ACCESS TO JUSTICE IN

BOSNIA AND HERZEGOVINA

Collection of public policy analyses in the field of judiciary

Azra ehi, Elma Demir, Ivana Stipanovi, Jasmin Jaarevi, Maja Sahadi, Maja otari, Milena Savi, Rebeka Kotlo

Collection of public policy analyses in the field of judiciary

BOSNIA AND HERZEGOVINA

ACCESS TO JUSTICE IN

The Justice Network in Bosnia and Herzegovina gathers 52 non-governmental organizations and professional associations in the justice sector that have a goal to support enhancement of the rule of law and justice implementation in BiH via advocacy campaigns and raising public awareness, monitoring programs and initiatives for public policy reforms and legislative reforms. Copyright 2011 Justice Network in Bosna and Herzegovina - Zmaja od Bosne 8, 71000, Sarajevo. Authors: Azra ehi, Elma Demir, Ivana Stipanovi, Jasmin Jaarevi, Maja Sahadi, Maja otari, Milena Savi, Rebeka Kotlo Proofreader: Tamara Sarajli-Slavni; Designed and prepared by: Ilvana Hamaluki Publisher: Justice Network in Bosna and Herzegovina; Print: tamparija Fojnica DD

This publication was published with the support of the American people via the US Agency for International Development (USAID). The publication authors are responsible for its contents. Viewpoints presented herein do not reflect standpoints of the USAID or the Government of the United States of America. Standpoints presented herein do not necessarily represent standpoints of all members of the Justice Network in BiH.

CONTENTS 4 5 9 11 31 PREAMBLE ABOUT THE JUSTICE NETWORK IN BOSNIA AND HERZEGOVINA INTRODUCTION Protection of Victims /Witnesses of Genocide, Crimes against Humanity and War Crimes before the Courts in BiH The Role of NGOs in the Light of Educational Recommendations from the Proposed Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure of BiH Brko District (Non-) Equal Access to Justice Due to Non-existence of a Supreme Court of BiH: Establishment of a Supreme Court of Bosnia and Herzegovina: Indolence of the Government and/or Infirmity of Citizens Waiting for Godot: Efficiency of the BiH Judicial System in the Protection of Political Rights of Minorities When Will my Case Be Resolved? Implementation of the Freedom of Access to Information Act in the Justice Sector in BiH ANNEX: Access to information request form Free Legal Aid in Herzegovina-Neretva Canton: Role of Non-Governmental Organizations

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59 76 93 95

117 Court Protection of Rights in Labor Relations in Bosnia and Herzegovina 155 Recommendations: Better Access to Justice in Bosnia and Herzegovina

PREAMBLE
Over recent years, a substantial progress was achieved in the justice sector reform in BiH. However, although significant reform laws and bylaws were passed, as well as many strategic documents and related action plans, the justice sector still faces several problems. Sustainability of the reforms implemented so far is uncertain, unless activities building upon the existing achievements are intensified, along with eliminating the present weaknesses within the entire justice system. The obligation to establish and manage the entire reform process does not lie on the government only. By conducting researches, preparing analyses and presenting factual situations, civil society organizations can strongly contribute to the process of decision and policy making based on citizens needs, and positively impact the quality of providing public services. At the same time, through such activities, the civil society puts democratic pressure on representatives of government institutions to fulfill the obligations they have undertaken, and encourages them to adopt the policies that incorporate the principles advocated for by the civil society. NGOs acting as members of the Justice Network in Bosnia and Herzegovina also decided to apply such approach to the dialogue with government representatives. Through joint actions, the Network members advocate for a society built upon on the rule of law and protection of human rights. Members of the Justice Network advocate for these values and citizens interests in the justice sector using the strength of own arguments: by conducting researches and writing analyses. For this specific purpose, the publication Access to Justice in Bosnia and Herzegovina was published. It incorporates several analyses dealing with the issue of access to justice in the segment of judiciary from different aspects. The general topic was selected in view of the fact that the level of actual access to justice in a country reflects the level of respect of basic rights and freedoms of its citizens, and the fact that, in the opinion of experts and representatives of the judiciary, the access to justice in Bosnia and Herzegovina has been largely restricted. All vulnerable social groups, such as the unemployed, women, people with special needs, refugees and displaced persons, the Roma and other national minorities are facing various problems when it comes to protection of their basic rights. The very fact that one half of BiH population suffers social exclusion indicates the scope of the problem. There are multiple causes of the poor access to justice: complexity of the judicial and political systems; no case
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law harmonization; complicated and lengthy procedures; lack of information; costly court proceedings; ignorance when it comes to laws and their protection mechanisms; corruption, etc. Dealing with these problems, authors of the analyses incorporated in the Access to Justice in Bosnia and Herzegovina publication try to explain certain reform activities in the justice sector, analyze various options, give recommendations and propose solutions for the issues in question, with the objective to encourage positive changes in the judiciary and inform the public about them. Therefore, we hope that this publication will serve as a useful source of information for representatives of the judiciary, providing an insight in certain issues from the perspective of the civil society, and that it will initiate and develop interest in activities in the field of judiciary among civil society organizations. We would like to use this opportunity to thank all those who participated in preparing the analyses and the publication. We especially thank the US Agency for International Development (USAID) that has provided technical support to the Justice Network in BiH and its members via the Justice Sector Development Project II.

ABOUT THE JUSTICE NETWORK IN BOSNIA AND HERZEGOVINA

The Justice Network in BiH, which brings together 52 civil society organizations, has the objective to support the efficiency, independence and accountability of the judicial system of Bosnia and Herzegovina, and quality informing, educating and representing the interests of citizens in the justice sector. It was established with the support of the USAID-funded Justice Sector Development Project II and coordination by the Association for Democratic Initiatives (ADI). The Network operates as a platform for exchange of information, best practices and experiences, implementation of analyses and researches, public advocacy campaigns and education, in order to establish a synergy between all actors in the BiH judiciary. Over the past year since the Network establishment, its members have taken part in several joint capacity building and strategic planning activities. The Network members also prepared a Report with recommendations related to the Universal Periodic Review (UPR) of human rights in BiH, in the justice sector, which was
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presented by several members at a session of the UN Human Rights Council in 2010. The Network members are currently involved in joint research and monitoring of the work of justice sector institutions. Two working groups were formed for this purpose. The Justice Network working group for public policy analysis in the justice sector brings together seven representatives of the Justice Network members who jointly work on development of a research of access to justice in BiH. As a result of this Working Groups efforts, the Access to Justice in Bosnia and Herzegovina publication was created. At the time of publishing the research, the Justice Network is organizing a roundtable and a press conference on the same topic, in order to inform professional and general public with the issue of access to justice of BiH citizens through analyses of free legal aid services at the cantonal level; access to information in courts through implementation of the Freedom of Access to Information Act; protection of workers rights through the judiciary; protection of political rights of national minorities in BiH through the judiciary; necessary harmonization of case law; the role of the non-governmental sector in re-socialization of juvenile delinquents; and protection of war crime witnesses /victims. The JN Working Group for development of the Universal Periodic Review (UPR) of Bosnia and Herzegovina includes nine representatives of the Network members and conducts monitoring of justice sector institutions with regard to the obligation to implement UPR recommendations that Bosnia and Herzegovina has undertaken in the segment of judiciary. The above-mentioned monitoring report will be published this year and presented at the roundtable and the press conference, in order to encourage judicial institutions to respect their obligations towards the international community and citizens of BiH. Apart from the aforementioned activities, the Justice Network also informs its members and other representatives of the civil society, as well as representatives of justice sector institutions about its activities and activities of its members in the segment of judiciary via its website www.mrezapravde.ba, which provides useful and informative contents when it comes to the justice sector: the latest news from judicial institutions and the media are posted on a regular basis, as well as information about donors in the justice sector and other useful materials and links.

List of BiH Justice Network members: Association for Democratic Initiatives (ADI) Sarajevo Agency for Local Development Initiatives (ALDI) Gorade Alternative Kakanj Analitika Center for Social Research Human Rights Office Tuzla Center for Civic Cooperation Livno Information and Legal Aid Center Zvornik Center for Investigative Reporting Center for Culture of Dialogue Human Rights Center Mostaru Human Rights Center University of Sarajevo Center for Promotion of Civil Society Center for Development and Support Tuzla Democratic Youth Movement DON Prijedor European Law Students Association Bosnia and Herzegovina Open Society Fund Bosnia & Herzegovina Foundation of Local Democracy Sarajevo Forum of Tuzla Citizens Helsinki Committee for Human Rights in Bosnia and Herzegovina Helsinki Committee for Human Rights in Republika Srpska Research and Documentation Center Youth Initiative for Human Rights BiH IPAK-Youth Builds the Future; Mladost gradi budunost Bread of St Antony League for Protection of Private Property and Human Rights Trebinje Mediacentar Narko-NE Notary Chamber of Federation of BiH Blue Sphere Rights for All Legal Institute in BiH PRONI Center for Youth Development Association of Citizens of Republika Srpska Stop Mobbing Association of Mediators BiH Young Lawyers Association in B&H Association Lawyer Sarajevo
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 Association of Sarajevo Law School Students Association of Prosecutors BiH Association of Prosecutors FBiH Association of Prosecutors RS Association of Bankruptcy Trustees BiH Association of Bankruptcy Trustees RS Association of Legal Associates and Advisors in Courts and Prosecutors Offices in BiH BiH Association of Judges FBiH Association of Judges RS Association of Judges Association for International Law in BiH Association of Women Judges in BiH Vaa prava BiH Vesta NGO and Radio Tuzla Women to Women

INTRODUCTION
A functional judiciary should provide all citizens with equal access to justice, equal legal protection and equal possibilities to request and obtain legal remedies for violations of their rights by public or private institutions and individuals before the court or through other dispute resolution mechanisms. Therefore, access to justice refers to methods that can be used by individuals to obtain legal information and services for the purpose of dispute resolution. By assessing the access to justice in Bosnia and Herzegovina, and pointing out problems that occur in this segment, authors of the analyses included in the Access to Justice in Bosnia and Herzegovina publication try at the same time to provide an insight into the level of respect for basic rights and freedoms of BiH citizens. The first analysis: Protection of Victims /Witnesses of Genocide, Crimes against Humanity and War Crimes before the Courts in BiH by Azra ehi is focused on the existing mechanisms and witness protection regulations at the courts in BiH, compares them with the international standards, and points out the problem of neglecting the legal remedy victim reparation in our judiciary. In his work The Role of NGOs in the Light of Educational Recommendations from the Proposed Brko District Law on Juvenile Delinquency, Jasmin Jaarevi indicates the possibility of including the non-governmental sector in implementation of regulations in the juvenile delinquency segment. In the analysis (Non-) Equal Access to Justice Due to Non-existence of a Supreme Court of BiH, Maja Sahadi deals with the lack of efforts to harmonize caselaw due to non-existence of the supreme court instance at the state level. Waiting for Godot: Efficiency of the BiH Judicial System in the Protection of Political Rights of Minorities by Maja otari analyses constitutional provisions that affect the possibilities for protection of political rights of minorities through the judicial system in BiH. In her work When will my case be resolved? Implementation of the Freedom of Access to Information Act in the Justice Sector, Milena Savi explains the possibility of using the above-mentioned law by non-governmental organizations and citizens in communication with courts and for easier access to legal information. In the analysis The Role of Non-Governmental Organizations in Providing Free Legal Aid in HNC, Rebeka Kotlo and Ivana Stipanovi consider the possibilities
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for a more adequate and legally regulated inclusion of the non-governmental sector in providing free legal aid in HNC, and propose establishment of possible modalities for cooperation between the judiciary, administration and the NGO sector in providing free legal aid in HNC and improvement of a relevant legal framework. The publication ends with recommendations of the authors to decision makers in the justice sector and civil society representatives related to the analyses and issues they elaborated in the publication. The work Court Protection of Rights in Labor and Employment Relations in Bosnia and Herzegovina by Elma Demir deals with the issue of court efficiency in resolving cases that involve labor and employment relations, analyzes the system of legal and material protection of rights from the Labor Law and gives recommendations for improvement of the work of courts in this segment.

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Protection of Victims /Witnesses of Genocide, Crimes against Humanity and War Crimes before the Courts in BiH
Azra ehi

Witnesses (especially when being victims as well) are one of the key elements of a just and proper implementation of criminal legislation. The cooperation of prosecutors offices and courts with witnesses victims of severe criminal offenses is the basis and an indicator of the efficiency in the process of justice administering. The specific position requires a careful approach to the entire criminal case, along with protection of the witness-victim, which includes both protection of physical integrity and psycho-social and economic safety; the protection should also serve as a guarantee to the witness that he/she will not be victimized by the perpetrators actions again. Protection of witnesses-victims is an issue that the international governmental and non-governmental organizations deal with by applying special measures that determine the key role of the witness-victim with regard to the outcome of the criminal prosecution, and indicate the specific level of risk of becoming a victim again, due to their role of a witness, or at least the risk of being exposed to threats. Given the entire criminal process, one should keep in mind that it is comprised of several stages. All these stages should include protection of a witness-victim, especially when the witnesses are victims of severe criminal offenses, such as war crimes. Namely, in such cases, the limits set by the duration of a testimony and the criminal procedure itself need to be exceeded, and protection needs to be provided continually, before the start of the proceeding and after the final ruling in the relevant war crime case. In Bosnia and Herzegovina, under the excuse of the system transition that has lasted for several years, protection of witnesses-victims of war crimes committed during the 1992 1995 war in BiH is still controversial, not only due to general ignoring of the situation of these persons, but also because the existing solutions are also ignored, and relevant authorities in charge of their direct implementation are not willing to proceed in that direction. Such behavior of domestic authorities resulted in a large number of reports by international non-governmental and governmental organizations warning about the need for a more serious approach

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and sensibility of BiH towards the witnesses/victims,1 especially when it comes to reparation of the witness-victim who is entitled by relevant statutory regulations to file a property claim against the perpetrator upon ruling of the final judgment against the perpetrator due to damages the witness-victim suffered as the result of the criminal offence. However, the practice indicates that the victims-witnesses, as the parties damaged by criminal offences must find ways on their own to exercise the rights to damage compensation after the testimony. The very legal solutions and practices of the bodies relevant for implementing the protection and their possible omissions constitute the essence of this analytical and research paper. It was created on the basis of interviews with representatives of the most vulnerable category of witnesses in Bosnia and Herzegovina victims-witnesses of war crimes, their experiences when it comes to protection provided to them by judicial authorities and the state in general. This analysis of the offered solutions in the segment of witness protection on international and national levels attempts to eventually provide a summary of the current situation and above all actuate a serious approach and development of detailed analyses and recommendations for decision makers, aiming at establishment of a justice sector in BiH that would actually be able to deal with the declining confidence it currently faces. War Crime Witness/Victim Protection Methods
Witnesses represent evidentiary means the most significant and most frequently used evidentiary means before courts in BiH in war crimes cases.2 On the other hand, according to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law3 (hereinafter: UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims), victims of war crimes are:

E.g. Amnesty International Report: Whose justice? The women of Bosnia and Herzegovina are still waiting, 2009; the OSCE Mission to Bosna and Herzegovina: Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing, 2010. National strategy for processing of war crimes cases. December 2008, Sarajevo. Available at: http://www.mpr.gov.ba/userfiles/file/Projekti/Drzavna%20strategije%20 za%20rad%20 na%20predmetima%20RZ.pdf UN Resolution 60/147 of 21.03.2006.

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...persons who suffered harm individually or collectively, including physical or mental harm, emotional suffering, economic loss or impairment of their fundamental rights (...). As needed and in accordance with the national law, the term victim can also include family members or dependants of the direct victim (...). 4
Therefore, a person who suffered a traumatic experience due to violation of his/ her rights, and appears for this reason before investigating and judicial authorities as a witness, is a person that requires treatment with special care through witness support and protection programs, because their dual role exposes them to risks from threats and revenge of persons of whose crimes they are summoned to testify. However, when implementing their protection, it is necessary to obey the principle of fairness of a criminal trial,5 which implies: informing and facing the accused with all evidence presented against him/her, allowing the accused to defend himself and question witnesses, or the general right of the accused to a public trial. Due to the imperative fairness of a criminal proceeding, the task of evaluating the implementation of witness-victim protection measures or their inclusion in the protection program eventually lies on the trial chamber, which is to evaluate whether the risk that the victim is exposed to due to his/her testimony is such to justify imposing certain restrictions on the right of the accused to learn about the evidence presented against him. Further on, one should keep in mind that, apart from the danger of the perpetrators revenge, given the gravity of the criminal offense, the risk often implies possible re-traumatizing of the victim, especially victims of tortures and rapes as war crimes. Also, given the nature of these crimes that often include several perpetrators, the same witnesses often give statements in several criminal trials and get exposed to an additional risk, which certainly requires a more serious engagement of relevant national bodies6 on their protection. For these and similar reasons, good practices imply a holistic approach to the witness-victim protection, in order to encourage them to cooperate throughout the entire criminal proceeding, and provide them with the existential security as victims of traumatic experiences. The holistic approach itself would imply implementation of witness protection and support measures before, during and after the testimony. Despite the fact that the witness (evidentiary means) is also the victim of severe violations of human rights, this person is, almost without exceptions, also a party damaged by the criminal offense, and is entitled to damage compensation
4 5 6 UN Resolution 60/147. Section V, point 8. Unofficial translation. Article 6 of the European Convention on Human Rights and Fundamental Freedoms, 1950, Roma. In BiH: the prosecutors office, security agencies, the police and the court.

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or another form of restitution7, which leads to the victims recovery and supports establishment of the position/ life that the victim had enjoyed before occurrence of the circumstances that made him/her become the victim of severe violations of human rights. In accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, this right is obtained by any victim of mass violations of human rights who suffered8:

a) Physical or mental harm; b) Lost opportunities, including employment, education and social benefits; c) Material damages, moral damage and costs required for legal or expert assistance, medicine and medical services, and psychological and social services. It is therefore obvious that the victim/witness requires special treatment before and during the trial, which is the obligation of the investigating authorities and the relevant court; the victim /damaged party also requires such treatment outside the courtroom it is the obligation of the state to provide them with access to implementation of these rights. In this respect, in criminal investigations and processing of perpetrators of war crimes, crimes against humanity and other severe criminal offenses, the victim appears as a witness and requires, almost without exceptions, implementation of witness protection measures that are divided as follows:
a) Witness protection program, or according to a definition of the United Nations Office on Drugs and Crime9 , which can at the same time be viewed as an international standard a formally established, secret program with strict rules of application, which provides identity change and relocation of witnesses whose lives are endangered due to actions of a criminal group or their cooperation with the authorities; and the second and more frequent witness protection form: b) Procedural witness protection measures implemented by the prosecutor (during the investigation) and the court i.e. the trial chamber during the hearing, in order to provide the witness with a sense of freedom when giving a statement. These measures include, for instance: a video link testimony, a technology of covering the witnesss actual voice and face,
7 According to the UN Resolution 60/147 (2006), restitution includes: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to ones place of residence, restoration of employment and return of property. UN Resolution 60/147 (2006), point 20. Paraphrased definitions from a translation from English. United Nations Office on Drugs and Crime. Good practices for the protection of witnesses in criminal proceedings involving organized crime. New York, 2008. Available at: http://www.unodc.org/ documents/ organized-crime/Witness-protection-manual-Feb08.pdf

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hiding some information about the witnesss identity, enabling the witness to give s statement at a hearing behind closed door etc. Namely, the fact is that many witnesses/victims are not able to face the perpetrator, and in this respect, conditions should be provided aimed at mitigating /avoiding retraumatization. Against this background, there is an obvious obligation of the state authorities to apply the above measures in the treatment of victims /witnesses, in order to ensure the witnesses safety while minimizing the need for re-traumatization of the victim. Given the importance of the witnesses/victims for the outcome of war crimes cases and therefore for the entire society, it is necessary to pay attention to the witnesses/victims even outside the courtroom, and to make it easy for them to gain the individual feeling of justice being met. As these witnesses are victims of gross violations of human rights and the humanitarian law, the conclusion that the victims individual feeling of justice being met is one of the key elements for preserving the piece is not exaggerated.

International Witness Support / Protection Practice Given its relevance for the area of Bosnia and Herzegovina, the witness protection practice applied before international courts can be viewed through the practice of the International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) compared to the practice of the International Criminal Court (hereinafter: ICC). ICTY has a Victims and Witnesses Section seated in The Hague. The Victims and Witnesses Section (hereinafter: VWS) was established by the Statute of the ICTY as a neutral body, dedicated to supporting and protecting all witnesses whether they are called by the prosecution, defense or chambers.10 The support includes logistical, psychological and protective measures necessary for hearing the victim-witness. The section is divided into two separate entities: the Support and Operational Unit focusing on the provision of social and psychological counseling and practical assistance to witnesses, as well as logistical operations and witness administration; and the Protection Unit that coordinates responses to the security requirements of witnesses.11 The protection measures implemented by the WVS are enshrined in the Rules of Procedure and Evidence, and allow taking the witness name and/or identifying information off the public record; modifying the image in televized proceedings; assigning the witness
10 11 More details ara available at the ICTYs website: http://www.icty.org/sid/158 Ibid.

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a pseudonym; allowing the witness to testify in closed sessions; allowing the witness to testify remotely via video link.12 WVS also has a Field Office in Sarajevo, through which it responds to all requests for assistance to witnesses from the territories of the Former Yugoslavia who appeared before the ICTY.13 However, according to some research,14 the practice shows that victim-witnesses often feel abandoned after testifying before the ICTY. Namely, the WVS staff shall provide support and protection to a victimwitness in accordance with the Rules of Procedure and Evidence. If WVS finds that a witnesss life is under a serious threat it may arrange for relocation of the witness and their close family (more details below). However, the ICTY itself has no mandate to provide permanent witness support and protection. Permanent support and protection falls under the responsibility of the victim-witnesss home country.
Therefore, the ICTYs Statute and Rules do not provide sufficient possibilities when it comes to implementation of the right of victim and survivor witnesses to a remedy. Unlike the ICTY, ICC has adequate grounds to order reparation of the victim against a convicted person15. Non-existence of the ICTYs practice to make victim reparation orders is explained with the fact that such powers of the ICTY would further increase the length and complexity of trials conducted before the Tribunal.16 Given the fact that the Court of BiH primarily, but also lower-level courts in BiH that are in charge of war crimes cases have largely adopted the rules and practice of war crimes processing from the ICTY, they also adopted this limitation to rule on the criminal matter only in war crimes cases. For that reason, the legal system in BiH remains accountable for satisfying justice for victims of human rights violations during the war.

Generally, the obligation of a state to actuate implementation of victims reparation rights exists in the EU countries as well, and it is given special importance in all systems in every case that involves a witness:
12 13 14 Ibid. Ibid. See: Clarck, Natalia Janine. Judging the ICTY: has it achieved its objectives? Southeast European and Black Sea Studies, Vol.9, Nos.1-2, March June 2009, 123-142. Routledge Taylor and Francis Group. Statute of the International Criminal Court, Article 75. See: Amnesty International. Whose justice? The women of Bosnia and Herzegovina are still waiting, Amnesty International Publications 2009. Page 15.

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whose life and health are under threat due to a criminal offense and testimony; whose property was destroyed or damaged by a criminal offense; and whose constitutional rights and freedoms were violated by a criminal offense. Relocation is applied as a special protection method for this category of witnesses, and it includes resolving the witnesss social and economic issues in a new environment. In countries of the European Union, this measure is viewed as the most efficient one in terms of witness safety and personality protection, but there are certainly other alternative measures as well that eventually provide freedom and safety to a witness as a part of the protection efforts.17 Unlike the practice in the EU countries, as discussed below, this measure, as well as victim-witness reparation are practically non-existent in BiH. Victim-witness Protection Rules Before the BiH Judicial Authorities In view of the recent history of Bosnia and Herzegovina, the importance of implementation of justice and the rule of law at the times of transition, and building the state in general, Bosnia and Herzegovina has a particular interest in providing victim-witness protection and safety in order to, among other things, avoid manipulation and finally determine the historical facts. The interest of the society and the state to provide testimonies of the events, while risking lives and property of individuals, groups and even nations is obvious. Therefore, providing testimonies of given events is the obligation of the state and its authorities involved in the investigative and court procedures. In Bosnia and Herzegovina, these authorities include the police, prosecutors offices and courts criminal departments of courts on all levels, and each has the obligation to carefully examine possible testimony risks and the need for witness support. Unfortunately, the economic protection of witnesses (in terms of reparation) is neglected in Bosnia and Herzegovina, and individuals that were directly affected by criminal offenses remain in the shadow of social condemnation of the perpetrator through a final court sentence. Namely, when testifying in a criminal proceeding, every victim-witness is entitled to file a damage claim against the perpetrator. In most cases, the presiding judge instructs the witness to file litigation after the verdict in the criminal case becomes final. The social condemnation and criminal sanctions against perpetrators certainly contribute to justice and safety in many ways, but still, one can ask to what extent the justice
17 See: Gert Vermeulen. EU Standards in witness protection and collaboration with justice. Institute for International Research on Criminal Policy, Ghent University. EU Commission, JAI/20045/AGIS/077.

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has been met if those affected by the criminal offense are barely able to survive as a consequence of the criminal offense. In this respect, relevant regulations for witness protection and support before the courts in Bosnia and Herzegovina are: Law on Protection of Witnesses under Threat and Vulnerable Witnesses18 and the Witness Protection Program Law in Bosnia and Herzegovina19 that directly apply to witness protection and support, the BiH Criminal Procedure Code (hereinafter: CPCBiH)20, BiH Criminal Code (hereinafter: CCBiH)21, criminal legislation of the entities22, Law on Obligations, Law on Civil Procedure23, Freedom of Access to Information Act24, Personal Data Protection Law25 and a large number of international conventions that are applicable before the national courts. Therefore, a witness who puts personal safety under threat, or whose testimony brings danger for his/her family (threats, intimidation and similar) represents a witness under threat. Vulnerable witness is a witness who has been seriously physically or psychically traumatized by circumstances of a criminal offense, or consequently suffers a psychical disorder that makes him/her extremely sensitive. Therefore, a vulnerable witness is a victim-witness. Rights and forms of protection of this category of witnesses and witnesses under threat are regulated by the Witness Protection Law. The BiH Law on Obligations defines the personality rights26, which include rights to life, physical and mental health, reputation, honor, dignity, name, privacy of personal and family life, freedom etc. Violating the personality right represents a nonpecuniary damage, which obviously creates vulnerable witnesses in relation to the Witness Protection Law. The BiH Law on Obligations and CPC BiH27 grant them the right to damage compensation. When it comes to a vulnerable witness in a criminal proceeding, the prosecutor and the criminal court are to inform the
18 19 20 21 22 23 24 25 26 27 Official Gazette of Bosnia and Herzegovina, issues 03/03, 21/03,61/04, 55/05. Official Gazette of Bosnia and Herzegovina, issue 29/04. Official Gazette of Bosnia and Herzegovina, issues 03/03, 32/03, 36/03, 26/06, 63/04, 13/05, 48/05, 46/06, 76/06, 29/07, 32/07, 53/07, 76/07,15/08, 58/08, 12/09, 16/09 i 93/09. Official Gazette of Bosnia and Herzegovina, issues 03/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 08/10. The analysis is focused below on relevant legal framework at the level of BiH. Official Gazette of Bosnia and Herzegovina, issues 36/04 and 84/07. Official Gazette of Bosnia and Herzegovina, issue 28/00, 45/06 and 102/09. Official Gazette of Bosnia and Herzegovina, issue 49/06. Articles 174 and 175, BiH Law on Obligations. Articles 91, and 193 -204 of CPC BiH.

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witness about protection measures that are applied with the witnesss consent pursuant to the Witness Protection Law, as follows: a) Access to psychological and social assistance and professional help provided via bodies responsible for social care issues; it includes the support at the time of giving a statement in the investigation stage and during a testimony before the court by presence of relevant professionals during the examination/hearing; b) During a hearing of a vulnerable victim-witness, the court pays special attention to the examination, particularly to protect the witness from harassment and confusion; c) Enabling testimony by using technical means for transferring image and sound; d) Removal of the accused from the courtroom; e) Limitation of the right of an accused and his defense attorney to inspect files and documentation;
f) Additional measures, such as: testifying behind a screen, keeping personal details of the witness confidential for a period up to 30 years from the date when the decision became final, utilizing electronic distortion of the voice of the witness or the image of the witness.

Procedural protection measures are certainly regulated by the law and more or less applied before some courts in Bosnia and Herzegovina, which will be further discussed below. However, one of the witnesss basic rights, which has been practically ignored by judicial systems and other institutions in BiH, is reparation. Victim-witness Support in BiH: Practice Following the above summary of the existing legal frameworks in Bosnia and Herzegovina in the segment of protection of witnesses-victims of criminal offenses, it is necessary to analyze the practice and the scope of applicability or non-applicability of these rules. After several interviews with war crimes victims, persons involved in criminal prosecution of perpetrators, representatives of non-governmental organizations that provide protection to these categories, and on the basis of reports of various international organizations, recurrent shortfalls with regard to victim-witnesses and a tendency to accept this problem as unsolvable evidently come to surface.

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Protection
As mentioned above BiH has established a legal framework regulating witness protection issues and the procedure of defining and implementing protection measures. However, for various reasons, it is not implemented in reality to the extent that would ensure testifying of these people, which is in war crimes cases often decisive for a successful outcome of the proceeding. Victims are affected by the given criminal offense, but are also the main source of information about the crime itself and circumstances of the offense. Nevertheless, it seems that their position has been neglected in practice of national courts, with the exception of the Court of BiH. The OSCE specifies in its report on witness protection and support practice in war crimes cases in BiH that shortfalls in this segment amount to a systemic failure to ensure the protection of victims and witnesses, which is why the victimwitnesses are increasingly unwilling to cooperate in criminal procedures, and they no longer believe that trials can bring justice.28 Amnesty International makes a similar conclusion, expressing concerns due to witnesses reports of experienced or received threats due to shortfalls in the witness protection, which additionally contributes the impunity and represents a substantial barrier to victims access to justice.29

Results of this research show a similar situation: out of 11 interviewed victims of war crimes, only 6 testified before courts. Others refused to become witnesses, although they know the who the perpetrators are, mainly because they are afraid of harassment after the testimony. One of the victims who was a prisoner at a camp in Foa mentions that she was repeatedly raped there over a period of one month, but refuses to testify because: I have a feeling that I would receive threats after the testimony and that I would not be able to live peacefully.30The current practice of judicial authorities certainly strengthens such feelings, as do the reports of international organizations that monitor war crimes trials, warning that:

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OSCE Mission to BiH. Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing. January 2010, page 8. Amnesty International. Briefing to the UN Committee Agaist Torture. Amnesty International Publications 2010. October 2010. Pages 13 -14. Identity of the victim is known to the author. All victims that were contacted during the work on this analysis requested that their personal details remain confidential.

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 ... the judiciary does not sufficiently investigate allegations of threats against witnesses. It also often does not apply protective measures when appropriate or in a consistent and coordinated manner to ensure effectiveness.31
The threats were not only addressed to victim-witnesses, but to their families as well. In some cases, bribe was offered with the attempt to influence the victims statement, while various forms of intimidation are always present: before, during and after the testimony. Therefore, there is an obvious need to implement protection and support measures to such witnesses cumulatively and continually over a period of time. However, victim-witnesses state that the only protection they get, apart from pseudonyms during the testimony, is provided by SIPA, only when going to a trial in Sarajevo. All above examples include testimonies of victims who gave statements before the Court of BiH. Given that war crimes are also processed on lower-level courts, it is pertinent to mention that, with few exceptions, courts in the entities in principle never even try to protect witness identity, not even in indictments.32 One of the arguments of these courts is certainly the generally poor material and financial resources for implementation of some protective measures (e.g. video link testimony). However, it is unclear why they reject any form of improvised protection during trials (e.g. for testimonies behind a screen) and even proposals to assign pseudonyms to victim-witnesses. Witness protection outside the courtroom is an additional activity and obligation of relevant authorities. As mentioned above, apart from the prosecutors office, SIPA has the duty to ensure safety of war crime witnesses and has to coordinate activities in this respect with the prosecutors office. In later stages of the procedure, this coordination must be established with the trial chamber that shall hear the protected witness. However, this obligation has been reduced to mere transportation of the victim-witness from the place of residence to the court and back by SIPAs vehicle, and victims are on their own outside the courtroom. Even picking up the victimwitness at the place of residence, especially when the witness is a returnee to the area where he/she belongs to ethnic minority, exposes the witness to a risk because SIPAs vehicles and actions are recognizable, and it is easy to connect them to a testimony in war crimes cases. Amnesty International warns in one of its reports about the lack of professionalism by SIPA officers who have allegedly disclosed
31 OSCE Mission to BiH. Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing. January 2010, page 11. OSCE Mission to BiH. Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing. January 2010. Page 25.

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the names of some witnesses to the public or who were not able to react quickly in emergencies when the security of witnesses was at risk.33 Support
The National Strategy for War Crimes Processing from 200834 that was posted at the website of the BiH Ministry of Justice admits that successful conducting of criminal proceedings requires an efficient protection program for witnesses and victims. The support itself should focus on overcoming their traumatic experiences, despite the retraumatization during the testimony. Both international and national judicial systems set legal grounds for victim-witness support. This primarily implies establishment of witness support sections in courts, as were actually established at the Court of BiH, and cantonal courts. Truth is that this cannot be a satisfactory or the only form of support, given the gravity of criminal offenses against these persons and the importance of their testimonies about the crimes. The support should go beyond the court and prosecutors offices, and be established as a permanent system that would, to some extent, facilitate the recovery and normal lives of these individuals. Therefore, victim-witness support must not be reduced only to the support sections. It should be introduced as a system of activities of other state authorities, such as social protection centers, and providing certain benefits in other sectors of state authorities (assistance in medical treatments, purchase of medicines, facilitated access to psychological and mental care services, support to establishment of associations aimed at psychological recovery of victims, assistance in filing damage claims against perpetrators of criminal offenses.)

