Court of Bosnia and Herzegovina: President of High Judical and Prosecutional Council is misleading the Public

June 4, 2020 8:00 AM

 

Concerning the statement made by the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, Judge Milan Tegeltija, in the “Dan uživo“ show on the N1 TV, broadcast on 2 June 2020, as well as in other printed and electronic media, in which, apart from commenting on a judgment delivered by the Court of Bosnia and Herzegovina, he presented a series of incorrect pieces of information, which is why, for the purpose of proper public information, the Court of Bosnia and Herzegovina publicly announces that president and certain members of the HJCP have been misleading the public.

The Court of Bosnia and Herzegovina primarily underlines that it is a judicial institution whose basic means of communication is the reasoned judgment. Judgment’s reasoning contains a rationale for the decision, and such rationale is the only thing relevant as to its validity.

Also, the Court is not in the habit of publicly polemicizing with the actors of important reform processes in the judicial system. However, with reference to a part of the interview given by Judge Milan Tegeltija, President of the HJPC of BiH, aired on an N1 TV show, as well as his statements given to other media outlets, in which he spoke about the judgment delivered by the Court of Bosnia and Herzegovina, issued on the motion filed by a judge of the District Court in Banja Luka, which annulled the Rulebook on the Procedure of Performance Evaluation of Judicial Office Holders and the Criteria for Performance Evaluation of Judges in BiH, as being in contravention of law, this time the Court will give a direct response.

The President of the HJPC of BiH first said he would not comment on the Court’s judgment, but during all of his public appearances he actually went on to comment, in various ways, the essential elements of what the judgment relates to, and thus proceeded in contravention of his just recently given public promise, standards of public communication, and ultimately in breach of the democratic principle that the Court should have the last say, and that the media and the public are not a place where one should be attempting to prove the validity of an annulled act, by providing additional justification and by hiding behind the recommendations given by the European Commission.

The Court would like to remind the President of the HJPC of BiH that it is in contravention of the European standards on accountability and transparency that an HJPC president, who is a judge by profession and a party to the proceeding, should appear in the media and the public and present justification for any acts annulled by the Court in a reasoned judgment. Such a conduct amounts to unauthorized commenting of a judgment, and is misleading the public.

In that regard, the Court will elaborate on the incorrect statements given by the president of our independent regulator of the judiciary, which is in charge of promoting the most important requirement of the undisputed principle of the rule of law – the independent judiciary.

In the above mentioned appearance on the N1 TV, the President of the HJPC BiH inter alia noted that the annulled Rulebook on the Procedure for Performance Evaluation of Judges has been in existence since 2008. Asked by the host of the program whether the annulled Rulebook perhaps had some other form, he responds:

No. The essential difference is in that over the period between 2008 and 2018, the Rulebook did not include the judges of the Court of BiH, but rather all other judges. Thus, in 2018, pursuant to the recommendations of the European Commission, the Peer Review recommendations, we have also included therein two issues, all judges of the Court of BiH and the President of the Court of BiH.”

The essential difference between the two Rulebooks has been best illustrated in the reasoning of the Judgment of the Court of BiH of 19 May 2020, published on the Court’s website:

“In the concrete case, the normative content of the contested Rulebook introduces legal institutions (the jurisdiction of the HJPC, as the second instance body, over the performance evaluation procedure, complaints and supervision by the Commission), which are not provided by the Law, which indisputably indicates that the contested act is in contravention of substantive law.”

The essential difference for which the said Rulebook was annulled is the fact that the HJPC BiH has exceeded its authority and introduced non-existent legal institutions without any valid legal grounds, not because of the inclusion of judges and the President of the Court of Bosnia and Herzegovina therein.

The President of the HJPC BiH stated repeatedly that the annulled Rulebook and the Criteria have been prepared in coordination with the European Commission and in line with the peer review and expert recommendations, and that this was an obligation in the process of accession of BiH to the European Union etc.

The Court of Bosnia and Herzegovina reminds the President of the HJPC BiH that the fulfilment of obligations from the process of accession of Bosnia and Herzegovina to the European Union must be consistent with the domestic legislation, and that the regularity of a bylaw in the constitutional system of Bosnia and Herzegovina does not depend on opinions of experts but on the positive legislation based on which the Court of Bosnia and Herzegovina acted in the case in question.

Therefore, it is wrong and forbidden to shape a public opinion in terms that something was done under the auspices of the European Commission, that it is an obligation in the accession process, thereby attempting to create a semblance of regularity of bylaws that have been annulled by the judgment of a court of appropriate jurisdiction on account of multiple contraventions of law. That can be clearly construed as exerting pressure on the Court, compounded by the fact that not all legal remedies in this case have been exhausted.

The Court of Bosnia and Herzegovina expresses its concern over the emphasis on this argument for the purpose of justifying the validity of the bylaws annulled for being in contravention of law, and expresses its belief that the European Commission would not insist on an act that is in contravention of law and unsupported by positive law, and that it did not receive proper information from members of the HJPC BiH.

Disparaging statements by members of the HJPC BiH at today’s session, commenting on the Court’s judgment in an inappropriate manner, can also be characterized as additional pressure on the Court. To make things even more absurd, the disparaging remarks and pressure on the State Court followed after the independent regulator for justice in BiH denounced media statements given by individuals and parties to the case involving the procurement of respirators in the FBiH.

Lastly, the Court of Bosnia and Herzegovina appeals on the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, as a conscientious judicial office holder, to stop giving media statements commenting on the judgment of the Court of Bosnia and Herzegovina and forming a public opinion in terms that the Rulebook and the Criteria have been annulled for non-legal reasons.

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