Author: Nedim Hogic

This paper examines the contemporary human rights situation in Bosnia and Herzegovina, taking a broad look at the challenges existing in the main areas of civil, political, social and environmental rights, as well as access to justice and gender equality. Additionally, the paper looks at the main challenges regarding judicial independence. The paper finds that much of the contemporary problems existing in the field of human rights can be traced back to the constitutional design adopted in the aftermath of the 1992-1995 war. The post-war state-building effort done without a clear blueprint led by external actors drifted between confederalism and federalism and between collective and individual rights. Such a development has resulted in the uneven distribution of competencies between the federal entities and the national state-level government that leads to protracted legal battles over their competencies and to constant advocacy for reforms to the constitution that would make the country more or less unitarist. The paper proposes policy recommendations that could be useful in delivering better responses to the present challenges.

Introduction and Context

 

The constitutional design of postwar Bosnia and Herzegovina (BiH) was shaped as a result of the peace negotiations concluded in 1995 in the United States Air Force base in Dayton, Ohio, and featured a unique blend of discriminatory constitutional provisions and strong human rights commitments. On the one hand, the provisions that ensured the protection of the collective human rights of the ethnic groups and the competencies of the two federal entities that comprise the country (Republika Srpska, a unitary entity and Federation of BiH, itself a complex entity composed of ten cantons) featured quite prominently in the constitutional text adopted. The constitution envisaged participatory ethnic quotas in the executive and legislative branches of government, territorial arrangements and veto rights as a guarantee of ethnic equality and representation. Compared to another transitional constitution adopted in the same period, that of South Africa, the Bosnian constitution enabled the apartheid-like structures while the South African constitution abandoned them (Pajic 1998). Following the 2000 decision on the constitutionality of peoples made by the BiH Constitutional Court and the 2002 amendments to the entity constitutions, the system of ethnic quotas and the principle of the constitutionality of the peoples, the latter virtually unknown outside of the Bosnian context, have become a cornerstone of collective rights protection (Begic and Delic 2013). However, these collective rights are only reserved for those who are members of one of the three major ethnic groups, or constitutive peoples – Serbs, Bosniaks and Croats. Citizens that do not belong to any of the three groups are identified as Others and do not enjoy the same rights – they cannot run for the BiH Presidency as the highest organ of the executive branch of government and they cannot be members of the highest legislative body, the BIH Parliamentary Assembly’s House of Peoples. Such a design has been largely supported by the representatives of the Serb and Croat parties with the latter, being the least numerous of the three peoples in the country, considering it a guarantee of their rights, and the former considering it as a springboard for potential secession.

On the other hand, the Constitution envisaged the creation of numerous human rights institutions, such as the BiH Ombudsman or the Human Rights Commission of the BiH Constitutional Court, and featured a long list of human rights treaties that were to be applied together with such a constitution. As a result of the extensive investments in both the courts and human-rights-related procedures and tribunals, many important achievements were made. Almost all immovable property seized during the war has been returned to its pre-war owners and the protection of property rights by the courts and the police has been greatly improved with the crime rates in that area recording a steady decline. Hundreds of war criminals have been prosecuted by domestic and international courts and a significant return of refugees to BiH and within BiH was recorded. The BiH Constitutional Court developed a strong jurisprudence in the domain of human rights, applying the human rights standards developed by the European Court of Human Rights (ECtHR) in its own interpretation of the European Convention of Human Rights (ECHR). Supported by the three judges, appointed by the President of the ECtHR, the Court also became an arbiter of the main constitutional issues, developing a jurisprudence well-suited to the matter (Schwartz and Munnison 2016). This tension between the highest standards of human rights protection, to which both the constitution and the state- building activities aspired, and the collective ethnic rights and veto powers have determined much of the political developments of the country and led to a general perception of instability even today.

