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
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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
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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
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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
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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
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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
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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
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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