…to know which way the wind blows.
This is the April 13, 2011 speech referred to in this post.
Speech of the RS President at the 4th special session of RSNA
Dear Presidency of the National Assembly,
Ladies and Gentlemen – RSNA Delegates,
How many times have you heard the sentence: “NOBODY HAS BEEN TAKEN RESPONSIBLE FOR THESE CRIMES YET”. That is how the reports on the memorial services for the Serb victims most often end – at the numerous places of execution and camps. From Sijekovac, Dobrovoljacka Street, Tuzla Column, Sarajevo and other camps for the Serbs, Kravice, Bratunac, Srebrenica. The victims and their families, but also the whole Serb population is waiting for the justice. Although there is a lot of evidence and criminal charges submitted to the prosecutor’s offices and courts, there is still no justice. Justice is a condition for reconciliation among the peoples who participated in the civil war in Bosnia and Herzegovina. Justice is a condition for providing the necessary trust among the nations. We cannot move on without that, and especially we cannot accept any more that the criminals are only the Serbs and that the others are their victims. If, in the civil war in which the nations fought one against the other, and the Bosniaks additionally fought among themselves, there were around 100,000 victims, out of which almost 30,000 were Serbs, who then were those who killed them, often after terrible tortures. When even that was not enough for them they cut their heads as monstrous trophies, which served for the new recruitment of mujahedins all around the world. In that holy war for the Muslims, jihad against infidels – non-Muslims in BiH, the future Islamic terrorists were trained to kill innocent people all over the world. That is exactly what is written in the book of Evan Kohlmann. When Porter Goss, CIA Director, came to Sarajevo, he openly said to the Heads of Intelligence-Security Agency: „When in Saudi Arabia, Kuwait, Iraq, Egypt, Algiers, Morocco or Chechnya they kill or catch al-Qaida activists, often even some important local leaders, it always happens that two or three of them have BiH passports. It is known that the organizers and key people in the terrorist attack on September 11, 2001 in New York are linked with the war in BiH. Their terrorist path is linked with Bosnia and Herzegovina, it is a part of the Islamic strategy of Alija Izetbegovic and Bosniak structures who needed just such people to create the Islamic state and Islamic society. When a group of them under the pressure of the USA and as an obligation from the Dayton Agreement had to leave BiH, Rasim Delic, as a Chief Commander of so-called Army of BiH, as well as of the mujahedins who were a part of that Army, said at the farewell ceremony in December 1995: “This is just the first round, we do not know when there will be the second one. Your assistance will be necessary until Islam wins in this world.“
Pursuant to the Constitution of Republika Srpska I requested this session of the National Assembly of Republika Srpska and proposed the discussion on the consequences of (in) activity of the Prosecutor’s Office of BiH and Court of BiH in the cases of war crimes, as well as on the justification of existence of those institutions from the position of realization of constitutionality and legality.
PLAN OF CREATION OF BiH ACCORDING TO THE WISHES OF JUST ONE NATION
In order to throw light on the goals, motives and intentions of creation and activity of so-called judicial institutions at the level of BiH, we have to go back to the time of before the war conflict in BiH and activities of the Bosniak political structures and their representatives. The essence of the conflict among the nations in the civil war in BiH is the intention of realization of independence of BiH through secession from the internationally recognized state of SFR Yugoslavia. The same policy is the basis of activities even in the post-war period and attempts of the Bosniak political structures to create a state that would suit the wishes of the majority nation. That is a continuation of the policy of Alija Izetbegovic and his Party of Democratic Action, which led to the bloody war in BiH and a reflection of the creation of independent Republic of Bosnia and Herzegovina, at the cost of war. Its foundations and roots are in the Islamic Declaration of Alija Izetbegovic. Nowadays the same is being done by Zlatko Lagumdzija and his Social Democratic Party of BiH, as a dominantly Bosniak party, by forming the government in the Federation of BiH, by violating the law and making pact with small parties – pro-fascist Croatian Party of Rights and People’s Party for Progress by Work. Under the motto of a civil state, the intention is to create a Bosniak state by the principle “ONE MAN – ONE VOTE”. That policy was used to destroy Yugoslavia, so the history gets repeated – 20 years ago as a tragedy and now as a farce. The same civil state was advocated by Alija Izetbegovic.
In the pre-election time, in October 1990, in the “Oslobodjenje” column – “Parties, programs and personalities”, his interview was published with the title “Civil Republic or civil war”. He does not hide what kind of civil Republic he advocates, and when asked: “Would you consider creation of the SOCIETY, in this century and in the middle of Europe, based on religion, in this case it is the Islam, as a social progress? Namely, I am not speaking just about Bosnia,”, Izetbegovic answered: “Yes, I would! Of course, provided that the society is truly Muslim. The truth is that Islam is not an ideology but a belief, and that is why the system in which the people would accept Islam as a belief, as a religion, in that society the establishment of Islamic norms and standards of life for me would represent progress.“ Nowadays, in Sarajevo, you have Islam, not just as a religion, but as a standard of life – from advocating Islamic religious teaching in kindergartens and expel of Santa Claus, through Islamic banking, green pavements, to “multiethnic” Zlatko Lagumdzija as the President of the Muslim Bosniak Institute, established by one of SDA founders – Bey Adil Zulfikarpasic. That is why, there are many of those even in Sarajevo from the Bosniak media and intellectual circles who recognize one line, or as they say: From Alija’s young Muslims, through Haris’s Bosniak nationalists, to Zlatko’s state-forming Europeans.
