The court system in Bosnia and Herzegovina
Posted: Thu Jun 15, 2017 7:51 am
The court system in Bosnia and Herzegovina
1. Introduction
The court system of post Dayton Bosnia and Herzegovina reflects the complexity of its constitutional organization. Bosnia and Herzegovina, consisting of two entities further divided into lower-level administrative units and the Brčko District as neutral self-governing administrative unit, has 76 courts. Of those 76 courts, 3 are constitutional courts, 6 are commercial courts and 67 remaining courts are courts of general jurisdiction.
2. State-level courts
There are only 2 courts at the state level – the Constitutional Court of Bosnia and Herzegovina
and the Court of Bosnia and Herzegovina. (Figure 1)
2.1. The Constitutional Court of Bosnia and Herzegovina
The Socialist Federal Republic of Yugoslavia was the only country that had a system of the constitutional courts already in socialist regime. The first Constitutional Court in former Yugoslavia was created in 1963 and the Constitutional Court of Bosnia and Herzegovina was established for the first time on 15 February 1964. The position of the Constitutional Court of Bosnia and Herzegovina is now provided for in Article VI of the Constitution of Bosnia and Herzegovina1 which defines not only its jurisdiction, but also provides for its organizational structure and its procedure as well as for the final and binding character of its decisions. The first session of the Constitutional Court of Bosnia and Herzegovina was held in May 1997, following the election and appointment procedures. The Constitutional Court of Bosnia and Herzegovina is composed of 9 judges. In addition to 6 national judges 4 of whom are selected by the House of Representatives of the Federation of Bosnia and Herzegovina and 2 by the
National Assembly of the Republika Srpska, the composition of the Constitutional Court includes 3 judges, who must not be citizens of Bosnia and Herzegovina or of any neighboring state, appointed by the President of the European Court of Human Rights (ECtHR) upon
1 Annex 4 of the General Framework Agreement for Peace in Bosnia and Herzegovina
consultation with the Presidency of Bosnia and Herzegovina. The incorporation of international element in composition of the national Court was motivated by the necessity for providing a guarantee for institutions which ought to enjoy absolute neutrality, in order to ensure their independence from ethno-political influence.2 Unlike, for instance, members of the Presidency of Bosnia and Herzegovina, domestic judges are elected on the basis of the federal – and not ethnic – principle of representation. Moreover, the Constitution does not require that they must in any way be members of one of the constituent peoples, or that they have to declare which people they are members of. The Constitutional Court elects a President and 3 Vice- Presidents among the judges by secret ballot. The term of office of the President of the Court lasts for 3 years. Appointed judges, who are (only) required to be distinguished jurists of high moral standing,3 may serve until the age of 70, unless they resign or are removed for cause by
consensus of the other judges.4 The position of judge is deemed incompatible with membership
in a political party or in legislative, executive or other judicial authority in Bosnia and Herzegovina or in the Entities thereof, as well as with any other position that could affect the impartiality of the judge.5 The jurisdiction of the Constitutional Court is stipulated in the Article VI (3) of the Constitution and it encompasses resolving federal disputes and disputes between State authorities, appellate jurisdiction (under the Constitution of Bosnia and Herzegovina and European Convention on Human Rights (ECHR)) and control of constitutionality.6 Additionally, the Constitutional Court also resolves blockades of the Parliamentary Assembly, which occur if the Joint Commission of the House of Peoples fails to reach compromise regarding decision taken by the House of Representatives which was, by the majority of representatives of one
2 Steiner Christian et al., Constitution of Bosnia and Herzegovina- Commentary (Sarajevo: Konrad Adenauer Stiftung, 2010), 675
3 Other prerequisites for election of the judges, such as, for instance, minimum professional experience or certain
age, are not set forth in the Constitution of Bosnia and Herzegovina. Except for being distinguished jurists of high moral standing, candidates for this position have to be eligible voters.
4 Pursuant to the Article VI (1) (c) of the Constitution of Bosnia and Herzegovina, the term of office of those judges
who were initially appointed was five years.
5 Rules of the Constitutional Court of Bosnia and Herzegovina, Article 97
constituent people in the House of Peoples, declared to be destructive of vital interest7 of that people.8
Under the Constitution, disputes over which the Constitutional Court has jurisdiction may be referred to it only “by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.”9 Non-exhaustive list of disputes falling within the Court’s jurisdiction, besides reviewing constitutionality of Entity’s decision to establish parallel relationship with a neighboring state, encompasses deciding on compatibility of an Entity’s constitution or a law as well as State laws with the Constitution of Bosnia and Herzegovina. The constitutionality of a law may be also examined upon referral of an issue by other courts.10 Having in mind the fact that the former Constitutional Court of the Republic of Bosnia and Herzegovina did not deal with individual constitutional actions, appellate jurisdiction of the Constitutional Court, through which the appellant is given an opportunity to have reviewed legal acts of the State as well as those of entities if they violate his legal and constitutional position, is novelty in the legal system of Bosnia and Herzegovina.11 The appeal is extraordinary legal remedy of subsidiary character, which means that the Constitutional Court is authorized to examine it only if all effective legal remedies that are available under the law against a judgment or decision challenged by the appeal are exhausted. Additionally, the appeal has to be filed within time-limit of 60 days as from the date on which the decision on the last effective legal remedy used by the appellant was served on him. Other requirements for admissibility of appeals are set forth in Article 16 of the Rules of the Constitutional Court of Bosnia and
7 The Constitution of Bosnia and Herzegovina does not contain definition of „vital interest.“ In the view of the Constitutional Court, this term encompass „certain principles without which a society with the differences protected under the Constitution could not finction efficiently.“ (Steiner et al., Constitution, 876)
8 The Constitution of Bosnia and Herzegovina, Article IV (3) (f)
9 The Constitution of Bosnia and Herzegovina, Article VI (3) (a)
10 Pursuant to Article VI (3) (c) of the Constitution of Bosnia and Herzegovina, the Constitutional Court has
jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina…”
Herzegovina. The decisions of the Constitutional Court are final and binding, and every physical and legal person is obliged to respect them.
In addition to its functions set forth in the Constitution, the Constitutional Court is authorized, among other issues, to decide on: the election of the President and Vice-Presidents of the Court; the internal organization of the Court; the status and immunity of the President and judges; adoption of the annual budget, etc.12
2.2. The Court of Bosnia and Herzegovina
The Court of Bosnia and Herzegovina was established pursuant to the Law on the Court of Bosnia and Herzegovina which was initially imposed by the decision of the High Representative and subsequently adopted in both chambers of the Parliamentary Assembly of Bosnia and Herzegovina. The Court is composed of the President of the Court and other judges. Currently, there are 54 judges at the Court, 6 of which are international.13 The President of the Court is appointed by the High Judicial and Prosecutorial Council for a term of 6 years. The Court consists of the Plenum and three divisions – Criminal, Appellate and Administrative. The Plenum is composed of the President and all judges of the Court and it is competent to draw up and adopt the Rules of Procedure of the Court, to elect the Chief Registrar, to adopt working schedule of the Court as well as to adopt Court budget proposal, etc. The Criminal Division of the Court consists of three Sections: Section I for War Crimes, Section II for Organized Crime,
Economic Crime and Corruption and Section III for all other crimes falling under jurisdiction of the Court. In accordance with the structure of the Criminal Division, the Appellate Division has three corresponding sections – Section I which decides upon appeals against decisions of the Section I of the Criminal Division, Section II which decides upon appeals against decisions of the Section II of the Criminal division, and Section III which decides upon appeals of the Section III of the Criminal Division, as well as upon appeals related to electoral issues. The criminal jurisdiction of the Court is set forth in Article 7 of the Law on the Court of Bosnia and Herzegovina, and it encompasses jurisdiction over criminal offences prescribed by the Criminal
12 Rules of the Constitutional Court of Bosnia and Herzegovina, Article 80 (1)
13 Sud Bosne i Hercegovine
Code of Bosnia and Herzegovina and other B&H laws, as well as over criminal offences defined in laws of Entities and the Brčko District when such criminal offences endanger the sovereignty, territorial integrity, political independence, national security or international personality of Bosnia and Herzegovina, or if they may have serious repercussions or detrimental consequences to the economy of Bosnia and Herzegovina or may have other detrimental consequences to Bosnia and Herzegovina or may cause serious economic damage or other detrimental consequences beyond the territory of an Entity or the Brčko District of Bosnia and Herzegovina. Additionally, it falls within jurisdiction of the Court to:
– take a final and legally binding position on the implementation of Laws of Bosnia and Herzegovina and international treaties upon request of any court of the Entities or any court of the Brčko District of Bosnia and Herzegovina entrusted with implementation of B&H laws;
– issue practice directions with respect to application of the substantive criminal law of Bosnia and Herzegovina falling within the jurisdiction of the Court regarding genocide, crimes against humanity, war crimes and violations of the laws and practices of warfare and individual criminal responsibility related to those crimes, ex officio or at the request of any court of the Entities or of the Brčko District of Bosnia and Herzegovina;
– decide any conflict of jurisdiction between the courts of the Entities, between the Courts of the Entities and the Courts of the Brčko District of Bosnia and Herzegovina and between the Court of B&H and any other court, etc.
