Bosnia and Herzegovina

The Commission’s recommendations from last year were only partially met and thus remain valid. In the coming year, Bosnia and Herzegovina should in particular: 

• Urgently appoint the vacant constitutional judges, ensuring the full composition and functioning of the Constitutional Court; and, for the courts in general, consistently appoint judges based on merit, without prevalence of ethnic criteria, and appraise the performance of judges based on quality criteria;
• Finalise and adopt the new laws on the HJPC and the Courts of Bosnia and Herzegovina, in line with Venice Commission recommendations, including by ensuring the access of the HJPC to all information necessary to perform integrity checks; fully implement the integrity-related provisions of the Law on the HJPC to establish a robust system of asset declaration verification under close external monitoring;
• Adopt a new justice sector reform strategy; register the sentences of international criminal tribunals in domestic criminal records; and effectively implement the revised national war crimes strategy, particularly by boosting regional cooperation. 

European Commission, Enlargement Report, 2024

Adopted by GRECO at its 85th Plenary Meeting (Strasbourg, 21-25 September 2020)

46. GRECO recommended that further steps are taken to improve the performance appraisals (with a priority given to qualitative over quantitative criteria) to both enforce the high ethical and performance standards expected from judges and prosecutors and assist in identifying meritorious candidates for promotion. [partly implemented]

55. GRECO recommended (i) carrying out an analysis of the budgetary and staff situation in courts and prosecution offices, with a view to ensuring that the resources necessary are available and efficiently used across the judicial systems; and (ii) seeing to it that judicial resources are better prioritised with due regard for the gravity of cases [not implemented]

61. GRECO recommended significantly strengthening and further developing – for judges and prosecutors – confidential counselling and dedicated training of a practical nature on issues of ethics and integrity. [partly implemented]

67. GRECO recommended developing rules on conflicts of interest that apply to all judges and prosecutors, along with an adequate supervisory and enforcement regime. [partly implemented]

74. GRECO recommended (i) developing an effective system for reviewing annual financial statements, including adequate human and material resources, co-operation channels with relevant authorities and appropriate sanctions for non-compliance with the rules or false reporting and (ii) considering ensuring the publication of and easy access to financial information, with due regard to the privacy and security of judges, prosecutors and their close relatives. [not implemented]

80. GRECO recommended that (i) the independence, capacity and transparency of the activity of the Office of the Disciplinary Counsel be increased; and that (ii) the disciplinary procedure and sanctions in case of misconduct of judges and prosecutors be revised in order to ensure that cases are decided in a timely manner and thatmisconduct is effectively subject to proportionate and dissuasive sanctions. [partly implemented]

87. GRECO recommended that a communication policy, including general guidelines and training on how to communicate with the media and the relevant civil society organisations, be developed for the judicial system (judges and prosecutors) with the aim of enhancing transparency and accountability. [partly implemented]

Group of States against Corruption (GRECO), Fourth Evaluation Round: Corruption prevention in respect of members of parliament, judges and prosecutors, Second Compliance Report, 2020

Key recommendations

• Trust needs to be rebuilt.  

To overcome current dysfunctionalities, systemic reforms in important rule of law areas, such as the judiciary, are required. 

• Justice must better serve citizens.

Important improvements in the civil and criminal justice systems are required. They have to deliver results. Civil justice proceedings are too laborious, complex and formalistic, and take an excessive amount of time. The criminal justice system in Bosnia and Herzegovina is failing to combat serious crime and corruption. 

• The HJPC needs a fundamental reform and a radical change of behavior.

The HJPC is widely perceived as an unaccountable power in the hands of persons serving the interests of a network of political patronage and influence. As the central institution to ensure the independence and the functioning of the BiH judiciary the HJPC’s legal framework and its functioning need to be significantly improved, to better serve the interests of the judiciary and the citizens. 

• Integrity of judicial office holders must be ensured.

The current system of just gathering asset declarations on paper without carrying out any checks is pointless and needs to be stepped up. It must be subject to close external monitoring. Should the new system and its implementation not achieve its objective, the pressure for vetting might become difficult to resist. 

European External Action Service, Expert Report on Rule of Law issues in Bosnia and Herzegovina, 2019

Adopted by the Venice Commission at its 142nd Plenary Session (Venice, 14-15 March 2025)

91. The Venice Commission welcomes the efforts of the authorities to address the recommendations of its previous Opinion and notes that this new draft is a step forward towards the alignment to European standards. However, the Commission provides in appendix a list summing-up the recommendations that are still to be addressed.

92. In addition, the Venice Commission wishes to bring to the attention of the authorities some of these recommendations concerning the composition of the HJPC.