We have no right to be either naive or incautious. Creation of the Islamic state is a project backed by the Islamic community led by reis Mustafa Ceric, who openly repeats: “Since the former Yugoslavia all nations have created their states except for the Bosniaks”. Then, it is not a surprise to hear the statements intended for the Serbs and Croats: if you do not want BiH as a state of the majority Bosniaks, then go to Serbia and Croatia.
Alija Izetbegovic explained many times how he did it.
Unfortunately, some from the international community in Sarajevo and in the world, for their reasons support realization of such Bosniak efforts. The instruments of such a policy are the Office of the High Representatives in Sarajevo and some foreign embassies, which by supporting the Platform of SDP and SDA, also support the pro-fascist Croatian Party of Rights, which considers itself a successor of the ideas of Ante Pavelic, whose photographs and busts decorate the party premises, along with the black shirts and fascist salute with the raised right hand, ZA DOM SPREMNI. That is a successor of the ideology that created the Ustasha movement and the Independent State of Croatia (NDH) 70 years ago. That is the ideology which created the concentration camp of Jasenovac where the Serbs and Romas were killed based on the genocide plan and the Jews based on the holocaust. That Pavelic’s and the Croatian Party of Rights’ NDH created a camp of death even before it was done by their sponsor – Hitler’s Nazi Germany. What are the values promoted by the alleged Social Democrat Zlatko Lagumdzija by forming the Platform with such a party. Do the embassies in Sarajevo know that by supporting such a government they also support the Croatian Party of Rights’ predecessor and idol Ante Pavelic, as a part of the Nazi system of holocaust and extinction of the whole nations? Does the European Union know what is being created in BiH? Does it know that the Serbs did not accept such a state even in 1941 and that they were the biggest and the most important part of the antifascist movement in Yugoslavia?
That is just a new form of the policy which wanted by the secession of BiH from Yugoslavia to create a state that would suit just one nation – Muslims, since 1993 being called Bosniaks. Their leader Alija Izetbegovic never hid intentions, only sometimes did he try to make them secret. There was no dilemma, since he said many times: “I would not sacrifice independence of BiH for peace, but I would sacrifice peace for independence”. That is why Izetbegovic and Muslims needed the referendum on independent BiH, since it was a part of the plan for creation of the Muslim state.
INDEPENDENCE OF BOSNIA AND HERZEGOVINA AS FAKE AND CHEAT
The international community set two conditions for the international recognition of BiH: 1) Organization of the referendum on independence with the participation of all citizens; 2) Agreement on constitutional principles for the constitutional setup of BiH.
In the interview for “Slobodna Evropa”, which Alija Izetbegovic gave on June 13, 2000, under the title “There is strategy and tactics everywhere”, by explaining his “statesman’s wisdom”, he revealed the strategy of creation of the Muslim state and accusation of the Serbs for aggression:
“The people often do not see the difference and mix the things. Our strategy was: Bosnia and Herzegovina as a whole and democratic state. These Lisbon talks that you mention took place, as far as I remember, at the end of February. Some five or six days before the referendum. I have just told you what was the importance of the referendum for Bosnia and Herzegovina. That meant to cross the Rubicon and be either on this or the other side of the Rubicon. On this side of the Rubicon there is aggression, and on the other side there is a civil war. That is why it was very important for us to have the referendum. In that situation I gave a verbal support for that document, but I refused to sign it and signing did not take place. Everybody knows that the paper has never been signed. Namely, the document contained some positive things as well. It guaranteed the existence of Bosnia and Herzegovina as a whole within the existing borders internationally recognized and independence of the state. But, it also had a negative thing, and that was in implying ethnic regionalization, which was not acceptable for us. Namely, there were both good and bad things. I said that the document was good for the continuation of the talks and that we would continue the talks – which we did later on in Brussels. But, it was necessary not to reject it then, since it would put referendum in question. The referendum was meant for February 29, and the talks in Lisbon were on February 22 or 23, i.e. just seven days before the referendum, and it was very important for Bosnia and Herzegovina that the referendum should take place.”
Izetbegovic did not hide that he was for the unitary BiH, knowing that it would lead to the war. He faked to have accepted the Cutileiro Plan in order to get international recognition and planned to name the war as aggression.
The referendum on independence of BiH was requested by the ad hoc formed Badinter’s Commission, which in its Opinion number 4 as of January 11, 1992 noted that “BiH does not meet the criteria from the Declaration of the European Community as of December 16, 1991 for recognition of independence, does not express the will of all Bosnia and Herzegovina people, and the Commission recommends that the referendum should be organized on the independence of ALL citizens without any difference”. The referendum that was held on February 29 and March 1, 1992 was a ramp referendum boycotted by the citizens of the Serb nationality. That is why according to the reports of ramp commissions, 63.7% of the BiH citizens voted at the referendum, out of which 92.7% voted for independence. On March 1, 1992, on the second day of the referendum, the member of Green Berets, Ramiz Delalic Celo shot at the Serb wedding ceremony in Bascarsija and killed the groom’s father Nikola Gardovic. Although Delalic boasted on television with that murder, the process against him was delayed until June 2007 when he got killed in the mafia fight and the case got no effective verdict.
Buying time, Izetbegovic participated in the negotiations headed by the Portuguese diplomat Jose Cutileiro at the Peace Conference for Yugoslavia.