Within its administrative jurisdiction, the Court of B&H decides upon complaints to final administrative acts and/or in the case of administrative silence of the institutions of Bosnia and Herzegovina, public agencies, public corporations, institutions of the Brčko District and other organizations established pursuant to State laws of Bosnia and Herzegovina. In addition to it, the Court has also jurisdiction over:
– assessing legality of individual and general executive administrative acts, adopted on the basis of the State Law
– deciding property disputes between the State and the Entities, between the State and the Brčko District, between the Entities, between the Entities and the Brčko District and between the institutions of Bosnia and Herzegovina, which are interrelated with the exercise of public functions
– resolving conflict of jurisdiction between the Entity courts, and between the courts of the Entities and the courts of the Brčko District and between the Court of Bosnia and Herzegovina and any other court.
The appellate jurisdiction of the Court encompasses deciding upon ordinary and extraordinary legal remedies14 against decisions delivered by the Criminal and Administrative Divisions of the Court.
The Court of Bosnia and Herzegovina has a Common Secretariat composed of three organizational units15 which is responsible for the administration and the provision of support services to Section III of the Criminal and Appellate Divisions and Administrative Division, as well as the Registry for Section I and Section II of Criminal and Appellate Divisions managed by the Registrar who is responsible, in cooperation with the President of the Court, for the administration and provision of administrative, legal and other support services to Section I and
14 According to both civil and criminal procedure laws that are currently in force in B&H, legal remedies can be divided into two categories – ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedy is an appeal which can be filed not only against judgment, but also against other court decisions rendered during criminal or civil proceedings. On the other hand, extraordinary legal remedies can be filed against final court decision only in some exceptional cases, under conditions prescribed by law. Most frequently used extraordinary legal remedy in both criminal and civil proceedings is reopening of criminal/civil proceedings (retrial). Criminal/civil proceedings may be reopened if, for instance, a decision of the court was founded on a perjury of a witness or expert witness; or if a decision of the court was a result of a criminal offence committed by a judge, a lay judge, a legal representative or an attorney of a party, an opposing party or a third party; or if the party has learned about new facts or has been given or has gained a possibility to have recourse to new evidence on the basis of which a more favorable decision could have been passed for the party had such facts or evidence been used in the previous proceedings, etc. Apart from retrial, civil procedure codes prescribe a possibility of filing another extraordinary legal remedy called “review”. Motion for review can be filed against second instance judgment on the grounds of substantial violation of specific civil procedure laws, incorrect application of substantive law or exceeding of the claim, if such infraction was inflicted in the course of second – instance proceedings.
15 Those units are: Department for legal, general, administrative and technical support affairs, Department for
financial affairs, and the Court Sections legal support service.
Section II of the Criminal and Appellate Divisions. The Registry, which was established by an international agreement signed on 1 December 2004 by the High Representative for Bosnia and Herzegovina and the Presidency of Bosnia and Herzegovina with the main objective of providing support to strengthening of capacities of Sections I and II of the Court, comprises Legal Department, Court Management Section, Witness Support Section, Public Information and Outreach Section and Administration.16
The Court of Bosnia and Herzegovina
The Constitutional Court of Bosnia and Herzegovina
Criminal Division Administrative Division
Appellate Division
The Registry
Section I – War Crimes
Section I – decides upon appeals of the Section I of the Criminal Division
Court Management Section
Section II – Organized Crime, Enonomic Crime and Corruption
Section III – all other criminal offences under the Court's jurisdiction
Legal Department
Witness Support Section
Public Information and Outreach Section
Figure 1
16 The new Agreement on the Registry, replacing the Agreement signed on 1 December 2004 and the Annex signed on 23 February 2006, was signed on 26 September 2006.
3. Organization of the courts in the Federation of Bosnia and Herzegovina
The court system of the Federation of Bosnia and Herzegovina (hereinafter the Federation) comprises 40 courts – the Constitutional Court of the Federation, the Supreme Court of the Federation, 10 Cantonal and 28 Municipal courts. (Figure 2)
3.1. The Constitutional Court of the Federation of Bosnia and Herzegovina
The Constitutional Court of the Federation of Bosnia and Herzegovina, which was established pursuant to constitutional provisions,17 is composed of 9 judges of whom at least 2 come from all three constituent people each and one from the group of Others. The jurisdiction of the Constitutional Court comprises resolving disputes between various levels of authority,18 protection of constitutionality,19 deciding on constitutional matters, deciding on the vital national interest on both the federal and cantonal level,20 deciding on immunity, issuing opinions on constitutional matters as well as deciding on removal of the President and Vice- Presidents pursuant to the Constitution of the Federation of Bosnia and Herzegovina. The judges of the Constitutional Court are nominated by the President of the Federation with concurrence of the Vice-Presidents, and their appointment requires approval of a majority of the present and voting members of the House of Peoples. The judges of the Constitutional Court elect the President and Vice-President of the Court by secret ballot for one-year term of
office and they cannot be reappointed more than twice. Proceedings before the Constitutional Court may be instituted only upon request of those entities explicitly entitled to it by the Constitution of the Federation. Decisions of the Constitutional Court are final and binding.
17 The Constitution of the Federation of Bosnia and Herzegovina IV (C) (3), Article 9-13
18 For instance, between cantons; between cantons and the Federation authorities; between city and its canton
and the Federation authorities, between city and municipality, between municipalities and their cantons or he Federation authorities, etc.
19 The Constitutional Court of the Federation is competent to examine compatibility of any law proposed or
enacted by the Federal or Cantonal Legislature as well as compatibility of any other regulation proposed or enacted by any organ of the Federation with the Constitution of the Federation.
20 In the case of failure of an attempt to reach compromise regarding the claim of 2/3 of one of the caucuses of the
constituent peoples in the House of Peoples that the act, law or regulation affects vital national interest of that
people, the Constitutional Court is competent to make final decision. For that purpose, within the Constitutional Court exists the Vital Interest Panel composed of 7 members. It is noteworthy that the Constitution of the Federation, unlike B&H Constitution, defines the notion of “vital interests.” (Article 17a of the Constitution of the Federation of Bosnia and Herzegovina)
3.2. The Supreme Court of the Federation of Bosnia and Herzegovina
The Supreme Court of the Federation of Bosnia and Herzegovina is the highest court of appeals in the Federation. There are currently 34 judges working at the Court. The President of the Court and other judges are appointed and disciplined by the High Judicial and Prosecutorial Council (HJPC). The President’s term of office lasts 6 years, with the possibility of reappointment, while judges are appointed for life, subject to resignation, retirement or removal for cause by the HJPC. In addition to responsibilities concerning organization of the work of the Court, the President of the Supreme Court is, pursuant to the constitutional provision, responsible for the management of the Judicial Police. The Supreme Court has four divisions – Criminal Division, Civil Division, Administrative Division and Division for Registering and Monitoring of the Court Practice. Besides appellate jurisdiction that comprises deciding upon ordinary legal remedies against rulings of the cantonal courts, deciding upon extraordinary legal remedies against final court decisions and deciding upon legal remedies against rulings of its own Panels, the Supreme Court has additional jurisdiction as provided by
the Law on Courts in the Federation of Bosnia and Herzegovina21 which includes resolving
conflicts of jurisdiction between cantonal and municipal courts from different cantons, deciding on transfer of territorial jurisdiction from one to another court, when prescribed by the law, and carrying other tasks as stipulated by the law, except for those falling within jurisdiction of the Constitutional Court of the Federation of Bosnia and Herzegovina.
3.3. Cantonal courts
In accordance with its administrative organization, there are 10 Cantonal courts in the Federation of Bosnia and Herzegovina. Their jurisdiction is set forth in the Law on Courts in the Federation of Bosnia and Herzegovina,22 and it consists of first instance jurisdiction, appellate jurisdiction, as well as jurisdiction over some other legal matters prescribed by the Law. The first instance jurisdiction comprises:
21 The Law on the Courts in the Federation of Bosnia and Herzegovina, Official Gazette No. 38/05 and 22/06
22 The Law on the Courts in the Federation of Bosnia and Herzegovina, Article 28
– adjudicating criminal matters for which the principal punishment of an imprisonment sentence of more than 10 years or long term imprisonment is prescribed by the law,
– acting in the course of investigative procedure and upon issuance of an indictment,
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating administrative disputes and requests for the protection of rights and freedoms set forth in the Constitution of the Federation
Second instance jurisdiction of Cantonal courts encompasses deciding on appeals against rulings of Municipal courts, as well as deciding on other ordinary and extraordinary legal remedies as provided by the law. Additionally, it falls within the jurisdiction of Cantonal courts to:
– resolve conflicts of territorial jurisdiction between Municipal courts from the same canton,
– decide on transfer of jurisdiction from one Municipal court to another,
– act upon motions for pardon in accordance with the Law,
– decide on the deletion of conviction and termination of security measures and legal consequences of a conviction,
– act upon motions for international legal aid,
– decide on motions for recognition of foreign judgments
– carry out other tasks as stipulated by the Law.
