It’s the EU’s turn now

The December 28 agreement of the six largest parties inBosnia and Herzegovina’s parliament to form the state-level Council of Ministers (CoM), some 15 months after general elections, came as a surprise to most observers. Party leaders said that none of these parties achieved their maximum aims. So is this the beginning of a new era of political compromise and progress in BiH?

To answer this question, it is most useful to assess current developments from the perspective Banja Luka. Was this a shift towards a constructive approach vis-à-vis the state and away from the current policy of “affirmation” of the RS through weakening state institutions? The evidence suggests otherwise. Banja Luka’s only compromise was to back off from laying claim to the Foreign Ministry. But the RS either retained or gained control of key ministries, such as Finance and Foreign Trade, which will enable Dodik to continue to prevent any strengthening of state institutions. The deal included two pieces of legislation which are required to enable BiH to apply for EU candidacy. (On the third requirement, “credible effort” toward meeting the ECtHR’s Sejdic-Finci ruling of December 2009, no agreement could be reached. ) On the law on census, an EU requirement that has long been unmet, the SDA finally relented to the RS. On the second of these, a Law on state aid, Dodik insisted on a decision-making process requiring consensus among state- and entity-level executives, enabling him to block anything not to his liking. This has been the modus operandi by which the RS has undercut many other state-level institutions.

There was agreement to adopt a 2011 budget based on actual expenditures post hoc, a requirement to allow temporary financing in the first quarter of 2012, to stave off budgetary collapse until a 2012 state budget can be agreed by the incoming CoM. Banja Luka is insisting to have the state budget slashed substantially, a move that would endanger the functioning of many institutions that are already endangered by last year’s temporary financing. At the same time, the RS government has increased the RS budget by approximately 11 per cent. .

The reality of Dodik’s new “policy of compromise” comes into even sharper focus when one takes into account the ongoing confrontation between the RS and state judicial institutions. In spite of fierce resistance of the relevant domestic judicial institutions and the most authoritative international organizations, the RS National Assembly passed an RS Law on Courts on December 13, drafted by the RS Ministry of Justice. This act undercut the constitutional order of BiH and confronted the EU with a challenge unlike any other in 2011. The performance of the RS government in the six months prior to passing the law has all the classical elements of that of undemocratic regimes. It ignored the objections of the domestic judiciary and international community, at times feigning goodwill, but ultimately dismissing these concerns. The RS Government also perverted the facts in response to the criticism it deservedly received.

The new Law on Courts unilaterally introduces changes that seriously undercut the independence of the judiciary in the RS and undermine the authority and competence of the High Judicial and Prosecutorial Council (HJPC), which guarantees the integrity and independence of the judiciary.

The HJPC was established in 2004 as part of a strategy to establish an independent and integrated judicial system inBosnia, as well as to enable EU integration. It was established by the constitutional organs of BiH at both the state and entity levels through a decision to transfer certain entity competencies to a single HJPC. It has thus become part ofBosnia’s constitutional order. The HJPC has the sole authority to appoint judges and prosecutors at all levels of the judiciary in BiH. It also has wide, on many issues exclusive, authority over disciplinary procedures, judicial administration, statistics and drafting of judicial budgets. Its members are mostly drawn from judicial institutions throughout the country, at all governance levels.

In a September opinion, the HJPC identified 14 articles/chapters in the RS’ then-draft law as representing a serious attack on judicial independence and/or the purview of HJPC itself. That assessment has found the support not only of the EUSR and OSCE, but also of domestic judges’ associations, including the RS Judges’ Association, which stated inter alia that the “majority of content of the draft Law does not support the principles of an independent judiciary” and threatens the advances made in the development of the judiciary in the RS. The RS judges expressed support for the HJPC, characterizing its establishment as an “important step forward towards the building of an independent judiciary.”

There are at least four articles or chapters in the new law that violate or contradict the (state-level) Law on HJPC. The HJPC stated these elements are “illegal.” Among them is an article on judicial budgets whose limitation of the HJPC’s competence, in the Council’s words, renders the conclusions of the EU’s Second Structured Dialogue “obsolete.” Chapter III of the new law is especially indicative of the Dodik regimes’ aims and its “legal” techniques behind it. It essentially cuts and pastes the conditions for holding judicial office from the Law on HJPC, where this competence was located to ensure uniform conditions in the whole country, into an entity law. The RS Justice Ministry’s written explanation of the law to the RSNA reveals the purpose of the exercise – to seize the authority over these critical elements of the judiciary from the HJPC. The Ministry writes that when the HJPC Law is changed in the future, these regulations must be removed from the law This demonstrates that the usurpatory approach of the Dodik regime in the RS entity vis-à-vis the state of BiH is being actively implemented, rather than being pure rhetoric (as some international officials prefer to describe it). This lies at the heart of the regressive developmentsBosniahas experienced since 2006.