The international presence, embedded in the Dayton constitution’s institutional architecture during the 1990s, was not just limited to the judges of the BiH Constitutional Court. In fact, it could be argued that BiH was under international administration through the body called the Peace Implementation Council (PIC), a body founded in the wake of the Dayton Peace Accords. This body, which features representatives of many different countries, was to oversee the progress in the implementation of the accords. The High Representative, a person charged with overseeing the civilian aspects of the Dayton Peace Accords, had vast powers including to impose laws and to remove officials (Djikstra and Raadschelders 2022). Owing to these vast powers and to united international support, BiH evolved from the confederal design of the Dayton constitution to a federal design that was considered to be necessary for future EU accession. This foreign-supported progress between 1996 and 2006 was more than many in the international community expected and led to an optimistic view of the viability and perspectives of the country. Calls for the closure of the OHR, whose practices were deemed undemocratic, were made in the belief that the country would function well by itself (Knaus and Martin 2003). The issue, however, sharply divided the EU on one side and the United States and United Kingdom on the other. While the US and UK were in favour of a strong international presence and engagement, many EU countries, in particular Germany, believe that the strong engagement of the OHR needed to be halted (Tirak 2010)¹. A compromise of sorts was reached; the OHR would remain present but would refrain from intervening in domestic matters. This informal compromise functioned between 2011 and 2021 and was ended, as will be explained later, by the imposition of a decision criminalizing genocide denial.

When Europeanized state-building began, following the conclusion of the SAA in 2007, it was unknown that many of the policies it was based on are susceptible to state capture and that they do not function well outside of the relatively fast modus of enlargement, which was operational until 2007, and the accession of Romania and Bulgaria. With the benefit of hindsight, we can conclude that, instead of questioning how and what worked, the EU’s decision to expand the conditionality, especially in the field of the rule of law, which, together with the other conditions that were piled on, had a counterproductive effect on BiH and the Western Balkans states (Hogic 2020; Dzankic, Keil and Kmezic 2018). At the same time, the EU became fraught with its own problems, which made enlargement rather unpopular in some of the key member states, such as France (Hubner et al 2021). To address the issue of bypassing full membership while giving the WB countries access to the EU market has been proposed through the creation of a single market union under the auspices of the Berlin process initiative (European Stability Initiative 2020) or through the creation of a joint economic zone (Milosevic 2022).

The EU has largely given up on requesting a general constitutional reform as a precondition for enlargement, instead looking for limited progress in areas that would satisfy the criteria for European integration. However, what exactly those were is unclear even today, not just because the EU is unwilling to state them but because they are difficult to define. BiH is the most decentralized state to aspire to join the Union since Spain joined in 1986 and finding exactly what represents the level of competencies needed at the national level remains difficult as the EU’s acquis is not a guide for either constitutional reform or sound constitutional making – it largely remains a set of policies designed to support a common market. An answer from the political rather than the policy side also remained absent as the lobbying efforts conducted by the political representatives of the three main sides succeeded in cancelling each other out.

Despite the many prophecies and opinions that, unstable as it is, and without the perspective of EU membership, BiH will fall apart or become ungovernable, this never happened. Instead, the international community that created the PIC and the OHR disintegrated into a multipolar world. While Russia did not veto any decision of the PIC during the first ten years of its existence, it gradually become more interested in supporting the position of the Serb and Croat nationalist parties. As the US and UK were more supportive of a more civic-oriented state-building and were hostile towards any idea of secession, the leading Bosniak parties, focused on the preservation of the state, felt that these two countries were “on their side”. While the EU countries were generally more favourable about the technical criteria concerning enlargement and potential EU accession, they eventually acquiesced towards shaping the conditionality in a way that favoured the stance exhibited by the Croat parties. While this delineation between foreign influence and the general orientation of the Bosnian political parties is imperfect and permeable, it allows us to paint a picture of a political landscape that is not conducive towards significant improvements in human rights protection. International support arises, not as a result of a stable and systemic effort for the country to integrate with the EU, but rather as a set of disconcerted efforts from different international actors. As a result, all the important political actors are heavily involved in lobbying across the political spectrum in many important countries in the world. This makes BiH a somewhat unique case of outsourced politics because its leading actors strive to achieve its shaping outside of the country and its institutions (Hogic 2021). As a result, the human rights development lacks domestic agency and remains confined to slow progress sometimes more influenced by culture than by a reform agenda.