Territorial jurisdiction of the Cantonal Court in Bihad23 covers area of the Una-Sana Canton consisting of 8 municipalities. This Court has three divisions – Criminal Division, Civil Division and the Court Management Division. There are currently 15 professional judges and 15 lay judges working at the Court.
The Cantonal Court in Goražde, covering area of the Bosnian-Podrinje Canton, as well as the Cantonal Court in Odžak which has territorial jurisdiction over the Posavina Canton, have two
23 Official websites of almost all courts and offices of the prosecutor in Bosnia and Herzegovina can be accesssed through the website
Divisions – Criminal and Civil. Besides the Presidents of the Courts, there are only 3 judges working at these Courts.
The Cantonal Court in Livno, established in 1997 pursuant to the Cantonal Law on Courts,24 and
the Cantonal Court of the West-Herzegovina Canton seated in Široki Brijeg, consist of the Court Management Division and the Judicial Division that comprises Criminal and Civil Sections of the Courts. Each of these courts employs 5 judges.
As opposed to 4 afore mentioned courts, the Cantonal Courts in Mostar, Zenica, Novi Travnik
and Sarajevo, in addition to its Criminal and Civil Divisions, have also Administrative Divisions. There are 15 judges working at the Cantonal Court in Mostar, 17 at the Cantonal Court in Zenica, 15 judges at the Cantonal Court in Novi Travnik, while the Cantonal Court in Sarajevo has 33 judges.
The Cantonal Court in Tuzla comprises Criminal and Civil Division, as well as Court Management Division and the Sector for administrative matters. There are 20 “permanent” and 2 additional judges working at this Court.
3.4. Municipal Courts
There are currently 28 Municipal courts in the Federation.25 Municipal courts are established for the area of one or more municipalities in the Canton. Pursuant to the Law on Courts in the Federation of Bosnia and Herzegovina,26 their jurisdiction comprises first instance jurisdiction in criminal and civil cases, as well as jurisdiction over some other matters prescribed by the Law. Criminal jurisdiction encompasses:
– adjudicating criminal matters for which the principal punishment of a fine or an imprisonment sentence of up to 10 years is prescribed by the law,
– adjudicating criminal matters falling within jurisdiction of Municipal courts in accordance with other laws
24 The Law on Courts, Official Gazette of Herceg-Bosna Canton No. 1/97
25 Those are Municipal courts in: Bihad, Bosanska Krupa, Bugojno, Cazin, Čapljina, Goražde, Gračanica, Grdačac,
Kakanj, Kalesija, Kiseljak, Konjic, Livno, Ljubuški, Mostar, Orašje, Sanski Most, Sarajevo, Široki Brijeg, Tešanj, Travnik, Tuzla, Velika Kladuša, Visoko, Zavidovidi, Zenica, Žepče and Živinice
26 The Law on Courts in the Federation of Bosnia and Herzegovina, Article 27
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating all criminal matters concerning juveniles
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
First instance jurisdiction in civil cases includes adjudicating all civil disputes and extra- contentious matters.27 Additionally, Municipal courts are competent to conduct enforcement proceedings, to carry out land register matters, to act upon domestic courts’ motions for legal aid and to carry out other tasks as stipulated by the Law. Besides criminal and civil divisions, Municipal courts usually have minor offence divisions, as well as separate land register and enforcement divisions. The Municipal court in Sarajevo even has special family division. Commercial divisions are established within Municipal courts in Bihad, Orašje, Tuzla, Zenica, Goražde, Travnik, Mostar, Široki Brijeg, Sarajevo and Livno. These courts have jurisdiction over intellectual property matters, disputes related to maritime law and aeronautical law, bankruptcy and liquidation proceedings, issues related to unfair competition, other disputes arising from trade of goods, services, loan stocks, etc.
27 For the purpose of this paper, the term „extra – contentious matters“ is used to describe personal, family, property and other legal matters that are to be decided in “extra – contentious proceedings” before the court. Legal matters that are to be decided in this kind of proceedings are prescribed by law, and they include: removal of legal capacity, detention in neuropsychiatric health care organization, declaration of death of missing person, extension of parental rights, granting permission to conclude marriage, determining compensation for expropriated real property, regulation of managing and using a common asset, etc. Extra – contentious proceedings are instituted by a petition of natural or legal person, as well as by the court ex officio under conditions prescribed by the law. On the other hand, “contentious matters” are those related, for instance, to breach of contractual obligations, marital disputes, compensation of damages disputes, real property and trespass disputes, commercial disputes, labor – related disputes, etc., and they are to be decided in so called “contentious proceedings”. Unlike extra – contentious proceedings, contentious proceedings are instituted by complaint.
The Supreme Court of the Federation
The Constitutional Court of the Federation
CC
Sarajevo CC
Zenica CC Široki Brijeg CC
Tuzla CC
Goražde CC
Mostar CC
Bihad CC
Odžak CC
Livno CC Novi Travnik
MC
Sarajevo MC
Kakanj MC Široki Birjeg MC
Gračanica MC
Goražde MC
Mostar MC
Bihad
MC
Bugojno
MC
Kiseljak
MC Sanski Most
MC
Zenica
MC
Živinice
MC V.
Kladuša
MC
Žepče
Legend: CC – Cantonal court MC -Municipal court
Figure 2
4. Courts in the Republika Srpska
There are altogether 32 courts in the Republika Srpska – the Constitutional Court and the Supreme Court of the Republika Srpska, 5 District Courts, 19 Basic courts, 5 District commercial courts and the High Commercial court. (Figure 3)
4.1. The Constitutional Court of the Republika Srpska
The status of the Constitutional Court is defined in the Constitution of the Republika Srpska itself. In addition to it, there is also the Law on the Constitutional Court of the Republika Srpska28 which regulates issues related to the organization of the Constitutional Court, proceedings before the Court and legal force of its decisions. Pursuant to constitutional provisions, the Constitutional Court consists of 9 judges elected for eight-year term of office (without possibility of reappointment) by the National Assembly of the Republika Srpska upon proposal of the President of the Republika Srpska. The term of office of the President of the Court and two Vice-Presidents lasts 4 years. Responsibilities of the Constitutional Court encompass deciding on constitutionality of laws and both the constitutionality and legality of regulations and general enactments, as well as programs, statutes and other general enactments of political organizations. In addition to it, it falls within jurisdiction of the
Constitutional Court to resolve conflict of jurisdiction between bodies of legislative, executive and judicial branch and conflict of jurisdiction between agencies of the Republika Srpska, city and municipality. Pursuant to both the Constitution and the Law on the Constitutional Court of the Republika Srpska, the Court is also assigned with:
– monitoring events of interest for the achievement of constitutionality and legality
– informing the highest constitutional bodies of the Republika Srpska on the status and problems in that area
– offering opinions and proposals for adoption of laws
28 The Law on the Constitutional Court of the Republika Srpska, Official Gazette of the Republika Srpska No. 54/05
– undertaking other measures for the purpose of ensuring constitutionality and legality, as well as the protection of freedoms and rights citizens, organizations and communities.
Protection of vital interests falls within the competences of the Panel for the protection of vital interests composed of seven judges. As opposed to the Constitution of Bosnia and Herzegovina, the Constitution of the Republika Srpska explicitly defines vital national interests of the constituent peoples as issues related to:
– entitlement of each constituent people to be adequately represented in the bodies of legislative, executive and judicial branch
– identity of a constituent people
– organization of the bodies of public authority
– education, religion, language, culture, tradition and cultural heritage
– territorial organization
– constitutional amendments
– public information system
– equal rights of the constituent peoples in decision making process
– other issues which would be treated as vital national interest issues if it is so considered by two-thirds of one of the caucuses of the constituent peoples in the Council of Peoples29
Even though anyone is entitled to propose initiation of the proceedings for assessment of the constitutionality and legality before the Constitutional Court, proceedings may be instituted only by the President of the Republika Srpska, by the National Assembly, by the Government, by other bodies, organizations and communities under conditions prescribed by law, as well as by the Constitutional Court itself. If the Constitutional Court’s decides that a law does not comply with the Constitution or that another regulation or general enactment does not comply with the Constitution or law, such law, regulation or general enactment cease to be effective on the day of the publication of the Constitutional Court’s decision.
