**PRIORITIES AND PARTNERS:**

**DEVELOPING THE RULE OF LAW**

**IN BOSNIA AND HERZEGOVINA**

**June, 2003**

> Mark Dietrich, Consultant
>
> Jose Garzon, USAID/E&E/DG
>
> Robyn Goodkind, USAID/BiH
>
> Margaret O'Donnell, USDOJ

**[TABLE OF ACRONYMS]{.underline}**

ADR Alternative Dispute Resolution

AJPRS Association of Judges and Prosecutors of the RS

ALPS Administrative Law and Procedural Systems Reform Project of IRIS

BiH Bosnia and Herzegovina

CC Constitutional Court

CEELI Central Europe and Eurasia Law Initiative of the American Bar
Association

CHF Cooperative Housing Foundation

CIDA Canadian International Development Agency

CIPRU The Criminal Institutions and Prosecutorial Reform Unit of OHR

COE Council of Europe

CSpi Public Advocacy Center of CEELI

DFID British Department for International Development

DOJ United States Department of Justice

DPA Dayton Peace Accord

ECHR European Convention on Human Rights

ERO Economic Restructuring Office of USAID

EC European Commission

EU European Union

FOIA Freedom of Information Act

GTZ German International Development Program

HRC Human Rights Chamber

HJPC High Judicial and Prosecutorial Council

ICITAP International Criminal Investigative Training Assistance Program
of DOJ

IJC Independent Judicial Commission

IMF International Monetary Fund

IRIS Institute for the Reform of the Informal Sector of the University
of Maryland

JPTC Judicial and Prosecutorial Training Center

JSAP Judicial System Assessment Program of the United Nations

KM Convertible Marks

MOJ Ministry of Justice

NGO Non-governmental Organization

OHR Office of the High Representative

OPDAT Office of Overseas Prosecutorial Development, Assistance and
Training of DOJ

OSCE Organization for Security and Cooperation in Europe

RIA Regulatory Impact Assessment

RLA Resident Legal Advisor of DOJ

ROL Rule of Law

RS Republika Srpska

SC Supreme Court

SIDA Swedish International Development Agency

UNHCR United Nations High Commission for Refugees

USAID United States Agency for International Development

USG United States Government

**[TABLE OF CONTENTS]{.underline}**

**Executive Summary . . . . . . .**

I.  **Introduction . . . . . . . 1**

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A.  Background . . . . . . . 1

B.  General Observations . . . . . . 2

> *Alienation and Building Local Capacity* . . . . 2
>
> *Strategic Planning and Donor Coordination* . . . 3
>
> *Implementation* . . . . . . . 4
>
> *Resource Targeting* . . . . . . 4

II. **Legislative Development and Implementation . . 5**

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A.  Harmonizing and Streamlining . . . . . 5

B.  Drafting Capacity and Transparency . . . . 8

C.  Implementation . . . . . . . 9

D.  Recommendations . . . . . . 10

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III. **Judicial/Court Reform . . . . . . 13**

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A.  Organization . . . . . . . 14

> *State Level Courts* . . . . . . 14
>
> *Federation Courts* . . . . . . 15
>
> *RS Courts* . . . . . . . 17
>
> *Judicial Associations* . . . . . . 18

B.  Issues . . . . . . . . 18

> *Budgeting and Management* . . . . . 18
>
> *Case Management and Backlog* . . . . . 20
>
> *Work Conditions* . . . . . . 22
>
> *Training and Information* . . . . . 22
>
> *Quality of Judges* . . . . . . 24

C.  Recommendations . . . . . . 24

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IV. **Access to Justice . . . . . . 26**

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A.  Right to Representation . . . . . . 26

> *Criminal Matters* . . . . . . 26
>
> *Civil Matters* . . . . . . . 27

B.  Donor Activities . . . . . . . 27

C.  Recommendation . . . . . . 28

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V.  **Criminal Justice Reform . . . . . 29**

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A.  Overview . . . . . . . . 29

> *OPDAT* . . . . . . . . 30
>
> *ICITAP* . . . . . . . . 31

B.  Recommendations . . . . . . 32

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VI. **Bar Reform . . . . . . . 32**

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A.  Overview . . . . . . . . 32

B.  Issues . . . . . . . . 33

C.  Recommendations . . . . . . 34

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VII. **Administrative Law Reform . . . . . 34**

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A.  Overview . . . . . . . . 34

B.  Current Donor Activities . . . . . 35

C.  Recommendations . . . . . . 37

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VIII. **Legal Education . . . . . . 37**

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A.  Overview . . . . . . . 37

B.  Donor Activities . . . . . . 39

C.  Recommendations . . . . . . 39

**PRIORITIES AND PARTNERS:**

**DEVELOPING THE RULE OF LAW IN BOSNIA AND HERZEGOVINA**

**[Executive Summary]{.underline}**

**I. Introduction**

Between February 24 and March 13, 2003, a four person team conducted an
assessment on behalf of the USAID/Bosnia Democracy Office in Sarajevo of
the rule of law (ROL) sector in Bosnia and Herzegovina (BiH). The
primary objectives for the assessment were to review and assess current
ROL efforts in BiH, identify and prioritize needs in the ROL sector, and
to recommend prioritized programs and approaches for the U.S. government
(USG) generally and USAID more specifically for the next 3 to 5-year
period in this crucial sector.

Strengthening the ROL in BiH has recently received renewed attention
from the international community. During the past couple of years,
largely through laws imposed by the Office of the High Representative
(OHR), BiH has taken some important steps forward, including imposition
of the new laws on the High Judicial and Prosecutorial Councils. New
codes on criminal procedure, criminal offenses, civil procedure, and
enforcement of civil judgments are expected to be enacted by the
relevant parliaments soon. Important new institutions have been created,
including the High Judicial and Prosecutorial Councils (HJPCs), which
are currently implementing a process for the review and appointment of
all judges and prosecutors in both entities and which will soon take
over management and budgeting responsibilities for the courts, as well
as oversight for training and ethics; a new BiH level State Court (and
prosecutor's office), responsible for hearing important organized crime
cases, war crimes cases, and other matters of state jurisdiction; and a
new BiH level Ministry of Justice (MOJ), which, among other things, will
be responsible for helping to harmonize law and practice among the state
and the entities.

While the achievements have been significant, many challenges remain. As
a preliminary matter, the team found that the Bosnian legal community is
not deeply enough involved in the process of reform and could even be
said, at least in some instances, to be alienated from it, a situation
to which parts of the international community contribute. OHR's
authority to impose legislation and remove officials means that reform
can move forward more quickly than in some other countries, but it also
enables the various governments in BiH to cede decision-making to OHR
and shirk their responsibilities to the citizens. There are at least two
serious repercussions: first, developing the capacity for true
self-governance, including the messy democratic business of reaching
compromises, is stilted. Second, the citizens, who feel that they are
not consulted in the development of the law, have little ownership in
it, and do not feel bound by it. Accordingly, the team recommends that
the international community work towards indigenizing the process of
legal reform. For the USG, this may involve shifting some funding from
direct support of international organizations to technical assistance
aimed at building the capacity of local governmental and
non-governmental organizations involved in legal reform.

As a part of the process of indigenizing reform, the international
community should develop a joint working group with key Bosnian
institutions that would help to guide future reforms. This group could
develop a strategic vision and facilitate donor coordination, two other
areas of overarching concern.

In addition, the team recommends that more emphasis be placed on the
implementation of new laws. While drafting new legislation is relatively
simple, the changes that are being introduced in some cases, such as
with the criminal procedure code, are almost seismic in nature.
Implementation requires not only training of judges, prosecutors,
lawyers, and police (as is being done, to a large degree), but also the
embedding of experts into key institutions, and engaging in public
education.

Finally, in terms of resource targeting, the review of donor supported
programs revealed a possible over-emphasis on law enforcement matters.
For a variety of reasons, this clearly is essential work but the team
felt that a greater emphasis needs to be placed on the pressure points
where citizens are more likely to encounter the justice system, such as
in the administrative law area, with particular attention to the
linkages between central and municipal levels of government. An
increased emphasis on commercial law, to help foster the economic
development that the country so desperately needs, which will be
addressed at least in part by a program to be designed and implemented
by USAID's Economic Restructuring Office (ERO), is also to be welcomed.
Even in the area of criminal law, the team observed an important gap, in
the representation of indigent defendants. Bar development and access to
justice are two related issues that have been under-emphasized.

All of the following recommendations are important, and in an ideal
world would be pursued. Recognizing resource restrictions, however, the
team considers the following, in order of priority, to be the most
urgent for USG programming:

-   First, build the capacity of the HJPC through training and shadowing
    of key personnel to prepare it for its new tasks of managing the
    courts and securing funding for them. (Recommendation III.1).

-   Second, improve the implementation of the emerging legislative
    framework, in particular the new procedural codes, by embedding
    experts within key institutions (judiciary, prosecution bodies, and
    the bar), engaging in public education, and strengthening ongoing
    training programs. (Recommendation II.2).

-   Third, implement a uniform and nationwide court administration
    project that would address current backlogs and introduce modern
    case management procedures. (Recommendation III.2).

-   And finally, begin the process of establishing a countrywide legal
    aid system by conducting an in-depth assessment and, in conjunction
    with local authorities and other donors, developing an
    implementation plan. (Recommendation IV.1).

These and other recommendations and findings, some with ramifications
for the broader donor community and for the Bosnians themselves, are set
out in detail below.

**II. Legislative Development and Implementation**

*1.a. Strengthen the State MOJ: Build Local Capacity to Draft and
Harmonize Legislation*

[Goal]{.underline}: Reverse the current process of legislative drafting
so that Bosnians are making and passing their own laws with the
assistance, where appropriate, of the international community, instead
of the other way around. A secondary goal would be to assist the local
partner (e.g., the State MOJ) to take a leading role in coordinating
legislative drafting assistance, by establishing a clearinghouse to keep
track of which organizations are working on which laws, determining
which drafts may address similar issues, and ensuring that those issues
are addressed in a uniform fashion. This process should also be geared
to result in greater harmonization of the legislative framework at the
state and entity levels. The ultimate goal is for more laws, developed
with full local participation and ownership, to be enacted by the
assemblies rather than imposed by OHR.

[Local Partners:]{.underline} A State governmental body, such as the
State MOJ, or a local NGO or think-tank dedicated to legislative
development. The State MOJ would clearly need extensive assistance in
building its capacity to do this work, but providing that assistance
would also build the credibility and sustainability of this new
State-level organization.

[Donor Role]{.underline}: This will take a concerted effort on the part
of the entire donor community, and OHR must take the lead. As a part of
this process, OHR and other leaders in the international community
should expend more capital in working with the local political
leadership and citizens themselves to engage with OHR in the rule-making
process and to reach compromises among themselves that are acceptable to
OHR. OHR should seek to include governmental representatives on working
groups that draft legislation. The USG can help the targeted local
partner (e.g., the MOJ) by providing material support and extensive
technical assistance to help it put into place processes for reviewing,
harmonizing, and drafting legislation. This project could and should be
implemented in conjunction with the following recommendation relating to
legislative transparency.

[Timeframe:]{.underline} 2003-2008

*1.b. Improve Transparency of Legislative Processes*

[Goal:]{.underline} Improve the transparency of and level of public
participation in legislative processes, as practiced both by OHR and
government bodies, in particular the State MOJ if Recommendation 1.a.,
above, is implemented. In order to accomplish this goal, OHR and the
other lawmaking bodies should conduct open hearings on draft
legislation, include more local Bosnian institutions (such as the bars
and the law schools) in the drafting process, and encourage professional
groups and NGOs to speak out publicly on draft legislation.

[Local Partners:]{.underline} State and entity assemblies, the State and
entity level MOJs, NGOs, professional (bar and judicial) organizations,
law schools.

[Donor Role:]{.underline} Again, OHR must take the lead on this and set
an example for the local legislative bodies and the State MOJ to follow
in terms of transparency and inclusiveness. Existing USG programs can
help to build linkages between OHR and the bar associations, judicial
associations, law faculties, NGOs, and other groups interested in
legislative development so that those groups are consulted as a matter
of course, and on an institutional level, rather than on the current ad
hoc basis. At the same time, current USG grantees and contractors
working with these groups should help them to build their capacity to
engage in legislative advocacy. In addition, OHR and governmental
legislative drafting groups should pay more attention to the political
process of law making, by involving representatives or assembly staff
members on the drafting groups, in an effort to improve the likelihood
that the laws will be passed rather than imposed.

[Timeframe:]{.underline} 2003-2008

*2. Technical Assistance and Training to Legal Professionals: Improve
Implementation of New Legislation*

[Goal:]{.underline} As in many countries in transition, perhaps too much
attention is paid to drafting legislation rather than implementing it.
Considering the enormous shifts in BiH's evolving legislative framework,
in particular relating to the procedural codes, the donor community
should emphasize implementation of these new codes, which will require
greater training efforts and more institution building, as well as
targeted public education campaigns.

[Local Partners]{.underline}: Judges, prosecutors, members of the bar.

[Donor Role:]{.underline} The USG should take the lead in assisting key
institutions to implement the new codes. In terms of training, the new
Judicial and Prosecutorial Training Centers (JPTCs) will conduct future
training of judges and prosecutors, but a lacuna now exists, pending the
creation of those centers. In the meantime, various USG programs (and
others in the donor community) are picking up the slack. That work
should continue. One gap is that there is no training institution for
lawyers, and an effort should be made either to enable lawyers to attend
some of the future institutional trainings or for the bars to create
their own training institution. While more training needs to be done
(the training that has taken place for the bar, for example, has only
scratched the surface of the needs), training alone will not be
sufficient. Ensuring implementation will also require embedding experts
within key institutions to act as a resource, developing and
disseminating manuals, and teaching future judges, prosecutors, and
private lawyers -- in other words and ensuring that law school
professors have and use in their courses the commentaries that are
developed for judges, prosecutors, and lawyers. Some train the trainers
sessions for law professors would also be appropriate. In addition,
observers can monitor important cases to see how the new codes are being
used in practice, and to recommend changes to training courses or the
laws themselves, as required. Most importantly, a holistic approach
needs to be taken. Some substantial plans are in place to provide
technical assistance to judges and prosecutors, particularly on new
criminal codes, but experts also need to be placed with the lawyers, as
a resource and a point of ongoing training with the bars. Finally, a
certain amount of targeted public education may also be necessary so
that the public knows how to use the new legislation and so it does not
feel threatened by an apparent loss of existing rights and procedures.
All of this could be started immediately by contractors and grantees
that are already in place. It should be noted that, given BiH's goal of
further European integration, as well as the fact that BiH's legal
traditions are firmly based in continental law, it is logical for the
USG to cede the area of substantive legislative drafting to European
organizations and to focus instead on implementation.

[Timeframe:]{.underline} 2003-2007

*3. Complete the Preparation of a Full Local Legal Database*

[Goal:]{.underline} To establish a fully searchable legal database that
would include all legislation applicable in BiH, as well as court
decisions from the constitutional and supreme courts, and important
governmental regulations. Such a database would not only improve access
to the law for judges, prosecutors, and lawyers, it would also
facilitate the process of streamlining and harmonizing the legislative
framework.

[Partner:]{.underline} The State MOJ.

[Donor Role:]{.underline} GTZ, the German donor program, has already
taken some important steps in this regard, but its work has been limited
to the Federation. Other donor organizations can help to extend this
effort to cover all laws and important court decisions in the country.

[Timeframe]{.underline}: 2004-06

4*. Conduct a Regulatory Impact Assessment*

[Goal:]{.underline} Conduct a Regulatory Impact Assessment (RIA).
Although a full review of the process of legislative drafting was beyond
the scope and capacity of the team's work, it became clear that there is
a gap, both at OHR and at the government levels, between the anticipated
results of new legislation and the reality of how new legislation can be
implemented. The RIA would review how the government and OHR collect and
use information and statistics in the development of legislation, and
how they allocate funding and resources when legislation is implemented.

[Partners:]{.underline} The assemblies and MOJs.

[Donor Role]{.underline}: Again, this is a project that would require
full OHR participation and backing. The World Bank has experience in
conducting RIAs, and would be a natural organization to conduct one in
BiH. The British Department for International Development (DFID) is
currently working with the MOJs and Ministry of Interior on budgeting
and funding in the justice sector, and should be involved as well.

[Timeframe]{.underline}: 2003-2005

**III. Judicial/Court Reform**

*1. Build the Capacity of the HJPC and Improve Financial Support to the
Courts*

[Goal:]{.underline} To build the capacity of the HJPC to manage the
court and prosecutorial systems. The new HJPC is charged with much of
the managerial oversight of the courts that was previously done by the
MOJs, including developing budgets, overseeing appointments and ethical
investigations, and overseeing the work of the JPTCs. Current law
suggests some conflict between the authorities of the MOJs and the HJPC
with respect to court budgets, but the Independent Judicial Commission
indicates that such conflicts should be resolved in the near future. In
any case, the HJPC will need help developing and training a full time
staff, including the executive director, as well as technical
assistance, mentoring, and training in budget development, lobbying for
budget allocations, overseeing ethical investigations, and overseeing
the JPTCs. As a part of the budgeting process, the donor community
should encourage the entities and the State to agree (by legislation or
otherwise) to allow a percentage of the fees and fines that the
judiciary generates be returned to the court system, to allow adequate
financing and development of the courts. Such a program could and should
be done in conjunction with the court administration reform program that
is described in the next recommendation.

[Partner:]{.underline} The HJPC and the IJC (until the end of its
mandate).

[Donor Role:]{.underline} This is an area where the USG can take the
lead by, for example, providing experts to shadow and assist key
positions at the HJPC as they begin their work. Additional expertise and
mentors, as well as material support, will be needed to help with the
more specific areas of responsibility, such as court reforms, budgeting,
ethics, and supervising training.

[Timeframe:]{.underline} 2003-2007

*2. Court Administration Reform*

[Goal:]{.underline} To help the judiciaries systematically address the
current case backlog and to put into place systems for efficiently
handling their future caseload.