Nevertheless, although the laws stipulate victim-witness protection, only the Court of BiH and BiH Prosecutors Office have developed capacities, but only in the form of witness support sections that provide the witnesses with psychosocial assistance during the testimony35. On a positive note, three more sections were established in 2010 and 2011: at the Sarajevo Cantonal Court and Sarajevo Canton Prosecutors Office36, and at the District Court and Prosecutors
33 34 Amnesty International. Whose justice? The women of Bosnia and Herzegovina are still waiting. Amnesty International Publications 2009. September 2009. Page 27. National Strategy for War Crimes Processing. December 2008, Sarajevo. Available at: http://www.mpr.gov.ba/userfiles/file/Projekti/Drzavna%20strategije%20 za%20rad%20 na%20predmetima%20RZ.pdf, page 30. OSCE Mission to BiH. Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing. January 2010. Page 17. At the Sarajevo Canton level, two sections have been established a section for support to witnesses and victims of war crimes at the prosecutors office, and the other section within

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Office in Banja Luka. These sections provide protection to witnesses during investigations and trials, but they are not able to implement long-term protection measures. Such measures would require willingness and active involvement of other state institutions.
This practically means that victim-witnesses are indeed on their own outside the courtroom. One of the witnesses before the Court of BiH states that she was captured for 80 days in Vojno camp, where she was psycho-physically and sexually harassed. Apart from testifying under a pseudonym, she stresses that she never received any other protection or support. When the sentence was pronounced against the perpetrators, I found out that I could request damage compensation from the perpetrators, and I intend to do it through the association.37 She further explains that she obtained the right to a disability pension, which is negligible given the extent of her physical and mental suffering.38 Another victim-witness, also from Vojno camp states that he does not receive any support from the state and no privileges whatsoever, e.g. in terms of rehabilitation, participation in purchase of medicines and such like. Like all other persons who were interviewed at the time of writing this analysis, this victim-witness also concludes that the state does not take care of them at all. Such an impression is particularly strong among victims who refuse to testify. Some of them are not informed at all about the rights they are entitled to as a victim-witness, and others simply refuse to testify because the state neither wants not can ensure their safety.39 In this regard, Amnesty International made an interesting conclusion in its research: that the majority of victims would be ready to testify if the witness support system was more sensitive to their needs, regardless of the traumatic experience.40

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the court. The section at the prosecutors office provides support to witnesses during the investigation and, depending on the complexity of a case, further on throughout the court proceeding. The section within the court provides support to all witnesses that appear before the court, whether they were called by the prosecutor, the defense or the court. Identity is known to the author. It refers to the association of war victims the witness is its member. Victims of rape as a war crime enjoy a special status within the meaning of the Law on Basic Social Welfare, the Welfare of Civil War Victims and the Welfare of Families with Children, which classifies them as disabled persons with 100% bodily damage, with the right to personal disability allowance in the amount of 70% of the disability allowance amount of a war invalid. Identities of the victims are known to the author. Amnesty International. Whose justice? The women of Bosnia and Herzegovina are still waiting. Amnesty International Publications 2009. September 2009. Page 28.

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Victim-witness Support Outside the Court Proceedings When it comes to safety of victim-witnesses, having in mind the economic security as one of the elementary factors for a life worth living, it practically does not exist as an activity of the authorities. It is true that the social welfare system provides the possibility for gaining the right to a personal disability allowance, but the very implementation of this right implies complicated procedures, often offensive for the victims. When they come to the court, witnesses are covered travel costs. Even when they do appear as witnesses, victims are often not informed about the possibility to receive a compensation for their pain and suffering when the verdict against the perpetrator becomes final. Otherwise, they remain confused and receive no legal aid if they get the courage to request compensation from the convicted person. The issue of victim reparation practically remains unaddressed by BiH authorities.41 Access to Justice: Victim Reparation According to the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims, the state should provide: equal and effective access to justice, adequate, effective and prompt reparation for harm suffered and access to relevant information concerning violations and reparation mechanisms.42 The above should be ensured by providing adequate assistance to the victim who requests access to justice, and enabling the victims to request and obtain reparation proportional to the gravity of the violations and the harm suffered.43 Reparation implies several measures aimed at restoring the way of life and situation that the victim was in before occurrence of the traumatic experience. These measures are44: 1) Restitution should, whenever possible, restore the victim to the original situation before the commission of the criminal offense that violated the victims personality rights or property rights, including employment; 2) Compensation should be provided for any economically assessable damage caused by the criminal offense; mental, material, lost gain, recovery costs;
41 42 43 44 Amnesty International. Whose justice? The women of Bosnia and Herzegovina are still waiting. Amnesty International Publications 2009. September 2009. Page 39. UN Resolution 60/147 (2006), point 11. UN Resolution 60/147 (2006), points 11 and 15. UN Resolution 60/147 (2006), points 15 to 24.

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3) Rehabilitation should include medical and psychological care as well as legal and social services supporting the victims recovery; 4) Satisfaction, focused on symbolic measures, such as: public disclosure of the truth, burials of bodies of the killed, an official declaration or a judicial decision restoring the dignity, the reputation and the rights of the victim and alike; and 5) Guarantees of non-repetition, which imply measures taken at the state level, aimed at prevention of repetition or removal of causes of the victimization. The above leads to a conclusion that, out of five reparation measures, three are of the greatest importance for the direct victim of a crime: restitution, compensation and rehabilitation. Unfortunately, in the majority of war crimes cases before the Court of BiH or another lower-level court, verdicts do not provide the victim with any type of material damage compensation. On the other hand, provisions of CPC BiH, Articles 81 91 regulate the rights and obligations of witnesses to reveal the facts they know about the relevant criminal offense before the court or the prosecutors office, if by doing so they will not expose themselves of their family members to a danger of criminal prosecution. When it comes to victim-witness protection, provisions of Article are of particular importance, as they refer to a separate law when dealing with a protected witness (the Witness Protection Law), as well as Article 86, Paragraph 10, which stipulates that a person damaged by a criminal offense is to be asked whether he/she wants to file a property claim within the criminal proceeding. This inquiry itself does not impose an obligation on the criminal court to decide on this claim as well at the same time. This is confirmed by Articles 193 204 of CPC BiH that regulate the ways for filing property claims that occurred due to the criminal prosecution; the restriction with regard to implementation of a property claim within the criminal proceeding is of special importance here, because it implies that the claim must not procrastinate the criminal proceeding. Therefore, if such claims are complex, and they always are in the context of war crimes, which would substantially affect the duration and cost-efficiency of the criminal proceeding, the criminal courts instruct witnesses who file property claims against the accused to initiate a civil proceeding. However, although the existence of legal grounds for implementation of a property claim that occurred in relation to commission of a criminal offense during the criminal proceeding is commendable, the actual situation and practice indicate shortfalls within such a system during the war crimes processing: criminal
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courts mostly advise witnesses to start civil proceedings after the decision in the criminal proceeding becomes final, in order to obtain damage compensation as victims. This fact should be viewed as a double problem: a) When starting civil proceedings, witnesses are exposed to expenses and re-traumatization, because the civil proceeding practically determines the price of suffered traumatic events. The re-traumatization (repeated testimony from the criminal proceeding, and in relation to it waiting for a judgment in the civil matter), practically delaying the satisfaction of justice towards the victim, and the costs of the proceeding could be avoided if the damage compensation claim of the victim would be decided upon as a part of the verdict in the criminal matter. b) A large number of witnesses do not understand the term damage compensation and are unaware that they are entitled to it based on the criminal offense of inflicting non-pecuniary damage. An employee of the BiH Prosecutors Office explains it as follows:
When a witness is questioned during the investigation, he/she is asked whether he/she as the damaged person requests criminal prosecution and damage compensation against persons that are found to be criminally liable; witnesses are asked the same question at the main trial as well. The fact is that a large number of witnesses do not understand the essence of damage compensation, and they need to be explained that they are able to file a property claim in a civil proceeding after final completion of the relevant court process. 45

On the other hand, almost all persons that were interviewed at the time of preparing this analysis and were acquainted with their compensation rights against the convicted persons stated that they would file such claims through the association. It is easy to understand that victims feel safer if they file damage claims against convicts through the association. Unfortunately, not a single damage claim of examined victims reached the relevant court yet, and associations, if not individuals, should be provided with additional support to start the proceedings sooner, because the lapse of time increases the risk of failure of such claims. In addition, the associations of victims also receive no assistance, support or encouragement by the state authorities to implement their reparation rights. Namely, the state does not provide legal aid, nor it takes any steps to inform the victim-witnesses and explain to them their rights and ways to access those rights. However, if witnesses appear in a criminal proceeding, they
45 The source is known to the author the interview took place in Sarajevo on 02.02.2011.

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are only told to request reparation in a civil proceeding, which certainly cannot be viewed as a sufficient legal remedy. Conclusion and Recommendations Victims of gross violations of human rights, war crimes victims are the key elements (evidence) in war crimes processing. Their traumatic experiences and findings are in the core of the process of post-war justice administration in Bosnia and Herzegovina. In this respect, their testimonies in these proceedings are obviously important for the entire society. Unfortunately, each testimony of the victim means reliving the traumatic experience or, in some cases, an unwanted confronting the perpetrator during the testimony. On the other hand, victims already suffer various forms of damage caused by the original trauma, and many of them do not see the possibility for satisfaction of justice in general in the BiH judicial system and view testimonies as an unnecessary additional exposure to risk given that they feel abandoned by the society and the state. International standards stipulate protection of victims by the state, which has to pay due attention to them through national laws to the greatest possible extent, in order to avoid their re-traumatization by its administrative and legal procedures, and ensure their physical and psychical safety and private life.46 Bosnia and Herzegovina set the legal framework for protection of witnesses and victims of war crimes, in accordance with the international standards and good practices and, in addition to the Court of BiH, lower-level courts in Bosnia and Herzegovina are also starting to implement procedural measures of witness protection and support. However, the system of permanent witness protection is not developed. Convicting the perpetrator is definitely an important element of victim reparation, but is certainly not the only one; active involvement of the state and the society in reparation of war crimes victims is practicably negligible, except through their testimonies. Against this background, the needs of witnesses and victims with regard to judicial institutions and other state authorities and the civil society are recognized, in order to encourage them to appear as witnesses in relevant court procedures. Therefore, it is necessary to: a) Provide long-term protection and support measures for victims who appear as witnesses and thus expose themselves to the additional risk of threats or re-traumatization;
46 Paraphrased: UN Resolution 60/147, point 10.

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b) Recognize the needs of all victims of gross violations of human rights by laws and facilitate their access to justice in the way to avoid re-traumatization and obtain reparation to the greatest extent possible; c) There is a clear need for the state government to encourage further establishment of victim-witness support and protection sections on lower levels of judiciary and the establishment of a cooperation network between relevant prosecutors offices and courts, in order to ensure witness protection quality and support investigation of reported threats against witnesses; d) The state should include institutions engaged in social work in providing protection to witnesses and victims, ensure smooth access to psychological and medical assistance, and certainly, encourage development of free legal aid system for victims who intend to file reparation claims; e) The state should provide a victim-witness restitution and compensation system; f) The state should encourage civil society organizations with the existing or developing capacities for providing psychosocial and legal aid to witnesses and victims, that are further able to inform and advise witnesses and victims in general without discrimination about their reparation rights and possibilities; g) In this respect, the civil society organizations should develop active forms of cooperation at the entire territory of BiH, in order to enable providing full protection and support to witnesses and victims in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims.

The fact is that oblivion lies in the essence of the problem with the relationship between the society, the state and the victim-witness. As the time passes by, victims forget the details of their traumatic experiences that are essential for war crimes processing while, on the other hand, they feel forgotten by the state. These are the main reasons behind the urgent need for improvement of the existing victim-witness protection sections and involvement of other state institutions and civil society organizations in the efforts to improve the general situation of the victim-witness.

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Bibliography
Amnesty International. Whose justice? The women of Bosnia and Herzegovina are still waiting. Amnesty International Publications 2009. Page 15. Amnesty International. Briefing to the UN Committee Agaist Torture. Amnesty International Publications 2010. October 2010. Clarck, Natalia Janine. Judging the ICTY: has it achieved its objectives? Southeast European and Black Sea Studies, Vol.9, Nos.1-2, March June 2009. Routledge Taylor and Francis Group. National Strategy for War Crimes Processing. December 2008, Sarajevo. Available at: http://www.mpr.gov.ba/userfiles/file/Projekti/Drzavna%20 strategije%20za%20 rad%20na%20predmetima%20RZ.pdf. European Convention on Human Rights and Fundamental Freedoms, Roma 1950. Gert Vermeulen. EU Standards in witness protection and collaboration with justice. Institute for International Research on Criminal Policy, Ghent University. EU Commission, JAI/20045/AGIS/077. OSCE Mission to BiH. Witness protection and support in war crimes cases in Bosnia and Herzegovina: Obstacles and recommendations a year after adoption of the National Strategy for War Crimes Processing. 2010. Roman Statute of the International Criminal Court. UN Resolution 60/147 of 21.03.2006 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. United Nations Office on Drugs and Crime. Good practices for the protection of witnesses in criminal proceedings involving organized crime. New York, 2008. Available at: http://www.unodc.org/documents/organized-crime/ Witnessprotection-manual-Feb08.pdf.

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Biography of the Author Azra ehi works at the Free Legal Aid Center of the Foundation of Local Democracy on the issues of asylum seekers and refugees since 2010. Earlier, she worked at the Prosecutors Office of the International Criminal Tribunal for the former Yugoslavia, and at the Criminal Defense Section of the Registrars Office at the Court of Bosnia and Herzegovina. She graduated from the Faculty of Law at the Sarajevo University and completed the postgraduate study European Regional Master Degree in Human Rights and Democracy in SEE. Upon obtaining the master degree, she explored the influence of the international community on building of judicial systems in countries of the former Yugoslavia, and published a work on this topic under the title Balkan Hybrid Justice in 2009.

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The Role of NGOs in the Light of Educational Recommendations from the Proposed Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure of BiH Brko District
Jasmin Jaarevi

According to the most recent assessments, approximately 100,000 people live in BiH Brko District, including a large number of young people: 18 721 children between 0 and 15 years of age and 3944 young people between 15 and 18 years of age live in Brko District, while 1076 students attend studies at university institutions. This category of minors is nowadays particularly exposed to destructive and asocial behavior. This is confirmed by data of the judicial institutions in BiH Brko District: 49 criminal offenses in 2010 were committed by juveniles, and they are almost exclusively accountable for property crimes. The issue of juvenile delinquency, which implies asocial and anti-social behavior of a developing person as a reflection of his/her disturbed biological, psychological and social development, is evidently a problem in Brko District. However, although being a relevant social and legal problem, protection of the rights of children and young people through the judicial system in BiH Brko District has not been seriously actualized, nor have the issues of strategic and action plans of judicial and other institutions been considered in this segment, although problems in the field are evident.
This work will focus on the above issues, aiming to depict the current situation in Brko District when it comes to juvenile delinquency, legislation in this field and the existing system of support to juvenile delinquents, and discuss and pay special attention to the role of non-governmental organizations (NGO) in this segment. In view of the fact that the proposed Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure is currently in the adoption process, the educational recommendations offered in the proposed Law shall be discussed below. Namely, the objective of this work is to counterbalance the reduced role of NGOs in this Law, and to encourage a public debate on the above issues, as well as creating initiatives within the judiciary for a more efficient inclusion of NGOs in the implementation of the educational recommendations from the Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure in BiH Brko District. The work finishes with recommendations to relevant public institutions and the non-governmental sector that deal with this issue, primarily organizations
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dealing with the issues of young people, education and protection of human rights. It also gives proposals for improvement of cooperation between judicial institutions and citizen associations working on issues of young people and other NGOs in the segment of juvenile delinquency.

Juvenile Delinquency in Brko District Brko District is evidently faced with the problem of juvenile delinquency: in the first six months of 2010, the Brko District Basic Court pronounced the following educational measures against juvenile delinquents: disciplinary measures against 13 delinquents, measures of intensified supervision by biological parents, adoptive parents or guardians against 10 delinquents and intensified supervision by the relevant social care agency against 3 persons. Institutional measures (sending to juvenile prisons) were ordered in one case. The above measures were mostly ordered against younger juveniles. The situation with juvenile crimes in the first half of 2010 shows that the majority of criminal offenses by juvenile delinquents (almost all of them) were property offenses (46). They committed one criminal offense related to drug addiction and two offenses against public order and traffic, which makes the total of 49 criminal offenses. Considering the information that the relevant court in Brko District processed only 13 juvenile perpetrators during the same time period, the logical question would be: what happened with the other 36? 47 A substantial number of juveniles are undergoing treatment at the Center for social work on various grounds. At the end of June 2010, there were 37 children without parental care, 29 educationally neglected children and 43 juveniles with negative social behavior. When it comes to rights in the segment of social welfare and measures imposed on juveniles, the situation is as follows: placement to different families - 30 children, to a social welfare institution 6 children, intensified supervision - 3 juveniles, juvenile prison 1 child and educational recommendations (1 child). According to data from the Center, the number of juvenile recidivists is decreasing. Juvenile offenders mostly belong to the category of older juveniles. Practice shows that combined measures are the most efficient of all measures taken by judicial bodies against juvenile delinquents. 48
47 48 Human Rights Bureau Tuzla, Analysis of the Situation with Juvenile Delinquency at the Territory of BiH Brko District, 2011. Human Rights Bureau Tuzla, Analysis of the Situation with Juvenile Delinquency at the Territory of BiH Brko District, 2011.

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Institutional system and Juvenile Delinquency The institutional system in Brko District that works on resolving, processing and prevention of juvenile delinquency is developed, but inadequately staffed. At the same time, there are no special public agencies that would deal with the issues and problems of youth, and no youth strategy. The Brko District Prosecutors Office employs 9 prosecutors, 5 men and 4 women. Apart from prosecutorial tasks pertaining adults, they are also in charge of the issues of juvenile delinquency and child protection. The Brko District Basic Court assigned four criminal judges, 3 men and 1 woman to conduct court proceedings for both adult and juvenile criminal offenders. Other judges do not adjudicate in juvenile delinquency cases. In its organizational chart, the Brko District police foresee 2 inspectors to work on juvenile crimes and 3 policemen for the community work, popularly called school policemen. Their role should be primarily preventive. However, all other policemen also work on preventing and sanctioning juvenile delinquency. In the segment of social welfare in Brko District, the Center for social work operates as a professional institution. It employs 21 people, 2 men and 19 women. As for social welfare professionals, there are 11 social workers, 1 psychologist and 1 social pedagogue. When it comes to the non-governmental sector, there are several associations and organizations whose work and programs bring together young people and juveniles. The most active ones are: PRONI Center for development of youth, Brko District BiH, Youth Center Vermont, Svitac, Zvrk, SOS and Youth Association Brko District BiH. From the employment aspect, these organizations are specific because the majority of their activists are volunteers. Namely, there are 19 permanently employed people in these associations, 3 people are employed to a definite period of time, and there are 243 volunteers, children and young people. Also, 263 parents are engaged in the above organizations as management board members, parents-volunteers and members of community work groups. In addition, 118 other citizens are involved as members of management boards and assemblies or community work groups. The presented data indicate that government institutions are inadequately staffed when it comes to juvenile delinquency and youth support, while at the same time there are several organizations in the non-governmental sector that have worked with young people for several years on different programs tackling the youth
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issues. However, these organizations are not included in the efforts to resolve the issue of juvenile delinquents in the best way, i.e. institutionally. Legislation and Juvenile Delinquency
Currently, BiH Brko District does not have a Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure that would separately treat juveniles in the criminal procedure. The draft Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure of Brko District BiH reached the parliament for the second time in early 2011, and is still in the adoption process. The draft Law clearly defines the target group treated by this Law and the protected rights, and provides definitions of criminal sanctions and all individuals and bodies involved in the implementation of the Law. The Law is fairly precise in all its formulations, it is based on fundamental human rights and childrens rights and provides various options when it comes to educational and penal measures that judges may pronounce, which should eventually result in rehabilitation and social integration of children and juveniles in the criminal procedure.

Although there is a large number of civil society organizations in BiH Brko District, only a few such organizations participated in preparing the proposed Law, in the light of cooperation with NGOs from Brko District BiH, because most of them were not timely informed and included in drafting of the proposed Law. For that reason, the role of NGOs in this field is defined in a limited way in the proposed Law: only in the segments of the rights of juveniles when serving the sentence in correctional institutions and providing assistance to juveniles after serving the sentence. There is also a possibility to issue an educational recommendation for joining the work of a humanitarian organization or social, local or environmental activities free of charge, which may provide an opportunity for a more active role of NGOs. When it comes to staff training that will result in professional education of judges and prosecutors, the proposed Law leaves some space for NGOs in this segment as well, but without a precise definition of ways of implementing these activities. This is exactly where the opportunity lies for the non-governmental sector, especially non-governmental organizations dealing with youth issues, but also for many others, to influence legal solutions and to take a more active role in resolving the issue of juvenile delinquency in BiH Brko District.

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Regulating the Issue of Juvenile Delinquency: Experiences from BiH and the Region Procedural treatment of juveniles in BiH has been regulated on four legislative levels: the levels of BiH (CPC BiH), the entities and Brko District. This very fact raises the issue of a standard of the same rights as a problem that needs to be discussed. The four legislative frameworks create far more serious problems of a practical nature, primarily concerning the implementation of laws and execution of measures and sanctions pronounced by courts against juveniles. Problems concerning the standard of the law may not be serious, because they are successfully resolved through harmonization of legislative frameworks. It seems that the work of a working group that drafted the Law on Juvenile Criminal Offenders, which appeared in 2005 was efficient in this direction.
After several years of work on amendments to juvenile laws, on 01 January 2010 the RS passed the Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure, which incorporates almost all standards that had been previously discussed at the working group.49

A Strategy against Juvenile Delinquency was adopted at the level of BiH, covering the period 2006-2010. This strategic document was created as the result of understanding the complexity of juvenile delinquency and the need to react to this phenomenon in an adequate way, in order to prevent its devastating consequences on a long-term basis. Relevant institutions in BiH recognized that child offenders and those exposed to a risk of becoming ones (children with socially unacceptable behavior) are members of the society that require special care. The House of Peoples of the FBiH Parliament passed the draft Law on Judicial Treatment of Juveniles in a Criminal Procedure in 2010. In the Republic of Croatia, the Juvenile Courts Act was adopted as early as 1997. In the beginning of 2006, the new juvenile (substantive, procedural and enforcement) law came into force in the Republic of Serbia. In this way, by finalizing the criminal law reform, the Republic of Serbia followed the trends of contemporary criminal policies of other developed European countries (France, Germany, Croatia), and defined the criminal and legal status of juveniles in a special, specific way. The specificity is reflected in several directions: 1) Lex specialis was enacted a special Act on Juvenile Perpetrators of Criminal Offenses and the Criminal Legal Protection of Juveniles, fully separating the criminal and legal status of
49 Branko PERI, a judge of the Court of BiH Rights of Juveniles in a Criminal Procedure

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juveniles from the status of adults as perpetrators of criminal offenses, 2) the special jurisdiction of district courts for adjudicating in criminal cases of juvenile perpetrators was defined, 3) mandatory specialization is provided for persons in the criminal judiciary taking part in criminal proceedings against juvenile perpetrators (with previous training and issuing of licenses certificates), and 4) apart from criminal sanctions, the law has provided the possibility of pronouncing specific measures sui generis educational orders (instructions or recommendations) against juvenile offenders as means of restorative justice avoiding the commencement or carrying out of a criminal proceeding.50 The above laws almost in the identical way as the proposed Law of BiH Brko District leave the possibility, through educational recommendations, for juveniles to join the work of humanitarian or non-governmental organizations. One gets the impression that the BiH Brko District Law is only an adjusted version of these laws. Examples of Good Practice
What follows below is a description of the existing solutions in some of the countries of Southeast Europe that mostly provide a closer image and various methods for a more active NGO inclusion, that were recognized in the UNICEF report: Good Practices and Promising Initiatives in Juvenile Justice in the CEE/CIS Region51 and may serve as guidelines for a more active engagement of local NGOs in the implementation of the Law.

A project Avoiding the escalation and sanctions through mediation was implemented in Serbia, with the goal to get acquainted with the victim-offender mediation method through three pilot projects. The victim perpetrator mediation is a process through which a trained mediator facilitates resolving of the conflict between the victim and the perpetrator and helps them to build own approach to obtaining justice. The Law on Juveniles that came into force in 2006 in the Republic of Serbia regulates this measure. As an example of good practice, a Mediation Center was established in Ni through a partnership of the state authorities, municipal authorities, the Center for Social Work and UNICEF. Through this center, NGOs organized mobile teams and trainings for
50 51 Prof. Dragan Jovaevi: Position of Juveniles in the New Criminal Law of the Republic of Serbia Good Practices and Promising Initiatives in Juvenile Justice in the CEE/CIS Region - A UNICEF catalogue of practices documented through the Juvenile Justice Critical Mass initiative United Nations Childrens Fund, Geneva, April, 2010.

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employees of 14 municipal centers for social work. Azerbaijan implemented a project Legal aid for younger juveniles as well. It provided free legal aid for juveniles through establishment of a Free Legal Aid Clinic for juveniles. Within this project of UNICEF and the Partner Association of the Unions for Childrens Rights that work in close cooperation with the Public Attorneys Office and the Organization for Security and Cooperation in Europe (OSCE) office in Baku, the Free Legal Aid Clinic for juveniles was established in Baku in 2007. The main goal of this project is to introduce a model of providing free legal aid, legal counseling, legal support and representation in trials for vulnerable children and their families, aiming at promotion of appropriate reform of juvenile judiciary in the Republic of Azerbaijan. The project serves as an instrument for raising awareness of childrens rights and capacity building among professionals from judiciary, police and the social sector. As an example of good practice, the Free Legal Aid Clinic for juveniles developed partnerships with the Commission for Juveniles in five cities and municipalities in the country, and disseminated information about its work via campaign posters and leaflets. Lawyers from the Legal Clinic were involved in 73 criminal and administrative cases of juveniles, and all of them were resolved in favor of the children and their families. The Legal Clinic has also built strong connections with police inspectors for children in three districts in Baku. Owing to this, the inspectors would inform the Legal Clinic every time a juvenile was arrested. Turkey implemented a project Participatory training in increasing the responsibility Juniper , with the objective to offer a training program for the staff of the Ministry of Justice. Owing to presentations and training in the participatory method of approaching childrens rights, a wide range of staff that are in contact with arrested juveniles became more responsible towards one another and the juveniles. The Juniper program was developed for psychosocial and other experts who work with juveniles in prisons, detention and education centers in the Republic of Turkey. The used trainings, instruments and information are more efficient in the work with juveniles. These modules brought positive changes to the attitude towards detained juveniles. An example of good practice is that one of the modules provided trainings to psychosocial staff of the Ministry of Justice that works with young people with problematic behavior in the fields of anger management, communication, trainings for families, support to victims of sexual violence and a training to improve understanding of the role of psychosocial workers. The second module was intended for trainings in human and childrens rights for the administrative staff and guards in detention units.
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Recommendations Although there are over 400 registered citizen associations in BiH Brko District, a large number of them actually have no capacities or interest in the issue of juvenile delinquency, due to the nature of such associations, being mostly sports associations, cultural associations and even local communities that were registered in BiH Brko District as citizen associations. The essential recommendations for NGOs apply to those associations that have the capacities to work with young people, as well as the required experience that can be helpful to institutions of BiH Brko District in successful implementation of the Law. More active cooperation measures, joint projects and a more active involvement of NGOs are necessary for joint building of capacities of the local community to implement the Law and contribute to the improvement of the position of children and juveniles in the criminal procedure. Intensified cooperation between judicial institutions and accepting NGOs as partners in the implementation of the Law would create a dual effect: on the one hand, it would support the sustainability of the NGOs and, on the other hand, it would help the judicial institutions to increase their credibility and efficiency. NGOs should be included in the educational recommendations of the BD Law on Juvenile Delinquency, primarily because they dealt with these issues for several years and achieved good results, and they also have adequate staff and professional knowledge. They have the people and the expertise (gained through various trainings) while, at the same time, government institutions are insufficiently staffed and need support in strengthening their capacities and knowledge. Some of the possible activities can proceed in the following direction: Research and data collection. Updated databases and information enable NGOs to: Identify the key areas for intervention Influence the public opinion and media with the information based on facts Ensure gender equality in an appropriate way Make sure that the voice of juveniles was also taken to consideration when developing programs, and provide for a more active participation of juveniles in public debates on judicial reforms

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 Work on promotion and issuing of alternative measures for sentence serving Work to raise the awareness of the rights of children and young people among judges, the police and other institutions through educational and other activities Promote the role of the Centre for social work Participate in the judicial reform processes on a long-term basis Engage in preventive activities with young people in order to reduce the crime rates through: Youth work within a community (cooperation with schools, parents and other actors) Bringing together the most significant institutions for coordinated activities and an integration approach to problem solving Establishing networks and coalitions with relevant partners in the country, the region and the EU.

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Bibliography
Human Rights Bureau Tuzla, Analysis of the Situation with Juvenile Delinquency at the Territory of BiH Brko District, 2011. Branko Peri, a judge of the Court of BiH Rights of Juveniles in a Criminal Procedure, 2010, http://www.ring.ba/index.php?option=com_content&view=articl e&id=95:pravamaloljetnika-u-krivinom-postupku&catid=35:tekstovi&Itemid=59 Dragan Jovaevi: Position of Juveniles in the New Criminal Law of the Republic of Serbia, Collection of works of the Faculty of Law in Split, year 45, 3/2008, page 465-486. Good Practices and Promising Initiatives in Juvenile Justice in the CEE/CIS Region - A UNICEF catalogue of practices documented through the Juvenile Justice Critical Mass initiative, United Nations Childrens Fund, Geneva, April, 2010. Republic of Croatia, Juvenile Courts Act, NN 111/97, 27/98, 12/02. BiH Brko District Assembly, PROPOSED Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure, Brko District BiH, materials for the 37th regular Assembly session, 15.12.2010. http://skupstinabd.ba/hr/ index/1aktualnosti/194-37rh.html BiH Council of Ministers, Strategy against Juvenile Delinquency 2006-2010, 2006.

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Biography of the Author For 12 years already, Jasmin Jaarevi has worked in PRONI Center for youth development in Brko, and he is currently at the position of a general manager. Over the years of work on development of a civil, safe and multiethnic society in BiH Brko District and wider, he created and implemented many youth programs and projects in the areas of juvenile delinquency, youth policies, informal education, and other projects. He is also active as a member and youth representative in many public institutions and structures for youth on local and international levels. His three-year engagement in the first composition of the Commission for Coordination of Youth Issues in BiH as a youth representative from Brko District BiH was especially prominent, as well as his current engagement as a correspondent from BiH within a program of the European Knowledge Center for Youth Policy (EKCYP). He was the first trainer from BiH to be included in the online list of trainers of the SALTO-YOUTH resource youth center, and is also a member of the Management Board of Anna Lindh foundation BiH Network and a member of the Executive Board of the NGO Council Bosnia and Herzegovina (Vijee BiH).

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(Non-) Equal Access to Justice Due to Non-existence of a Supreme Court of BiH: Establishment of a Supreme Court of Bosnia and Herzegovina: Indolence of the Government and/or Infirmity of Citizens
mr. sc. Maja Sahadi, graduate jurist Iura paria debent esse eorum inter se qui sunt cives in eadem res publica.52 Ciceron In countries of the European continental law, which include Bosnia and Herzegovina, the Supreme Court53 is the highest judicial authority in the court system, which ensures uniform implementation of the law and the equality of all in its implementation.
However, the Constitution of Bosnia and Herzegovina, i.e. Annex IV to the General Framework Agreement for Peace in Bosnia and Herzegovina54 (the Dayton Peace Agreement) does not envisage the existence of a judicial authority at the state level, and therefore the existence of a Supreme Court of Bosnia and Herzegovina was not defined55. Since the Constitution creator failed to fill this gap in accordance with
All citizens of one state should enjoy equal rights. Supreme Court is the final instance court or the highest court in some court systems, and the highest judicial authority within the court systems of some states, and its decisions are not subject to further reviews by other courts. Exceptionally, they can have the first instance jurisdiction as well. 54 The General Framework Agreement for Peace in Bosnia and Herzegovina was initialed on 21 November 1995 in Dayton, and signed on 14 December 1995 in Paris. The main agreement package consists of the General Framework Agreement, 11 Annexes (Annex 1A: Military Aspects of the Peace Settlement; Annex 1B: Regional Stabilization; Annex 2: Inter-Entity Boundary Line; Annex 3: Elections; Annex 4: Constitution; Annex 5: Arbitration; Annex 6: Human Rights; Annex 7: Refugees and Displaced Persons; Annex 8: Commission To Preserve National Monument; Annex 9: Public Corporations; Annex 10: Civilian Implementation; Annex 11: International Police Task Force), Agreement on Initialing of the General Framework Agreement, cover letters and the Final Statement. Additional agreements include: Bring to life the Federation of Bosnia and Herzegovina; the Joint Council for Cooperation; Return of refugees to Jajce, Bugojno, Stolac and Travnik; Return of refugees to Velika Kladua; Agreed principles for Sarajevo; and the Agreement on Relations. 55 The author refrains from analyzing the legitimacy for establishment of a Supreme Court of Bosnia and Herzegovina, because her work is focused on consequences suffered by citizens of Bosnia and Herzegovina due to its non-existence. 52 53

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the principles of legal state that are, among other things, based on constitutional provisions regulating the issue of judicial authorities and respective individual rights and freedoms, the legislator intervened. In 2002, the Court of Bosnia and Herzegovina was established at the state level, in accordance with the Law on Court of Bosnia and Herzegovina56. However, due to its narrow jurisdictions57 and lack of hierarchical relations with courts in the entities, the Court of BiH is not able to compensate for the non-existence of a Supreme Court of Bosnia and Herzegovina. Due to such structural shortfalls in the judiciary of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina, which is not a regular court body by its nature and competencies, exceeds its defined appellate jurisdiction in certain cases. At the same time, there are incompatible legal solutions on the levels of the entities and Brko District of Bosnia and Herzegovina that have complete court systems, but with ad interim non-harmonized implementation of the law, and the practice of non-harmonized interpretation of the entity laws is in place.

Such organization of judicial authorities in Bosnia and Herzegovina causes inequality of citizens of Bosnia and Herzegovina when it comes to access to justice, primarily depending on the entity and/or canton where they appear as parties in proceedings, and on the laws applicable to them. In order to ensure equal access to justice and equal law implementation to all citizens of Bosnia and Herzegovina at its entire territory, a Supreme Court of Bosnia and Herzegovina has to exist. The Supreme Court would, in accordance with its usual jurisdictions, interpret the law and harmonize court practices in Bosnia and Herzegovina, thus ensuring equal implementation of the law and equal access to justice for all citizens of Bosnia and Herzegovina. The defined research issue indicates that the research will be focused on identifying and problematizing the consequences of non-existence of a Supreme Court of Bosnia and Herzegovina, which leads to unequal access to justice of citizens of Bosnia and Herzegovina at the time of conducting the research, and that eventually it will be confirmed that the establishment of a Supreme Court of Bosnia and Herzegovina is a necessity and a requirement in order to provide equal access to justice for all citizens of Bosnia and Herzegovina. Finally, raising this issue represents the first step towards defining of a public policy and/or
56 Law on Court of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, issues 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04, 35/04, 61/04, 32/07, 49/09 modified text, 74/09 and 97/09. Jurisdictions of the Court of Bosnia and Herzegovina are: criminal jurisdiction from Article 7; administrative jurisdiction from Article 8; and apellate jurisdiction from Article 9 of the Law on Court of Bosnia and Herzegovina.

