution is competent to process a case.
The rule of law is at the core of the EU accession process. An independent, impartial, accountable, professional and efficient judiciary is key feature of our European standards - they are not negotiable.
The European Union is monitoring and supporting the judiciary in BiH through several processes such as the Reform Agenda, the Structured Dialogue on Justice, the Stabilisation and Association Agreement. You probably heard or read about these processes. They are indeed quite technical and lengthy. But the issues which are addressed in these processes are directly relevant to you as citizens of BiH - these are the challenges you face in your daily life as workers, consumers, entrepreneurs, students or unemployed. Thanks to the alignment of the BiH legislation with the EU law, you acquire new rights in the various sphere of life. But these rights would remain empty words if they were not effectively enforced by a credible justice system. The credibility of the whole BiH accession process depends, therefore, largely on the existence of a well-functioning judiciary.
But let's make no mistake. It is not up to the European Union to carry out those reforms, even less to impose them. And neither is up to the International Community. The necessary reforms have, indeed, to be undertaken by the authorities you elected. BiH politicians have declared support to judicial reforms in line with the European standards. It is important that they deliver on their pledge. Nobody can obstruct the reform process and then claim it does not deliver. Those who feel comfortable with the current stalemate are putting their own interests above the interest of the citizens.
The debate on the justice system needs to be as wide as possible – but there must be no room for demagogy from any side. Justice must be rendered independently. Judges, prosecutors, law enforcement, all must act in compliance with the law, and in the interest of society. But independence is not arbitrariness. Judicial independence shall go hand in hand with accountability which, in turn, nurtures citizens' trust in the judicial institutions and is the best defence against attempts of undue political interference.
The European Union has been supporting the improvement of rule of law in your country, notably by allocating almost 150 million euro since 2007. As regards the judiciary, thanks to EU taxpayer money, for instance, courts and prosecutors’ offices throughout BiH have been constructed or renovated, their procedures have been modernised through the establishment of a case management system., and, in the sensitive area of war crimes, the huge backlog has started slowly but steadily to be reduced.
With the help of experts from its Member States the EU has also provided guidance to the judges and prosecutors as well as to law-makers on what should be done to improve the judiciary in BiH and bring it closer to the best practices in Europe. The appointment of judges and prosecutors and the management of their career have to become more transparent and professional so that best candidates are selected. Education of judges and prosecutors needs to be modernised. Their work performance must be subject to a proper evaluation system. The disciplinary system must become more dissuasive Assets of judges and prosecutors need to be controlled in an effective manner.
The High Judicial and Prosecutorial Council has already undertaken important steps over the past years in the right direction, notably on integrity, conflict of interest, disciplinary measures. And while additional steps to ensure the effectiveness of those measures are still necessary, all these initiatives aim at increasing the credibility of judges and prosecutors in the eyes of the public. But, of course, integrity needs to be taken seriously by all those who have public responsibilities, by strengthening the fight against corruption throughout the institutions and by applying rules on conflict of interest and asset declarations to elected and appointed officials as well.
Finally, I would like to recall that the European Union has been helping the authorities in BiH to overcome the weaknesses of the current legislation defining the criminal jurisdiction at the State level. A solution is technically possible that would ensure legal certainty and increase the effectiveness of the fight against serious crime. But political will is necessary from all sides to finalize this reform that would improve the functioning of the justice system in BiH in the interest of all citizens.
Traditionally, Justice has been often represented as being blindfolded to show its impartiality – but to make sure that Justice can work in an independent and accountable manner citizens have to keep their eyes open.