[Partners:]{.underline} The HJPC, the judiciaries.

[Donor Role:]{.underline} Although some in the donor community are
already working on this issue, in limited capacities, and a more
in-depth assessment is being prepared by the USAID Economic
Restructuring Office (ERO), the donor community and the judiciaries in
BiH need to take a more holistic approach to the issue of court
administration and caseload. For example, citizens, it seems, file the
same claim in multiple jurisdictions, such as with the court system, the
HRC, and the ombudsmen. Other claims may no longer be ripe, insofar as a
settlement may have been reached or the need for the lawsuit was
vitiated by executive or OHR action. Technical assistance provided by
the USG could help the various systems review the older pleadings,
determine whether they are still ripe for review, and if they are
prioritize them for immediate action (if they are no longer ripe, they
should be dismissed and the docket cleared). The new Bosnian judges, and
in particular the court presidents, need to take the lead in addressing
the backlog, and be willing to handle more cases than they are required
to under the current quota system (which perhaps should be done away
with). Looking to the future, and based on the existing studies and
pilot programs, new case tracking, case management, docketing, and
automation techniques should be developed and introduced, but only on a
national level, not a pilot basis -- the country is simply not that
large and the costs are not that great. The donor community needs to
work closely with the Secretariat of the HJPC on the issue of court
administration and management. In cooperation with the HJPC, donor
organizations that have the funding and expertise to implement the
reforms on a national basis should be identified. The implementation of
the new procedural codes, which provide some mechanisms for more
efficient judicial processes, should be hastened, with in-depth training
for judges and clerks. In general, clerks should be given more
responsibilities and be trained to handle them. Finally, another
significant cause of delay is the failure to execute judgments. Although
a new law on this is expected to pass the Entity Parliaments sometime
this year and some training has already been conducted, judges with whom
the team met did not seem familiar with the law, and as with the other
areas of new legislation a greater emphasis needs to be placed on
implementation, which may require the "shadowing" of the enforcement
clerks and additional training for the judicial police.

[Timeframe:]{.underline} 2003-2007

*3. Conduct Targeted Training of Judges*

[Goal:]{.underline} Although the JPTCs should in the medium to long term
provide the training that judges need, there are some areas of specific
need that are not being addressed and in which training is required
immediately. As noted above, this continued training is an important
part of the recommended approach for improved implementation of the
legislative framework.

[Partners:]{.underline} HJPCs and the judicial associations.

[Donor Role:]{.underline} The JPTCs are slated to receive significant
support from the COE, and so the USG should step back from providing
them with significant funding at this time. Considering, however, that
the JPTCs may not be operational for a while yet, the USG should
maintain its high level of training activities for judges, in particular
on the new procedural codes. (As discussed elsewhere, more than training
should be provided; technical assistance, in the form of experts
embedded with the judiciary and training manuals should also be
provided). ERO should consider providing intensive training to the new
commercial judges, once they have been selected, on issues such as
bankruptcy, competition law, and intellectual property. The new State
Court seems to be receiving sufficient training from other sources, but
the USG may want to start to help it address its future war crimes
docket by providing training and the technology necessary to link it
with the Hague court, an area where this new court is not receiving any
assistance.

[Timeframe:]{.underline} 2003-2007

**IV. Access to Justice**

*1. Establish a Legal Aid (Criminal/Civil) System*

[Goal:]{.underline} To develop a public defender or legal aid system for
BiH. Even under the new criminal procedure code, only criminal
defendants who are facing potentially three years or more in prison have
the right to free representation. This is still a considerable period of
confinement.

[Partners:]{.underline} The MOJs, NGOs.

[Donor Role]{.underline}: Establishing a national public defender or
legal aid system is an expensive undertaking, but it is important
because the lack of meaningful representation, at both the criminal and
civil levels, jeopardizes other reforms and endangers public confidence
in the legal system. In addition, under the new criminal procedure code,
a greater emphasis is placed on the role of the advocate, and so it will
be even more important for the indigent accused to have access to
capable counsel. Establishing a legal aid center will require close
donor coordination and, in order to be sustainable, a strong
governmental partner. The Open Society Institute (Soros) is the only
donor that has taken a direct interest in this area, and would be an
important partner, but it does not have the capacity or resources to
develop a national or even entity level public defender's office. The
role of the USG at this point should be to catalyze the donor community
and the governments in BiH to recognize the importance of this issue. It
should do this by commissioning an in-depth study of the issue, followed
by a conference with the government and other donors on improving access
to justice. The report should begin to look at issues relating to the
size of such an office, make cost estimates, determine at what levels
citizens would be entitled to representation in criminal and civil
matters, etc. In the longer term, the EU and other donors will need to
be brought in (the legal framework should perhaps be based on European
models, for example), and USG assistance perhaps can be limited to
training and technical assistance. In addition, the creation of such a
system should also include a strong public education component.

[Timeframe:]{.underline} 2004-2007

**V. Criminal Justice Reform**

## 

Other than supporting the HJPC and establishing the public defender
system described above, the team does not make any recommendations for
new programs relating specifically to criminal justice reform. The DOJ
and ICITAP programs appear to be largely successful, but a full
evaluation was beyond the scope of this assessment. A more comprehensive
evaluation should be undertaken in the near future in order to
specifically identify impact, inform 2004 budgeting decisions, and
establish a timeline for phasing out these programs. As noted in other
recommendations, additional initiatives in terms of training and
technical assistance to the bar and other institutions are necessary to
ensure fair and full implementation of the new criminal and criminal
procedure codes.

Finally, the need for reform of the penitentiary system came up
frequently, but was beyond the scope of the team's review. This area
also warrants further study and recommendations.

**VI. Bar Reform**

The USG should continue its efforts in bar development and
professionalization, including facilitating the dialogue on a potential
merger of the bars in the two entities. Two other recommendations for
bar reform are largely subsumed in the other recommendations. First, the
donor community can help to develop the bars' legislative advocacy
skills so that the opinions of the bars are heard in the development of
legislation. The Bar should create a committee on legislative advocacy
that would work to address this concern, and to improve lines of
communication both with OHR and the Federation and State Assemblies and
MOJs. USAID programs should be able to assist them to develop this
"lobbying" capacity. Second, recognizing the increased importance of the
role of the advocate in Bosnia's evolving legal system, the bar needs to
take an institutional approach towards training its members, either by
being included in the training already provided and planned for judges
and prosecutors, or by establishing its own legal training center.

[Timeframe]{.underline}: 2003-2007

**VII. Administrative Law**

[Goal:]{.underline} To strengthen administrative laws, procedures, and
practices in order to improve access to justice.

[Local Partners:]{.underline} Municipal governments, NGOs, media, MOJs

[Donor]{.underline} Role: The current USAID administrative law project,
which is limited in scope to the Federation, should be monitored and, if
successful, should be expanded nationally. In particular, strengthening
transparency in rulemaking at the municipal level, improving the
application of administrative law at the municipal and basic court
levels, improving the municipal and cantonal inspectorate systems,
expanding law clinic programs, and providing additional legal training
to judges and other professionals should be adopted countrywide. A part
of monitoring the success of these programs may involve conducting
surveys or focus groups to test the pulse of the country with respect to
the state of service delivery. Success may also indicate a greater
emphasis on public education campaigns, but only to reinforce concrete
results. An essential component of administrative and municipal reform
efforts in the ROL sector is citizen advocacy. One USAID program has
successfully established a legal advocacy center for pursuing free
access to public information by NGOs, journalists, and other citizens.
Such activities should be expanded and should be incorporated into
administrative law projects, which, among other things, seek to improve
the access to justice at the grassroots level. Similar advocacy
initiatives could be structured to include other segments of society and
address other legal needs. \"Supply side\" reform may be furthered
through USAID administrative law projects that rationalize procedures
and laws in a given sector. A project to codify and rationalize the laws
and regulations in that sector (e.g., urban policies that affect
business or housing) should be considered.

[Timeframe]{.underline}: 2004-2008

**VII. Legal Education**

Although addressing the problems that plague the legal education system
is critical, the USG should not become too deeply involved in legal
education reform, pending the full assessment that the Council of Europe
(COE) will soon conduct. Once that report is issued, the USG should
review it to determine whether cooperative interventions would be
appropriate. In the meantime, USG programs should, at the very least,
ensure that professors have copies of the new procedural codes, and
commentaries on them, and that they are teaching these codes in the
classroom. One of USAID's current grantees or contractors should convene
a series of train the trainers sessions on these new codes to make sure
that the professors understand them and will teach them. The USG could
also provide some transitional support, pending the introduction of the
COE program, by endowing a competition of some kind for which law
professors would apply for funding to develop new courses on emerging
topics, in particular relating to commercial law. This could be
implemented by existing USAID programs.

**PRIORITIES AND PARTNERS:**

**DEVELOPING THE RULE OF LAW IN BOSNIA AND HERZEGOVINA**

**I. INTRODUCTION**

A. [Background]{.underline}

Between February 24 and March 13, 2003, a four person team conducted an
assessment on behalf of the USAID/Bosnia Democracy Office in Sarajevo of
the rule of law (ROL) sector in Bosnia and Herzegovina (BiH).[^1] The
primary objectives for the assessment were to review and assess current
ROL efforts in BiH, identify and prioritize needs in the ROL sector, and
to recommend prioritized programs and approaches for the U.S. government
(USG) generally and USAID more specifically for the next three to five
year period.

The legal system of BiH traces its roots to the Austro-Hungarian Empire
that ruled the region between 1878 and the outbreak of the First World
War. That system was one of the more sophisticated of its day, and
jurists from BiH point with pride to their legal heritage. Even after
the Second World War, when BiH was a part of Socialist Yugoslavia, the
legal system, which included a constitutional court and a relatively
independent judiciary, was one of the more liberal and advanced in
Central and Eastern Europe. The legal system, along with much of the
rest of the region's social structures, was shattered by the
disintegration of the Yugoslav state and the subsequent tripartite
ethnic war among Serbs, Croats, and Bosniaks. The war, which raged for
three years from 1992 -- 95, was marked by "ethnic cleansing" and the
extended and brutal siege of Sarajevo. The war ended only upon the
intervention of NATO and a peace accord agreed to by (or imposed on) the
warring parties in Dayton, Ohio in 1995.

Annex 4 of the Dayton Peace Accord (DPA) set forth a new constitution
for BiH. Under that constitution, the State of BiH was divided into two
entities, the Republika Srpska (the RS) and the Federation of Bosnia and
Herzegovina (the Federation). The RS consists mostly of the ethnic Serb
parts of the country, and the Federation, made up of 10 cantons, covers
the predominantly ethnic Bosniak and Croat parts of the country. Five of
the cantons are dominated by Bosniaks, three have a Croat majority, and
two are mixed Croat and Bosniak. A third part of the country, Brcko, was
set aside as essentially an international foreign protectorate. Each
entity has its own prime minister, assembly, and court system. The
Dayton agreement called for the creation of only a very limited national
government, with a tripartite rotating presidency and a national
assembly, but only one national court, the State Constitutional Court
(State CC). (Another national court, the State Court, described *infra*,
was created in May 2000). The DPA also established an international
civilian authority, the Office of the High Representative (OHR), to
supervise the implementation of the peace plan and the development of a
new government for BiH. OHR has the power to impose and rescind
legislation at all levels of government, as well as to remove
individuals from government positions.

The RS and the Federation have parallel legal systems. The RS has a
constitutional court that hears matters related to the RS constitution,
a supreme court that acts as the final court of appeals for most matters
in the RS, and two tiers of lower courts, the higher of which are called
district courts and the lower of which are called basic courts. These
courts are managed by the RS Ministry of Justice (RS MOJ). The
Federation also has a constitutional court and a supreme court, as well
as municipal and cantonal courts in each canton. The cantonal and
municipal courts are largely funded and managed by the 10 cantonal
ministries of justice.

Needless to say, the legal framework that has developed under the DPA is
extraordinarily cumbersome, with conflicting laws drafted and
implemented and interpreted by parliaments, agencies, and courts from
(at a minimum, not even counting the 10 cantons) two different levels of
government (the State and the two entities). Several representatives of
the international community argued passionately and convincingly that
while the DPA succeeded in stopping the war, it does not provide the
basis for a viable nation-state on the territory of BiH. Arguably, a
country with a population of less than four million cannot afford the
inefficiencies that are inherent to the current structure, and the
economic development of the nation requires the harmonization of laws
and practices that is unlikely to occur under the current framework.
These critics suggest that the DPA should be dispensed with, together
with the cantonal system, and that a new legal system which would
provide the basis for a more unitary state, be crafted to replace it.
The team was made acutely aware of the limitations on legal reform
inherent to current structures based on the DPA, but has decided to
confine its recommendations to what it believes is feasible under the
DPA. At some point the DPA may well need to be revisited and a new
constitution drafted, but that will be at a time for the Bosnians to
determine. (It should be noted that most people in the RS who were
interviewed by the team seemed, at best, interested in maintaining the
status quo rather than pursuing a merger with the Federation.)
Nevertheless, the recommendations that follow do seek to build further
linkages between the two entities, encourage further harmonization of
their legislative frameworks, and to build the State and municipal level
government agencies that will provide the cornerstones for a more viable
and efficient state structure in the future.

B. [General Observations]{.underline}

*Alienation and Building Local Capacity*

One of the strongest impressions made upon the team is the sense of
alienation that many in the Bosnian legal community feel from the
process of ROL reform, which is perhaps symptomatic of a larger chasm
that exists between Bosnian citizens and their governments. This
alienation or distrust is probably due, in part, to a lack of confidence
in government structures based on the fiasco -- a civil war -- that
resulted when the citizenry last placed its trust in government.
However, the international community, as represented by OHR, contributes
to and, to a certain extent, enables this alienation. OHR's authority to
impose legislation and remove officials means that the various
governments in BiH can cede decision-making to OHR and shirk their
responsibilities to citizens. There are at least two serious
repercussions: first, developing the capacity for true self-governance,
including the messy democratic business of reaching compromises, is
stilted. Second, the citizens, who feel that they are not consulted in
the development of the law, have no ownership in it and thus do not feel
bound by the rule of law. The international community needs both to
involve Bosnians more in the process of planning and prioritizing legal
reform activities overall and, more specifically, to work to enable the
Bosnians to make and pass their own laws -- with the assistance, where
appropriate, of the international community -- instead of the other way
around. This will involve developing the ministries of justice and other
players in the legal community, including judges, the bar, and
academics, into partners for the reform process. Indigenizing the
process of legal reform also calls into question the practice of using
judges seconded from other countries to assist in adjudication, as is
done at the State Constitutional Court and the new State Court, both of
which are described in more detail [infra.]{.underline}

Accordingly, the team recommends that donor organizations do more to
build the local capacity of Bosnian institutions in order to indigenize
the process of reform. For the USG, this may mean shifting some funding
priorities.   While current funding to support international experts
working in OHR and other institutions may have been valuable, the
transfer of responsibility from the international community to the
Bosnian legal community looms on the horizon: the Independent Judicial
Commission's (IJC) mandate is scheduled to expire at the end of 2003,
and OHR\'s mandate is scheduled to end in 2005.  Even if these mandates
are extended, now is the time to begin preparing the Bosnians to assume
full responsibility for leading the reform process. As discussed in
detail *infra*, greater emphasis needs to be placed on supporting the
emerging Bosnian institutions, such as the High Judicial and Prosecutor
Council (HJPC) and the State Ministry of Justice, which are charged with
some important and daunting duties, than on supporting some of the
international institutions that currently enjoy significant USG support.

*Strategic Planning and Donor Coordination*

Lack of donor coordination is a frequently heard complaint, which is
unsurprising given the size of the donor community in BiH. This problem
occurs even in countries with smaller international communities. One
factor contributing to poor coordination in BiH appears to be the lack
of a long-term strategic vision for the justice sector. There is no
single vision of what the legal system of BiH will look like in five or
ten years, so far as the team could determine. This is due in part to
the fact that BiH is itself a splintered country. Ideally, the host
country should provide the strategic vision for ROL objectives and
coordinate the international assistance accordingly. In BiH, no
government agency is even close to playing that role, although the new
State MOJ is apparently (according to legislation) going to start doing
so. Instead, OHR is charged with creating the vision and coordinating
donor activities. Indeed, it has worked with the government to develop
an overall approach for its priorities in BiH ("Jobs and Justice: Our
Agenda"), but the justice section of its plan seems alternatively overly
broad and overly vague; a full picture of the future of the legal system
and a roadmap on how to get there is missing. In addition, OHR's own
priorities are given to frequent shifts -- as one person said, the
longest it can plan out is four months. Changes in personnel at OHR, due
to the fact that people are usually seconded from other governments for
limited tenures, contributes to the changing priorities. Moreover,
coordination is a challenge. OHR's Rule of Law Task force meetings
consist mainly of organizations reporting on what they are doing rather
than engaging in strategic planning. Moreover, few Bosnians are invited
to or attend these meetings. Finally, some members of the donor
community resent OHR's efforts at coordination, and feel that they can
be more effective without its guidance/interference. One OHR
representative admitted that the organization can be a bit
"patronizing."

OHR should begin to address this problem by convening a working group,
in partnership with the three MOJs and other local representatives, that
would be charged with developing a long term strategic vision for ROL
reform in BiH. This Bosnian working group should become more involved
(perhaps co-chairing with OHR the donor meetings) in the process of
coordinating donor assistance. Such a working group should, of course,
also include representatives of the judiciary, the bar, civil society,
and academia.[^2]

*Implementation*

Some of the recent changes to the legal system, in particular the
introduction of a criminal procedure code that borrows several elements
from Anglo-Saxon traditions, will require the Bosnian legal community to
undertake some seismic shifts. Although the donor community is
supporting much training to help implement these changes, such training
will not be sufficient to see that the reforms succeed (similar reforms
introduced in other countries have taken years to implement). The donor
community needs to recognize the difficulties that lie ahead and do more
to assist in the implementation of these new codes, by embedding local
and foreign experts within the offices of the judges, prosecutors, and
lawyers who will be asked to implement them. As already noted above,
this requires using technical assistance to build both the human and
institutional capacities of local officials. Implementation also
requires informing the public of their new rights (or reassuring them
that rights provided under old laws have not been taken away), and so
public education campaigns also need to be included in efforts to
improve the implementation and use of the new legal framework.