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strategy for establishment of a Supreme Court instance at the state level in Bosnia and Herzegovina. Court System of Bosnia and Herzegovina Nowadays In a system where the state government is divided to legislative, executive and judicial branches, a court system is a separate entity, and its duty is to exercise court powers by assigning the tasks of resolving disputes that arise from the implementation of the law. On the other hand, judiciary as a wider term than the court system represents one of the functions of the state government that involves determining the justice in disputes arising from the law implementation in ultima linea.58 Courts can be divided to courts with general jurisdiction (civil, criminal) and specialized courts (commercial, military, administrative), depending on the subject-matter jurisdiction; to municipal /basic, district, courts of federal units and courts for the entire state, depending on the local jurisdiction; and to firstinstance, second-instance (appellate) and third-instance (cassation or supreme) courts, depending on functional jurisdiction. Apart from courts, the judicial system also includes prosecutors offices, public defenders offices, lawyers, public notaries, ministries of judiciary etc.
Before the 1992- 1995 conflict in Bosnia and Herzegovina59, the court system in Bosnia and Herzegovina was complete and it provided uniform implementation of the law at the entire territory of (the Socialist Republic of) Bosnia and Herzegovina that existed at the time. During the conflict, the organization of court authorities Bosnia and Herzegovina started to change, and this process continued after signing of the Dayton Peace Agreement. The judicial branch of government in the Federation of Bosnia and Herzegovina was established on the basis of the Washington Agreement that was signed in 1994.60 Therefore, the judicial branch of Government
58 For instance, the author Nikola Viskovi defines the judicial activity as an activity of prosecuting subjects that violated legal norms in behalf of the state, and resolving of property, commercial, criminal, administrative and family disputes between legal entities and defining sanctions against legal offenders. See: Nikola Viskovi, Drava i pravo (State and the Law), (Sarajevo: Studentska tamparija, Sarajevo University, 1996), p. 47 48. The author disassociates herself from any legal qualification of the conflict at the territory of former Yugoslavia, because it is not the topic of this work and has no influence on the analyzed themes. The Washington Agreement was signed on 24 March 1994. It consists of the following documents: the proposed Constitution of the Federation of Bosnia and Herzegovina; the preliminary agreement on establishment of a Confederation between the Republic of Croatia and the Federation of Bosnia and Herzegovina; an agreement granting the Federation of Bosnia and Herzegovina access to the Adriatic through the territory of the

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in the Federation of Bosnia and Herzegovina was established in accordance with the Constitution of the Federation of Bosnia and Herzegovina61 that was proposed in the Washington Agreement. The judicial government branch in Republika Srpska was established on the basis of the Constitution of Republika Srpska62. Annex IV to the Dayton Peace Agreement, which was adopted in 1995, i.e. the Constitution of Bosnia and Herzegovina does not foresee the existence of judicial government branch at the state level. Only the Constitutional Court of Bosnia and Herzegovina was envisaged, but it is a sui generis institution, and not a regular court authority. Following the signing of the Dayton Peace Agreement, the entities started adopting necessary amendments to the entity constitutions in order to harmonize them with the Constitution of Bosnia and Herzegovina, and passing the entity laws on courts,63 as well as the law on courts in BiH Brko District64. Given that the Constitution of Bosnia and Herzegovina did not establish the basic preconditions for a complete and unified state-level judicial system for the entire territory of Bosnia and Herzegovina, equal implementation of equal rights of citizens of Bosnia and Herzegovina has been put to question. The incompleteness of the judicial branch in Bosnia and Herzegovina was corrected without amendments to the Constitution of Bosnia and Herzegovina, by adopting necessary laws, such as the Law on Court of Bosnia and Herzegovina, but a state-level law on courts still does not exist. Establishment of judicial authorities at the state level is a product of extensive reforms of the judicial system in the time period 2000-2004. However, the working document of the Commission of the European Communities Bosnia and Herzegovina 2008 Progress
Republic of Croatia; and an agreement granting the Republic of Croatia transit through the territory of Bosnia and Herzegovina in Neum. This agreement expresses the intention of the Federation of Bosnia and Herzegovina and the Republic of Croatia to establish a Confederation. However, this idea was abandoned by the Dayton Peace Agreement, and the right of the entities to establish parallel relations with the neighboring countries was defined, while respecting the sovereignty and territorial integrity of Bosnia and Herzegovina. The Constitution of the Federation of Bosnia and Herzegovina, Official Gazette of the Federation of Bosnia and Herzegovina, issues 1/94, 13/97, 16/02, 22/02, 52/02, 63/03, 9/94, 20/04, 33/04, 72/05, 71/05. The Constitution of Republika Srpska, the Official Gazette of Republika Srpska, issues 3/92, 6/92, 8/92, 15/92, 19/92, 150/02, 22/05. Law on Courts in the Federation of Bosnia and Herzegovina, the Official Gazette of the Federation of Bosnia and Herzegovina, issues 38/05, 22/06 and 63/10; and the Law on Courts of Republika Srpska, the Official Gazette of Republika Srpska, issues 111/04, 109/05, 37/06, 17/08, 119/08, 58/09 and 72/09. Law on Courts of Brko District of Bosnia and Herzegovina, BiH Brko District Official Gazette, issues 19/07, 20/07 and 39/09.

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Report accompanying the Communication from the Commission to the European Parliament and the Council from 200865 reads that the judicial system reform continued to make progress, but the ongoing major problem was the lack of a Supreme Court that could harmonize application of legislation across the four internal jurisdictions: the State level, the Federation of Bosnia and Herzegovina, Republika Srpska and the Brko District. It further reads that, owing to the lack of consensus, the Justice Sector Reform Strategy 2008-201266 makes no provision for establishing a Supreme Court of Bosnia and Herzegovina.67 The existing judicial system of Bosnia and Herzegovina is comprised of:

1) The judicial system of Bosnia and Herzegovina on the state level, which is currently comprised of: the Court of Bosnia and Herzegovina, the Prosecutors Office of Bosnia and Herzegovina, the Registry, High Judicial and Prosecutorial Council of Bosnia and Herzegovina and the Office of Attorney General of Bosnia and Herzegovina. 2) The judicial system at the entity level is comprised of: a) The Supreme Court of the Federation of Bosnia and Herzegovina, cantonal and municipal courts, Prosecutors Office of the Federation of Bosnia and Herzegovina, cantonal prosecutors offices, Attorney Generals Office of the Federation of Bosnia and Herzegovina, and cantonal and municipal offices of attorney general in the Federation of Bosnia and Herzegovina; b) The Supreme Court of Republika Srpska, district and basic courts, Prosecutors Office of Republika Srpska and district prosecutors offices, Attorney Generals Office of Republika Srpska and district and municipal offices of attorney general in Republika Srpska. In the meantime, commercial courts were established in Republika Srpska; 3) The judicial system in Brko District of Bosnia and Herzegovina is consisted of: the Appellate Court and the Basic Court of Brko District, Public Prosecutors Office of Brko District and Office of Attorney General of Brko District.
65 Commission of the European Communities, Working document of the Commission of the European Communities Bosnia and Herzegovina 2008 Progress Report accompanying the Communication from the Commission to the European Parliament and the Council, (2008). Ministry of Justice of Bosnia and Herzegovina, Justice Sector Reform Strategy 2008 2012, (Sarajevo, 2006). Commission of the European Communities, quot. p. 13 14.

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Lack of Coordination within the Court System in Bosnia and Herzegovina

In Bosnia and Herzegovina, a complete and independent court system with the established hierarchical relations only exists at the entity level. The situation is somewhat different on the state level. The position of the Court of Bosnia and Herzegovina is specific. It is a court with defined (narrow) criminal, administrative and appellate jurisdictions, with no hierarchic relations with courts in the entities and BiH Brko District. The Court of Bosnia and Herzegovina has no jurisdictions that the supreme courts have, and its relations with the entity and BiH Brko District courts is limited, as it operates independently from the entity courts and courts in the BiH Brko District. The Constitutional Court of Bosnia and Herzegovina only partially compensates for the non-existence of a Supreme Court at the state level, since it has the appellate jurisdiction over the issues related to the Constitution of Bosnia and Herzegovina that arise on the basis of a judgment of any other court in the entities, in accordance with the provision of Article VI, point 3.b) of the Constitution of Bosnia and Herzegovina. It therefore has the jurisdiction to review final judgments of all regular courts in Bosnia and Herzegovina, if they involve violation of any rights guaranteed by the Constitution of Bosnia and Herzegovina. However, in such cases, legal positions guaranteed by the regular applicable laws are not reviewed, but the constitutional legal protection is provided.68 When it comes to jurisdictions of the Constitutional Court of Bosnia and Herzegovina specified in Article IV point 3.c) of the Constitution of Bosnia and Herzegovina, it should be pointed out that activities of the Constitutional Court are limited to disputes dealing with harmonization of laws that are applied by courts in practice with the Constitution of Bosnia and Herzegovina, the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and other laws of Bosnia and Herzegovina69, or issues concerning the existence or scope of a general rule of the international public law. After all, the Constitutional Court of Bosnia and Herzegovina is not a regular judicial body and therefore cannot be included in the hierarchy of judicial bodies in Bosnia and Herzegovina.
68 In a Decision of the Constitutional Court of Bosnia and Herzegovina U 29/02, par. 23, it is specified that, in line with the existing practice of the Constitutional Court, its jurisdiction defined in Article VI point 3.b) of the Constitution of Bosnia and Herzegovina is only limited to the issues included in the Constitution. Therefore, the Constitutional Court is not competent to evaluate the ways of determining facts or interpreting and implementing the law by regular courts, except in cases when constitutional rights are violated by the decisions of those courts. This includes situations when the constitutional rights of an individual are neglected or incorrectly implemented, cases of evident arbitrary implementation of the law, when the applied law is unconstitutional, or when the basic principles of a just proceeding are violated (such as: the right to a fair trial, efficient legal remedies, etc.). CETS No. 005, 213 UNTS 222 (No. 2889), came into force on 03 September 1953.

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Consequences Suffered by Citizens of Bosnia and Herzegovina due to Nonexistence of a Supreme Court
Different courts practices, especially on the entity level,70 occur as a consequence of the non-existence of a Supreme Court instance at the state level in Bosnia and Herzegovina that would harmonize court practices of all courts in Bosnia and Herzegovina71. On the other hand, the lack of a Supreme Court of Bosnia and Herzegovina was the reason why the Constitutional Court of BiH exceeded its jurisdictions defined by the Constitution of Bosnia and Herzegovina when it comes to reviewing decisions of regular courts in implementation of the substantive law.72
Re: different court practices at the entity level, see: Organization for Security and Cooperation in Europe OSCE, Moving Towards a Harmonized Application of the Law Applicable in War Crimes Cases before Courts in Bosnia and Herzegovina, (2008), p. 47, which describes an example of resolving the question whether it is necessary to establish the nature of an armed conflict in order to determine a violation of international humanitarian law differently by the Supreme Court of the Federation of Bosnia and Herzegovina and the Supreme Court of Republika Srpska. The Federation Court has taken the position that, to be held responsible for war crimes under domestic law, it was not necessary to do so when applying the 1949 Geneva Conventions (See: the Supreme Court of the Federation of Bosnia and Herzegovinas verdict in the matter of Fikret Smajlovi of 16 March 2006), while the Republika Srpska, arguing for the need for a strict interpretation of the Conventions, held instead that the international nature of the conflict needed to be established when such a grave breach was alleged (See: the Supreme Court of the Republika Srpskas verdict in the case of Dragoje Radanovi of 22 March 2007). 71 The Decision on admissibility and merits of the Constitutional Court of Bosnia and Herzegovina AP 1785/06, par. 90 reads that the divergent practices of courts (...) on different levels probably result from the non-existence of a court at the level of Bosnia and Herzegovina that would be able to harmonize practices of all courts in Bosnia and Herzegovina and thus contribute to a complete rule of law in Bosnia and Herzegovina. 72 In a Separate opinion of judge David Feldman, supported by judges Constance Grewe and Tudor Pantiru in Case AP 775/08 before the Constitutional Court of Bosnia and Herzegovina, par. 6 9 specifies that it is not appropriate for the Constitutional Court of Bosnia and Herzegovina to engage in ruling on the interpretation and application of the laws of Bosnia and Herzegovina, entity or Brko District laws by the courts. The Constitutional Court of Bosnia and Herzegovina has the appellate jurisdiction, in accordance with Article VI, point 3.b), in the issues contained in the Constitution of Bosnia and Herzegovina, once they become the subject of a dispute arising from a verdict ruled by any court in Bosnia and Herzegovina. The Constitutional Court has no appellate jurisdiction to decide in the issues concerning the laws of Bosnia and Herzegovina, one of the entities or Brko District, except in cases raising the issues of constitutionality. When a court in Bosnia and Herzegovina, one of the entities or Brko District applies the law incorrectly, it is not a constitutional issue, as it is not included in the Constitution of Bosnia and Herzegovina. Also, the Constitutional Court of BiH is not deemed competent to decide whether the courts misinterpreted or applied laws within their jurisdictions 70

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At the same time, when it comes to equal access to justice for all citizens at the entire territory of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina found that legal solutions and the applied court practice at the entity level are not the subjects of the appellation, but the implementation of rights from the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms.73 Apart from divergent court practices, the application of different laws at the state and entity levels also undermines equal access to justice of citizens from the entire territory of Bosnia and Herzegovina. For instance, in war crimes trials before the Court of BiH, the 2003 Criminal Code of Bosnia and Herzegovina is applied; in the Federation of BiH, the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia that was in force when the conflict in Bosnia and Herzegovina broke out and the 1998 Criminal Code of the Federation of Bosnia and Herzegovina are applied; in Republika Srpska and BiH Brko District, the 1976 Criminal Code of the Socialist Federal Republic of Bosnia and Herzegovina is applied. The issues arising from implementation of different criminal codes is related to the problem of divergent interpretations of law provisions.74 Differences also occur in defining
incorrectly. (...) This would turn the Constitutional Court into a third instance or fourth instance regular court, which is a role without any constitutional or legal grounds. In the Decision on admissibility and merits of the Constitutional Court of Bosnia and Herzegovina AP 1785/06, par. 87, the Constitutional Court of Bosnia and Herzegovina points out that the subject appellation discussed the implementation of constitutional rights and those arising from the Convention on the Protection of Human Rights and Fundamental Freedoms to the specific case, and not legal solutions or practices applied at the entity level. The Constitutional Court is of the opinion that the entity laws must be harmonized with the state-level laws, because different legal solutions may lead to a possible discrimination of persons tried for the same criminal offenses at the entity level. Therefore, the specific case cannot be the reason for the Constitutional Court to engage in determining whether the proceedings in similar cases before the entity courts are in line with the Constitution of Bosnia and Herzegovina or not. On divergent interpretations of law provisions, see Organization for Security and Cooperation in Europe OSCE, quot., p. 47 48: For instance, all Criminal Procedure Codes applicable in Bosnia and Herzegovina contain the principle that the court can ex officio re-classify an offense by establishing whether the conduct of the accused amounts to an offense different from the one alleged by the prosecutor. Some courts, however, apply this principle in differing ways. This sometimes leads to opposite outcomes in similar circumstances. For instance, whereas the Cantonal Court of Mostar (See the verdict of the Cantonal Court of Mostar in the matter of Niko Obradovi of 29 May 2006.) has used its ex officio powers to convict an individual of inhumane treatment of civilians for conduct that the prosecutor had qualified as torture, even though in the view of the Court the prosecutor had failed to prove the elements of torture, the Cantonal Court of Zenica has acquitted some of the accused in a war crimes case because the prosecutor had failed to prove that their acts against civilians amounted to torture. (See the decision of the Cantonal Court of Zenica of 5 June 2007 in the case of Sabahudin Operta et al).

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criminal offenses75 and the severity of pronounced sanctions for certain criminal offenses76. There is no neighboring country with the same or similar legal tradition as Bosnia and Herzegovina without a Supreme Court at the state level. For instance, the Constitution of the Republic of Croatia77 and the Law on Courts of the Republic of Croatia78 define that the Supreme Court of the Republic of Croatia, as the highest court, is to ensure uniform implementation of the law and equality of all in its implementation. Also, the Supreme Cassation Court of the Republic of Serbia determines tentative legal standpoints for the purpose of uniform law implementation by courts, reviews the implementation of laws and other regulations, as well as the work of the courts.79 It is even difficult to find a complex state in the world without a Supreme Court tasked, among other things, with ensuring equal access to justice for all citizens. For example, the Cassation Court of the Kingdom of Belgium is competent to review lawfulness of court decisions, and to supervise and harmonize implementation of the law80, while the Supreme Court in the Republic of Austria
75 So for instance, only the 2003 Criminal Code of Bosnia and Herzegovina contains provisions on crimes against humanity and the command responsibility, as well as more complete provisions on war crimes, which means that certain criminal offenses such as crimes against humanity are not included in the criminal codes of the entities. See the Criminal Code of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, issues 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10. E.g., see Organization for Security and Cooperation in Europe OSCE, quot.,, p. 45: Cantonal Court of Novi Travniks verdict in the case of Mato erek of 21 June 2005, in which the accused was sentenced to one year and eight months imprisonment for cruel treatment of six prisoners (severe beating, hitting, mistreating, humiliating, and intimidating.) The Supreme Court of the Federation of Bosnia and Herzegovina upheld this verdict on 3 August 2006. On the other hand, the Court of Bosnia and Herzegovina issued a decision in the case of Goran and Zoran Damjanovi in June 2007 in which, for very similar criminal acts, it sentenced one of the defendants at first instance to ten years and six months imprisonment. Constitution of the Republic of Croatia, Official gazette of the Republic of Croatia (Narodne novine), issues 56/90, 135/97, 8/98 consolidated text, 113/2000, 124/2000 consolidated text, 28/2001, 41/2001 consolidated text, 55/2001 correction, and an amendment to the Constitution of the Republic of Croatia, published in the Official gazette, issue 76/2010, article 119. Law on Courts, Official gazette of the Republic of Croatia (Narodne novine), issues 16/07, 113/08, 153/09 and 116/10, article 24. Law on Organization of Courts, Official gazette of the Republic of Serbia, issues 116/08 and 104/09, article 31. Constitution of the Republic of Serbia, Official gazette of the Republic of Serbia, issue 98/06, article 143, paragraph 4 defines that the Supreme Cassation Court is the highest court in the Republic of Serbia, and its jurisdictions are defined by the Law on Organization of Courts. Law on Courts of the Kingdom of Belgium, http://www.droitbelge.be/codes.asp#jud (last accessed on 14.03. 2011), articles 608 614.

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and the Federal Supreme Court in the Swiss Confederation are the highest and final instance courts in a federal state.
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On several occasions, the international community pointed out the obligation of establishing a Supreme Court instance at the state level in Bosnia and Herzegovina. The Resolution 1513 of the Council of Europes Parliamentary Assembly from 200682 on constitutional reform in Bosnia and Herzegovina and the Report of the Committee on Legal Affairs and Human Rights of the Council of Europes Parliamentary Assembly83 specify that harmonization of laws is necessary in order to provide legal certainty. The authorities in Bosnia and Herzegovina are urged to adopt and/or implement laws at the state level that are required for fulfillment of the remaining obligations towards the Council of Europe as soon as possible, with an emphasis on the possibility of establishment of a Supreme Court instance at the state level in Bosnia and Herzegovina. Similar statements are included in the 2008 Report of the Organization for European Security and Cooperation OSCE. It sees an adequate place () for a new state-level judicial institution that would have the final word when it comes to interpretation and implementation of a relevant law before all courts in the state. Such an institution would also help in ensuring consistency in interpretation of the law and guaranteeing equality of all people before the law.84 The requirements that the international community put before Bosnia and Herzegovina are clearly unambiguous when it comes to judicial reform efforts and establishment of a Supreme Court of Bosnia and Herzegovina. Finally, viewpoints from the Final document of the Working Group of Young Lawyers with proposals for new constitutional solutions in Bosnia and Herzegovina New Ideas, A Better Constitution should be presented here as well85:

The Constitution of Bosnia and Herzegovina does not envisage the existence of state-level judicial authorities, and the consequent
81 Austrian Constitution, http://www.servat.unibe.ch/icl/au00000_.html (last accessed on 14.03. 2011), article 92, and Federal Constitution of the Swiss Confederation, http://www. servat. unibe.ch/icl/sz00000_.html last accessed on 14.03. 2011), article 188. Parliamentary Assembly of the Council of Europe, Resolution 1513 on the Constitutional Reform in Bosnia and Herzegovina, (2006). Committee for Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, Criminal Prosecution for Acts within the Competence of the International Criminal Tribunal for the former Yugoslavia, (2007), par. 89. Organization for European Security and Cooperation OSCE, quot., p. 42. A working group of young lawyers, Final document of the Working Group of Young Lawyers with proposals for new constitutional solutions in Bosnia and Herzegovina New Ideas, A Better Constitution, amendments to the Constitution of Bosnia and Herzegovina, (Sarajevo, 2010), p. 28 29.

82 83

84 85

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establishment of the Court of Bosnia and Herzegovina cannot compensate for the non-existence of a Supreme Court of Bosnia and Herzegovina due to its narrow jurisdiction, and because it has no hierarchical relations towards the entity-level judiciaries. Such situation resulted in dangerous deviations in practices of courts in Bosnia and Herzegovina, and seriously jeopardized the equality of citizens at the entire territory of Bosnia and Herzegovina. The lack of a mechanism for harmonization of the court practices forced the Constitutional Court to exceed its defined appellate jurisdictions, although its task is not to review conclusions of regular courts with regard to statements of facts and application of the substantive law, but to examine possible violations or neglecting of constitutional rights and analyze whether the implementation of the law may have been arbitrary or discriminatory. Conclusions The current organization and relations between the judicial bodies in Bosnia and Herzegovina evidently show that decisions of judicial authorities in Bosnia and Herzegovina in effectu end up at the entity level. These are court decisions concerning different contents and/or interpretation of a regulation, divergent severity of pronounced sanctions etc. For this reason, different decisions are made in identical or similar cases, depending on the entity (and/or canton) where citizens appear as parties in court proceedings. Against this background, a question emerges whether the state of Bosnia and Herzegovina which, in conditional terms, possesses all the elements of a state but has no legal uniformity in praxi, can act with full capacity and ensure equal access to justice to its citizens. It is clear and somewhat understandable why the ruling political elites act indolently, but also why the citizens of Bosnia and Herzegovina are not livelier and more energetic in putting requests before their elected representatives in executive and legislative government branches when it comes to the establishment of a state-level supreme court instance in Bosnia and Herzegovina. As for the political elites, each of them evidently represents the opinions of its constituent people in a schismatic way, while Others are below the Radar . Hence, Republika Srpska decisively opposes the establishment of a Supreme Court of Bosnia and Herzegovina, allegedly due to deviations from the constitutional system of Bosnia and Herzegovina, envisaged in the Annex 4 of the Dayton Peace Agreement. The actual reason lies in their opposing
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against the centralization of the judicial system of Bosnia and Herzegovina.86 Ex adverso, voices from the Federation of Bosnia and Herzegovina sacredly and pretentiously propose the establishment of a Supreme Court instance at the state level. Seemingly, their final goal is only to stiffen the attitude towards Republika Srpska, given that they present no arguments to justify the need for this Court, apart from reiterating the obligation of establishment of a Supreme 87 Court of Bosnia and Herzegovina. A quality scientific study would be too much to ask. In an unsystematic and unarticulated giving and rejecting of the proposal, the Scilla and Haribda only confirm that they respect and appreciate voters intelligence only at the Election Day, after which they only worry about constituent sentiments that enable them to enjoy the position of political elites in the first place. However, the citizens of Bosnia and Herzegovina also act melancholically in placing their requests, and put no efforts in enabling vox populi to be heard. This unusual behavior in a democratic state where a wide range of human rights and freedoms is guaranteed to the citizens only implies the citizens derangement and inclination towards gloomy moods, with no will for a clear and articulate putting of requests in any issues, including the issue of establishment of a Supreme
86 For the viewpoints of Republika Srpska with regard to the establishment of a Supreme Court of Bosnia and Herzegovina, see for instance: A Supreme Court of BiH, Inzkos New Offensive, http:// www.ljiljan.ba/bs/vijesti/vrhovni-sud-bih/inckova-nova-ofanziva (last accessed on 14.03.2011); and Starting Positions Offer No Chance for an Agreement, http://www.banjalukalive.com/aktuelnosti/startne-pozicije-ne-nude-sansu-za-dogovor.html (last accessed on 14.03.2011); 87 For instance, the Joint Platform of Action in BiH Institutions in the mandate period of 2010 2014, signed by the Social Democratic Party (SDP), Party of Democratic Action (SDA), Croatian Party of Rights BiH (HSPBiH) and the National Party Radom za Boljitak (NSRzB) only mentions the necessity of establishment of a Supreme Court of Bosnia and Herzegovina that would harmonize court practices, but without specifying actions that need to be taken in this direction or the establishment methods. See Basis for Government Forming in the Federation of BiH and Joint Platform of Action in BiH Institutions in the Mandate Period of 2010 2014, http://www.sdp.ba/dokumenti/ programska%20platforma.pdf (last accessed on 14.03. 2011). For the viewpoints from the federation of Bosnia and Herzegovina with regard to the establishment of a Supreme Court of Bosnia and Herzegovina, see for instance: Starting Positions Offer No Chance for an Agreement, http://www.banjalukalive.com/aktuelnosti/startne-pozicije-ne-nudesansu-za-dogovor.html (last accessed on 14.03. 2011); and SBBs Reactions: A Wishlist, SBiH: Platform is Unconstitutional, SNSD: Unitarisation Continues, http://www.dnevnik. ba/novosti/bih/reagiranja-sbbpopis-%C5%BEelja-sbih-platforma-protuustavna-snsdnastavakunitarizacije (last accessed on 14.03. 2011).

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Court of Bosnia and Herzegovina that would provide equal access to justice to citizens at the entire territory of Bosnia and Herzegovina. Generally, these are only (seemingly successful) the attempts to aggravate and deprave relations in Bosnia and Herzegovina and create discord between different constituent peoples, with the final goal to preserve the uncompromising attitudes of governing elites. In sano sensu, one cannot (and must not, after all) claim that the Court of Bosnia and Herzegovina and the BiH Constitutional Court can replace or compensate for the non-existence of a Supreme Court. Equal access to justice can only be guaranteed in extenso by ensuring legal uniformity and equality. This is only possible if there is a unified and hierarchically established legal system with a Supreme Court instance at the state level. The fact is, in prima linea, that a supreme court ensures legal uniformity and equality. Without a Supreme Court instance, legal certainty and equality before the law and in ultima linea access to justice for all citizens from the territory of Bosnia and Herzegovina are put in question before all courts in BiH. Raising further discussion on the need for establishment of a Supreme Court in Bosnia and Herzegovina would certainly imply understanding of the need and meaningfulness of ensuring uniformity of court practices in interpretation and application of laws, and through legal uniformity. The identifying and problematizing the consequences of the nonexistence of a Supreme Court of Bosnia and Herzegovina, which led to unequal access to justice of citizens of Bosnia and Herzegovina at the time of research, is also the first step towards defining a public policy and/or strategy in this context. It is therefore expected that this will emphasize the consequences of the incomplete and uncoordinated court system of Bosnia and Herzegovina, also suffered by the citizens of Bosnia and Herzegovina in the segment of access to justice. In this way, the need for improvement of the court system of Bosnia and Herzegovina, and for opening and expediting the relevant processes, a possible direction of actions and possible solutions should be indicated. Finally, this will expectedly influence forming of a public policy and/or strategy concerning the necessity of establishment of a Supreme Court of Bosnia and Herzegovina. Therefore, the recommendations would include: (1) defining of a strategy for establishment of a Supreme Court of Bosnia and Herzegovina by the BiH Ministry of Justice; (2) establishing a relevant body within the BiH Ministry of Justice, aiming at the strategy implementation; (3) putting democratic public pressures via nongovernmental organizations aiming at the establishment of a Supreme Court of Bosnia and Herzegovina.

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Separate opinion of judge David Feldman, supported by judges Constance Grewe and Tudor Pantiru in Case AP 775/08 before the Constitutional Court of Bosnia and Herzegovina. Criminal Code of Bosnia and Herzegovina, Official Gazette of Bosnia and Herzegovina, issues 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07 and 8/10. 1950 Convention on Protection of Human Rights and Fundamental Freedoms, CETS No. 005, 213 UNTS 222 (No. 2889). Ministry of Justice of Bosnia and Herzegovina, 2008-2012 Justice Sector reform Strategy (Sarajevo, 2006). Nikola Viskovi, A State and the Law, (Sarajevo: Printed by Studentska tamparija, Sarajevo University, 1996).

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A Working group of young lawyers, Final document of the Working Group of Young Lawyers with proposals for new constitutional solutions in Bosnia and Herzegovina New Ideas, A Better Constitution, amendments to the Constitution of Bosnia and Herzegovina, (Sarajevo, 2010). SBBs Reactions: Wishlist, SBiH: Platform is Unconstitutional, SNSD: Unitarisation Continues, http://www.dnevnik.ba/novosti/bih/reagiranjasbbpopis%C5%BEelja-sbih-platforma-protuustavna-snsd-nastavak-unitarizacije (last accessed on 14.03. 2011). Federal Constitution of the Swiss Confederation, http://www.servat.unibe.ch/icl/ sz00000_. html (last accessed on 14.03. 2011). Starting Positions Offer No Chance for an Agreement, http://www.banjalukalive. com/ aktuelnosti/startne-pozicije-ne-nude-sansu-za-dogovor.html (last accessed on 14.03. 2011). Austrian Constitution, http://www.servat.unibe.ch/icl/au00000_.html (last accessed on 14.03. 2011). Constitution of the Federation of Bosnia and Herzegovina, Official Gazette of the Federation of Bosnia and Herzegovina, issues 1/94, 13/97, 16/02, 22/02, 52/02, 63/03, 9/94, 20/04, 33/04, 72/05, 71/05. Constitution of the Republic of Croatia, Official Gazette of the Republic of Croatia, issues 56/90, 135/97, 8/98 consolidated text, 113/2000, 124/2000 consolidated text, 28/2001, 41/2001 consolidated text, 55/2001 correction and Amendment to the Constitution of the Republic of Croatia , published in the Official Gazette 76/2010. Constitution of the Republic of Serbia, Official Gazette of the Republic of Serbia 98/06. Republika Srpska Constitution, Official Gazette of Republika Srpska, issues 3/92, 6/92, 8/92, 15/92, 19/92, 150/02, 22/05. A Supreme Court of BiH, Inzkos New Offensive, http://www.ljiljan.ba/bs/vijesti/ vrhovnisud-bih/inckova-nova-ofanziva (last accessed on 14.03. 2011); The Washington Agreement Law on Courts of Brko District of Bosnia and Herzegovina, BiH Brko District Official gazette, issues 19/07, 20/07 and 39/09.

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Law on Courts of the Kingdom of Belgium, http://www.droitbelge.be/codes. asp#jud (last accessed on 14.03. 2011). Law on Courts of Republika Srpska, Official gazette of Republika Srpska, issues 111/04, 109/05, 37/06, 17/08, 119/08, 58/09 and 72/09. Law on Courts in the Federation of Bosnia and Herzegovina, Official gazette of the Federation of Bosnia and Herzegovina, issues 38/05, 22/06 and 63/10. Law on Courts, Official gazette of the Republic of Croatia, issues 16/07, 113/08, 153/09 and 116/10. Law on Court of Bosnia and Herzegovina, Official gazette of Bosnia and Herzegovina, issues 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04, 35/04, 61/04, 32/07, 49/09 consolidated text, 74/09 and 97/09. Law on Organization of Courts, Official gazette of the Republic of Serbia, issues 116/08 and 104/09.

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Biography of the Author Maja Sahadi was born in 1982 in Biha. She graduated at the Faculty of Law of the University in Biha and then obtained a Master of Law Science degree at the Department for national and international public law at the Faculty of Law of Zenica University. She also studied at Utica College of Syracuse University in the United States, department for criminal judiciary, international public law and human rights. Fields of interest: constitutional law, political systems, international public law, security studies, preventive diplomacy and international negotiations. She published a substantial number of scientific and expert works in domestic and international publications, including a chapter Nature of Political System of Bosnia and Herzegovina in a publication Introduction to Political System of Bosnia and Herzegovina; chapter Decision Making in the Parliament of the Kingdom of Belgium in a publication Decision Making Process at the Parliamentary Assembly of Bosnia and Herzegovina; Electoral System of Bosnia & Herzegovina: Short Review of Political Matter and/or Technical Perplexion; and Comparative Review of the Constitution of the Kingdom of Belgium and Some Constitutional Solutions from the Constitution of Bosnia and Herzegovina. She took part in several scientific and expert meetings, conferences, symposiums and congresses, including a scientific event Currency and Significance of Human Rights and Freedoms in East Sarajevo; International Scientific Conference Sovereignty in the Age of Globalization in Dubrovnik; International Scientific Conference Genocide in Bosnia and Herzegovina Consequences of the Judgment of the International Court of Justice in Srebrenica; International School on the Problems of the New Europe The Mediterranean Beyond Borders in Gorizia and Congress of Young Scientists To the Future Together in Sarajevo. She participated in numerous scientific research projects, including the research project New Ideas, A Better Constitution .

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Waiting for Godot: Efficiency of the BiH Judicial System in the Protection of Political Rights of Minorities
Maja otari

Is there another country in the world where you as a citizen immediately lose political rights pursuant to the Constitution, if you fail to define your ethnic origin? Bosnia and Herzegovina (BiH) is such a country: if an individual declares him/herself as a Bosnian, what a paradox, he/she will be automatically classified as a member of national minority, because the person did not declare him/herself as a Bosniac, Croat or Serb. In the Preamble to the BiH Constitution, it is emphasized that the Constitution was created following the model of several international legal documents, including the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. In Article II, the BiH Constitution guarantees own harmonization with the European Convention on the Protection of Human Rights (ECPHR). As the recent years showed, the BiH Constitution is actually discriminatory towards members of minorities, depriving them of political rights that are guaranteed to the three constituent peoples of Bosnia and Herzegovina: Bosniacs, Serbs and Croats. The discrimination against the so-called Others (non-members of the constituent peoples) was confirmed by a judgment of the European Court of Human Rights (ECHR) in Strasbourg, in Sejdi & Finci v. BiH case of 22.12.2009. Although the definition of minorities in BiH is far more complex that in other countries (section 2), the rights to run in the elections for a member of the threemember Presidency of BiH or the state-level House of Peoples are reserved only for constituent peoples, or not even for them if they are outnumbered in one of the two BiH entities (section 3). It is therefore necessary to review the harmonization of legal practice with the ECPHR (section 4) and once again recommend steps to relevant institutions (section 5). Therefore, although this analysis is primarily focused on the Others and their political rights in the light of the ECHRs decision in Sejdi & Finci case, it will always take into consideration the general inequality of political rights for all citizens of BiH, regardless of their ethnic origin.

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Who are Minorities in BiH? The international organization Minority Rights Group defines minorities as disadvantaged ethnic, national, religious, linguistic or cultural groups who are smaller in number than the rest of the population and who may wish to maintain and develop their identity88. In other words, the majority population in a geographic area is often inclined to various forms of discrimination against minorities, in order to ensure homogeneity of that area. For the purpose of protecting national minorities, there are several appropriate documents and charters in the international law that were ratified by BiH and are therefore binding for it89: the International Convention on the Elimination of All Forms of Racial Discrimination; the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the Council of Europes Framework Convention for the Protection of National Minorities; European Charter for Regional or Minority Languages; Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief; finally, the most important such document is the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECPHR), passed on 4.11.1950 at the Council of Europe in Strasbourg. However, in the modern world, theory deviates from reality in many aspects. Bosnia and Herzegovina is probably the most complicated case of an administrative-political structure in Europe. Due to its complex structure, it is very difficult to define minority groups in this country. The BiH Constitution and Annex IV to the General Framework Agreement for Peace in BiH (Dayton, 1995) mention in the Preamble Bosniacs, Croats and Serbs as the constituent peoples, then Others and only then the citizens of Bosnia and Herzegovina. In other words, as the Austrian legal expert Joseph Marko says90, it clearly arises from the Decision on Constituency of Nations (U 5/98-III) issued by the Constitutional Court of BiH in 200091 that the term constituent peoples also implies collective equality and parity of nations as wholes at the entire territory
88 89 90 Minority Rights Group, Who are minorities, http://www.minorityrights.org/566/whoare-minorities/who-are-minorities.html, last accessed on 28.3.2011. Office of the UN High Commissioner for Refugees, Independent Bureau for Humanitarian Issues, Rights of Minorities Selected International Documents, Sarajevo 1998. Joseph Marko, Nature and Implications of the European Court of Human rights, Sejdi & Finci v. BiH, presentation at the conference Place and Role of Others in the Constitution of Bosnia and Herzegovina and future constitutional solutions for Bosnia and Herzegovina, Sarajevo, 3.2.2010. Constitutional Court of BiH, Partial Decision, U 5/98, 18.8.2000.