Certainly, it would be unfair to blame the entire problem of human rights protection in BiH on external constraints and a lack of incentives. There are significant domestic factors that produce strong human rights challenges These include the lack of well-organized and independent civil society (EPRD 2016), the effects of the war and post-war migration (Kadusic and Suljic 2018) in which the country lost much of its liberal constituency (i.e. the urban population of mixed ethnic origin), and the fact that the post-war rebuilding was coupled with criminal privatization that created a strong connection between private business and organized crime (Divjak and Pugh 2008). The lack of courage and bravery on the side of those political forces that considered themselves progressive also made the countries miss several important opportunities for progress. Widespread corruption has made economic development and, in particular, direct foreign investment much slower than elsewhere in the region (Krasniqi, Ahmetovic and Bartlett 2022). Post- war reconstruction happened at the same time as the transition from socialism to communism. As a result of this, the relatively wide scope of economic and social rights that the socialist Yugoslavia guaranteed was not fully removed from the legal and constitutional documents but remained “rights on paper”. For example, it took at least two decades for the widespread evasion of payments to the social and pension benefits for workers to recede. However, many of these variables were also present in other EU candidacy countries and were overcome through the engagement of institutional actors and a combination of carrot-and-stick policies that rewarded reforms with funds. In the case of BiH, just as in the case of other WB countries, it is much more difficult to create such an interplay in a situation where the EU conditionality is incomplete and dysfunctional.

Civil and Political Rights

 

The central human rights issue at the heart of the political debate in the country is the issue of active and passive electoral rights (the right to elect and to be elected). The ruling of the ECtHR in Sejdic and Finci v. BiH in 2009, a case in which members of the Jewish and Roma national minorities sued the country because it does not allow those who do not declare themselves as members of one of the three constitutive peoples (Milanovic 2010) to be members of the Presidency and the House of Peoples, exposed the weaknesses of ethnic-based constitutions. The lack of implementation of the ruling became a major obstacle to the EU accession of the country, but the prolonged negotiations failed not because of opposition to the rights of others to be the candidates for members of the Presidency and the House of Peoples but because of internal political struggles. Namely, the almost full mobilization of the political support of the Croats by the HDZ allowed this party to attempt to discredit any electoral model of the implementation of the judgment that would not guarantee the election of a Presidency member unless they were supported by a majority of Croat votes. Supporting this was the argument that Zeljko Komsic, Croat BiH Presidency member from 2006 to 2014 and 2018 to 2022, was elected by a majority of Bosniak votes and that he, for that reason, has no legitimacy to represent the Croats. The parties of Bosniak, social democratic and liberal provenience reject these arguments claiming that it would further ethnicize the vote, for example, through the creation of special electoral units or through the identification of voters at the electoral poll as voting for a Croat or Bosniak presidency member. Mediating in this dispute, the EU and the US have designed a new electoral model that would legitimize the demands of the HDZ provoking strong opposition from the Bosniak parties without whose support the model lacks the votes necessary to be adopted by the BiH Parliamentary Assembly. This political conflict over the interpretation of the changes needed for the country’s constitution leaves the document unaligned with Protocol 12 of the ECHR.

The implementation of the Sejdic and Finci v. BiH judgment has remained a salient topic in the last decade, underscoring the need for a comprehensive reform of the country’s constitution. However, instead of comprehensive constitutional reform, only piecemeal approaches to constitutional reform have been tried – without much success. Only one constitutional amendment regulating the status of the Brcko District, a self-governing area co-owned by the two entities, has been adopted in 2009.

The electoral process is in doubt not only because of ethnic issues. Many problems concerning the financing of political parties and electoral campaigns have emerged as a result of a failure to update and enforce the legislation that is in place (Council of Europe 2022). As a result, the leading nationalist political parties can manipulate public funds during the election campaign leading to significant misuse that may impact the electoral results (IFES 2018). Freedom of association and assembly has been largely upheld. The number of associations per capita in BiH remains on par with its regional peers but the country’s legal framework is unnecessarily burdened by the demands stemming from the Law on Labour Relations on the BiH level making employment in nongovernmental organizations harder and more bureaucratic than it should be (Freedom House 2022). Freedom of expression and the quality of media reporting remains challenged not so much because of direct government intervention but because media outlets and their owners are increasingly affiliated with political actors. Luckily, as a result of the high degree of political fragmentation following inter-ethnic and intra-ethnic lines, media plurality exists. In 2021, the High Representative imposed a decision banning genocide denial and the minimization of other war crimes as established by the decisions of international and domestic tribunals. This decision was a trigger for the political crisis that would see RS representatives withdraw from participation in the domestic institutions but saw the genocide denial drop significantly (Srebrenica Memorial Center 2022).

