Strasbourg, 16 January 2007                                                                CCJE REP(2007)19

                                                                                                                             English only

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

QUESTIONNAIRE FOR 2007 CCJE OPINION

CONCERNING THE COUNCILS FOR THE JUDICIARY

Reply submitted by

the delegation of Bosnia-Herzegovina

QUESTIONNAIRE FOR 2007 OPINION

CONCERNING THE COUNCILS FOR THE JUDICIARY

Introduction

In 2007, the CCJE was called to investigate the institutional roles of Councils for the Judiciary or analogous bodies that have been or are being created – sometimes at a constitutional level – in several European countries with the tasks of protecting judicial independence, taking measures concerning courts’ administration and judges’ careers, and ensuring in general a smooth functioning of the principle of separation of powers, which is a cornerstone of modern democratic States based on the rule of law¹.

The composition and functions of such bodies vary from country to country¹, as do their relationships with governments (especially with the Ministry of Justice), but the concept is essentially the same.

The responding delegations, whose countries’ institutional frameworks do not include a Council for the Judiciary as such should not hesitate to reply to the questionnaire making reference to the body or the bodies performing similar functions, in the judiciary or outside of it, in order for the CCJE to obtain as far as possible the clearest description of the situation in these countries. In any case, at the end of the present document, there is a specific part for countries without Council for the judiciary.

For the purpose of this questionnaire, and at this stage of the discussion, the expression “Councils for the Judiciary or other analogous body” has been chosen. The work of the CCJE on the Opinion on this subject will be the occasion to justify this choice. In the questions below the terms “Councils for the Judiciary” or “Council” will be used: if it is not the term used in your country, please just indicate it but reply as far as possible to the questionnaire.

1.    Is there possible interference of the legislative power concerning judges? If yes, please specify.

The constitutional framework in Bosnia and Herzegovina, as well as the legislation relating to the work of the courts, renders interference of legislative power in the work of the judges impossible.

However, the legislature plays an important role in deciding upon the sources and amounts of revenue for the operations of the institutions of Bosnia and Herzegovina (BiH) and approving a budget for the institutions of BiH, as set out in Article VI of the Constitution of Bosnia and Herzegovina.

Bearing in mind the aforesaid, deciding on the amount and sources of funds for the Court of BiH is within the authority of the legislature, in the manner that the President of the Court presents a budget proposal to the High Judicial and Prosecutorial Council (HJPC) which is further discussed at the sessions of the Parliamentary Assembly. At the end of each budgetary year, the President of the Courtreports to the Parliament of Bosnia and Herzegovina on the execution of the budget of the Court (see Article 11 of the Law on the Court of Bosnia and Herzegovina)

2.    Is it possible for the legislative power or the Parliament to order investigations or to establish commissions:

Ø  in general concerning judges? If yes, please specify.

Ø  concerning judicial performance?

Ø  concerning facts already submitted to courts?

Ø  concerning procedural acts (e.g. telephonic tapping, police custody)

According to the system of separation of powers enshrined in the Constitution of Bosnia and Herzegovina, it is not possible for a legislative body to order investigations or establish commissions concerning any of the areas mentioned above.

3.    Is there possible interference of the executive power concerning judges?

The Laws of Bosnia and Herzegovina prohibit interference of the executive power in judicial proceedings. There are instances of political pressure being exerted on courts (e.g. during election campaigns) as can be found in others countries. However, these pressures do not affect decisions of judges as they are fully independent in their work according to law.

4.    If yes, is it possible for the executive power to interfere:

Ø  in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)

Ø  in designation of presidents of courts? (if yes, please specify which authority from the executive power)

Ø  in management of courts? (if yes, please specify which authority from the executive power)

See the answer to question no. 3.

5.    Is the judicial staff working under the authority of:

Ø  a judge?

Ø  the president of the court?

Ø  the Ministry of Justice?

Pursuant to Article 21 of the Law on the Court of Bosnia and Herzegovina, the President of the Court oversees the work of the staff of the Court.  Among other things, the President issues internal books of rules defining the organizational structure, monitoring of the work of the staff, descriptions of posts, systems of work and division of responsibility. A management team directly answerable to the President supervises the entire staff and ensures the efficient work of professional and support services. The President also supervises the processes of selection and recruitment of new staff.

In addition to the aforesaid, professional and legal associates providing support to the work of judicial panels exercise their respective duties under the supervision of the judges.

6.    What are the competences of the president of the Court?

Ø  to evaluate the work of the judges of the court?

Ø  to distribute the work among the judges?

Ø  to act as a disciplinary authority vis-à-vis judges?

Ø  to intervene in the career of judges?

Ø  other? If yes, please specify.