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of BiH (point 60 of the Decision), and not just the equality of citizens before the law. The above, along with the fact that the Preamble to the Constitution brings an uncommon compromise between ethnocracy and a civil society92 make BiH a unique country. However, there are also 17 official minority groups in BiH, the so-called Others: Albanians, Montenegrins, Czechs, Italians, Jews, Hungarians, Macedonians, Germans, Poles, Roma, Romanians, Russians, Rusyns, Slovaks, Slovenians, Turks and Ukrainians93. Citizens of BiH who do not belong to constituent peoples or any of the largest minority groups either refused to declare themselves, or come from multiethnic marriages and declare themselves as e.g. Bosnians, Herzegovinians or Yugoslavs, or belong to one of smaller national minorities that were not mentioned above.
It is important to recognize that BiH has classic minorities from the above definition of the Minority Rights Group, but also the so-called constituent minorities 94- members of constituent peoples that are represented with a small population in certain parts of the BiH territory. Bosniacs and Croats are a classic example (especially Croats, because they are generally the smallest constituent people in BiH) in the RS, as well as Serbs in the Federation. Consequences of such organization are clear: political rights are defined based on territory and ethnicity, and they are not universally valid. This, in mildest terms, brings on numerous political disagreements, as in the current case of the re-elected Presidency member eljko Komi who, although a Croat, was allegedly elected by the majority of Bosniac votes as the Croat representative of the Federation in the three-member Presidency. Both types of minorities are subject to discrimination of human, in this case political rights, which is further discussed below.

Political Rights Guaranteed by the BiH Constitution According to Article II of the BiH Constitution, all citizens of BiH (constituent peoples, others or national minorities, and all other citizens) have completely equal rights and freedoms therefore, the constituent peoples should not enjoy more rights than the Others and the non-ethnically affiliated. As we shall see
92 Nedim Ademovi, Sejdi & Finci v. BiH Judgment: Quo Vadis?, presentation at the conference Place and Role of Others in the Constitution of Bosnia and Herzegovina and future constitutional solutions for Bosnia and Herzegovina, Sarajevo, 3.2.2010, p.26. 93 OSCE BiH , National minorities, http://www.oscebih.org/Default. aspx?id=53&lang=EN, last accessed on 19.4.2011. 94 The author of this syntagma is the university professor Ugo Vlaisavljevi. See for instance: Ugo Vlaisavljevi: Will We Recognize Constituent Minorities?, Global, issue 51, 14.1.2010.

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below, this is not always the case in practice. Unfortunately, the situation is additionally complicated by the fact that constituent peoples are not necessarily mutually equal in the entities, cantons and municipalities where they are few in number, they are often exposed to political discrimination by majority constituent people(s). This is against the above-mentioned Decision on the Constituency of Peoples U5/98 issued by the BiH Constitutional Court in 2000, which reads that the equivalence implies that the constituent peoples are equal regardless of their number or, in other words, that no nation must be proclaimed a majority nation (point 59 of the Decision). However, although they are constituent peoples, Bosniacs and Croats cannot run for representative of Republika Srpska (RS) in the three-member Presidency of BiH (which includes a Bosniac and a Croat from the Federation, and a Serb from Republika Srpska), or the RS representative at the BiH House of Peoples, the second home of the state Parliament which foresees five Bosniacs and five Croats from the Federation of BiH, and five Serbs from Republika Srpska). The same applies to Serbs in the Federation of BiH who are the fewest in this entity and cannot have a representative at the Presidency, or at the House of Peoples of BiH in behalf of the Federation. This is an obvious disagreement with the ECPHR and many other aforementioned legal documents that were ratified by BiH and stipulate emancipation of all citizens at the territory of a state. In the most important case so far that indicates a form of discrimination against constituent peoples, Ilijaz Pilav sued BiH in 2006 before the Court of BiH and then before the BiH Constitutional Court because he as a Bosniac was not able to run for representative of Republika Srpska at the BiH Presidency (according to the Constitution, only members of the Serb people are allowed to do this, if the member of the BiH Presidency residing in Republika Srpska is in question). By the decision AP-2678/06 of 29.9.2006 in this case, the Constitutional Court found that different treatment does not a priori imply discrimination; the existence of discrimination can be discussed only in case when there is no objective and reasonable justification for the different treatment. In this respect, the Constitutional Court of BiH added that Article 25 of the International Covenant on Civil and Political Rights guarantees every citizen the right and possibility to vote and get elected free of any discrimination or unfounded limitations. Therefore, the decision of the Constitutional Court in the case of Ilijaz Pilav further reads, the aforementioned Article indicates
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that limitations can exist, but they must be founded. In other words, the Constitutional Court defined the discriminating constitutional provisions as founded limitations, starting from the so-called historical interpretation dating from the 1995 Dayton Agreement. Shortly after that, Pilav filed a lawsuit against BiH in 2007 before the ECHR. A decision is still pending. Unfortunately, the BiH Constitution discriminates even more strongly citizens that do not belong to any of the constituent peoples. Namely, the Constitution explicitly disables the minorities (Others) and the non-ethnically affiliated to run at the elections for the House of Peoples and the Presidency, regardless of their home entity. This very discriminating provision of the Constitution was the cause for a lawsuit against BiH by two members of Others before the ECHR. The next two sections will describe the process and discuss whether the ECPHR prevails over the domestic laws and the Constitution. Sejdi & Finci v. BiH: Political Rights of Others Ethnic origin plays a decisive role in various aspects of an individuals life and actions in BiH. Rights of individuals add upon the collective rights of peoples. This statement is best illustrated by the judgment of the Europen Court of Human Rights (ECHR) in the case Sejdi & Finci v. BiH of 22.12.200995. For years, Dervo Sejdi, Roma monitor at the OSCE Mission to BiH has been receiving complaints of Roma in BiH, unsatisfied with the way they were treated. Sejdi was also a member of the Council of Roma BiH and the Advisory Board for Roma Issues. As early as 2003, he pointed out the issue of the BiH Election Law and announced a lawsuit against BiH within one year96 due to the fact that the Constitution of BiH imposes limitations on the political rights of non-constituent peoples. Nevertheless, Dervo Sejdi did not sue BiH within one year because, as he claims, he was waiting for a reaction from responsible authorities. Since the reaction never came, and the so-called April package of proposed constitutional amendments failed in 2006, Sejdi finally decided to sue BiH before the ECHR in Strasbourg in the summer of the same year. Sejdi skipped the instance of the Constitutional Court of BiH and filed the lawsuit directly before the ECHR. He decided to do so because an appeal in a similar case of Ilijaz Pilav and the Party for BiH from 2006 was rejected before the Constitutional Court as unfounded,
95 96 European Court of Human Rights, Sejdi & Finci v. BiH, judgment 27996/06 and 34836/06a, Strasbourg, 22.12.2009. Interview with Dervo Sejdi, OSCE BiH office, Sarajevo, 14.12.2010.

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and depriving the member of a constituent people of political rights in the entity where the constituent people is few in number was found to be justified. As he felt that the aforementioned discrimination was not founded, objective or reasonable in his case, having learnt about the standpoint of the Constitutional Court in the Pilav case, Dervo Sejdi decided to address the ECHR directly. The Court in Strasbourg received another similar lawsuit at the same time. The plaintiff was Jakov Finci, a Jew who was the ambassador of BiH to Switzerland, and before that he used to be a chairman of the Interreligious Council of BiH and a director of the Civil Service Agency. Like Sejdi, due to his ethnicity, he did not have the right to run at the elections for the House of Peoples and the Presidency of BiH. The ECHR merged the two lawsuits into a single Sejdi & Finci v. BiH case. The Court first proposed a settlement with BiH, which was rejected by Sejdi and Finci, while the state of BiH never reacted to the proposal. The plaintiffs standpoint was that it was necessary to wait for an ECHR judgment, which would clearly indicate the discrimination and failure to respect political rights of all individuals who do not belong to any of the three constituent peoples in BiH. On 22 December 2009, in the long-awaited judgment, ECHR ascertained that Dervo Sejdi and Jakob Finci were discriminated by the Constitution and the Election Law of BiH. The Court also added that BiH was to harmonize its Constitution with Article 1, Protocol 12 of the European Convention on Protection of Human Rights, Articles 3 and 14 of the Protocol 1, and Article 1 of the Protocol 12 to the European Convention on the Elimination of All Forms of Discrimination. Over a year after the ECHR issued the judgment in the Sejdi & Finci case, it has not been implemented in BiH. Out of fourteen judgments against BiH that were issued by the ECHR so far (all of them are final), all of the judgments that preceded the one in Sejdi & Finci case involved competencies of the entities, i.e. inadequate protection of human rights by the Federation or Republika Srpska. The judgments concerned pre-war foreign currency savings, lawfulness of arresting mentally challenged criminal offenders, length of proceedings before national authorities, the right to property, missing persons, banishing foreigners and alike97. However, in the Sejdi & Finci case, the competency lies on the state itself, i.e. its Constitution, which was passed in a very specific way.
97 Telephone conversation with Monika Miji, Representative of the Bih Council of Ministers at the ECHR, 20.12.2010.

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In 2010, the BiH Council of Ministers formed a working group to implement the judgment, but the group met only once. Since 2010 was the election year, the Council of Europe sent warnings to BiH that it must not conduct the elections in the way that was found to be against the ECPHR in the Sejdi & Finci case98. Nevertheless, on 05 May 2010, the Central Election Commission (CEC) of BiH announced general elections in BiH to take place in October 2010.99 Shortly after the elections, Dervo Sejdi sued BiH before the ECHR again100. The Constitution of BiH is a political and legal phenomenon because it was created as an Annex to the Peace Agreement. As lord Ashdown, the former High Representative to BiH put it, the Dayton Agreement was a superb agreement to end a war, but a very bad agreement to make a state101. Due to political connotations in this case, it is important to emphasize that the BiH judiciary is not so much to blame for the non-implementation of the judgment in Sejdi & Finci case, as is the lack of political will and creativity of relevant actors. The judgment is often mentioned in the context of constitutional amendments, a topic already hateful in BiH due to several failed attempts initiated by the international community (the April package in 2006, the Prud process in 2008, Butmir process in 2009). The ECHRs judgments are specific because they stipulate general and individual measures. Individual measures include payment of pecuniary damages to plaintiffs and they have been duly implemented so far, even in the Sejdi & Finci case. Implementation of the general measures represents a much bigger problem, because they stipulate amendments to legislation and practices of national legislative authorities, in order to eliminate the established violations of rights in all similar cases in the future. In the Sejdi & Finci case, a reform of the BiH Constitution is proposed as a general measure, because it was declared incompatible with the ECPHR. This is where the complexity of the judgment in the Sejdi & Finci v. BiH case lies: implementation of the judgment does not only require the elimination of
98 For instance, Ethnic Hysteria and Status Quo Discrimination in BiH (Radio Free Europe) of 05.05.2010, available at: http://www.rferl.org/content/Ethnic_Hysteria_And_Status_ Quo_Discrimination_In_Bosnia/2033011.html; or PACE could discuss possible sanctions against BiH (BH News), of 09.11.2010, available at: http://www.bh-news.com/eng/index. php?option=com_content&view=article&id=3541:pace-could-discuss-possible-sanctionsagainst-bih&catid=1:bhnews&Itemid=2. 99 When he addressed the BiH Constitutional Court again, Sejdi received a response where the BiH Constitutional Court declared it has no jurisdiction over CECs cases. Source: interview with Dervo Sejdi, OSCE BiH office, Sarajevo, 14.12.2010. 100 This time, Sejdi proposed that the Court does not sanction BiH as a state due to the political nature of non-implementation of the judgment, but only relevant politicians from the six parties that were in power between 2006 and 2010 by banning their further political engagement. He also requested compensation of costs incurred in the four-year period. Source: interview with Dervo Sejdi, OSCE BiH office, Sarajevo, 14.12.2010. 101 Farewell, Sarajevo, The Guardian, 2.11. 2005.

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violations of the plaintiffs political rights, or an end to the discrimination against Jews and Roma in BiH, but a complete change of the Constitution and the Election Law of BiH, in order to provide equal rights to all citizens mentioned in the line 10 of the Preamble to the Constitution of BiH. Accordingly, although the ECHR has not issued a final judgment in the Pilav v. BiH case yet, the Sejdi & Finci judgment is completely clear and applicable to this case as well (regardless of the fact that Sejdi & Finci case involves minorities or Others, and Pilav case the constituent peoples): The Constitution of BiH violates the ECPHR in an unjustified and discriminating way; in concrete terms, it is a violation of passive voting rights of all citizens of BiH at its territory.

Position of the Constitutional Court of BiH in the Implementation of the European Convention on the Protection of Human Rights (ECPHR) In the aforementioned Decision on Constituency of Peoples U5/98 from 2000, the Constitutional Court of BiH stressed that constituent peoples shall be equal at the entire territory of BiH. However, this decision had legal implications for Others as well, and shortly after it was issued, the High Representative issued a decision in behalf of the international community, urging for an agreement on new policies and procedures to protect vital interests of both constituent peoples and Others.102 The decision primarily applied to the entity level, and not the state level103. Also, the European Commission for Democracy through Law (better
102 OHR, Decision establishing interim procedures protecting vital interests of Constituent Peoples and Others, 14.9.2000., http://www.ohr.int/ohr-dept/legal/const/default. asp?content_id=5853. 103 According to this decision of the High Representative, the Constitution of the Federation of Bosnia and Herzegovina was amended to stipulate that out of 58 delegates at the FBiH House of Peoples, 7 must come from Others that shall have the right to equal participation in majority voting. Similarly, out of 28 seats at the Council of Peoples of Republika Srpska, 4 shall be reserved for Others that shall here also have the right to equal participation in majority voting. Also, a seven-member panel (one member coming from Others) for vital interest issues was foreseen in both entities. As for the six highest positions in each entity (the Prime Minister; speaker of the FBiH House of Representatives/ chairman of the RS National Assembly; speaker of the FBiH House of Peoples / chairman of the RS Council of Peoples; president of the entity supreme court; president of the entity constitutional court, and the public prosecutor), the constituent peoples or Others must not have more than two representatives each. Finally, the Decision of the High Representative defines that one member in each entity government must come from Others until the full implementation of Annex VII to the Dayton Agreement (i.e. until full return of refugees and displaced persons). Unfortunately, it must be mentioned that out of sixteen ministers in the entity governments between 2006 and 2010, not a single one belonged to the group of Others.

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known as the Venice Commission) fully advocates the ECHRs standpoint from Sejdi & Finci judgment since 2005.
Referring to the House of Peoples in its Opinion on the Constitutional Situation in BiH and the Powers of the High Representative from 2005104, the Venice Commission states that the usual purpose of the second chamber in federal states is to ensure a stronger representation of smaller entities. Nevertheless, in BiH, the House of Peoples is not a reflection of the federal character of the state but an additional mechanism favoring the interests of the constituent peoples (i.e. at the expense of minorities), because it is a chamber where each constituent people may exercise vital national interest veto. As for the collective Presidency in its present (three-member) form, the Commission concluded that it does not appear functional or efficient,105 but that a single President is difficult to envisage presently in BiH without reforming the Council of Ministers. For this reason, it further proposes the Council of Ministers in which all constituent peoples are represented.

In its 2008 amicus curiae106, before the judgment in the case of Sejdi and Finci v. BIH was issued, the Venice Commission states that depriving Others of passive voting rights was only based on subjective, sociological criteria of individual self-determination. In other words, only because a person declares themself as a Serb, Croat or Bosniac, he/she automatically gains the right to stand as candidate for political positions at the House of Peoples and the BiH Presidency, which is not the case with any other person who (by own conviction) declares as a Czech, Jew, Roma, Rusyn or an Italian. This is not just discrimination and violation of the proportionality principle, but a direct forcing of a subjective attachment to one of the three constituent peoples, in order to obtain certain political rights. Despite the fact that some foreign authors tried to find a solution for the political and legal organization of BiH in other countries, for instance Belgium and Switzerland,107 all of them neglected the fact that the Constitution of BiH was created under specific circumstances and that its primary purpose was to put
104 European Commission for Democracy through Law, Opinion on the Constitutional Situation in BiH and the Powers of the High Representative, CDL-AD (2005) 004, Venice, 11.3.2005 105 European Commission for Democracy through Law, quot., p. 10. 106 The European Commission for Democracy through Law, Amicus curiae in the cases of Sejdi and Finci v. BiH, CDL-AD(2008)027, Strasbourg, 22.10.2008. 107 For Belgium, see for instance S.Stroschein: What Belgium can teach Bosnia: The Uses of Autonomy in Divided-House States, Journal of Ethnopolitics and Minority Rights in Europe, Issue 3/2003, and for Switzerland N.Stojanovi, Consociation: Switzerland and Bosnia and Herzegovina, SURVEY Periodical for Social Studies, issue 1/2008.

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an end to the war and destruction. Due to the fact that ending the war was the main motive, the Peace Agreement, with the Constitution as an Annex, insisted on a strict division of powers among the three constituent peoples, and on their total equality. Nevertheless, by ratifying the Protocol 12 to the ECPHR in 2000, BiH proved that Dayton is history. Namely, Article 1 of the ECPHR Protocol 12 represents a strict and general ban on discrimination, among other things, based on the affiliation to national minorities. In this context, what is the role of the European Convention on Human Rights when it comes to the Constitution of BiH and to what extent is the Constitutional Court of BiH bound to implement the ECHRs judgments? According to the distinguished constitutional law expert, Kasim Trnka108, the problem with interpretation of Point 2, Article II of the BiH Constitution lies in the fact that there is no official translation of the BiH Constitution to local languages. The Constitution of BiH was originally written in English, and for that reason there are several unofficial translations. Point 2 of Article II reads that rights and freedoms defined by the ECPHR shall be directly implemented in BiH. Namely, the English original reads: These shall have priority over all other law. There are two possible translations of the word law in this case: one is the law as a whole, and the other is laws. In the French translation of the Constitution, this difference is much more distinguished: the distinction between droit and loi in French is fairly clear, because droit means the entire law (objectively and subjectively), as a group of norms and rules regulating interhuman relations. On the contrary, loi means concrete legal norms or laws that are the main and formal source of objective law109. In the first case, it is interpreted that the ECPHR has priority over the entire national law, including the Constitution, which would mean that the Constitutional Court of BiH can amend the Constitution. This is certainly not true, because Article VI, Point 3 states that the Constitutional Court only supports the Constitution and examines compatibility of laws, not only with the Constitution of BiH, but with the ECPHR as well. According to the second interpretation, the ECPHR has
108 Kasim Trnka, Position of the Constitutional System of Bosnia and Herzegovina towards the European Convention on the Protection of Human Rights and Fundamental Freedoms, regional counseling Position and the Role of the Constitutional Court in the Application of the European Convention on Human Rights, collection of works, Official Gazette of Montenegro, 2006, p. 53. 109 Quest-ce que le droit et la loi? Des lois appliques, dcouverte des institutions, repres vie-publique.fr, Direction de linformation lgale et administrative du Premier-Ministre. http://www.vie-publique.fr/decouverte-institutions/justice/definition/application-lois/ quest-ce-que-droit-loi.html, last accessed on 19.4.2011.

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priority over other laws of BiH, but it is at the level of the Constitution, and not above it. Article III of the BiH Constitution reads that general principles of the international law are consisting parts of the legal system of BiH and the entities. The issue of amending the Constitution is regulated by the Constitution itself it requires two-third majority of the House of Representatives and at the House of Peoples there must be a consensus of the three constituent peoples. This was extremely difficult to achieve during the fifteen years of the Dayton Agreement and the Constitution. The Constitution of BiH is also specific because a Constitutional Law does not exist, but only the Rules of the BiH Constitutional Court. In other words, along with the Constitution of BiH, the Rules are the foundational act of the organization and functioning of the Constitutional Court110. It is also pertinent to mention that BiH does not have a Supreme Court. Due to this fact, the rights of its citizens to a fair trial and legal remedy, defined by the ECPHR have been put to question. Article 46 of the ECPHR defines that ECPHR judgments are final and binding. The Council of Europes Ministerial Committee supervises the implementation, and if a member state grossly violates the provisions of Article 3 of the Council of Europes Statute, according to Article 8 of the Statute, it can be sanctioned by cessation of membership at the Council of Europe. It is hard to imagine that this could happen to BiH, because it would be a huge political precedent, but the Council of Europe is not hiding its concerns due to the fact that not even the least effort is put in implementation of the judgment111. As early as October 2008, the Parliamentary Assembly of the Council of Europe issued Resolution 1626 (2008), requesting the BiH government to re-start the political process for amendments to the BiH Constitution. The Resolution was never adhered to. In view of the fact that violations of individual rights cannot be tolerated in favor of enjoyment of collective rights, the implementation of Sejdi and Finci
110 Valerija Gali, Position and the Role of the BiH Constitutional Court in the Application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, regional counseling, Position and the Role of the Constitutional Court in the Application of the European Convention on Human Rights, collection of works, Official Gazette of Montenegro, 2006, p. 55. 111 Council of Europe threatens to cancel BiHs membership because it failed to abolish the discriminating provisions of the Constitution, 31.3.2010, Otvoreno.ba, http://otvoreno. ba/vijesti/bih/1483-vijee-europeprijeti-izbacivanjem-bih-jer-nije-ukinula-diskriminirajueodredbe-ustava, last accessed on 4.4.2011.

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judgment can be analyzed in two different ways from the legal perspective112 (see graph 1 below): 1) in a systematic way, by generally changing the principle of dividing powers among the constituent peoples on almost all vertical and horizontal levels, which would be extremely hard, because it would put to question the entire institutional-legal system of BiH or 2) in a minimalistic way, by directly responding to the Sejdi and Finci judgment only, and implementing it in BiH. The latter would require either direct ECPHR application without amending the BiH Constitution, which is not possible because the ECPHR is not above the Constitution of BiH; or amendments to the Election Law, which would be possible, but it would not resolve the essential problem (discrimination against minorities). It would only be a cosmetic change and a politically less correct solution. Graph 1: Policy options for the implementation of Sejdi and Finci v. BiH judgment Option 1: Comprehensive reforms Option 2: Minimalistic changes

Reform of the BiH Constitution

Amendments to the BiH Election Law

Recommendations and Conclusions: Which Model to Apply for the Protection of Political Rights of Minorities in BiH? Against this background, two issues come to surface: 1) how to implement the judgment in Sejdi and Finci case in the political-legal system of BiH and, much more importantly, 2) how to ensure the protection of political rights of minorities and the legal and political equality of all BiH citizens, without dividing them by the ethnic origin, like in the Preamble to the BiH Constitution? Answers to both questions are not only legal by nature, but require a strong political will. Both before and after issuing of the judgment in Sejdi and Finci case, there were speculations about introducing a four-member Presidency (the fourth member would belong to Others), and adding four members from Others to the House of Peoples (two from the Federation and Republika Srpska each). These numerical speculations have found approvals or resistance from different political options. It is far more important to underline that Sejdi and
112 Ademovi, quot., p. 16-21,

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Finci judgment does not mention or stipulate the number of political positions anywhere, but only deals with the equality of all BiH citizens. In the answer to the first question, one cannot avoid the conclusion that constitutional amendments in BiH (rather gradual changes, than the unsuccessful package principle that was used in the past) are simply inevitable (see Graph 2 below). Establishment of a parliamentary committee for constitutional amendments that would include a number of domestic and international legal experts (the latter would have an advisory role) should be reconsidered. Also, it would be good to strengthen the role of the Representative of the BiH Council of Ministers before the ECHR, because this office operates as a link between political and legal natures of the judgment. How to answer the second question? Apart from the necessary constitutional amendments that would ensure equal treatment of all constituent peoples regardless of the entity in which they live, it is also necessary to politically strengthen the Others, the national minorities. Following the model from neighboring countries, such as the Republic of Croatia, Slovenia or Serbia, BiH should also introduce representation quota in the parliament for national minorities. For example, the Croatian Parliament currently has 8 delegates from national minorities (out of 153 delegates)113; the Republic of Serbia has 7 delegates from national minorities (out of 250 delegates at the National Assembly)114, while the Republic of Slovenia has 2 delegates from national minorities (out of 90 delegates at the State Parliament)115. The Republic of Croatia also has a Committee for Human and National Minority Rights at the Croatian Parliament. Since 2008, BiH has the National Minorities Council at the Parliamentary Assembly. Republika Srpska has a similar council since 2007 (Council of National Minorities), as well as the Federation of BiH since 2009. However, the Republic of Croatia also has an Office for National Minorities within the Government, and the vice-president of the Government in charge of social activities and human rights comes from an ethnic minority group (Serb). In other words, while the national minorities councils in BiH have an advisory

113 Croatian Parliament, http://www.sabor.hr/Default.aspx?art=1874, last accessed on 28.3.2011. 114 National Assembly of the Republic of Serbia, http://www.parlament.rs/content/cir/index. asp, last accessed on 28.3.2011. 115 Slovenian Parliament, http://www.parlament.rs/content/cir/index.asp, last accessed on 28.3.2011.

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role only, the opinion of national minority representatives is extremely important in Croatia, even in the executive government branch. It is often claimed that a solution to the issue of political participation of minorities in BiH primarily depends on the political will of relevant institutions, especially the BiH Parliamentary Assembly as a legislative body. The author of this article disagrees with this claim, because unequal access to justice of all BiH citizens BiH cannot be viewed as a mere political problem. Only by combining legal expertise and political decisiveness, an optimal solution can be reached for both national minorities and equality of all citizens (members of minority groups, such as Dervo Sejdi, but also of constituent peoples that are often subject to discrimination, like Ilijaz Pilav) in BiH. Finally, the BiH political elite should realize that Sejdi and Finci case is by no means against BiH, but works in its interest and for its progress. Graph 2: Recommendations for a better model of protection of minorities political rights in BiH 1) Establish a parliamentary committee for constitutional changes that would be gradually implemented and applied to all citizens of BiH constituent nations, Others and citizens (categories defined in the Constitution). This committee would primarily comprise of domestic legal experts. Amendments to the election law are possible, but they would not resolve the very essence of the problem. 2) Legally reinforce the Office of the Representative of BiH Council of Ministers before the European Court of Human Rights. 3) Following the model of neighboring countries from the region, introduce the representation quota in the BiH Parliamentary Assembly for national minorities. 4) By amending the legislation, strengthen the national minorities councils for direct participation in the executive government at the state and entity levels in BiH, instead of the mere advisory role they currently have.

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Bibliography
Nedim Ademovi, Sejdi & Finci v. BiH Judgment: Quo Vadis?, presentation at the conference Place and Role of Others in the Constitution of Bosnia and Herzegovina and future constitutional solutions for Bosnia and Herzegovina, Sarajevo, 3.2.2010, p.26. BH News, PACE could discuss possible sanctions against BiH, of 9.11.2010, available at: http://www.bh-news.com/eng/index.php?option=com_conte nt&view=article&id=3541:pace-could-discuss-possible-sanctionsagainstbih&catid=1:bhnews&Itemid=2, last accessed on 5.4.2011. Direction de linformation lgale et administrative du Premier-Ministre, Rpublique Franaise, Quest-ce que le droit et la loi? Des lois appliques, dcouverte des institutions, repres vie-publique.fr. http://www.vie-publique.fr/ decouverte-institutions/justice/definition/application-lois/qu-est-ce-que-droit-loi. html, last accessed on 19.4.2011. Slovenian Parliament, http://www.parlament.rs/content/cir/index.asp, last accessed on 28.3.2011. European Commission for Democracy through Law, Opinion on the Constitutional Situation in BiH and the Powers of the High Representative, CDLAD (2005) 004, Venice, 11.3.2005. The European Commission for Democracy through Law, Amicus curiae in the cases of Sejdi and Finci v. BiH, CDL-AD(2008)027, Strasbourg, 22.10.2008. European Court of Human Rights, Sejdi and Finci v. BiH Judgment, no. 27996/06 and 34836/06a, Strasbourg, 22.12.2009. Gali, V., Position and the Role of the BiH Constitutional Court in the Application of the European Convention for the Protection of Human Rights and Fundamental Freedoms, regional counseling, Position and the Role of the Constitutional Court in the Application of the European Convention on Human Rights, collection of works, Official Gazette of Montenegro, 2006, p.55. Guardian, Farewell, Sarajevo, 2.11. 2005. Croatian Parliament, http://www.sabor.hr/Default.aspx?art=1874, last accessed on 28.3.2011. Marko, J., Nature and Implications of the European Court of Human rights, Sejdi & Finci v. BiH, presentation at the conference Place and Role of Others 73

in the Constitution of Bosnia and Herzegovina and future constitutional solutions for Bosnia and Herzegovina, Sarajevo, 3.2.2010. Minority Rights Group, Who are minorities, http://www.minorityrights.org/566/ who-are- minorities/who-are-minorities.html National Assembly of the Republic of Serbia, http://www.parlament.rs/content/cir/index. asp, last accessed on 28.3.2011. OHR, Decision establishing interim procedures protecting vital interests of Constituent Peoples and Others, 14.9.2000. http://www.ohr.int/ohr-dept/legal/ const/default.asp?content_id=5853. Otvoreno.ba, Council of Europe threatens to cancel BiHs membership because it failed to abolish the discriminating provisions of the Constitution, 31.3.2010., http://otvoreno.ba/vijesti/bih/1483vijee-europe-prijeti-izbacivanjem-bih-jer-nijeukinula-diskriminirajue-odredbeustava, last accessed on 4.4.2011. OSCE BiH, National minorities, http://www.oscebih.org/Default. aspx?id=53&lang=EN, last accessed on 19.4.2011. Radio Free Europe, Ethnic Hysteria and Status Quo Discrimination in BiH, 5.5.2010.,http://www.rferl.org/content/Ethnic_Hysteria_And_Status_Quo_ Discrimination_In_Bosnia/2033011.html, last accessed on 4.4.2011. Stroschein, S., What Belgium can teach Bosnia: The Uses of Autonomy in Divided-House States, Journal of Ethnopolitics and Minority Rights in Europe, Issue 3/2003 Stojanovi, N., Consociation: Switzerland and Bosnia and Herzegovina, SURVEY Periodical for Social Studies, issue 1/2008. Trnka, K., Position of the Constitutional System of Bosnia and Herzegovina towards the European Convention on the Protection of Human Rights and Fundamental Freedoms, regional counseling Position and the Role of the Constitutional Court in the Application of the European Convention on Human Rights, collection of works, Official Gazette of Montenegro, 2006, p. 53. Office of the UN High Commissioner for Refugees, Independent Bureau for Humanitarian Issues, Rights of Minorities Selected International Documents, Sarajevo 1998. Constitutional Court of BiH, Partial Decision, U 5/98, 18.8.2000. Vlaisavljevi, U., Will We Recognize Constituent Minorities?, Global, issue 51., 14.1.2010, Sarajevo. 74

Biography of the Author Maja otari was born on 29.9.1985 in Slavonski Brod (Republic of Croatia). She obtained a masters degree in political economy at the Faculty of Economics in Vienna (Wirtschaftsuniversitt Wien) and a PhD degree in political science in 2009 at the University of Vienna (Universitt Wien). Her dissertation is focused on implementation of the political economic model of the Japanese developing state after the Second World War in countries of the post-war former Yugoslavia. She stayed in Osaka (Japan) and Paris (France) conducting the research for her PhD dissertation. She also completed post-graduate studies at the Diplomatic Academy in Vienna, with a special focus on human rights in the Balkans notably BiH and Kosovo. Maja otari used to work in Geneva at the Representative Office of the Order of Malta at the UN and in Brussels at the Centre for European Political Studies - CEPS and the International Crisis Group (ICG). She currently works as an assistant at the Gender integration in the security sector reform in BiH, supported by Geneva Centre for democratic control of Armed Forces (DCAF), Association Women to Women and the Atlantic Initiative in Sarajevo. She also cooperates with the International Crisis Group in Sarajevo as an assistant for the Balkans. She intensely works on several publications on human rights in BiH and Kosovo.

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When Will my Case Be Resolved? Implementation of the Freedom of Access to Information Act in the Justice Sector in BiH
Milena Savi

The goal of EU integration process and the requested changes in substantive and procedural legislation is to get BiH closer to the implementation of European standards and the best practices in the administration of justice. At the same time, citizens and civil society organizations in BiH increasingly require higher transparency and efficiency from the judicial institutions, and in this respect they demand better access to information about pending cases and the work of judicial institutions in general. Therefore, expectations from the judicial reform activities implemented by relevant institutions are high. Unfortunately, we cannot say with confidence that these expectations will be met in the near future. There are still evident problems in the field of civil enforcement proceedings, exercising labor rights that are urgent by nature, and resolving the huge number of the so-called backlog cases that may jeopardize the positive results achieved so far in this field. A large number of court trials take several years, and in many cases civil claims remain unsatisfied due to the statute of limitations, although based on clear facts and final and enforceable documents. Citizens complaints mostly refer to excessive length of court proceedings and non-abidance by procedural provisions stipulating adjudication within a reasonable timeframe in a court proceeding, which is certainly the main problem in exercising access to justice. Such legal situation is not specific for the judicial system in BiH only, but is evident in other judicial systems in the surrounding countries. The European Court of Human Rights is therefore buried in reports on unjustified delays and non-abidance by provisions about the reasonable timeframe of court proceedings.
In this respect, the excessive length of court proceedings is the main problem of member states. Various surveys indicate that the problem of delays in court proceedings is perceived as the biggest problem, not only by the public, but also by those who work directly with courts.116 Independence of judiciary is generally
116 See, the European Commission for the Efficiency of Justice /CEPEJ/, Framework Program

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recognized as the basic principle of the international law in the segment of human rights, which implies several international instruments, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights and Fundamental Freedoms. This principle is also stipulated by the Constitution of BiH, which defines direct application of the European Convention on Human Rights and Fundamental Freedoms, and its priority over all other national laws. The international standards underline the obligation of both executive and legislative authorities to provide adequate resources to the judiciary, and it will be necessary to ensure that the budgetary processes in the following years are free from any shadow or perception that the level of funds affects political deliberations.117

Several researches and analyses of civil society organizations that were conducted in BiH confirm the citizens statements and indicate the problem of delays in court proceedings, which affects the efficiency of courts, care of court users and the issue of transparency in the work of judiciary. Hence, a report of the civil society organizations (CSO) on implementation of the Action Plan for implementation of the Justice Sector Reform Strategy (JSRS) in BiH118 gives recommendations to the High Judicial and Prosecutorial Council of BiH (HJPC) to urgently start developing an action plan for implementation of a Strategy for care of court users in BiH, and that courts and prosecutors offices appoint public relations officers if they have not done it already. Also, courts that have not developed public relations strategies so far are recommended to immediately initiate activities in this direction. As an example in the context of this issue, we can mention an analysis of a citizen survey on the effects of the reform of municipal courts in Zenica-Doboj Canton, which was conducted by the Citizens association Alternative from Kakanj as a part of a project Strengthening the transparency of municipal courts in Zenica-Doboj Canton, with the goal to analyze trends in citizens perception

A new objective for judicial systems: the treatment of each case within an optimum and foreseeable timeframe CEPEJ /2004/19 REV 2 , quot., p.2, , Strasbourg, 13.09.2005. 117 OSCE Mission to Bosnia and Herzegovina, Spot report, Independence of Judiciary: Undue Pressure on BiH Judicial Institutions ,quot., p. 2 and 5,Sarajevo, December 2009. 118 ADI, HcHr BH, Human Rights Bureau, Vaa prava BiH, CCI Report of civil society organizations /CSO/ on implementation of the Action Plan for implementation of the Justice Sector Reform Strategy /JSRS/ in BiH - Reporting period: 01.01.2010-30.06.2010 quot. p.4, Sarajevo, 28.06.2010.