In the interview for BLIC, published on July 18, 2005, under the title: Izetbegovic refused peace”, it is stated:
“If the Serbs, Bosniaks and Croats in 1992 had accepted the plan that was offered to them, the war in Bosnia and Herzegovina would have been avoided, and reconciliation would have been conducted much easier, claims Jose Cutileiro, the author of the first plan of the international community for BiH, for “Blic”.
How would BiH look today if the Serbs, Croats and Bosniaks had signed the plan that you proposed 13 years ago?
- After five weeks of talks, on March 18, 1992, all three sides adopted the package of principles on the future constitutional setup of BiH. The refusal of the Serbs for BiH to be an independent state was overcome, Croatia understood that it would not be possible to merge the Western Herzegovina, and the Bosniaks gave up on the original request for the unitary state. The job with certain breaks lasted until June when the Bosniaks said that they were rejecting the proposal.
Why did Izetbegovic after his visit to the USA refuse the plan although he had already signed it?
- Izetebgovic accepted the plan just to satisfy Europe, and then refused it in order to satisfy the Americans who encouraged him to do so. He believed that Washington was supporting his idea on the unitary Bosnia – Dayton proved that he was wrong. The European Union was against it.
Could the international community prevent the crime in Srebrenica and other crimes in BiH?
- If the plan had been adopted, there would not have been either the war or Srebrenica.
Susan Woodward, who was a special advisor to the OSCE Head of Mission in BiH, in her study titled: ‘Violation of sovereignty for the purpose of creation of sovereignty: Is the Bosnia Dayton a useless exercise or a new model” (Columbia University, New York, 2001), states: “At the end of March 1992 the USA persuaded Izetbegovic that he could walk out on the negotiations and get recognition immediately based on presenting the violence of Serbs as an act of external aggression that only sovereignty can restrain.”
Woodward further says: „However, this argument has a small flaw, since the Bosnian Serbs still did not start the war against the Bosnian independence.“
As above mentioned, the thesis on aggression was confirmed by Izetbegovic. The story on aggression was also presented at the session of the ramp Presidency of BiH that was held on May 4, 1992, when along with that thesis Abdulah Konjicija requested that it should be proclaimed as a genocide as well!? Namely, before any war activities and crimes by the Serb side, the qualification of AGRESSION AND GENOCIDE was immediately given.
That was a basis for action, pressures and blackmails that the Bosniak side used all these years towards the western countries, especially towards the USA, so that they should do them a favor in the post-war creation of the unitary state and taking the competences from the Republika Srpska. In that plan originating from 1992, an important role is determination of the character of war in BiH. The war propaganda that characterized Serbs as criminals, and Muslims-Bosniaks as victims, requested the confirmation in court. That is why it was necessary to invent the judiciary at the level of BiH, contrary to the solutions from the Dayton Agreement.
Тhat process went in two phases. The first phase in the activities of the invented judiciary was contained in the reasons for imposing the Law on the Court of BiH. The Decision of the High Representative Wolfgang Petritsch as of November 11, 2000 states the following reason for the establishment of the Court: “The establishment of the necessary structures at the level of the state of BiH and the Entities with the goal of fulfilling the requests given in the appropriate constitutions, including also the establishment of court institutions at the state level that would satisfy the needs stated in the Constitution, and which would deal with the criminal acts of the officials of BiH committed in the course of performing official duty”.
Such a superficial and unserious position is the proof of arrogance and conceit and a drastic example of violation of the Dayton Agreement. The objective of the first phase was to discipline the Serb and Croat officials by arrests, imprisonment and court prosecution without valid evidence. Intimidation was a message for others as well of what would happen to them if they opposed revisions of the Dayton Agreement and centralization for the benefit of Bosniaks.
Just to remind you that the victims of such processes were Mirko Sarovic, President of Republika Srpska, and later the Serb member of the Presidency of BiH, from which office he practically went to custody of a year and after the court process he was released. Sarovic sued BiH for the year in prison and was paid the damages of 102,000 KM. In addition to him, Ante Jelavic, the Croat member of the Presidency of BiH was also tried and got an ineffective sentence of 10 years in prison. This verdict was abolished, so that now Jelavic is also not guilty. Imprisonment and a court process also happened to Dragan Covic, former Deputy Prime Minister and Minister of FBiH, current President of HDZ BiH, the most powerful and most important party of the Croat people in BiH.More than 10 criminal charges were brought against him in the Prosecutor’s Office and Court of BiH, of which he was eventually released, which is just a confirmation that it was a political prosecution. He was also tried for a joint criminal enterprise in which all others were released by the first instance verdicts, and he was tried for association with himself. The indictment and the court process was the destiny of Mladen Ivanic, because he as the Prime Minister did not „well enough prepare the session of the Government of RS, which damaged „Srpske sume“. For this ridiculous thing Ivanic got 18 months of imprisonment. That was a warning for him for not accepting immediately the offer of SDP to leave the coalition with SNSD. Ivanic lodged a complaint against the verdict, as well as the prosecutor who asked for 4 years in prison. Ivanic’s PDP left the coalition government, so the precondition was created for him to get released.
The second step of JUSTICE ACCORDING TO OHR was the establishment in 2004 of the department for war crimes in the Court and Prosecutor’s Office of BiH with international judges and prosecutors, again in function of maintaining „the Bosniak truth on aggression and genocide“. They counted that the mechanism of intimidation of officials, first of all of Serbs and Croats, was established and always ready to if need be continue with prosecution of those elected by the people at the elections. For the sake of the truth, we have to say that OHR „justice at the level of BiH“, sometimes gets to the Bosniak officials as well, but only when they get away from SDA. In that way the process was also conducted against Edhem Bicakcic, former Prime Minister of FBiH, who was indicted together with Dragan Covic, for abuse of the office, and then he was released.