Pursuant to Article 21 of the Law on the Court of Bosnia and Herzegovina, the President of the Court is responsible for:

a)    representing the Court in its external relations with state bodies and organizations;

b)    the appointment of judges to the different divisions and panels unless otherwise defined by this Law.

c)    the appointment of the replacing judge in case of disqualification of a judge as agreed by the Plenum of the Court;

d)    setting the time table for sessions, handling cases and distributing the cases between the members of the Court and where necessary between the Divisions;

e)    summoning and presiding at the Plenum of the Court;

f)     the implementation of the budget of the Court;

g)    performing general administration of the staff of the Court;

h)    instituting disciplinary proceedings against the Chief Registrar.

The President proposes to the Plenum of the Court a working plan at the beginning of each calendar year, providing for the allocation of cases and distribution of work in advance in accordance with objective criteria.

The President of the Court does not intervene in judges’ careers or directly conduct disciplinary proceedings. Among other things, the President informs the HJPC in the event that a criminal investigation is commenced or an indictment filed against a particular judge. On the basis of such information, the HJPC may suspend a judge pursuant to Article 78 of the Law on High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette no. 25/04 and 93/05)

7.    Is there a Council for the Judiciary in your judicial system?

Yes, the High Judicial and Prosecutorial Council.

8.    What is the exact title/denomination of this body? (In the case there is no such body, which department or structure – for example the Ministry of Justice – is responsible for the tasks of the Council?)

The title of this body is the High Judicial and Prosecutorial Council of Bosnia and Herzegovina.

9.    What is the legal basis for the Council for the Judiciary:

Ø  the Constitution?

Ø  the law?

Ø  other? If yes, please specify.

The HJPC was established by the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, which entered into force on 1 June 2004 (Official Gazette of BiH, no. 25/04) and, according to Article 1(2) of that Law, the HJPC is “an independent organ of Bosnia and Herzegovina”, or “an independent and autonomous body”, as is further stated in Article 3(1) thereof.

The HJPC substituted three (3) previously separated bodies/councils set up in 2000.

10.  Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (In the case there is no such body, why there is no such Council and why the tasks lay within for example the Ministry of Justice?)

Annex X of the General Framework Agreement for Peace in Bosnia and Herzegovina vested the High Representative with powers to oversee the implementation of the peace agreement. In July 1999, the Office of the High Representative (OHR) prepared a Comprehensive Judicial Reform Strategy.

In July 1998, the UN Security Council approved the establishment of a Judicial System Assessment Programme (JSAP) to monitor and assess the judicial system in Bosnia and Herzegovina. The JSAP concluded that the judges were not independent and that they were under the influence of local politicians.

For the reasons set out above, judges and prosecutors were suspended and then given an opportunity to apply for reappointment. This process enabled a review of the work of the judges and their competence to exercise the judicial function, as well as their reappointment. The HJPC was established as the body charged with the role of, inter alia, promoting the work of the courts and ensuring their independence.

11.  What is the composition of the Council for the Judiciary:

Ø  number of members?

Ø  qualification of the members?

Ø  for the ‘judges’ members, do they need specific qualifications or experiences?

Ø  can non-judges be members of the Council?  Please specify (number, qualification/specific functions)

According to the Law, the HJPC consists of fifteen (15) members. Members of the HJPC are judges and prosecutors, or professionals who have been elected to the HJPC for their competence, efficiency, high moral standing and integrity.   Only two (2) members of the HJPC are not members of the judiciary, but they are professionals elected for their competence and integrity.

12.  Please describe the whole procedure of appointment:

Ø  Who designates the members (judges or other institutions or authorities – please specify)?

Ø  What is the appointment system (voting, individual candidates, designation, etc.)?

According to Article 4 of the Law on HJPC, members of the HJPC are elected, as follows:

-       one (1) member who shall be a judge from the Court of Bosnia and Herzegovina, elected by the judges of that Court;

-       one (1) member who shall be a prosecutor from the Prosecutor’s Office of Bosnia and Herzegovina, elected by the prosecutors of that Office;

-       one (1) member who shall be a judge from the Supreme Court of the Federation of Bosnia and Herzegovina, elected by the judges of that Court;

-       one (1) member who shall be a prosecutor from the Prosecutor’s Office of the Federation of Bosnia and Herzegovina, elected by the prosecutors of that Office;

-       one (1) member who shall be a judge from the Supreme Court of the Republika Srpska, elected by the judges of that Court;

-       one (1) member who shall be a prosecutor from the Prosecutor’s Office of the Republika Srpska, elected by the prosecutors of that Office;

-       one (1) member who shall be a judge from either a Cantonal or Municipal level court of the Federation of Bosnia and Herzegovina, elected by the Cantonal and Municipal court judges of the Federation of Bosnia and Herzegovina, through written ballot to be organized by the President of the Supreme Court of the Federation of Bosnia and Herzegovina;

-       one (1) member who shall be a prosecutor from a Cantonal level prosecutor’s office of the Federation of Bosnia and Herzegovina, elected by the Cantonal prosecutors of the Federation of Bosnia and Herzegovina, through written ballot to be organized by the Chief Prosecutor of the Federation of Bosnia and Herzegovina;

-       one (1) member who shall be a judge from a District or Basic level court of the Republika Srpska, elected by the district and basic court judges of the Republika Srpska through written ballot to be organized by the President of the Supreme Court of the Republika Srpska;