29 The Constitution of the Republika Srpska, Article 70
4.2. The Supreme Court of the Republika Srpska
The Supreme Court seated in Banja Luka is the highest court in the Republika Srpska. It was established in 1992 by the decision of the National Assembly, in accordance with at that time effective Constitution of the Republika Srpska. Pursuant to the Constitution currently in force, the Supreme Court is entrusted with ensuring unified enforcement of law. Additional jurisdiction of this Court is prescribed by the Law on Courts in the Republika Srpska, and it encompasses:
– deciding on ordinary legal remedies against rulings of District courts, if prescribed by the law
– deciding on extraordinary legal remedies against final rulings of the courts, when prescribed by the law
– deciding on legal remedies against rulings of its own Panels
– resolving conflict of jurisdiction between courts,
– deciding on transfer of jurisdiction from one court to another, in accordance with the law
– carrying other tasks as stipulated by the law30
The Supreme Court has 17 judges appointed for life, subject to resignation, retirement or removal for cause, by the High Judicial and Prosecutorial Council. The President of the Supreme Court, who is required to have proven management and leadership skills relevant to the operation of the Court, is elected from among the judges for six-years term of office, with the possibility of reappointment. The Court has Criminal and Civil-Administrative Division, as well as Court Management Division consisting of three sections.
30 The Law on Courts in the Republika Srpska, Official Gazette of the Republika Srpska No. 111/04, 109/05, 37/06, 119/08, 58/09, 13/10
4.3. District Courts
There are currently 5 district courts in the Republika Srpska. Their jurisdiction, as set forth in the Law on Courts in the Republika Srpska, is the same as that of Cantonal courts in the Federation and it comprises first instance and appellate jurisdiction, as well as jurisdiction over some other legal matters as prescribed by the Law. In the first instance, District courts are responsible for:
– adjudicating criminal matters for which the principal punishment of an imprisonment sentence of more than 10 years or long-term imprisonment is prescribed by the law,
– acting in the course of investigative procedure and upon issuance of an indictment,
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction to District court
– adjudicating administrative disputes and requests for the protection of rights and freedoms set forth in the Constitution
Appellate jurisdiction of District courts encompasses deciding on appeals against rulings of Basic courts, as well as deciding on other ordinary and extraordinary legal remedies if provided by the law. Additionally, it falls within the jurisdiction of District courts to:
– resolve conflicts of territorial jurisdiction between Basic courts from the same area for which the District court is established
– decide on transfer of jurisdiction from one Basic court to another,
– act upon motions for pardon in accordance with the Law,
– decide on the deletion of conviction
– decide on termination of security measures and legal consequences of a conviction,
– act upon motions for international legal aid in criminal matters,
– decide on motions for recognition of decisions of foreign courts
– carry out other tasks as stipulated by the law
The District court in Banja Luka consists of 4 divisions – Division for criminal and minor offences, Special division for repression of organized crime and most serious economic criminal offences,
Civil division and Administrative division. There are 30 judges and 4 additional judges working at the Court. The other 4 District courts have 2 Divisions each – one Division for criminal and minor offences and one for civil, commercial and administrative matters. The District court in Doboj employs 10 judges, the District court in Istočno Sarajevo 7, the District court in Trebinje 5 and the District court in Bijeljina 8 judges plus 2 additional judges.
4.4. District commercial courts and the High Commercial Court
District commercial courts are established for the same areas as district courts. They are entrusted with first instance jurisdiction concurrent with that of those Municipal courts which have commercial division in their composition, and it comprises, among other issues, following responsibilities:
– adjudicating intellectual property matters
– adjudicating disputes related to maritime law and aeronautical law
– conducting bankruptcy and liquidation proceedings
– deciding on issues related to unfair competition
– adjudicating disputes arising from foreign investments
– registration of legal entities and independent undertakers
– other disputes arising from trade of goods, services, loan stocks, etc.
The High Commercial Court seated in Banja Luka has appellate jurisdiction over first instance rulings of District commercial courts. Additionally, it falls within its jurisdiction to resolve conflicts of jurisdiction between district commercial courts, to decide on transfer of jurisdiction from one District court to another, to establish legal postures in order to ensure unified enforcement of laws as well as to carry out other tasks stipulated by law.
4.5. Basic courts
Notwithstanding the fact that the territory of the Republika Srpska is divided into municipalities as units of local self-government, the courts established for the areas of those municipalities are called Basic courts instead of Municipal courts as is case in the Federation of Bosnia and
Herzegovina. However, their jurisdiction is concurrent with that of Municipal courts, and it comprises following responsibilities:
– adjudicating criminal matters for which the principal punishment of a fine or an imprisonment sentence of up to 10 years is prescribed by the law,
– adjudicating criminal matters falling within jurisdiction of Basic courts in accordance with other laws
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating all criminal matters concerning juveniles
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
First instance jurisdiction in civil cases includes adjudicating all civil disputes and extra- contentious matters. In addition to their jurisdiction for criminal and civil matters, Basic courts also have jurisdiction over conducting enforcement proceedings, carrying out land register matters, acting upon domestic courts’ motions for legal aid and carrying out other tasks stipulated by the law. There are currently 19 Basic courts in the Republika Srpska, most of which have up to 3 divisions, while the Basic court in Bijeljina, in addition to criminal, civil and minor offences division has also enforcement division. Instead of civil division, the Basic court in Banja Luka has separate divisions for contentious and for extra-contentious matters, which means that this Court consists of 5 divisions.
The Supreme Court of the Republika Srpska
The High Commercial Court
The Constitutional Court of the Republika Srpska
DC Banja Luka DC
Bijeljina DC
Doboj DC
Trebinje DC Ist. Sarajevo
BC Banja Luka BC
Bijeljina BC
Doboj BC
Trebinje BC
Sokolac
BC
Gradiška BC
Zvornik BC
Derventa BC
Foča BC
Višegrad
BC
Vlasenica
BC
Prijedor
BC
Teslid
BC
Prnjavor
BC Novi Grad
BC
M. Grad
Legend: DC – District court
DCC - District commercial court BC – Basic court
Figure 3
5. Courts in the Brčko District of Bosnia and Herzegovina
According to paragraph 36 of the Final Award of the Arbitral tribunal for dispute over inter- Entity boundary in Brčko area (pursuant to which the Brčko District was established), one of essential components of the District government shall be independent judiciary consisting of the court entrusted with first instance jurisdiction and the appellate court. The Statute of the Brčko District enacted in accordance with the Final Award of the Arbitral tribunal, sets forth that the District judiciary consists of the Basic Court and the Appellate Court.
5.1. The Basic Court
The Basic Court of the Brčko District was established in 2001, in accordance with the Statute of the Brčko District and the Law on Courts in Brčko District of Bosnia and Herzegovina.31 Jurisdiction of the Basic Court comprises first instance jurisdiction in both criminal and civil matters, as well as jurisdiction over some other legal matters as prescribed by the law. Criminal jurisdiction encompasses following responsibilities:
– adjudicating all criminal matters, regardless of severity of the prescribed punishment
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
In addition to all above mentioned responsibilities, it also falls within jurisdiction of the Basic Court to adjudicate all minor offence matters. First instance civil jurisdiction of the Basic Court comprises:
– adjudicating all civil disputes
31 The Law on Courts of the Brčko District of Bosnia and Herzegovina, Official Gazette of the Brčko District No. 19/09, 20/07, 39/09
– adjudicating extra-contentious matters
– adjudicating administrative disputes
– adjudicating commercial disputes
– conducting bankruptcy and liquidation proceedings
– adjudicating disputes related to assessment of constitutionality and legality Other matters that fall within jurisdiction of the Basic Court include:
– conducting enforcement proceedings
– carrying out land register matters
– acting upon motions for international legal aid
– acting upon motions for exercising right to legal aid pursuant to Articles 13-21 of the Law on Legal Aid Office of the Brčko District of Bosnia and Herzegovina
– keeping register of legal entities, if prescribed by law
– carrying out other tasks as stipulated by law
Judges of the Basic Court are appointed and disciplined by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. Their mandate is unlimited, while the President of the Court has mandate of 4 years and is eligible for reappointment.
5.2. The Appellate Court
The Appellate Court of the Brčko District was established in 2001. There are 7 judges currently working at the Court, including the President of the Court. The judges are appointed for life subject to resignation, mandatory retirement and or removal from office for a cause, by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. The President of the Appellate Court is elected form among the judges for six-year term of office, with a possibility of reappointment. The jurisdiction of the Appellate Court comprises deciding on ordinary legal remedies against rulings of the Basic Court as well as deciding on extraordinary legal remedies against final court rulings.