Тha invented and imposed judicial system makes Bosnia and Herzegovina additionally unstable and even more divided. The whole instrumentalized system was developed, which is in function of ruling Bosnia and Herzegovina contrary to the Constitution and laws, which violates the rule of law as one postulate of democratic and sovereign countries. That is in detail explained in the Attachment that you got with the Information that is on the agenda.
BiH DOES NOT HAVE COMPETENCE FOR JUDICIARY
If the intention was to have the judiciary at the level of BiH, then it would have been stated as an explicit competence pursuant to the Dayton Constitution of BiH. Just in the way it is stated in the American Constitution, which was an example for the authors of the Dayton Constitution of BiH. Namely, Article 3 of the USA Constitution prescribes: „The judicial authority of the United States is given to the Supreme Court and those lower courts that the Congress may from time to time establish and found“. As we know, the Parliamentary Assembly of BiH does not have such an explicit competence, and it even cannot establish judiciary and its institutions until the Constitution of BiH is amended and a legal basis gets created in that manner.
What did the Constitution determine as the institutions of Bosnia and Herzegovina ?
The Constitution of BiH determined the following institutions:
- Parliamentary Assembly with two Houses: House of Peoples and House of Representatives;
- Presidency of BiH consisting of three members, who are elected directly by the citizens, those being: one Serb in the territory of Republika Srpska, and one Bosniak and one Croat are elected in the territory of the Federation of BiH;
- Council of Ministers of BiH consisting of three members: Chairman, Minister of Foreign Affairs and Minister of Foreign Trade;
- Constitutional Court of BiH consisting of 9 members, out of who 4 are elected by the House of Representatives of the Federation, 2 members by the National Assembly of Republika Srpska, and 3 members-internationals are elected by the President of the European Court of Human Rights;
- Central Bank with the first governing board consisting of the governor appointed by the International Monetary Fund based on the consultations with the Presidency of BiH, and 3 members are appointed by the Presidency of BiH, 2 from the Federation of BiH (one Bosniak and one Croat sharing one vote) and one from Republika Srpska (without a national identification necessarily being Serb).
Out of the total of 6 institutions of Bosnia and Herzegovina, the interventionist policy and acts of the High Representatives resulted in 87 institutions of BiH. This was the result of the transfer of competences from the level of Entities, by the practice of imposing, pressures and blackmails. An illegal revision of Annex 4 of the international agreement was performed contrary to the will of the parties signatories and contrary to the procedures established in the Vienna Convention on the Law of International Agreements. Тhat indicates the scope of violations of the international law.
The competences of Bosnia and Herzegovina were regulated in Article 3 of the Constitution stating that „the following issues lie within the competence of the institutions of Bosnia and Herzegovina:
- Foreign Affairs,
- Foreign Trade Policy,
- Customs Policy,
- Monetary Policy, as regulated in Article VII (note: Central Bank of BiH),
- Funding the institutions and international obligations of Bosnia and Herzegovina,
- Policy and regulation of the issues of immigration, refugees and asylum,
- Implementation of the international and inter-Entity criminal legal regulations, including the relations with the Interpol,
- Introduction and operations of the means for mutual and international communications,
- Regulation of traffic between the Entities,
- Air traffic control.
When it comes to the competences of the BiH institutions ensured by the Constitution, we have to keep in mind that there is a distinct gradation of the competences of those institutions. That can be divided into three groups.
- POLICIES – foreign, foreign trade, customs, for immigration, refugees and asylum, monetary (this also precisely defined in Article 7 of the Constitution under the title of the Central Bank);
- REGULATIONS – only in two cases there is an explicit competence of the institutions of BiH for passing regulations: the first one – immigration, refugees and asylum (with the policy of that field) –; the second one – regulation of the traffic BETWEEN the Entities.
ACTIONS AND PROCEDURES within the 4 remaining competencies:
- financing institutions and international obligations of BiH,
- international and inter-entity criminal law enforcement, including Interpol relations,
- introducing and operation of funds for mutual and international communications,
- air traffic control.
The ways of implementation of the cited 4 actions are not stated. Therefore, one can interpret that as being a matter of decisions as stated in Article 4.4.a, b, c, or special agreements or other entity acts, according to the formulation contained in Article 3.2.b and c.
When it comes to application of Article 3.5 of the Constitution of BiH entitled “Additional competencies” – a question arises as to who the parties are that can agree on additional competencies that are not expressly stated by the Constitution of BiH as competencies belonging to the institutions of Bosnia and Herzegovina. These are exclusively the entities now, because the Republic of Bosnia and Herzegovina as a signatory (signatory to the acceptance statement) to Annex 4, does not exist any longer, because, according to Article 1 of the Constitution “the Republic of Bosnia and Herzegovina does not exist, but only Bosnia and Herzegovina with its internal structure as modified by Annex 4, consisting of two entities. It is true that representatives of the “Republic of Bosnia and Herzegovina” were the signatories, but the signature of the Republic of BiH was more related to the special circumstances prevailing on the ground at the time of the negotiations that led to the signature of the General Framework Agreement for Peace in BiH, than to a clear intention to ensure that Bosnia and Herzegovina is necessarily a party to future signings of agreements on additional competencies for BiH. The past practice of the parties participating in the agreement on transfers of competencies (BiH and entities) does not accord the right to BiH to be a party which the validity of entity agreements depends on. So, for example, the Agreement on Transfer of Competencies in Defense, which states that the entities have agreed to transfer competencies, signed by entity prime ministers and the chair of the CoM, does not introduce BiH as a party. The best that can be accepted would be that this was done in the capacity of a “witness” as stated in the Commentary to the Constitution of BiH, issue of Conrad Adenauer’s Foundation, Sarajevo 2010.