-       one (1) member who shall be a prosecutor from a District level prosecutor’s office of the Republika Srpska, elected by the district prosecutors of the Republika Srpska, through written ballot to be organized by the Chief Prosecutor of the Republika Srpska;

-       one (1) member who shall be a judge or prosecutor elected by the Brcko District of Bosnia and Herzegovina Judicial Commission;

-       one (1) member who shall be an attorney, elected by the Bar Association of the Federation of Bosnia and Herzegovina;

-       one (1) member who shall be an attorney, elected by the Bar Association of the Republika Srpska;

-       one (1) member who shall not be a member of the judiciary or a member of the Parliamentary Assembly of Bosnia and Herzegovina, elected by the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina;

-       one (1) member who is not a member of the judiciary and who is not a member of the Council of Ministers of Bosnia and Herzegovina, elected by the Council of Ministers of Bosnia and Herzegovina upon the proposal of the Minister of Justice of Bosnia and Herzegovina.

Institutions nominate their representatives for membership in the HJPC in accordance with their internal regulations and bearing in mind that membership of the HJPC is generally representative of the peoples of Bosnia and Herzegovina, as well as a gender balance.

13.  How is appointed the President and/or Vice-President of the Council?

Pursuant to Article 11 of the Law on HJPC, the Council has a President and two Vice-Presidents who are elected by a simple majority vote of the members of the HJPC present and voting.

14.  What is the term of office for a member of the Council?

Article 5 of the Law on HJPC provides that the members of the Council serve for a term of four years and may be eligible to serve no more than two consecutive terms of four years. A person who has served as a member of the Council for a period of two terms consecutively, may not again be appointed as a member of the Council until the expiry of four years since the end of the person's previous term as a member of the Council.

15.  May a member be removed from office against his/her will and, if so, under what circumstances?

Article 6 of the Law on HJPC defines situations in which the mandate of a member of the Council terminates. Among other things, termination of the mandate of a member of the Council against his/her will, as a way of termination of one’s mandate, occurs in the following situations: if he/she performs his/her duties improperly, inefficiently or in a biased manner; for the commission of an act that would make him/her unworthy to perform duties in the Council and upon final conviction of a criminal offence pronouncing a prison sentence, which results in automatic termination.

16.  Where does the Council receive its financial resources?

According to Article 2 of the Law on High Judicial and Prosecutorial Council, the Council is financed from the Budget of the institutions of Bosnia and Herzegovina and international donations.

17.  Does the Council have its own staff?

According to Article 15 of the Law on HJPC, the Council has a Secretariat, which performs professional, financial and administrative tasks for the Council.

The Secretariat has a Director, Deputy Director and staff who are civil servants appointed and removed by the Director in accordance with the provisions of the Law on Civil Service in the Institutions of Bosnia and Herzegovina, while Staff of the Secretariat who do not enjoy the status of civil servants are appointed and removed by the Director in accordance with the legislation of Bosnia and Herzegovina regulating labour relations. 

The Secretariat of the Council consists of the following organizational units:

·         The HJPC Front Office,

·         Planning and Communication Department,

·         Appointment Department,

·         Department for Legal Affairs/Legal Department,

·         Department for Judicial Administration and Training,  

·         Budget and Statistics Department,

·         The Department for Information and Communication Technology (ICT),

·         Administration and Finance Department, and

·         Documentation Center

18.  If not, is the personnel provided by:

Ø  the Ministry of Justice?

Ø  the supreme Court?

Ø  other institution? Please specify.

The Council has it own staff and the answer to the previous question addresses the manner of their appointment.

19.  What is the staff number?

The current number of the staff in the Secretariat is 42 (forty two), while the recruitment procedure in some departments is still underway.

20.  What are the qualifications of the staff?

The Secretariat of the Council recruits persons with secondary school qualifications, two-year post secondary school diplomas and university degrees, as well as staff who have passed bar exams and/or those who hold master’s degrees.

21.  Must the staff be composed, albeit only in part, by judges?

The staff of the Secretariat of the Council does not necessarily include judges. As regulated by Article 15(3) and (4) of the Law on High Judicial and Prosecutorial Council, the staff is composed by civil servants and members of the staff who shall have appropriate qualifications necessary for performing professional, financial and administrative tasks.

22.  What are the tasks of the staff of the Council:

Ø  preparing materials for the Council members?

Ø  providing them with analysis and evaluation of the courts' practice?

Ø  other? Please specify.