1. Introduction
The court system of post Dayton Bosnia and Herzegovina reflects the complexity of its constitutional organization. Bosnia and Herzegovina, consisting of two entities further divided into lower-level administrative units and the Brčko District as neutral self-governing administrative unit, has 76 courts. Of those 76 courts, 3 are constitutional courts, 6 are commercial courts and 67 remaining courts are courts of general jurisdiction.
2. State-level courts
There are only 2 courts at the state level – the Constitutional Court of Bosnia and Herzegovina
and the Court of Bosnia and Herzegovina. (Figure 1)
2.1. The Constitutional Court of Bosnia and Herzegovina
The Socialist Federal Republic of Yugoslavia was the only country that had a system of the constitutional courts already in socialist regime. The first Constitutional Court in former Yugoslavia was created in 1963 and the Constitutional Court of Bosnia and Herzegovina was established for the first time on 15 February 1964. The position of the Constitutional Court of Bosnia and Herzegovina is now provided for in Article VI of the Constitution of Bosnia and Herzegovina1 which defines not only its jurisdiction, but also provides for its organizational structure and its procedure as well as for the final and binding character of its decisions. The first session of the Constitutional Court of Bosnia and Herzegovina was held in May 1997, following the election and appointment procedures. The Constitutional Court of Bosnia and Herzegovina is composed of 9 judges. In addition to 6 national judges 4 of whom are selected by the House of Representatives of the Federation of Bosnia and Herzegovina and 2 by the
National Assembly of the Republika Srpska, the composition of the Constitutional Court includes 3 judges, who must not be citizens of Bosnia and Herzegovina or of any neighboring state, appointed by the President of the European Court of Human Rights (ECtHR) upon
1 Annex 4 of the General Framework Agreement for Peace in Bosnia and Herzegovina
consultation with the Presidency of Bosnia and Herzegovina. The incorporation of international element in composition of the national Court was motivated by the necessity for providing a guarantee for institutions which ought to enjoy absolute neutrality, in order to ensure their independence from ethno-political influence.2 Unlike, for instance, members of the Presidency of Bosnia and Herzegovina, domestic judges are elected on the basis of the federal – and not ethnic – principle of representation. Moreover, the Constitution does not require that they must in any way be members of one of the constituent peoples, or that they have to declare which people they are members of. The Constitutional Court elects a President and 3 Vice- Presidents among the judges by secret ballot. The term of office of the President of the Court lasts for 3 years. Appointed judges, who are (only) required to be distinguished jurists of high moral standing,3 may serve until the age of 70, unless they resign or are removed for cause by
consensus of the other judges.4 The position of judge is deemed incompatible with membership
in a political party or in legislative, executive or other judicial authority in Bosnia and Herzegovina or in the Entities thereof, as well as with any other position that could affect the impartiality of the judge.5 The jurisdiction of the Constitutional Court is stipulated in the Article VI (3) of the Constitution and it encompasses resolving federal disputes and disputes between State authorities, appellate jurisdiction (under the Constitution of Bosnia and Herzegovina and European Convention on Human Rights (ECHR)) and control of constitutionality.6 Additionally, the Constitutional Court also resolves blockades of the Parliamentary Assembly, which occur if the Joint Commission of the House of Peoples fails to reach compromise regarding decision taken by the House of Representatives which was, by the majority of representatives of one
2 Steiner Christian et al., Constitution of Bosnia and Herzegovina- Commentary (Sarajevo: Konrad Adenauer Stiftung, 2010), 675
3 Other prerequisites for election of the judges, such as, for instance, minimum professional experience or certain
age, are not set forth in the Constitution of Bosnia and Herzegovina. Except for being distinguished jurists of high moral standing, candidates for this position have to be eligible voters.
4 Pursuant to the Article VI (1) (c) of the Constitution of Bosnia and Herzegovina, the term of office of those judges
who were initially appointed was five years.
5 Rules of the Constitutional Court of Bosnia and Herzegovina, Article 97
constituent people in the House of Peoples, declared to be destructive of vital interest7 of that people.8
Under the Constitution, disputes over which the Constitutional Court has jurisdiction may be referred to it only “by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.”9 Non-exhaustive list of disputes falling within the Court’s jurisdiction, besides reviewing constitutionality of Entity’s decision to establish parallel relationship with a neighboring state, encompasses deciding on compatibility of an Entity’s constitution or a law as well as State laws with the Constitution of Bosnia and Herzegovina. The constitutionality of a law may be also examined upon referral of an issue by other courts.10 Having in mind the fact that the former Constitutional Court of the Republic of Bosnia and Herzegovina did not deal with individual constitutional actions, appellate jurisdiction of the Constitutional Court, through which the appellant is given an opportunity to have reviewed legal acts of the State as well as those of entities if they violate his legal and constitutional position, is novelty in the legal system of Bosnia and Herzegovina.11 The appeal is extraordinary legal remedy of subsidiary character, which means that the Constitutional Court is authorized to examine it only if all effective legal remedies that are available under the law against a judgment or decision challenged by the appeal are exhausted. Additionally, the appeal has to be filed within time-limit of 60 days as from the date on which the decision on the last effective legal remedy used by the appellant was served on him. Other requirements for admissibility of appeals are set forth in Article 16 of the Rules of the Constitutional Court of Bosnia and
7 The Constitution of Bosnia and Herzegovina does not contain definition of „vital interest.“ In the view of the Constitutional Court, this term encompass „certain principles without which a society with the differences protected under the Constitution could not finction efficiently.“ (Steiner et al., Constitution, 876)
8 The Constitution of Bosnia and Herzegovina, Article IV (3) (f)
9 The Constitution of Bosnia and Herzegovina, Article VI (3) (a)
10 Pursuant to Article VI (3) (c) of the Constitution of Bosnia and Herzegovina, the Constitutional Court has
jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina…”
Herzegovina. The decisions of the Constitutional Court are final and binding, and every physical and legal person is obliged to respect them.
In addition to its functions set forth in the Constitution, the Constitutional Court is authorized, among other issues, to decide on: the election of the President and Vice-Presidents of the Court; the internal organization of the Court; the status and immunity of the President and judges; adoption of the annual budget, etc.12
2.2. The Court of Bosnia and Herzegovina
The Court of Bosnia and Herzegovina was established pursuant to the Law on the Court of Bosnia and Herzegovina which was initially imposed by the decision of the High Representative and subsequently adopted in both chambers of the Parliamentary Assembly of Bosnia and Herzegovina. The Court is composed of the President of the Court and other judges. Currently, there are 54 judges at the Court, 6 of which are international.13 The President of the Court is appointed by the High Judicial and Prosecutorial Council for a term of 6 years. The Court consists of the Plenum and three divisions – Criminal, Appellate and Administrative. The Plenum is composed of the President and all judges of the Court and it is competent to draw up and adopt the Rules of Procedure of the Court, to elect the Chief Registrar, to adopt working schedule of the Court as well as to adopt Court budget proposal, etc. The Criminal Division of the Court consists of three Sections: Section I for War Crimes, Section II for Organized Crime,
Economic Crime and Corruption and Section III for all other crimes falling under jurisdiction of the Court. In accordance with the structure of the Criminal Division, the Appellate Division has three corresponding sections – Section I which decides upon appeals against decisions of the Section I of the Criminal Division, Section II which decides upon appeals against decisions of the Section II of the Criminal division, and Section III which decides upon appeals of the Section III of the Criminal Division, as well as upon appeals related to electoral issues. The criminal jurisdiction of the Court is set forth in Article 7 of the Law on the Court of Bosnia and Herzegovina, and it encompasses jurisdiction over criminal offences prescribed by the Criminal
12 Rules of the Constitutional Court of Bosnia and Herzegovina, Article 80 (1)
13 Sud Bosne i Hercegovine
Code of Bosnia and Herzegovina and other B&H laws, as well as over criminal offences defined in laws of Entities and the Brčko District when such criminal offences endanger the sovereignty, territorial integrity, political independence, national security or international personality of Bosnia and Herzegovina, or if they may have serious repercussions or detrimental consequences to the economy of Bosnia and Herzegovina or may have other detrimental consequences to Bosnia and Herzegovina or may cause serious economic damage or other detrimental consequences beyond the territory of an Entity or the Brčko District of Bosnia and Herzegovina. Additionally, it falls within jurisdiction of the Court to:
– take a final and legally binding position on the implementation of Laws of Bosnia and Herzegovina and international treaties upon request of any court of the Entities or any court of the Brčko District of Bosnia and Herzegovina entrusted with implementation of B&H laws;
– issue practice directions with respect to application of the substantive criminal law of Bosnia and Herzegovina falling within the jurisdiction of the Court regarding genocide, crimes against humanity, war crimes and violations of the laws and practices of warfare and individual criminal responsibility related to those crimes, ex officio or at the request of any court of the Entities or of the Brčko District of Bosnia and Herzegovina;
– decide any conflict of jurisdiction between the courts of the Entities, between the Courts of the Entities and the Courts of the Brčko District of Bosnia and Herzegovina and between the Court of B&H and any other court, etc.