The two groups remaining most discriminated against are the LGBTIQ population and the Roma national minority. In 2019, the first Pride gathering took place in Sarajevo amidst high controversy and protests from Muslim religious groups. The 2022 Pride featured such strong police protection measures that it led to claims from the organizers that the police tried to negatively influence the citizens against future Pride events. The LGBTIQ population remains without the possibility to enter into marriage or civil union and to adopt children. Despite initial progress in the preparation of the draft amendments to the changes of the Family Code in FBiH that would lead to the legalization of same-sex partnerships, the draft law in question was never sent to the parliamentary procedure (Sarajevo Open Centre 2022). The medical needs of transgender persons remain unrecognized by the medical and legal systems. In the RS, whose leader Milorad Dodik openly sends homophobic and so-called anti-gender messages in order to align himself with the conservative right-wing movements in Europe (Sarajevo Open Centre 2022), the realization of the rights of the LGBTIQ population seems unlikely without a change of government in that entity.

The exact number of the Roma population remains unknown as they often do not disclose their ethnic origin in the census, which is why the estimates vary from 12,583 officially declared to 40,000 (Civil Rights Defenders 2018). Hate crimes and police brutality against Roma are rarely reported and the measures for their employment remain underfunded with their participation in education remaining well below the national average (Atlantic Initiative 2021). What progress has been made happened in the field of social housing with more units becoming available across the country (BiH Ombudsman 2013) and in the field of community organizing thanks to investments in Roma organizations gathering Roma activists (OSCE 2013). For both the Roma and LGBTIQ populations, the strategic documents that regulate the position of the country towards the issue have been adopted but have not been regulated. The problem of trafficking in human beings, which was present especially with regards to this group, still persists despite efforts to curb it – other instances of trafficking have largely subsided.

Economic and Social Rights

 

The dimension of economic and social rights was often a target for critique by the World Bank and other international financial institutions. They criticized what they rightly saw as an ineffective and expensive system of social protection that brings little benefits to those in need while providing considerable subsidies to war veterans and their families (Hronesova 2016). Attempts to regulate this area through stricter scrutiny of the war veterans’ status failed and, despite a nominal commitment of the entity governments to its reform (European Union Special Representative 2015), the war veterans enjoy stronger protection than the other marginalized groups in the country. Such policies lead to a situation in which the amount that the state spends on the social protection of the richest fifth of the population equals that spent on the poorest fifth of the population (Bosnia and Herzegovina 2016).

Access to healthcare was particularly problematic in FBiH where the ability of the ten cantons to provide for adequate healthcare greatly differed. This remains the case but the collaboration between the cantons and the entities has improved significantly allowing the more even protection of patients across the territory of the country. What remains a challenge is a widespread climate of distrust and bribery in the relationship between the citizens and the healthcare providers as evidenced by the reports that up to 80% of users bribe healthcare professionals in the public sector (Klix 2021). The funding of particularly costly treatments remains below the legal threshold in FBiH leading to long waiting times for treatment and inadequate health protection (Ured za reviziju institucija u FBiH 2022). Such patients often depend on the willingness of citizens to donate money for their treatment. There are very few civil society organizations that work on the rights of patients despite a legal framework that allows for the creation of the so-called health councils at the level of municipalities. These are, however, often staffed by healthcare workers, which leads to a decrease in oversight and care about patients’ rights.

The trade unions have remained largely marginalized. Until 2014 and the workers’ protests in Northeast Bosnia, their role in the public was less prominent and access to unionization was, in some instances, limited by the employers (Mlinarevic and Lalovic 2010). However, the 2014 protests were organized by an independent trade union while the leading trade unions in both entities still remain under political influence. The protests in question did not lead to a systemic improvement of the workers in Northeastern Bosnia but rather to a series of investments in some of the companies where many of those protesting worked. The trade unions of those working for the state (medical staff, police officers, education staff) have been able to use collective bargaining and occasional strikes to fight for better working conditions and better pay. Modest advances in the protection of rights have been achieved by the trade union of retail workers (Sindikat radnika trgovine i usluznih djelatnosti 2018).

One thing that significantly improved the rights of employees in both entities was the engagement of the entity-level tax authorities. The practice of delaying the payment of workers or the payments of social security and health benefits largely ceased post-2015 due to their increased oversight over the collection of tax and benefits. While the move was inspired by the desire to establish fiscal stability, its spillover effect was the improvement in the rights of employees. The same spillover effect occurred after the liberalization of access to the job markets for some types of BiH workers in the EU. Many workers in the traditionally underpaid sectors (i.e. carpenters) began earning more as the demand for their work was greater than the supply. Thus, unemployment in BiH dramatically decreased and is probably even less than reported since many workers that work abroad have not been registered as such by the domestic statistics offices.