With regard to a transfer of competencies, a question arises as to what can be transferred. Is what is transferred just the right to use the competency or the whole competency?
The Constitution of BiH, which is Annex 4 to the Dayton Agreement, specifying competencies of BiH, did not specify the judiciary as such. Therefore, in accordance with Article 3.3.a. of the Constitution, the competency for the judiciary belongs to the entities. This was the case until the High Representative Wolfgang Petritsch imposed the Law on Court of BiH with his Decision of 12 November 2000.
After this decision, 25 RSNA delegates initiated a review of constitutionality of the Law on Court of BiH, with an explanation that the judiciary was not stipulated as a competency of Bosnia and Herzegovina. Article 3.1. of the Constitution of BiH defines the competencies of BiH institutions, while Article 3.1. defines that “all state-level functions and powers which are not expressly allocated to the institutions of Bosnia and Herzegovina by this Constitution belong to the entities”. The Constitutional Court of BiH forwarded the request for a review of constitutionality to the High Representative, giving him an opportunity to respond. The High Representative, as the creator of the disputed law, did not respond, but his office – the OHR – did, emphasizing that “this is done without any explicit or implicit recognition of the competencies of the Constitutional Court in relation to the High Representative’s decisions”. After a call to a public debate before the Constitutional Court of BiH, the OHR responded that it did not intend to give any other additional explanations. It is absolutely incredible that an office, its staff, services have such a disparaging attitude towards the highest judicial institution in BiH, established by Annex 4 of the international agreement. This shows that even the Constitutional Court of BiH is under the OHR’s control. The Constitutional Court does not even hide this fact, to the contrary, it emphasizes it, stating in its explanation: “with regard to the competencies of the High Representative to adopt legislation and the competency of the Constitutional Court of BiH to decide on the harmonization of these laws with the Constitution of BiH, the Constitutional Court of BiH expressed its position in its earlier decisions No U 9/00, U 16/00 and U 25/00, expressing its position that the authority of the High Representative arises from Annex 10 of the GFAP, relevant resolutions of the UN SC and Bonn Declaration, and that these powers and execution of these powers are not subject to the control of the Constitutional Court”.
The unhidden subordination of the highest judicial institution in BiH to the High Representative/OHR proves to what extent Bosnia and Herzegovina is a state captured by illegitimate structures interfering with the legal system, without any right or mandate.
While realizing how bizarre the whole situation is, the Constitutional Court of BiH nevertheless goes ahead with assessing the constitutionality, explaining why it does so: “But, when the High Representative intervenes in the legal system of Bosnia and Herzegovina, substituting for the local authorities, he acts as government of Bosnia and Herzegovina and the laws he adopts have the nature of local laws and must be considered laws of Bosnia and Herzegovina, the harmonization of which with the Constitution of BiH is subject to the Constitutional Court”.
No comment is needed.
The subordination, one could also say even the servility of the Constitutional Court of BiH to the High Representative, produced an expected decision – that such a Law on Court of BiH is harmonized with the Constitution of BiH. As it cannot find any legal basis with regard to the competency for establishment of the Court of BiH, the Constitutional Court resorts to arbitrary assessments and expectations, confirming additionally the whole illegality of such a construction, with regard to the decision of the High Representative to impose this law as well as the Court’s decision to declare the law constitutional.
The Constitutional Court says: “It can be expected that the establishment of the Court of BiH will be an important element in securing that BiH institutions act in accordance with the rule of law and that they meet the requirements of the European Convention with regard to fair trials before courts and effective legal remedies”.
The Constitutional Court of BiH further states that the establishment of the Court of BiH “meets the requirement of an independent and impartial tribunal”. Does this mean then that all other courts in BiH are partial and dependent? Practice has shown that the judiciary installed by the OHR is largely partial and dependent.
The Constitutional Court of BiH further “notes that the establishment of the Court of BiH may contribute more towards the rule of law, which is one of the basic principles for functioning of a democratic state”. So, expectations were the only argument, while time has shown how flimsy such a construction really was. Failed trials because of unreasonable indictments and annulled convictions that were a product of superficiality and irresponsibility of primarily foreign prosecutors and judges, systematically destroyed the judicial system.
The decision of the Constitutional Court of BiH dated 28 September 2001 on the constitutionality of the Law on the Court of BiH was adopted by three foreign judges and two Bosniak judges, while all four Serb and Croat judges considered it unconstitutional. These were law school professors – Dr Snežana Savić, Dr Vitomir Popović, Dr Zvonko Miljko and Mirko Zovko, current president of the Constitutional Court of Republika Srpska. The decision was made in contravention of established positions of judges from two of three constituent peoples, with only two votes of Bosniak judges and three votes of foreign judges. Can such a decision be considered legitimate, considering the legally based arguments of Serb and Croat judges? Dissenting from the decision, Dr Snežana Savić stated that there was no legal basis for adoption of this law, i.e. establishment of the Court of BiH, because the High Representative could not refer to a provision of the Constitution of BiH. Judge Zvonko Miljko in his dissenting opinion, gave a precise and unequivocal definition: A Court of Bosnia and Herzegovina may not exist if it is not stipulated in the Constitution of BiH. This law cannot be adopted by the Parliamentary Assembly of BiH or by the High Representative who, in this case, “substitutes for the PA of BiH” as stated in the very decision of the Constitutional Court. The only way for establishing such a court would be possible with a constitutional revision, in accordance with Article 10.1 of the Constitution of Bosnia and Herzegovina”. Such a revision, or amendment to the Constitution of BiH did not take place.