Within its administrative jurisdiction, the Court of B&H decides upon complaints to final administrative acts and/or in the case of administrative silence of the institutions of Bosnia and Herzegovina, public agencies, public corporations, institutions of the Brčko District and other organizations established pursuant to State laws of Bosnia and Herzegovina. In addition to it, the Court has also jurisdiction over:
– assessing legality of individual and general executive administrative acts, adopted on the basis of the State Law
– deciding property disputes between the State and the Entities, between the State and the Brčko District, between the Entities, between the Entities and the Brčko District and between the institutions of Bosnia and Herzegovina, which are interrelated with the exercise of public functions
– resolving conflict of jurisdiction between the Entity courts, and between the courts of the Entities and the courts of the Brčko District and between the Court of Bosnia and Herzegovina and any other court.
The appellate jurisdiction of the Court encompasses deciding upon ordinary and extraordinary legal remedies14 against decisions delivered by the Criminal and Administrative Divisions of the Court.
The Court of Bosnia and Herzegovina has a Common Secretariat composed of three organizational units15 which is responsible for the administration and the provision of support services to Section III of the Criminal and Appellate Divisions and Administrative Division, as well as the Registry for Section I and Section II of Criminal and Appellate Divisions managed by the Registrar who is responsible, in cooperation with the President of the Court, for the administration and provision of administrative, legal and other support services to Section I and
14 According to both civil and criminal procedure laws that are currently in force in B&H, legal remedies can be divided into two categories – ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedy is an appeal which can be filed not only against judgment, but also against other court decisions rendered during criminal or civil proceedings. On the other hand, extraordinary legal remedies can be filed against final court decision only in some exceptional cases, under conditions prescribed by law. Most frequently used extraordinary legal remedy in both criminal and civil proceedings is reopening of criminal/civil proceedings (retrial). Criminal/civil proceedings may be reopened if, for instance, a decision of the court was founded on a perjury of a witness or expert witness; or if a decision of the court was a result of a criminal offence committed by a judge, a lay judge, a legal representative or an attorney of a party, an opposing party or a third party; or if the party has learned about new facts or has been given or has gained a possibility to have recourse to new evidence on the basis of which a more favorable decision could have been passed for the party had such facts or evidence been used in the previous proceedings, etc. Apart from retrial, civil procedure codes prescribe a possibility of filing another extraordinary legal remedy called “review”. Motion for review can be filed against second instance judgment on the grounds of substantial violation of specific civil procedure laws, incorrect application of substantive law or exceeding of the claim, if such infraction was inflicted in the course of second – instance proceedings.
15 Those units are: Department for legal, general, administrative and technical support affairs, Department for
financial affairs, and the Court Sections legal support service.
Section II of the Criminal and Appellate Divisions. The Registry, which was established by an international agreement signed on 1 December 2004 by the High Representative for Bosnia and Herzegovina and the Presidency of Bosnia and Herzegovina with the main objective of providing support to strengthening of capacities of Sections I and II of the Court, comprises Legal Department, Court Management Section, Witness Support Section, Public Information and Outreach Section and Administration.16
The Court of Bosnia and Herzegovina
The Constitutional Court of Bosnia and Herzegovina
Criminal Division Administrative Division
Appellate Division
The Registry
Section I – War Crimes
Section I – decides upon appeals of the Section I of the Criminal Division
Court Management Section
Section II – Organized Crime, Enonomic Crime and Corruption
Section III – all other criminal offences under the Court's jurisdiction
Legal Department
Witness Support Section
Public Information and Outreach Section
Figure 1
16 The new Agreement on the Registry, replacing the Agreement signed on 1 December 2004 and the Annex signed on 23 February 2006, was signed on 26 September 2006.
3. Organization of the courts in the Federation of Bosnia and Herzegovina
The court system of the Federation of Bosnia and Herzegovina (hereinafter the Federation) comprises 40 courts – the Constitutional Court of the Federation, the Supreme Court of the Federation, 10 Cantonal and 28 Municipal courts. (Figure 2)
3.1. The Constitutional Court of the Federation of Bosnia and Herzegovina
The Constitutional Court of the Federation of Bosnia and Herzegovina, which was established pursuant to constitutional provisions,17 is composed of 9 judges of whom at least 2 come from all three constituent people each and one from the group of Others. The jurisdiction of the Constitutional Court comprises resolving disputes between various levels of authority,18 protection of constitutionality,19 deciding on constitutional matters, deciding on the vital national interest on both the federal and cantonal level,20 deciding on immunity, issuing opinions on constitutional matters as well as deciding on removal of the President and Vice- Presidents pursuant to the Constitution of the Federation of Bosnia and Herzegovina. The judges of the Constitutional Court are nominated by the President of the Federation with concurrence of the Vice-Presidents, and their appointment requires approval of a majority of the present and voting members of the House of Peoples. The judges of the Constitutional Court elect the President and Vice-President of the Court by secret ballot for one-year term of
office and they cannot be reappointed more than twice. Proceedings before the Constitutional Court may be instituted only upon request of those entities explicitly entitled to it by the Constitution of the Federation. Decisions of the Constitutional Court are final and binding.
17 The Constitution of the Federation of Bosnia and Herzegovina IV (C) (3), Article 9-13
18 For instance, between cantons; between cantons and the Federation authorities; between city and its canton
and the Federation authorities, between city and municipality, between municipalities and their cantons or he Federation authorities, etc.
19 The Constitutional Court of the Federation is competent to examine compatibility of any law proposed or
enacted by the Federal or Cantonal Legislature as well as compatibility of any other regulation proposed or enacted by any organ of the Federation with the Constitution of the Federation.
20 In the case of failure of an attempt to reach compromise regarding the claim of 2/3 of one of the caucuses of the
constituent peoples in the House of Peoples that the act, law or regulation affects vital national interest of that
people, the Constitutional Court is competent to make final decision. For that purpose, within the Constitutional Court exists the Vital Interest Panel composed of 7 members. It is noteworthy that the Constitution of the Federation, unlike B&H Constitution, defines the notion of “vital interests.” (Article 17a of the Constitution of the Federation of Bosnia and Herzegovina)
3.2. The Supreme Court of the Federation of Bosnia and Herzegovina
The Supreme Court of the Federation of Bosnia and Herzegovina is the highest court of appeals in the Federation. There are currently 34 judges working at the Court. The President of the Court and other judges are appointed and disciplined by the High Judicial and Prosecutorial Council (HJPC). The President’s term of office lasts 6 years, with the possibility of reappointment, while judges are appointed for life, subject to resignation, retirement or removal for cause by the HJPC. In addition to responsibilities concerning organization of the work of the Court, the President of the Supreme Court is, pursuant to the constitutional provision, responsible for the management of the Judicial Police. The Supreme Court has four divisions – Criminal Division, Civil Division, Administrative Division and Division for Registering and Monitoring of the Court Practice. Besides appellate jurisdiction that comprises deciding upon ordinary legal remedies against rulings of the cantonal courts, deciding upon extraordinary legal remedies against final court decisions and deciding upon legal remedies against rulings of its own Panels, the Supreme Court has additional jurisdiction as provided by
the Law on Courts in the Federation of Bosnia and Herzegovina21 which includes resolving
conflicts of jurisdiction between cantonal and municipal courts from different cantons, deciding on transfer of territorial jurisdiction from one to another court, when prescribed by the law, and carrying other tasks as stipulated by the law, except for those falling within jurisdiction of the Constitutional Court of the Federation of Bosnia and Herzegovina.
3.3. Cantonal courts
In accordance with its administrative organization, there are 10 Cantonal courts in the Federation of Bosnia and Herzegovina. Their jurisdiction is set forth in the Law on Courts in the Federation of Bosnia and Herzegovina,22 and it consists of first instance jurisdiction, appellate jurisdiction, as well as jurisdiction over some other legal matters prescribed by the Law. The first instance jurisdiction comprises:
21 The Law on the Courts in the Federation of Bosnia and Herzegovina, Official Gazette No. 38/05 and 22/06
22 The Law on the Courts in the Federation of Bosnia and Herzegovina, Article 28
– adjudicating criminal matters for which the principal punishment of an imprisonment sentence of more than 10 years or long term imprisonment is prescribed by the law,
– acting in the course of investigative procedure and upon issuance of an indictment,
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating administrative disputes and requests for the protection of rights and freedoms set forth in the Constitution of the Federation
Second instance jurisdiction of Cantonal courts encompasses deciding on appeals against rulings of Municipal courts, as well as deciding on other ordinary and extraordinary legal remedies as provided by the law. Additionally, it falls within the jurisdiction of Cantonal courts to:
– resolve conflicts of territorial jurisdiction between Municipal courts from the same canton,
– decide on transfer of jurisdiction from one Municipal court to another,
– act upon motions for pardon in accordance with the Law,
– decide on the deletion of conviction and termination of security measures and legal consequences of a conviction,
– act upon motions for international legal aid,
– decide on motions for recognition of foreign judgments
– carry out other tasks as stipulated by the Law.