Despite these advances in employment, the country remains poor and the growth of real wages has been slower than in most of Southeast Europe. In 2008, the average salaries in BiH equalled or surpassed those in all WB6 and Romania and Bulgaria. Today, they are only higher than those in Kosovo, North Macedonia and Albania. The difficulties it faces in the shortages of workforce will not be easily overcome by the import of workforce as the country lacks the legislative framework and the policy solutions needed. The slow increase in migrant workers does not occur as a result of policy but as desperate employers urge the authorities to increase the number of work permits for foreign citizens. As the depletion of the domestic workforce becomes an issue. Generally, the unpreparedness of the country to manage migrations were revealed in 2016 when it became a part of the so-called migrants route. Migrants used the territory of BiH to reach the EU but since neighbouring Croatia used illegal pushbacks, many of them remained in the territory of BiH, housed near the BiH-Croatia border. The gradual weakening of the migrant flow occurred as a result of external trends owing little to the domestic measures of border management. Inadequate attention and insufficient financial resources are committed to improving the rights of migrants and migrant workers (Ministry of Human Rights and Refugees 2019). Remittances from workers working abroad remain a significant source of income for the country (Bajra 2021).

The educational sector has been hit hard by the migration crisis. Owing to this effect, the number of students in both schools and universities has dropped dramatically in the last ten years – the number of students has dropped by 28% and the number of pupils in primary schools has halved (Deutsche Welle 2021; Klix 2021). Despite this, a liberalization of the framework governing the establishment of schools and universities has led to an increase in the number of schools and universities but has raised doubts concerning the educational standards. In at least two instances, prosecutors have found that certain high schools and universities operate as degree mills, issuing the necessary paperwork (diplomas) in exchange for money.

Certain high-level officials such as the head of the BiH Intelligence agency (OSA), Osman Mehmedagic, have been found to own a falsified diploma. The education sector is also fraught with discrimination, as primary school and high school students in some areas of the country have limited access to the so-called national group of subjects (mostly Bosniaks and Croats in RS), while Bosniak and Croat students in 34 schools, in some parts of the FBiH, are segregated by a concept dubbed “two schools under one roof”. Both cases were subjected to litigation before the courts in the country and in both instances, the courts found that discrimination exists. However, with different epilogues. In RS, the competent ministry has to a large extent ceased the discriminatory practices, while in FBiH there was little political will from both the parents and the education officials for the judgement to be implemented. Thus, the segregation in schools continues despite the widespread condemnation and illegality of the practice (Ivankovic 2017).

Gender Equality

 

Despite significant progress in the legislative framework guaranteeing gender equality, women still do not enjoy the same economic and political representation as men. Representation of women in political parties has progressed notably, with the percentage of elected MPs reaching 27%. Still, this is significantly lower than the 40% prescribed by the national electoral gender quota regulation, or the 42% average share of women on candidacy lists (Kadribasic et al. 2020). The voters have a bias against the female candidates, but the main reason for their low performance lies in the male-dominated party structures. Most of the parties’ leaderships still do not include women or continue to marginalise women when finalising electoral lists and tend to invest less into their individual campaigns, which results in an uneven representation of women in parliaments and party leadership structures. Harassment of female candidates is also possible and often happens through social media campaigns. When candidates of all genders are treated equally by the party, the electoral results obtained are roughly equal as evidenced by the example of the leading liberal party, Nasa stranka. This signalises that the bias among the population and the electorate can in fact be lowered (Hogic 2021). In fact, women make up the majority of doctors, judges and prosecutors in the country and are present in prominent managerial positions in healthcare and the judiciary (Agency for Statistics of Bosnia and Herzegovina 2020). While many trends point to the general increase in the presence and influence of women in many walks of social life, including politics (Babovic, Stanojevic, Milicevic 2017), full equality between men and women is still far from being achieved. The gender pay gap still persists and BiH’s position is estimated at 115 (Strambo, Jahovic and Segnestam 2021), with only 13% of women making more than their partners. Women remain less present in economic life, in managerial positions in private companies and in the armed forces (Miftari and Durkalic 2019). From the institutional side, the Gender Equality Agency and the two entity gender centres make significant efforts to monitor and mainstream processes related to achieving gender equality. The progress, however, seems more dependent on the general shift of societal culture towards gender sensitivity than on governmental interventions.