So, dr. Miljko is just being consistent, believing that the provision of article 3.a. of the Constitution cannot be interpreted in any other way, but rather that every competency of the BiH institutions must be explicitly provided for by the Constitution itself. It means that additional competencies of the BiH institutions can only be established through amendments to the Constitution, only then in that way creating a legal basis for the enactment of the laws by the Parliamentary Assembly of BiH. Of course, this should be preceded by changes to Annex 4 under the procedure as foreseen by the international law for international treaties.
The only thing that was important for the five judges who voted the decision on the constitutionality was the existence of the decision for which Bosniaks will reiterate that it is final and binding, for this is spelled out in the Constitution of BiH. However, this cannot prevent the consideration of circumstances of outvoting and the lack of any constitutional arguments in favor of such decision. The fact remains – five to four, without votes of unquestionable judicial authorities from the ranks of Serbs and Croats.
Quite expected, the imposition of the Law on the Court of Bosnia and Herzegovina was just the first step in establishing the judicial system that would be solely in the function of the party that enacted such act – the High Representative/OHR and their interests.
Knowing that there is no legal basis for the imposition of the law, the constituent part of the decision imposing the law is also the formulation that the “decision shall enter into force forthwith on a temporary basis, until the Parliamentary Assembly of BiH adopts the Law in a stipulated form, without amendments and without any conditions”. Since the Law cannot be changed the Parliamentary assembly adopts it in the identical text as imposed. It is clear that following this such a law can never be more substantially amended or rendered ineffective, for it is not going to get the majority of votes. Indeed no one expects that the delegates from the ranks of Bosniaks would give up what has been bestowed upon them by the High Representative/OHR in building the state according to their standards.
The imposed Law on the Court of BiH has stipulated among other things:
- Article 3 defines that judges may be BiH citizens;
- Article 4 defines that judges are elected by the Parliamentary assembly of BiH at the proposal of the special commission for appointments of judges;
- Article 8 gives immunity to judges;
- Article 9 defines the languages in the proceedings before the Court of BiH – Bosnian, Serb and Croat, and both alphabets – Latin and Cyrillic alphabets;
- Article 12 stipulates that a proxy must be registered in the directory of attorneys of the competent body in BiH recognized by the Court; (REMARK: The court defines which body in BiH it will recognize and which attorneys will be allowed to do the services of representation before the Court, thereby establishing for itself the competency going beyond the laws regulating this area. Hence attempts to push trough in the Parliament the Law on legal profession at the level of BiH);
- Article 13 defines that the Court of BiH is competent only for criminal offences as established by the law of the state of BiH when this law (Criminal Code of BiH) stipulates the competency of the Court for these criminal offences;
- Article 15 defines that the Court of BiH is competent to decide on appeals against rulings delivered by the Court of BiH (REMARK: The very same court issues a ruling and decides on the appeal against that ruling);
- The Court of BiH also decides on the extraordinary legal remedies against effective rulings issued by the Court of BiH:
In recent days Wolfgang Petritsch has admitted the truth in an interview for “Slobodna Bosna” dated March 31, 2011 speaking about the activity of the international community in BiH, among other things he says: “Nothing was really determined and I myself was working to the best of my ability. The mandate of every High Representative depended on his personality, strength and in many cases on great countries such as the USA. We had a task to introduce democracy by dictatorial means. And this is never a good way.”
ON THE WORK OF THE PROSECUTOR’S OFFICE AND COURT OF BIH
As it has been explained, the Prosecutor’s office and the Court of BiH are judicial institutions imposed by High Representative’s decisions. This was done at the request of Bosniak politicians with a view to unitarizing and centralizing the judiciary in BiH through indirect mechanisms. Through such imposed institutions Bosniaks are achieving what they did not get by the Dayton Agreement. So, both these judicial institutions are in the service of Bosniak political interests. Given that both institutions are the product of international power centers, they are incessantly under direct control of foreigners. The control and influence are being achieved through the presence of international prosecutors, judges and international administrative staff.
a) Convictions policy
The objective of the policy of war crimes convictions conducted by the BiH Prosecutor’s Office is to create judicial truth about Serbs as criminals, which can be used as a fact in Bosniaks’ political strategies. This is confirmed by the fact that over 90 percent of persons indicted and convicted for war crimes are Serbs. Bosniaks appear only as a statistical number and are indicted for the least severe criminal offences that can hardly even be qualified as war crimes. The perfidy of this policy is demonstrated by the fact that lately, Bosniaks are being accused of war crimes against Bosniaks in the Cazin Krajina area. When someone raises the question of ethnicity of convicted persons, the president of BiH Court pretends she is unaware of this fact because, allegedly, the court does not keep statistical records on ethnicity of parties to the proceedings. Anyone who has seen a court verdict knows that ethnicity is indicated in the part with general/personal information. If you take a look at the Court website, based on the names of convicted persons you can easily conclude, without a mistake, what ethnicity they belong to, and see that there are only three Bosniaks and several Croats among convicted persons, while the vast majority are Serbs.