The staff of the Council perform various tasks within various organizational units and the tasks derive from Article 17 of the Law on HJPC pertaining to the competences of the Council:

The Front Office shall provide professional, administrative and other activities with the aim of providing support to the President of the HJPC, the Director and the Deputy Director of the Secretariat of the HJPC (Front Office members), which includes providing opinions, advising the Director and the Deputy Director on specific issues, the preparation and supervision of internal and external correspondence, the coordination and organization of senior management meetings and monitoring the realization of tasks. The Front Office shall also coordinate all other meetings attended by the President and/or Director and Deputy Director, as well as organize meetings with interested parties, the international community and judicial institutions. The Front Office shall maintain contacts with representatives of the professional community. The Front Office shall assist in the drafting of the annual plan and in scheduling events organized by the HJPC, and managing their organization. The Front Office shall monitor, oversee and regularly report to members of the Front Office on all activities within its competencies. The Front Office shall also assist all members of the HJPC and coordinate support with other services. The Front Office shall participate in activities pertaining to the Stabilization and Association Process, which fall under the competences of the Council, and shall regularly report on the matter.

Planning and Communication Department shall organize, co-ordinate and carry out all planning-related activities in the HJPC, including the development of strategic plans and annual work plans.  The Department shall oversee the execution of established plans in the departments and shall co-ordinate their implementation within the Secretariat and with the interested parties and organizations.  The Department shall prepare and implement strategic plans for internal and external communication and public relations.  The Department shall prepare annual plans and schedule of activities organized by the HJPC and shall participate in their organisation, and co-ordinate the work on the preparation and distribution of the annual report of the HJPC.  The Department shall prepare and handle the regular and day-to-day correspondence of the Council and report to the Front Office on all important issues falling under its competencies. 

Appointment Department shall provide support to the Council, sub-councils and interview panels regarding the issues related to the appointment and in that context shall prepare all relevant materials, analyses and other documents, and shall keep the records updated.  The Department shall organize the publication of vacancy announcements, maintain database on the holders of judicial and prosecutorial office and on the applicants for the judicial and prosecutorial posts, organize interviews, have the role of the secretary in the councils in the course of the interview procedure and shall prepare minutes and proposals for appointment. For the competent panel and the Council, the Department shall gather and analyze all relevant materials pertaining to the requests filed by the courts and prosecutor’s offices to increase the number of judges and prosecutors.  The Department shall keep the records on temporary reassignments, and for that purpose shall gather all necessary material.  The Department shall provide technical assistance and shall actively participate in the preparation of material for disciplinary panels and shall assist to the disciplinary panels in all issues related to disciplinary cases. The Department shall prepare quarterly statistical reports pertaining to the information they manage.  The Department shall provide assistance to the Standing Committee for Judicial/Prosecutorial Ethics, Independence and Incompatible Activities.

Department for Legal Affairs/Legal Department shall prepare the agenda for Council sessions in co-operation with the management of the Secretariat. The Department shall analyze and prepare all relevant materials for Council sessions (memoranda, analyses, letters, legal/financial opinions, reports and draft decisions) pertaining to all issues falling under the competencies of the Council, and shall deliver them to all Council members within a reasonable timeframe.  The Department shall keep records on all activities assigned to the Secretariat by the Council, direct, co-ordinate and oversee their implementation together with other departments of the Secretariat, and shall report to the Front Office and the Council on their implementation.  The Department for Legal Affairs shall provide assistance in the work of the Standing Committee for Legislation, participate in the preparation of draft laws and by-laws as well as the commentaries on the laws in accordance with the established policy of the institution, oversee and prepare reports on the status of laws and other regulations of interest for the judiciary.  The Department shall provide professional legal assistance to other Secretariat departments and especially to the Administration and Finance Department. The Department shall draft letters for other departments of the Secretariat that require special professional opinion (priority issues and other legal issues).

Department for Judicial Administration and Training shall prepare, maintain, update and implement standardized and uniform rules of procedure for the work of courts and prosecutor’s offices.  The Department shall promote and provide support to the courts and prosecutor’s offices advocating the introduction of modern and efficient solutions and techniques of administration and management and in connection thereto shall initiate and co-ordinate training through co-operation with the training centers. The Department shall participate in identifying the needs and drafting of projects in the area of judicial administration.  The Department shall monitor, co-ordinate and co-operate with projects financed by the international community in the area of judicial administration in order to ensure their being in line with the HJPC strategy.  The Department shall provide support in the work of the HJPC Standing Committee for ICT and Court Administration and the HJPC Standing Committee for Training.  The Department shall co-operate with the entity training centers regarding the induction and  advance professional training for judges and prosecutors. 

Budget and Statistics Department shall assist courts and prosecutor’s offices in the preparation of their annual budgets in line with the HJPC competencies by preparing guidelines for the drafting of proposals of annual budgets for courts and prosecutor’s offices. The Department shall also consult with competent bodies for budgets of courts and prosecutor’s offices and shall propose amendments to the budgets put forward by competent bodies. The Department shall follow the execution of the budget, and gather and analyze budgetary information and present them to the Council and the public. On a regular basis, the Department shall inform the Front Office and the Council of the status of budget adoption and budget execution procedures in order for the Front Office and the Council to be able to fulfill their legal obligation of advocating for the adequate and continuous funding of courts and prosecutor’s offices in Bosnia and Herzegovina. The Department shall gather and analyze information on the property status of judges and prosecutors as instructed by the Council. The Department shall gather statistical information on the performance of judges and prosecutors, or of courts and prosecutor’s offices, do the analysis of such information in co-operation with the Department for Judicial Administration and Training, and shall present the information to the Council, and upon the order of the Council to the domestic and international public, and prepare relevant analyses and statistical reports. The Budget and Statistics Department shall support the work of the Standing Committee for Judicial and Prosecutorial Budgets and Statistics.