Access to Justice and Environmental Rights

 

Even though environmental rights have been defined quite broadly in the entity constitutions, the human rights-based approach in environmental rights protection in the country has not yet been very well advanced. The absence of a green transition in BiH that would shift the paradigm of heating and energy production makes the pollution issues likely to persist. Non-governmental organizations have not been granted the right to represent citizens directly with an exception being a limited number of cases regarding the freedom of access to information and the administrative procedures related to the facilities that may pose a risk to the environment. As the country slowly moves from coal-based heating and energy production solutions towards an approach based more on renewable energy, the issue of the representation of citizens before the courts grows in importance and several recent cases have seen courts question the environmental permits for important projects in the field of energy. The environmental fines for those breaking the laws remain low. For this reason, compliance with the legislation that is aiming to reach the European standards of protection remains low and cities such as Tuzla, Zenica, Lukavac and Sarajevo remain heavily polluted during the winter months (IPEN 2019). Environmental crimes remain neglected and unprosecuted (Kobajica 2018) with a lack of the capacities needed for their prosecution presenting the main problem. While the emerging energy crisis fuelled by the Russian aggression against Ukraine presents less of a challenge due to the country’s significant hydropotential and coal deposits, these resources are unfortunately not very environmentally friendly, in particular coal. There are also risks that the increase in the demand for pellets, a heating substitute made of wood dust and other residuum created in wood production, would lead to illegal timbering, as has happened in some European countries (The New York Times 2022).

The Rule of Law and Judicial Independence

 

The establishment of a strong and independent judiciary was seen as critical by the international presence in Bosnia and Herzegovina for the peace- and state- building processes to succeed. The international actors initiated a rebuilding of the entire judicial system and these reforms were to ensure that the judiciary acts as an independent branch of government. The highlights of the reforms were the vetting of judicial office holders, a reform of criminal and civil procedural codes and the establishment of a judicial council, as a self-governing body controlled primarily by the judges and prosecutors themselves. In Bosnia and Herzegovina, these reforms started earlier and with more donor backing than in most of its regional peers. Between 2004 and 2010, it was not uncommon for the judiciary to try cases against the highest political office holders in the country. Not much success was had in this mission but at least the cases made it clear that there was a willingness to prosecute corruption.

From 2010 onwards, the judiciary entered a crisis fuelled by domestic and external factors that saw an overall backsliding of the rule of law and a loss of this willingness. This was a part of the overall trend in which the “Fundamental First” approach, promoted by the EU, meant that the rule of law and political criteria would have priority in the accession and Europeanisation process (Nozar 2012). What this idea lost sight of was that the rule of law cannot be treated as a set of rules and principles, but holistically, as a variable partially determined by societal and political processes. It is extremely difficult to build the rule of law in a situation of poverty and without strong economic development, which could have been fuelled by the membership status, as was the case with, for example, Romania (Mungiu-Pippidi 2018). In an absence of a membership status and with more and more conditions piled up as the rule of law, standards kept getting more and more sophisticated.

In 2011, the EU initiated a structured dialogue involving leading judicial, prosecutorial and justice authorities in the country aiming to lead to more legal certainty and mobilise support for further reforms. But this dialogue did not achieve much progress, instead becoming an obstacle for the efficient functioning of the courts, especially in matters of organised crime and corruption (Weber 2021). The key salient point was the division of competencies between the national and entity level in matters of organized crime and corruption. Just as in any other federal country in which competencies in the judicial sphere are divided between the federal units, such divisions also exist between the judicial institutions at the BiH level and those at the RS level. In this area, the norms governing the matter cannot be completely clear, but must rather keep a certain degree of fluidity allowing the courts to stop the procedure initiated by prosecutors and transfer the cases to the competent courts. In a response to this, RS challenged the competencies of the Court of Bosnia and Herzegovina to prosecute corruption, claiming that the prosecution coming from this Court would be politically motivated. For that reason, the RS National Assembly voted to establish its own politically controlled special office of prosecutor that would have the competence of prosecuting corruption. The poor performance of this special office played a role in its closure in 2019. In FBiH, the special office of the prosecutor has never been established, partially due to the lack of political will and partially because many FBiH politicians believed that those investigations should be handled at the state level. For that reason, the Office of the Prosecutor and the Court of BiH, even though it has the jurisdiction prescribed by the same law for both entities, in practice tries most of its corruption and organised crime cases against perpetrators coming from FBiH.

