Ensuring the Highest Level of Internationally Recognised Human Rights and Fundamental Freedoms
We have to remember that the local judiciary is still in the midst, and not at the end, of reforming itself, said Ambassador Douglas Davidson |
The Constitution of Bosnia and Herzegovina (BiH) provides that BiH shall be a democratic State operating under the rule of law and obliges the State and entity governments to ensure the highest level of internationally recognised human rights and fundamental freedoms. The implementation of these objectives is dependent upon a strong, effective, impartial and independent judiciary.
Reform of the legal system in BiH has developed rapidly in recent years with the enactment of new criminal procedure codes at the State and entity levels, the establishment of the High Judicial and Prosecutorial Council and extensive court restructuring.
Despite the great strides made in criminal law reform, the OSCE remains active in the areas of trial monitoring, the implementation of criminal procedure reforms, the domestic prosecution of war crimes, access to justice issues, prosecutorial outreach in war crimes cases and prison reform.
Through its extensive field presence, the OSCE maintains an overview of the reformed legal system in BiH. The Human Rights Department’s programs are designed to ensure that:
- Everyone, regardless of their status, are equal before the law;
- Laws are compliant with the BiH Constitution and with international human rights instruments, and that the application of the law is compliant with BiH’s international commitments;
- The judiciary operates free from interference and pressure of intervention;
- Everyone has equal access to the justice system to determine their rights and obligations and that the remedies available to them are effective;
- The rights of a defendant to a fair trial in accordance with international standards are respected without distinction so that convictions are safe.
To assist the BiH Ministry of Justice in analysing and assessing the implementation of the Criminal Codes and the Criminal Procedure Codes (CPC) the Mission assisted the Criminal Code Implementation Assessment Team (CCIAT) and presented its position throughout the process. The CCIAT, which includes government representatives, practitioners and academia, deliberated over 50 submissions from experts, law practitioners and international organisations containing over 500 proposals for amendments of the CPC’s provisions in the last year alone. The OSCE Human Rights Department also prepared and submitted several amendment proposals for the CPC. The majority of these proposals, based on the findings of the Trial Monitoring Programme and analysis of international fair trial standards, were endorsed by CCIAT in whole or in part.
The proposal for amendments to the BiH CPC, finalised in July 2006, contains a wide range of substantive changes providing for greater compliance with fair trial standards as well as satisfying requirements of efficiency and clarity of criminal proceedings. Encompassing 137 articles, it was submitted to the Ministry of Justice and awaits endorsement by the BiH Council of Ministers.
Trial Monitoring
For the last three years, Mission’s Trial Monitoring Program has been a key tool and information resource for guiding OSCE’s efforts to advocate for criminal legal reform and to locate resource needs within the judicial system in BiH. The trial monitoring was targeted at identifying systemic problems with the implementation of the new criminal procedure codes while identifying and measuring compliance with core international human rights and fair trial standards.
Since the signing of the Dayton Peace Agreement, the OSCE has monitored the general human rights situation in the country paying special attention to governmental obligations to provide essential services to the most vulnerable persons in society and the re-establishment of the rule of law. We have concentrated on these dual components to the post-conflict recovery as they are crucial to addressing the root causes of the war that tore BiH asunder. They also represent key areas where governmental obligations are clearly defined under international human rights standards.
Principle on the presumption of innocence: Innocent until proven guilty |
Trial monitoring is one of the fundamental pillars upon which most human rights organisations rely in order to assess the strength of the society in which they operate. This is particularly true of communities recovering from the scourge of civil war and the breakdown or dissolution of the rule of law that is implicit in such events. As society rebuilds, so too must the courts and legal systems.
Overtime, security and stability must take hold to have peace. Communities must be policed and laws enforced for a peaceable life to resume. The public must have confidence that they will not be arbitrarily subjected to the excesses of authority or the tyranny of the majority.
They must also be able to trust in the structures of justice to redress the legacy of the conflict, including the most serious crimes under domestic and international norms. Without such confidence there will be no reconciliation and recovery.
Nothing is more fundamental or probative to determining the health of a State or Government than the ability of courts to serve as a check to the wrathful power of the executive, as cipher of legislative intentions, and as guarantor of the rights of individuals over the collective whims of the mob. To achieve this protective aim the legal systems in a state must truly be ruled by the laws of the land and administered by individuals of impeccable professional preparedness and unimpeachable ethics.
With the Mission’s focus on fair trial standards, our monitors are monitoring the accurate implementation of the CPCs and, more importantly, are concentrating on assessing the effective functioning of institutions that can both respect the rights of defendants and suspects as well as victims and witnesses. Such an approach will help the OSCE provide better advice to our local partners to promote a criminal justice system which meets the standards set out in Annex VI of the Dayton Agreement, as well as the standards of the European Union.
Access to Justice/Provision of Legal Assistance
The OSCE has been working in conjunction with agencies involved in the study and development of access to justice programmes for BiH. OSCE field offices are monitoring access to justice issues, concentrating on eight basic themes:
- the existence of any indigence tests,
- judges' interpretation of the interests of justice requirement,
- the swiftness of attorneys' appointments,
- the implementation of the principle of instruction of rights,
- the manner of ex officio lawyers' selection,
- dismissal of ex officio lawyers and
- the adequacy of legal aid budgets, as well as their allocation.
Juvenile Justice
BiH government and OSCE collaborate to improve juvenile justice system |
Reform of the BiH juvenile justice system is one of the essential requirements for integration into the European Union. The OSCE, through its monitoring of the criminal justice system and conducting surveys of the situation of juvenile justice, has identified serious problems with the current legislation, implementation of legal provisions and infrastructural capacity. The Mission is, therefore, providing support to the authorities to implement the “Strategy to Combat Juvenile Delinquency in BiH (2006-2010)”, adopted by the BiH Council of Ministers in 2006.
The Mission’s Juvenile Justice Project aims to assist the BiH justice system and social welfare authorities to improve their response to juvenile delinquency in accordance with domestic law and international child rights standards. By approaching juvenile justice from the perspective of child protection standards, the project places the best interest of the child (Article 3 CRC) at the heart of the reformed system.
Working with partners from the international community, NGOs and local civil society initiatives, the project monitors all aspects of juvenile justice, from court procedures to police treatment of juveniles. The project’s findings are targeted at policy makers from all government levels, as well as the judiciary, law enforcement authorities, social welfare centres and the public. |