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of judicial reforms on the level of local communities.119 In accordance with the Analysis of backlog reduction plans by the age of documents that were submitted by courts and monitoring of their implementation (first quarter of 2011)120, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, in an extraordinary session held on 01 and 02 December 2010 in Mostar issued a conclusion adopting an Instruction for development of backlog reduction plans by the age of the initial document. Following the collection of plans submitted by courts, the Standing Commission held the first meeting on 02 March 2011, when the Unit for Efficiency of Judiciary presented an analysis of data collected based on the submitted plans. One of the conclusions from the meeting was to develop a detailed analysis of the submitted plans and check the percentage of implementation of the plans in the last three months. The Analysis of backlog reduction plans by the age of the initial document that were submitted by courts and monitoring of their implementation (first quarter of 2011) includes data for old cases that cannot be resolved due to legal, procedural or other obstacles. Namely, as of 31.12.2009, the number of unsolvable cases at BiH courts due to legal, procedural or other obstacles was not defined. However, in the reporting period as of 31.12.2010, the number of these cases was determined - 6.168 cases, which also impacts the total number of backlog cases, but it is important to mention that the so-called unsolvable cases only make 1.6 % of the backlog cases. At the same time, citizens as individuals or members of organizations and communities are not acquainted with mechanisms that would allow them better access to justice, i.e. they still do not have sufficient information on new ways and procedures for exercising their rights, especially the right to a fair trial (Article 6 of the European Convention on Human Rights and Freedoms), the right to an efficient legal remedy (Article 13 of the European Convention), the right to be informed (Article 10 of the Convention), and the right to enjoyment
119 Citizens association Alternative from Kakanj, Analysis of citizen survey on the effects of the reform of municipal courts in Zeniko-Dobojski Canton, as a part of the project Strengthening the Transparency of Municipal Courts in Zeniko-Dobojski Canton, supported by the USAID through the JSDP II. 120 The High Judicial and Prosecutorial Council of BiH, Analysis of backlog reduction plans by the age of the initial document submitted by courts and monitoring of their implementation /first quarter of 2011/, Sarajevo.

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of the rights set forth in the Convention without discrimination (Article 14 of the Convention). One of the efficient mechanisms that enables implementation of the aforementioned rights and positively impacts the work of courts is the application of the Freedom of Access to Information Act in BiH. The practice of civil society organizations that provide free legal aid, such as the Centre for Informative Legal Aid Zvornik confirms the fact that referring to the application of the Freedom of Access to Information Act in BiH by civil society organizations against the courts positively affects the case clearance rate of courts and actuates the treatment of backlog cases. Through presentation of this mechanism, methods of implementation and practical examples of the Centre for Informative Legal Aid Zvornik121, the goal of this work is to emphasize the importance of the Freedom of Access to Information Act in BiH and in the judiciary and encourage civil society organizations and citizens to duly implement it in order to gain better access to justice in BiH and put a democratic pressure on courts with regard to their case clearance rate. At the same time, having in mind the Strategy for care of court users in BiH and its main goal to gain and maintain citizens trust in courts, along with monitoring and implementing the principles of impartiality, independence, transparency, fairness and equality, and guaranteeing safety and security in the administration of justice to all citizens, this work and the implementation of the promoted mechanism strive to contribute to the implementation of the strategic goals set in the Strategy. Backlog cases constitute a problem that plagues Basic Courts in Zvornik, Vlasenica and Srebrenica. The Centre for informative legal aid Zvornik contacted these courts in the proceedings that involved provision of free legal aid and filing requests for free access to information. E.g., at the Basic Court in Zvornik, as one of 53 courts in BiH that the Instruction for development of backlog reduction plans by the age of the initial document applies to, they specify in their plan the following reasons, among others, why they have 2156 backlog cases, of which 1050 enforcement cases, 571 civil cases, 192 criminal cases etc., from the period 1990 - 2010: increased case inflow in the previous time period, insufficient number of judges, border area, difficulties with processing criminal cases, international legal aid etc.
121 Citizens association Centre for Informative Legal Aid Zvornik was registered at the court in Bijeljina on 05 March 1998 and has since followed its mission and vision.

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When it comes to monitoring the implementation of the developed plans, e.g. the Basic Court in Zvornik defined the obligation of judges to resolve 60% of backlog cases and 40% other cases i.e. priority cases within their monthly quota, and the court president is to present a backlog reduction plan by 31.01 of a current year and send it to the HJPC BiH and the president of the District Court in Bijeljina. In the observed example of the Basic Court in Zvornik, when it comes to the number of resolved cases from the Plan for the first quarter of 2001, 13% of backlog cases were resolved in the enforcement department, 21% in the criminal department, 17% in the civil department etc., which makes the total of 15 % of backlog cases resolved in the first quarter of 2011. The practical examples of communication between the Centre for Informative Legal Aid Zvornik (CIPP Zvornik) and the aforementioned courts will underline the presented issues and provide guidelines for improvement of access to information in the courts. Given the implementation of the Freedom of Access to Information Act in the entire state, the recommendations given in this paper are applicable to activities of civil society organizations and citizens, not only towards courts throughout BiH, but towards all other judicial institutions as well. Apart from relevant laws and regulations, analyses and information from significant strategic documents in the segment of justice judiciary that were adopted in BiH were used during the development of this paper. Reports and the own database of CIPP Zvornik were also used (the database is used in the intensive and continual process of monitoring this field during the processing and provision of legal aid in individual legal cases, and the results of project implementation in the justice sector)122, as well as the experience and analyses that were developed as a part of the research process in the justice sector during the implementation of projects Reform of judiciary and administration in BiH in partnership with the International Crisis Group over the time period 1998 -1999.

122 CIPP Zvornik implemented a project Higher transparency and efficiency of work of the judicial institutions in Zvornik, Vlasenica, Srebrenica and Kalesija, through practical application of the Freedom of Access to Information Act, supported by the USAID JSDP over the period 2006-2008.

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The Right to be Informed in National and International Laws The right to be informed is guaranteed as a universal human right by Article 10 of the European Convention on Human Rights and Fundamental Freedoms. This universal human right was also incorporated in the Constitution of BiH123, and the lex specialis Freedom of Access to Information Act in BiH124, as well as the entity Laws on free access to information. The goal of the state and entity laws on free access to information is to define the information controlled by public authorities as a public good, and to establish that public access to such information promotes higher transparency and accountability of those authorities. Transparency is the key path for preventing and disclosing corruption, and a path that ensures and promotes the integrity of judicial, executive and legislative branches of the government. Accordingly, citizens have the right to correct and timely information, and public authorities are to provide them with the information, particularly those concerning their activities and plans, in order to allow the citizens to understand the priority directions in policies and work of the elected officials. This is the way for ensuring civil participation in the decision making process, which is mostly a theoretical thesis only, and unfortunately still rarely applied in practice. Namely, the huge value of timely and precise information for citizens is well known, primarily in the procedures of exercising their individual and collective human rights and freedoms /access to the court, the right to an efficient legal remedy, the right to a fair trial, access to governmental institutions in the procedures of obtaining various legally valid documents required as evidence in proceedings before courts on all levels of local and subject-matter jurisdictions, etc./ However, we are often surprised with the insufficient knowledge and information among citizens as individuals or members of organizations and communities about the existence of the Freedom of Access to Information Act, the possibilities and ways to apply it in practice, especially in court proceedings, and relevant indicators of its use in the court proceedings in order to influence a more efficient work of the courts and improved case clearance rates. The special emphasis here is on the direct filing of requests for free access to information to the courts by
123 The 1950 European Convention on the Protection of Fundamental Human Rights and Freedoms; BiH ratified this convention on 12 July 2002. 124 Freedom of Access to Information Act in BiH, /BiH Official Gazette, issue: 28/00 /, Freedom of Access to Information Act in the RS / RS Official Gazette, issue: 20/01 /, Freedom of Access to Information Act in F BiH / F BiH Official Gazette , issue: 32//01

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citizens as parties in proceedings, or indirectly through civil society organizations, with the most frequently asked questions: When will my case be resolved, at what processing stage is it, what are the reasons for non-adjudication, requesting transcripts of judgments etc.? Practical Experiences of the Centre for Informative Legal Aid Zvornik in the Use of the Freedom of Access to Information Act in the Communication with Courts
Over the years of experience in providing informative and legal aid to citizens throughout BiH, the Citizens association Centre of Informative Legal Aid (CIPP) Zvornik125 developed an efficient system of applying the provisions of the Freedom of Access to Information Act in the process of filing requests to judicial institutions, within the procedures of representing and mediating in behalf of citizens. This system enables CIPP to monitor specific legal cases related to various segments of informing the public about the process of resolving these cases. In particular, the practice and gained experiences in the implementation of projects Higher transparency and efficiency of the work of judicial institutions in Zvornik, Vlasenica, Srebrenica and Kalesija through practical implementation of the Freedom of Access to Information Act that were supported by the USAID Justice Sector Development Project in BiH (JSDP)126 provide us with the possibility to analyze individual legal cases as case studies where requests for access to information were submitted. By analyzing the case study, concrete examples will be defined where a significant and visible impact on the transparency and efficiency of judicial institutions in the aforementioned courts was made, which increased the knowledge of citizens about their rights arising from the Freedom of Access to Information Act in BiH. Here are several examples from CIPPs practice to illustrate the way of applying the Law and the achieved impact on the work of courts. The examples are different by type and the duration of court disputes:

125 UG CIPP Zvornik has continually provided free legal and informative aid since 05 March 1998 at the territory of Republika Srpska and the entire BiH. 126 CIPP Zvornik owns a database as the result of the implementation of the projects Higher transparency and efficiency of work of the judicial institutions in Zvornik, Vlasenica, Srebrenica and Kalesija, through practical application of the Freedom of Access to Information Act, supported by the USAID JSDP over the period 2006-2008.

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Example 1 A judgment creditor in a debt collection case, L.R. from Vlasenica filed a request for free access to information to the Basic Court in Vlasenica. After filing of an enforcement motion on 05.02.2007, the Court issued a decision allowing the enforcement. However, the debt was not collected even several months later. For this reason, on 15.06.2007, CIPP Zvornik filed an access to information request in behalf of the judgment creditor, and requested information on why the enforcement actions were not taken in order to collect the subject claim. After filing of the request, the Court provided the requested information and the precise date of settlement of the subject debt. The debt was repaid on 20.07.2007, thus fulfilling the purpose of filing the access to information request. Example 2 A plaintiff R.B. from Zvornik filed an access to information request to the Basic Court in Zvornik, in a case of establishing the statute of limitations expiry on an unpaid electricity debt. The court held one hearing one year after filing the charges. As the court failed to issue a decision in merits on the filed lawsuit, CIPP Zvornik submitted an access to information request in behalf of the plaintiff on 06.06.2006 and requested a document-information from the held hearing and feedback on why this case was not resolved. After the request submission, the Court provided the requested information document within 15 days, on 08.06.2006, as well as the precise date when the Court would issue a judgment in the case decide in this legal matter, and the date and time when the plaintiff R.B. would be able to take over the court decision: on 14.07.2006. The purpose of the request for access to information was thus fulfilled, and adequate results were achieved. Example 3 K.Z. from Milii submitted a request for access to information to the Basic Court in Vlasenica, for the purpose of gaining rights in a probate proceeding after the death of her husband. They did not have any children. CIPP Zvornik filed an access to information request in behalf of K.Z. from Milii on 21.02.2007, and requested information on whether probate proceedings were initiated before the Basic Court in Vlasenica, when and by whom. The Court provided the requested information in less than 15 days, on 26.02.2007 the probate proceeding after the death of her husband was not initiated - thus timely fulfilling the purpose of the request submission.
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Example 4 A.M. from Zvornik submitted a request for access to information to the Basic Court in Zvornik for the purpose of exercising property rights over real estates in Zvornik. CIPP Zvornik filed an access to information request in behalf of A.M. from Zvornik on 13.12.2007, requesting information on whether a sales agreement for business premises between third parties was certified at the Basic Court in Zvornik. The Court provided the requested information in less than 15 days, on 19.12.2007: the sales agreement was concluded and registered in the cadaster, and verified before the Municipal Court in Kalesija. The number and date of certification were specified, and the person who filed the request for access to information was instructed to address the Municipal Court in Kalesija for access to information in this issue. In this way, the purpose of the submission of the access to information request was fulfilled. Example 5 .N. from Srebrenica submitted a request for access to information to the Basic Court in Srebrenica, for the purpose of exercising property rights over real estates and resolving a boundary dispute in Srebrenica. CIPP Zvornik filed an access to information request in behalf of .N. from Srebrenica on 07.03.2008, seeking information a document, sales agreement or another document on transfer. The Court provided the requested information a document within 15 days after filing the request, on 20.03.2008. In this way, the purpose of the submission of the access to information request was fulfilled. Example 6 A judgment creditor in an enforcement proceeding before the Municipal Court in Graanica for collection of severance pay and unpaid salaries based on the FBiH Law on Labor, .D. from Petrovo submitted a request for access to information. After filing of an enforcement motion, on 08.04.2009 the Court issued a decision allowing the enforcement, but the debt was not collected. On 10.12.2010, CIPP Zvornik filed an access to information request in behalf of the judgment creditor, requesting information on why the enforcement actions were not taken in order to collect the subject claim. After the request submission, on 12.01.2011 the Court provided the requested information, and asked the judgment creditor to give a statement on the case and the enforcement instrument, which the judgment creditor did on 15.02.2011. In this way, the purpose of the submission of the access to information request was fulfilled.
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Example 7 A plaintiff T.M. from Vlasenica filed an access to information request to the Cantonal Court in Sarajevo, in a case dealing with exercising property rights after a filed appeal on 10.11.2006 against the first instance judgment of the Municipal Court in Sarajevo, because the Cantonal Court in Sarajevo failed to issue a decision on the appeal. CIPP Zvornik submitted an access to information request in behalf of the plaintiff on 08.09.2010, requesting information on why the appeal i.e. this case was not resolved. After the request submission, the Court provided the requested information document: a judgment that was issued on 15.09.2010, i.e. after filing of the request, in favor of the plaintiff. The purpose of the request for access to information was thus fulfilled, and adequate results were achieved. The above examples evidently show that the courts not only provided the requested information, but also acted urgently on resolving the case based on which the request for access to information was submitted. Guidelines for Filing Access to Information Requests In line with the provisions of the Freedom of Access to Information Act and years of experience in its application, CIPP developed several guidelines for citizens and civil society organizations, in order to efficiently use the aforementioned mechanism in the communication with courts. In this respect, the following should be taken into consideration: Every individual and legal entity have the right to submit a request for access to information within the jurisdiction of a court; The request is submitted to the court in writing, by mail or in person at the courts mail intake office; The request must be clear and contain sufficient data about the nature and contents of the information; If the request is submitted by an individual, he/she is to prove their identity by presenting ID documents; If the request is submitted by a legal representative, he/she is to prove their identity and provide evidence of their powers of a legal representative; Upon receiving the request, the court is to examine the facts and circumstances relevant for the request processing via an authorized staff member;
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The court is to inform the requestor whether it approved the access to information entirely or partially within 15 days from the date of receiving the request. This deadline can be extended by 7 days in cases defined in the Freedom of Access to Information Act; Access to information shall be allowed to the requestor in one of the official languages in Bosnia and Herzegovina, and in the original language if different from the official languages, if possible; The court may reject the request for access to information (exempt information), partially or in its entirety, for the following information categories:

a) when there is a reasonable expectation that the information disclosure may incur cause substantial damage to legitimate goals, for the following categories of information: defense and security interests, and protection of public safety, Crime prevention and any crime disclosure, Protection of decision making processes defined by the law. b) when a request for access to information includes confidential commercial interests of a third party, c) when a request for access to information includes personal interests concerning privacy of a third party, in accordance with the law and Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, d) in cases of juvenile criminal offenders and when juveniles are the parties damaged by a criminal offense, e) when dealing with persons damaged by criminal offenses, for which public disclosure of information is prohibited by the Criminal Code provisions f) in cases of respecting the presumption of innocence, g) when it is found, after the procedure, that announcing the information is not in the public interest. If a court is not able to meet a request, it shall inform the requestor within 8 days, instructing the requestor about the possibility to file a complaint to the relevant authority, including the right to address the BiH Ombudsman.

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Multiplication costs are defined in the Instruction on the expenses of access to information that was issued by the relevant Ministry of Justice. According to the Instruction, photocopies of the first ten pages in standard size shall not be charged. The person who requested the material pays KM 0.20 per page if there are more than 10 pages. Relevant public authority that has control over the requested information shall photocopy the material.

At the same time, efficient implementation of the Freedom of Access to Information Act in courts also requires substantial knowledge of responsibilities of the public authorities, i.e. courts in this case, and of their obligation to provide assistance: A public authority /Court/ shall take all regular measures to provide assistance to any individual or legal entity requesting to exercise any rights within the meaning of this Law. Each public authority /Court/ shall appoint an Information Officer who shall process requests made under this Law. The name and contact information of the Information Officer shall be submitted upon his or her appointment to the public and the Ombudsman.
Each public authority shall disseminate:

(a) a guide sufficient to enable any person to access information controlled by that public authority including but not limited to, the contact information of the public authority and its Information Officer, essential elements of the request procedure together with a sample request letter, information regarding the categories of exemptions, access procedure, duplication costs, avenues of redress, and any applicable time limitations. The guide shall also refer to the indexed register as provided for in clause (b), as well as how that register may be accessed. The guide shall be submitted to the Ombudsman, every public and legal library in Bosnia and Herzegovina, on the Internet where practicable to do so, and shall be available upon request. This guide shall be free of charge; (b) an indexed register of the types of information in the control of the public authority, the form in which the information is available, as well as where that information may be accessed. The annex to this paper contains a template form of an access to information request that was prepared by CIPP, for the purpose of including all relevant information in the request.
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Access to Court Cases via Internet On 23 March 2011, the High Judicial and Prosecutorial Council of BiH issued a Rulebook on Communication of the HJPCs Information and Communication Technology (ICT) Department with the Users of Case Management Software.127According to the Rulebook, the official e-mail address for the users via internet is: CMS_IT_SUPPORT @pravosudje.ba. The service that provides access to court cases via the Internet allows parties, their legal representatives and proxies an authorized access to data on court cases that were registered in the Case Management System /CMS/. The access is allowed by using the case number and a unique access code, i.e. via user account. You need to obtain a receipt on issuing of the Unique Access Code at the registry office of the court where your case is processed. An individual must present a personal ID card, and a legal entity is to provide a decision on registration and an ID number. After an appropriate verification, the clerk issues a receipt that includes: the case number, the unique access code /UAC/, and the relevant website address: http/ pravosudje. ba/predmeti. Criminal cases and those with limited access cannot be accesses via the web service. Recommendations This paper seeks to contribute to understanding the importance of exercising the right to information, the possibilities of practical application of the Freedom of Access to Information Act in court proceedings and the impact of its practical application on improved efficiency and case clearance rates of courts. This primarily refers to direct filing of access to information requests to the courts by citizens as procedural parties, or indirectly via civil society organizations, with the most frequently asked questions: When will my case be resolved, at what stage is it, what are the reasons for non-adjudication, requesting judgment transcripts etc. The very utilization of the Freedom of Access to Information Act frequently brings quick, precise and efficient answers, which is a road sign towards law and
127 The High Judicial and Prosecutorial Council of BiH, Rulebook on Communication of the HJPCs Information and Communication Technology (ICT) Department with the Users of Case Management Software, 23.03.2011.

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justice, but it also often motivates and reminds the courts to resolve backlog cases, as shown by the practical examples from CIPP Zvornik. Based on the above illustrations of the application of the Freedom of Access to Information Act in court proceedings and several years of experience of CIPP Zvornik in the free legal aid segment, the below recommendations have been defined in order to use the existing legal mechanism of free access to information more efficiently and more broadly, to improve access to justice by using legal and democratic methods and put pressure on courts to resolve the backlog cases through a public dialogue.
Recommendations to Civil Society Organizations

Affirm and enhance the role of civil society organizations that provide free legal and informative aid in taking active part in the procedures involving submission of access to information requests and exercising the right to be informed in court and other proceedings before judicial institutions, and applying the principle of publicity in their work. It is necessary to encourage and strengthen capacities of civil society organizations for participation in debates aiming at a more efficient work of courts and other judicial institutions. Strengthen the advisory and consulting roles of civil society organizations that provide free legal and informative aid in the field of access to justice / centers, institutes, Vaa prava etc./ with respect to civil society organizations lacking such resources, especially organizations that gather or directly work with war victims in BiH. Continually work on monitoring of the work of courts, implementation of strategic documents from the judicial sector, research and analyze satisfaction of court users and various other issues of interest for more efficient courts with improved case clearance rates, and regularly inform the public thereof. Civil society organizations need to publicly work on promotion and practical application of the Freedom of Access to Information Act in the communication with courts and other judicial institutions, either independently or within coalitions or networks, continually independently or in partnership with courts and other judicial institutions. Civil society organizations should initiate innovative projects aiming at reducing the length of court proceedings and increasing the efficiency and transparency of the work of courts and other judicial institutions through public advocacy and building partnerships with courts and professional associations in the justice sector.
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Cooperate with the courts on legal affirmation of alternative dispute resolution, e.g. through mediation etc., and actively work on informing and educating citizens about these options. Promote, inform and educate citizens, parties in proceedings about possibilities and advantages of the application of information and communication technologies in judiciary, in cooperation with the courts and the High Judicial and Prosecutorial Council of BiH. Analyze the existing legislation, access the impact of legal solutions on timeframes in the judiciary and court activities, in consultations and cooperation with competent judicial institutions and civil society organizations that have the knowledge and experience in the field of judiciary. Genuine transparency in the work of courts and other judicial institutions should be ensured by publishing data, reports, analyses, plans with respect to the length of proceedings for each case type on all levels of courts and other judicial institutions. Courts should pay special attention to the backlog cases by continually developing legal mechanisms for monitoring such cases through e.g. periodical and annual reports and plans that are publicly accessible without additional limitations. Guides and best practices in Europe and globally in improving the length and currency of court proceedings should be distributed to citizens for information and education purposes, in cooperation with civil society organizations. Organize regular informative days at courts and other judicial institutions for parties in proceedings involving participation of civil society organizations, especially those that provide free legal aid. Provide an efficient system of filing access to information requests, petitions and complaints, and act on them urgently and transparently. Continually work on education of judges and administrative staff at courts, in order to improve the management system in courts. Include a large number of civil society organizations in the work of professional bodies that include judges and representatives of professional associations in the justice sector, established at competent judicial institutions, the HJPC BiH, line ministries of justice etc. in the sphere of strategic planning, monitoring the implementation of laws and regulations, strategic documents, plans issued by the HJPC BiH, courts etc.

Recommendations to Courts

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Bibliography
ADI, HcHr BH, Human Rights Bureau, Vaa prava BiH, CCI Report of civil society organizations /CSO/ on the implementation of the Action Plan for implementation of the Justice Sector Reform Strategy /JSRS/ in BiH - Reporting period: 01.01.2010-30.06.2010, Sarajevo, 28.06.2010. Center of informative and legal aid Zvornik / CIPP - Zvornik, Brochure for practical application of the Freedom of Access to Information Act in the work of judicial institutions in Zvornik, Vlasenica, Srebrenica and Kalesija, within the USAID/JSDP Program Judicial reform, Zvornik, 2006 and 2007. 1950 European Convention on the Protection of Fundamental Human Rights and Freedoms, BiH ratified this Convention on 12 July 2002. The European Commission for the Efficiency of Justice /CEPEJ/, Framework Program A new objective for judicial systems: the treatment of each case within an optimum and foreseeable timeframe CEPEJ /2004/19 REV 2, Strasbourg, 13.09.2005. OSCE Mission to Bosnia and Herzegovina, Spot report, Independence of Judiciary: Undue Pressure on BiH Judicial Institutions, Sarajevo, December 2009. Milievi Neo , Human Rights, Library of the Faculty of Law Sarajevo, no. III3070/45, publisher: Faculty of Law of the Sarajevo University, Sarajevo, 2007. Prof. dr Mufti Baki Jasna, Human Rights System, Sarajevo, 2002. UG Alternative from Kakanj, Analysis of citizen survey on the effects of the reform of municipal courts in Zenica-Doboj Canton, as a part of the project Strengthening the Transparency of Municipal Courts in Zenica-Doboj Canton, supported by the USAID through the JSDP II. High Judicial and Prosecutorial Council of BiH, Analysis of backlog reduction plans by the age of the initial document submitted by courts and monitoring of their implementation /first quarter of 2011, Sarajevo. Constitution of Bosnia and Herzegovina, Sarajevo, OHR Office of the High Representative High Judicial and Prosecutorial Council of BiH, Rulebook on Communication of the HJPCs Information and Communication Technology (ICT) Department with the Users of Case Management Software, 23.03.2011.

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Freedom of Access to Information Act in BiH, BiH Official Gazette, issue: 28/00. Freedom of Access to Information Act in the RS RS Official Gazette, issue: 20/01. FBiH Freedom of Access to Information Act, FBiH Official Gazette, issue: 32//01. Law on Free Legal Aid, RS Official Gazette, issue: 120/08. Law on High Judicial and Prosecutorial Council of BiH,/ BiH Official Gazette, issues: 25/04, 93/05, 15/08. Justice Sector Reform Strategy in BiH 2008-2012, Sarajevo, BiH Ministry of Justice, June 2008. Strategic Plan of the High Judicial and Prosecutorial Council of BiH for the period 2007 -2012, Sarajevo, 2007.

Strategy for care of court users in BiH, HJPC BiH, Sarajevo, 27.11.2006.

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ANNEX: Access to information request form

The request is submitted by: First and last name: _________________________________ Address: __________________________________________ Telephone: ________________________________________
Name and seat of the court receiving the request: ___________________________________________________________ ___________________________________________________________

Contents of the access to information request: ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ ___________________________________________________________

Place and date: ____________________

Requestor:

_________________
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Biography of the Author

Milena Savi is the founder and executive director of the Center for informative and legal aid Zvornik/CIPP Zvornik. CIPP Zvornik is a member of the Justice Network in BiH, the Peace Building Network BiH and many other NGO networks and coalitions in BiH, as well as regional initiatives such as the Coalition for REKOM. She completed post-graduate studies at the Faculty of Law of Sarajevo University, Department for state and international public law. She took part in research projects in the justice sector with the International Crisis Group (ICG), in the process of the reform of judiciary and administration in BiH. Ms. Savi is the author of various expert publications in the field of judiciary for general public, particularly focusing on building communication between citizens, civil society organizations and judicial institutions in BiH in the sphere of practical application of the Freedom of Access to Information Act in the justice sector.

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Free Legal Aid in Herzegovina-Neretva Canton: Role of NonGovernmental Organizations

Mr.sc. Rebeka Kotlo and Ivana Stipanovi
Legal aid is a form of implementing citizens rights to equal access to justice and a fair trial, and is a necessary prerequisite and instrument for exercising fundamental human rights. Access to justice free legal aid in Herzegovina Neretva Canton (HNC) is a burning issue that requires urgent resolution. This statement is supported by the following facts: insufficient and inadequate legal framework for access to justice in HNC and the situation in practice, which shows that there is a large number of beneficiaries with many requirements, and unsatisfying capacities of the subjects to provide free high-quality legal service to each beneficiary. The importance and gravity of this issue are, among other things, evidenced by the reports on the implementation of the Justice Sector Reform Strategy in BiH and its Action Plan128, work plans and programs of ministries of justice in Bosnia and Herzegovina, reports on work of judicial authorities, state administration authorities, the Ombudsman Office and non-governmental organizations, but also data received directly from legal aid seekers that submit requests to non-governmental organizations citizens associations. Information from the Ministry of justice, administration and local self-governance of Herzegovina-Neretva Canton indicate that 28% of the population in HNC need free legal aid. A law that will regulate provision of free legal aid in HNC129 is in the adoption procedure at the HNC Assembly. The HNC Government sent a proposed Law on cantonal Legal Aid Institute to the HNC Assembly in 2010, with adequate reasoning.130 However, the adoption procedure has not been completed yet. The
128 For more details, see: Justice Sector Reform Strategy in Bosnia and Herzegovina for the period 2008-2012, BiH Ministry of Justice, Sarajevo, June 2008. 129 Law on cantonal Legal Aid Institute, currently at the parliamentary procedure of HNC Assembly. 130 Legal grounds for passing this Law are provided in Article 39 of the Constitution of Herzegovina-Neretva Canton, which defines the legislative function of the Canton Assembly, and in the provisions of Article 7 of the Law on cantonal ministries and other cantonal authorities (HNC Official Gazette, issues: 6/98, 1/02, 4/07) that grant powers to the canton to regulate by laws the following: drafting laws and regulations within its competence, organizing the staff and working conditions for courts, prosecutors offices, offices of attorney general and legal aid services.

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establishment and activities of Legal Aid Institute certainly represent an important and positive step forward, insufficient however, according to legal practitioners. The fact that 28% of the HNC population are potential free legal aid beneficiaries and the existing (inadequately regulated by law) cooperation between the judiciary and administration and citizens associations in the field of free legal aid provision give rise to the needs for: amendments to the wording of the law on cantonal legal aid institute or passing of a law on free legal aid in HNC, which would legally regulate and establish institutional forms of cooperation between the judiciary and administration and citizens associations (non-governmental organizations) that would be selected on the basis of precisely defined criteria for providing free legal aid services.131

Namely, according to relevant actors in the justice sector, inadequately regulated issue of free legal aid in the aforementioned Law proposal is reflected in its incompatibility with the international standards and practices, and the proposed framework law at the state level. Excluding the non-governmental sector as free legal aid provider and ignoring years of NGO practice in this respect in HNC are particularly worrisome. Therefore, the intention of this paper is to provide a valid, professionally and scientifically founded analysis and recommendations for improvement of the role of non-governmental sector in HNC and their (possible) cooperation in gaining access to justice free legal aid, and thus give relevant guidelines for the work of decision makers in HNC on regulating free legal aid, with the goal to develop and legally and factually define possibilities for cooperation between the judiciary and non-governmental organizations. This paper seeks to contribute to improvement of the situation in the segment of access to justice free legal aid provision by proposing specific measures and activities, and enhancement of the role of citizens associations in free legal aid
131 NGO sector, well-established in providing legal aid and in legal profession in general, particularly interested in a more adequate legal regulation of access to justice free legal aid provision, should use its knowledge and skills in the domain of public consultation, legislative procedures in the parliament, legislative drafting technique and related advocacy activities, and engage in various activities: organize roundtables and public debates, participate in public consultations, develop proposed amendments to laws with adequate reasoning and initiate passing of new laws, initiate parliamentary procedures, particularly having in mind the Uniform Rules for Legislative Drafting in the Institutions of Bosnia and Herzegovina (BiH Official Gazette, issue: 11/05, 2005) and the Regulations on Consultations in Legislative Drafting (BiH Official Gazette, issue: 81/06, 2006.)

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provision, thus implementing their rights guaranteed to indigent persons by the Constitution, laws and other regulations, in the way and under the conditions as defined by legal norms. In order to achieve the goal of this paper, it is necessary to analyze and research the relevant legal framework, the situation in practice, methodology and the work of courts and the non-governmental sector on the most common legal issues, and to review possible modalities of cooperation between the aforementioned actors in the justice sector and legal practice, in the light of the troublesome economic, political and social situation in BiH, and especially HNC. Legal Framework for Access to Justice Free Legal Aid in BiH, with a Special Review of HNC and Compatibility with the International Documents and Practice The right to free legal aid in BiH originates from the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols132 (Article 6 the right to a fair trial). Rights from the European Convention are guaranteed by Article II of the Constitution of Bosnia and Herzegovina, which stipulates that the rights and freedoms guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms shall be directly applied in Bosnia and Herzegovina and have priority over all laws. Although, according to the European Convention, only accused persons are entitled to free legal aid, when it is in the interest of justice, depending on the financial status of the accused person, the practice of the European Court provides for broader application of the Convention. It is an obligation of the member states, including Bosnia and Herzegovina as a member of the Council of Europe and a state that applies the European Convention, to ensure free legal aid when such aid is necessary for efficient protection of civil rights and obligations, regardless of the capacity of parties to represent themselves.

132 The European Convention for the Protection of Human Rights and Fundamental Freedoms, the most efficient regional document for the protection of human rights that came into force in 1953 is mentioned in the regulatory part, Article II of the Constitution of Bosnia and Herzegovina, enjoys a special constitutional treatment and is directly applied in Bosnia and Herzegovina. The European Convention on Human Rights and Fundamental Freedoms: Article19. Decree ratifying the Convention for the Protection of Human Rights and Fundamental Freedoms, amendments to the protocols 3, 5 and 8, also amended by Protocol 2, and of protocols 1, 4, 6, 7, 9, 10 and 11, published in the RBiH Official Gazette, special edition: International Agreements-2, issue 5/96.

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Laws defining minimal rights to free legal aid do not exist at the levels of Bosnia and Herzegovina or the Federation of Bosnia and Herzegovina yet133, but such laws were passed in some parts of BiH (Brko District134, Republika Srpska135, and four cantons in the Federation of Bosnia and Herzegovina: Tuzla Canton136, West Herzegovina Canton137, Zenica-Doboj Canton138 and Posavina Canton139), and institutions for free legal aid provision (institutes or offices) were established. Like in HNC, a proposed Law on free legal aid is in the procedure in Una-Sana Canton as well, but it has not been adopted yet.

