Jens Woelk is a full professor of comparative constitutional law (“Euregio chair”) at the University of Trento in Italy, at the Faculty of Law and the interdisciplinary School of International Studies. After obtaining his PhD in legal sciences at the University of Regensburg (Germany), Woelk worked at Eurac Research in Bolzano/Bozen, at the Institute for Comparative Federalism. His research interests include federalism/regionalism, comparative constitutional law and European Union law, minority rights and the constitutional transformation processes in Southeastern Europe. In the Western Balkans, Woelk has participated in various projects and missions as an expert for the European Union and the Council of Europe, mainly in the fields of local and territorial governance as well as judiciary reforms, and as Senior International Legal Expert on EU integration issues at the High Judicial Council of Bosnia and Herzegovina (Sarajevo, 2018-2019).
Harun Išeric is Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law. He is currently enrolled in the Ph.D. program at the University of Sarajevo, where he is writing a thesis on rule of courts in achieving environmental justice. His research interests are rooted in comparative constitutional law, with particular focus on the constitutional judiciary, law on European Convention on Human Rights, comparative administrative law and procedure, environmental justice, federalism and media. As part of his public engagement and service, Harun has been engaged as a member of the Constitutional Affairs Council of the BiH Presidency member Dr. Denis Becirevic, member of the national self-regulatory Press and Online Media Council Complaints Commission, and member of the Local Municipal Election Commission. In 2023 Harun was awarded with the European Parliament Sakharov Fellowship and German Marshall Fund ReThink.CEE fellowship.
Abstract
The role of a Constitutional Court is central, even more so after a conflict in deeply divided societies. Foreign judges may strengthen the judicial independence, authority, and accountability of a court. However, the consideration of their role is strongly related to the context, including the role of the International Community. Experience suggests that there is positive potential for the use of foreign judges in stabilizing post-conflict situations; however, over time they may risk becoming a divisive factor themselves, as recently in the case of Bosnia and Herzegovina. This, and the preparation for EU accession, makes it necessary (or at least advisable) to adapt their guarantee function, write Jens Woelk and Harun Išerić.
In 1995, Bosnia and Herzegovina became a federal system, as the result of the war and the international agreement to end it, the Dayton Peace Accords. It is a federal “twin state” with only two Entities: the “Republika Srpska” (“RS”), which has a Serb majority population and a unitary organization (only municipalities and the government), and the “Federation of Bosnia and Herzegovina” (“FBiH”), a federal system itself consisting of ten Cantons of which some have a majority Muslim population, others are majority Croat, and the rest are mixed in terms of population. In addition, there is the autonomous District of Brcko, established in 1999 by the only constitutional amendment so far, as a result of international arbitration because of its strategic position and its multi-ethnic nature and population.
Forging the State together, the Dayton Constitution has created a unique and complex fusion of Western liberal-democratic principles and pre-existing socialist and Yugoslav, multinational elements, of which “power sharing” and “ethnic federalism” are the most important. The resulting compromise is a quasi-confederal setting, held together by international guarantees, such as a High Representative with extraordinary powers as well as a Constitutional Court of Bosnia and Herzegovina (CC BiH) with a peculiar composition which is nowadays under discussion due to internal political controversies, but also due to the country’s aspiration to become a member of the European Union.
Foreign judges have been part of the post-war Constitutional Court of Bosnia and since 1995, when the new Constitution was enacted as part of the Dayton Peace Accord (annex 4). Foreign judges were integrated in the composition of the CC BiH, as framers of the BiH Constitution estimated that the CC BiH would have an important role in the difficult times after the armed conflict. In the words of former foreign judges at the CC BiH (Joseph Marko, Constance Grewe and David Feldman), foreign judges were included in the CC BiH for knowledge-sharing (of comparative law, human rights law, expertise in constitutional law, experience and additional perspective), countering the rigid ethnic representation and ethnic division within the CC BiH, preventing blockage of the CC BiH, suppressing division within the CC BiH by ethnic lines and domination of ethnic interests in decision making process and meditating between domestic judges who are coming from different constituent peoples. In summary, foreign judges were supposed to preserve the CC BiH’s independence and integrity, and embody values, principles and standards of international law and furthermore contribute to the public trust in the institution.