 

The Department for Information and Communication Technology (ICT) shall propose to the Council the ICT strategy for the courts and prosecutor’s offices in BiH and, after the Council has approved it, shall implement it and report to the HJPC thereon as necessary. The ICT Department shall prepare and carry out ICT projects, follow and monitor the use of ICT in courts and prosecutor’s offices (e.g. the engagement of ICT staff in the judiciary, overseeing the establishment and operating of WANs, training, purchase of hardware and software, technical support services, implementation of procedures and storing the data).  The Department shall prepare and make available necessary regulations related to the usage of the Information and Communication Technology in the courts and prosecutor’s offices in order to ensure the security of data, compatibility, functionality and cost-effectiveness.  The ICT Department shall prepare, establish and maintain the Case Management System (CMS) for courts and prosecutor’s offices, as well as other specified-purpose applications.  The ICT Department shall co-ordinate network activities with the Directorate for the Implementation of CIPS Project through the participation in the network team responsible for the administration of the SDH system of the transfer of information.  The ICT Department shall provide assistance to other departments of the Secretariat in the establishment of databases and in other ICT needs, and shall continuously keep operational the internal ICT structure of the Council.

The Administration and Finance Department shall manage financial affairs of the Council, manages the budget and financial planning system. The Department shall run affairs of administration, manage human resources and provide operational support to all Secretariat departments and Council members. The Department shall prepare a long-term and annual Council budget, and in coordination with Ministry of Finance and Treasury (MoFT) monitor and ensure its proper execution. In cooperation with project coordinator, the Department shall prepare budgets for donor funds to finance Council projects. In accordance with donor agreement requirements, the Department shall ensure their execution. Budget system management from Department competence includes financial reporting for the Council, Secretariat director, MoFT, Office for Audits and donors.    

In administrative affairs, the Department shall manage human resources, which especially concerns employment processes and development thereof. The Department shall be responsible to establish and maintain functional infrastructure such as premises, equipment and communication means. The Department shall be responsible to develop all procedures for financial operations to establish efficient control mechanism over the funds of the Council and shall ensure that all funds spent are documented, in accordance with approved funds and business policy of the Council. The Department shall be responsible for preparation of administrative procedures and Book of Rules to ensure smooth operations of the Council and effective human resources management.

Documentation Center shall develop, maintain and keep updated the database of court decisions and shall make possible for all judges and prosecutors in Bosnia and Herzegovina to have access to the database by the means of a wide area network.  The Center shall be in continuous connection with the courts, database beneficiaries and other similar institutions in other countries in order to further strengthen and increase the access to judicial information for judges, prosecutors and other lawyers. The Center shall develop and implement required internal regulations and procedures in order to ensure continuous submission of court decisions to the database.  The Center shall participate in identifying and drafting of projects related to the activities of the Center.

 

23.  Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also Part VIII of this questionnaire):

 

Ø  in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

Ø  in area of initial and/or continuous training for judges and/or courts’ staff[1]?

Ø  in area of courts’ performance in general (assessment of quality of court performance², setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

Ø  in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements²)?

Ø  in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary manners does it respect the provisions of Article 6 of the ECHR)?

Ø  in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

Ø  in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

According to Article 17 of the Law on HJPC (Competence), the Council shall have the following competencies :

(1)      Appointment of judges, including Court Presidents, lay judges and reserve judges in all courts at the State, Entity, Cantonal, District, Basic and Municipal levels in Bosnia and Herzegovina, including the Brcko District of Bosnia and Herzegovina, but excluding the Constitutional Courts of the State and Entities of Bosnia and Herzegovina;

(2)      Appointment of Chief Prosecutors, Deputy Chief Prosecutors and prosecutors in all prosecutors’ offices at the State, Entity, Cantonal and District levels in Bosnia and Herzegovina, including the Brcko District of Bosnia and Herzegovina;

(3)      Making proposals to the relevant authorities in relation to, their proposal and election of judges to the Constitutional Court of Republika Srpska and their nomination of judges to the Constitutional Court of the Federation of Bosnia and Herzegovina. When exercising its competence under this paragraph, the Council shall seek a written opinion of the relevant Constitutional Court before it makes its proposal;

(4)      Receiving complaints against judges and prosecutors, conducting disciplinary proceedings, determining disciplinary liability, and imposing disciplinary measures on judges, lay judges, reserve judges and prosecutors;

(5)      Deciding upon appeals in disciplinary proceedings;

(6)      Deciding upon suspensions of judges, lay judges, reserve judges and prosecutors;