In view of the fact that the introduction of a free legal aid system at the entire territory of Bosnia and Herzegovina was defined by the Justice Sector Reform Strategy 2008-2012 of the Ministry of Justice of Bosnia and Herzegovina and that it requires equal treatment of all indigent citizens at the territory of BiH in exercising the right to free legal aid, it is necessary to pass and harmonize laws, also guided by principles from the proposed Framework law on free legal aid at the level of Bosnia and Herzegovina. By regulating the subjects for free legal aid provision, this law proposal stipulates that free legal aid can be provided by the following: bar chambers in Bosnia and Herzegovina; institutional bodies that include offices, institutes, committees
133 A proposed framework law on free legal aid, which is in the parliamentary procedure upon the proposal of the Council of Ministers of Bosnia and Herzegovina dated 08 June 2010, has not been passed at the 48th session of the House of Peoples on 13.07.2010. Since in the first round of voting, with nine votes for and four votes against, the majority from the entity of Republika Srpska was not present, they tried to reach an agreement at the House Collegium as a commission (no agreement was reached). In the second round of voting, with nine votes for and four votes against from Republika Srpska, the House of Peoples did not pass the proposed framework law on free legal aid in the first reading. See: Minutes from the 48th session of the House of Peoples of Parliamentary Assembly of Bosnia and Herzegovina held on 13.07.2010. 134 Law on Legal Aid Office, Brko District Official Gazette, issue 18/07, 2007 135 Law on Free Legal Aid, RS Official Gazette, issue 120/08, 2008 136 Law on Providing Legal Aid, Tuzla Canton Official Gazette 10/08, 2008. 137 Law on the Cantonal Legal Aid Institute, West Herzegovina Canton Official Gazette 14/08, 2008. 138 The Law on Cantonal Ministries and Other Cantonal Authorities, Zenica-Doboj Canton Official Gazette 13/08, established the Legal Aid Institute as an independent cantonal organization that provides services only to indigent persons; Rulebook on the Way and Conditions for Providing Legal Aid, Zenica-Doboj Canton Official Gazette 9/09. 139 Law on Providing Legal Aid, Posavina Canton Official Gazette 3/10, 2010.

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or legal aid centers, established by relevant authorities; non-governmental organizations. Free legal aid is obtained as the right to: general information about rights and obligations, legal advice and assistance in filling forms, legal aid in drafting all types of writs, representation before other authorities and institutions, representation at court, preparing appellations and legal aid in amicable dispute resolution (mediation). In order to gain the status of a legal aid beneficiary, an individual has to meet the following criteria: financial criterion, reasonable grounds and the criterion of mandatory aid in accordance with other laws and international conventions. The right to legal aid based on the financial criterion can be obtained by persons identified as vulnerable categories, as follows: persons receiving social assistance, the unemployed, persons without other regular earnings or income, indigent persons, children without parental care, persons that were defined as legal aid beneficiaries in another recent case, persons deprived of the capacity to work and mentally challenged persons staying at health institutions, and beneficiaries of old age and disability pensions. According to the proposed Framework law, employees of non-governmental organizations shall not be allowed to represent at court in criminal proceedings; however, they shall have representation rights in administrative disputes, minor offense, civil, non-litigation and enforcement proceedings, provided that they are law graduates with passed bar exam and at least two years of working experience in the field of law after passing the bar exam. Funds for organizing and providing legal aid are provided in the budgets at appropriate government levels. The Law on Legal Aid in Republika Srpska140 has been in force since 01.07.2009. This Law, among other things, stipulates basic rights and principles for obtaining free legal aid, forms of obtaining free legal aid, conditions and ways for gaining the right to free legal aid, free legal aid beneficiaries, subjects that provide free legal aid, supervision and management of the legal aid system, financing and control of legal aid. A Center for providing legal aid has been established and active since 01.07.2009 in Republika Srpska. It has the status of a republic administrative organization and organizationally belongs to the Ministry of Justice, seated in Banja Luka. The Center also has offices in seats of District
140 Law on Legal Aid, RS Official Gazette 120/08, 2008.

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Courts in Republika Srpska, as follows: Banja Luka, East Sarajevo, Trebinje, Bijeljina and Doboj. The Center for providing legal aid in the RS provides the following free legal aid: providing general information on rights and obligations, legal advice and assistance in filling forms, representation in court proceedings (civil, non-litigation, enforcement and minor offense proceedings, administrative disputes), appellations, amicable dispute resolution (mediation) and legal assistance in drafting writs. Legal aid beneficiaries are individuals that meet the following criteria: a) financial criterion (persons receiving social assistance, the unemployed, persons without other regular earnings or income, indigent persons, old age and disability pension beneficiaries, persons deprived of the capacity to work and mentally challenged persons staying at health institutions, children without parental care and persons that were defined as legal aid beneficiaries in another recent case. b) reasonable grounds and c) v) criterion of mandatory right in accordance with other laws and international conventions. For the subjects authorized to provide legal aid, the Law stipulates the following: the right to representation in civil proceedings, criminal proceedings in the part where the right to defense is exercised by appointing a defense counsel based on indigence of the suspect or the convict, administrative disputes, minor offense, non-litigation and enforcement proceedings shall be granted to:
a) employees of the Center, except for criminal defense, b) attorneys, members of the Bar Chamber of Republika Srpska and c) employees of non-governmental organizations that provide legal aid (except for defense in criminal cases), under the terms that apply to employees of the Center.141

Reasoning of the draft Law on legal aid institute of Herzegovina-Neretva Canton reads, among other things: Within the legislative reform in the area of judiciary, it is necessary to provide the conditions for qualified, financially justified and sustainable legal aid services in cases of socially vulnerable groups, that will be provided by quality legal experts within an institutionalized body, particularly because the legislative part of judicial reform defines a much broader right of indigent suspects or accused persons to a defense counsel than before: on this ground,
141 More details at: http://www.mpr-centar.org/

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they can request a defense counsel throughout the entire criminal proceeding, for all offenses if the interest of justice requires so, and also because obtaining of legal protection is limited in other proceedings, and it is therefore necessary to identify and eliminate obstacles that prevent or impede equal access to courts and justice for all citizens. The above indicates that the legislative reform in judiciary shall bring more favorable terms for using free legal aid services to socially vulnerable groups. Therefore, by identifying and eliminating the obstacles and shortfalls, the legislative reform shall allow equal access to courts and justice for all citizens. BiH laws dealing with civil matters do not contain provisions on legal aid. In some cases, entity laws on civil proceedings allow the court to appoint a temporary ex-officio counsel for the accused. Nevertheless, this appointment is not viewed as legal aid, but more as a necessary legal substitution for a party in order to conduct the court proceeding. Such solutions are not necessarily a problem for parties that can afford an attorney. Analyses of civil laws that show the lack of legal aid in this area, and the data that 28% of citizens in HNC are potential legal aid beneficiaries imply the need for free legal aid services in the civil segment, in order to equalize the positions of parties in a proceeding. Also, one of the reasons for the establishment of a Cantonal legal aid institute as an independent cantonal institution lies in its cost-efficiency, which is evident from the cost analysis conducted by the HNC for criminal cases in the earlier period, when the court appointed ex-officio defense counsels that are paid by the Canton.142 However, judicial authorities and the NGO sector share the opinion that one of the shortfalls of such legal definitions and solutions in the area of access to justice and providing free legal aid is leaving out citizens associations nongovernmental organizations as legal aid providers. The Recommendations of the Council of Europe pertaining to the establishment of a legal aid system in Bosnia and Herzegovina emphasize that: legal representation at court, in order to be efficient, should be provided by persons with professional qualifications for law practicing in accordance with the law; the goal is certainly not to exclude the role
142 See: Reasoning of the Draft Law on legal aid institute of Herzegovina-Neretva Canton.

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of NGOs in providing legal services; on the contrary, the state should closely cooperate with the Bar Chamber, representatives of the judiciary and NGOs and representatives of civil society, as well as others that are acquainted with the circumstances of legal aid seekers on the establishment and management of a legal aid system, with an integrated joint approach to this issue. In the European Union, the free legal aid system has been established in all EU countries, and the free legal aid is not only foreseen by national laws, but is also available to citizens who exercise their rights at the territory of another country and meet the specific requirements for the use of free legal aid. Some of the most important documents regulating the right to free legal aid in the European Union are: the European Agreement on the Transmission of Applications for Legal Aid (from 1977), signed by all EU members except Germany; Bosnia and Herzegovina ratified this Agreement that regulates the right to legal aid outside the country of habitual residence, and it has been in force in our country since 31.05.2009; the Convention on International Access to Justice (The Hague, 1980), which foresees that nationals of any Contracting State and persons habitually resident in any Contracting State shall be entitled to legal aid in each Contracting State on the same conditions as if they themselves were habitually resident in that State; it was ratified by all members of the Union, and Bosnia and Herzegovina accepted the Convention in 1993; the Legal Aid Directive, adopted by the Council of Europe in January 2003, upon the proposal of the European Commission, aiming at improvement of access to justice by introducing common minimum rules relating to legal aid. Legal aid systems throughout the European Union mutually differ when it comes to the nature and scope of legal aid provided to beneficiaries and the terms of use, but all of them have the same goal to ensure an effective access to justice for all citizens. Therefore, the European standards, the proposed and rejected Framework Law on legal aid in BiH and the existing Law on Legal Aid in Republika Srpska envisage provision of legal aid by the NGO sector, while the Law on cantonal legal aid institute in HNC, which is currently at the parliamentary procedure, as the only law dealing with free legal aid in HNC does not define this option. The Situation in Practice Issue of Access to Justice at the Municipal and Cantonal Courts in Mostar due to Ignorance of Parties and (Possible) Contribution of the NGO Sector Procedures before the court are strictly formal, be it civil, criminal, administrative or minor offense procedures. It should be stressed here that the laws regulating
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court procedures, primarily the Law on Civil Proceeding and the Criminal Procedure Code put the burden of evidence on the parties. Hence, a successful dispute resolution depends on the partys knowledge of legislation or assistance from a legal expert. Question is: how many people in Bosnia and Herzegovina have adequate knowledge or possibility to represent themselves at the court, and what is the number of those who can afford quality legal assistance of a defense counsel or an attorney? We learnt from Judge Nina ulani, vice-president of the Municipal Court in Mostar, that parties lacking adequate legal aid or legal representative are far more numerous than those who receive such aid. According to the judge, the cases of inadequate and poor quality representation create an excessive workload and burden the courts. Due to delays in case processing, it jeopardizes and violates the right to a fair trial within a reasonable timeframe and access to justice. Although it is assumed that citizens must know the law, they are mostly laypersons who seek to exercise some of their rights without any legal knowledge or representation skills, or funds to hire an attorney. For these reasons, they most often lose their rights after an exhausting process. Poor quality representation is a consequence of the social situation in the country, because many people decide to represent themselves at the court, and since they do not possess adequate legal knowledge, a judge is forced to instruct the party in which direction to formulate their claim, and a lot of time is wasted on such instructions. The court and judges are only bound by the law to remind parties about the importance of legal provisions defining the form of the documents, and the judges powers stop there, because the court must not determine the material facts and the parties carry the burden of evidence. Utility cases (unpaid electricity bills, water, telecommunications) are the most numerous cases before the Municipal Court in Mostar. They are followed by labor and family disputes. This leads to a conclusion that law graduates and experts from non-governmental organizations could point the parties facing such problems to the right direction and assist them in adequately drafting various types of motions, and advise the parties about their rights and obligations. Such solution would enable the court to work more efficiently, and increase the percentage of disputes resolved in favor of the parties that were unsuccessful in the past due to inadequate assistance and indigence of the parties, which did not allow them to hire a defense counsel /attorney. As for the problem of uninformed parties before the Cantonal Court in Mostar, the situation is somewhat different, because it
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is not a first-instance court. This court conducts appellate i.e. second instance procedures for most parties, and at this stage they must have a defense counsel. There is a number of administrative cases with incorrectly written motions, but in a small percentage. However, the court president Mladen Jurii feels that it would be purposeful in such situations to establish peace panels through the NGO sector within the judicial institutions, following the Norwegian model. It would be a form of arbitrary dispute resolution without the main trial before the court panel. Such panels would include judges, lawyers and law graduates from the NGO sector. They would resolve a large number of cases without classic court proceedings and thus contribute to the efficiency of the judiciary. Hence, most parties lose cases due to formal deficiencies in motions they prepared on their own, without professional assistance. Such situations create space for participation of the civil sector/NGOs that would, via attorneys working for them, provide free legal aid, i.e. channel the parties and their requests before they reach the court. Non-existence of a legal solution that would include such an option is a problem, because the Draft law on legal aid institute of Herzegovina-Neretva Canton (hereinafter: the Draft Law) does not mention the participation of the civil sector at all. According to the Draft Law, legal aid can only be provided by defense counsels. For comparison purposes, the Law on Legal Aid Institute that was adopted in West Herzegovina Canton in 2008143 offers identical solution. The head of the Institute, Mr. Ivan Lasi points out that, despite its large contribution to the efficiency of the judiciary, the work of the Institute is still carefully scrutinized and it must justify its existence in the judicial system. Most cases that end up in the Institute requiring legal aid are lawsuits due to unpaid utility bills (electrical power, telecommunications), but also domestic violence cases. According to Mr. Lasi, there is currently not a single non-governmental organization in West Herzegovina Canton involved in any form of legal aid provision. He stressed, however, that a number of law students could be employed at the Institute as trainees, with the consent of the Ministry of Justice of course, and they could participate in providing legal aid, which indicates the readiness and the need of the Institute for cooperation with other subjects as well in ensuring access to justice and providing free legal aid to all people who require it.

143 West Herzegovina Official Gazette, issue: 5/08, 2008.

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Both laws contain identical provisions stipulating that legal aid can only be provided by defense counsels, with specified conditions under which a party can obtain legal aid. Indigence, which is a prerequisite for obtaining free legal aid, is proven with the following:
A certificate from a center for social work or relevant municipal social care service, A certificate from the tax authority, A statement on family and financial status.144

Given the fact that mostly ignorant parties require free legal aid, the probability that they will be able to collect legally required documents without professional assistance is fairly small. Therefore, it also creates a possibility for the participation of NGOs by advising the parties about the procedure of collecting required documents. Although the Draft Law does not mention the NGO sector as a form of providing legal aid to ignorant parties and socially vulnerable groups, it is after all possible to amend this Law. Therefore, amendments to the proposed Law on cantonal legal aid institute (HNC) should be initiated, in order to legally regulate the cooperation between the Institute and the NGO sector in providing free legal aid. A large number of cases in HNC account for utility cases, family and labor disputes, where NGOs can provide free legal aid in an efficient and professional way, owing to their knowledge and experience. NGO Sector and the Existing Practice in Providing Free Legal Aid in HNC Three non-governmental organizations citizens associations in Mostar actively and continually provide free legal aid to a broad range of socially vulnerable categories of population, applying different methodologies and types of activities, and different project and organizational structures: Human Rights Center in Mostar, Association Vaa prava BiH and the Agency of Local Democracy in Mostar.

144 Rulebook on the Way and Conditions for Providing Legal Aid in West Herzegovina Canton, Article 2, 2008.

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Since 2009, a Legal Counseling Center has been open within the Human Rights Center in Mostar145 (live clinics)146, where students as graduates from legal clinics a project implemented in cooperation with Faculties of Law in Mostaru and sponsored by the Open Society Fund of Bosnia and Herzegovina - and fresh graduates from both Faculties of Law in Mostar, under mentorship, with the assistance and approval of law professors experienced in clinical education of lawyers, and legal practitioners, can provide free legal aid to socially vulnerable groups of population. The students and young law graduates thus gain the necessary working experience and practical legal knowledge and skills, law professors and legal practitioners adopt new and different education methods, while socially vulnerable and discriminated groups obtain free and high-quality legal aid, thus contributing to the implementation of access to justice, a more efficient organization and activities of the justice sector, creating possibilities for identifying, monitoring and giving recommendations for a feasible solution and eliminating the problems and shortfalls in legislation, the judicial system and the justice sector, and conducting analyses, research, monitoring, reporting, public advocacy, publicizing and informing all relevant actors, especially in the domain of obtaining access to justice and justice sector reform.
145 The Human Rights Center is a non-governmental organization citizens association focused on the improvement of quality education of law students, and knowledge and skills of (young) law graduates, providing free legal aid, education of academic staff and legal practitioners, the process of legislative, judicial and public sector reforms in Bosnia and Herzegovina, and researching public policies and publishing analyses in the area of human rights and various legal areas. The Center is a member of the Justice Network in Bosnia and Herzegovina. 146 The project of live clinics has been implemented as a continuation and building upon the project Clinical education of lawyers for students of the Faculty of Law of Demal Bijedi University in Mostar and the Faculty of Law of the Mostar University that was implemented over 2003, 2004, 2005, 2006, 2007, 2008 and 2009, sponsored by the Open Society Fund Bosnia and Herzegovina the Soros Foundation, which aimed at giving substantial contribution to modernization and improvement of the quality of education of future lawyers by eliminating the observed weaknesses in the curriculum, primarily pertaining to the neglected practical education of law students for their future careers and professional engagement, and at qualifying students for practical work, which is achieved by applying adequately chosen methodology and implementing the idea of clinical education of students future lawyers. The Center of Human Rights in Mostar successfully implemented the Project, with the approval and in cooperation with the Faculties of Law in Mostar; the project was focused on allowing the students to gain and apply practical legal knowledge and skills through the teaching process at the legal clinics in human rights, criminal procedural law, civil procedural law, administrative/ administrative procedural law, and labor and social law: workshops, scientific discussions and roundtables, study trips, and the legal practice and counseling, with the participation of academic mentors and legal practitioners from BiH and the region, as well as experts from the international organizations.

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Since September 2010, Legal Counseling Legal Aid Center within the Human Rights Center in Mostar has been also financed by USAID JSDP II through the project Access to justice in Herzegovina-Neretva Canton free legal aid, providing legal aid in civil cases, non-litigation, enforcement cases, minor offense cases and administrative disputes.147 Since 2009, they provided legal aid, abstract and/or concrete, in over 500 cases. On average, 5-7 potential beneficiaries apply for free legal aid on a weekly basis.

Beneficiaries include socially sensitive groups, vulnerable and discriminated, pensioners, the unemployed, persons with special needs, elderly and ill persons, returnees, workers with unresolved employment status receiving no income, indigent families with children; legal aid that was requested and obtained from the Legal Counseling Legal Aid Center at the Human Rights Center in Mostar (live clinic) pertained to all areas eligible for legal aid from this Office, and particularly: human rights, ban on discrimination, labor and social law, civil procedural law, administrative and administrative procedural law, family law, and cases in civil proceedings, non-litigation, enforcement procedures, minor offense procedures and administrative disputes. Legal aid beneficiaries apply with the Counseling Center for both abstract and concrete legal aid, especially in court and administrative procedures, exercising rights from the labor law, pension, social and health insurance, rights to disability allowance, custody, getting social assistance, access to information, appellate proceedings, filing lawsuits and responses to lawsuits, enforcement motions, instructions on the activities of the highest court instances etc.

147 Legal aid is particularly provided as follows: by providing general information to applicants about their rights and obligations (abstract legal aid), giving initial legal advice and assistance in filling forms, providing written and verbal legal advice, legal assistance with drafting writs (concrete legal aid) and instructing clients to address an organization attorney that is allowed by the Law on Civil Proceedings to represent clients at court, legal aid in peaceful dispute resolution (mediation), legal research and analysis pertaining to a specific case, accompanying a client to the court/administrative authority in certain situations and assisting them on the spot (filling forms, obtaining documents...), giving advice and providing free legal aid, particularly in the areas of human rights, labor and social law, civil (procedural) law, and administrative (procedural) law. The center refuses to provide legal aid: in cases where the client requests that the Office represent him before the court, in the event when providing legal aid would lead to perpetration of a crime or assisting the criminal offender to avoid criminal liability, and in criminal and commercial cases.

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Through the project Access to justice in Herzegovina-Neretva Canton free legal aid that was financed by USAID JSDP II (September 2010 May 2011), the Human Rights Center in Mostar has focused on the following areas in providing free legal aid: the existing legal framework, providing abstract and concrete legal aid services to legal aid seekers, education and informing both legal aid providers and legal aid beneficiaries, target groups, and law students and the public, as well as the members of the Justice Network in BiH, when needed, analysis and research of the relevant legal framework and methodology and contents of the work, particularly on the most common legal issues, and mutual relations of the key actors: courts (Municipal Court and Cantonal Court in Mostar), NGO sector, especially the Human Rights center in Mostar, the academic community (two Faculties of Law in Mostar, teachers, students and fresh law graduates), attorneys offices (Bar Chamber of FBiH Regional Bar Chamber - HNC), Ministry of justice, administration and local self-governance of HNC, HNC Government, HNC Assembly, advocacy and lobbying for enactment and/or advancement of legal documents (laws) and practices for improvement of the situation in this field, preparing and publicizing the final publication/collection of papers on access to justice free legal aid in HNC, with participation of all aforementioned key actors in HNC, offering practical and feasible recommendations for improvement of the situation. The association Vaa prava BiH, with a wide network of offices throughout Bosnia and Herzegovina, also works in its office in Mostar, and performs its activities in the domain of providing free legal aid with worthy professionalism and expertise. The important difference when it comes to this Association is its practice of representation before the court, special aid programs for refugees and displaced persons and asylum seekers, and a program of fight against discrimination strategic litigation. According to the Associations website and an interview with Mr. Ahmet Salin, deputy director for legal issues of the association Vaa prava BiH, users of services provided by Vaa prava BiH include displaced persons, returnees (special attention is paid to the situation and needs of minority returnees), refugees, vulnerable groups of local population (this category includes providing services to vulnerable elderly persons, persons with disabilities, children without parental care, single mothers, victims of domestic violence, traumatized persons, victims of human trafficking and national minorities, and refugees and returnees who assimilated to the society after some time and transferred from the category of refugees and returnees to the category of vulnerable local population), asylum
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seekers and refugees in BiH, persons from the region seeking temporary protection in BiH, persons from the region enjoying temporary protection in BiH, persons in BiH who need assistance with the issues of statelessness/citizenship, and victims of human trafficking. So far, the association Vaa prava BiH helped more than 400,000 people, including socially vulnerable population, refugees, displaced persons and members of minorities. In 2005 only, over 54,000 people received legal aid and information. The association Vaa prava BiH provides various forms of legal aid to its beneficiaries, from providing answers to brief inquiries to more extensive assistance, including legal representation in all legal areas, except criminal law. Legal aid is provided through legal advice and representation. Vaa prava BiH has over 80 professional staff members, including lawyers, law graduates, informative and other operational staff. Professional qualifications and enormous experience of the staff are the biggest values of Vaa prava BiH. On average, around 30 new beneficiaries request free legal aid at the office of Vaa prava in Mostar on a monthly basis, with 50 60 pending backlog cases per month, or the same persons come with different legal issues. Since 2009, a Centre for free counseling on human rights has been active within the Resource Center for Democratization of the Local Democracy Agency in Mostar, with a legal advisor who is available for citizens socially vulnerable, discriminated and indigent citizens every Thursday from 14:30 to 17:30 hrs.148 They continually work on preparing and resolving cases. Citizens are interested in both abstract and concrete legal aid, and activities of the Counseling Center the nature and methodology of its work. So far, free legal aid was provided in more than 240 cases. On average, 5-7 citizens request legal aid on a weekly basis. Legal aid beneficiaries include socially vulnerable categories indigent persons, vulnerable and discriminated people, and persons with special needs, and the requested legal aid pertained to all areas eligible for legal aid from the Counseling Center, and particularly: human rights, civil and political rights, economic, social and cultural rights, ban on discrimination, access to information, appellate
148 The Center for free counseling on human rights at the Resource Center for Democratization of the Local Democracy Agency in Mostar was closed in February 2011, upon the end of the project through which it was founded. If new donor funds are found, the Counseling Center will resume its work.

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proceedings, and cases from civil, non-litigation, enforcement and minor offense procedures, administrative disputes and administrative procedures. A number of legal cases is resolved (concrete legal aid) in cooperation with the Legal Counseling Center Free Legal Aid Center at the Human Rights Center in Mostar and the association Vaa prava BiH. The extremely successful work of the three above-mentioned non-governmental organizations proves with the number and diversity of received cases and quality of provided legal aid that the contribution of the non-governmental sector, adequately trained and qualified for providing free legal aid, is of huge importance for gaining access to justice, particularly for vulnerable groups. Without the work of non-governmental organizations, a large number of citizens would be deprived of legal aid and their rights, and the judiciary and authorities would be additionally burdened and even slower in dispute resolution procedures. In this case, the entire burden of providing free legal aid would fall on the public institute, which will probably never have sufficient financial and human resources, to provide legal aid to almost 30% of the population in HNC as potential legal aid beneficiaries, as the three non-governmental organizations presently do. Recommendations for Improvement of the Situation with Regard to Access to Justice Providing Free Legal Aid in HNC Against this background, and primarily in the light of the fact that the legal framework for providing legal aid, regulated only by the Proposed Law on the cantonal legal aid institute in HNC, is insufficient and incompatible with the proposed legal framework for providing free legal aid at the state level, and the international documents, practices and standards, because it defines one legal aid provider the Cantonal Legal Aid Institute, and HNC does not have a legal aid law that would also include the NGO sector as legal aid providers, considering that the non-governmental organizations have been left out as legal aid providers, although they have successfully provided this form of aid to HNC citizens so far, with long-standing experience and required professional staff, especially in utility, family, labor and property-legal cases that are most common and most numerous in HNC, but also in the entire BiH, the following solutions are proposed, with the goal to improve access to justice in HNC through providing free legal aid:

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Regulate by law the provision of free legal aid by citizens associations, Establish institutionalized forms of cooperation between the judiciary and government authorities with citizens associations that provide free legal aid, selected by the established and precisely defined criteria, Regulate the provision of free legal aid by citizens associations and the institutionalized forms of cooperation between the judiciary and government authorities and the NGO sector either by proposing amendments to the Law on Cantonal Legal Aid Institute, or by passing a law on providing legal aid in HNC that will include the NGO sector and legally define citizens associations non-governmental organizations as legal aid providers, In consultations with the non-governmental sector, enact, improve and harmonize laws dealing with legal aid provision in Bosnia and Herzegovina, develop uniform legal aid laws and detailed regulations for their implementation at the entire territory of Bosnia and Herzegovina, including HNC, that would define providing legal advice, assistance and representation in court and administrative proceedings and disputes, Fortify the cooperation between courts and the government and the NGO sector in the area of providing free legal aid, particularly in the way that: 1. The NGOs provide legal aid to citizens in elimination of formal deficiencies in motions they drafted without professional assistance, which is why citizens often lose cases or have to wait longer to exercise their rights due to procedural reasons; NGOs would canalize clients and their requests before they reach the court, and 2. NGOs show the clients the right path, especially in utility, labor, family and property-legal disputes, and assist them with adequate writing of different types of motions, inform clients of their rights and obligations, which would contribute to more efficient work of courts and increase the percentage of disputes resolved in favor of clients, which they lost in the past due to inadequate assistance and indigence that did not allow them to hire a defense counsel/attorney, Consider the possibility of establishment of peace panels tasked with resolving a large number of cases without classical court proceedings, with the participation of the NGO sector, It is necessary to provide financial resources from the state, budgets on different levels and government authorities for a more active and more certain work of the NGO sector in the area of access to justice providing free legal aid, because only states with firm political
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commitment, ready to financially support the development of a comprehensive legal aid system can provide efficient legal aid, Periodically, but on a regular basis, monitor the situation, conduct and publish analyses of the situation in the area of access to justice free legal aid, offering recommendations for improvements, Establish a system of providing free legal aid, Educate and inform citizens about their rights, which can also be done (they already do it with flying colors) by non-governmental organizations.

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Bibliography
Books:

1. Gorjanc Prelevi, T., Right to a Trial Within a Reasonable Timeframe collection of selected judgments of the European Court of Human Rights in cases versus Bosnia and Herzegovina, Croatia, Macedonia, Slovenia and Serbia, Sarajevo, 2009. 2. Harland, C., Roche, R., Strauss, E., A Commentary to the European Convention on Human Rights as Applied in Bosnia and Herzegovina and at Strasbourg, Sarajevo, 2003. 3. Milievi, N., Human Rights, Sarajevo, 2007. 4. Nadadin Defterdarevi, M., European Convention as Applied by the European Court of Human Rights, Mostar, 2007. 5. Legal documents, reports, strategies and other sources:
6. Legal Aid Directive, adopted by the Council of Europe in January 2003, upon the proposal of the European Commission
7. The 1950 European Convention on the Protection of Human Rights and Fundamental Freedoms. 8. The European Agreement on the Transmission of Applications for Legal Aid (from 1977) 9. http://www.mpr-centar.org/

10. Report of the Local Democracy Agency in Mostar, 2010. 11. Report of the Human Rights Center in Mostar, 2010. 12. Report of the Association Vaa prava BiH, 2010. 13. Uniform Rules for Legislative Drafting in the Institutions of Bosnia and Herzegovina, BiH Official Gazette, issue: 11/05, 2005. 14. Convention on the International Access to Justice (The Hague, 1980.) 15. Proposed framework law on legal aid, 2010. 16. Rulebook on the Way and Conditions for Providing Legal Aid, ZenicaDoboj Canton Official Gazette 9/09, 2009.

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17. Rulebook on the Way and Conditions for Providing Legal Aid in West Herzegovina Canton, 2008. 18. Regulations on Consultations in Legislative Drafting, BiH Official Gazette, issue: 81/06, 2006. 19. Recommendations of the Council of Europe for the Establishment of Legal Aid System in Bosnia and Herzegovina. 20. Justice Sector Reform Strategy in Bosnia and Herzegovina 2008 - 2012, BiH Ministry of Justice, Sarajevo, June 2008. 21. UNDP Project: Access to Justice Facing the Past and Building Confidence for the Future, Cluster: Justice and Safety for People, Legal Aid System in Bosnia and Herzegovina, Sarajevo, 2010. 22. Constitution of BiH, Annex IV to the General Framework Agreement. 23. Constitution of FBiH, US F BiH 1/94, 30 March 1994, Sarajevo. 24. RS Constitution, RS Official Gazette, issues 3/92, 6/92, 8/92, 15/92, 19/92, 1992. 25. Law on Legal Aid, RS Official Gazette 120/08, 2008. 26. Law on Legal Aid Office, Brko District Official Gazette 18/07, 2007. 27. Law on Cantonal Ministries and Other Cantonal Authorities, ZenicaDoboj Canton Official Gazette 13/08, 2008. 28. Law on Providing Legal Aid, Posavina Canton Official Gazette 3/10, 2010. 29. Law on Providing Legal Aid, Tuzla Canton Official Gazette 10/08, 2008. 30. Law on Cantonal Legal Aid Institute, West Herzegovina Canton Official Gazette 14/08, 2008.
Interviews:

1. Kotlo, R., Stipanovi, I., Record of an interview with Judge Mladen Jurii, president of the Cantonal Court in Mostar, Mostar, 06.01.2011. 2. Kotlo, R., Stipanovi, I., Record of an interview with Judge Nina ulani, vice-president of the Municipal Court in Mostar, Mostar, 06.01.2011.
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3. Kotlo, R., Stipanovi, I., Record of an interview with Judge Nurko Pobri, a judge and presiding judge at the administrative department of the Cantonal Court in Mostar, Mostar, 06.01.2011. 4. Kotlo, R., Record of an interview with Ms. Jasminka Brati, assistant minister at the HNC Ministry of Justice, Administration and Local SelfGovernance, Mostar, 07.01.2011. 5. Stipanovi, I., Record of an interview with Mr. Ivan Lasi, Head of the Legal Aid Institute of West Herzegovina Canton, iroki Brijeg, 05.01.2011. 6. Kotlo, R., Record of an interview with Ms. Denana Dedi, executive director of the Local Democracy Agency in Mostar, Mostar, 05.01.2011. 7. Kotlo, R., Record of an interview with Mr. Ahmet Salin, deputy director for legal affairs at the Association Vaa prava BiH, Mostar, 05.01.2011. Biographies of the Authors Mr.sc. Rebeka Kotlo is a senior assistant at the Faculty of Law, Demal Bijedi University in Mostar, teaching the Introduction to Science about the State and the Law I and II, Human Rights Laws, Theory of Law, Philosophy of Law, Modern Legal and Political Systems General and Special Parts and Political Systems. She is also attending PhD studies at the Faculty of Law of the University in Sarajevo and is an executive director of the Human Rights Center in Mostar a non-governmental organization focused on the process of judicial, legislative, educational and public sector reforms and the protection of human rights. She also works as a legal advisor and educator in the area of human rights and democratization, a project manager/coordinator, and an independent researcher for local and international governmental and non-governmental organizations. She is a lawyer with passed professional and bar exams. She graduated at the Faculty of Law, Demal Bijedi University in Mostar as the best student of her generation, and obtained a masters degree at the Faculty of Law of Sarajevo University. In the past ten years, she worked as a project manager/coordinator, professional associate, consultant, lecturer, legal advisor, editor, author, co-author and proofreader at twenty educational and scientific-research projects for the Council of Europe, European Commission, WUS Austria, the World University Service of Bosnia and
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Herzegovina, the Open Society Fung of Bosnia and Herzegovina - Soros Foundation, Independent Bureau for Humanitarian Issues of Bosnia and Herzegovina (IBHI-BiH), the Human Rights Center in Mostar, the Local Democracy Agency in Mostar, the Human Rights Center of the University of Sarajevo, the Network of Human Rights Centers in South Eastern Europe, Transparency International Bosnia and Herzegovina, USAID, UNICEF, Humanity in Action, Human Rights Bureau Tuzla, ACIPS, where she was an author, co-author, editor and proofreader of many published papers, studies, practicums and books. Ivana Stipanovi, B.Iur., is a junior assistant at the Faculty of Law, University of Mostar, teaching Criminal Procedural Law and Transnational and International Criminal Law. She also attends post-graduate scientific studies of Bosnia and Herzegovina and the European Law at the Faculty of Law, University of Mostar. Ms. Stipanovi also works as a professional associate at the Human Rights Center in Mostar, a nongovernmental organization focused on the process of judicial, legislative, educational and public sector reforms and the protection of human rights. She graduated at the Faculty of Law of the University in Mostar, and received a Rectors Award for the best students throughout the four years of the study. In the past five years, she worked as a project coordinator, mentor and lecturer on projects implemented by non-governmental organizations: the Independent Bureau for Humanitarian Issues of Bosnia and Herzegovina (IBHI-BiH), the Human Rights Center in Mostar, the Local Democracy Agency in Mostar, and the Civil Society Promotion Center. She is the author and co-author of several scientific papers.

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Court Protection of Rights in Labor Relations in Bosnia and Herzegovina

Elma Demir

The fact that 527,749 people in Bosnia and Herzegovina are unemployed149 which means that 43.1% of the population able to work do not have a job150 - and that every third citizen works in the black economy,151 shows that the labor market faces extremely difficult times. The situation at the labor market is reflected on the existing labor relations. Namely, the poor labor market situation negatively affects the workers. Due to the high unemployment, employees can easily find new labor force, and for this reason they often blackmail their workers, forcing them to work for miserable wages and in poor working conditions.
The above is confirmed by analyses of the situation in the field: reports of nongovernmental organizations152, especially those providing legal aid, and reports of human rights ombudsman, warning about the alarming situation at the labor market, due to inadequate implementation and abidance by the law. Although BiH has relatively good laws regulating labor and legal and material protection in labor relations, those laws and regulations are not respected153. Workers do not get paid for several months, their contributions are not paid on a regular basis, if paid at all, and workers are often forced to work without an employment agreement, i.e. in
149 BiH Labor and Employment Agency, Labor Market Statistics: Monthly Release for February 2011. 150 Data from a recent report of the European Commission indicate that 42.7% of BiH citizens that are able to work are unemployed. See: Fizzit.net. Unemployment Rate in BiH Three Times Higher than in Croatia? 151 Federal Institute for Development Programming. Unregistered (grey) Economy in FBiH. 152 Demir, Elma. Working Conditions in Trade Sector in Bosnia and Herzegovina.; Initiative and Civil Action (ICVA). Implementation of the European Social Charter through Laws and Practice in BiH.; Association Vaa prava BiH. Issue and Payment of Mandatory Contributions; Association Vaa prava BiH; Analysis of Regulations and Situation in Labor Law, and the Helsinki Committee for Human Rights in BiH: Report on Activities of the Legal Service of the Helsinki Committee for Human Rights in BiH in Rendering Free Legal Aid to Citizens. 153 Institution of Human Rights Ombudsman BiH: Annual Report on the Results of Activities of the Human Rights Ombudsman BiH for 2010.