The CC BiH is composed of nine judges, out of which three are foreigners and six are citizens of BiH. The foreign judges cannot hold citizenship of any neighbouring countries (Croatia, Serbia or Montenegro). The institution that appoints them is the president of the European Court for Human Rights (ECtHR). The appointment of a foreign judge is made following consultations with the Presidency of BiH (collective head of state). The Constitution provides that after the first five-year term expires, the Parliamentary Assembly of BiH (PA BiH) may provide by law for a different method of selection of the three foreign judges. Although there were several attempts to adopt such law (2007, 2010, and 2020), all failed as there was a lack of inter-ethnic compromise (initiatives by politicians from only one or two ethnic groups) and at the same time the attempts were unconstitutional, as they were not only providing a different method of selecting foreign judges but just their removal from the CC BiH. For the same reasons, the Proposal of Law on the CC BiH, which is currently in the legislative procedure within the PA BiH, will probably face the same destiny.
Misreading the EU priority?
Although the presence of foreign judges at the CC BiH has been criticized since the 2000s, mainly by Serb politicians (for discussion on the criticism see here), it culminated when Republika Srpska, one of the two BiH entities, adopted the Law on Non-application of Decisions of the BiH CC decisions in 2023. The Law was supposed to be temporarily enforced, as long as the PA BiH did not adopt a Law on the CC BiH, constituting a CC without foreign judges.
In the meantime, Milorad Dodik, president of the RS, has managed to make the issue of foreign judges one of the top priorities of political talks and negotiations at the state level-coalition. In order to foster Dodik’s agenda, the National Assembly of RS decided to hold the appointment of one judge and pressured the second one to resign in January 2024. With three domestic judges vacancies unfilled (two of them from RS) the Court is unable to sit in two out of its three formations, facing its biggest crisis since 1995.
The main reason for Dodik’s success in bringing the foreign judges so high on the political agenda is rooted in the misinterpretation of the EU Commission’s Opinion on BiH’s application for EU membership (2019). Among 14 key priorities, the EU Commission has included the issue of foreign judges as “to be addressed” and as part of the priorities for constitutional change. Without reading the attached Analytic Report, one could think (like Dodik) that the EU requests foreign judges to be removed from the BiH CC as soon as possible. But the EU Commission clarifies the matter, by adding that at this moment “there is a need to ensure a stronger domestic participation in the selection process of foreign judges.” Finally, EU Experts on the Rule of Law, in their Report on the situation in BiH (2019), provide additional insights underlining that “the system has not yet achieved the level of maturity needed to allow it to dispense with the need for international judges, but this must remain the ultimate objective.”
In summary, at this moment progress of Bosnia and Herzegovina on the EU integration path is not conditioned by the removal of foreign judges from the bench of the CC BiH. However, the EU did ask BiH to further develop and improve the process of the appointment of foreign judges, giving it greater domestic legitimacy.
What is wrong with the way foreign judges are currently elected?
By November 2023, the president of the ECtHR had appointed altogether 12 foreign judges to the CC BiH. Five academics, three judges, and four who have been both in their professional lives. Five judges have previously served as judges to the ECtHR and one as a member of the Human Rights Chamber for BiH. In that period, the president of the ECtHR made some questionable choices. For example, appointing a Swedish judge from the Swedish Supreme Court, with only limited case-law on judicial review (and only two laws in 60 years declared unconstitutional), to the CC BiH whose main task is constitutional review, was not helpful. Also, where the president of the ECtHR has appointed a citizen of his own country, like in case of the Italian judges, concerns about impartiality or conflict of interests may be the consequence.
The exact procedure for appointment followed by the president of ECtHR is unknown, except for the appointments made for the first term. According to the available information, in 1996, all Council of Europe member states referred their proposals to the president of the ECtHR, who eventually made the final decision form the pool of proposals. For the following “generations” of foreign judges, the procedure was hardly transparent; in particular there is not any insight for the Bosnian public. Consultations with the BiH Presidency have been just a formality, without a real intention to actually engage with the Presidency BiH hearing and considering their views on proposed candidates. It is known that the president of ECtHR would have sent a letter informing Presidency of BiH about the judges he intends to appoint. The Presidency would than discuss the letter and make conclusions which would be forwarded to the president of ECtHR. The content of the conclusions or whether the president of ECtHR has ever changed his mind after receiving the conclusions of the Presidency of BiH, remains unknown. Thus, the BiH domestic authorities have not been effectively participating in the appointment procedure of the three foreign judges, as consultation is merely symbolic and non-binding. Research has shown that a lack of domestic participation in the selection of foreign judges might affect the degree of domestic support for such judges.
