Strasbourg, 21 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of Bosnia and Herzegovina
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
The procedural laws (criminal, civil, administrative) of Bosnia and Herzegovina prescribe both the mandatory elements that each judicial decision must contain and the order of their presentation, but there are no specific standard models to be followed in drafting judicial decisions.
Can each individual judge choose his own style of drafting his decision?
Each individual judge can choose his own style of drafting his decision.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Court panels take decisions by a majority decision of the panel members. A judicial decision taken by a majority decision of the panel members is equally effective and binding as a decision taken unanimously.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
The vote of the president of the panel has the same force and effect as the vote of a panel member judge.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
Judicial decisions have to deal with all points raised by the parties to the proceedings.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
Each judicial decision in writing consists of four basic parts: introduction, operative part, reasoning and a note on legal remedy against a judicial decision. Depending on the nature of the proceedings and the type of judicial decision, the relevant procedural laws (criminal procedure codes, laws on civil procedure, laws on administrative procedure) stipulate the mandatory elements of each of the above-mentioned parts of a judicial decision. It is a rule that the reasoning of a judicial decision refers first to the submissions of the parties and their allegations pertaining to the facts upon which these submissions are based, followed by the presentation of evidence and judicial evaluation of each individual piece of evidence, and the regulations upon which the court based its decision.
How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
A decision on appeal has the same mandatory parts as a first instance judicial decision. It is a rule that the panel of a second instance court will decide in each concrete case whether to take a decision on appeal in the session (based on the case-file) or to hold a hearing. A second instance panel will take a decision on holding a hearing when it is satisfied that, for the purpose of establishing the state of facts correctly, it is necessary to establish new facts or adduce new evidence or present anew the evidence that has already been adduced, as well as when it is satisfied that this is required because of the violation of the procedural provisions in the first instance proceedings. In any case, a second instance panel examines the appealed judicial decision only in the part that is contested in the appeal. It is permissible in the appeal proceedings to present new facts and new evidence, which could not have been adduced in the first instance proceedings in spite of the due attention, provided that the appellant explains as to why he/she has not presented it before.
Is there a difference in the way a judgement is drafted according to the subject matter (civil, criminal, administrative)?
In principle, there is no essential difference in the way a judgment is drafted according to the type of proceedings. Each judgment has four basic parts: introduction, operative part, reasoning and a note on legal remedy against the judgment. The contents of specific parts of a judgment differ depending on the type of proceedings, while the contents are prescribed under the relevant procedural laws.
Could you describe precisely how the decision is transmitted to the parties?
It is a rule that each judicial decision is orally announced immediately upon the completion of the hearing/trial in the presence of the parties, defence counsel, their legal representatives and authorized agents. The announcement of a judgment implies the reading out of the operative part of a judgment in public session, with a brief presentation of the main reasons upon which a judgment is based. The court is obliged to prepare a judgment in writing within a prescribed deadline and to provide the parties to the proceedings with a certified copy of a judgment. It is a rule that judgments are delivered by mail, but they may also be hand-delivered by the authorized person from the court. In the administrative proceedings, in the more complex cases, the court may decide to draft a judgment in writing only, without announcing it in the public session. All court decisions are delivered in person, while the law regulates in detail the procedure for serving the decision upon the parties in case a delivery in person is not possible (if a party evades or refuses to receive a judgment).
An exception to this rule is stipulated in the civil procedure code, by which a party that has been duly informed of the date of handing down a judgment is obliged to take over the judgment in the court building. However, in these proceedings too, and upon a reasoned motion of the party, the court may decide to deliver the judgment in accordance with the rules that apply to the delivery in person.
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
Whether the judicial decision is binding only on the specific litigants or it has an erga omnes effect will depend on the type of motion before the court and the nature of the proceedings. In principle, judicial decisions are binding only on the specific litigants, but some motions by their very nature are such that they seek the establishment of a specific right or status in relation to the public in general.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
The enforcement procedure is set forth in detail in the relevant laws on the enforcement of judicial decisions (Law on Enforcement Procedure, Law on the Enforcement of Criminal Sanctions).
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
In criminal cases the operative part of the decision is always announced in open court, and if the public has been excluded from the main trial the court panel will decide whether and to what extent the public will be excluded at the time of announcing the reasons upon which the decision is based. The grounds for excluding the public are stipulated in the law. In the criminal proceedings the Court may exclude the public for the whole duration of the main trial or a part thereof if it is in the interest of state security or if it is necessary for the sake of keeping the state, military, official or important business secret, protecting the public order, protecting the morals in a democratic society, the personal and intimate life of the accused or injured person, or protecting the interests of minors or witnesses.
In civil proceedings the court may exclude the public for the whole duration of the main trial or a part thereof if it is required for the sake of keeping the official, business or personal secret, protecting the interest of minors, maintaining public order and morals in cases when the measures aimed at maintaining the order that are prescribed in the law are insufficient to ensure a smooth conduct of the proceedings. The court may allow persons in official capacity, academics and professionals to attend the proceedings from which the public has been excluded.
In administrative cases the court hands down a decision in closed court.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
It is a rule that courts publish excerpts from the judgments in the annual papers of the court jurisprudence. Some courts have a practice of publishing the excerpts from judgments on their web pages. The court judgments (that is, the excerpts from these judgments) that are announced in this way do not contain names or other personal details of the parties or other participants in the proceedings.