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the black economy. Employers in the private sector unlawfully cut salaries or stop paying benefits for their workers in order to compensate for their poor business performance, thus forcing the workers to cover all financial consequences instead of the employers. At the same time, workers are often denied the right to annual vacation allowance if allowed to use the vacation at all and daily meal and transportation allowances. Although workers often work 12 hours instead of 8 hours a day for private employers, they do not get paid for night shifts and overtime. Unlawful notices are a common problem. When it comes to female workers, there is a special category of labor rights of pregnant women and young mothers in Bosnia and Herzegovina that have not been systematically regulated, harmonized or compatible with the international and EU standards and conventions, and thus their violations are not sanctioned.154 Working mothers and pregnant women suffer mass violations of the above rights by employers without any legal protection, and often lose their jobs. Also, general working conditions are disastrous. A large number of accidents at work are recorded on a regular basis, while relevant regulations and their implementation in the field of protection at work are still grossly neglected. In the Federation of BiH, a law from 1990 is still in force, and fines are defined in dinars. Collective labor rights are also neglected and frequently breached: syndicates are often prohibited, and collective agreements are not respected. According to some assessments of the International Labor Organization (ILO), Bosnia and Herzegovina (BiH) loses 38.4 million Euro annually due to poor implementation of labor laws.155

The fact that the above law breaches and gross violations of rights in labor relations practically occur with impunity is crushing. Namely, all forms of the protection of rights in labor relations156: internal protection at the working environment,
154 See: Correspondence of the International Labor Organization (ILO) to BiH. Available at: www.ilo.org.; PravoBiH.com. Public Debate Held on the Proposed Amendments to the Law on Labor in the Institutions of BiH; Association Vaa prava BiH: Maternity Protection in the Entity Labor Laws. 155 Initiative and Civil Action (ICVA): Implementation of the European Social Charter through Laws and Practice in BiH. 156 The legal and material protection of the rights in labor relations has two forms: internal and external protection. Internal protection implies a procedure at the working environment, which includes passing of individual legal acts defining the rights and obligations in labor relations. External protection implies a procedure before third-party impartial institutions (through courts, alternative mechanisms outside the court and the administrative procedure) or through a collective action. Source: Gradaevi-Sijeri, Jasminka et al. Module 2 Labor Legislation in Bosnia and Herzegovina: Labor Relations in Practice.

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court, outside the court, administrative, and collective actions are related to several problems that prevent a systematic and efficient protection of labor rights. Internal protection through the working environment is underdeveloped due to non-implementation of the law on workers councils. The protection outside the court through alternative dispute resolution is only coming to life, without any institutional support in the development of these mechanisms. Administrative protection through inspections is insufficient because the inspections have limited powers and apply poor penal policy. A collective action through syndicates and collective negotiations has been neglected for years as a form of social action, and often faces the problem of politicizing social issues and activities of syndicates, fragmentation and low level of public confidence in the efficiency of the collective action.
Given the meager protection that the aforementioned mechanisms provide when it comes to the rights in labor relations, courts become the elementary form of protection and often the only guarantee that laws are applied in practice. Nevertheless, the courts are frequently unable to fulfill their tasks in an efficient and quality way. A large number of unresolved/backlog cases, understaffed courts, lengthy court proceedings, poor working conditions of judges, prosecutors and judicial associates, widespread corruption, difficulties with enforcement of court decisions, poor cooperation between courts and other institutions are some of the factors negatively impacting labor dispute resolution. In this context, the low public confidence in courts is not at all surprising. A number of citizens, faced with violation of their rights, often decide to refrain from initiating court proceedings, aware that it would be hard to obtain the protection of their rights through the court or other mechanisms. Therefore, the poor access to justice in BiH is an obvious and key problem in the segment of labor relations.157
157 Access to justice implies equal legal protection and equal possibilities for all citizens to seek and obtain legal remedy in the event of violations of their rights by public or private institutions and individuals before the court or through other dispute resolution mechanisms. Therefore, access to justice pertains to methods that individuals can use to obtain legal information and services in order to resolve a dispute. In this respect, access to justice can be viewed from three aspects: a) existence of legal remedy (regulation), which implies the existence of constitutional and legal provisions for the protection of a right; b) the capacity to use a legal remedy that includes the existence of court and outside-the-court mechanisms for the protection of rights, and accessibility of legal information, and c) the capacity to apply the legal remedy with respect to execution of court and outside-the-court decisions; execution of criminal sanctions etc. Source: Sudarshan, Ramaswamy. Rule of Law and Access to Justice: Perspectives from UNDP Experience.

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Faced with the poor access to justice and the aforementioned problems in judiciary, government institutions started a judicial reform process and developed the Justice Sector Reform Strategy in BiH for 2008 - 2012 and the supporting Action Plan which, among other things, include several measures and activities that should contribute to the development of the efficiency of courts. Although the strategic documents incorporate several activities of importance for the more efficient protection of rights in labor relations such as resolving backlog cases, informatization of the judiciary, care about court users, mediation, etc. they do not deal with these issues from the aspect of labor relations. Given that problem solving in the field of labor requires a systematic and a multi-sector approach, efficient protection of rights in labor relations shall require reform activities in the judiciary that will include solving the problems not only pertaining to the courts directly, but also to internal, administrative, outside-the-court and collective protections of rights i.e. elements of these mechanisms concerning the judiciary, and preventive actions for processing the huge inflow of labor disputes at courts. At the same time, there is no evaluation of factors affecting the efficiency of courts in resolving labor disputes, and public policies in this field are often based on general trends.
This analysis was developed in order to make up for the above-mentioned shortfalls and provide guidelines for decision makers in the justice sector with respect to a more efficient activities of courts in the segment of the protection of rights in labor relations, and thereby better legal and material protection of workers in BiH. The analysis of the court protection of rights in labor relations in BiH was written as a result of several research stages. The preliminary stage included collection of the existing data, analyses and reports related to the topic of the research, in order to define the initial conclusions. Based on the first stage of research, the next stage survey was structured. The survey was conducted in order to gather additional input that was identified as necessary in the preliminary research stage in order to verify the initial assumptions. The survey included all courts in BiH and non-governmental organizations, especially those providing legal aid, and trade unions, given that the activities of these organizations include direct work with citizens on the legal and material protection of their rights in labor relations through judiciary.158 The survey

158 93.3% of trade unions covered by the survey either conducted or initiated an individual or collective court dispute in labor relations, while 51.9% of the surveyed NGOs provide free legal aid to citizens or their target groups, depending on the nature of their work.

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covered 54 courts159, 57 non-governmental organizations160, and 15 trade unions161

159 Supreme Court of the RS, FBiH Supreme Court, Higher Commercial Court in Banja Luka, Brko District Appellate Court, and basic courts in Bijeljina, Brko, Vlasenica, Tesli, Derventa, Sokolac, Kotor Varo, Doboj, Prijedor, Trebinje, Banja Luka; municipal courts in: Konjic, Gorade, Mostar, Visoko, Teanj, Zenica, Velika Kladua, Kalesija, Cazin, Travnik, Bugojno, Sanski Most, Foa, Sarajevo, Kiseljak, Tuzla, iroki Brijeg, epe, Bosanska Krupa, Gradaac, Zavidovii, Ljubuki, Oraje, Kakanj, Livno; district courts in: Bijeljina, East Sarajevo, Banja Luka, Doboj, Trebinje; cantonal courts in: Sarajevo, Novi Travnik, Biha, Gorade, Livno; and district commercial courts in Trebinje; Doboj, East Sarajevo and Banja Luka. 160 Citizens Association (CA) of the Missing, Vogoa; CA Childrens Land Tuzla; Croat Association of Camp Prisoners in the Homeland War in the Central Bosnia Canton, Busovaa; Woman Victim of War Ilida; Center of Investigating Journalism Sarajevo; Union of the Deaf and Persons with Damaged Hearing RS Banja Luka; Transparency International Banja Luka; CA Ruinjaka Los Rosada; Foundation Interprimus Tuzla; Association of Citizens with Impaired Vision Tuzla; CA BH Journalists Sarajevo; Association of Returnees Gornji kraj - Ljubljenica, Stolac; FBiH Prosecutors Association, Sarajevo; Balkans Investigating Network Bosnia and Herzegovina BIRN BIH, Sarajevo; Association Women to Women Sarajevo; Citizens Association Tolerance against Differences ToPeeR , Doboj; Association of Camp Prisoners of Trebinje region; Association of Camp Prisoners 23 October 1993 Vare; U.R.Romano drom ivinice; Farmers Assocation in BiH Sarajevo; Association of the Blind of Republika Srpska, Banja Luka; Youth Resource Center Tuzla; Womens Association Derventa; UG Narkone, Sarajevo; the Helsinki Committee of Human Rights BiH, Sarajevo; CA Gerc Sumejja Center of War Victims Vojno, Mostar; Roma Association Srce Istine, Zavidovii; proMENTE, social research, Sarajevo; Youth Center Busovaa; RS Association of Judges, Banja Luka; Womens Organization Lara, Bijeljina; Association Klju budunosti, Klju; Association Srebrenica 99, Srebrenica; Association of Camp Prisoners Brko District BiH, Brko; Center for Local and Regional Development, Derventa; Citizens Association Milianin, Milii; Center for Responsible Democracy COD Luna, Rudo; Association of Students with Special Needs and Volunteers, Tuzla; CA Centri civilnih inicijativa Tuzla; Association HO Altius; Association of Women from Prijedor Izvor, Prijedor; Association for Entrepreneurship and Work LiNK, Mostar; Human Rights Center, Mostar; Association KULT, Sarajevo; Rights for All, Sarajevo; the Helsinki Committee of Human Rights in Republika Srpska, Bijeljina; Association for Sustainable Return to Podrinje (UZOPP), Zvornik; CA Pravnik, Sarajevo; Association of Bankruptcy Receivers BiH, Sarajevo; Association of Persons Suffering from Dystrophy USC, Biha; CA Primanatura Doboj; Civil Cooperation Center, Livno; Environmental Association DRIN-tim, Viegrad; Consumers Association Klub potroaa TK, Tuzla; CA Center of Informative and Legal Aid, Zvornik; Association of Women Suffering from Breast Cancer Narcis-a, Oraje; Association for Assistance to Persons with Special Needs Svitac, Brko. 161 BiH Confederation of Independent Trade Unions; RS Confederation of Trade Unions; Union of Independent Trade Unions FBiH Mostar; Trade Union of Construction and Industry of Construction Material BiH; Independent Trade Union of Forestry, Wood and

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from the entire BiH. In addition, several interviews with relevant stakeholders were conducted. Finally, all data were consolidated and processed, and used as the basis for this analysis and the given recommendations. The first part of the analysis deals with the issue of legal and material protection of workers in BiH in general: it depicts the legal and institutional system of the protection of rights, and the role of the courts in this system. The paper is then focused on the activities of courts, identifying the main factors, external and internal, that impact the efficiency of courts in processing labor disputes. The third part of the paper provides an overview of good international practices in the legal and material protection of rights in labor relations. The paper ends with recommendations to leading judicial institutions for creating policies that will improve the situation when it comes to the protection of rights in labor relations through courts in BiH.

Sources of Labor Relations Law

Labor relations in BiH have been regulated by a set of laws adopted for the four jurisdictions in BiH: FBiH Law on Labor, RS Law on Labor, Brko District Law on Labor, laws on labor in the institutions of BiH, as well as a set of other laws directly applicable to labor.162 By adopting the above labor laws, the general system
Paper Processing BiH; Trade Union of Croat Telecommunications Mostar; Trade Union of Health and Social Care RS; Trade Union of Trade Workers BiH; Trade Union PZS Agrosemberija Bijeljina; Independent Trade Union of Transport and Communications in BiH; Independent Trade Union of Chemistry and Non-metal Workers in FBiH; Syndicate of trade, catering, tourism and service industry RS; Independent Trade Union of Primary Education in BiH; Trade Union of Engineers in FBiH; Independent Trade Union of Communal Economy in FBiH. 162 State level: Law on Labor in the Institutions of BiH (BiH Official Gazette, issues 26/04 and 7/05); Law on Civil Service in the Institutions of BiH (BiH Official Gazette, issues 12/02, 19/02, 8/03, 35/03, 4/04, 17/04, 26/04 and 37/04). Federation of BiH: Law on Labor (FBiH Official Gazette, issues 43/99, 32/00 and 29/03), Law on Strike (FBiH Official Gazette, issue 14/00); Law on Employment of Foreign Persons (FBiH Official Gazette, issue 8/99); Law on Employee Council (BiH Official Gazette, issue 39/04); Law on Mediation for Employment and Social Security of Unemployed Persons (FBiH Official Gazette, issues 41/01 and 24/05); Law on Protection at Work (SRBiH Official Gazette, issue 22/90); Law on Civil Service in FBiH (FBiH Official Gazette, issues 29/03, 23/04, 39/04, 54/04, 67/05 and 12/06); Law on Health Insurance (FBiH Official Gazette, issues 30/97 and 32/00); Law on Health Care (FBiH Official Gazette, issue 29/97); Law on Pension and Disability Insurance (FBiH Official Gazette, issues 29/98 and 49/00); Law on Rights of Veterans and Members of their Families (FBiH Official Gazette, issue 41 /04); General Collective Agreement for the territory of FBiH (FBiH Official Gazette, issue 54/05). Republika Srpska: Law on Labor (RS Official Gazette issues 38/00, 40/00, 47/02, 38/03 and 66/03); Law on Worker Councils (RS Official Gazette issue 26/01); Law on Employment (RS Official Gazette issues 38/00, 85/03

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of labor relations in BiH has been defined.163 Sources of labor regulations are also the conventions international and regional as BiH signed them and is therefore bound to implement them. In the labor and employment segment, conventions of the International Labor Organization (ILO)164 and agreements signed with the European Union (EU) are of special importance.165 In this respect, it is pertinent to note that BiH experiences difficulties in the implementation of the conventions and agreements, because national laws are not fully compatible with the international regulations166, and that their implementation is rarely and sporadically monitored and evaluated by relevant institutions. For example, national laws are also not harmonized with the

163

164 165

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and 42/05); Law on Employment of Foreign Nationals and Stateless Persons (RS Official Gazette issue 97/04); Law on Labor Inspection (RS Official Gazette issue 32/01); Law on Administrative Service in the RS Administration (RS Official Gazette issues 16/02 and 62/02); Law on Pension and Disability Insurance (RS Official Gazette issues 32/00, 40/00, 37/01, 32/02, 40/02, 47/02, 11/03 and 67/05); Law on Professional rehabilitation and Employment of Persons with Disabilities (RS Official Gazette issue 98/04); Law on Strike (RS Official Gazette issue 26/93); Law on Protection at Work (RS Official Gazette issues 26/93, 14/94, 21/96 and 10/98); General Collective Agreement (RS Official Gazette issues 13/98, 39/99, 26/00 and 21/01). BiH Brko District: Law on Labor (BDBiH Official Gazette, issues 7/00, 8/03, 33/04 and 29/05); Law on Civil Servants and Employees BDBiH (BDBiH Official Gazette, issue 41/04); Law on Employment and Rights During Unemployment (BDBiH Official Gazette, issue 33/04); Zakon o zapoljavanju stranaca (BDBiH Official Gazette, issue 17/02). Source: Gradaevi-Sijeri, Jasminka and others. Module 2 Labor Legislation in Bosnia and Herzegovina: Labor Relations in Practice. With the adoption of new labor laws, labor regulations were completely changed. The scope of employees rights in labor relations was considerably reduced compared to the rights of workers in the former system. Moreover, some foreign experts claim that workers in the former system had more rights than those today, as defined by the existing international standards. New labor laws reflect the BiHs transition to market economy. BiH ratified around 77 conventions of ILO. When it comes to harmonization of national laws and BiHs obligations towards the EU in the area of labor and employment, they can be divided to two groups: 1) short-term obligations arising from the Stabilization and Accession Agreement and the Agreement on European Partnership, and 2) long-term obligations, defined in the European labor law based on the European Convention on the Protection of Human Rights and Fundamental Freedoms; European Social Charter; European Code of Social Security, European Convention on Social Security, European Convention on the Legal Status of Migrant Workers; and the European Employment Strategy. For example, the ILOs International Convention 103 on the protection of maternity, which is not fully implemented in BiH.

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European Social Charter a document that regulates exercising of economic and social rights within the European Union that was ratified by BiH in 2008.167

Furthermore, collective agreements also represent sources of the labor law, as well as the general documents of employers, such as the rules of procedure, agreements between employee councils and employers, and employment agreements. Namely, legislation adopted by government institutions is only a minimum of protection when it comes to individual and collectives rights at work and work-related rights, and it should serve as a framework for the protection of employees that are not covered by the collective labor law... [while] collective agreements, rules of procedure and employment agreements must appear as the most important sources of labor regulations and a driving force for flexibilisation of labor relations that must follow the modernization and globalization processes at the labor market.168 Labor rights are divided to individual and collective rights. Individual rights include the issues of salary, working hours, vacation, protection at work and the safety of employment, while collective rights incorporate provisions pertaining to trade unions, collective negotiations, participation in decision making, resolving disputes, strikes and the right to participate in the adoption of employers autonomous documents (rules of procedure, employment agreements). The issues of individual and collective rights are covered by labor laws in BiH that also include provisions on the prohibition of discrimination, contents of employment agreements or written certificates, an employment agreement to a limited period of time, equality of wages for women and men, providing for excess personnel, working half-time and maternity protection rights; these provisions have been fully or partially harmonized with the international labor standards and the EU directives.169 Finally, one has to keep in mind that, although labor laws, the ratified international conventions and general documents of employers regulate labor relations, they are not the only regulations covering all issues in this area. More specifically, labor relations are closely linked with legislation and public policies in the areas of administration170, health, education, economic development, macroeconomic
167 Initiative and Civil Action (ICVA). Implementation of the European Social Charter through Laws and Practice in BiH. 168 Gradaevi-Sijeri, Jasminka et al. Module 2 Labor Legislation in Bosnia and Herzegovina: Labor Relations in Practice. 169 Ibid. 170 When it comes to the administration, it is important to stress that labor laws in BiH regulate the area of labor relations in general, and that separate laws define labor relations of civil servants.

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policy, privatization and fight against corruption and crimes. Regulations dealing with these issues have a strong impact on labor relations and they may adversely affect their implementation if incompatible with labor laws. This is a common problem in BiH, and labor and employment experts and practitioners often emphasize it. In this respect, it is very important to conduct case law analyses that can provide substantial insight into the level of the law implementation, the most frequent problems, and should serve as the basis for public policy planning and harmonization of laws in relevant areas.171 This brief overview shows that BiH has a developed labor rights system, although not fully compatible with the international and regional conventions; there is also a problem of incompatibility between domestic laws in BiH. Nevertheless, this system provides sufficient legal protection of individual and collective labor rights. In accordance with the global practice, it is necessary to work on harmonization of laws and their advancement to meet the practical requirements and follow the general social and economic trends. However, when it comes to labor laws in BiH, the lack of their implementation is a separate problem, as explained in the introduction. This is where the courts play the key role. The Role and Competencies of Courts in the Protection of Rights in Labor Relations Courts have the powers to prosecute and sanction law offenders in behalf of the state, and to adjudicate in disputes arising from legally defined relations between individuals and legal entities. When it comes to labor relations, the role of the court is to provide quick, efficient and independent protection of guaranteed rights in order to avoid, prevent or compensate for bad consequences suffered by an employee, employer/company and the economy. In this respect, courts ensure the application of the existing regulations to individual cases and resolve labor disputes between employees and employers, or trade unions and employers or the association of employers due to violations of rights or interests, or nonfulfillment of obligations arising from the employment agreement. When it comes to individual labor disputes, courts provide three forms of protection: a) declaratory protection defining the existence or non-existence of a labor relation or certain rights from that relation, b) condemnatory protection, where the court sentences the defendant to do/suffer/pay or omit something, and
171 Gradaevi-Sijeri, Jasminka et al. Module 2 Labor Legislation in Bosnia and Herzegovina: Labor Relations in Practice.

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c) constituent protection, which includes pronouncement of a legal change.172 In the event of a collective labor dispute, subjects of the collective agreement may request legal protection before the court. Resolving individual and collective disputes has been regulated by two laws: law on labor and law on civil proceeding, while the court process is conducted before regular courts in a civil proceeding. BiH does not have specialized labor courts. Municipal (FBiH) and basic (RS) courts have the first-instance jurisdiction and territorial jurisdiction over the defendant (based on the place of residence, habitual residence, seat). Given the nature of individual labor disputes, an employee always has the role of a plaintiff, and employer is the defendant. When an employee is a plaintiff in a labor dispute, apart from the court of general territorial jurisdiction, the following courts are in charge of the trial: a) the court in whose area the work was or has been done, b) the court in whose area the work would have to be done, and c) the court in whose area the labor relation was established.173 Appeals against decisions of municipal and basic courts are reviewed by cantonal (FBiH) and district (RS) courts. The Supreme Court of FBiH and the RS Supreme Court review decisions of cantonal/district courts, and in such cases they are in charge of issuing decisions on legal remedy.
The court process is not linked to the previous filing of a request for the protection of rights to the employer. Namely, authors of the educational publication of FBiH and RS judicial and prosecutorial training centers Module 2 Labor Legislation in Bosnia and Herzegovina: Labor Relations in Practice specify that the court protection is a continuation of actual protection of labor rights, if it was not obtained with the employer. Grounds of an employees request in a court process are evaluated against the employers decisions and procedures, and the process of obtaining the protection of labor rights is a single whole, regardless of its two forms. It is of special importance that conducting of a labor dispute before the court against the employers decision has no suspensive action with regard to the decision. Its impact and actions are only cancelled by rendering a final court judgment abolishing such decision, and by cancelling the decision by the employer.174 A worker seeks court protection of their rights and initiates the procedure by filing a lawsuit for the purpose of establishing that an employers individual decision
172 Ibid. 173 Ibid. 174 Ibid.

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on rights and obligations in a labor relation is not admissible, and a condemnatory request for regaining the employment status or exercising another right. The meaning and purpose of the claim is to reinstate the employees legal status from the period before issuing the unlawful decision by the employer.175 If the employee does not wish to work for the employer any longer, he/she is also entitled to declaratory protection that will lead to defining and exercising the rights in the labor relation (salary, severance pay, paid health and pension-disability insurance).176 The lawsuit must be filed within one year after learning about the violation of right, and maximum three years from the date of violation. After expiry of this time period, the right to court protection is lost. It is also pertinent to note that courts are bound by the law to process labor disputes as urgent cases.

Chapters below provide a detailed explanation of the results of an empirical part of a research on processing of labor disputes by courts. Based on answers from the courts, trade unions and other non-governmental organizations that cooperate with the courts, the most frequent problems that the courts face when processing labor disputes and elements affecting their efficiency have been presented. At the same time, different solutions to the given problem were discussed based on viewpoints of the survey participants and good practices of courts when it comes to labor disputes. Large Backlog and Insufficient Number of Judges The main factor that impacts the efficiency of courts in BiH when it comes to the protection of rights in labor relations is a large number of labor disputes177 and cases in general, many of them being old or backlog cases.178 Overview of the situation at courts in BiH indicates that municipal and basic courts in large towns or municipalities with large population have more labor disputes. At the same time, these courts are understaffed when it comes to judges. For instance, at the beginning of this year, the Municipal Court in Mostar had 44 187 cases, of which 4 088 labor disputes, with only three judges working exclusively on these cases. The Municipal Court in Visoko processes about 34 362 cases, of which 241 labor disputes, with six judges working on these and other cases. The Municipal
175 Ibid. 176 Ibid. 177 The high Judicial and Prosecutorial Council (HJPC) BiH. Resolving backlog cases at courts. 178 See: Fetahovi, Jasna. Milorad Novkovi, president of the HJPC BiH: The investigation on Dobrovoljaka is taking too long.; Pogled.ba. Jurii: The executive authorities failed to provide sufficient number of judges.

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Court in Sarajevo has 843 347 cases, of which 3 981 labor disputes, with seven civil judges working on these and other cases. At the same time, several judges mentioned the problem of the lack of judicial associates at courts. Against this background, it is not surprising that 57.1% of the surveyed courts pointed out that the main problem with processing labor disputes was the insufficient number of judges to cover the workload, as shown in the table below.

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Table 1: Proportion between the number of cases and number of judges at courts
Number of labor disputes per judge

Court

Total number of cases

FBiH Supreme Court 229 1 101 1094 51 4080 26 58 149 34 9 19 4 0,04 0,26 2,45 18,58 12,45 NP NP NP NP NP 12,34 NP 22,81 4 26,15 20 0 0 0 0 5 0 0 0 7 4,20 7 0 6,34 25,77 NP NP 3 2 0,24 NP 0 100,00 NP* 0

4081

Number Percentage of of labor labor disputes disputes against the total number of cases (%) 1218 29,85 64

Number of judges at the court working on labor disputes 19

Number of judges at the court working exclusively on labor disputes 0

RS Supreme Court

229

BD Apellate Court

419

1594 4246

1214

34 547 7 204 7

15601

Cantonal Court in Livno Cantonal Court in Biha Cantonal Court in NoviTravnik Cantonal Court in Sarajevo Cantonal Court in Gorade

114

District Court in Trebinje

470

1197

District Court in Banja Luka District Court in Istono Sarajevo

183

District Court in Bijeljina

367

District Court in Brko

48559

District Commercial Court in Doboj

1530

129

130
Number Percentage of of labor labor disputes disputes against the total number of cases (%) 32 331 42 60 Number of labor disputes Percentage of labor disputes against the total number of cases (%) 0,97 0,23 5,33 100,00 0,37 10,97 NP NP NP NP NP NP 4 5 0 0 0 0 0 0 0 Number of judges at the court working on labor disputes Number of judges at the court working exclusively on labor disputes 0,49 NP 1 1,39 0,41 5 3 0 0 66 14 60 Number of labor disputes per judge 7,41 NP 0 Number of judges at the court working on labor disputes Number of judges at the court working exclusively on labor disputes Number of labor disputes per judge 211 47 9 24 151 1413 11 42 12

Court

Total number of cases

District Court in Doboj

432

23796 10310

Municipal Court in Livno Municipal Court in Oraje Municipal Court in Ljubuki Court

12345

Total number of cases

21756

20447

Municipal Court in Zavidovii Municipal Court in Gradaac Municipal Court Bosanska Krupa Municipal Court in epe

169

24

Municipal Court in iroki Brijeg

40578

Municipal Court in Tuzla

12875

Municipal Court in Kiseljak

NP

Court

Total number of cases

Number Percentage of of labor labor disputes disputes against the total number of cases (%) 602 400 350 280 65 3981 840 498 15 241 24 0,87 0,70 0,18 NP 6 3 0,41 3 5,22 3 0,47 7 0 0 0 0 0 0 40 8 0,72 NP 0 569 280 166 NP 5 0 1,92 5 0 2,86 NP 0 70 56 7,06 NP 0

Number of judges at the court working on labor disputes

Number of judges at the court working exclusively on labor disputes

Number of labor disputes per judge

8531

14000

18206

NP

9000

843347

Municipal Court in Sanski Most Municipal Court in Bugojno Municipal Court in Travnik Municipal Court in Cazin Municipal Court in Kalesija Municipal Court in Sarajevo Municipal Court in Velika Kladua Municipal Court in Zenica

16087

122420

Municipal Court in Teanj 8388

34362

Municipal Court in Visoko Municipal Court in Gorade

2753

131

132
Number of labor disputes Percentage of labor disputes against the total number of cases (%) 9,25 1,98 2,55 0,62 0,68 0,29 0,95 0,25 0,81 1,16 100,00 0,71 0,11 1,47 NP NP NP 1 NP NP NP 0 2 0 0 0 0 23 56 51 NP 0 NP 2 3 0 NP 0 19 32 NP 7 NP 0 152 0 1363 Number of judges at the court working exclusively on labor disputes Number of labor disputes per judge 4088 159 1067 142 57 63 252 24 102 93 56 33 51 22887 Number of judges at the court working on labor disputes 3 157

Court

Total number of cases

Municipal Court in Mostar

44187

Municipal Court in Konjic

8043

Basic Court in Banja Luka

41768

Basic Court in Doboj

22852

Basic Court in Foa Basic Court in Kotor Varo

8349 21958

Basic Court in Sokolac

26593

Basic Court in Tesli

9446

Basic Court in Vlasenica

12543

Basic Court in Trebinje

8000

Basic Court in Bijeljina

56

Basic Court in Derventa

4644

Basic Court in Prijedor

45000

Total

1553069

*NP = Not known

Average number of labor disputes per judge:

BiH authorities have already foreseen reduction of the large backlog at courts, including labor disputes, in their strategic documents. The Justice Sector Reform Strategy (JSRS) in BiH includes certain measures that should contribute to more efficient work of courts and resolving backlog cases. Measures that directly apply to backlog cases are: introducing case management system, case processing timelines and increasing the number of judges. Introduction of the case management system should enable information exchange, gathering statistical data and recording significant trends, equalizing court management practices and increasing the chances for exchange of best practices. In 2009, the High Judicial and Prosecutorial Council (HJPC) BiH decided to increase the number of judges at courts in order to, among other things, improve the efficiency of courts in backlog reduction. They proposed 21% increase in the number of judges at the first instance courts, and 34% at the second instance courts. Increase in the number of judicial associates at courts by 102% was also proposed.179 However, this measure has not yielded results yet, and good practices also show its limited effects. A recent backlog management study at courts indicates that hiring the full number of judges will take years, and that the increase in the number of judges does not have a positive impact on the number of resolved cases. Authors of the study recommend introducing of performance evaluation system for judges and courts. This method, already broadly implemented in developed countries, showed excellent results when ti comes to efficiency of courts.180 Also, bringing in the case processing timelines proved to be a partially efficient method in several countries, as well as the individual calendars for judges that enable monitoring of each case and the time that a judge dedicates to resolving a dispute.181 Poor Knowledge of the Law and Processes Another factor that strongly impacts the efficiency of courts in BiH in processing labor disputes is the ignorance of citizens when it comes to court processes and preparing materials. 48.6% of surveyed courts claim that this is the second issue by importance, as shown in the graph below. Some courts indicate that poor
179 Surveys show that all courts did not increase the number of judges despite the HJPCs decision, because cantonal authorities did not allocate required resources for hiring of new staff. 180 Beirovi, Azra; Demirovi, Amer and abeta, Rusmir. The Final Step in Reforming the Judiciary: Disposition of All Cases in Reasonable Time. 181 Botero, Juan Carlos, et al. Judicial Reform.

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representation of parties before the court, with or without an attorney, is also related to this problem. Graph 1: Common Problems of Courts in Processing Labor Disputes

However, when it comes to knowledge about the law and legal mechanisms, standpoints of the courts are somewhat different from viewpoints of nongovernmental organizations that provide free legal aid. The non-governmental organizations feel that citizens only partly know their rights, let alone their scarce knowledge of available protection mechanisms. The different standpoints may be caused by the fact that NGOs providing free legal aid, by the nature of their activities, work with socially excluded categories of population, which also shows that these categories of citizens are less aware of their rights than others, as shown is the table below.

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Table 2: Citizens Knowledge of Rights and Legal Mechanisms: Viewpoints of Courts and NGOs How well do citizens know their rights? Standpoint of the courts Standpoint of NGOs providing free legal aid 0% very well 7,7% very well
90,4% partially 68,9% partially 31,3% not at all 1,9% not at all How well do citizens know and use legal mechanisms for the protection of their rights? 0% very well 5,8% very well 92,3% partially 1,9% not at all 60% partially 40% not at all

Given that they work directly with citizens seeking legal aid, the nongovernmental organizations had the opportunity to express their viewpoint about factors influencing the awareness or lack of awareness of their rights and legal mechanisms. According to the NGOs, complicated court procedures and non-transparent work of judicial institutions have the strongest impact on citizens knowledge of their rights. These two problems are also related to the large number of laws in certain areas, numerous judicial institutions and unclear division of powers. A factor with a strong negative impact on the knowledge of rights is the fact that the court is the first dispute resolution instance, and thus the use of alternative dispute resolution methods and administrative procedures is limited. NGOs also noticed that general accessibility of legal information and laws in BiH was very limited. Nevertheless, 83% of surveyed courts claim that legal information are publicly available at their premises, while 17% admit that they do not provide citizens with such information. Courts that do provide information use the following means for that purpose: Brochures and propaganda materials Website of the court Notice board
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Request for free access to information Open doors and/or the court president receives citizens on a weekly basis The courts library Electronic access to cases.

However, a recent Analysis of citizen survey about the effects of the reform of municipal courts in Zenica-Doboj Canton, prepared by the non-governmental organization Alternative from Kakanj shows that accessibility of information at courts is limited. Although citizens feel that they can obtain information from 182 the courts, they do not know where to find such information. Apart from accessibility of information at courts, simple procedures and increased flexibility of the procedures may substantially enhance the efficiency of the courts, as shown by the empirical research. Simpler procedures increase transparency and accountability of courts, and thus facilitate access to justice. Moreover, a comparative analysis of 109 countries, conducted through Lex Mundi project shows that the legal formalism is strongly related to the inefficiency of courts, especially corruption, lengthy procedures, poor access to justice and meager consistency of court practices. When it comes to simpler procedures, frequent introduction of oral hearings at small courts has shown excellent results.183 Lengthy Court Proceedings Lengthy and slow court proceedings imply exceeding of the legally defined deadlines for dispute resolution. The very issue of lengthy court proceedings when it comes to labor dispute resolution is common at BiH courts, and the surveyed courts, NGOs and syndicates often mention it as a significant problem. Judges are to process labor disputes urgently as they have priority over other cases. However, resolving these disputes, which should be urgent, often takes several years in BiH: 3 to 5 years. When asked whether courts resolved individual or labor disputes of trade unions in urgent proceedings, 86.7% of surveyed trade unions responded that not a single such case was resolved urgently. This turns the urgent cases into lengthy court processes that frequently put to question the very court proceeding, given that time plays an important role in exercising the rights of parties. At the same time, every delayed procedure constitutes an unresolved case. What is more, the sluggish dispute resolution and non-abidance by the set
182 Alternative. Analysis of citizen survey about the effects of the reform of municipal courts in Zenica-Doboj Canton, prepared by an NGO. 183 Botero, Juan Carlos, et al. Judicial Reform.

