The Court System in Bosnia and Herzegovina

Jasenka Ferizović

1

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

2

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

6 Steiner et al., Constitution, 681

3

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…” 11

Steiner et al., Constitution, 693

4

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, http://www.sudbih.gov.ba/?opcija=sadrzaj&kat=3&id=3&jezik=e (accessed May 20, 2011)

5

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:

6

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.

7

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

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.

The Court of Bosnia and

Herzegovina

The Constitutional Court of

Bosnia and Herzegovina

Criminal Division Administrative

Division

Appellate Division

Section II –

Organized

Crime,

Enonomic Crime

and Corruption

Section I – War

Crimes

Section III – all

other criminal

offences under

the Court's

jurisdiction

Section I – decides upon

appeals of the Section I of

the Criminal Division

Section II – decides upon

appeals of the Section II of

the Criminal Division

Section III – decides upon

appeals of the Section III of

the Criminal Division, as

well as upon appeals

related to electoral issues.

The Registry

Court

Management

Section

Legal

Department

Witness

Support Section

Public

Information and

Outreach

Section

8

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)

9

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

10

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 http://www.pravosudje.ba/

11

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

12

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.

13

Figure 2

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

Bihad

MC

Bos.Krupa

aa

MC

Cazin

MC Sanski Most

MC V.

Kladuša

MC

Odžak

MC

Gračanica

MC

Gradačac

MC

Kalesija

MC

Tuzla

MC

Živinice

MC

Kakanj

MC

Tešanj

MC

Visoko

MC

Zavidovidi

MC

Zenica

MC

Žepče

MC

Goražde

MC

Mostar

MC

Konjic

MC

Čapljina

MC Široki

Birjeg

MC

Ljubuški

MC

Sarajevo

MC

Livno

MC

Travnik

MC

Bugojno

MC

Kiseljak

Legend: CC – Cantonal court

MC -Municipal court

14

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

15

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

16

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

17

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,

18

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

19

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.

20

Figure 3

The Supreme Court of the

Republika Srpska

The Constitutional Court of

the Republika Srpska

The High Commercial Court

DC Banja Luka

DC

Bijeljina

DC

Doboj

DC

Trebinje

o

DC Ist.

Sarajevo

DCC

B. Luka

Luka

DCC

Bijeljina

DCC

Doboj

DCC

Trebinje DCC Ist.

Sarajevo

BC Banja

Luka

BC

Gradiška

BC Kotor

Varoš

BC

Prijedor

BC

Prnjavor

BC Novi

Grad

BC

M. Grad

BC

Bijeljina

BC

Zvornik

BC

Srebrenica

BC

Doboj

BC

Derventa

BC

Modriča

BC

Teslid

BC

Trebinje

BC

Foča

BC

Sokolac

BC

Višegrad

BC

Vlasenica

Legend: DC – District court

DCC - District commercial court

BC – Basic court

21

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

22

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.