Not a single mass and organised crime committed by Bosniaks was processed before the BiH court. In the only serious case against Bosniaks (the Bugojno group), camp guards were convicted while the president of the wartime command HQ Dževad Mlaćo and wartime commander Selmo Cikotić were only questioned as witnesses! There are no Bosniaks indicted for command responsibility, they are not suspected for organised criminal enterprise and systematic attacks. Such legal qualifications are reserved exclusively for Serbs!
All the time the policy of processing and convictions in the Section for Organised Crime was focused on Serbs and Croats from political structures (Jelavić, Šarović, Čović, Ivanić) with a goal to politically discredit individuals and create a perception of criminalised politics in the eyes of domestic and international public. These examples demonstrate that the Prosecutor’s Office of BiH was established as an instrument in the hand of Bosniak politics, sponsored by certain international power centres.
There are Bosniak prosecutors in the War Crimes Department of the BiH Prosecutor’s Office who do not have a single case against Bosniaks, but there are Bosniak prosecutors issuing indictments against Serbs only. Let me remind you that nothing has been done yet in the case against Atif Dudaković, although the report was submitted back in 2006.
We should keep in mind that both the War Crimes Department and Organised Crime Department were managed by international prosecutors up until 2010. This does not mean that the policy of the Prosecutor’s Office changed with the departure of international prosecutors. The foreigner who was in charge of the Organised Crime Department (Drew Engel) still works in the Prosecutor’s Office today, in the capacity of advisor. There is an office in the Prosecutor’s Office premises occupied by Hasan Pleh, official of the US Embassy.
b) Structure of BiH Court and Convention on Human Rights
BiH Court is structured contrary to Article 14, item 5 of the International Covenant on Civil and Political Rights and Article 2.1. of Protocol 7 of the European Convention on Human Rights. Specifically, both these international legal documents stipulate the right of each person to have his/her conviction and sentence reviewed by the competent HIGHER COURT. In the system of continental law, higher court is the court that represents a special and independent structure, separated from the first instance court, while its judges are elected by an independent judicial body. Appellate Division in the BiH Court that decides on appeals against decisions of that same court cannot, in any way, be regarded as the “higher court”. On the contrary, it is one and the same court that renders verdicts and decides on appeals!
Judges of the Appellate Division are not appointed by an independent judicial body (HJPC) but by the court president, without clear, objective and transparent criteria. Judges thus elected are under direct control and influence of the court president. Because of such authority, the court president has too much power over judges and may influence the execution of justice. President of BiH Court is also a judge of the Appellate Division, therefore the so-called “higher” court may be considered as her private court!
This is yet another among numerous legal absurdities installed by foreigners in BiH, for the purpose of their own goals. Such structure of a regular court does not exist anywhere in the European legal system! BiH Court is a legal excess in the judicial system of BiH and European law, which is why this institution must be redefined or eliminated from the legal system!
c) Taking over cases from the competencies of entity courts (Article 4 of the Law on Court of BiH – former Article 13).
The practice of taking over cases from the competencies of entity courts was established with the Law on Court of BiH (Article 13 of the initial text). In the history of judiciary in general, this is the first time that such a right by any court appears. Not a single continental legislative system entitles a court to take cases from the competencies of another court. What is even more absurd is the fact that such an option is given to a court by an organisational law! Essentially, an organisational law stipulates the disposition of criminal acts (“serious repercussions, detrimental consequences for BiH economy, serious economic damage, and other damaging consequences beyond entity territory”?), which is unnatural and unacceptable from the viewpoint of normative theory.
So far, the BiH Court and Prosecutor’s Office intensively used this option to take over cases from the judicial system of Republika Srpska. Cases were taken over from the competencies of basic courts, for which there were no grounds even in Article 13 (standard homicide cases, abuse of office). Legal possibilities were brought to absurdity in practice: the prosecutor is not obliged to preliminary demonstrate “damage” and “damaging consequences for BiH”, the defendant has no possibility to dispute such allegations by the prosecutor, the court does not decide on this as a preliminary issue and the defendant has no right to appeal against such decisions by the court and prosecutor’s office.
Such provision was introduced in the Law on Court of BiH, with a political goal to ensure a mechanism for undermining Dayton competencies of entities with regard to judicial system. Such practice is contrary to Article 6 of the European Convention on Human Rights, and the Constitutional Court of BiH supported it in its decisions, thus demonstrating that it too is a part of a mechanism for actual subversion of entities’ Dayton competencies!
d) Jurisdiction of Section 3
Section 3 tries crimes under jurisdiction of individual judges (maximum sentence up to 10 years of prison). Judges in the BiH Court try even for crimes which foresee monetary fine or prison term up to three years. In judicial system of the Entities, the first-instance judges also try crimes for which punishment of up to 10 years of prison is foreseen.
A question is what made the legislator to decide to put a very broad circle of crimes under jurisdiction of the BiH Court (Section 3)? The only possible conclusion which may follow is that it is a group protective object (BiH state and its interests). Was it really necessary? Are the crimes under jurisdiction of Section 3, considering the overt act, nature of consequences and extent of sentence, really of such importance to be under jurisdiction of the BiH Court? It does not seem there was any reasonable justification for that and that the principal goal was to take as many as possible competencies from the Entity judiciary.