*Resource Targeting*

The review of donor supported programs revealed perhaps an over-emphasis
on law enforcement matters. This is of course a vital component of the
rule of law, in particular in BiH where the collapse of Yugoslavia and
the civil war provided fertile ground for organized crime and
corruption, and where a strong emphasis on security is necessary to undo
ethnic cleansing and enable citizens to peacefully enjoy the use of
their property. Nevertheless, the team felt that a greater effort now
needs to be placed on the pressure points where citizens are more likely
to encounter the justice system, such as in the administrative law area,
in particular at the municipal level. An increased emphasis on
commercial law, to help foster the economic development that the country
so desperately needs, which will be addressed at least in part by a
program to be designed and implemented by USAID's Economic Restructuring
Office (ERO), is also to be welcomed. Even in the area of criminal law,
the team observed an important gap, in the representation of indigent
defendants. Bar development and access to justice are two related issues
that have been under emphasized.

Another concern is in the geographic area of focus. Almost all of the
donor community's programs in the justice sector are based in Sarajevo
and focused on the Federation. Only one of the USG programs that were
reviewed maintains an office in Banja Luka. Although there is a common
perception that the RS is less open to reform, for that very reason it
should be a greater target of donor projects, and the team would
encourage the donor community in general and the USG in particular to
place more of an emphasis there (by, for example, extending the IRIS
administrative law program to include the RS) and perhaps establishing a
long-term rule of law office of some kind in Banja Luka.

The following summarizes the team's findings in each of the core areas
of legal reform, and makes recommendations that will help to address
some of the problems described above. In the Executive Summary, the
recommendations provided in this report are prioritized.

**II. LEGISLATIVE DEVELOPMENT AND IMPLEMENTATION**

A. [Harmonizing and Streamlining]{.underline}

As already noted, the body of law that makes up the legislative
framework in BiH is complicated by the fact that so many different
bodies may pass or impose legislation. These are:

-   The National (BiH) Assembly;

-   The RS Assembly;

-   The Federation Assembly;

-   The 10 Cantonal assemblies;

-   Municipal assemblies;

-   The Brcko District Assembly; and

-   OHR.

In addition, each agency throughout the government structure may issue
potentially contradictory and burdensome regulations. A further
complication is that many laws dating back to the Yugoslav era or that
were passed during the war remain in place. The result is a confusing
patchwork of law across a relatively small region that is difficult for
judges, prosecutors, lawyers, and end-users (such as businesspeople) to
know, to apply, and to follow.

In order to ensure equal protection of the law in all parts of BiH,
necessary to attract foreign investment, facilitate domestic business
transactions, and to uniformly protect human rights, harmonizing and
streamlining the laws and practices in the two entities and at the State
level should be an essential priority both for Bosnians and the
international community.

Despite the importance of this task, only one organization is actively
working towards this goal, and with limited resources. This is the Legal
Reform Unit at OHR, headed by Zoran Pajic. This unit, however, employs
only four Bosnian lawyers and two or three international attorneys. It
is unrealistic to expect this small unit, even assisted by various
working groups, to review all Bosnian legislation at the three different
levels and to propose revisions that would provide greater
harmonization. Also of concern is that, although led by a Bosnian
lawyer, this is essentially an OHR initiative. As already emphasized,
one of the challenges facing the international community in BiH is the
need to indigenize the process of rule-making and to enable the Bosnians
to take the lead in forming their own future. Right now, much
legislation in BiH, whether developed at OHR or elsewhere, is drafted by
internationals with the assistance of Bosnians instead of the other way
around. Moreover, many important laws are subsequently not adopted by
the entity or State assemblies, but are imposed by OHR.[^3]

An effort at streamlining regulations affecting businesses, "the
Bulldozer Initiative," was also driven by the international community.
OHR, together with the World Bank, the IMF, USAID, and other
international donors, sought to identify 50 regulations that
unnecessarily impede businesses in BiH. Bosnian businesspeople were
asked to submit "nominations" for the regulations that were to be
identified as the most unduly burdensome. Once the 50 regulations were
identified, the governments were asked to rescind them. The governments
reacted with some surprise at what they saw as an ultimatum, and
expressed regret that they had not been invited to participate in the
process earlier. It was unclear at the time of the team's visit how this
would play out, but if the government fails to act, OHR will rescind the
offending regulations on its own. While the goal was praiseworthy, and
the process did involve at least the Bosnian business community, it
might have been more successful had there been a government "partner"
involved from the beginning.

The challenge, of course, is finding the right partner or partners for
working on streamlining and harmonization. One potential partner is the
newly created State MOJ. It is charged by law (Art. 13, Law on
Ministries and Other Bodies of Administration of BiH, January 2003) with
harmonizing laws and practices in the two entities, but has an untested
leadership and very few resources. Nevertheless, the donor organizations
should start now building the capacity of the State MOJ to eventually
draft and propose harmonized legislation for the State and the
entities.[^4] Alternatively, an NGO or quasi-NGO could be supported that
would begin to take on this role. The point is that a local institution,
outside of OHR, needs to start taking the lead in the vital task of
harmonizing the country's legislative framework.

Another factor that contributes to the legislative hodgepodge is that
there are too many international organizations involved in drafting,
including OHR, IJC, USAID (through CEELI and IRIS),[^5] the World Bank,
and GTZ, among others.[^6] Some problems with donor coordination in the
area of legislative drafting were reported. For example, there were
conflicts between the law on obligations that GTZ helped write and a
European Union (EU) supported law on consumer protection. There are also
conflicts between the GTZ supported law on obligations and a World Bank
law on leasing. The donor community, again working perhaps with the new
State MOJ, should develop some kind of clearinghouse to assist the
Bosnians to coordinate legislative drafting efforts.

Another step that would help to sort out the current legislative morass
would be the creation of a complete, nationwide legislative database.
BiH may be the only country in the region that lacks such a complete
database (in most other countries these have been developed by
for-profit companies). GTZ is working on creating one, but it is limited
to the Federation. A full, searchable set of laws placed on a database
would facilitate the process of harmonization, and would help
information dissemination (and hence improve implementation) throughout
the country.

The challenges to streamlining and harmonizing the legislative framework
in the fragmented nation of BiH cannot be overstated. On the positive
side, however, BiH clearly sees itself moving towards European
integration. It has already, for example, joined the Council of Europe
(COE), which requires the adoption of a variety of uniform conventions,
the most important of which may be the European Convention on Human
Rights (ECHR).[^7] Moreover, BiH, together with its neighbors Serbia and
Montenegro and Croatia, is looking in the long term towards eventual
membership in the EU. This means that there is something of a roadmap
for BiH and the region to follow. This in turn would indicate that the
European countries, in particular because BiH is historically a civil
law country, should take the lead in helping to develop legislation,
whereas the USG should probably focus on the less glamorous but equally
important task of ensuring that the laws are properly implemented.

B. [Drafting Capacity and Transparency]{.underline}

Another concern is the manner in which legislation is drafted and
adopted. First, none of the MOJs at the various levels of government
have a strong capacity to draft legislation, but rather largely rely on
relatively informal working groups. In many parliamentary systems, the
MOJ is charged with both drafting key legislation and reviewing proposed
laws drafted by other ministries to ensure that they do not conflict
with other legislation and that they do comply with the constitution,
tasks which the MOJs in BiH do not seem well equipped to perform.[^8]
Also, the parliaments do not have capable secretariats or legislative
councils charged with drafting or reviewing drafts. In short, there is
little capacity within the local government or political structures to
undertake legislative drafting. On the other hand, there is some local
capacity housed within OHR, which has drafted much legislation, and
within the international donor community, whose local lawyers have
worked side by side with international lawyers to help draft
legislation. In other words, BiH is in a better position than some other
countries in transition that have not enjoyed such in-depth legislative
drafting assistance, but the capacity that has arisen within BiH as a
result is not located within any host country government structures. As
already noted, that needs to change. The donor community needs to take
advantage of the human capacity development that has occurred, and
transfer that to a local institutional capacity. Technical assistance
focused towards local legislative drafting organizations, or the
creation of a local think-tank that works on legislative development,
can help to achieve that goal.

A second concern, which applies regardless of whether the law is being
drafted at OHR or within government structures, is that there is little
transparency or public participation in the process. Although OHR and
some other international organizations have organized occasional open
hearings on proposed legislation, that has been the exception rather
than the rule, and they have not been organized by the government or the
legislature.[^9] In addition, the professional community, in particular
the bar, feels that is has little input into the development of
legislation, and that OHR in particular does not pay attention to its
views.[^10] (The bar in the RS was an exception, where it reported that
it has a "good lobby" because several lawyers belong to the RS
Assembly). Although individual lawyers may be consulted on specific
laws, the full profession is not included in the process. Similarly,
although individual law professors may be brought in to help draft or
comment on legislation, the law faculty, unlike in other civil law
countries, is not consulted on any systematic basis. The international
community has an opportunity to set an example for the future means of
drafting legislation in BiH by conducting open hearings and actively
soliciting the views of the bar, the judges, the business community, and
of relevant NGOs. This will improve the sense of local ownership in the
law, which should, at least in theory, lead to improved implementation.
The organizations, such as the Federation Bar, which complain of a lack
of a voice also need to do a better job (and international donors can
help them) of organizing themselves to participate in the legislative
process and lobbying for their positions.

The lack of local ownership is particularly problematic regarding laws
that are imposed by OHR. It is too easy for Bosnian politicians to cede
decision-making to OHR because they can then avoid the compromises and
deal-making essential to democratic legislative development but which
might also alienate them from their political bases. OHR, on the other
hand, is up against a ticking clock and needs to move quickly to impose
the legislation it sees as fundamental to the development of democracy
and a free market economy. Perhaps OHR needs to expend more energy on
forcing the political compromises in order to increase ownership and
ensure the functioning of democratic legislative processes rather than
on drafting and imposing what may be technically ideal legislation, but
legislation that suffers from a lack of local ownership. The legislative
drafting groups pulled together by OHR may want to bring governmental
players into the process at an earlier stage to help develop the local
ownership and to improve chances for adoption of the draft law at the
parliamentary level rather than imposition by OHR. Finally, reaching out
directly to the citizens through public hearings and other mechanisms
might also have a salutary political effect. As it is, there is a sense
that OHR drafts legislation with its experts, and then presents it to
the parliaments as a fait accompli. That just makes it easier for the
politicians to shirk their responsibilities and the citizens to ignore
the law that neither they nor their representatives played a role in
creating.[^11]

C. [Implementation]{.underline}

One of the lessons learned over the past decade or so from ROL reform
initiatives throughout the region is that it is relatively easy to draft
good legislation, but the real challenge is in implementing it. It is
especially challenging in BiH, where many laws are imposed, to
understand what additional funding, additional regulations, additional
training, etc., will be required before a law can be truly implemented.
Neither OHR nor the government authorities do a good enough job of
analyzing information and using statistics as they develop legislation
or analyzing the budgetary and resource consequences of the laws that
they do draft and adopt. It may be useful for the donor organizations to
conduct a Regulatory Impact Assessment (RIA) that would help the
government to use information and statistics better in the development
of laws and regulations, and then to better prepare itself for how to
implement the law.[^12]

Also relating to implementation, laws are sometimes imposed in BiH
without sufficient preparation for those who will be asked to implement
them. The new criminal and criminal procedure codes, which will bring
enormous changes to the way the police, prosecutors, judges, and lawyers
work, are two recent examples. Those laws will in many ways convert
BiH's criminal justice system from a continental system to a hybrid
between the continental and common law systems. For example, and perhaps
most importantly, the position of investigating judge will be done away
with, and prosecutors will have more autonomy over investigating crimes.
This is an enormous shift, and one which other countries would not
undertake without years of intensive training and preparation. In BiH,
it is being done in a matter of months. The donor organizations need to
do more (through increased training, providing technical assistance, and
supplying material support) if this initiative, about which many judges
and lawyers are highly uneasy, is going to succeed.[^13]

In addition, and as already noted, enhanced implementation also requires
addressing public education, an aspect which seems to have been
overlooked in many regards by the donor community in BiH. In order for
the citizens to use protections guaranteed to them under the new
framework, they need to know that they exist, and significant changes in
the law need to be accompanied by public education campaigns.

D. [Recommendations]{.underline}

*1.a. Strengthen the State MOJ: Build Local Capacity to Draft and
Harmonize Legislation*

[Goal]{.underline}: Reverse the current process of legislative drafting
so that Bosnians are making and passing their own laws with the
assistance, where appropriate, of the international community, instead
of the other way around. A secondary goal would be to assist the local
partner (e.g., the State MOJ) to take a leading role in coordinating
legislative drafting assistance, by establishing a clearinghouse to keep
track of which organizations are working on which laws, determining
which drafts may address similar issues, and ensuring that those issues
are addressed in a uniform fashion. This process should also be geared
to result in greater harmonization of the legislative framework at the
state and entity levels. The ultimate goal is for more laws, developed
with full local participation and ownership, to be enacted by the
assemblies rather than imposed by OHR.

[Local Partners:]{.underline} A State governmental body, such as the
State MOJ, or a local NGO or think-tank dedicated to legislative
development. The State MOJ would clearly need extensive assistance in
building its capacity to do this work, but providing that assistance
would also build the credibility and sustainability of this new
State-level organization.

[Donor Role]{.underline}: This will take a concerted effort on the part
of the entire donor community, and OHR must take the lead. As a part of
this process, OHR and other leaders in the international community
should expend more capital in working with the local political
leadership and citizens themselves to engage with OHR in the rule-making
process and to reach compromises among themselves that are acceptable to
OHR. OHR should seek to include governmental representatives on working
groups that draft legislation. The USG can help the targeted local
partner (e.g., the MOJ) by providing material support and extensive
technical assistance to help it put into place processes for reviewing,
harmonizing, and drafting legislation. This project could and should be
implemented in conjunction with the following recommendation relating to
legislative transparency.

[Timeframe:]{.underline} 2003-2008

*1.b. Improve Transparency of Legislative Processes*

[Goal:]{.underline} Improve the transparency of and level of public
participation in legislative processes, as practiced both by OHR and
government bodies, in particular the State MOJ if Recommendation 1.a.,
above, is implemented. In order to accomplish this goal, OHR and the
other lawmaking bodies should conduct open hearings on draft
legislation, include more local Bosnian institutions (such as the bars
and the law schools) in the drafting process, and encourage professional
groups and NGOs to speak out publicly on draft legislation.

[Local Partners:]{.underline} State and entity assemblies, the State and
entity level MOJs, NGOs, professional (bar and judicial) organizations,
law schools.

[Donor Role:]{.underline} Again, OHR must take the lead on this and set
an example for the local legislative bodies and the State MOJ to follow
in terms of transparency and inclusiveness. Existing USG programs can
help to build linkages between OHR and the bar associations, judicial
associations, law faculties, NGOs, and other groups interested in
legislative development so that those groups are consulted as a matter
of course, and on an institutional level, rather than on the current ad
hoc basis. At the same time, current USG grantees and contractors
working with these groups should help them to build their capacity to
engage in legislative advocacy. In addition, OHR and governmental
legislative drafting groups should pay more attention to the political
process of law making, by involving representatives or assembly staff
members on the drafting groups, in an effort to improve the likelihood
that the laws will be passed rather than imposed.

[Timeframe:]{.underline} 2003-2008

*2. Technical Assistance and Training to Legal Professionals: Improve
Implementation of New Legislation*

[Goal:]{.underline} As in many countries in transition, perhaps too much
attention is paid to drafting legislation rather than implementing it.
Considering the enormous shifts in BiH's evolving legislative framework,
in particular relating to the procedural codes, the donor community
should emphasize implementation of these new codes, which will require
greater training efforts and more institution building, as well as
targeted public education campaigns.

[Local Partners]{.underline}: Judges, prosecutors, members of the bar.

[Donor Role:]{.underline} The USG should take the lead in assisting key
institutions to implement the new codes. In terms of training, the new
Judicial and Prosecutorial Training Centers (JPTCs) will conduct future
training of judges and prosecutors, but a lacuna now exists, pending the
creation of those centers. In the meantime, various USG programs (and
others in the donor community) are picking up the slack. That work
should continue. One gap is that there is no training institution for
lawyers, and an effort should be made either to enable lawyers to attend
some of the future institutional trainings or for the bars to create
their own training institution. While more training needs to be done
(the training that has taken place for the bar, for example, has only
scratched the surface of the needs), training alone will not be
sufficient. Ensuring implementation will also require embedding experts
within key institutions to act as a resource, developing and
disseminating manuals, and teaching future judges, prosecutors, and
private lawyers -- in other words and ensuring that law school
professors have and use in their courses the commentaries that are
developed for judges, prosecutors, and lawyers. Some train the trainers
sessions for law professors would also be appropriate. In addition,
observers can monitor important cases to see how the new codes are being
used in practice, and to recommend changes to training courses or the
laws themselves, as required. Most importantly, a holistic approach
needs to be taken. Some substantial plans are in place to provide
technical assistance to judges and prosecutors, particularly on new
criminal codes, but experts also need to be placed with the lawyers, as
a resource and a point of ongoing training with the bars. Finally, a
certain amount of targeted public education may also be necessary so
that the public knows how to use the new legislation and so it does not
feel threatened by an apparent loss of existing rights and procedures.
All of this could be started immediately by contractors and grantees
that are already in place. It should be noted that, given BiH's goal of
further European integration, as well as the fact that BiH's legal
traditions are firmly based in continental law, it is logical for the
USG to cede the area of substantive legislative drafting to European
organizations and to focus instead on implementation.

[Timeframe:]{.underline} 2003-2007

*3. Complete the Preparation of a Full Local Legal Database*

[Goal:]{.underline} To establish a fully searchable legal database that
would include all legislation applicable in BiH, as well as court
decisions from the constitutional and supreme courts, and important
governmental regulations. Such a database would not only improve access
to the law for judges, prosecutors, and lawyers, it would also
facilitate the process of streamlining and harmonizing the legislative
framework.