The judicial council as a mode of judicial self-governance in BIH, just as in most countries where it has been introduced in the past three decades, was not fulfilling all the expectations set for it (Kosar 2006). Instances of nepotism, influence trading and connections between some of the highest-ranking members of the council and political leaders and intelligence officials demonstrate that the highest ranks of the judiciary are not independent of outside influence. There are, however, reasons for optimism. Both the BiH Office of the Prosecutor and the RS office of the Prosecutor have accused high-level officials and their associates of corruption related to the procurement of goods intended for COVID-19 patients. The head of the intelligence agency of BH has been accused of diploma forgery and misuse of position. Regardless of their outcome, these cases reveal a willingness of the judiciary to tackle extremely sensitive cases that become politicised by their very nature.

The poor performance of the judiciary against organized crime also meant that its role in the prevention and punishment of corruption has been diminished. The legislative and enforcement standards achieved in the field of public procurement and the prevention of conflict of interest were disbanded in 2013. The legislative changes and poor performance of the judiciary in tackling corruption and organized crime also impacted the perception of the level of corruption in the country, which has grown steadily in the last decade (Murtezić 2021). Despite the increase in transparency procedures, which in Bosnia and Herzegovina is at a level comparable to its Western Balkan peers, as well as most European Countries (Corruption Risk Forecast 2022), the high level of corruption acted as a deterrent to direct foreign investment and prevented BiH from using its comparative advantages, for example, in the energy sector. This is coupled with a lack of privatization of telecom operators that often serve for the fictitious employment of party cadres. This form of corruption activities has mostly contributed to the lack of economic development.

However, much of the poor performance of the judiciary stems not only from political influence but from inadequate managerial practices. The HJPC fails to mobilise support for the increased investments of domestic funds into the judiciary, leaving this matter to the presidents of the courts and the offices of the prosecutor (OTP). In their turn, presidents of the courts and heads of prosecutors are careful not to be seen as pressuring the other two branches of government, which is why they fail to press the cantonal, entity and national government for increased funding. Likewise, despite the existence of strategic documents obliging them to do so, the head prosecutors do not use public outreach to better communicate and develop their position in communities. Instead, they rely on police reporting and investigations disregarding the role of the prosecutors in leading investigations. Such a stance greatly reduces the operability and independence of the judicial and prosecutorial bodies. Although the outreach to the citizens has been planned as part of the strategic approach towards judicial users, institutions do not employ persons tasked with carrying out these activities. Strategic planning that takes place at the level of district and cantonal courts and OTPs is inadequate, failing to properly prioritise between the different challenges that these institutions face. All of this results in a rather negative perception of the work of the courts that is far from the high expectations that the citizens have of the courts.

Paradoxically, despite this negative perception and the significant investments in the promotion of mediation and other alternative dispute resolution mechanisms, both citizens and companies – as evidenced by the influx of new cases before the courts – still seem to prefer the courts as a dispute resolution mechanism (High Judicial and Prosecutorial Council 2022). This influx, together with the large backlog generated by the policies of the utility companies to sue their clients before courts, is one of the main obstacles towards court efficiency. Even in labour and discrimination lawsuits where the law prescribes that the courts operate with urgency, the duration of the disputes is the same as in other court procedures – somewhat longer than two years, which is slower than in almost all EU member states (Inicijativa za monitoring EU integracija). The introduction of mediation services almost fifteen years ago has done little to improve this situation (High Judicial and Prosecutorial Council 2022). While many citizens have appealed to the BiH Constitutional Court and received symbolic compensation for the time spent before the courts, a more systemic approach – the recently introduced Law on the protection of the right to fair trial – does not promise much. A solution that was copied from Serbia merely obliges the concerned party to notify the president of the court of the delay in proceedings and then to file another claim stating that this right has been violated. But with the level of damages that may be awarded to the party set rather low, this solution will most likely not stem the level of cases in which the citizens complain of this violation to the BiH Constitutional Court and the ECHR. On the contrary, this solution is likely to further burden the courts and their administration. A more systemic solution that would see the enforcement proceedings outsourced to private bailiffs has not been tried. Instead, the enforcement of decisions, even the petty and trivial utility bills, remain the exclusive competencies of the courts, which slows down their overall efficiency and performance (High Judicial and Prosecutorial Council 2022).