The problem also raises a huge ethical question (fairness) within the system itself. Why does a judge in the BiH Court deal with cases of lesser social significance than a judge in a basic /municipal court, for a double salary? The BiH Court is too expensive to deal with crimes of cross-border cattle smuggling or of twenty KM bribe to a custom officer.
If you look at activities of Section 3 from the criminal policy aspect it is even harder to draw a conclusion regarding justification of trials for these crimes at the BiH Court. Of 119 sentences in 2007, only 16 verdicts were to prison term, 16 to monetary fine, and 85 probation sentences (2 of acquittal and others solved „in a different way“).106 verdicts were passed in 2006, of which prison sentences were in 21 cases, monetary fines in 34 cases, and probation sentences in 49 cases. 163 verdicts were passed in 2005 of which sentences of imprisonment were ruled in 40 cases, monetary fine in 44 cases, and probation sentence in 77 cases (data from the Court’s internal statistics). These competencies should be restored to the Entity judiciary.
e) Administrative and civil jurisdiction
The BiH Court has competencies to review administrative acts of the BiH state institutions and bodies, and to solve civil disputes in which the state of BiH is a Respondent. There is no logical justification that this sort of disputes falls within competences of the BiH Court only on the grounds of BiH being the Respondent. Cases of the same type (and even more complex ones!) are being solved by the Entity court at primary level (just for a half a salary!).
The competencies should be restored to the Entity judiciary and the enormous budget of the BiH Court should be decreased in that manner.
f) Illegal practice introduced by the BiH Court
The BiH Court established a practice contrary to the general legal principle that the law that was in effect at the time when the criminal offence was perpetrated applies to the perpetrator of the criminal offence, or if the law has been amended subsequently the law that is more lenient to the perpetrator applies (Time Constraints Regarding Applicability – Article 4 of the BiH CC). Actually, the SFRY Criminal Code does not apply, which is more lenient to the perpetrator (it foresees maximum prison sentence of 20 years), to the war crimes perpetrators, but the applied law is the BiH Criminal Code enacted in 2003, which foresees maximum long-term prison sentence up to 45 years. Such practice of the BiH Court contravenes the practice of regular courts in both Entities, which raised a problem of inequality before law. The BiH Constitutional Court in Maktouf case confirmed the practice of the BiH Court in a rather unclear manner, which should have changed the practice of all courts in BiH when it comes to war crimes.
Such practice of the BiH Court generated legal inequality in the region and states are faced with a political problem. Sentence for the same crime in Croatia and Serbia is maximum 20 years of imprisonment while it is 45 years in BiH. That kind of institutional injustice harms only Serbs since only they were sentenced to a longtime sentence of imprisonment so far.
The example shows how the BiH Court and the BiH Constitutional Court are being used as mechanisms to impose non-constitutional and illegal practice in the judicial system, exclusively for political reasons, and how the BiH Court and the BiH Constitutional Court are being used to impose judicial practice to the Entity judiciary. There are several appellations on this ground before the European Human Rights Court that have not been considered thus far.
g) Efficiency of the BiH Prosecutor’s Office and the BiH Court
The BiH Prosecutor’s Office and the BiH Court are the most inefficient judicial institutions worldwide! International factors designed their work in line with the ICTY policy, expecting that the long-lasting proceedings would ensure them to stay a hundred years in BiH and to earn enormous sums of money in an easy way. From the 2010 Report of the BiH Court one can see that 13 judges in the Wear Crimes Department enacted only 14 verdicts in one year! A judge rules one verdict per year in a completely anonymous war crime case. War crime proceedings before the BiH Court last three years each! Some judges did not write a single verdict in a year! Situation is not much better in the Organized Crime Section, too. Judges in that Section pass three verdicts per year. These are the most expensive judges in the world! BiH cannot afford such luxury and why would Republika Srpska pay such expansive institutions.
h) Destructive actions of the BiH Court President
The Chief Prosecutor and the BiH Court President lean on the support of foreign embassies and international officials and they call them in public as defenders of their autonomy (statements of the BiH Court President in talk show «60 minuta» of March 7, 2011), and at the same time they refer to local politicians and state institutions as the enemies of independent judiciary. As a difference from local politicians, the ambassadors of certain countries and the High Representatives were regular guest of these institutions. The Court President openly uses the Sarajevo-based media to discredit local institutions, politicians and even own judges.
President Kreso uses the Sarajevo-based media as instruments to attacks Republika Srpska and its authorities as well as judges from Republika Srpska, whom she accuses of destroying the BiH Court, in line with the task given by Milorad Dodik. This is a criminal and insulting role for a court president. Furthermore, President Kreso constantly deals with political matters (establishment of the BiH Supreme Court, the BiH Court departments in the Entity district courts), which clearly shows her political role in the judicial system. Last year Kreso brought about an international incident at the Conference of Regional Supreme Courts’ Presidents in Budva because judges from Republika Srpska sat next to judges from Serbia and close to the flag of the Republic of Serbia. She brought it up as a scandal in „Dnevni avaz“, after which the case came to attention of the embassies of two countries. Despite these actions the High Judicial and Prosecutorial Council reelected Medžida Kreso the President of the BiH Court for another six-year term and thus clearly showed that it is a part of the system which actively works against interests of Republika Srpska.
Republika Srpska does not want to use its citizens money to fund „state “ judicial institutions that work against interests of its citizens since these institutions discredit the judicial system and the justice.