[Partner:]{.underline} The State MOJ.

[Donor Role:]{.underline} GTZ, the German donor program, has already
taken some important steps in this regard, but its work has been limited
to the Federation. Other donor organizations can help to extend this
effort to cover all laws and important court decisions in the country.

[Timeframe]{.underline}: 2004-06

4*. Conduct a Regulatory Impact Assessment*

[Goal:]{.underline} Conduct a Regulatory Impact Assessment (RIA).
Although a full review of the process of legislative drafting was beyond
the scope and capacity of the team's work, it became clear that there is
a gap, both at OHR and at the government levels, between the anticipated
results of new legislation and the reality of how new legislation can be
implemented. The RIA would review how the government and OHR collect and
use information and statistics in the development of legislation, and
how they allocate funding and resources when legislation is implemented.

[Partners:]{.underline} The assemblies and MOJs.

[Donor Role]{.underline}: Again, this is a project that would require
full OHR participation and backing. The World Bank has experience in
conducting RIAs, and would be a natural organization to conduct one in
BiH. The British Department for International Development (DFID) is
currently working with the MOJs and Ministry of Interior on funding in
the justice sector, and should be involved as well.

[Timeframe]{.underline}: 2003-2005

**III. JUDICIAL/COURT REFORM**

Judicial reform is typically at the heart of legal reform programs for
countries in transition. As in most such countries, the judges in BiH
have faced a broad array of problems, including insufficient salaries,
allegations of corruption and the concomitant lack of public trust,
increasing case loads, poor training, insufficient access to
information, inadequate budgets, and poor work conditions. Unlike in
other countries in transition, however, OHR exists in BiH, and has
mandated some dramatic changes. First, it imposed a law raising judicial
salaries in the Federation (the RS passed its own law), making judges
among the most highly paid officials in the country.[^14] Second, it
imposed new laws establishing the three HJPCs, which changed the way
judges and prosecutors are appointed and to a certain degree will change
the way the courts and prosecutors' offices are managed. Previously,
judges were appointed through a process managed by the MOJs and with the
approval of Parliaments. Now, most judges (and all prosecutors) are
being appointed by new bodies, the HJPCs (described in more detail
*infra*), that will also take over from the various MOJs some functions
of court management. During the transitional period, the work of the
HJPCs is being assisted by the IJC, an independent body funded by the US
and the EC through OHR that has been charged with overseeing the process
of judicial reform since March 2001. The team's visit came at a time of
great transition in the judiciary, as the HJPC was in the middle of
reviewing the background and credentials of all those who have applied
to be judges and prosecutors in the new system. In addition, the IJC has
made recommendations to the High Representative on the restructuring of
the court system as well as recommendations to the HJPC on the number of
judges in each court in the new and downsized structure. These
recommendations will result in a number of courts being closed down and
a number of judicial slots being eliminated. It is hoped that the
increased salaries, the reappointment and restructuring processes, and
the creation of new training centers will result in the creation of a
more honest, capable, and efficient judiciary in BiH. It is too early to
reach any determination as to whether those hopes will be fulfilled, but
it is clear that even with these changes the judiciary in BiH will still
face an array of problems that donor organizations can do much to help
overcome.

A. [Organization]{.underline}

*State Level Courts*

As noted above, the DPA mandated the creation of only one national
court, the State constitutional court (State CC). The DPA also created
another quasi-judicial body with national jurisdiction, the Human Rights
Chamber (HRC). Finally, recent legislation imposed by OHR created a
second national court, the State Court.

The [State CC]{.underline} has appellate jurisdiction over any court in
BiH, but the matter must relate to the BiH Constitution or to human
rights. The court cannot review issues on its own initiative, but can
only hear matters that are referred to it from another court, or by
members of the presidency or the prime ministers or a number of
legislators. Reportedly, approximately 90% of State CC cases relate to
the processes under which property claims are decided (with jurisdiction
based on art. 6 of the ECHR.) There are nine judges on the court,
including three internationals appointed by the president of the
European Court for Human Rights in Strasbourg, two Bosniaks and two
Croats appointed by the Federation Assembly, and two Serbs appointed by
the RS Assembly. In addition, five legal advisors work for the court.
The first CC had a mandate that lasted only five years (1997 -- 2002),
but the newly appointed judges will now hold office until they reach
retirement age (70). The mandate for the last court expired in May, and
the first meeting of the new court should have been in September, but
three days before that meeting OHR rescinded the appointment of the Serb
judges. The newly configured State CC has not yet met (it has been 10
months since it last did), pending appointment of new Serb
representatives. There is currently a backlog of about 400 cases, and
about 40 new cases are being filed each month. The State CC decisions
are published in the Official Gazettes of the State and the two
entities. Although the team asked, the State CC representative was
unable to tell us the extent to which its decisions are complied with.

The [HRC]{.underline} has final authority to determine issues relating
to alleged violations of the ECHR. It can take jurisdiction only after
all domestic remedies have been exhausted. It includes nine
international and six national judges (four from the Federation and two
from the RS). There are also 20 lawyers on staff, who review
applications and prepare memoranda for the judges.

The HRC is at an important juncture because its mandate expires at the
end of 2003, at which time its caseload is expected to be transferred to
the State CC. New cases, to the extent necessary, would be filed with
the European Court for Human Rights in Strasbourg, accessible to BiH
citizens since BiH acceded to the COE in 2002. The problem is that there
are some 10,000 cases now pending before the HRC, with an additional 150
cases being filed each month. Many of the older cases (about 3,000)
relate to the failure to get property back, but the team was told that
those filings have dropped off and that domestic authorities now seem to
be handling these cases appropriately. Despite this large caseload, most
observers believe that broad categories of cases are likely to be
resolved soon by OHR decisions, or that some cases are old or redundant
and have been resolved in other forums. In August 2002, the European
Commission (EC) said that the HRC and the State CC should "merge"
quickly, and the Organization for Security and Cooperation in Europe
(OSCE) and the COE, noting the expense of the large international
component of the HRC, also support a merger, which under the current
plan, would occur on January 1, 2004. The State CC, on the other hand,
expressed concerns regarding its ability to absorb the caseload and the
staff of the HRC.

The [State Court]{.underline} is being organized according to a May 2000
law that was imposed by OHR. It has jurisdiction over state-level legal
actions as well as disputes between the entities. Some people
interviewed expressed concern at the breadth of the State Court's
mandate. Since it is the only court with state-level jurisdiction,
except the BiH Constitutional Court, the State Court will serve as a
court of first instance in some cases. The Court will eventually include
15 local judges, with eight in a first instance court and seven serving
in an appellate division, with equal numbers of Bosniaks, Croats, and
Serbs. There will also be six international judges, all secondees. The
criminal panel will have jurisdiction over serious organized crime and
corruption cases (those which may impact the financial stability of
BiH), drug cases, and trafficking in humans. In addition, there will be
a separate panel for war crimes, scheduled to be created in 2004. The
administrative panel will have jurisdiction over election and VAT cases.

The State Court is just now beginning its work, and it has received some
important support already from the donor community, including the
reconstruction of office space with U.S. State Department funding, and
training, furniture and equipment provided by Spain. An Information
Technology (IT) person will also be coming from Strasbourg to work with
the State Court. The State Court faces many uncertainties, including
funding from the State budget, and enforcement of decisions, which will
be done by the entities, although the court has its own detention
center, and depending on an agreement between the entities may get its
own prison as well. A general concern was expressed by some people
interviewed that the structure of the State Court currently being
supported by the international community will ultimately be too large,
expensive, and unwieldy for the Bosnian state budget to sustain.

As already noted, additional support will come through the foreign
judges who are being seconded to work on the State Court. This raises
some concerns. It is unclear to the team what the standards are for
appointment and, if necessary, removal of the foreign judges. Moreover,
secondments typically last for one year, which will be a very brief
period for these foreign judges to acclimate themselves to a new and
complex legal system. (There is apparently no plan in place to train the
foreign judges on Bosnian legislation). The team would urge the HJPC to
adopt and publish minimal standards for the appointment of foreign
judges, provide some intensive training and ask that such judges be
seconded for more than one year.

*Federation Courts*

The Federation has five levels of courts: a constitutional court (the
Fed. CC), a supreme court (the Fed. SC), 10 cantonal courts, municipal
courts, and minor offense courts.

The [Fed. CC]{.underline}, for its first mandate (1996 -- 2001),
originally consisted of six national and three international judges. The
current court will be made up of all national judges, with three
Bosniaks, three Croats, two Serbs, and one Montenegrin, who will serve
until retirement age (70). The members of the court are nominated by the
HJPC, and appointed by the Assembly. The court did not operate for 15
months because the Assembly did not convene and so new judges were not
appointed. Last year, the Fed. CC had about 65 cases, of which it
decided about 45. The size of its caseload and the rate of issuing
decisions has been fairly consistent since the court's establishment.
The caseload is low (in stark contrast to most of the other judicial
bodies in the country) because the Fed. CC hears only matters submitted
by authorized parties, which is limited to the president, the vice
president, the prime minister, the deputy prime minister, 1/3 of either
house of parliament, the president or prime minister of a canton, or 1/3
of the cantonal parliament. Ordinary citizens cannot make submissions to
the Fed. CC. The Fed CC is funded through a line item in the entity
budget and, again in contrast to many other judicial bodies, seems
reasonably well supported, with its own computers, information link, a
webpage in the works, and court recording equipment. Fed. CC decisions
are published in the Official Gazette. Enforcement of decisions is
reported to be uneven.

New judges for the [Fed. SC]{.underline} have been recently selected.
The new court will meet for the first time on April 1. The court has 22
members: 11 criminal judges, 5 civil, and 5 administrative, plus the
president. The main problem facing the Fed. SC is its caseload: there
are about 600 criminal, 970 civil, and 10,500 administrative cases
pending resolution.[^15] Obviously, the main blockage is with
administrative disputes, most of which concern tax and customs cases,
many of which will start to be filed with the State Court when the new
VAT is introduced. But the real problem lies with the current law on
administrative disputes, under which the Fed. SC acts as the court of
first instance for many administrative disputes. Revisions to the law on
administrative disputes currently under consideration would send most
administrative cases for an initial decision to the lower courts, and
the Fed. SC would act as a court of cassation. (Under the new criminal
procedure code, it may act as both an appellate and a cassation court,
and under the proposed new civil procedure code it will also be just a
cassation court). Currently, the Fed. SC has first instance jurisdiction
for inter-cantonal crime, drug trafficking, and organized crime, but it
heard only about 22 such cases last year. The Fed. SC has a separate
line item in the budget, but cannot re-allocate funds within its budget
without government approval. The Fed. SC annually publishes significant
decisions in its bulletin, but they were not published last year because
the editorial board was not elected. The President of the Fed. SC is
also responsible for managing the judicial police, of which there are
350 in the entity. The judicial police provide security for the
courthouses, and bring prisoners and defendants to court, and execute
orders of judges. Execution of judgments is done by an executive clerk,
who can be helped by the judicial police.

The Federation lower courts consist of 10 [cantonal courts]{.underline},
with mixed first and second instance jurisdiction and 53 [municipal
courts.]{.underline} Under the court restructuring program, the 10
cantonal courts will remain in place, but the municipal courts will be
cut to 28, with an additional four branches, so there will be a total of
32 such courthouses. The caseloads of these courts (and the lower RS
courts) are set forth in the August 15 report by the IJC, "Restructuring
the Court System: Report and Proposal."

[Minor Offense Courts]{.underline} hear traffic violations and some
customs and tax cases (jurisdiction is set forth in various substantive
laws, and needs to be consolidated). There are 65 such courts in the
Federation, with approximately 225 judges.

*RS Courts*

As in the Federation, there are five levels of courts within the RS: the
RS constitutional court (RS CC), the RS Supreme Court (RS SC), district
courts, basic courts, and minor offense courts.

The team could not meet with the RS CC because it had not been
constituted and there was no one available to meet with. It differs from
the Fed. CC in that it can hear cases submitted directly by citizens,
but otherwise its jurisdiction is similar.

The RS SC consists of 15 judges plus the president, divided into three
departments (criminal, civil, and administrative), each with five
judges. Thirteen judges were appointed following the reselection and
took up their posts in early April. Due to a lack of qualified Bosniak
candidates, the three unfilled posts have been readvertised. There are
usually three judges on each panel, but there can be five if some
extraordinary legal remedy is being sought. Including all the judges,
the RS SC has a total of 32 employees. It is working out of temporary
space leased from the district court, but has submitted a request to the
RS MOJ for more space. It has a separate line item in the budget, but
the request is handled through the RS MOJ, which then passes it on to
the RS Ministry of Finance. As in the Federation, the primary caseload
relates to the administrative section. The criminal section receives
only about 20 cases per month, which it resolves on a timely basis.
There is some backlog in the civil section (about 250 cases, some of
which date back to 1992, which raises the question of whether anyone is
pursuing these claims), but the court feels that it is holding steady
there, although the case filings are increasing. The administrative
section, on the other hand, receives between 20 and 50 cases *each day*
and there is currently a backlog of 3,000 cases. Since the court is
resolving about 80 -- 100 cases each month, this backlog is on the rise.
Most complaints concern property rights, pension and disability issues,
and labor law, but the real problem, as in the Federation, is that a
party can appeal any final administrative decision directly to the RS SC
-- there is no lower court that hears these cases. Another problem is
that the government institutions often do not obey the court decisions
and so the litigants have to return to the court for an additional
order, but this does little good because apparently there is no
mechanism for fining the agencies or holding them in contempt. The court
can find that they have committed a felony, but that power is rarely
used. The court representative with whom the team met was aware that the
Federation was considering amendments to its Law on Administrative
Disputes to address this problem, but was unsure what, if anything, was
being done along those lines in the RS. The RS SC prints a bulletin with
significant decisions once a year, which is widely distributed.

Under the IJC court restructuring plan, the 25 basic (first instance)
courts in the RS will be cut down to 19, but with two branches, for a
total of 21 court buildings. The current five district (second instance)
courts will remain.

The jurisdiction of the minor offense courts in the RS is similar to
those in the Federation. There are 28 minor offense courts in the RS,
with 110 judges.

*Judicial Associations*

Associations of judges have been established in each entity.

USAID's ABA/CEELI Rule of Law program helped to establish the Federation
Association of Judges in 1995. Reportedly, 95% of the judges are
members, and pay annual membership dues of 100 KM, withheld from the
members' salaries. In recent years, CEELI has provided a grant to pay
for the annual meeting of the association. The Association has an office
in the SC building and assistant who works there. Activities have
included helping to draft the law on the judiciary and on prosecutors,
and conducting training programs.

CEELI also helped to establish the Association of Judges and Prosecutors
of the RS (AJPRS). All judges and prosecutors are reportedly members,
and pay 300 KM in annual dues. Given the new procedural code which will
introduce more of an adversarial system, some thought is now being given
to splitting the AJPRS into two associations, one for judges and another
for prosecutors. Activities include publishing important decisions and
conducting training programs.

A merger of the two entity associations has been discussed, but has been
put on hold pending completion of the judicial reappointment process. It
seems likely that, at best, some kind of umbrella organization will be
set up that will allow the two entity organizations to maintain their
autonomy and independent funding, but that would enable them to join the
International Judges' Association (which will only admit one association
per country). The team would urge the two organizations, for the sake of
efficiency and to provide a positive example to other organizations in
the two entities, to merge formally and totally, rather than pursuing a
fig leaf approach designed simply to facilitate membership in
international organizations.

B. [Issues]{.underline}

*Budgeting and Management*

The above description of the court system reveals a judiciary that is
too large and unwieldy for a country the size of BiH. The IJC's court
restructuring project will certainly improve the situation. The IJC is
recommending that in the Federation the current number of 434 first
instance judges be reduced to 338, or a 22% cut. In the RS, it is
recommending that the current 220 first instance judges be reduced to
154, or a 30% reduction. In both entities, first instance panels consist
of three judges and at the appellate level of five judges, with some lay
members. In the future, usually one judge at the first instance and
three judges on appeal will hear cases, and the inclusion of lay members
will be mostly eliminated. This should also help to increase efficiency.
The reorganization will also see the creation of special commercial
sections within the first instance courts in both entities (one in each
canton in the Federation, five in the RS, and one in Brcko).

The reorganization of the courts is but one part of a larger process of
changing the way the entire court system is managed. Right now, in the
Federation the cantonal MOJs are responsible for funding the cantonal
and municipal courts, and providing them with training, equipment, and
supplies. In the RS, that work is done by the RS MOJ.[^16] Soon,
however, the role of budgeting and managing the courts (and prosecutors)
will have to be shared with a relatively new institution, the HJPC. The
current laws on the HJPCs suggest some conflict between the authorities
of the MOJs and the HJPC with respect to court budgets, but the IJC
indicates that such conflicts should be resolved in the near future. The
HJPC is made up of 15 Bosnian and eight international members.[^17] It
has been charged with, and is pursuing, the re-appointment of judges and
prosecutors throughout BiH (as of the time of the team's visit, it had
largely completed the review and appointment process for the State
court, and the supreme courts in the Federation and the RS, and was
moving to address the lower courts). To do this work, the staff of the
HJPC, supported by the IJC, reviews applications from potential judges,
conducts background checks, and makes recommendations for appointment.
In 2004, it will take on the tasks of preparing budgets for all courts
in BiH by assisting the courts in the budgeting process, lobbying the
proposed budgets with the relevant Parliaments, tracking and using
statistics, overseeing training, and investigating allegations of
judicial and prosecutorial impropriety. Right now, the IJC Restructuring
Department is collecting the necessary data and preparing statistics to
enable the permanent HJPC to fulfill its functions related to court
budgeting and funding beginning in 2004. By the end of 2003 the IJC also
intends to develop a database that includes the budget for each court in
BiH. A uniform budget template based on the existing national systems
has already been developed by IJC. After IJC closes down, the HJPC and
its secretariat will need further technical assistance in how to use
statistics, develop budgets, lobby for funding, develop training
programs, and conduct ethics investigations. The IJC is conducting a
study, scheduled to be completed in April, on the costs and long-term
savings associated with all courts as a result of the restructuring
process. This study may pave the way for building the capacity of the
HJPC in this regard. One approach towards ensuring adequate financing
for the courts would be to enact legislation that would enable the
judicial systems to keep some percentage amount of the funding that they
generate in fees and fines rather than returning that amount to the
ministries of finance and then going through the usual budgeting
process, which in the past has not resulted in sufficient funding for
the judicial system.