Structured Dialogue, or Monologue?

The RS’s performance puts the EU on the spot. The European Commission’s Structured Dialogue with BiH on judicial reform is now directly confronted with the challenge of the RS Law on Courts. The Structured Dialogue was announced in May 2011 by EU foreign policy chief Baroness Catherine Ashton on her visit to Banja Luka with Miroslav Lajčák, Managing Director for Russia, Eastern Neighbourhood and Western Balkans in the EU’s diplomatic service (EEAS), as part of a deal to get Dodik to back off a referendum on the constitutionality of state-level judicial institutions set up after Dayton and of the OHR. With this surprise move they bypassed the OHR and the Peace Implementation Council, most of whose members, including even most EU countries, were at that time ready to support High Representative (and then-EUSR) Valentin Inzko as he sought to rescind the referendum decision and a raft of RSNA conclusions. One of those conclusions called for RS institutions not to recognize any judicial institutions above RS entity level, implying also the Constitutional Court of BiH, an institution established inDayton. Brussels touted the deal as a “soft power” alternative to the use of the High Rep’s Bonn Powers and as a harbinger of a new EU strategy, to be completed with the decoupling of the “reinforced EUSR” from the OHR and the new EUSR Peter Sørensen taking office on September 1.

The draft law was a topic at the second Structured Dialogue meeting in November 2011. At the meeting, RS representatives promised full cooperation with the HJPC. In the second session’s conclusion, the Commission expressed its expectation of full cooperation. The Commission also demanded the adjustment of the draft law to secure the independence of the judiciary and in “full coherence with the prerogatives and recommendations of the HJPC.” After the second Structured Dialogue ended, the RS justice ministry avoided any contact with the HJPC and sent the draft into parliamentary procedure without introducing important changes proposed by the HJPC. New EUSR/Head of Delegation Peter Sørensen’s letter to RS Justice Minister Džerard Selman of December 12, on the eve of the RSNA vote on the law, was similarly ignored. Justice Minister Selman’s reply, signed on the very day the vote was supposed to take place, claimed that a December 9 meeting with members of the HJPC arrived at “agreement on approximately 90% of the proposed solutions.” According to the HJPC this is not correct. Three changes to the draft were made after the meeting but the most important objections of the HJPC were not introduced in the draft law. Accordingly, in the final version of the RS Law on Courts, fewer than half of the 14 articles and chapters to which the HJPC objected were adjusted to its recommendations. The majority remained unchanged, including almost all those which undermine the HJPC’s legal role (and the Structured Dialogue’s conclusions).

It is the EU, including Head of Delegation Peter Sørensen, now on the receiving end of Banja Luka’s humiliation, taking the place of the long-suffering and constrained High Representative.

Your Ball, EU

Now the ball is squarely in the EU’s – and particularly the Commission’s – court. It is now time for the EU to show in practice what it has long claimed – that it has a functioning strategy forBosnia. Doing so would mean the EEAS, EC, and EU members standing firmly behind EUSR/Head of Delegation Peter Sørensen, insisting that the RS Law be changed to fully comply with the HJPC’s recommendations. Compromise in the face of RS brinkmanship and intransigence, followed by declarations of “progress,” may once again appear tempting, especially in light of the (yet-to-materialize) new Council of Ministers. The EU sets great store in “maintaining momentum.” But the cost of such a Potemkin victory would be high indeed.

The EU has no choice but to support Sørensen. It is not merely the constitutional order of BiH and independence of its judicial institutions at stake. Retreat would torpedo the Structured Dialogue and sink Baroness Ashton’s personal credibility.

Furthermore, allowing the RS Law to stand as-is would gut EUSR/Head of Delegation Peter Sørensen’s authority in the early days of his mandate. When the European Council decided on March 21, 2011 to establish a single EU representative inBosnia and Herzegovina, it not only provided this “reinforced” EUSR with a “set of instruments to maximize the incentives provided by the EU.” The Council also established as a final resort the so-called “restrictive measures ” – the EU’s “stick” to be employed in the event that the “carrot” of EU integration does not work. These measures “should be imposed against certain natural and legal persons whose activities undermine the sovereignty, territorial integrity, constitutional order…ofBosnia and Herzegovina.”

It’s the EU’s turn now.

Bodo Weber is a policy analyst and Senior Associate of the Democratization Policy Council, a global initiative for accountability in democracy promotion. He lives in Berlin.


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