As the selection of foreign judges so far has happened in the shadows and far away from the public eye as well as without effective involvement of domestic authorities in the selection procedure, the procedure needs be changed, to preserve the integrity of the CC BiH as well as public trust in foreign judges. This is what the request of the EU Commission is about.
Not throwing the baby out with the bath water: How to elect foreign judges?
If foreign judges are to remain at the CC BiH, as they probably should, at least for the foreseeable future, the selection procedure needs to become more transparent and inclusive of domestic institutions. At the same time, the selection process should reflect the fact that foreign judges have not been deciding human rights cases anymore for the last 20 years (more precisely, since December 2003, as these cases are the competence of the Grand Chamber, composed exclusively by domestic judges). The primary involvement of foreign judges now pertains to significant constitutional review cases, which often lead to divisions within the CC BiH along ethnic lines and frequently result in ethnic interests dominating the decision-making process.
As Bosnia and Herzegovina aspires to join the EU, EU law will play an increasingly vital role in the country’s legal framework. Thus, the selection process of foreign judges should reflect the need for future foreign judges to have proven experience and knowledge in comparative constitutional law, especially about federalism, and EU law.
The final decision on the selection of judges should rest with the Parliamentary Assembly of Bosnia and Herzegovina (PA BiH). Given that the lower houses of entities’ parliaments select domestic judges, also only the House of Representatives (HoR PA BiH) should exclusively hold the power of selection, probably in its Committee on Constitutional Affairs.
The selection procedure could look like this: the responsible (foreign) authority submits the list of six names (twice the number of judges to be selected) to the HoR PA BiH. This responsible authority could be either individual like the president of the Venice Commission or president of the CJEU or pluralistic, composed of the president and vice-president of the CJEU, president and vice-president of the ECtHR and/or Bureau of the Venice Commission. A collective body could reduce the politicization of the process and increase the quality of the procedure (and the authority of its outcome, the proposal), but on the other hand it may also pose operational challenges. Considering the experience with appointments made by the single person (the president of the ECtHR), the collective body might be the proper choice. HoR PA BiH should be given a time limit (e.g. two months) to make the selection. If it fails to do so, a means to prevent a long-lasting deadlock in the selection procedure should be introduced, e.g. that the top candidate(s) from the list submitted by the foreign authority, should be considered selected.
However, the ultimate removal of foreign judges may only occur within a broader and comprehensive constitutional reform. This reform must address issues related to the appointment procedure of domestic judges, their independence, and the execution of CC BiH judgments, as requested by the EU. It is imperative that the reform avoids transforming the CC BiH into another institution trapped by ethnic veto mechanisms, which lead to blockages, deadlocks, and capture by ethnic elites. The CC BiH is a crucial institution tasked with deciding over ethnic vetoes, mandated to safeguard individual and collective rights, and to guarantee harmoniy in funcition all levels of governments. Any constitutional change must carefully consider these factors to prevent the CC BiH from becoming a source of problems rather than a success within the framework of the Dayton constitution.
From comparative analysis, very different rationales for the use of foreign judges on domestic courts emerge. Present in over 50 jurisdictions worldwide, the following main reasons can be distinguished: necessity as a transitional measure, (post-conflict) institution building, greater distance, specific expertise and reputation. The degree of international involvement is an important factor, in particular after a conflict and mass atrocities. In such situations, hybrid criminal courts are set up for dealing with delicate cases, such as war crimes (in several African States, Cambodia and East Timor). While foreign judges may strengthen the judicial independence, authority and accountability of a court, the consideration of their role is strongly related to the context, including the role of the International Community. The role of a Constitutional Court is central in a state-building context, the more so after a conflict. This can be seen in other cases where the use of foreign judges was discussed, such as in Cyprus, and where it is on the agenda in other deeply divided societies, see for example the Kurds’ suggestion for Iraq. Experience suggests that there is positive potential for the use of foreign judges in stabilizing post-conflict situations; however, over time they may risk becoming a divisive factor themselves, as nowadays in the case of Bosnia and Herzegovina. This, and the preparations for EU accessions, make it necessary (or at least advisable) to adapt their guarantee function by reinforcing their legitimacy through greater domestic participation in their selection.
Suggested citation: Woelk, J, and Išeric, H. 2024. ‘Don’t throw out the baby with the water: How not to misread an EU request about foreign judges at the Constitutional Court of Bosnia and Herzegovina’, 50 Shades of Federalism.