*Case Management and Backlog*

It is also clear from the above description that the huge number of
administrative cases threaten to overwhelm the supreme courts. But the
problem of caseload is not limited to the higher courts. The president
of the cantonal court in Zenica reported that the increasing caseload
was perhaps the most serious problem that her court was facing, but that
most cases were on relatively simple matters like debt collection. As
she pointed out, moreover, it is easy for defendants to delay even small
cases, by not appearing for hearings or appealing decisions repeatedly.
Currently, there is no mechanism for entering a default judgment, and
while the courts do have some contempt powers, they are hesitant to use
them. In addition, the courts themselves are not managed efficiently,
with judges performing many tasks that, in other countries, court
administrators would perform, such as assigning cases, reviewing
filings, etc. RS judges also reported the increasing caseload as their
number one problem. In one basic court, they have over 1,100 cases
pending, and hear only about 380 per year. Most cases have to do with
property and housing rights, and labor law.

In both the Federation and the RS, great hope for increased efficiency
is being placed on the pending new civil procedure code (currently, a
20-year-old law is being used) Under the new law, there will be no
obligation of the court to ex officio gather evidence -- the courts will
rely on evidence gathered by the parties. In addition, the cases will
need to be decided within two hearings, one preparatory and one final.
And the longest deadlines are 30 days. These changes are enormous, and
the judges the team interviewed expect significant problems in
implementing them. As already discussed, at least in the Federation
changes in the administrative law are expected to lower the number of
administrative cases now clogging the Fed. SC, but that code is still
being worked on by a drafting group and it is unclear when it will be
completed.

Another problem related to case management is execution of judgments.
Currently, it is extremely difficult to execute civil judgments because
the defendant can delay hearings and easily move assets, thus
contributing to the extended time in which it takes to bring a matter to
closure. A new law on the execution of civil judgments is supposed to
address some of these problems, but there does not seem to be a
comprehensive plan in place for the implementation of this new law. Few
judges the team met with could explain how the execution of civil
judgments will work under the new regimen. Clearly, more training for
judges needs to be done on this, as well as training of the court clerks
and the judicial police who will ultimately be called upon to execute
such civil judgments.

The donor community has long been aware of the problems with court
administration and is beginning to take some steps to address them. In
2002, IJC published a significant report, "Justice in Due Time," which
addresses major issues related to court administration in BiH. The
report led to the development of an IJC project funded by the Government
of Norway that is implementing some court administration reforms on a
pilot basis in three courts. The IJC is also preparing a new law on
courts and a new standardized Book of Rules, both at the entity level.
Management of courts is one of the main topics which will be covered by
the new Book of Rules. USAID/ERO is also conducting an assessment of
court administration and case management. In addition, CEELI will be
sending judges and staff to Austria for 10 days in May/June with World
Learning to look at court administration there.

Obviously, however, there is much more to be done. First, the team has a
sense that the huge number of property cases that are clogging much of
the system may either no longer be relevant or are duplicative of cases
that have been filed and perhaps resolved in other forums. Other cases,
some of which date to before the war, may also no longer be relevant.
Some kind of review of these cases, using modern technology, may be able
to weed out a large number of them and to identify those that are still
ripe for adjudication. Perhaps this is better done by the newly
appointed judges, who can be instructed to take a more proactive
approach to clearing the courts' dockets. The team was advised that most
judges still work on a quota basis: they are told to resolve a certain
number of cases each month, and when they resolve those cases, they are
finished for the month. In addition, it was clear that most judges end
their business day by the middle of the afternoon. Some, but not all,
judges are not working that hard, and are not trying to resolve more
cases than they are required to according to the targeted quotas. To be
frank, while judges complain vociferously about the caseloads, it lies
within their power more than anyone else's to do something about it.
Considering the salaries that judges are now paid, they should be
encouraged to redouble their efforts to clear their dockets and get on
top of their caseloads. Perhaps the "quota approach" also needs to be
done away with. This issue will be addressed by IJC in its preparations
for the new Book of Rules.

Second, the team is concerned that the donor community may be
approaching court administration reform in a piecemeal fashion.
According to the IJC restructuring plan, there will be a total of 47
first instance courts, six first instance branches (satellites of other
courts), and 15 second instance courts, with a total of 629 judges, in
the two entities. This is a relatively small system, and it would not be
difficult to develop simple and more efficient case management and
tracking techniques that would be uniformly applied, and to provide the
necessary, minimal equipment. The potential problem with doing pilot
projects is that several donor organizations may develop their own pilot
projects which will result in a hodgepodge of different court and case
management techniques and software being introduced. Therefore, pilot
projects should be carefully coordinated with other donors and should
include advance financial and programmatic plans for expansion of
successful pilot activities. The donor community should come together on
this issue, one system agreed upon, and the requisite equipment provided
and the training conducted.[^18]

Third, the team was concerned that judicial clerical personnel are being
neglected. Currently Court Presidents spend too much time on
administration. Several judiciaries, including in Russia, are starting
to introduce stronger court clerks, who can free up judicial time by
taking on tasks, such as assigning cases, reviewing case filings, and
answering questions from the public, that judges now perform. This
would, of course, require training clerks and other court personnel.
Little training of such personnel has been undertaken thus far in BiH.
The IJC is developing a proposal that would place one Court
Administrator in every court that has eight or more judges; no
additional detail on this proposal was available.

Minor Offense Courts constitute an important part of the judicial system
(there are 93 such courts with 335 judges in both entities), and are
where the public comes in frequent contact with the adjudicative
function of the state. The team, however, did not have an opportunity to
review the role of the Minor Offense Courts in any detail, although JSAP
conducted a study on them in 1999. The IJC is currently working on a
draft law to govern their activities. An analysis should be conducted
(perhaps by IJC) on how to restructure the Minor Offense Courts, using
the same analysis that has been used for other courts.

*Work Conditions*

The work conditions in most courts, in particular at the lower levels,
are insufficient. In many locations, two or three judges work in one
office, and the judges must make do with only one courtroom, which is
usually used for criminal cases while civil and commercial cases are
heard in the offices of the judge, thereby inhibiting the transparency
and openness of the process. Other changes will be required under the
new criminal procedure codes, such as developing a means to record
proceedings. Court security also needs to be enhanced, although the new
Judicial Police are providing improved protection in the Federation.

IJC and OHR are now conducting an assessment of court premises and will
develop a proposal (due in mid-April) for the funding of basic
improvements of existing premises.[^19] Taking steps to ensure that
adequate funding is allocated to the judicial system is the only way to
ensure improved work conditions on a sustainable basis. As already
noted, putting in place an agreement under which the judiciary would be
entitled to recover some of the revenue it generates would be one way to
begin to address this need, which in the long run is dependent on
improving the economy and tax revenues.

*Training and Information*

Another significant challenge facing the courts, especially with the
implementation of the new procedural codes impending, is ensuring that
both new and sitting judges are appropriately trained. Pursuant to a law
imposed by OHR in May 2002, two judicial and prosecutorial training
centers (JPTCs) are to be created, one in each entity.[^20] Supervisory
boards have been appointed and they in turn have appointed two directors
based on HJPC recommendations. The HJPC is to approve the curriculum
(for both introductory and continuous training) of the JPTCs.[^21]

The JPTCs will enjoy significant international donor support, in
addition to the funding to be supplied by the entity governments. OSCE
is coordinating this support (and working with the entity governments to
ensure their funding contributions), but the lead funding agency seems
to be the COE, which, with 1 million euros from the EC, will help build
the capacity of the JPTCs, develop curricula, and train staff. The COE
will initially focus on skills areas, such as court and case management,
dealing with the media, etc., and then starting in 2004 -- 05 move on to
some substantive areas, such as criminal and civil law, and the ECHR.
The COE will also help develop commentaries on laws to be used in
trainings, and hopes to use trainers to gather information, during the
trainings, on how the laws are working and to propose revisions to
legislative drafters. The COE, together with CEELI, will also train
staff in how to develop curriculum and run a training center. The U.S.
State Department, as well as the Dutch and Swiss governments, have
pledged material support as well.

Establishing the JPTCs has, however, taken longer than expected, and the
donor community has picked up some of the slack in the meantime. The
Training Coordination Unit of OHR is charged with coordinating all the
donor efforts in the area of training. The following are the most
important judicial training efforts:

-   The COE just completed a three year program (partially funded by the
    U.S. State Department) which trained about 650 judges on the ECHR.
    As a part of this program, the COE is also distributing key
    decisions from Strasbourg, and is producing a bulletin with
    decisions of particular relevance to Central Europe. It is tracking
    impact by asking judges to submit to the COE copies of their
    decisions where they have cited the Convention, and have received
    about 100 such decisions. In addition, a number of judges have
    called to ask for follow up information.

-   The United States Department of Justice (DOJ) has been training
    judges on the new criminal and criminal procedure codes. It is
    anticipated that this work will be continued through the JPTCs.

-   CEELI is conducting periodic training of judges on the upcoming
    civil procedure code and the new enforcement of judgments law, CEELI
    is also doing some relatively limited training with judges (and
    attorneys) on alternative dispute resolution (ADR).[^22]

-   IRIS, a new program, is beginning to train judges on administrative
    law.

Some additional training needs were also identified during the course of
the assessment:

-   Court staff and clerks are not being included in any training right
    now. OHR and IJC have requested that the Swedish International
    Development Agency (SIDA) look at this, but no commitments have been
    made.

-   The new commercial judges will be in need of focused training, in
    particular on topics such as bankruptcy.[^23] Again, OHR and IJC
    have approached SIDA and ERO on this, but again no commitments have
    been made.

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-   The State Court judges are not going to be included in the JPTCs,
    but they seem to be getting a fair amount of training now (in
    particular from Spain). One area that does not seem to be covered is
    war crimes and coordination with the Hague tribunal, and that is an
    area where training will be needed.

In terms of distribution of laws and other information, judges receive
copies of the Official Gazettes, but do not generally obtain copies of
commentaries or other jurisprudence that might help them to interpret
and apply the laws. Some organizations, such as the COE, are providing
commentaries, and it is hoped that the JPTCs will ultimately begin to do
this work themselves (and generally take on the task of information
dissemination).

*Quality of Judges*

Improved court administration and training for judges will help to build
the judiciary in BiH, but there is a deep fear among many in both the
legal and donor communities that there are simply not enough qualified
judges or potential judges to go around. Although the restructuring was
expected to lead to the replacement of many judges, most of those who
have already been appointed were judges previously. This is not
surprising since only higher tier courts have been filled so far. There
is a concern that there will be even fewer qualified candidates as the
HJPC goes further down to the lower courts.[^24] One RS lawyer explained
that the problems lie "not with inadequate laws, but with the people and
institutions . . . In Banja Luka, there are 50 judges, but only about 5
or 6 of them are capable of resolving cases -- the rest are just
circulating them." This gives rise to a lack of public confidence in the
system, and the belief that corruption, no matter how well judges are
paid and trained, will always play a central role in the
decision-making. In addition, the politicians and the police are always
blaming the judges and the prosecutors for societal woes, and the judges
do not answer back. It is essential that the newly appointed judges move
quickly to establish their credibility with the public by swiftly and
fairly adjudicating cases, and answering their critics by their
deeds.[^25]

C. [Recommendations]{.underline}

*1. Build the Capacity of the HJPC and Improve Financial Support to the
Courts*

[Goal:]{.underline} To build the capacity of the HJPC to manage the
court and prosecutorial systems. The new HJPC is charged with much of
the managerial oversight of the courts that was previously done by the
MOJs, including developing budgets, developing better court
administration and case management routines, overseeing appointments and
ethical investigations, and overseeing the work of the JPTCs. Current
law suggests some conflict between the authorities of the MOJs and the
HJPC with respect to court budgets, but the Independent Judicial
Commission indicates that such conflicts should be resolved in the near
future. In any case, the HJPC will need help to carry out its functions
according to the law. This should include technical assistance,
mentoring, and training in budget development, lobbying for budget
allocations, overseeing ethical investigations, and overseeing the
JPTCs. As a part of the budgeting process, the donor community should
encourage the entities and the State to agree (by legislation or
otherwise) to allow a percentage of the fees and fines that the
judiciary generates be returned to the court system, to allow adequate
financing and development of the courts. Such a program could and should
be done in conjunction with the court administration reform program that
is described in the next recommendation.

[Partner:]{.underline} The HJPC and the IJC (until the end of its
mandate).

[Donor Role:]{.underline} This is an area where the USG can take the
lead by, for example, providing experts to shadow important positions at
the HJPC as they begin their work. Additional support may be needed to
help with the more specific areas of responsibility and with projects
which are initiated by the HJPC, such as minor offense restructuring,
budgeting, development of an ethics code, ethics in general, and
supervising training.

[Timeframe:]{.underline} 2003-2007

*2. Court Administration Reform*

[Goal:]{.underline} To help the judiciaries systematically address the
current case backlog and to put into place systems for efficiently
handling their future caseload.

[Partners:]{.underline} The HJPC, the judiciaries.

[Donor Role:]{.underline} Although some in the donor community are
already working on this issue, in limited capacities, and a more
in-depth assessment is being prepared by ERO, the donor community and
the judiciaries in BiH need to take a more holistic approach to the
issue of court administration and caseload. For example, citizens, it
seems, file the same claim in multiple jurisdictions, such as with the
court system, the HRC, and the ombudsmen. Other claims may no longer be
ripe, insofar as a settlement may have been reached or the need for the
lawsuit was vitiated by executive or OHR action. Technical assistance
provided by the USG could help the various systems review the older
pleadings, determine whether they are still ripe for review, and if they
are prioritize them for immediate action (if they are no longer ripe,
they should be dismissed and the docket cleared). The new Bosnian
judges, and in particular the court presidents, need to take the lead in
addressing the backlog, and be willing to handle more cases than they
are required to under the current quota system (which perhaps should be
done away with). Looking to the future, and based on the existing
studies and pilot programs, new case management, docketing, and
automation techniques should be developed and introduced, but only on a
national level, not a pilot basis -- the country is simply not that
large and the costs are not that great. The donor community needs to
create a separate management group, with Bosnian participation and
leadership, on the issue of court administration and management. That
group could identify which donor organizations have the funding and
expertise to implement the reforms on a national basis. The
implementation of the new procedural codes, which provide some
mechanisms for more efficient judicial processes, should be hastened,
with in-depth training for judges and clerks. In general, clerks should
be given more responsibilities and be trained to handle them. Finally,
another significant cause of delay is the failure to execute judgments.
Although a new law has been imposed on this, and some training
conducted, judges who the team met with did not seem familiar with the
law, and as with the other areas of new legislation a greater emphasis
needs to be placed on implementation, which may require the "shadowing"
of the enforcement clerks and additional training for the judicial
police.

[Timeframe:]{.underline} 2003-2007

*3. Conduct Targeted Training of Judges*

[Goal:]{.underline} Although the JPTCs should in the medium to long term
provide the training that judges need, there are some areas of specific
need that are not being addressed and in which training is required
immediately. As noted above, this continued training is an important
part of the recommended approach for improved implementation of the
legislative framework.

[Partners:]{.underline} HJPCs and the judicial associations.

[Donor Role:]{.underline} The JPTCs are slated to receive significant
support from the COE, and so the USG should step back from providing
them with significant funding at this time. Considering, however, that
the JPTCs may not be operational for a while yet, the USG should
maintain its high level of training activities for judges, in particular
on the new procedural codes. (As discussed elsewhere, more than training
should be provided; technical assistance, in the form of experts
embedded with the judiciary and training manuals should also be
provided). ERO should consider providing intensive training to the new
commercial judges, once they have been selected, on issues such as
bankruptcy, competition law, and intellectual property. The new State
Court seems to be receiving sufficient training from other sources, but
the USG may want to start to help it address its future war crimes
docket by providing training and the technology necessary to link it
with the Hague court, an area where this new court is not receiving any
assistance.

[Timeframe:]{.underline} 2003-2007

**IV. ACCESS TO JUSTICE**

A. [The Right to Representation]{.underline}

In many ways, access to justice is not an issue in Bosnia: given, for
example, the high number of court filings, citizens seem well informed
about their rights, and are eager to enforce them, at least as they
pertain to protecting their property rights and contesting government
administrative actions. Moreover, there do not seem to be many
impediments to the courts: for many matters, one does not need to be an
attorney to appear in court, and court filing fees do not seem to be
excessively high. And yet, in other ways, the access to justice that
citizens seem to enjoy is not necessarily meaningful. Seeking an
enforceable decision against a state agency, for example, must
eventually begin to resemble the search for the Holy Grail. Of even
greater concern, however, is the representation that is available (or
not) to criminal defendants.

*Criminal Matters*

According to the new criminal procedure code, criminal defendants facing
a potential sentence of three years or more and are unable to pay for an
attorney are entitled to have one appointed for them ex officio by the
court and paid for by the entity. Two serious concerns arise out of this
arrangement:

-   Indigent defendants who may be subject to less than three years in
    prison are not entitled to representation. You can, of course,
    represent yourself and have a friend or relative assist you, but
    that does not provide the same level of protection that a lawyer
    would presumably provide. It was reported that you can still ask the
    judge to appoint a lawyer for you, which request is usually granted,
    but it is unclear whether the defendant is informed of that right,
    how often it is respected or ignored, etc.