93. The Commission considers that the overall number of the HJPC members should be increased by adding three lay members, who would better counterbalance the judicial and prosecutorial components (7 out of 23 in the Plenary, 7 out of 15 in the Department); this would also allow to have an uneven number to avoid tie votes. As to the lay members appointed by the parliament, an anti-deadlock mechanism must be put in place if the two-third majority is not reached (that is not reducing the threshold), and the process should be simplified by requiring only the vote of the House of Representatives.

94. Moreover, as concerns the concept of minimum representation of the different ethnicities, the Commission underlines that, in a long-term perspective, the ultimate aim should be that the ethnicity is not anymore a relevant factor in the appointment of members of the HJPC (or any other judicial positions). However, in consideration of the specificities of Bosnia and Herzegovina, a specific transitional phase with a ‘sunset clause’ could be considered. Yet, the provision providing for a drawing lot procedure to ensure the gender and ethnic representation (Article 5(9) of the draft law) is not clear and does not provide enough elements to assess the method of selection and the relevance of the ethnic factor. The Venice Commission considers that the ethnic factor should therefore only be exceptionally and temporarily taken into consideration. Similarly, in the appointment of judges and prosecutors, the ethnic factor may only exceptionally be taken into account, in case of equal merit between candidates.

Venice Commission, Follow-up Opinion No. 1217/2024 to previous Opinions on the draft law on the High Judicial and Prosecutorial Council, 18 March 2025

Adopted by the Venice Commission at its 138th Plenary Session (Venice, 15-16 March 2024)

32. The Venice Commission is gravely concerned by the fact that the Constitutional Court of Bosnia and Herzegovina can currently not function at its full capacity. This has led to an accumulation of more than 7,000 pending cases, which renders access to constitutional justice excessively lengthy, jeopardising the effectiveness and credibility of the judicial system. The Constitutional Court could soon become paralysed, due to the incapacity, to date, of the authorities of the Federation of Bosnia and Herzegovina in appointing judges to the Constitutional Court and the refusal of the authorities of Republika Srpska to do so. As the Venice Commission has emphasised in parallel contexts,37 crippling the effectiveness of a constitutional court undermines all three basic principles of the Council of Europe: democracy – because of an absence of a central part of checks and balances; human rights – because access to the Constitutional Court could be slowed down to a level resulting in the denial of justice; and the rule of law – because the Constitutional Court, which is a central part of the judiciary in Bosnia and Herzegovina, would become ineffective. It is undeniable that the failure of the authorities to fulfil their constitutional obligations to keep the Constitutional Court of Bosnia and Herzegovina functioning violates the Constitution.

33. In replying to the eight questions posed by the Constitutional Court of Bosnia and Herzegovina, the Venice Commission recognises that the current critical situation in which the Constitutional Court finds itself is of a political nature. It is a situation that would be easy to solve if the willingness on the side of political actors would be there. Without this willingness, any legal solution requiring broad political support is destined to fail, even if the Venice Commission also recognises that the provisions on the Constitutional Court contained in the Constitution would benefit from being amended.

34. Without wishing to pre-empt solutions the Constitutional Court itself may find in the current crisis, in the view of the Venice Commission, in response to the first question posed by the Court, the Constitutional Court could with full legitimacy amend its Rules in order to 1) temporarily transfer all cases normally to be decided by the Grand Chamber to the Plenary, whilst increasing the frequency of Plenary sessions and 2) lower the majority of votes required to adopt decisions, in full respect of the attendance quorum stipulated by the Constitution.

35. In response to the second, third and fourth question on the possible appointment of ad hoc judges, the Venice Commission finds that, even if the situation in which the Constitutional Court of Bosnia and Herzegovina finds itself would warrant the appointment of ad hoc judges (question 2), in order for the work of the Constitutional Court to continue to be carried out in accordance with the Constitution of Bosnia and Herzegovina and be legitimate (question 4) the selection of ad hoc judges would have to be done by the same authorities as foreseen in the Constitution (question 3), namely the House of Representatives of the Federation of Bosnia and Herzegovina and the National Assembly of Republika Srpska.

36. Furthermore, in response to the fifth and sixth question, considering the overarching constitutional principle of a functioning Constitutional Court, the Venice Commission finds that allowing acting judges to continue their mandate beyond the age of 70 until a successor is appointed would not run counter to Article VI(1)c of the Constitution of Bosnia and Herzegovina (question 5) and that, in case the term of the current judges is indeed extended, the work of the Constitutional Court would continue to be in accordance with the Constitution and therefore legitimate (question 6). Given the status of the Rules of the Constitutional Court in the hierarchy of norms, such a possibility can be and would need to be stipulated in the Rules (question 6).