The Court of BiH has the same practice except in the case of judgments in the criminal cases (the first instance and second instance judgments) in the organized crime and war crimes cases. These judgments are announced in their entirety on the web page of the court and they contain the names and other personal details of the accused persons. The aforementioned judgments do not contain the names of protected witnesses or any other information that could lead to the disclosure of the identity of these persons.
Judgments of the Constitutional Court of BiH and the entity constitutional courts are published in their entirety on their respective web pages and in the official gazettes of BiH and they contain all other details about the parties.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
Judicial decisions are available to persons and authorities that prove the existence of a private or public interest. Pursuant to the Criminal Procedure Code, the court is obliged to deliver the decision in writing to the injured person or the person from whom an item or material gain has been seized although these persons are not parties to the proceedings.
Some decisions of the Court of BiH and decisions of the constitutional courts in BiH are publicly announced in their original form on the internet and in the official gazettes of BiH (See the answer to Question 9).
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Decisions of the Court of BiH in criminal cases and decisions of the constitutional courts are available on the internet.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
There is a system in place in Bosnia and Herzegovina for the evaluation of performance of judges and prosecutors by an independent body – High Judicial and Prosecutorial Council (HJPC). However, there is a general consensus that this system needs to be further developed in the sense of equal evaluation of the quantity and quality of judicial decisions.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Yes, this system includes the evaluation of the quality of judicial decisions.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
- Article 17 of the Law on the High Judicial and Prosecutorial Council of BiH specifies that the HJPC establishes criteria for performance evaluation of all judges and prosecutors in Bosnia and Herzegovina. The relevant laws on Courts specify that presidents of courts, in accordance with these criteria, evaluate the performance of all judges of the court at least once a year. The performance results of court presidents are evaluated by presidents of the next higher courts. All data related to the performance of judges are submitted to the HJPC.
· identification of the agencies that are responsible for the process:
- In addition to having a competence to establish criteria for performance evaluation of judges and prosecutors, the HJPC also has competence to appoint all judges and prosecutors, to determine disciplinary responsibility of and impose disciplinary sanctions on judges and prosecutors, to determine the minimum annual professional training of judges and prosecutors and to monitor their training etc.
· parameters that are evaluated:
- When evaluating the performance of judges, the following parameters are specifically considered:
· The time judges are absent and the total time spent at work (absences of all types are monitored – annual leave, sick leave, holidays etc. – and the time spent working in court panels in which the judge is neither the reporting nor presiding judge, the time spent in training, visits to detainees, attendance at collegiums and meetings of court departments and similar activities);
· Performance results with regard to meeting the orientation standards (number and type of completed cases in the particular year);
· Performance results with regard to performance (number of decisions upheld, altered, or revoked by the second-instance court);
· Performance results with regard to efficiency (evaluated here is the judges efficiency and their ability to meet statutory deadlines in the delivery of documents, scheduling trials, drafting and delivery of decisions etc.);
· Evaluation of expertise (based on information available to the court president about the level of knowledge of and familiarity with regulations and case-law, case preparation, ability to analyze the case, discussion skills, management of panel sessions skills, quality of decisions, active contribution to the sessions of court divisions, participation in trainings etc.);
· Professionalism (evaluated here is conscientiousness, efficiency, compliance with and use of working hours, relationships with clients, work colleagues, ombudsman, attitude towards the court property and assets, number of complaints regarding a judge’s performance and their well-foundedness, etc.);
· Use of IT (evaluated here is the ability of the judge to use the computer independently in case preparation, storing of files, use of documentation from the court server, use of the Internet and the ability to manage the case electronically etc.).
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
The advantage of the established system is that it covers all performance aspects of judges which need to be monitored and evaluated.
The main disadvantage of the established system is the fact that the orientation norms for judges have been set quite high and the judges are forced to meet a certain quantity of verdicts at the expense of quality.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Better quality of court decisions could be obtained by increasing the number of judges and lowering the quantitative norms that have been set for judges. This would enable the judges to devote themselves even more to individual cases and it would make it possible for some judges to specialize in certain type of cases.
Further improvement of the training system for judges and the exchange of experiences at the state level and beyond would also contribute to improving the quality of decisions.
Is a system of evaluation of quality of each of the following in force in your State:
· professional performance of police? Yes X no □
(Within the police authorities, there are internal bodies evaluating the performance of police officials. In addition, the police, just like any other state authority, regularly file annual reports to the authorities of the executive and legislative braches of government which evaluate their performance. However, there is no standing and independent body or institution whose jurisdiction would include monitoring and evaluation of performance of police officials.)
· professional performance of public prosecution services? yes X no □
(BiH has established a single system of monitoring and evaluating the performance of judges and prosecutors through the High Judicial and Prosecutorial Council of BiH.)
· professional performance of lawyers? yes X no □
(Even though the system of regular annual performance appraisal of all lawyers has not been established yet, every client who is dissatisfied with the performance of lawyers can contact the relevant BAR Association which is obliged to investigate the allegations of the client and undertake appropriate measures against the lawyer which may include erasing his/her name from the list of attorneys.)
· enforcement of judgements? yes □ no X
· efficiency of ministry of justice services in general? yes X no □
· quality of legislation? yes □ no X