The 2023 European Commission report on Bosnia and Herzegovina highlights persistent challenges in meeting EU membership criteria, with ongoing issues in the judiciary, corruption, and governance. Recent events, including demands for a judge’s resignation and the Republika Srpska’s refusal to recognise Constitutional Court decisions, raise concerns about the country’s constitutional and legal order.

The recent publication of the “Key Findings of the 2023 Report on Bosnia and Herzegovina” by the European Commission on 8 November 2023 highlights the ongoing challenges faced by Bosnia in addressing the political criteria required for EU membership as outlined by The Commission Opinion published in 2019. While there have been some positive steps towards adopting EU alignment reform, areas for improvement remain, including impartiality and independence of the Judiciary.

Reflecting these concerns, in April 2023, Senior Serb officials called for the Serbian judge in the Constitutional Court to step down over a longstanding controversial property law. Representatives in the National Assembly of the Republika Srpska also approved a resolution not to apply the decisions taken by the Constitutional Court of Bosnia and Herzegovina. Assembly President Nenad Stevandic said, “all decisions of the Constitutional Court of Bosnia and Herzegovina will be justified in the RS, even if they are legal.” This calls into question the authority and integrity of the Constitutional Court and breaches the constitutional and legal order of the country.

The 2019 Opinion & Political Criteria

The European Commission adopted its Opinion (Avis) on the EU membership application of the country in May 2019, identifying 14 key priorities for the country to fulfil to further EU accession negotiations. In the Opinion, the Commission assesses Bosnia’s application based on the country’s capacity to meet the criteria set by the European Council in Copenhagen in 1993, as well as in Madrid in 1995, notably the country’s administrative capacity and track record in implementing its obligations under the Stabilisation and Association Agreement (SAA),  a comprehensive roadmap for deep reforms in democracy/functionality, the rule of law, fundamental rights and public administration reform.

One challenge highlighted by the Opinion is corruption affecting all levels of government and impacting citizens’ daily lives, especially in critical areas like health and education. Current efforts to combat corruption lack unified legislation and face inadequate institutional cooperation. The law enforcement system is fragmented and susceptible to political interference, while prosecution lacks proactivity. Financial investigations and asset seizures, crucial for anti-corruption work, are largely ineffective. High-level corruption cases rarely result in convictions, and current sanctions lack a deterrent effect.

The 2023 Commission Report – The Judiciary

Bosnia has made some progress in addressing issues surrounding the judiciary. In September 2023, Bosnia amended the Law on the High Judicial and Prosecutorial Council (HJPC) to establish a system to verify the asset declarations of judges, prosecutors, and HJPC members. Some changes were made to the law after the initial consultation of the Venice Commission, which has hindered the effectiveness of the asset-declaration system.

According to the Commission report, the independence and impartiality of the judiciary did not improve. Executive and legislative authorities have not adopted additional safeguards, and an “overly broad discretion persist[s] in applying the rules on appointment, disciplinary responsibility, career advancement and conflict of interest of judges and prosecutors.” There are ongoing signs of deterioration in judiciary integrity, and urgent measures are needed to help regain public trust. The inability of the judicial system to function optimally continues to undermine the promotion of citizen’s rights and the fight against corruption and organised crime.

Critiques and Criticisms

There are three significant criticisms encompassing police brutality, judiciary corruption, and a lack of transparency. These bureaucratic hurdles have resulted in the dysfunctional prosecution of cases. In 2017, the US State Department evaluated Bosnia’s legislation, law enforcement, and border control, concluding that most of Bosnia’s coordination and cooperation problems result from personal, political, and institutional rivalries among law enforcement agencies and the State Prosecutor’s Office. Bosnia continues to lack the capacity to investigate and prosecute cases involving investigations with complex financial dealings, cyber recruitment, and corruption. While many prosecutions resulted in convictions or plea bargains, sentences were inadequate.

In 2021, the Council of Europe published a report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The anti-torture committee reported severe physical and psychological ill-treatment allegations by law enforcement officials. These were based on observations made in 2019 of remanded and sentenced prisoners in Sarajevo, Mostar, and Banja Luka. During the inspection, “the CPT’s delegation received numerous allegations of physical and psychological ill-treatment – including of a severity which, in the CPT’s view, amount to torture (e.g., falaka, rape with a baton, mock execution with a gun) – of detained persons by law enforcement officials.” The high number of credible allegations is a source of deep concern. The committee stated that the “seriousness of the findings of the 2019 periodic visit require the competent authorities to take vigorous action to promote a radical change of culture within the police; physical ill-treatment of detainees must be rejected as unprofessional and unacceptable by the police themselves.”

A second major criticism is the prevalence of corruption within the judiciary. In November 2020, the OSCE published the Third Annual Report on Judicial Response to Corruption: The Impunity Syndrome, which assessed the judicial response to corruption in 2019. The evaluation was based on trial monitoring of 302 corruption cases in 45 courts across Bosnia. Kathleen Kavalec, previous Head of the OSCE Mission to Bosnia, says, “a crisis of ethics in the [Bosnian] judiciary and the failure to ensure accountability for corruption cannot be ignored.” The report found many failures in the criminal justice system have led to de facto impunity of severe offenders. Judges often consider extenuating circumstances and hand down sentences significantly below the minimum of what the national criminal code requires. If the sentenced incarceration is short enough, often less than one year, the convicted individual can pay fines rather than serve time.

The third criticism is the lack of transparency in the Bosnian judicial system. According to the OSCE, the country must “overhaul its complex and opaque justice system.” Reflecting on the report’s findings, previous EU Ambassador Johann Sattler said, “it is high time for the authorities to show they are willing to make the changes that the country desperately needs by swiftly passing the necessary legislation ensuring integrity, transparency and accountability of public office holders, which is also key to rebuilding public trust.”

Recommendations

According to the Copenhagen requirements, accession occurs when a nation demonstrates its capacity to meet the prerequisites for membership by fulfilling the economic and political criteria demanded. One requirement that impedes Bosnian accession is the stipulation that “the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.”

Proposed recommendations to help Bosnia achieve membership status encompass various areas, including constitutional reforms, administrative capacity building, robust anti-corruption measures, judicial system reforms, transparency and accountability, and the implementation of a self-assessment mechanism. To draw on the best practices and experiences of others, Bosnia must collaborate closely with international organisations, civil society groups, and EU member states. By working together, valuable insights can be gained and applied to propel Bosnia forward in its EU candidacy journey.

Dr Laura Welty is a Sessional Lecturer at the University of Sydney focusing on international relations, ethnic conflict, identity, and civil society. She has previously held positions at the United States Studies Centre, the Sydney Policy Lab, and the Electoral Integrity Project.

This article is published under a Creative Commons Licence and may be republished with attribution.