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timeframes also give rise to corruption, because parties in proceedings shall try to expedite (or even slow down) a dispute, if they have financial resources to do so.
A recently published report of the Human Rights Ombudsman in BiH also underlines this problem as one of the biggest problems when it comes to violation of human rights and the judiciary. Namely, in 2010 only, the BiH Ombudsman received 652 complaints about the work of courts in BiH. Most of these cases i.e. complaints pertain to non-processing of cases by the first instance courts and non-scheduling main trials at these courts, a long process of ruling a decision upon appeal at the second instance courts, and the duration of proceedings before the entity-level supreme courts. The problem evidently lies in all courts, first-instance, secondinstance and supreme courts, and the violation of rights in the judiciary by failing to abide by the rules of conducting trials within reasonable timeframes, which is a large obstacle for equal access to justice in BiH. In this regard, the ombudsmen expressed special concern because courts continue to fall behind the case clearance rates with each new case, which poses a serious question regarding fulfillment of obligations set in Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms by the BiH government.184 In this regard, the ombudsmen emphasize that additional efforts are required to stop further human rights violations in newly registered cases at courts by immediate processing of those cases; cases that were received earlier should be resolved in a chronological order of registering, along with hiring a number of additional judges. The ombudsmen feel that the case management system (CMS) at courts shall significantly contribute to higher efficiency and transparency at courts, because it enables citizens to directly check the status of their cases at the courts.185 Good practices in the world confirm that the informatization through the CMS can expedite the process of labor dispute resolution. The world practice has also shown that, apart from informatization, organizing management trainings may also have a substantial impact on backlog reduction at courts and accelerate the process of labor dispute resolution. It is also necessary to analyze and revise working procedures (filing lawsuits, case processing etc.) in order to reduce delays and cut the expenses.186 What is more, the practices in developed countries showed that introduction of specialized labor courts or separate departments
184 Human Rights Ombudsman BiH. Annual Report on Results of the Activities by the Human Rights Ombudsman BiH for 2010 185 Ibid. 186 Messick, Richard E. Judicial Reform and Economic Development: A Survey of the Issues.

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for labor disputes has a positive impact on equal law implementation, notably accelerated proceedings187 and prompt implementation of court decisions188. Unfortunately, only few courts in BiH have separate labor dispute departments (only 3 among the 54 surveyed courts) or judges who exclusively work on cases in labor relations (see Table 1). This means that the vast majority of courts in BiH do not have separate departments for labor disputes, although it was recommended by the leading judicial institutions.

Costly Court Proceedings Lengthy court proceedings directly add up to the price of the process and therefore increase the cost of access to justice. Accordingly, longer court proceedings will cost more, thus making the access to justice harder for indigent citizens. Moreover, high court expenses, apart from representation expenses and different administrative fees, also include costs arising from corruption. Therefore, in the societies with high corruption rate, such as in BiH, court proceedings automatically get more expensive, and access to justice becomes poorer.189 In this context, the question arises as to who in a state with almost one quarter of population living at the edge of poverty, and more than half are faced with some forms of exclusion 190 can afford the court protection that costs several monthly salaries, let alone the fact that half of the population able to work in BiH are unemployed. At the same time, there are no options to take loans from private or public institutions in order to finance and initiate court disputes. Apart from courts and they way they work, lawyers also impact the efficiency of court protection and cost of court proceedings. Negative influence of lawyers and their lobbies on judicial reforms was recorded in many countries, aiming to prolong court proceedings, which would bring the lawyers higher earnings due to higher fees that citizens would have to pay for lengthy disputes. Nevertheless, regulating the attorney fees by law did not prove to be a good solution, but liberalization of the legal service market did. The liberalization implies including other professions to the market of legal services, i.e. the possibility
187 Botero, Juan Carlos, et al. Judicial Reform. 188 It is important to stress that these courts emphasize the significance of alternative dispute resolution methods, such as mediation, and that the success of these courts is not only due to the fact that they are specialized in these issues, but also due to the application of alternative dispute resolution methods. 189 Waleed H., Malik. Access to Justice: Approaches for Bringing Services Closer to the People. 190 UNDP Mission to BiH. Human Development Report 2007: Social Inclusion in BiH.

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of non-attorney representation in different cases. Empirical research shows that liberalization of the legal service market significantly lowers the cost of court disputes and improves access to justice by increasing access to legal aid.191 At the same time, in a country like BiH with a high rate of social exclusion, free legal aid plays an important role in cutting legal protection costs. Unfortunately, relevant institutions did not do much when it comes to regulating and providing legal aid in BiH. Namely, regulations on free legal aid in BiH are only coming to life: laws in this field were passed in some parts of BiH (Republika Srpska, Brko District, Tuzla Canton, West Herzegovina Canton, Zenica-Doboj Canton and Posavina Canton), while the adoption process is ongoing in HerzegovinaNeretva Canton and Una-Sana Canton. Also, a framework law was prepared at the level of Bosnia and Herzegovina, but it was returned from the Parliament to the BiH Ministry of Justice twice.192 On some instances, legislators in BiH tend to regulate this area by defining public institutions and agencies as the only legal aid providers, although nongovernmental organizations started providing legal aid services after the war and built significant capacities in this field. At the same time, public institutions do not have adequate human and financial resources to be the exclusive legal aid providers. According to the international practice and standards, free legal aid can be provided by several social actors: public agencies, but also non-governmental organizations, bar chambers and faculties of law.193 Regulating the issue of free legal aid is an important element in improving access to justice in BiH, and government representatives must be seriously dedicated to resolving this issue in the interest of citizens.

191 Botero, Juan Carlos, et al. Judicial Reform. 192 Kotlo, Rebeka and Stipanovi, Ivana. Free Legal Aid in Herzegovina-Neretva Canton: the Role of Non-governmental Organizations. 193 Similar tendencies were also observed in Croatia when it comes to alternative dispute resolution. It was recorded that peaceful dispute resolution the area where an autonomous initiative of citizens outside the court should be dominant was mostly reserved for state and para-state institutions: courts, attorney generals offices, social care centers and combined institutions with public powers, such as national chambers of commerce and craft chambers, or the Social and Economic Council. The implementation of such practice in Croatia raises a question whether such mediation, even if successful, actually alleviates the burden of the state judiciary, or imposes additional tasks and burdens on it. Source: Uzelac, Alan et al. Current Trends in Peaceful Dispute Resolution in Croatia: Scopes and Limitations.

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Non-Implementation of Court Decisions When it comes to labor disputes, non-implementation of court decisions is a common problem. The Human Rights Ombudsman BiH reiterates this problem in its reports as one of the main problems related to human rights violations and the judiciary. Complaints that citizens filed to ombudsmen about nonimplementation of court decisions are mostly related to the inability to enforce court decisions in cases when a municipality, canton or an entity are to implement a court decision. Namely, according to the Law on Enforcement Procedure, these claims can only be settled if funds have been allocated for that purpose in the budgets of institutions. Given that these amounts are constantly reduced in the budgets, their disbursement is questionable. Also, the enforcement of court decisions is problematic when it involves payment methods in cases against Republika Srpska and the Federation of BiH, which is regulated by the FBiH and RS Laws on Settlement of Internal Debt. The payments are made in bonds, and parties are not satisfied with the circumstances or deadlines.194 A common problem, which is particularly relevant for labor relations, is the inability of citizens to collect their claims due to illiquidity of their employers. Ombudsmen also point out that these cases include a humane dimension because the parties involved are mostly elderly, of poor health, without any earnings or minimum social security that the state is to provide to its citizens, in accordance with the international standards regulating this area, especially the European Social Charter.195 In this regard, the ombudsmen propose ratification of Article 25 of the European Social Charter, which guarantees the right of workers to the protection of their claims in the event of the employers insolvency.196 In addition, it is necessary to conduct a detailed analysis of the implementation of court decisions, the most frequent problems in this respect, and to develop and implement measures to resolve the identified issues. Massive Inflow of Cases The massive inflow of labor disputes is primarily caused by poor implementation of employers general documents by the employers or their incompatibility with the laws especially employment agreements regardless whether the employer is privately owned or belongs to the public sector. Therefore, gross
194 Human Rights Ombudsman BiH. Annual Report on Results of the Activities by the Human Rights Ombudsman BiH for 2010 195 Ibid. 196 Ibid.

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violations of rights in labor relations are the primary causes of the large number of cases at courts. In this respect, preventive action is of extreme importance, in order to alleviate the burden from the courts, but also to prevent violation of rights at the very beginning. Given that there is not a lot that the courts can do in this regard, preventing the widespread violation of labor rights shall require a systematic approach to the issue by the executive authorities and bodies that monitor the implementation of laws. Therefore, it is important to keep in mind that resolving the problems with labor disputes at courts should be accompanied by reforms in order areas. First of all, relevant institutions should work on strengthening the institutions and accounting and audit procedures in private and public sectors. Information about employers who violate rights of their employees should become public, and such companies must not use benefits or subsidies offered by the government institutions.197 The role of media and non-governmental organizations should be encouraged in this segment, as they should follow the work of public institutions, and make their activities more transparent.
Apart from strengthening the institutions and accounting and audit procedures, it is necessary to extend powers of work inspections and increase the fines imposed by these institutions. These public institutions in charge of monitoring the law implementation are currently powerless. Inspection authorities are not efficient, because their powers are limited and penal policy lenient.198 For instance, the inspection authority sanctions an employer with whom it found black market workers with a fine of app. KM 1000, regardless whether they found one or 300 such workers. Low fines and high social contributions are the reasons why many employers, even including public institutions and companies, feel that payment of fines is a much lower expense than fulfilling the legal obligation and regularly paying social and pension benefits for workers.199

At the same time, the protection of labor rights through collective action is much poorer. The right to syndicate associations was often denied by the employers, while employee councils are rarely, if at all, used within a company. Moreover,
197 Messick, Richard E. Judicial Reform and Economic Development: A Survey of the Issues. 198 Inspection authorities are faced with the problem of understaffing, fragmented actions, lack of equipment and professional education, corruption etc. Durakovi, Besim. Proposed measures and activities for resolving the issues of Tuzla Canton Inspection Authority.; Demir, Elma. Report on the results of expert-consultative meetings in the field of labor and employment. 199 Initiative and Civil Action (ICVA). Implementation of the European Social Charter through Laws and Practice in BiH.

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trade unions often complain about regulations defining the issue of strikes. In order to enhance the application of the above-mentioned mechanisms of collective action, it is necessary to work on strengthening the social dialogue, especially through social and economic councils. The role of the social and economic councils (SEC) in FBiH and the RS, and of the future council at the state level,200 is to harmonize the economic and social policies, and to conclude and implement collective agreements. Therefore, these councils have powers to request information and monitor the implementation of public policies, laws and general agreements. Strengthening and establishment of a social-economic council at the state level would increase the influence of trade unions on decision making processes in the labor segment, and therefore decrease human rights violations and case inflow to courts. The massive inflow of labor disputes to courts is also caused by poor application of measures that precede a court process, i.e. alternative dispute resolution mechanisms. Namely, it was proved that mediation services and other alternative dispute resolution methods in courts resolve a large number of issues that the courts face, including the large case inflow, and reduce the costs significantly.
The alternative dispute resolution (ADR) implies methods of resolving disputes at the workplace. These methods include reconciliation, mediation and arbitration, initiated by a mediator or an arbitrator.201 The reconciliation implies procedures where a third party has the role to assist in the mutual communication between the conflicted parties. Mediation includes a process where a third party helps two or more parties in dispute to reach an agreement, while the arbitration includes a similar process, but a third party issues a binding decision in that process. These ADR forms represent types of dispute resolution outside the court. However, there is also a form of ADR within the court, which implies engagement of a legal authority, usually a judge, immediately before a hearing. The main ADR objective is to resolve a dispute as soon as possible. The existing practice has proven that the ADR is more successful in more complex disputes, involving several parties, such as sacking, discrimination at the workplace or violence, while it has a limited effect in specific cases, such as non-disbursement of salaries by an employer. One of the main ADR advantages is
200 Although the BiH Council of Ministers included the establishment of a Social and Economic Council at the BiH level in its strategic plans, which was also agreed with the ILO representatives during the development of the Decent Work Program for BiH, it has not been formed yet due to the lack of consensus on social partners that would be included in the work of the council. 201 Some countries, like Greece, have an interesting practice where labor inspectors use ADR, while trade unions and the Chamber of Labor are the leaders in using ADR in Austria.

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providing solutions for both sides in a dispute and ensuring peace at the workplace. In this way, ADR contributes to higher legal certainty and stabilization of the social situation. Another ADR advantage is quick resolution of disputes and lower costs202 compared to lengthy court proceedings.

Unfortunately, although mediation was introduced into the BiH legal system back in 2004, it is still insufficiently used, and without any notable effects on the judiciary in terms of backlog reduction. Activities on promoting the mediation were included in the Justice Sector reform Strategy in BiH 2008 2012, but the institutions have not taken any serious action in this area yet. Only 26.9% courts answered affirmatively to the question whether they instruct parties to turn to alternative resolution of labor disputes. Most judges feel that the courts should not deal with these issues, and as much as 32% of the surveyed courts specify that their municipalities do not have alternative dispute resolution mechanisms. Graph 2: Instructing parties to use mediation at courts

Unfortunately, when it comes to the application of mediation by social partners, the situation is similar. Trade unions rarely use mediation for dispute resolution. Among the surveyed trade unions, only three applied mediation methods in one case each, while one trade union applied mediation in several disputes, although the leading
202 According to some assessments, ADR in courts reduces the number of court hearings in labor disputes in app. 2/3 of applications. Source: Purcell, John. Individual disputes at the workplace: Alternative disputes resolution

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trade union confederations declaratively supported the application of mediation and peaceful dispute resolution methods.203 In the Decent Work Program for BiH, the International Labor Organization (ILO) also identified the problem of scarce application of alternative dispute resolution methods in BiH, concluding that employers and workers rarely use services offered by this institution , and that one of the reasons for this situation is that the existing mediators are not specialized in labor disputes, but work on all types of civil disputes (family, property disputes, etc.)... For this reason, disputes on company level are still resolved through an industrial action or a court process, thus undermining the peace at the workplace, already fairly shaken due to the issues arising from the company restructuring (privatization and similar) and its consequences on the employment safety.204 In this regard, the ILO recommends that relevant government institutions support the association of mediators in developing competencies for resolving labor disputes, and activities on raising mediation awareness among social partners. When it comes to the arbitration, this method of alternative dispute resolution is still very new, but it only exists in Republika Srpska. Namely, the Agency for Peaceful Labor Dispute Resolution of Republika Srpska was founded recently, with the goal to alleviate the burden of labor disputes from the courts. However, the Agency just recently started functioning and it is difficult to analyze the achieved results and the scope of the arbitration implementation.205

Conclusions and Recommendations As a part of the conducted survey, courts had the chance to express their standpoints with regard to the improvement of their work when it comes to more efficient labor dispute resolution, and proposed the following206: Increase the number of judges working on labor disputes, as well as judicial associates and other administrative staff; Improve the accessibility of free legal aid; Increase the accessibility of mediation and other alternative dispute resolution mechanisms, especially outside the court;

203 Budi, Borka. RS One Step Ahead of FBiH. Trade unions support, but do not apply; also: Capital.ba. For Peaceful Resolution of Labor Disputes. 204 Council of Ministers /International Labor Organization (ILO). Bosnia and Herzegovina: Decent Work Program 2008 2010. 205 Spektar. First Labor Dispute Resolved. 206 Judges made similar conclusions at a recent seminar of the RS Judicial and Prosecutorial Training Center. Report from the seminar on labor law.

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Hire a proxy for parties in labor disputes; Educate citizens on legal mechanisms for the protection of labor rights and on court proceedings; Provide more active participation of trade unions in resolving individual labor disputes; Specializing the courts i.e. establishment of labor courts or at least separate departments at courts; Specialized judges: appointment and training of judges to work exclusively on these cases Initiate criminal proceedings and improve the implementation of criminal codes when it comes to labor relations; Take preventive action in relevant executive government institutions (apply laws on employee councils; revise the privatization process and resolve the employment status of workers; harmonize collective agreements with relevant legislation; enhance the role and competencies of inspection and tax authorities)

Based on the conducted analysis and examples of good practice, the following recommendations have been defined for relevant institutions: High Judicial and Prosecutorial Council of Bosnia and Herzegovina / BiH Ministry of Justice Conduct a detailed case law analysis in labor relations at the level of BiH, in order to define problems that occur during the implementation of laws in practice and compatibility of labor laws with regulations in related fields; Results of the analysis should be presented and submitted to ministries and agencies in charge of labor policies, employment, health and social welfare. Analyze compatibility of BiH legislation with the taken over international and EU obligations and regulations on labor and employment, in order to define recommendations for development and changes of public policies. Implement the Justice Sector Reform Strategy (JSRS) and the related Action Plan to meet the set deadlines, particularly measures for introducing the case management system, informatization of the judiciary and introducing case processing timelines, free legal aid
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and mediation, and provide human and financial resources required for their implementation. Intensify the work of all relevant judicial institutions on the implementation of measures and activities of the Justice Sector Reform Strategy in BiH Create a mechanism of monitoring and evaluation of the implementation of the Strategy for court user care or Guidelines for relations with court users Evaluate the implementation of the Strategy for court user care and define measures and recommendations for courts aimed at strengthening their activities in communication with citizens, court users and the media Introduce performance evaluation system for judges and courts Analyze court procedures in the area of labor disputes and define recommendations for simplifying those procedures Create recommendations for courts defining treatment of new and resolving backlog cases i.e. define that new cases are to be processed immediately, and previously received cases would be processed in chronological order of registering, along with hiring a number of additional judges Establish specialized labor courts in BiH Appoint a number of judges to exclusively work on labor disputes Develop court management training programs for court managers in JPTCs Assess the level to liberalization of legal services and develop appropriate measures to enhance it Adopt legal aid laws at the state and FBiH levels, and in six cantons where such laws do not exist, in accordance with relevant international and EU standards

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 Analyze the implementation of court decisions in labor relations and common problems in this regard, and develop and apply measures for resolving the identified problems
BiH Ministry of Foreign Affairs / BiH Directorate for European Integration

Identify all international and EU obligations that Bosnia and Herzegovina assumed by signing the conventions and agreements in the areas of labor, employment and social policy.
Courts

Appoint judges to exclusively work on labor cases. Establish separate departments for labor disputes. Promote alternative dispute resolution methods in courts (opening offices within the courts; placement of informative brochures and educational materials in courts). Develop cooperation with NGOs with the goal of providing free legal aid. Promote and educate citizens in the court protection of their labor rights (through the media, educational workshops, informative brochures in courts).

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Messick, Richard E. Judicial Reform and Economic Development: A Survey of the Issues. The World Bank Research Observer 14.1. 1999. Nahtigal, Neva, et al Labor Relations and Media: Analyzing Patterns of Labor Relation in the Media of SEENPM Member Countries. Independent Institute of Journalism, Chisinau, Moldova, 2008. Oneseeworld. Workers rights in Bosnia and Herzegovina. Oneseeworld. 31.03.2009. Available at: http://oneworldsee.org/js/node/18024 General collective agreement for the territory of the Federation of BiH. FBiH Official Gazette 19/00. General collective agreement. Official Gazette of Republika Srpska 40/10. Pogled.ba. Jurii: Executive government failed to provide sufficient number of judges. Pogled.ba. 08.03.2011. Available at: http://www.pogled.ba/bih/ novosti/10365-juriiizvrna-vlast-nije-osigurala-dovoljan-broj-sudaca Legal standpoint adopted at the general session of the Appellate Court of Brko District BiH on 11.07.2008 -Su- 435/08. Available at: http://www.asbd.ba/ sudskapraksa/1/?cid=216,2,1 PravoBiH.com. Elektroprenos BiH: Workers won lawsuits worth millions. 21.02.2011. Available at: www.pravobih.com PravoBiH.com. Non-abidance by the law: BiH is one of the most liberal countries in the world by easy dismissing and hiring workers. 14.03.2011. Available at: www.pravobih.com PravoBiH.com. Public debate held on the proposed amendments to the Law on Labor in the Institutions of BiH. 12.03.2010. Available at: www.pravobih.com Judgment of the Supreme Court of the Federation of Bosnia and Herzegovina, no.: Rev794/04 of 06.09.2005. Available at: http://www.vsfbih.ba/ sudska_praksa/odluka. php?odluka=148 Judgment of the Supreme Court of the Federation of Bosnia and Herzegovina, no.: U-1272/00 od 5.2.2004. Available at: http://www.vsfbih.ba/sudska_praksa/odluka. php?odluka=16 Judgment of the FBiH Supreme Court, no.:: Rev879/05 od 04.04.2006. Available at: http://www.vsfbih.ba/index.php?lokacija=sudska_ praksa&vrsta=prikaz&id=263

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Judgment of the FBiH Supreme Court, no.: 070-0-Rev07-000692 od 10.04.2007, Available at: http://www.vsfbih.ba/index.php?lokacija=sudska_ praksa&vrsta=prikaz&id=260 Judgments of the FBiH Supreme Court, no. Uvp-270/06 of 13.12.2006 and Uvp-74/06 of 6.12.2006. Available at: http://www.vsfbih.ba/index. php?lokacija=sudska_praksa&vrsta=prikaz&id=278 Youth Employment Project; Inspection authority in FBiH examines respect of workers rights hundreds of workers have no vacation. Website of the Youth Employment Project, 13.04.2010. Available at: http://yep.mojakarijera.com/ node/529 Purcell, John. Individual disputes at the workplace: Alternative disputes resolution; European Foundation for the Improvement of Living and Working Conditions, 2010. Available at: http://www.eurofound.europa.eu/eiro/studies/ tn0910039s/ tn0910039s.htm Kotlo, Rebeka and Stipanovi, Ivana. Free Legal Aid in Herzegovina-Neretva Canton: the Role of Non-governmental Organizations. Justice Network in BiH. Sarajevo, 2011. Risak, Martin E. and Holter, Christiane. Report from the conference: Strengthening the Mechanisms of Labor Dispute Prevention and Amicable Resolution in the Western Balkan Countries and Moldova. International Labor Office, Beii, 25-26.02.2009. SEEbiz/Novi list. Branko Hrvatin requests establishment opf labor courts. SEEbiz/Novi list. Zagreb, 28.06.2010. Available at: www.seebiz.eu Spektar. First Legal Dispute Resolved. Banja Luka. Available at: http:// www. agencijaspektar.com/index.php?novost=3708&jezik= ajinovi, Dejan. Only Rare Employers Appreciate Workers. Reci.ba. 2010. Available at: http://www.reci.ba Sudarshan, Ramaswamy. Rule of Law and Access to Justice: Perspectives from UNDP Experience. The paper was presented at an Expert Seminar on the rule of law and justice administering as a part of a good management practice. Brussels, 3-4.07.2003. Available at: www.unrol.org/.../Rule%20of%20Law%20and%20 Access%20to%20Justice_Perspectives%20from%20UNDP%20experience1.doc Toma, Rajko. Grey Economy in Bosnia and Herzegovina. Friedrich Ebert Stiftung. Banja Luka, August 2009.

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Topalovi, Vesna. Exercising and protection of labor rights through collective negotiations and ILO conventions, with a review of the collective agreement. Faculty of Legal Sciences of the Pan-European University Aperion, Sarajevo, 2008. Vaa prava BiH Association. Analysis of regulations and situation in the area of labor law. Vaa prava BiH Association. Sarajevo, 2006. Vaa prava BiH Association. The issue and payment of mandatory contributions and. Vaa prava BiH Association. Sarajevo, 2005. Vaa prava BiH Association. Maternity protection in the entity labor laws. Vaa prava BiH Association. Available at: http://www.vasaprava.org/old/ Pravna_ pomoc/Radno.htm#%20Iz%20prakse%20Udru%C5%BEenja Uzelac, Alan et al. Current Trends in Peaceful Dispute Resolution in Croatia: Scopes and Limitations. Faculty of Law, University of Zagreb. Zagreb, 2010. Council of Ministers/International Labor Organization (ILO). Bosnia and Herzegovina: Decent Work Program 2008 2010. Budapest, 2009. The High Judicial and Prosecutorial Council (HJPC) BiH. Backlog reduction at courts. HJPC BIH. 26.04.2011. Available at: http://www.hjpc.ba/ projects/?cid=4123,2,1 Waleed H., Malik. Access to Justice: Approaches for Bringing Services Closer to the People. Power point presentation for the Justice Reform 101 Course. World Bank. Washington DC, 11.11.2010.

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Biography of the Author Since 2009, Elma Demir has worked as a project manager and analyst at the Association for Democratic Initiatives (ADI), which has been active in the justice sector for several years. Ms. Demir also coordinates the work of the Justice Network BiH, which brings together 52 non-governmental organizations. In the past, she used to work as a researcher /analyst at the Parliamentary Assembly of BiH, NATO mission to BiH, at the Dartmouth University in the USA as an assistant in subjects of research and academic writing, and at the Institute for Information Infrastructure Protection in Dartmouth. Ms. Demir worked as an advisor and consultant on several projects of NGOs, political parties and public institutions. She graduated at the Faculty of Political Science in Sarajevo, Politology Department, and currently finalizes her master paper at the Dartmouth University.

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Recommendations: Better Access to Justice in Bosnia and Herzegovina

This part offers a summary of all recommendations prepared by the authors of this publication based on conducted analyses. Protection of Victims /Witnesses of Genocide, Crimes against Humanity and War Crimes before the Courts in BiH
Provide long-term protection and support measures for victims who appear as witnesses and thus expose themselves to the additional risk of threats or re-traumatization; Recognize the needs of all victims of gross violations of human rights by laws and facilitate their access to justice in the way to avoid retraumatization and obtain reparation to the greatest extent possible; There is a clear need for the state government to encourage further establishment of victim-witness support and protection sections on lower levels of judiciary and the establishment of a cooperation network between relevant prosecutor's offices and courts, in order to ensure witness protection quality and support investigation of reported threats against witnesses; The state should include institutions engaged in social work in providing protection to witnesses and victims, ensure smooth access to psychological and medical assistance, and certainly, encourage development of free legal aid system for victims who intend to file reparation claims; The state should provide a victim-witness restitution and compensation system; The state should encourage civil society organizations with the existing or developing capacities for providing psychosocial and legal aid to witnesses and victims, that are further able to inform and advise witnesses and victims in general without discrimination about their reparation rights and possibilities; In this respect, the civil society organizations should develop active forms of cooperation at the entire territory of BiH, in order to enable providing full protection and support to witnesses and victims in accordance with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation of Victims.
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The Role of NGOs in the Light of Educational Recommendations from the Proposed Law on Protection and Treatment of Children and Juveniles in the Criminal Procedure of BiH Brko District Research and data collection. Updated databases and information enable NGOs to: Identify the key areas for intervention Influence the public opinion and media with the information based on facts Ensure gender equality in an appropriate way Make sure that the voice of juveniles was also taken to consideration when developing programs, and provide for a more active participation of juveniles in public debates on judicial reforms

Work on promotion and issuing of alternative measures for sentence serving Work to raise the awareness of the rights of children and young people among judges, the police and other institutions through educational and other activities Promote the role of the Centre for social work Participate in the judicial reform processes on a long-term basis Engage in preventive activities with young people in order to reduce the crime rates through: Youth work within a community (cooperation with schools, parents and other actors) Bringing together the most significant institutions for coordinated activities and an integration approach to problem solving Establishing networks and coalitions with relevant partners in the country, the region and the EU.

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(Non-) Equal Access to Justice Due to Non-existence of a Supreme Court of BiH Defining of a strategy for the establishment of a Supreme Court of Bosnia and Herzegovina by the BiH Ministry of Justice; Establishing a relevant body within the BiH Ministry of Justice, aiming at the strategy implementation; Putting democratic public pressures via non-governmental organizations aiming at the establishment of a Supreme Court of Bosnia and Herzegovina. Waiting for Godot: Efficiency of the BiH Judicial System in the Protection of Political Rights of Minorities Establish a parliamentary committee for constitutional changes that would be gradually implemented and applied to all citizens of BiH constituent nations, Others and citizens (categories defined in the Constitution). This committee would primarily comprise of domestic legal experts. Amendments to the election law are possible, but they would not resolve the very essence of the problem. Legally reinforce the Office of the Representative of BiH Council of Ministers before the European Court of Human Rights. Following the model of neighboring countries from the region, introduce the representation quota in the BiH Parliamentary Assembly for national minorities. By amending the legislation, strengthen the national minorities councils for direct participation in the executive government at the state and entity levels in BiH, instead of the mere advisory role they currently have. When Will my Case Be Resolved? Implementation of the Freedom of Access to Information Act in the Justice Sector in BiH Recommendations to civil society organizations Affirm and enhance the role of civil society organizations that provide free legal and informative aid in taking active part in the procedures involving submission of access to information requests and exercising
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the right to be informed in court and other proceedings before judicial institutions, and applying the principle of publicity in their work. It is necessary to encourage and strengthen capacities of civil society organizations for participation in debates aiming at a more efficient work of courts and other judicial institutions. Strengthen the advisory and consulting roles of civil society organizations that provide free legal and informative aid in the field of access to justice /centers, institutes, Vaa prava etc./ with respect to civil society organizations lacking such resources, especially organizations that gather or directly work with war victims in BiH. Continually work on monitoring of the work of courts, implementation of strategic documents from the judicial sector, research and analyze satisfaction of court users and various other issues of interest for more efficient courts and improved case clearance rates, and regularly inform the public thereof. Civil society organizations need to publicly work on promotion and practical application of the Freedom of Access to Information Act in the communication with courts and other judicial institutions, either independently or within coalitions or networks, continually independently or in partnership with courts and other judicial institutions. Civil society organizations should initiate innovative projects aiming at reducing the length of court proceedings and increasing the efficiency and transparency of the work of courts and other judicial institutions through public advocacy and building partnerships with courts and professional associations in the justice sector. Cooperate with the courts on legal affirmation of alternative dispute resolution, e.g. through mediation etc., and actively work on informing and educating citizens about these options. Promote, inform and educate citizens, parties in proceedings about possibilities and advantages of the application of information and communication technologies in judiciary, in cooperation with the courts and the High Judicial and Prosecutorial Council of BiH. Analyze the existing legislation, access the impact of legal solutions on timeframes in the judiciary and court activities, in consultations and cooperation with competent judicial
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Recommendations to courts

institutions and civil society organizations that have the knowledge and experience in the field of judiciary. Genuine transparency in the work of courts and other judicial institutions should be ensured by publishing data, reports, analyses, plans with respect to the length of proceedings for each case type on all levels of courts and other judicial institutions. Courts should pay special attention to the backlog cases by continually developing legal mechanisms for monitoring such cases through e.g. periodical and annual reports and plans that are publicly accessible without additional limitations. Guides and best practices in Europe and globally in improving the length and currency of court proceedings should be distributed to citizens for information and education purposes, in cooperation with civil society organizations. Organize regular informative days at courts and other judicial institutions for parties in proceedings involving participation of civil society organizations, especially those that provide free legal aid. Provide an efficient system of filing access to information requests, petitions and complaints, and act on them urgently and transparently. Continually work on education of judges and administrative staff at courts, in order to improve the management system in courts. Include a large number of civil society organizations in the work of professional bodies that include judges and representatives of professional associations in the justice sector, established at competent judicial institutions, the HJPC BiH, line ministries of justice etc. in the sphere of strategic planning, monitoring the implementation of laws and regulations, strategic documents, plans issued by the HJPC BiH, courts etc.

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Free Legal Aid in Herzegovina-Neretva Canton: Role of Non-Governmental Organizations Regulate by law the provision of free legal aid by citizens associations, Establish institutionalized forms of cooperation between the judiciary and government authorities with citizens associations that provide free legal aid, selected by the established and precisely defined criteria, Regulate the provision of free legal aid by citizens associations and the institutionalized forms of cooperation between the judiciary and government authorities and the NGO sector either by proposing amendments to the Law on Cantonal Legal Aid Institute, or by passing a law on providing legal aid in HNC that will include the NGO sector and legally define citizens associations nongovernmental organizations as legal aid providers, In consultations with the non-governmental sector, enact, improve and harmonize laws dealing with legal aid provision in Bosnia and Herzegovina, develop uniform legal aid laws and detailed regulations for their implementation at the entire territory of Bosnia and Herzegovina, including HNC, that would define providing legal advice, assistance and representation in court and administrative proceedings and disputes, Fortify the cooperation between courts and the government and the NGO sector in the area of providing free legal aid, particularly in the way that: 1. The NGOs provide legal aid to citizens in elimination of formal deficiencies in motions they drafted without professional assistance, which is why citizens often lose cases or have to wait longer to exercise their rights due to procedural reasons; NGOs would canalize clients and their requests before they reach the court, and 2. NGOs show the clients the right path, especially in utility, labor, family and property-legal disputes, and assist them with adequate writing of different types of motions, inform clients of their rights and obligations, which would contribute to more efficient work of courts and increase the percentage of disputes resolved in favor of
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clients, which they lost in the past due to inadequate assistance and indigence that did not allow them to hire a defense counsel/attorney, Consider the possibility of establishment of peace panels tasked with resolving a large number of cases without classical court proceedings, with the participation of the NGO sector, It is necessary to provide financial resources from the state, budgets on different levels and government authorities for a more active and more certain work of the NGO sector in the area of access to justice providing free legal aid, because only states with firm political commitment, ready to financially support the development of a comprehensive legal aid system can provide efficient legal aid, Periodically, but on a regular basis, monitor the situation, conduct and publish analyses of the situation in the area of access to justice free legal aid, offering recommendations for improvements, Establish a system of providing free legal aid, Educate and inform citizens about their rights, which can also be done (they already do it with flying colors) by non-governmental organizations. Court Protection of Rights in Labor Relations in Bosnia and Herzegovina High Judicial and Prosecutorial Council of Bosnia and Herzegovina / BiH Ministry of Justice Conduct a detailed case law analysis in labor relations at the level of BiH, in order to define problems that occur during the implementation of laws in practice and compatibility of labor laws with regulations in related fields; Results of the analysis should be presented and submitted to ministries and agencies in charge of labor policies, employment, health and social welfare. Analyze compatibility of BiH legislation with the taken over international and EU obligations and regulations on labor and employment, in order to define recommendations for development and changes of public policies.

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 Implement the Justice Sector Reform Strategy (JSRS) and the related Action Plan to meet the set deadlines, particularly measures for introducing the case management system, informatization of the judiciary and introducing case processing timelines, free legal aid and mediation, and provide human and financial resources required for their implementation. Intensify the work of all relevant judicial institutions on the implementation of measures and activities of the Justice Sector Reform Strategy in BiH Create a mechanism of monitoring and evaluation of the implementation of the Strategy for court user care or Guidelines for relations with court users Evaluate the implementation of the Strategy for court user care and define measures and recommendations for courts aimed at strengthening their activities in communication with citizens, court users and the media Introduce performance evaluation system for judges and courts Analyze court procedures in the area of labor disputes and define recommendations for simplifying those procedures Create recommendations for courts defining treatment of new and resolving backlog cases i.e. define that new cases are to be processed immediately, and previously received cases would be processed in chronological order of registering, along with hiring a number of additional judges Establish specialized labor courts in BiH Appoint a number of judges to exclusively work on labor disputes Develop court management training programs for court managers in JPTCs Assess the level to liberalization of legal services and develop appropriate measures to enhance it

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 Adopt legal aid laws at the state and FBiH levels, and in six cantons where such laws do not exist, in accordance with relevant international and EU standards Analyze the implementation of court decisions in labor relations and common problems in this regard, and develop and apply measures for resolving the identified problems BiH Ministry of Foreign Affairs / BiH Directorate for European Integration Identify all international and EU obligations that Bosnia and Herzegovina assumed by signing the conventions and agreements in the areas of labor, employment and social policy. Courts Appoint judges to exclusively work on labor cases. Establish separate departments for labor disputes. Promote alternative dispute resolution methods in courts (opening offices within the courts; placement of informative brochures and educational materials in courts). Develop cooperation with NGOs with the goal of providing free legal aid. Promote and educate citizens in the court protection of their labor rights (through the media, educational workshops, informative brochures in courts).

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www.mrezapravde.ba