(7)      Supervising the advanced professional training of judges and prosecutors and advising the Entity Centres for Judicial and Prosecutorial Training and the Brcko District of Bosnia and Herzegovina Judicial Commission in their adoption of programmes of advanced professional training for judges and prosecutors;

(8)      Determining the minimum amount of advanced professional training to be undertaken by every judge and prosecutor each year;

(9)      Determining the induction training for candidates chosen for judicial and prosecutorial office and supervising the provision of such training;

(10)    Approving the annual report of the Steering Boards of the Entity Judicial and Prosecutorial Training Centres and of the Brcko District of Bosnia and Herzegovina Judicial Commission insofar as it relates to the induction training and the advanced professional training of judges and prosecutors;

(11)    Deciding upon issues of incompatibility of other functions performed by judges and prosecutors;

(12)    Deciding upon the temporary assignment or transfer of judges and prosecutors to another court or prosecutor’s office;

(13)    Deciding upon leaves of absence for judges and prosecutors;

(14)    Participating, at the Council’s discretion, in the drafting process of annual budgets for the courts and prosecutors offices;

(15)    Making recommendations upon, at the Council’s discretion, the annual budget proposals made by governmental bodies and/or governments for courts and prosecutors offices; 

(16)    Making and presenting recommendations, at the Council’s discretion, for amendments to the proposed budgets made by governmental bodies and/or governments and/or the Brcko District of Bosnia and Herzegovina Judicial Commission before the relevant legislative bodies;

(17)    Collecting and analysing reports and relevant budget and revenue data for courts and prosecutors offices, in order to provide statistical data for the effective operation of courts and prosecutors offices;

(18)    Advocating for adequate and continuous funding of courts and prosecutors’ offices in Bosnia and Herzegovina;

(19)    Participating in the drafting of, and approving, Books of Rules for the operation of courts and prosecutors offices in Bosnia and Herzegovina;

(20)    Monitoring and advising courts and prosecutors offices on appropriate and effective budget, administration and management techniques and procedures and initiating training in this regard;

(21)    Initiating, overseeing and coordinating projects related to improving all aspects of the administration of courts and prosecutors offices, including seeking national and international funding therefore;

(22)    Setting criteria for the performance evaluations of judges and prosecutors;

(23)   Setting criteria for the performance of courts and prosecutors offices, and initiating enquiries concerning administrative or financial conduct;

(24)   Initiating, coordinating and supervising the use of information technology by courts and prosecutors’ offices in order to achieve and maintain uniformity in this area between and among courts and prosecutors’ offices throughout the country. No court or prosecutors’ office shall adopt an automated case-tracking registration, tracking or related system, including backup and storage systems, without obtaining the prior approval of the Council;

(25)   Determining the number of judges, prosecutors and/or Deputy Chief Prosecutors of each court or prosecutor’s office within the Council’s competence, after consultation with the relevant Court President or Chief Prosecutor, relevant budgetary authority, and the relevant Ministry of Justice;

(26)   Collecting information and maintaining documentation on the professional status of judges and prosecutors, including their date of appointment, termination of office, statistical information relevant to their work performance, and any other information which the Council considers relevant to the work of Court Presidents, Chief and Deputy Prosecutors, judges and prosecutors;

(27)   Providing opinions on complaints lodged by a judge or a prosecutor who considers that his or her rights provided for by this or other law, or more generally his or her independence are threatened;

(28)   Providing opinions on draft laws, regulations, or issues of importance that may affect the judiciary, initiate the adoption of relevant legislation and other regulations and to provide guidance to courts and prosecutors’ offices on matters falling under the Council’s competence;

(29)   Issuing codes of ethics for judges and prosecutors;

(30)    Exercising other competencies as determined by this or other Law.

24.  Does the Council have investigation powers?  If yes, please specify

Yes, the HJPC has investigative powers under Article 64 of the Law on HJPC (Disciplinary Counsel):

(1)     The Office of the Disciplinary Counsel, an office within the Council, shall perform prosecutorial functions concerning allegations of misconduct against judges and prosecutors in accordance with this Law and the Rules of Procedure of the Council.

(2)     The Office of the Disciplinary Counsel shall act upon a complaint or upon its own initiative and shall be responsible for evaluating complaints for legal sufficiency, investigating allegations of misconduct against judges and prosecutors, and initiating and presenting cases of disciplinary violations before the disciplinary panels of the Council.

(3)     The Council shall appoint an individual, who either is a judge or prosecutor or who fulfils the minimum requirements set forth in this Law for appointment as a judge or prosecutor, of high moral standing and requisite legal expertise to serve as the Chief Counsel of the Office of Disciplinary Counsel. The Chief Counsel shall have a mandate of four (4) years and be eligible for re-appointment. The Chief Counsel shall be supported by a staff of lawyers and investigators. The Chief Counsel may authorize staff lawyers to present cases before the Council and its disciplinary panels.

(4)     In matters of conflict of interest or that would otherwise require disqualification of the Chief Counsel from the investigation or prosecution of a disciplinary matter before the Council or its disciplinary panels, the Council shall employ outside counsel to investigate or prosecute the matter.