Territorial jurisdiction of the Cantonal Court in Bihad23 covers area of the Una-Sana Canton consisting of 8 municipalities. This Court has three divisions – Criminal Division, Civil Division and the Court Management Division. There are currently 15 professional judges and 15 lay judges working at the Court.
The Cantonal Court in Goražde, covering area of the Bosnian-Podrinje Canton, as well as the Cantonal Court in Odžak which has territorial jurisdiction over the Posavina Canton, have two
23 Official websites of almost all courts and offices of the prosecutor in Bosnia and Herzegovina can be accesssed through the website
Divisions – Criminal and Civil. Besides the Presidents of the Courts, there are only 3 judges working at these Courts.
The Cantonal Court in Livno, established in 1997 pursuant to the Cantonal Law on Courts,24 and
the Cantonal Court of the West-Herzegovina Canton seated in Široki Brijeg, consist of the Court Management Division and the Judicial Division that comprises Criminal and Civil Sections of the Courts. Each of these courts employs 5 judges.
As opposed to 4 afore mentioned courts, the Cantonal Courts in Mostar, Zenica, Novi Travnik
and Sarajevo, in addition to its Criminal and Civil Divisions, have also Administrative Divisions. There are 15 judges working at the Cantonal Court in Mostar, 17 at the Cantonal Court in Zenica, 15 judges at the Cantonal Court in Novi Travnik, while the Cantonal Court in Sarajevo has 33 judges.
The Cantonal Court in Tuzla comprises Criminal and Civil Division, as well as Court Management Division and the Sector for administrative matters. There are 20 “permanent” and 2 additional judges working at this Court.
3.4. Municipal Courts
There are currently 28 Municipal courts in the Federation.25 Municipal courts are established for the area of one or more municipalities in the Canton. Pursuant to the Law on Courts in the Federation of Bosnia and Herzegovina,26 their jurisdiction comprises first instance jurisdiction in criminal and civil cases, as well as jurisdiction over some other matters prescribed by the Law. Criminal jurisdiction encompasses:
– adjudicating criminal matters for which the principal punishment of a fine or an imprisonment sentence of up to 10 years is prescribed by the law,
– adjudicating criminal matters falling within jurisdiction of Municipal courts in accordance with other laws
24 The Law on Courts, Official Gazette of Herceg-Bosna Canton No. 1/97
25 Those are Municipal courts in: Bihad, Bosanska Krupa, Bugojno, Cazin, Čapljina, Goražde, Gračanica, Grdačac,
Kakanj, Kalesija, Kiseljak, Konjic, Livno, Ljubuški, Mostar, Orašje, Sanski Most, Sarajevo, Široki Brijeg, Tešanj, Travnik, Tuzla, Velika Kladuša, Visoko, Zavidovidi, Zenica, Žepče and Živinice
26 The Law on Courts in the Federation of Bosnia and Herzegovina, Article 27
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating all criminal matters concerning juveniles
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
First instance jurisdiction in civil cases includes adjudicating all civil disputes and extra- contentious matters.27 Additionally, Municipal courts are competent to conduct enforcement proceedings, to carry out land register matters, to act upon domestic courts’ motions for legal aid and to carry out other tasks as stipulated by the Law. Besides criminal and civil divisions, Municipal courts usually have minor offence divisions, as well as separate land register and enforcement divisions. The Municipal court in Sarajevo even has special family division. Commercial divisions are established within Municipal courts in Bihad, Orašje, Tuzla, Zenica, Goražde, Travnik, Mostar, Široki Brijeg, Sarajevo and Livno. These courts have jurisdiction over intellectual property matters, disputes related to maritime law and aeronautical law, bankruptcy and liquidation proceedings, issues related to unfair competition, other disputes arising from trade of goods, services, loan stocks, etc.
27 For the purpose of this paper, the term „extra – contentious matters“ is used to describe personal, family, property and other legal matters that are to be decided in “extra – contentious proceedings” before the court. Legal matters that are to be decided in this kind of proceedings are prescribed by law, and they include: removal of legal capacity, detention in neuropsychiatric health care organization, declaration of death of missing person, extension of parental rights, granting permission to conclude marriage, determining compensation for expropriated real property, regulation of managing and using a common asset, etc. Extra – contentious proceedings are instituted by a petition of natural or legal person, as well as by the court ex officio under conditions prescribed by the law. On the other hand, “contentious matters” are those related, for instance, to breach of contractual obligations, marital disputes, compensation of damages disputes, real property and trespass disputes, commercial disputes, labor – related disputes, etc., and they are to be decided in so called “contentious proceedings”. Unlike extra – contentious proceedings, contentious proceedings are instituted by complaint.
The Supreme Court of the Federation
The Constitutional Court of the Federation
CC
Sarajevo CC
Zenica CC Široki Brijeg CC
Tuzla CC
Goražde CC
Mostar CC
Bihad CC
Odžak CC
Livno CC Novi Travnik
MC
Sarajevo MC
Kakanj MC Široki Birjeg MC
Gračanica MC
Goražde MC
Mostar MC
Bihad
MC
Bugojno
MC
Kiseljak
MC Sanski Most
MC
Zenica
MC
Živinice
MC V.
Kladuša
MC
Žepče
Legend: CC – Cantonal court MC -Municipal court
Figure 2
4. Courts in the Republika Srpska
There are altogether 32 courts in the Republika Srpska – the Constitutional Court and the Supreme Court of the Republika Srpska, 5 District Courts, 19 Basic courts, 5 District commercial courts and the High Commercial court. (Figure 3)
4.1. The Constitutional Court of the Republika Srpska
The status of the Constitutional Court is defined in the Constitution of the Republika Srpska itself. In addition to it, there is also the Law on the Constitutional Court of the Republika Srpska28 which regulates issues related to the organization of the Constitutional Court, proceedings before the Court and legal force of its decisions. Pursuant to constitutional provisions, the Constitutional Court consists of 9 judges elected for eight-year term of office (without possibility of reappointment) by the National Assembly of the Republika Srpska upon proposal of the President of the Republika Srpska. The term of office of the President of the Court and two Vice-Presidents lasts 4 years. Responsibilities of the Constitutional Court encompass deciding on constitutionality of laws and both the constitutionality and legality of regulations and general enactments, as well as programs, statutes and other general enactments of political organizations. In addition to it, it falls within jurisdiction of the
Constitutional Court to resolve conflict of jurisdiction between bodies of legislative, executive and judicial branch and conflict of jurisdiction between agencies of the Republika Srpska, city and municipality. Pursuant to both the Constitution and the Law on the Constitutional Court of the Republika Srpska, the Court is also assigned with:
– monitoring events of interest for the achievement of constitutionality and legality
– informing the highest constitutional bodies of the Republika Srpska on the status and problems in that area
– offering opinions and proposals for adoption of laws
28 The Law on the Constitutional Court of the Republika Srpska, Official Gazette of the Republika Srpska No. 54/05
– undertaking other measures for the purpose of ensuring constitutionality and legality, as well as the protection of freedoms and rights citizens, organizations and communities.
Protection of vital interests falls within the competences of the Panel for the protection of vital interests composed of seven judges. As opposed to the Constitution of Bosnia and Herzegovina, the Constitution of the Republika Srpska explicitly defines vital national interests of the constituent peoples as issues related to:
– entitlement of each constituent people to be adequately represented in the bodies of legislative, executive and judicial branch
– identity of a constituent people
– organization of the bodies of public authority
– education, religion, language, culture, tradition and cultural heritage
– territorial organization
– constitutional amendments
– public information system
– equal rights of the constituent peoples in decision making process
– other issues which would be treated as vital national interest issues if it is so considered by two-thirds of one of the caucuses of the constituent peoples in the Council of Peoples29
Even though anyone is entitled to propose initiation of the proceedings for assessment of the constitutionality and legality before the Constitutional Court, proceedings may be instituted only by the President of the Republika Srpska, by the National Assembly, by the Government, by other bodies, organizations and communities under conditions prescribed by law, as well as by the Constitutional Court itself. If the Constitutional Court’s decides that a law does not comply with the Constitution or that another regulation or general enactment does not comply with the Constitution or law, such law, regulation or general enactment cease to be effective on the day of the publication of the Constitutional Court’s decision.
