Nummer 4 der „Blätter für Öffentliches Recht“ zum downloaden

Should Bosnia and Herzegovina have one Supreme Court? This is not just a question of academic or political importance. It is, first of all, a question of active juridical practice and achievement of justice in the process of juridical verdicts pronouncement. However, in the existing constellation, it is not possible to give one answer to that question. The analyses that follow show only the supportive arguments. They cannot be generalized and have no character of legal orders.  

Towards maintaining the current situation: What stands against establishing one Supreme Court is the constitutional structure and distribution of competences between the state and the entities – this is the general legal framework providing those advocating for the maintenance of the existing construction with safe constitutional basis. Along with this one, there is a somewhat streched argument, that the Constitutional Court in its current form is a legal instance that can compensate for the lack of one Supreme Court with its appellate jurisdiction. Accessory arguments is that the establishing one supreme court would mean creating a redundant  judicial instance which,  in terms of competences, professional structure, financing and the possibility of unification of the entities’ court practice would be very difficult to “fit into” the current judicial structure.

Against the maintaining the current situation: In favor of  establishing one Supreme Court are the arguments of legal security, equality before the law, concrete harmonization of judicial practice and interpretation of the law, then, the transformation of Constitutional Court of BiH into “extra- review” instance which conducts the exclusion of its constitutional position, recommendations of the international community, parallel legal experiences of federal states as well as an argument of  the European Union membership, which in its basis, aims at the prior decision-making process. Accessory arguments are: ensuring a single market at the state area, out of cases which are in appellate jurisdiction of  the Constitutional Court, fulfilling the Copenhagen’s criteria for accession to European integrations, particularly, ensuring the efficient application of the law of European Union in the sense of “rule of law”, fulfilling of the “clause on harmonization” of Article 70 of the Agreement on stabilization and integration, but, also the principal arguments that Court represents one of the elements of statehood and that the current constitutional law does not hinder its establishment.   

General overview of the analyzed aspects leads to the conclusion that the prevalent legal opinion resulted in forming the position that one Supreme Court in BiH is a necessary solution or at least, a legally justified demand. Enclosed analysis can serve as an illustration of such opinion. But, they do not show clearly differentiated suggestions for concrete solutions with regard to organization, funding, personnel and competences of such Supreme Court. On one side, there is a tacit or explicit, advocating for a separate institution of the Supreme Court, and on the establishing of such instance within the existing Constitutional Court is mentioned.  Both proposals, however, remain at the principal level and do not affect the concrete organizational aspects.   

Even if it is accepted that the analysis compiled here have offered a solid basis for the “general legal opinion” we cannot be certain that they are representative. Namely, since its establishment, CJP in B&H has been faced with a problem which has become clear in details with relation to the topic. For the purpose of illustration, we can name it “entity’s legal brain”. It is a phenomenon the essence of which is described by the fact that the lawyers who work in a legal situation of an entity jurisdiction and jurisprudence to the equal extent, do not show readiness to engage into discussion on legal issues by using the legal criteria and legally oriented methods. Upon our inquiries, requests and detailed clarifications, considerably small number of lawyers from the Republic of Srpska decided to analyze this topic. Typical reason for their negative position is explained by the fact that their current function is incompatible with presenting expert opinions on the issue. On the other hand, disproportionately large number of lawyers from the Federation of B&H has shown interest in this topic. It appeared, however, that only a small number of them was able to focus their own argumentation on the legally relevant problems and to forsake working with political rant platitudes. Both can be a clue for some level of independence of the B&H lawyers from political and often nationalistically inspired trends, that is, an indicator of the extent to which they are capable of analytically resolving the issue of the Supreme Court in B&H in a politically neutral and legally based manner. The existence of incomparably large number of lawyers, who, without any constraints, advocate for a single Supreme Court can serve along with the phenomenon of “entity’s legal brain” as a clear evidence that there has been ensured the base of legal positions form which, without any difficulty, a legal plea for the defense for the establishment of one Supreme Court must be derived.

Particular problem is the engagement of competent lawyers from the region and from abroad. Here it becomes obvious that the contact with the B&H model of judicial authority and with the B&H legal system in general has been lost. Nobody dares to get involved in this construct because of “complex and unclear situation”. What we receive in the form of expertise has more resemblance to the legal essays which rest on the basic absolution of problems. Analysis that we publish, though they greatly overcome all mentioned weaknesses, can still illustrate the described problem to a careful reader.

Precisely because of that, the issue of the Supreme Court of B&H must be resolved by dialog between domestic lawyers and by the engagement of domestic experts. It has to be ideologically neutral and un-ballasted by the “entity’s legal brain”. We see this number of Volume as a contribution to the culture of expert dialogue and we look forward eagerly to receiving the expert’s reactions.

Edin Šarčević