(5)     The Chief Counsel of the Office of Disciplinary Counsel shall be appointed and removed by the Council in accordance with the Law on Civil Service in the Institutions of Bosnia and Herzegovina.

(6)     The salary of the Chief Counsel of the Office of Disciplinary Counsel shall be equal to the average salary earned by prosecutors of the Cantonal Prosecutors’ Offices in the Federation of Bosnia and Herzegovina and in District Prosecutors’ Offices in the Republika Srpska.

(7)     All administrative and financial matters of the Office of Disciplinary Counsel shall be managed by the Secretariat of the Council.

We consider that it is inappropriate that the body carrying out the duties of a prosecutor in matters relating to the professional misconduct of judges and prosecutors, as well as the first and second instance bodies which decide in these proceedings, are located within the same Council.

25.  How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analyzed) Please describe

Pursuant to Article 19 of the Law on HJPC (Obligation to comply with Inquiry and Requests), which reads as follows:

(1)     All courts, prosecutor’s offices and governmental bodies, as well as all judges, Court Presidents, prosecutors, Chief and Deputy Chief Prosecutors, lay judges, reserve judges and employees of courts and prosecutor’s offices shall comply with requests by the Council for information, documents, and other materials related to the realisation of the competencies of the Council and with requests of the Council to attend meetings in respect of the exercise of the competencies of the Council.

(2)     To the extent necessary for the realisation of its competencies under this or any other law, the Council and its representatives shall have access to all premises occupied by and documentation in possession of the courts and prosecutors offices mentioned under Article 18.

26.  What are the types of norms that the Council can issue:

Ø  Opinions on the functioning of the judiciary?

Ø  Recommendations?

Ø  Instructions to the courts?

Ø  Decisions?

The Council can issue: decisions on appointments, disciplinary measures, decisions on termination of one’s term of office, opinions on the functioning of the judiciary, proposals on budgets for the courts, opinions on draft laws, regulations, or issues of importance that may affect the judiciary. The Council is authorized to issue acts when this is envisaged by the Law on HJPC or other law (see the answer to question no. 23).

The Council can issue decisions on all matters that fall within its competencies and that have been specified in detail in Article 17 of the Law on HJPC.  

27.  Are the functions or responsibilities of the Council described in law or other norms? Please specify

 

The functions or responsibilities of the Council are set forth in Article 17 of the Law on HJPC (see question no. 23).

28.  If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

The formulation of these tasks is concrete and specific in such a way that all tasks of the HJPC are described in detail and determined in the Law on HJPC (see question no. 23).

29.  Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

There is a Code of Ethics for Judges in Bosnia and Herzegovina, which has been adopted on the basis of Article 17 (29) of the Law on HJPC, according to which the HJPC is responsible for “issuing codes of ethics for judges and prosecutors”. Article 56 of the Law on HJPC regulates disciplinary offenses for judges, which de facto include regulations prescribed by the Code of Ethics for Judges. By deciding on complaints regarding alleged violations of the provisions of Article 56 of the Law on HJPC, the Council also oversees compliance with regulations provided for in the Code of Ethics for Judges.    

30.  Does the Council handle external relationships of the courts:

Ø  has it a public relations department?

Ø  how does it ensure the transparency of its functioning and organization?

The Council has a Public Relations department responsible for publishing press releases that may be found on the HJPC’s web-page (http://www.hjpc.ba)

The Council has created a Guidebook for Access to Information and made it available for the purpose of providing interested physical and legal entities with access to information pursuant to the Freedom of Information Act of Bosnia and Herzegovina.

All relevant information about the Council can be accessed at its web-page.  

31.  Are decisions of the Council published and available to all?

Decisions of the Council are published on the HJPC’s web-page and they are available to all.

32.  To what extent is the work of the Council influenced by:

Ø  the executive power?

Ø  the legislative power?

Article 1(2) of the Law on HJPC provides that the Council is an independent organ of Bosnia and Herzegovina and is constituted as a separate legal entity.  As such, it is independent from the legislative and executive arms of government.

According to provisions of Article 3 (1) of the Law on HJPC, “the Council shall be an independent and autonomous body, with the task of ensuring the maintenance of an independent, impartial and professional judiciary as confirmed in Article 17 of this Law.”  

33.  Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

See the answer to question 32.

           

34.  Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

The Ministry of Justice of Bosnia and Herzegovina represents the executive power of BiH while the HJPC is an independent and autonomous body with the task of ensuring the maintenance of an independent, impartial and professional judiciary, in accordance with the Law on HJPC.

In addition, the Council is not subject to the provisions set forth in the Law on Ministries and other Administrative Bodies of Bosnia and Herzegovina and the provisions laid down in the Law on Administration of Bosnia and Herzegovina, which apply to the executive power and which determine the competence, responsibilities and functions of the executive power.

35.  Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, and the Presidents of the Courts?

Article 17 of the Law on HJPC clearly sets forth the competencies of the Council relative to the responsibilities and powers of the HJPC and the courts, including the presidents of the courts (see answer to questions 5, 6 and 23).