-   Lawyers who are appointed are not being paid. The president of the
    cantonal court in Zenica quite candidly told the team that she did
    not have any money to pay ex officio attorneys. Recently, lawyers
    went on strike to protest the failure to pay them. Part of the
    problem may be that the fee structure is not realistic. A lawyer is
    entitled to 450 -- 750 KM to accept the case, and then an additional
    30 KM per hour.

*Civil Matters*

There is no right to representation in civil matters. Under the old
civil procedure code, anyone, without having graduated from law school,
could appear in court. The new law on lawyers says that only lawyers can
appear in court, and it is unclear whether the new civil procedure code
will reconcile this apparent contradiction.

One other means of access to justice is through one of the offices of
the ombudsmen, of which there are (as usual) three in BiH: one at the
state level, one in the Federation, and one in the RS. A condition for
accession to the COE was the consolidation of these three offices, but
that has not yet occurred. In any event, ombudsmen are not empowered to
appear in court or to pursue individual claims. Their role, rather, is
to publicize human rights abuses, or to complain to offending
authorities.[^26]

B. [Donor Activities]{.underline}

As in most countries in transition, access to justice in BiH has
received less attention from the donor community than the other sectors
of legal reform. The following are the few exceptions:

-   The international community assisted in the creation of a legal aid
    department in Brcko. (Although it is small, this does provide
    experience in BiH from which the donor community can build should a
    decision be made to create a national legal aid system.)

-   Soros supports a legal aid program in Mostar (which also covers part
    of the southern RS and part of western Herzegovina) that employs
    five lawyers who represent refugees and displaced persons, and also
    works on some domestic violence and labor issues. With UNHCR, the
    International Refugee Council, the American Refugee Council, and a
    network of local NGOs (including Iustitia), Soros is seeking to
    create a legal aid system at the national level.

-   Soros (together with some other donors) is supporting legal clinics,
    but most of these do not offer representation to citizens. They are
    discussed in the section on legal education.

-   CEELI is supporting an Access to Information Public Advocacy Center.
    In late 2001, OHR imposed freedom of information laws (FOIA) on the
    State, the Federation, and the RS. The Center is intended to help
    citizens take advantage of those laws. The Center has so far had
    limited impact (it has handled only 100 clients and about 200
    requests in the last 10 months, but with about a 75 % success rate)
    because the NGOs and media organizations that would typically take
    advantage of such a law are too weak or unwilling to do so in BiH,
    or are unaware of the new legal standards. CEELI is now undertaking
    a program to increase awareness of the Center, and is reaching out
    to NGOs. CEELI will also do a monitoring activity, checking
    government offices to see whether they are doing such things as
    appointing public information officers and issuing annual reports,
    as required by the law. The CEELI activity is being complemented by
    a training program implemented by USAID's World Learning program
    that will train public officers on issues related to compliance with
    the FOIA requirements.

-   DFID may start a project that would help the citizens to interface
    with the justice system, such as obtaining information from the
    courts.

C. [Recommendation]{.underline}

*1. Establish a Legal Aid (Criminal/Civil) System*

[Goal:]{.underline} To develop a public defender or legal aid system for
BiH. Even under the new criminal procedure code, only criminal
defendants who are facing potentially three years or more in prison have
the right to free representation. This is still a considerable period of
confinement.

[Partners:]{.underline} The MOJs, NGOs.

[Donor Role]{.underline}: Establishing a national public defender or
legal aid system is an expensive undertaking, but it is important
because the lack of meaningful representation, at both the criminal and
civil levels, jeopardizes other reforms and endangers public confidence
in the legal system. In addition, under the new criminal procedure code,
a greater emphasis is placed on the role of the advocate, and so it will
be even more important for the indigent accused to have access to
capable counsel. Establishing a legal aid center will require close
donor coordination and, in order to be sustainable, a strong
governmental partner. The Open Society Institute (Soros) is the only
donor that has taken a direct interest in this area, and would be an
important partner, but it does not have the capacity or resources to
develop a national or even entity level public defender's office. The
role of the USG at this point should be to catalyze the donor community
and the governments in BiH to recognize the importance of this issue. It
should do this by commissioning an in-depth study of the issue, followed
by a conference with the government and other donors on improving access
to justice. The report should begin to look at issues relating to the
size of such an office, make cost estimates, determine at what levels
citizens would be entitled to representation in criminal and civil
matters, etc. In the longer term, the EU and other donors will need to
be brought in (the legal framework should perhaps be based on European
models, for example), and USG assistance perhaps can be limited to
training and technical assistance. In addition, the creation of such a
system should also include a strong public education component.

[Timeframe:]{.underline} 2004-2007

**V. CRIMINAL JUSTICE REFORM**

A. [Overview]{.underline}

Acknowledging that the majority of citizens encounter the legal sector
through civil or commercial matters, the fair and just administration of
a country's criminal laws is the sole provenance and responsibility of
the legitimate government. In addition, providing an environment secure
from crime is essential to economic development and the protection of
human rights, in particular in a country with BiH's history. Thus, the
international community, and the USG in particular, has placed a
significant emphasis on criminal law reform and working with prosecutors
and police.

The most important recent development has been the imposition of new
criminal and criminal procedure codes at the State level by the OHR
(effective March 1, 2003). These new laws constitute a radical move away
from the inquisitorial system of justice traditionally embraced by BiH
and towards a more adversarial system. (The entity law remains in force
within the entities but is expected to be harmonized to the State law.)
This dramatic change eliminates the traditional role of the
investigative judge, vesting responsibility for leading criminal
investigations in the prosecutor as advocate assuming the burden of
proof, a role that has been enlarged and strengthened by the adversarial
procedures imposed. It is no longer the role of the court and
investigative judge to conduct the investigation and ultimately try a
criminal case, but rather the court will now act solely as the neutral
arbiter of law and fact.. It is to be expected that such a radical
change in the criminal justice sector over such a short period of time
brings with it a great deal of uncertainty and fear, as was expressed
repeatedly to the team by judges, prosecutors and lawyers throughout
BiH.

Implementation of these new laws requires helping the judiciary, the
prosecutors, the police, and the bar address an entire set of relatively
novel concepts, including prosecutorial discretion, correcting the
apparent imbalance of increased police power with the loss of the
investigative judge, compelling testimony, witness protection, and plea
bargaining. This new adversarial process also raises issues with regard
to evidence including forensic analysis, chain of custody requirements,
secure storage for evidence as well as cataloguing needs, maintenance
and security. Additional work may be needed in the areas of witness
protection, asset forfeiture and money laundering. Finally, the new CPC
also mandates the use of court reporting and the preparation of
transcripts.

The HJPC, together with the DOJ resident legal advisor (RLA) from the
Office of Overseas Prosecutorial Development, Assistance and Training
(OPDAT) and representatives from the DOJ's International Criminal
Investigative Training Assistance Program (ICITAP) are well aware of
these concerns. Working together, both formally and informally, these
three components developed an overarching strategy to facilitate the
implementation of the new CPC and Criminal Code. This strategy is
commendable because it addresses virtually all of the concerns raised
with regard to the rapid implementation of such dramatic changes and
also because these components have reached out to other components
within the international community in order to ensure that their
respective constituencies have the benefit of the comparative advantages
and resources found throughout the international community. OHR has
tasked OPDAT with the training of judges and prosecutors, and ICITAP
with training police, resulting in some remarkable progress. As
discussed in the section on bar reform, CEELI has conducted some
programs for the bar, but overall fewer resources are being placed on
preparing the bar for the new procedures.

## *OPDAT*

OPDAT's plan for CPC training is loosely modeled on the successful
training conducted in the District of Brcko in 2002, modified by the RLA
to ensure the training of more than 1,000 re-appointed judges and
prosecutors over a minimum of 14 training sessions. The training is
divided into two general areas. The first part consists of a one-week
classroom program of lectures, demonstrations and exercises examining
all substantive changes in the code, especially the alterations to the
traditional roles of prosecutor, judge and police. This part of the
training will also include a one-week "train-the-trainer" component.

The second part of the OPDAT training program places an experienced U.S.
or international prosecutor and judge within prosecutor's offices and
courthouses, respectively, to provide mentoring and support in the
actual practice and implementation of these dramatic changes to the
Bosnian legal system. This mentoring and support will include case
reviews, courtroom observation, demonstrations, evaluations and
assessments. OPDAT emphasizes the importance of the field placement as
an invaluable resource providing actual and real-time advice and
assistance in the applications of the new procedure code while working
one-on-one with judges and prosecutors.

It is anticipated by the RLA that resources required for the field
training component of this program will require a minimum of 10-12
experienced international prosecutors and 50 international judges for
30-day assignments. Fewer prosecutors and judges will be required if
those volunteering for the Bosnian assignment are willing to commit to
more than 30 day tours. The RLA has invited prosecutors and judges from
the District of Brcko to participate in the training process. The RLA
has already secured two international instructors for a one-year detail
and OPDAT will provide a US prosecutor for a period of one year. The RLA
has vetted all instructors through HJPC and has invited the OSCE the
OSCE, to participate in field training in order to develop appropriate
training programs for the JPTCs. The Resident Legal Advisor is also
aware of European sensitivities to legislation and procedures that are
perceived to be "too Americanized" and is working closely with the HJPC,
OSCE and COE to ensure that the OPDAT training curriculum is
incorporated into the JPTC curriculum and standardized throughout BiH.

Finally, the RLA has committed to the development, in translation, of
instructor's manuals, prosecutor's manual, a judge's benchbook, the
rules of evidence, and student materials for field reference, which will
also be shared with the JPTCs, thereby contributing to the
institutionalization of this training program within Bosnia.

## *ICITAP*

ICITAP has historically been responsible for training civilian police
throughout the world. Prior to the arrival of ICITAP in Bosnia in 1997,
there had constant turnover in the authorities within the international
community that were responsible for civil policing. This constant
turnover resulted in a lack of institutional memory within the Bosnian
police forces.

In 1997, as a result of an assessment conducted jointly by ICITAP and
the U.S. Department of State, an aggressive training and development
program was devised to create a modern police force within BiH. The
first four years concentrated on democratic foundations of policing.
Now, the focus of training is on specific development needs including:
forensics, case management, organized crime and terrorism.

ICITAP is hoping that future training will include expanded organized
crime initiatives that include intelligence collection, support for
initiatives, and the development of an information management system
that will make data law enforcement friendly. This also implies some
form of modification or relief from the European data protection and
privacy laws. Information management by police, including the
investigative use of civil and vehicle registries, as well as reliance
on international wants and warrants, is seriously impacted by the
current European Convention on Data Protection and Privacy.

The ICITAP police training agenda seeks to standardize Bosnian civilian
police at a level of performance consistent with prosecutorial
requirements and consistent with the levels of expertise experienced
within the region. ICITAP's success is apparent in the operations of the
State Border Police, which is the only national police department that
is up and running.[^27]

ICITAP has developed an evaluation process that BiH has adopted for
purposes of police advancement and skill enhancement. As a result,
evaluations of police officers are focusing more and more on actual
skill and abilities rather than political power. Promotions are
beginning to be based on evaluations. The issues of pay parity and
standardization are important both in terms of combating corruption and
in ensuring the retention of officers upon completion of training. The
State Border Service established a monthly salary range of 800-1300 km,
significantly increased over standard police pay, resulting in a huge
exodus of officers from the regular police forces. This is not a desired
result after the financial and political investment required to ensure
police training to an appropriate standard.

There are informal discussions, within the appropriate ministries within
the entities, on the topics of standardization of police salaries, tying
promotions and advancements to education and training, re-certification
of officers, training and the development of advanced police courses.

The experts at ICITAP reinforced the perception of the team that there
appears to be some lack of clarity among both prosecutors and police
officers regarding the new role of the prosecutor during an
investigation. Some police think prosecutors will physically undertake
the investigation itself as opposed to a management role, as it should
be. As a result, ICITAP and OPDAT have designed a joint training program
to develop and hone the ability of police and prosecutors to work
together while keeping expectations realistic. ICITAP has invited the
newly arrived European Union Police Mission (EUPM) to participate with
ICITAP in providing concepts, training, follow-up training and mentoring
support to the Bosnian civilian police. ICITAP personnel are in the
field with the Bosnian police, serving as mentors and advising on
ongoing training needs.

Due to the previous efforts of ICITAP, there are now two Bosnian Police
Academies plus an academy for the State Border Service. These academies
have standardized curricula, including six months of academic study and
six months of field training. All candidates must have a minimum of a
high school education; undergo a physical and psychological exam as well
as a background check. As a result of this standardization of criteria,
women flocked to the police academy in the aftermath of the war. One
graduating class from one academy was 87% female. However, full
integration of women into the force is an evolutionary process. The
public face of the police is changing, though, and ICITAP is noticing a
subtle but positive change in public attitudes towards police and
estimates that viable public trust will be accomplished over of a period
of 4 to 10 years.

## B. Recommendations

Other than supporting the HJPC and establishing the public defender
system described above, the team does not make any recommendations for
new programs relating specifically to criminal justice reform. The DOJ
and ICITAP programs appear to be largely successful, but a full
evaluation was beyond the scope of this assessment. A more comprehensive
evaluation should be undertaken in the near future in order to
specifically identify impact, inform 2004 budgeting decisions, and
establish a timeline for phasing out these programs. As noted in other
recommendations, additional initiatives in terms of training and
technical assistance to the bar and other institutions are necessary to
ensure fair and full implementation of the new criminal and criminal
procedure codes.

Finally, the need for reform of the penitentiary system came up
frequently, but was beyond the scope of the team's review. This area
warrants further study and recommendations.

**VI. BAR REFORM**

A. [Overview]{.underline}

New laws on the bars in each entity were imposed in 2002. Two entity
level bars were created, and in the Federation five regional bars, each
one covering two cantons, were also created (there used to be two
totally separate bars in the entity, one for Croats and the other for
Bosniaks, but these, with the help of CEELI and according to the law
imposed by OHR, were merged into the current structure).[^28]

In either entity, one joins the bar by graduating from law school, doing
a two year apprenticeship, possessing a good reputation in the legal
community, and passing an examination administered by the bar, and
paying an admission fee.[^29] There are some 665 members of the
Federation Bar, and 376 lawyers in the RS bar, with an additional 25
associates and 28 candidates. Last year, the RS Bar accepted 40 out of
44 applicants.

Both bars have adopted codes of conduct and have disciplinary
commissions to enforce them, but they do not seem to be getting very
much use yet. The regional bar in Zenica had not yet sought to
discipline any of its members. In the RS, last year the bar received 18
complaints, of which it found that 16 were baseless and that two
required further investigation.

Both bars said that there was good cooperation between them, but a
merger seems unlikely at this point. They recently had a joint meeting
and set up joint committees on human rights, civil law, and criminal
law, but the best near term result might be a the creation of some kind
of umbrella organization, as with the two judicial associations. On the
positive side, the RS lawyers reported that they encountered no problems
practicing in the Federation, and vice-versa. CEELI has been working
with the two associations to try to improve cooperation and move towards
an eventual merger.

In February 2003, the RS Bar was accepted into the International Lawyers
Union in Paris.

B. [Issues]{.underline}

Two important problems, in addition to the question of consolidation,
are facing the bars. One, noted in the discussion on the legislative
framework, is that the Federation Bar does not feel that its voice is
being heard in the process of drafting legislation. The Bar should
create a committee on legislative advocacy that would work to address
this concern, and to improve lines of communication both with OHR and
the Federation and State Assemblies and MOJs. CEELI should be able to
assist them to develop this "lobbying" capacity.

The second concern is that neither bar is doing enough to educate its
members concerning the evolving legislative framework. In both the new
criminal and civil procedure codes, it is envisioned that lawyers will
have a more active role to play in dispute resolution, including the use
of plea bargaining, a totally new concept for BiH. Lawyers also need to
be trained to raise issues relating to the ECHR. Although CEELI has
conducted some training for lawyers, having developed a curriculum for
lawyers on the new criminal codes and trained some 700 lawyers on the
criminal codes in two months and almost 100 lawyers on the new civil
code and law on enforcement of judgments, the lawyers are likely to need
a greater level of assistance in implementing the codes, such as having
lawyers with experience in adversarial or hybrid systems work side by
side with defense lawyers for a time. In addition, although judges and
prosecutors will have an institutional, government supported, training
center, the lawyers will not. The two bars should either come together
to establish some sort of training center, or ask the JPTCs to include
lawyers (paying a fee, if necessary, which could help to build their
sustainability) in their programs. The RS Bar, it should be noted, has
created a committee to develop educational materials on the new codes,
but it has not taken any further action yet.

C. [Recommendations]{.underline}

The USG should continue its efforts in bar development and
professionalization, including facilitating the dialogue on a potential
merger of the bars in the two entities. Two other recommendations for
bar reform are largely subsumed in the other recommendations. First, the
donor community can help to develop the bars' legislative advocacy
skills so that the opinions of the bars are heard in the development of
legislation. The Bar should create a committee on legislative advocacy
that would work to address this concern, and to improve lines of
communication both with OHR and the Federation and State Assemblies and
MOJs. USAID programs should be able to assist them to develop this
"lobbying" capacity. Second, recognizing the increased importance of the
role of the advocate in Bosnia's evolving legal system, the bar needs to
take an institutional approach towards training its members, either by
being included in the training already provided and planned for judges
and prosecutors, or by establishing its own legal training center.

[Timeframe]{.underline}: 2003-2007

**VII. ADMINISTRATIVE LAW REFORM**

A. [Overview]{.underline}

An examination of administrative law in BiH provides a good example of
how governance deficiencies outside of the legal system ultimately
impact on it and the public's attitudes about the rule of law and the
state of democracy.

The international community tends to view the rule of law as the
performance of legal institutions such as courts, prosecutors, lawyers
and police. The international community is also giving significant
attention to criminal justice reform. For the USG, criminal justice
reform is essential to root out organized crime, corruption, and illegal
funding of war criminals and terrorists. Bosnians the team interviewed,
however, especially those outside of the legal profession, have a
somewhat different set of priorities. While recognizing the need to
attack corruption and organized crime, Bosnians also seem to give equal
or greater attention to the performance of municipalities and lower
levels of the courts and public administration that impact directly on
their lives.

