BiH’s friends in the international community often urge the country’s political leaders to cooperate across ethnic and entity lines to move BiH forward. Last autumn, BiH leaders did just that when they reached a breakthrough agreement on reforms to a number of institutions and processes. The agreement, which was endorsed by all six of the parties represented on the BiH Council of Ministers, included a much-needed reform that would bring BiH’s system for appointing prosecutors into line with prevailing practices of EU countries. The reform would improve the legitimacy and accountability of prosecutors’ offices by giving democratic institutions a voice in the appointment of chief prosecutors. BiH’s current system, which the High Representative forced on BiH starting in 2002, bestows absolute authority over the appointment of all prosecutors—at every level of government—to one unelected body, the High Judicial and Prosecutorial Council (HJPC).
Under the reform, the responsibility for appointing chief prosecutors would be shared between the HJPC and elected bodies. After a comprehensive process of identification of candidates for the position of chief prosecutor, the HJPC would forward its list of selected candidates to the BiH Council of Ministers or the relevant executive body of the Entity, canton, or Brčko District, which would then forward its selection to the responsible legislative institution for final appointment. Deputy prosecutors and other prosecutors at all levels would be appointed by the chief prosecutors from lists of candidates established by the HJPC.
The reform is designed to address the lack of democratic legitimacy and accountability of prosecutors in the current system. Unlike prosecutors’ offices in the overwhelming majority of European states, prosecutors’ offices in BiH lack any tie to democratic institutions. BiH’s Chief Prosecutor is one of just a few chief prosecutors in Europe whose appointment is dictated entirely by a non-democratic institution (the HJPC). The appointment reform would bring BiH’s system into the mainstream of European practice. Out of the 34 EU members, candidates, and acceding states, 33 give democratic institutions an important role (often the dominant role) in the appointment of chief prosecutors. The proposed appointment reform’s provision for subordinate prosecutors is also fully consistent with European practice; it is common in systems throughout Europe for a chief prosecutor to be given considerable authority over the appointment of subordinate prosecutors.
Recent Venice Commission reports confirm that the appointment reform is fully in accord with European standards. The Commission has emphasized the need for prosecutors’ offices to be accountable to the public and has approved of appointments of chief prosecutors by legislatures, governments, and presidents. In its January 2011 Report on European Standards as regards the Independence of the Judicial System, the Venice Commission reiterated its opinion that “it is reasonable for a Government to wish to have some control over the appointment [of the general prosecutor], because of the importance of the prosecution of crime in the orderly and efficient functioning of the state, and to be unwilling to give some other body, however distinguished, carte blanche in the selection process.”
The Venice Commission further wrote, “No single, categorical principle can be formulated as to who—the president or Parliament—should appoint the Prosecutor General in a situation when he is not subordinated to the Government. The matter is variously resolved in different countries.” Although the Venice Commission did not endorse any particular method for appointing prosecutors, it suggested that a good solution is “cooperation amongst state organs.” That is just what BiH’s proposed appointment reform prescribes.
Under the reform, the HJPC would retain its appropriate role as a source of professional expertise by conducting the competition procedure and preparing the lists of successful candidates. The HJPC would even be empowered to appoint an acting chief prosecutor in case the appointment process became blocked. Moreover, the appointment reform, consistent with the Venice Commission’s advice, gives no organ a monopoly of power over appointments. Instead, it requires cooperation among the HJPC, the relevant Council of Ministers or government, and the relevant legislative bodies. A system in which the appointment power is divided among institutions is far more resistant to corruption and other abuses than is a system—like BiH’s status quo—in which all authority is concentrated in one unaccountable body.
Public institutions seldom willingly cede power, so it should not be surprising that the HJPC vehemently opposes ending its monopoly on the authority to appoint prosecutors. Despite the appointment reform’s total consistency with European standards, the HJPC has attacked it in letters to the EU and other institutions and arranged for other organizations to raise objections. The HJPC’s reaction suggests an institution interested, first and foremost, with protecting its own powers. The thoroughly self-serving title of the HJPC’s analysis opposing the reforms is indicative: “The High Judicial and Prosecutorial Council – The Foundational and Irrevocable Component of the Reform of the Judicial System in BiH.” When a non-democratic, non-constitutional public institution responds with defiant bluster to an agreement among elected officials, the need for reforming the institution becomes clear.
The HJPC is entitled to oppose this reform, but its opposition should be recognized for what it is: an unelected institution’s defense of its turf. BiH’s friends in the international community should support its leaders’ agreed reform, which will bring BiH’s appointment system into the European mainstream.
