Independence, accountability and quality of the judiciary: Bosnia and Herzegovina 2018-2020

Abstract

The report describes the process to measure the state of independence, accountability and quality that the High Judicial Council and Prosecutorial Council of Bosnia and Herzegovina has undertaken, using the instruments of the European Network of Councils for the Judiciary, and it presents the outcomes of the assessment, based on the measurements. The outcome of the application of the instruments is that in BiH formal requirements for independence are largely met, except for the funding of the judiciary and the non-transferability of judges, but that the perceptions of independence are much less positive. Especially, court users and citizens in general are critical, while judges are relatively positive but less so than the European average. There is a gap between the formal safeguards and the way these safeguards are applied in practice. With respect to ccountability, arrangements are not in place in important areas, in particular the relations with the press, external review of the performance of the judiciary and transparency of accessary functions of judges including disclosure of assets. As to perceptions, judges are critical about the adherence by judges to ethical standards and the actions of relevant authorities against judicial misconduct and corruption. The report concludes that the main problem the BiH judiciary is facing concerns negative perceptions of judicial independence and the lack of trust in the judiciary in society, and its underlying causes. To address this problem the judiciary needs to improve: 1. Judicial ethics and the mechanisms to counter improper behaviour and corruption at all levels of the judiciary, including the HJPC itself, in particular with respect to appointment, promotion and discipline of judges. Introduction of disclosure of assets of judges and members of governance bodies such as the HJPC is urgent. 2. Communication with society, including the other state powers, the media and civil society to provide broad insight in the actual functioning of the judiciary, and to counter the spread of disinformation. This includes the introduction of external review, to be commissioned by the judiciary (HJPC) itself to protect judicial independence, in order to establish a trustworthy analysis of its functioning.