Policy Recommendations

The approach to the constitutional and pertinent issues concerning the role of the judiciary and the electoral systems remain informed by illiberal practices and solutions. For this reason, while the European illiberal actors are focused on changing the existing constitutional arrangements, many of the actors in BiH are focused on preserving the existing constitutional arrangements. But in the history of Bosnia and Herzegovina, no approach to constitution-making has included public consultations or a significant public outreach. What should be done is the organization of a constitutional convention that would seek to reform the existing constitutional text. While there is little chance that the existing territorial arrangements or the arrangements concerning collective rights could be changed, a restart of a dialogue on the constitution is necessary as it would allow the civil society and the political actors to widely consider an array of opportunities for its reform. In that way, when an appropriate political moment comes, there is a greater likelihood that quality solutions balancing the ethnic and collective rights would be proposed. Ideally, the constitutional convention itself should be a governmental organization or committee organized by the national parliament, but an adequately run NGO could also serve to organize the public debate and the gathering of proposals.

Currently, the courts and their functioning remain a technical measure that is high on the agenda of the external, donor actors and low for domestic actors. As a sort of informal compromise, the funding for the courts rises without reaching a level that would be sufficient to tackle the backlog. A more systemic approach would be to mobilize the High Judicial and Prosecutorial Council to publicly state those responsible for the inadequate budget support to the courts and to publicly state the number of positions that have not been opened in the courts. This would be especially useful for improving the work of the commercial courts or commercial departments in the courts.

Useful as they may be for the solution of the backlog, technical changes are less likely to improve judicial independence. Numerous prescriptions given in this area focus on the ever-increasing independence standards of the members of the HJPC or its Office of the Disciplinary Council, a body tasked with investigating disciplinary claims against judges and prosecutors. In my view, an avenue worth exploring that has been completely disregarded is the one that focuses on the role of the judicial and prosecutorial professional associations. These associations have played a significant role in defending against democratic backsliding in Poland and Romania and have been important for the emergence of anti-corruption campaigns in Italy and Brazil. Investments in their strengthening and development coupled with changes to the HJPC composition that would lead to more inclusion of the judges and prosecutors of the first instance would democratize the judiciary and allow it to free itself from political influence.

In the domain of economic and social rights, the most worrying trends are those in the healthcare sector where no progress has been made concerning the problems of bribery, waiting lists and the treatment of patients. An approach that would guarantee success in this area does not exist. What seems to be missing from the picture is the funding of grassroots initiatives that would aim to tackle corruption in the healthcare sector. However, without a credible government intervention that would enable better access through a public-private partnership, the problem would remain.

Interventions that would target not only the broad party membership or the general public, but the leadership of the parties is needed in order to ensure gender equality within political parties. Better measurements and estimates, including ethnographic research, is needed in order to explain the rise in managerial posts of women within the judiciary and in healthcare and the absence of such a rise within private companies. Based on these findings, we should gain a better understanding of the different trends within the judiciary and healthcare on the one side and the private sector on the other.

The solution to the environmental crisis is difficult because part of the problem lies not only in extensive reliance on coal but also in the geography and the disruption of ventilation corridors through building skyscrapers in the valleys in which many of the major urban concentrations of the population lie. Current plans focused on investments in the modernization of existing coal plants have failed due to a combination of factors. The first was corruption, which slowed down the internal decision-making processes with the leading parties divided over which foreign investors should lead the process. This division lasted for more than a decade, during which time all the companies that were interested in investing have pulled out of the deal because investment in fossil fuel technologies became less attractive or prohibited in some jurisdictions. In the meantime, no feasible alternatives that would lead to alternative energy sources have been proposed and the investments in green energy are progressing rather slowly as the construction of hydropower plants faces opposition from the citizens. Investments that would lead to a green transition have become less popular following the Russian aggression against Ukraine and the energy crisis that it created. For the time being, only incremental progress based on increasing investments into green energy and on the strict enforcement of existing laws seems likely.

Looking at the list of policy recommendations and prescriptions offered herein leads us to the conclusion that a strong reformist project centred around human rights could be vital not only for the improvement in human rights but also for the rule of law and the economic development of the country. The current capacities and strengths of the liberal party in Bosnia and Herzegovina, Nasa stranka (Our Party), have been sufficient to kick-start some of these processes in the Canton Sarajevo and Tuzla in FBiH. External support for policymaking could be provided to initiate a wider reform in 2023, after the general elections of 2022 hopefully put more progressive governments in place in both cantons. However, the efficiency of this support will depend on the ability of the domestic authorities to secure significant sources of external funding and on the availability of the said funds.

Footnote

[1] The undemocratic practices in question refer to the practices of the High Representa- tive as the highest civilian authority for the implementation of the Dayton Peace Accords to remove any official that was obstructing the implementation of the peace agreement. Generally, see Banning (2014).

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