BOSNIA - GOVERNMENT LAUNCHES NATIONAL JUSTICE

UNCLAS SARAJEVO 002294 SIPDIS SENSITIVE SIPDIS EUR/SCE (STINCHCOMB),EUR/ACE (TEFFT, DUNN),S/WCI (WILLIAMSON, LAVINE),INL FOR KIMMEL; DOJ PASS TO OPDAT KARL ALEXANDRE E.O. 12958: N/A TAGS: PGOV PREL KJUS BK SUBJECT: BOSNIA - GOVERNMENT LAUNCHES NATIONAL JUSTICE SECTOR REFORM STRATEGY REF: A. SARAJEVO 1625 B. SARAJEVO 2073 SENSITIVE BUT UNCLASSIFIED -- PLEASE TREAT ACCORDINGLY. SUMMARY -------------- ¶1. (SBU) Early in his tenure, High Representative Miroslav Lajcak indicated that he would focus greater OHR attention on the justice sector. His preoccuption with police reform and now the current poltiical crisis with Republika Srpska (RS) meant that he has not devoted as much time to the issue as he had planned. Nonetheless, Lajcak has urged government officials to adopt and implement a national strategy to address the sector's shortcomings, which the BiH Ministry of Justice published on October 1 and expects to finalize in the next two months. Lajcak will also present to the October 30-31 Peace Implementation Council a rule of law paper that addresses justice sector issues. Justice sector reform remains important to Bosnia's development as a stable, functional state. However, given the current political climate, much-needed justice sector reform is likely to be postponed, if not derailed altogether. END SUMMARY. BACKGROUND -------------- ¶2. (U) Between 2000 and 2005, Bosnia,s justice sector underwent major reforms intended to establish key institutions and modern legal practices. High Representative Paddy Ashdown imposed legislation that created the State Court in 2000 (though the Court did not become operational until 2002),and created the Independent Judicial Council (IJC) to coordinate international community efforts in the justice sector. With IJC,s assistance, in 2003 the Bosnian government established the State Prosecutor,s Office and instituted national Criminal and Civil Procedure Codes, which replaced the inquisitorial with an adversarial system. In 2004, the IJC created the High Judicial and Prosecutorial Council (HJPC),responsible for appointing, evaluating, and disciplining judges and prosecutors. It also established mechanisms to vet judges and prosecutors; regulated the legal profession; established special chambers for war and organized crimes in the criminal division of the courts and in prosecutors, offices; revamped internal court administration; and reappointed the entire BiH judiciary. ¶3. (U) While far-reaching, these reforms left intact a fragmented justice sector with four overlapping but distinct jurisdictions (State, Republika Srpska, Federation and Brcko District). Today the judicial system lacks a hierarchical structure, harmonization of legal codes and practices, and a state Supreme Court empowered to render final opinions on legal disputes. There are two entity supreme courts (Federation, RS),along with an appellate court for Brcko district, and 14 seperate ministries of justice (BiH, the Federation,s ten cantons, and the RS). The country also has three separate bar exams, three professional judges and prosecutors, associations, two defense bars, and two judicial and prosecutorial centers. The State Court and Prosecutor,s Office have authority only over competencies specifically granted to them, such as war crimes, inter-entity financial crimes (organized crime, and corruption),and terrorism and other crimes against the State. As a result, the State Court can not review the decisions of other courts nor can the State Prosecutor,s Office exert authority over other prosecutors, offices in areas outside of their competencies. NATIONAL JUSTICE SECTOR STRATEGY KICKS OFF -------------- ¶4. (U) While the government and the international community remained focused on police and constitutional reform, justice sector officials, pressured by the international donor community, have been preparing an ambitious strategy to address systemic shortcomings in the justice system. The idea for the initiative stemmed from a March 2006 donor conference in Brussels, where the international community pledged support for a comprehensive strategy led by the Ministry of Justice. In September of that year, Justice Minister Barisa Colak signed a Memorandum of Understanding with the British Ambassador to devise and implement the project. With technical and financial assistance from the British government, the Ministry established a steering group comprised of the country,s top justice officials to provide political support and guidance to the process. It also created a Sector for Strategic Planning, Aid Coordination, and European Integration (SSPACEI) to coordinate activities. SSPACEI, in turn, formed working groups made up of representatives from all levels of government to devise the strategy. ¶5. (SBU) From December 2006 to September 2007, the working groups drafted a strategy based on five pillars: judicial reform, execution of criminal sanctions, access to justice, support to economic growth, and development of a well-managed and coordinated sector. Despite initial obstruction from RS representatives opposed to efforts to strengthen the State at the expense of the entities, the working groups stayed on schedule, and on October 1, published a draft 2008-2012 strategic work plan with 63 recommendations. Working group representatives agreed on all but four recommendations regarding constitutional issues that give the state authority over competencies now held by the entities. The Ministry is consulting with stakeholders during the next two months, and hopes that the State, two entities, and Brcko district will adopt the strategy by year,s end. THE FIVE PILLARS -------------- ¶6. (U) Under the first pillar, Judicial System, the working groups tackled the three most crucial issues facing the sector: creating a Supreme Court, harmonizing codes and practices, and bolstering the judiciary,s independence. They recognized the need to harmonize the country,s disparate codes and practices, but disagreed on whether to form a single body of legal codes and practices. Because they also disagreed on the best structural mechanism to create to ensure harmonization, they offered policymakers the option of creating a Supreme Court or forming a permanent panel of court presidents. This panel would exchange views on court rulings and publish joint but non-binding positions to guide the courts. The working groups also proposed shoring up judicial independence by granting the HJPC the right to appoint the Constitutional Court,s six national judges (who are currently appointed by entity parliaments) and consolidating the country,s fourteen justice