36.  Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

HJPC has jurisdiction over all courts in the State, excluding the Constitutional Courts in Bosnia and Herzegovina (Constitutional Courts of the Entities and the Constitutional Court of Bosnia and Herzegovina). This, inter alia, includes: appointment of judges, including Court Presidents, as well as the appointment of prosecutors, Chief Prosecutors and Deputy Chief Prosecutors (Article 17 of the Law on HJPC).

HJPC has no jurisdiction over the Constitutional Court of Bosnia and Herzegovina.  However, according to Article 17 (3) of the Law on HJPC, the HJPC makes proposals to the relevant authorities in relation to their proposal and election of judges to the Constitutional Court of Republika Srpska and their nomination of judges to the Constitutional Court of the Federation of Bosnia and Herzegovina. Hence, the Council does not appoint judges to Constitutional Courts of the Entities, but makes proposals to the relevant authorities in relation to their proposal and election of judges to Constitutional Courts of the Entities. The Council has no jurisdiction to receive complaints or to conduct disciplinary proceedings against judges of the Constitutional Courts.  

37.  Who decides which the priorities of actions of the Council are?

In accordance with the current composition of the Council and provisions of Article 11 of the Law on HJPC, it is the President of the Council who decides on the priorities of actions of the Council. His powers are stipulated both in the Law and in the Rules of Procedure of the Council (Article 3 of the Rules of Procedure).

38.  Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

With the exception of decisions in disciplinary proceedings, it is not possible to appeal any decision of the Council, which we consider inappropriate.

In the context of disciplinary proceedings, appeals may be filed, inter alia, (pursuant to Article 60 of the Law on HJPC) against the decisions of the First Instance Disciplinary Panel to the Second Instance Disciplinary Panel.  The two Panels operate independently from one another. An appeal to the full Council is possible against a disciplinary measure determined by the Second Instance Disciplinary Panel.

A judge or prosecutor who has been removed by a decision of the Council may appeal to the Court of Bosnia and Herzegovina on one or both of the following grounds:

(a) that the Council, during the disciplinary proceedings which led to the decision to impose the measure of removal, committed a substantial violation of the procedures set out in the Law on the HJPC;

(b) that the Council, during the disciplinary proceedings which led to the decision to impose the measure of removal, erroneously applied the law.

39.  Which instruments or practices are used by the Council:

Ø  to guard the independence of judges?

Ø  to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?

Ø  to intervene in case of attacks against its own interests[2]?

Ø  to improve the working methods of judges?

Pursuant to Article 17 of the Law on HJPC, the Council has at its disposal a number of instruments to guard the independence of judges, to intervene in case of attacks against its own interests, and to improve the work of judges.

Among other things, the Council provides opinions on complaints lodged by a judge or a prosecutor who considers that his/her rights provided for by the law, or more generally his or her independence are threatened.

The Council decides upon issues of incompatibility of other functions performed by judges and prosecutors with functions of judges and prosecutors; provides opinions on draft laws, regulations, or issues of importance that may affect the judiciary; initiates the adoption of relevant legislation and other regulations and provides guidance to courts and prosecutors’ offices on matters falling under the Council’s competence.

In addition, the Council supervises advanced professional training of judges and prosecutors and advises the Centres for Judicial and Prosecutorial Training in their adoption of programmes of advanced professional training for judges and prosecutors; determines the minimum amount of advanced professional training to be undertaken by every judge and prosecutor each year; determines the induction training for candidates chosen for judicial and prosecutorial office and supervises the provision of such training.

40.  Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe

Bosnia and Herzegovina is going through a process of modernization of courts concerning technical equipment, human resources, harmonization of procedures with new laws, use of technology aimed at improving the efficiency of the courts’ operation and so on. The consultation process between the Council, which is responsible for coordinating these activities (and setting standards on issues such as reporting on the courts’ operation), and courts on all levels is an important precondition for a successful implementation of these projects.

41.  Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe

 

It has not been the practice so far to have discussions about reforms concerning the work of the Council. We are of the view that such discussions or consultations can be extremely useful in the case of future reforms and that, inter alia, associations of judges and prosecutors should to participate in them.

42.  Are there relations between the Council for the Judiciary and judges’ professional organizations or associations?

At present time, there are no strong relations between the HJPC on the one hand and associations of judges on the other.

43.  If your country is member of the European Network of Councils for the Judiciary (ENCJ), what are the concrete added values of your membership:

Ø  concerning the national actions of your Council?

Ø  concerning international co-operation?

Not applicable.

44.  Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe

Not applicable.

45.  Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

46.  How and by whom are judges appointed and promoted?

47.  Does any authority (body) independent[3] of the government and the administration take part in the appointment and promotion process:

 

1.    if yes, how is this authority composed? Is a certain share of judges fixed?

2.    how are the members selected?

3.    what are the detailed competences of the authority with respect to the appointment and promotion of judges?

     

48.  How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

49.  Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?