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HJPC conclusions not compliant with EU standards, USA & British concerns expressed

HJPC conclusions not compliant with EU standards, USA & British concerns expressed
In its Friday evening announcement, the Office of the High Representative (OHR) said that it "views with deep concern the 26 October 2017 conclusions of the High Judicial and Prosecutorial Council reached in connection with the information submitted by the Center for Research of War, War Crimes and Search for Missing Persons of the Ministry of Justice of Republika Srpska", which include calls for dismissal of judges and prosecutors without appropriate disciplinary proceedings.

"Some of the conclusions adopted by the HJPC raise concerns and could directly affect the independence of judges and prosecutors as well as the respect of the fundamental rights.

Fair trial is a prerequisite for public trust in the judicial system. The presumption of innocence is at the core of the fundamental rights protected by the European Union", said the Head of EU Delegation and EU Special Representative to BiH, Ambassador Lars Gunnar Wigemark, in a written statement to the Media.

He stressed that no public official, including the judges and prosecutors, should be dismissed without a proper independent investigation or before disciplinary procedures have been applied. Wigemark added that the appropriate sanctions should only be decided after the conduct of such procedures and if the allegations against the officials have been found to be law grounded. Circumventing such procedures will limit the independence and impartiality of the judiciary and is not in line with EU standards.

"As recently proposed by the EU experts, there is a need to improve the criteria for appointment and dismissal of officials, in line with EU standards. And any such improvements need to take full account of the need to maintain the independence of judiciary as well as the respect of fundamental rights", emphasized Wigemark.

The HJPC conclusions are the result of the demand of RS's Centre for Investigating War and War Crime and Search for Missing Persons. This institution, after Srebrenica warlord Naser Oric's acquittal, announced that several judges at the state BiH Court have "inapropriate war history" and were judges in Sarajevo and other places where, very often, they wrote the sentences to Serbs even without trial. The Centre expressed its strong disagreement on the presence of these judges in the judiciary system of BiH and especially in BiH's Court, which is responsible for the biggest number of trials on war crimes.

The RS Centre, after the Oric trial had sent a report to the HJPC which included names of nine judges and six prosecutors who, as Centre experts had stated, acted in a discriminatory manner in war crimes cases against Serbs.

"The RS Centre demonstrated in the best possible way – by arguments, facts and evidence- how the BiH judiciary works", said to the Media the director of the RS Centre, Milorad Kojic.

The BiH High Judicial and Prosecutorial Council concluded that the report of the Centre, together with the addenda, will be sent to the office of the HJPC's disciplinary prosecutor, asking that he treats this as a priority issue.

American and British concerns

Deep concern about the HJPC conclusions was expressed also by the embassies of the U.S. and Great Britain, that said these conclusions endanger the independency of all judges and prosecutors of the entire country.

"We are also concerned that the HJPC tasked prosecutor’s offices to compile a list of those indicted for war crimes based on ethnicity, as this further politicizes judicial proceedings and the processing of war crimes cases.  Further, the HJPC request for information about whether the judges or prosecutors in the RS Center report were investigated puts undue pressure on these individuals specifically, and broadly on every judge and prosecutor in the country", the two embassies stated in a joint press release.

They added that, ensuring the independence and impartiality of the judiciary safeguards public confidence in the judiciary. They consider that it further promotes the rule of law and ensures that the courts stand as the public’s supreme dispute settlement forum.

"There is a need to improve appointment and dismissal criteria for judicial officials in BiH, but any improvements need to take into account judicial independence and fundamental human rights," concluded the press release.

Amendment of Article 44, the disciplinary procedure

Also, the Council adopted a conclusion which says that this institution will ask BiH's Ministry of Justice, the Council of Ministers and the Parliamentary Assembly to amend Article 44 of the Law on the HJPC BiH. Also, the Council adopted a conclusion which says that this institution will ask BiH's Ministry of Justice, the Council of Ministers and the Parliamentary Assembly to amend Article 44 of the Law on the HJPC BiH with an urgent procedure in the sense of introducing an exceptional possibility for dismissing a judge or prosecutor without conducting a disciplinary procedure.

That conclusion made EU officials angry since, rules and regulations in the EU, prohibit to dismiss anyone without a fair disciplinary procedure.

"In a state governed by the rule of law, as BiH is under Annex 4 of the GFAP, Judicial Councils play an important role in protecting and promoting judicial independence by ensuring integrity and independence of judges and prosecutors, in particular by protecting them from external undue influence or pressure. Judges and prosecutors' security of tenure should be fully protected and dismissals should only be considered after a fair, transparent and adequate disciplinary procedure", emphasized OHR.

RS Radio Television (RTRS), a part of public service in BiH, reported on the Wigemark statement saying that the EU protects "war judges" in BiH's judiciary system.../IBNA


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