29 The Constitution of the Republika Srpska, Article 70
4.2. The Supreme Court of the Republika Srpska
The Supreme Court seated in Banja Luka is the highest court in the Republika Srpska. It was established in 1992 by the decision of the National Assembly, in accordance with at that time effective Constitution of the Republika Srpska. Pursuant to the Constitution currently in force, the Supreme Court is entrusted with ensuring unified enforcement of law. Additional jurisdiction of this Court is prescribed by the Law on Courts in the Republika Srpska, and it encompasses:
– deciding on ordinary legal remedies against rulings of District courts, if prescribed by the law
– deciding on extraordinary legal remedies against final rulings of the courts, when prescribed by the law
– deciding on legal remedies against rulings of its own Panels
– resolving conflict of jurisdiction between courts,
– deciding on transfer of jurisdiction from one court to another, in accordance with the law
– carrying other tasks as stipulated by the law30
The Supreme Court has 17 judges appointed for life, subject to resignation, retirement or removal for cause, by the High Judicial and Prosecutorial Council. The President of the Supreme Court, who is required to have proven management and leadership skills relevant to the operation of the Court, is elected from among the judges for six-years term of office, with the possibility of reappointment. The Court has Criminal and Civil-Administrative Division, as well as Court Management Division consisting of three sections.
30 The Law on Courts in the Republika Srpska, Official Gazette of the Republika Srpska No. 111/04, 109/05, 37/06, 119/08, 58/09, 13/10
4.3. District Courts
There are currently 5 district courts in the Republika Srpska. Their jurisdiction, as set forth in the Law on Courts in the Republika Srpska, is the same as that of Cantonal courts in the Federation and it comprises first instance and appellate jurisdiction, as well as jurisdiction over some other legal matters as prescribed by the Law. In the first instance, District courts are responsible for:
– adjudicating criminal matters for which the principal punishment of an imprisonment sentence of more than 10 years or long-term imprisonment is prescribed by the law,
– acting in the course of investigative procedure and upon issuance of an indictment,
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction to District court
– adjudicating administrative disputes and requests for the protection of rights and freedoms set forth in the Constitution
Appellate jurisdiction of District courts encompasses deciding on appeals against rulings of Basic courts, as well as deciding on other ordinary and extraordinary legal remedies if provided by the law. Additionally, it falls within the jurisdiction of District courts to:
– resolve conflicts of territorial jurisdiction between Basic courts from the same area for which the District court is established
– decide on transfer of jurisdiction from one Basic court to another,
– act upon motions for pardon in accordance with the Law,
– decide on the deletion of conviction
– decide on termination of security measures and legal consequences of a conviction,
– act upon motions for international legal aid in criminal matters,
– decide on motions for recognition of decisions of foreign courts
– carry out other tasks as stipulated by the law
The District court in Banja Luka consists of 4 divisions – Division for criminal and minor offences, Special division for repression of organized crime and most serious economic criminal offences,
Civil division and Administrative division. There are 30 judges and 4 additional judges working at the Court. The other 4 District courts have 2 Divisions each – one Division for criminal and minor offences and one for civil, commercial and administrative matters. The District court in Doboj employs 10 judges, the District court in Istočno Sarajevo 7, the District court in Trebinje 5 and the District court in Bijeljina 8 judges plus 2 additional judges.
4.4. District commercial courts and the High Commercial Court
District commercial courts are established for the same areas as district courts. They are entrusted with first instance jurisdiction concurrent with that of those Municipal courts which have commercial division in their composition, and it comprises, among other issues, following responsibilities:
– adjudicating intellectual property matters
– adjudicating disputes related to maritime law and aeronautical law
– conducting bankruptcy and liquidation proceedings
– deciding on issues related to unfair competition
– adjudicating disputes arising from foreign investments
– registration of legal entities and independent undertakers
– other disputes arising from trade of goods, services, loan stocks, etc.
The High Commercial Court seated in Banja Luka has appellate jurisdiction over first instance rulings of District commercial courts. Additionally, it falls within its jurisdiction to resolve conflicts of jurisdiction between district commercial courts, to decide on transfer of jurisdiction from one District court to another, to establish legal postures in order to ensure unified enforcement of laws as well as to carry out other tasks stipulated by law.
4.5. Basic courts
Notwithstanding the fact that the territory of the Republika Srpska is divided into municipalities as units of local self-government, the courts established for the areas of those municipalities are called Basic courts instead of Municipal courts as is case in the Federation of Bosnia and
Herzegovina. However, their jurisdiction is concurrent with that of Municipal courts, and it comprises following responsibilities:
– adjudicating criminal matters for which the principal punishment of a fine or an imprisonment sentence of up to 10 years is prescribed by the law,
– adjudicating criminal matters falling within jurisdiction of Basic courts in accordance with other laws
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– adjudicating all criminal matters concerning juveniles
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
First instance jurisdiction in civil cases includes adjudicating all civil disputes and extra- contentious matters. In addition to their jurisdiction for criminal and civil matters, Basic courts also have jurisdiction over conducting enforcement proceedings, carrying out land register matters, acting upon domestic courts’ motions for legal aid and carrying out other tasks stipulated by the law. There are currently 19 Basic courts in the Republika Srpska, most of which have up to 3 divisions, while the Basic court in Bijeljina, in addition to criminal, civil and minor offences division has also enforcement division. Instead of civil division, the Basic court in Banja Luka has separate divisions for contentious and for extra-contentious matters, which means that this Court consists of 5 divisions.
The Supreme Court of the Republika Srpska
The High Commercial Court
The Constitutional Court of the Republika Srpska
DC Banja Luka DC
Bijeljina DC
Doboj DC
Trebinje DC Ist. Sarajevo
BC Banja Luka BC
Bijeljina BC
Doboj BC
Trebinje BC
Sokolac
BC
Gradiška BC
Zvornik BC
Derventa BC
Foča BC
Višegrad
BC
Vlasenica
BC
Prijedor
BC
Teslid
BC
Prnjavor
BC Novi Grad
BC
M. Grad
Legend: DC – District court
DCC - District commercial court BC – Basic court
Figure 3
5. Courts in the Brčko District of Bosnia and Herzegovina
According to paragraph 36 of the Final Award of the Arbitral tribunal for dispute over inter- Entity boundary in Brčko area (pursuant to which the Brčko District was established), one of essential components of the District government shall be independent judiciary consisting of the court entrusted with first instance jurisdiction and the appellate court. The Statute of the Brčko District enacted in accordance with the Final Award of the Arbitral tribunal, sets forth that the District judiciary consists of the Basic Court and the Appellate Court.
5.1. The Basic Court
The Basic Court of the Brčko District was established in 2001, in accordance with the Statute of the Brčko District and the Law on Courts in Brčko District of Bosnia and Herzegovina.31 Jurisdiction of the Basic Court comprises first instance jurisdiction in both criminal and civil matters, as well as jurisdiction over some other legal matters as prescribed by the law. Criminal jurisdiction encompasses following responsibilities:
– adjudicating all criminal matters, regardless of severity of the prescribed punishment
– adjudicating criminal matters falling within jurisdiction of the Court of B&H, upon the Court’s decision to transfer its jurisdiction,
– acting in the course of investigative procedure and upon issuance of an indictment, as prescribed by the Law
– deciding on the deletion of conviction and termination of security measures and legal consequences of a conviction
– acting upon motions for pardon in accordance with the Law
In addition to all above mentioned responsibilities, it also falls within jurisdiction of the Basic Court to adjudicate all minor offence matters. First instance civil jurisdiction of the Basic Court comprises:
– adjudicating all civil disputes
31 The Law on Courts of the Brčko District of Bosnia and Herzegovina, Official Gazette of the Brčko District No. 19/09, 20/07, 39/09
– adjudicating extra-contentious matters
– adjudicating administrative disputes
– adjudicating commercial disputes
– conducting bankruptcy and liquidation proceedings
– adjudicating disputes related to assessment of constitutionality and legality Other matters that fall within jurisdiction of the Basic Court include:
– conducting enforcement proceedings
– carrying out land register matters
– acting upon motions for international legal aid
– acting upon motions for exercising right to legal aid pursuant to Articles 13-21 of the Law on Legal Aid Office of the Brčko District of Bosnia and Herzegovina
– keeping register of legal entities, if prescribed by law
– carrying out other tasks as stipulated by law
Judges of the Basic Court are appointed and disciplined by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. Their mandate is unlimited, while the President of the Court has mandate of 4 years and is eligible for reappointment.
5.2. The Appellate Court
The Appellate Court of the Brčko District was established in 2001. There are 7 judges currently working at the Court, including the President of the Court. The judges are appointed for life subject to resignation, mandatory retirement and or removal from office for a cause, by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. The President of the Appellate Court is elected form among the judges for six-year term of office, with a possibility of reappointment. The jurisdiction of the Appellate Court comprises deciding on ordinary legal remedies against rulings of the Basic Court as well as deciding on extraordinary legal remedies against final court rulings.