sector budgets (State, the Federation,s ten cantons, and the RS). Consolidating the budget would make financing less susceptible to political pressure and allow a more efficient use of resources. The working groups recommended creating a single budget or separate budgets for the four jurisdictions. ¶7. (U) In addition, the working groups considered measures aimed at increasing the courts, efficiency and accountability and professionalism of judges, prosecutors, and other staff. They suggested administrative measures that would reduce the current case backlog (as of December 31, 2006) of 1.9 million cases, 1.2 million of which involves small value claims, mostly non-payment of utility bills. They endorsed strengthening bar exams and expanding new performance standards that would give more weight to the complexity of cases taken on by judges and prosecutors, rather than the number of cases completed. The working groups also called for greater transparency in disciplinary procedures and more specialized training for judges and prosecutors. ¶8. (U) Regarding the second pillar, execution of criminal sanctions, the working groups considered steps to better manage the country,s fourteen prisons and to address inequalities in relation to laws, levels of staffing and funding, conditions, and treatment. Currently, prison wardens manage their individual prisons with limited resources as best they can and are not accountable to ministries of justice, which in turn lack needed input to make informed decisions about prison operations. As a result, the country,s prisons are dilapidated and overcrowded, with most nearing full capacity, given the limited use of alternative non-custodial sanctions and the ineffective use of conditional release. Some are also below international standards, regarding accommodation, health care, and special treatment for female prisoners, juveniles, mentally incapacitated, and other special needs prisoners (See Ref A). To address these problems, the working groups recommended passing new legislation to harmonize criminal sanctions, developing a conditional release system and use of alternative sentences, improving the physical conditions of prisons, advancing the health care system, and providing training for prison staff, among other measures. However, they disagreed on how to administer the system -- whether to establish a single prison administration system or one for each of the four jurisdictions. ¶9. (U) The remaining pillars focused on the following: the need for free legal aid and public access to information, the detrimental effect that lengthy court proceedings has on commerce and trade, and the need to establish a well-coordinated sector. To address these problems, the working groups recommended creating a free legal aid system nation-wide, increasing access to information from the courts and prosecutors, offices, continuing land registry reform, and expanding the use of mediation. For example, they pointed out that donor-funded pilot initiatives to test commercial mediation in the Basic Court of Banja Luka and the Municipal Court of Sarajevo resolved 340 commercial disputes, freeing up assets worth KM 18 million (approximately 13.748 million USD). The woking groups also suggested strengthening the BiH Ministry of Justice's coordinating role, establishing strategic planning and development capacities in the justice ministries, and creating mechanisms to coordinate with donors and to support harmonization with EU directives and practices. HIGH REP LACJAK LENDS SUPPORT -------------- ¶10. (SBU) Unlike his predecessor, HR Lajcak has taken an active interest in the justice sector and has had dialogue with politicians, justice sector officials, and donors on the need for reform. During a September 6 speech to a joint session of Parliament, he expressed support for the justice sector strategy, declaring that it needs to be finalized and adopted as soon as possible. He bluntly told politicians that their support for the strategy should not include "political interference in the structure and the operation of the judiciary, motivated solely by selfish and short-term private objectives." On September 28, HR Lajcak held a Steering Board meeting with justice sector officials to discuss efforts to tackle the officials, stated priorities, reiterating the need to adopt the strategy quickly. He will also present to the October 30-31 Peace Implementation Council a rule of law paper that addresses justice sector issues. Lajcak's plans to engage more proactively in the justice sector, however, have been postponed by police reform and the current political crisis with the RS. BUT MUCH MORE WORK LIES AHEAD -------------- ¶11. (SBU) Embassy contacts remain guarded about the draft strategy,s roll out. They praise the progress made by the working groups, surprised that the working groups managed to reach consensus on 59 of 63 recommendations put forth. Still, contacts maintain that the working groups, efforts were largely the result of prodding by the UK, noting that national representatives were often absent at meetings. They also question the BiH government,s ability to carry out the project absent significant international involvement. They pointed out that SSPACEI is under-staffed and ill-equipped to coordinate the project properly, that the Assistant Justice Minister in charge of the project is frequently on trips abroad, and that the persistent squabbling and gamemanship among top justice sector officials would divert attention away from the process or impede it altogether. They fear that, unless the international community lobbies for the four governments to adopt and implement the justice sector strategy, the strategy may become little more than a well-intentioned paper exercise. COMMENT -------------- ¶12. (SBU) We welcome the long overdue initiative by the BiH Ministry of Justice to reform the justice sector, though it is unfortunate that it, along with many other reforms, are likely to remain hostage to the deteriorating political climate here. If the strategy were adopted and implemented, it would advance our goal of ensuring that Bosnia is a stable and functional state. However, it is worth noting that RS representatives obstructed the working groups' efforts for months before eventually signing on to the draft strategy. Given the current political crisis, RS judicial officials could withdraw their support for it altogether. If this were to occur, efforts to reform the justice strategy would suffer a significant setback, as it would likely take a long time to rebuild the trust that developed within the working groups and to get the initiative back on track. ENGLISH