Bosnians stressed the importance of concrete and tangible measures that
reduce discrimination and abuse, improve citizen service, and help
citizens have a sense of dignity and efficacy. So far, the various
entities that govern Bosnia \-- with some notable exceptions at the
municipal level -- are largely failing in this regard. Obtaining basic
citizen benefits, such as property return, social security, pensions,
certificates, and licenses, is an exasperating process that is a mystery
to the average citizen (unless he is willing to pay a bribe). Business
inspection is arbitrary and abusive, generally giving successful
businesses little option but to participate in at least small scale
corruption.[^30]

Given its ongoing priorities, the international community has not given
municipal governance a high priority. This may change in the coming
months, however, with OHR producing a statement on municipal policy. For
a variety of reasons, municipal governance is often not seen as a
dimension of the rule of law or as even important to overall governance.
This needs to be reexamined, given the important role municipalities
play in providing critical services, and that dysfunctions at this level
find their way into the courtrooms. Moreover, municipalities stand at
the end of a long chain of bad governance, beginning with a hollow
state, entities without a stable source of funding, the inefficient
cantonal structure of the Federation, and the centralism of the RS. The
lack of a tradition of citizen participation poses an obstacle to
reform, as citizen demand or apathy influences the quality of
governance.

Though outside of the formal legal system, municipalities (and the
police force) shape citizen attitudes to the rule of law and democratic
governance. The municipality and other lower levels of government are
the face of governance to the average citizen, and the locus of personal
needs such as obtaining permits, licenses, certificates, and
entitlements. Interviews with several Bosnians suggest an overwhelming
sense of powerlessness as applications are ignored (unless someone has
political clout or pays a bribe), or citizens are told to collect
information that agencies are required to share ex officio to simplify
procedures. In spite of the poor track records of the courts, nearly
12,000 cases have been filed or have reached the Federation Supreme
Court, mostly from cases arising from municipal or cantonal inaction.

Studies both from Europe and Latin America have shown the correlations
between support for democracy and satisfaction with municipal service.
The poor performance of municipalities, exacerbated by poor court
performance, cannot help but undermine confidence in democracy and the
objectives of the international community.

B. [Current Donor Activities]{.underline}

USAID has decided to leave donor leadership on property to the OSCE.
With administrative procedures imposed in 1998, the pace of claim
resolution has picked up, and OSCE is targeting a completion of the
claim process by the end of 2003.[^31] Increasingly, attention is
turning to business, employment, and social benefits issues. Thus the
recent launching of the Administrative Law and Procedural Systems (ALPS)
Reform Project, implemented by IRIS, is very timely. ALPS takes an
integrated approach toward administrative law, including legal reform,
local government decision making, and business inspection:

-   Legal reforms will attempt to increase judicial efficiency, limit
    appeals, and restructure relationships among municipalities,
    cantons, and the Federation. It consists of support to the IJC in
    amending the Law on Administrative Disputes (LAD), followed by
    organizing a working group to draft a new Law on Administrative
    Procedures (LAP), and later assistance to OHR for a new Law on
    Administration (LA). The LAD is designed to reduce backlog from
    courts, LAP conforms administrative procedures to a Civil Procedure
    Code (currently in draft) and the new LAD. Finally the Law on
    Administration is an OHR-led initiative designed to restructure
    relationships and responsibilities within the Federation's levels of
    government, and is contingent upon the enactment of a Federation
    Civil Service Law.

-   Local government decision making pilots in the Zenica-Doboj Canton
    aim to increase transparency and public participation.

-   Inspection reform activities will rationalize the inspection
    process, train inspectors at municipal and cantonal levels, improve
    communication with businesses and the public, remove legal
    constraints to business permitting and approval, and assist the
    Federation Ministry of Justice in supervising the inspectorate.

-   IRIS is also supporting training judges in the new laws and the
    development of an Administrative Law Clinic at the University of
    Sarajevo Law Faculty.

The ALPS activity is still in its early stages and is reformulating its
priorities in light of initiatives coming from the international
community. However, it has succeeded in establishing close coordination
with the USAID municipal projects implemented by the Cooperative Housing
Foundation (CHF) and PADCO. PADCO's program, which started also in late
2002, promotes greater transparency and municipal performance in seven
municipalities in Northeast Bosnia (four municipalities in the RS, two
in the Federation, and one in Brcko District). CHF's program, ongoing
for the past 18 months, complements IRIS by assisting business and
homeowner associations in pressing for reforms. It appears to have had
greater success with business groups. CHF works in 14 municipalities in
Central Bosnia, relying upon voluntary efforts of both associations and
municipalities.

Apart from these activities, CEELI has successfully tested the Bosnian
FOIA by establishing a Public Advocacy Center (CSpi). CEELI claims a 75
percent response rate to about 200 FOIA requests. CSpi is now training
NGOs and UNHCR's legal aid centers (over 20) to use the FOIA,
increasingly for employment cases.

The World Bank is drafting a law on the standards of inspection. This
will require an effort to bring the stakeholders together for an
implementation plan. DFID is working on business registration, lowering
steps from 14 to 7, and changing inspection rules to rely more on fines
instead of closure, and allow businesses to open while awaiting
inspections (except in health risk cases).

C. [Recommendations]{.underline}

[Goal:]{.underline} To strengthen administrative laws, procedures, and
practices in order to improve access to justice.

[Local Partners:]{.underline} Municipal governments, NGOs, media, MOJs

[Donor]{.underline} Role: The current USAID administrative law project,
which is limited in scope to the Federation, should be monitored and, if
successful, should be expanded nationally. In particular, strengthening
transparency in rulemaking at the municipal level, improving the
application of administrative law at the municipal and basic court
levels, improving the municipal and cantonal inspectorate systems,
expanding law clinic programs, and providing additional legal training
to judges and other professionals should be adopted countrywide. A part
of monitoring the success of these programs may involve conducting
surveys or focus groups to test the pulse of the country with respect to
the state of service delivery. Success may also indicate a greater
emphasis on public education campaigns, but only to reinforce concrete
results. An essential component of administrative and municipal reform
efforts in the ROL sector is citizen advocacy. One USAID program has
successfully established a legal advocacy center for pursuing free
access to public information by NGOs, journalists, and other citizens.
Such activities should be expanded and should be incorporated into
administrative law projects, which, among other things, seek to improve
the access to justice at the grassroots level. Similar advocacy
initiatives could be structured to include other segments of society and
address other legal needs. \"Supply side\" reform may be furthered
through USAID administrative law projects that rationalize procedures
and laws in a given sector. A project to codify and rationalize the laws
and regulations in that sector (e.g., urban policies that affect
business or housing) should be considered.

[Timeframe]{.underline}: 2004-2008

**VIII. LEGAL EDUCATION**

A. [Overview]{.underline}

The legal education system in BiH, as is the case with higher education
more broadly, is in a state of crisis. It is essential that the legal
and donor communities act quickly to address the problems facing the
legal education system: if the people who are to become the country's
future judges, lawyers, prosecutors, and legislative drafters are not
well trained, all the other structural reforms being introduced by the
international community will be for naught.

The first problem is that there are too many law faculties for a country
the size of BiH. Before the war, there was the one school in Sarajevo,
one in Banja Luka, one in Mostar, and one in Tuzla. Since the war,
another school was opened in Mostar, another in Srpsko Sarajevo, one in
Bihac, and one in Brcko. In addition, the main school is Sarajevo has
opened a branch in Zenica. This means that there are eight (or nine) law
faculties. It is unclear how these schools are accredited, but they are
all state supported. Interestingly, despite the relatively large number
of schools, few students actually complete their programs and graduate
after the usual four year program. At Banja Luka, for example, there are
about 200 students in each class, but only 60 graduate each year.
Similarly, in Sarajevo, about 250 students register each year, but only
50 graduate. While some level of attrition is to be expected, the drop
out rate seems extraordinarily high, which is especially problematic
considering that BiH needs more, not fewer, well trained judges and
lawyers. The high number of students who enroll (there are estimated to
be about 8,000 law students in the country) also means that the classes
are too crowded, there are too few teaching materials and library
resources, and there are too few capable professors to go around. The
BiH Ministry of Education needs to implement a more stringent
accreditation program to ensure that these schools can provide
appropriate training, and that law school graduates obtain the education
they need to practice law.[^32]

Another important problem is that the curriculum is antiquated, most of
it dating to the pre-war ([i.e.]{.underline}, Yugoslav) period. An
insufficient emphasis is placed on human rights, EU law, and commercial
law issues such as bankruptcy, competition law, intellectual property,
etc. There are, of course, too few teachers to address these emerging
topics, or write the needed textbooks. Apparently, for example, there is
only one professor in the country truly knowledgeable regarding
intellectual property, and she is past retirement age. It will, however,
be difficult to attract young and talented lawyers to the academy
because of the low salaries. According to the dean at Banja Luka, full
professors are paid 570 KM, and associate professors are paid 530 KM,
but the government wants to cut salaries by 24 %.

A third concern is that the teaching methodology is based largely on
rote memorization and recitation back. There is little role playing,
problem solving, or interactive education. Soros is supporting a program
to introduce clinical legal education, and there are now six clinics at
Sarajevo and three in Banja Luka, which cover matters such as human
rights, international law, civil law, criminal law, family law, labor
law. Soros is planning on opening two clinics in Mostar this year, on
criminal law and human rights (interestingly, this clinic will take
students from both law schools, which are ethnically segregated, and put
them together in one clinic). IRIS is also seeking to establish an
administrative law clinic at Sarajevo. These initiatives are to be
applauded, but they do have some limitations. First, students do not
usually get academic credit for their work in the clinics, which would
require a change in the official curriculum. Second, because of the lack
of student practice rules, the students do not appear in court. Given
their youth as compared to American law students, this may not be
unreasonable, but it does limit the capacity of the clinics to address
the access to justice issue. Only some of the clinics provide advice to
citizens ([e.g.]{.underline}, the labor law clinic), and most simply
provide skills training in the classroom and/or place students with NGOs
or government bodies (such as the HRC or one of the Ombudsmen). Finally,
the impact is limited because the clinics are restricted (as they should
be, in order to provide a meaningful pedagogical experience) to about 20
students per clinic. On the other hand, the students do seem to be
obtaining some practical skills and experience, the schools are
providing space and some supplies, and some assistance is being rendered
to citizens.

The fourth problem is a paucity of material resources, such as computers
and books. This, as with the problem of professorial salaries, is
related to the overall problem of insufficient funding. As noted, each
of the schools are state supported -- there are no private law faculties
in BiH. The Dean at Banja Luka reported that the government is supposed
to provide the school with 37,000 KM per month, but that it is not
always paid and that, in fact, the school had not received that funding
for the past three months. The school does collect some tuition, but
pursuant to government decision, 100 students can attend without paying
anything (based on how well they did in high school). While all other
students are supposed to pay about 400 KM per year, even for them there
are many exceptions: the children of disabled, of veterans, refugees,
displaced people, etc. may either pay nothing or half the usual amount.

B. [Donor Activities]{.underline}

Other than the law school clinics described above, legal education has
not been a major emphasis of the donor community. Although OHR reported
that it is not likely to become a focus for them (other than what might
be required legislatively), the COE, with EC funding, will conduct an
in-depth assessment, probably beginning in September, on legal
education. A reform program that will foster institutional change,
involving the deans, rectors, and Ministry of Education, would ensue.
The first year (maybe beginning in 2004) of that program would link
schools in BiH with schools elsewhere in Europe, introduce a new
curriculum, and foster new procedures for teaching and administering
examinations. Accreditation issues would also be looked at during this
period. The second year would see more equipment being provided to build
libraries and computer labs.

Currently, CEELI (with funding from the U.S State Department) is
implementing the Balkan Law School Linkage Initiative. Under this
program, law schools in the region are linked with U.S. law schools, and
teacher and students exchanges are funded. In BiH, Sarajevo is linked
with the Baltimore School of Law, and Banja Luka with the South West
Texas School of Law in Houston. CEELI is also supporting a moot court
program in BiH.

It is also worth noting that the World Bank is looking at the issue of
higher education overall, which may have an impact on efforts at legal
education reform.

C. [Recommendations]{.underline}

Although addressing the problems that plague the legal education system
is critical, the USG should not become too deeply involved in legal
education reform, pending the full assessment that the Council of Europe
(COE) will soon conduct. Once that report is issued, the USG should
review it to determine whether cooperative interventions would be
appropriate. In the meantime, USG programs should, at the very least,
ensure that professors have copies of the new procedural codes, and
commentaries on them, and that they are teaching these codes in the
classroom. One of USAID's current grantees or contractors should convene
a series of train the trainers sessions on these new codes to make sure
that the professors understand them and will teach them. The USG could
also provide some transitional support, pending the introduction of the
COE program, by endowing a competition of some kind for which law
professors would apply for funding to develop new courses on emerging
topics, in particular relating to commercial law. This could be
implemented by existing USAID programs.

**[APPENDIX A]{.underline}**

**[PERSONS INTERVIEWED]{.underline}**

[Attorneys]{.underline}

Maric Branko

Mirsad Sipovic

Sarajevo

Emir Colakovic

Velida Imamovic

Zenica Bar Association

Ekrem Galijatovic

President

Federation Bar Association

Zlatko Knezevic

Amor Bukic

RS Bar Association

[Government]{.underline}

Saud Filipovic

Minister of Justice

RS

Slobodan Kovac

State Minister of Justice

Borjana Kristo

Federation Minister of Justice

[Journalists]{.underline}

Eldin Karic

Start Magazine

Boro Kontic

Media Centar

[Judiciary]{.underline}

Vlado Adamovic

President

Federation Association of Judges

Zijada Alihodzic

President

Zenica Cantonal Court

Mirko Boskovic

President

Constitutional Court of the Federation

Mirko Dabic

President

Association of Judges and Prosecutors of the RS

Lukic Dragoslav

President of the Steering Board

RS JTC

Amir Jaganjac

Cantonal Court

Sarajevo

Dusan Kalember

Secretary General

Constitutional Court of BiH

Sadudin Kratovic

Federation SC

Castimir Mandaric

President

Mostar Cantonal Court

Salem Miso

State Court

Sarajevo

Martin Raguz

President

Court of BiH

Jovo Rosic, President

Vladimir Raosavljevic, President of the Criminal Division

RS SC

Gojko Vukotic, SC

Bajagic Zdravko, SC

Obren Buzanin, DC

Stanisic Jadranka, DC

Svetlana Bijeclic, Basic Court

Romcevic Snjezana, Basic Court

RS Judges

[NGOs]{.underline}

Goran Bubic

Lex International

Banja Luca

Nedjo Milicivic

Center for Civil Society

Drago Seslija

Association of Citizens Democratic Initiative of Sarajevo Serbs

[Ombudsmen]{.underline}

Franjo Crnjac

Branka Kolar

Zlatko Kulenovic

RS

Vera Jovanovic

Esad Muhibic

Branka Raguz

Federation

Amra Kazic

Mostar Office of the Federation Ombudsman

[From OHR and IJC]{.underline}

Mirela Gruenther

Training Coordinator, Rule of Law Pillar

Office of the High Representative (OHR)

Georg Halbach

Criminal Institute and Prosecutorial Unit (CIPRU)

Office of the High Representative (OHR)

Eija Iivonen

Head of Restructing Department

Independent Judicial Commission (IJC)

Zoran Pajic

OHR

John Peyton

Vice President

High Judicial and Prosecutorial Councils (HJPC)

William Potter

Deputy Head of Rule of Law Pillar

Office of the High Representative (OHR)

Rakel Surlien

Director

Independent Judicial Commission (IJC)

[Police]{.underline}

Petar Franjic

Station Commander

Sarajevo

[Professors]{.underline}

Jasna Baksic

Assistant Professor

University of Sarajevo Faculty of Law

Milorad Zivanovic

Dean

Banja Luka Faculty of Law

[Prosecutors]{.underline}

Mustafa Bisic

Cantonal Prosecutor

Sarajevo

Marinko Jurcevic

BiH Prosecutor

Branka Milosevic

Puvavic Milan

Marinka Kovacevic

RS Prosecutors

[From the U.S. Government]{.underline}

Brain Fahey

Senior Banking Specialist

USAID

Chris Hoh

Deputy Chief of Mission

U.S. Embassy

Emir Mehmedbasic

Economic Restructuring Office

USAID/Bosnia

Michael Henning

Marc Ellingstad

Marinko Sakic

Democracy Office, USAID/Bosnia

Laura Neubauer

Resident Legal Advisor

U.S. Department of Justice

Richard Prosen

Political Officer

U.S. Embassy

Jim Tillman

ICITAP

[Other International Community]{.underline}

Andy Boname, Chief of Party

Alice Thomas, Deputy Chief of Party

Diana Ruzic, Assistant Chief of Party

Administrative Law and Procedural Systems Reform Project

IRIS

Charles Briefel, Deputy Director of Human Rights

Katy Thompson, Legal Advisor -- Rule of Law

Georgette Gagnon

Rodri Williams

Organization for Security and Cooperation in Europe (OSCE)

Hugh Chetwynd

Deputy Special Representative

Council of Europe

Richard Robinson, Cooperative Housing Foundation, Municipal and Economic
Development Initiative (MEDI); PADCO

Alan Holmes, Head of DFID Office

Rebecca Johnson, Project Manager

Claire Howard, Principal Consultant (Atos KPMG Consulting)

Sead Traljic, Consultant

British Department for International Development (DFID)

Mervan Mirascija

Program Coordinator -- Law

Open Society Fund (Soros)

Therese Nelson, Executive Officer

Ulrich Garms, Registrar

Human Rights Chamber (HRC)

Veronica Perzanowska, First Secretary

Slavenka Perkovic, Program Officer

Swedish International Development Agency (SIDA)

Holger Schroder, Deputy Head of Operations

Alexis Hupin, Task Manager

Paraskevi Nazou, Task Manager

Anthony Nott

European Commission

Senad Slatina

Mark Wheeler

International Crisis Group

Ulrich Solte

Legal Advisor, Economic Law Reform

Deutsche Gesellschaft fur Technische Zusammenarbiet (GTZ)