37. As for the use in Bosnia and Herzegovina of practices similar to those at the European level (e.g. ECtHR) (question 7), the Venice Commission is not aware of any other practices that could be used by analogy for the situation in Bosnia and Herzegovina. Regarding potential antideadlock mechanisms that could be applied (question 8), the Venice Commission considers that various anti-deadlock mechanisms would be a useful complement to the current system but would require constitutional amendments. At the level of the entities, it could be envisaged in the Federation of Bosnia and Herzegovina to introduce an anti-deadlock mechanism to nominate candidates directly to the House of Representatives, in case of continued inaction of the Commission for Selection and Appointments over a specified period of time, but in order for the selection process itself to be taken away from the House of Representatives constitutional amendments would again be needed. Similarly, constitutional amendments would also be needed for the selection process to be carried out by any other body than the National Assembly of Republika Srpska in case of continued refusal to appoint constitutional judges.

38. The Venice Commission recognises that the above solutions are limited in scope and will not remedy the situation in a truly satisfactory manner. A viable, lasting solution can only be found with the bona fide engagement of all relevant political stakeholders, in particular the authorities of the two entities. The Venice Commission stresses once again that the mandate and powers of institutions of the state of Bosnia and Herzegovina must be respected in order to allow them to fulfil their legitimate institutional objectives. It therefore urges the authorities of the Federation of Bosnia and Herzegovina and Republika Srpska to be guided by the principle of loyal cooperation between state and entity organs and fulfil their constitutional obligations, appointing judges to the Constitutional Court without further delay.

Venice Commission, Opinion No. 1176/2024 on certain questions relating to the functioning of the Constitutional Court of Bosnia and Herzegovina, 18 March 2024

Adopted by the Venice Commission at its 134th Plenary Session (Venice 10-11 March 2023)

77. The Venice Commission welcomes the establishment of a separate court of appeal as well as regulating the issues of the two State level courts in one single law. The Venice Commission also notes a number of improvements and clarifications made in the Draft Law as compared to the previous drafts.

78. The Venice Commission also notes with satisfaction that in their comments of 8 March 2023 the Ministry of Justice of Bosnia and Herzegovina accepted most of the recommendations of the draft Opinion and committed to implementing the necessary changes to the laws. The Venice Commission appreciates the authorities’ willingness to follow the recommendations and emphasises that incorporating these changes will significantly enhance the draft Law’s compliance with the principles of fair trial and independence of the judiciary.

79. As to the Draft Law as such, the Venice Commission makes the following recommendations:

• First and foremost, other legislation currently in force (in particular the law on the High Judicial and Prosecutorial Council, and the procedural codes) should be harmonised with the provisions of the Draft Law;
• The Venice Commission recommends refraining from organising courts strictly along ethnic lines but providing that the composition of the State level judiciary should reflect the diversity of the society of Bosnia and Herzegovina and the judiciary shall be generally representative of the peoples of Bosnia and Herzegovina, as required by the Constitution of Bosnia and Herzegovina;
• Provisions defining the jurisdiction of the Court might be clarified further, in particular, the criterion of large scale damage to “the institutions of Bosnia and Herzegovina” as well as the “international obligations” of Bosnia and Herzegovina could be re-formulated as proposed above (paras. 42 and 43), and a constitutional entrenchment of the basic features of the State court system might be considered;
• The composition of the panels in the Courts and the method of allocation of cases to individual judges should be based to the maximum extent possible on objective and transparent criteria established in advance by the law or by special regulations based on the law (like the Courts’ internal rules). It is commendable that the authorities of Bosnia and Herzegovina have committed to making the necessary changes to comply with this recommendation;
• The Draft Law should provide a proper division of administrative functions between the HJPC and the Ministry of Justice in the sphere of court management, in particular by replacing the reference to the general monitoring power of the Ministry with a list of more specific powers of court administration. The authorities in Bosnia and Herzegovina expressed willingness to implement this recommendation which is to be welcomed;
• The criteria of evaluation of judges should be defined in the law on the HJPC and the possibility for the court presidents to evaluate the performance of the judges/lower presidents should at least be circumscribed by involving the High Judicial and Prosecutorial Council in this process;
• The place of the seat of the courts should be defined on the basis of an evidence-based analysis of the impact of the seat location on the prosecution services, detention facilities and penitentiary institutions, legal aid services and the efficiency of justice in general, as well as the security issues related to parties.

80. The Venice Commission reiterates that despite these remarks, it supports the main purpose of the Draft Law – to create two levels of courts at the State level – and welcomes the readiness of the authorities of Bosnia and Herzegovina to reform the State level judiciary in order to bring it closer to the European standards. The Venice Commission is also hopeful that the authorities will implement the recommendations contained in its 2012 Opinion on Legal Certainty and the Independence of the Judiciary in Bosnia and Herzegovina. It remains at the disposal of the authorities of Bosnia and Herzegovina for further assistance in this matter.

Venice Commission, Opinion on the draft law on Courts of Bosnia and Herzegovina, 14 March 2023