Pat Wujcik, Country Director

Erik Nils Larson, Liaison, Criminal Law Program

Neboja Milanovic, RS Staff Attorney

ABA/CEELI

**[APPENDIX B]{.underline}**

**[DOCUMENTS REVIEWED]{.underline}**

[Legislation]{.underline}

The Constitution of BiH

Criminal Procedure Code of BiH

Law on the High Judicial and Prosecutorial Council of BiH

Law on the High Judicial and Prosecutorial Council of the Federation of
BiH

Law on the High Judicial and Prosecutorial Council of the RS

Law on Ministries and Other Bodies of Administration of BiH

Law on Courts of BiH

[From Government and Judicial Officials]{.underline}

BiH Government: "Jobs and Justice: Our Agenda"

BiH Constitutional Court: "Report on the Constitutional Court of BiH"

Chart of Federation SC Caseload

Extracts from the RS Budget for 2003

[From the High Judicial and Prosecutorial Councils]{.underline}

Periodic Report No. 1 (September 2 -- December 31, 2002)

Plan for Appointment Process: Order of Courts and Prosecutors Offices
and Number of Posts -- Phase 2-5 (February 7, 2003)

[From the Human Rights Chamber (HRC)]{.underline}

Briefing Paper on the HRC

Chart: The Gap between Cases Registered and Cases Resolved, 1996 --
January 31, 2003

"An Examination of the Prospects for Substantially Reducing the
Chamber's Backlog of Cases in 2003"

"Opinion on Legal Aspects of the Future of the HRC and its Proposed
Merger with the Constitutional Court of BiH" (November 7, 2002)

Annual Report (2001)

[From OHR, IJC, and JSAP]{.underline}

Strategy Paper of the IJC 2001 -- 2002 (September 26, 2001)

"Restructuring the Court System: Report and Proposal" (August 15, 2002)

Achievements, March 2001 -- August 31, 2002

A Brief Overview of the IJC (December 2002)

Justice in Due Time, Report of the IJC Court Administration Project,
April 2002

Complaints Involving Judges and Prosecutors (December 19, 2002)

"Access to Legal Information, a Report by the Swedish International
Development Agency" (October 2002)

Training Matrix

Workplan, March -- December 2003 (Draft)

"Prosecuting Corruption: A Study of the Weaknesses of the Criminal
Justice System in BiH" (JSAP Thematic Report 8) (November 2000)

"Political Influence: The Independence of the Judiciary in BiH" (JSAP
Thematic Report 9) (November 2000)

"Courts for Minor Offences" (JSAP Thematic Report 1) (1999)

[From the U.S. Government]{.underline}

Department of State Report on Human Rights Practices (March 4, 2002)

ICITAP BiH Program Management Plan

USAID SEED Reports (1999 -- 2002)

USAID BiH Strategic Plan (undated)

[From USAID Grantees and Contractors]{.underline}

ABA/CEELI, "Judicial Reform Index for BiH" (October 2001)

ABA/CEELI Workplan, May 1, 2002 -- September 30, 2003

ABA/CEELI Quarterly Report (July 1 -- September 30, 2002)

ABA/CEELI Quarterly Report (October 1 -- December 31, 2002)

Administrative Law and Procedural Systems (ALPS) Reform Project in BiH,
Year One Final Workplan (February 4, 2003)

[Other Reports and Miscellaneous Documents]{.underline}

British Department for International Development (DFID), "BiH:
Affordable and Effective Policy Development in the Justice Sector"
(Project Concept Note)

Council of Europe Priority Actions for 2003-04-03

Danish Center for Human Rights, "Making Justice Work: Scoping for
Institutional Support to Ministries of Justice, BiH" (for DFID) (October
2002)

International Crisis Group, "Courting Disaster: The Misrule of Law in
BiH" (March 25, 2002)

Open Society Institute, "Lessons Learned on Reform in BiH"

[^1]: The team consisted of Mark Dietrich, an independent consultant and
    attorney based in New York; Jose Garzon, of USAID's Europe and
    Eurasia Bureau in Washington; Robyn Goodkind, USAID's Senior
    Democracy Advisor in BiH; and Margaret O'Donnell of the United
    States Department of Justice in Washington. Jasna Kilalic, a lawyer
    and program manager for USAID in Sarajevo, also worked with the
    team. During the course of the review, the team met with over 90
    representatives of the donor community and the local legal
    communities in Sarajevo, Banja Luka, Mostar, and Zenica, and
    collected and reviewed numerous reports and other documents. A list
    of the persons interviewed is annexed as Appendix A and the list of
    documents reviewed is annexed as Appendix B. Despite its best
    efforts to capture as much information as possible, the team is
    keenly aware of the limitations involved in conducting a survey of
    this nature within a relatively limited timeframe. Comments and
    corrections are encouraged and should be submitted to
    <MDietrich@msn.com> and <RGoodkind@usaid.gov>.

[^2]: Coordination is also a problem within the USG itself, as there
    does not always seem to be consensus among USAID, USDOJ, and U.S.
    State Department concerning the allocation of resources. USAID
    (including both the Democracy Office and ERO), DOJ, and State all
    need to convene on a regular basis to not merely coordinate their
    activities, but to agree on priorities and to develop strategic
    plans for the implementation of USG activities. By setting a better
    example in this regard, and speaking with a unified voice, the USG
    can help to improve overall donor coordination throughout BiH.

[^3]: Of particular relevance to this review, OHR imposed new criminal
    and criminal procedure codes at the state level in early February
    2003 (it is hoped that the entities will adopt mirror images of that
    law in the near term, or such will be imposed by OHR). Amendments to
    the entity/cantonal laws on courts ensuring the merger of first
    instance courts were imposed in November 2002. Laws on Prosecutors
    offices were imposed in August 2002. The new laws establishing the
    three HJPCs were imposed in May 2002. In addition, new civil and
    civil procedure codes, as well as a law on enforcement of judgments,
    are completed and expected to be passed or imposed at all levels
    soon. Finally, a working group is reviewing the law on
    administrative disputes in the Federation, and a new draft may
    emerge some time this year.

[^4]: The new State Minister of Justice in his meeting with the team
    recognized that one of his primary functions is to harmonize
    legislation, but he does not have a department that would do that.
    Another supposed function is to coordinate international legal
    assistance, so at least in theory the State MOJ is an appropriate
    partner for donor coordination, and the Minister suggested
    conducting a roundtable or conference of some kind with the
    international community.

[^5]: IJC and CEELI have worked on the civil procedure code, the law on
    enforcement of judgments, and the law on the bar, and IRIS is
    working on revisions to the law on administrative disputes.

[^6]: GTZ helped to draft two important laws, one on land registry,
    imposed last year, and the law on notaries, adopted in the
    Federation but not yet in the RS, where it is opposed by lawyers.
    The system of notaries will be new to Bosnia, but will be very
    important because it affects land ownership. The notary is an
    impartial legal advisor for two parties and at their request drafts
    a contract for them. Five types of contracts must be "notarized" or
    will be found null and void: real estate contracts, those that
    establish business companies, contracts between spouses, and those
    which dispose of important property of juveniles or those lacking
    legal capacity. For real estate contracts, the notary will also
    check to make sure that the title is clear, and register the
    transaction at land registry offices in certain courts. GTZ is
    conducting training for prospective notaries this summer, will help
    administer an examination this autumn, assist to establish a chamber
    of notaries, and then they will start work in March 2004. GTZ will
    also support a public education campaign. The MOJ will license the
    notaries and will decide on the number and location of offices
    (usually about one notary per 20,000 people). GTZ is also helping to
    equip the land registry offices and train the clerks. GTZ also
    drafted a land registration law, but it met with "huge resistance"
    and was imposed by OHR. Generally, the land registration books are
    reliable, according to GTZ, but the title is not so clear for
    "socially owned" property, so newly privatized companies cannot take
    advantage of that land to mortgage it to raise funds. Finally, GTZ
    is working on a draft law on property usage, including mortgaging.

[^7]: COE reviews legislation for compatibility with COE requirements
    (there were 91 conditions that BiH had to fulfill) and is trying to
    build the capacity of the Bosnians to do this themselves. The
    partner for that was Ministry of European Integration but that is
    being shut down and the new partner will either be the Ministry of
    Human Rights and Refugees or the new State MOJ.

[^8]: The Federation MOJ has three departments (Judicial, Execution of
    Penal Sanctions, and Administrative Issues). Even though one of its
    tasks is legislative drafting, it does not have a department for
    that, relying instead on the working groups. The RS MOJ reported
    that it used to have a department for preparing legal and normative
    acts, but it no longer exists (its main departments are Judicial,
    Minor Offenses, and Execution of Penal Sanctions). It is interested
    in drafting legislation and working on harmonization with the
    Federation, but it is not sure if it can re-create a drafting
    department because of budgetary constraints.

[^9]: CEELI organized some hearings on the civil procedure code, and OHR
    sent the criminal procedure code for commentaries to 25
    international and 20 national organizations.

[^10]: Lawyers in Sarajevo and Zenica were particularly vocal about
    their lack of participation in the reform process, complaining that
    they are not consulted regularly and when they are, their advice is
    not heeded, citing the law on the bar and the law on land
    registration as examples. One lawyer argued that foreign firms
    should not draft legislation for BiH because they cannot understand
    the entire system, and that even if they are trying to follow EU
    models they need to do more to involve more local lawyers. He also
    noted that sometimes changes are made on the advice of one lawyer,
    who cannot be said to speak for the entire (or a majority)
    membership of the bar.

[^11]: As discussed in other parts of this report, this alienation
    extends beyond the legislative agenda, to the overall agenda for
    legal reform, such as the restructuring of the judiciary and
    training needs, etc.

[^12]: The British Department for International Development (DFID)
    reported that it is just beginning a project to strengthen policy
    planning and budgeting in the justice sector. As a first step it is
    helping the MOJs and MOIs at the entity level to rationalize the
    allocation of their budgets.

[^13]: One potential partner for this effort is the Criminal Code
    Implementation Team, organized by OHR. It includes 15 local lawyers
    (nominated by the State MOJ) and two outside organizations, the
    Organization for Security and Cooperation in Europe (OSCE) and the
    COE, and is hopeful of obtaining some modest funding from the State
    budget. It will monitor implementation and get feedback to see how
    the new code is working and suggest amendments and training.

[^14]: Judges' salaries now range from 1,500 to 4,000 km per month,
    based on seniority and other factors laid out in the law on courts.

[^15]: In 2002, 78 % of court cases in the Fed. SC came from the
    administrative area, with less than 12 % criminal. More importantly,
    the vast bulk (85.5 %) of administrative cases remained undecided
    after one year. One court president called administrative law "a
    catastrophe." In the Mostar cantonal court, for example,
    administrative caseloads number in the several hundreds, as opposed
    to 100 -150 criminal or appellate cases. Enforcement of these
    decisions is slow as temporary occupants resist eviction and local
    authorities fail to act. Many property cases find their way to the
    local ombudsman, who then follows up with local authorities to
    obtain enforcement. The ombudsman in Mostar reported receiving over
    3,000 cases last year, mostly in property, and over 300 since
    January 1 of this year.

[^16]: The MOJs have done a less than stellar job in that regard. One
    cantonal court, for example, with 22 judges and 54 support staff,
    had only seven computers. Although judges are now relatively highly
    paid, thanks to the OHR imposed decision, they are not always paid
    on a timely basis. In addition, office space, court space, and
    equipment and supplies provided to the courts are substandard.
    Although the judicial system generates a fair amount of funding
    through fines and fees, most of that is returned to the entity or
    cantonal government. In 2001, the RS misdemeanor courts alone
    brought in 8 million KM, but the entire justice sector received only
    41 KM, to cover courts, prisons, prosecutors, and the MOJ. The RS SC
    reported that very little of the fees that the courts generate come
    back into the judiciary and it has little control over the budget.
    One RS court reported that the local branch of the post office would
    not accepting their mail because the bills were not being paid. One
    cantonal court reported that the court does not always get the full
    amount that has been allocated to it by the canton. Another cantonal
    court negotiated an agreement to get a certain percentage of the
    fees and revenues that it generated returned to it, but the
    agreement was never honored.

[^17]: OHR imposed legislation in May 2002 that established three HJPCs:
    one each for BiH, the Federation and the RS. Members of the HJPC,
    including eight selected from the international community, assumed
    their responsibilities in September 2002. The HJPC meets as one
    council, but when making a decision regarding an entity, only six
    members from that entity and two from the other entity, and all
    internationals vote. The State Council consists of all members, plus
    two from Brcko. There are currently discussions within OHR and the
    HJPC to merge the three bodies into one HJPC. The HJPC is vested
    with the authority to select judges and prosecutors and to detail
    matters related to disciplinary liability and responsibility
    consistent with the transparent criteria set forth in its
    implementing legislation. This authority includes the responsibility
    for determining the number of judges and prosecutors for each court
    and prosecutor's office as well as supervision of the training of
    those judges and prosecutors. The HJPC also has broad authority to
    take measures to improve court efficiencies and to assume other
    responsibilities related to the proper administration of the
    judicial system, including the removal of judges or prosecutors for
    disciplinary reasons. The international component is supposed to end
    in December 2003, but the law allows it to continue beyond, which it
    likely will.

[^18]: According to IJC, the Norweigan-funded court administration
    project and ICITAP are developing a case tracking system that will
    be implemented in the three pilot courts with the intention of
    eventually implementing the system in all courts that have the
    necessary hardware to support the system. However, it is unclear at
    this time how courts will acquire the hardware and whether funding
    is secured for this nation-wide plan.

[^19]: The Criminal Institutions and Prosecutorial Reform Unit (CIPRU),
    part of OHR, helps to design the infrastructure of the prosecutorial
    legal system from legislation to logistics, including architectural
    design and renovation of courthouses. IJC is doing the same for
    court premises. Much of the renovation at this time is temporary
    until the full impact of new laws is better understood, but CIPRU
    and IJC are identifying buildings, scheduling reconstruction and has
    national staff on site.

[^20]: The decision to create two centers was made for political reasons
    (according to sources) and the team believes that one center would
    probably be sufficient for the task, would be more cost effective,
    and would help to harmonize practice in the two entities.

[^21]: The team was unable to meet with a JPTC representative in the
    Federation, but in the RS, the head of the steering board reported
    that the JPTC had been legally established, that offices (at a
    correctional center) had been provided, and that 300,000 KM from the
    budget (meant to cover operations, not trainings) had been
    allocated. He expected that a director will be selected soon. The
    steering board has nine members, serving as volunteers: two judges
    from the SC, two prosecutors, and two professors from the law
    faculty, and then some lower court judges and prosecutors. The
    steering board is appointed by the HJPC, and must meet once every
    two months. Once the director is selected, he will develop the
    curriculum and present it to the board, which will then present it
    to the HJPC.

[^22]: In former Yugoslavia, there was a functioning arbitration code,
    so ADR is not an entirely new concept. The Canadian International
    Development Agency (CIDA) also trained some judges as mediators in
    2001, but there was little follow-up. The World Bank may create a
    pilot mediation center, focusing on either commercial or family law.
    World Learning will send some ministry officials and people from the
    drafting commission to observe the mediation system in England and
    Ireland, in time to affect the drafting of a new law on ADR that is
    currently in the works.

[^23]: The RS adopted a new law on bankruptcy and liquidation that went
    into effect on January 1, 2003. The Federation is lagging a little,
    but the law is expected to be passed soon. The need for training in
    this area extends beyond judges to include lawyers, clerks, and
    trustees.

[^24]: In the first round of applications, for the highest levels of
    judges and prosecutors, the HJPC received 300 applications for 89
    positions. In the second round, for the lower positions, the HJPC
    received 1,617 applications for 875 positions.

[^25]: Improving the talent pool will ultimately depend on improving the
    education system, discussed *infra.*

[^26]: The RS Ombudsmen claimed a high degree of success in this area.
    In 2002, it handled 17,000 requests from citizens, and 65 % of its
    recommendations for resolution were adopted. Most complaints are
    based on violations by municipal authorities, and many of those
    concerned property rights. The second highest number of complaints
    related to court delays.

[^27]: The State Police (SIPA) was originally conceived of as a national
    police force but ethnic politics intruded and it was gutted in order
    to get other needed legislation passed. Now OHR intends to start
    adding legislation to give SIPA teeth.

[^28]: CEELI helped to implement the new law on the bar by creating
    model statutes and ethics codes for the five branches in the
    Federation. But the bars were given only 60 days to implement the
    new law, including setting up these branches, which was very
    difficult. The bars have largely complied, but could not accomplish
    things like developing a malpractice insurance plan, which still
    remains undone. CEELI is also helping to put together two study
    tours for the bars, one to Nuremberg (partly funded by that bar) and
    the other to Paris (funded by World Learning).

[^29]: The Federation recently raised the fee to join the bar from 3,000
    KM to 10,000 KM. When the team remarked upon this increase, some
    reported that it would be waived for newly graduated lawyers, and
    others said that they were hoping to dissuade judges who are not
    reappointed to the bench from seeking to join the bar. In the RS, it
    costs only 2,000 KM to join the bar. While this is likely to rise,
    one RS lawyer noted that there would soon be 105 judges out of work
    in the RS, "and we do not want to close the door on them."

[^30]: When municipal revenue declined in Zenica, the municipality
    responded by increasing inspections to raise revenue from fines.

[^31]: Actual return is lower than the rate of claim, since many
    claimants sell their property, a fact lamented by several persons we
    interviewed, but outside the scope of our assessment.

[^32]: It should be noted, of course, that legal education in BiH is not
    at the graduate level, but rather is an undergraduate degree, and
    that not everyone who attends or even graduates from the law
    faculties practice or intend to practice law. While the team did not
    obtain any statistics on this, it was reported that many go to work
    for government agencies or become court clerks, etc. On the other
    hand, some students may obtain an MA, which will take an additional
    four years, or a PhD., which can take a total of nine years to
    obtain.