In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1. (d) of the last said Agreement, according to the terms of which the High Representative shall “[F]acilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation”;

Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative’s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid “by making binding decisions, as he judges necessary” on certain issues including, under sub-paragraph (c) thereof, “measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities”;

Considering paragraph 12.1 of the Declaration of the Peace Implementation Council which met in Madrid on 15 and 16 December 1998, which made clear that the said Council considered that the establishment of the rule of law, in which all citizens had confidence, was a prerequisite for a lasting peace, and for a self-sustaining economy capable of attracting and retaining international and domestic investors;

Considering further paragraph 3 of Annex II (Rule of Law and Human Rights) to the last said Declaration, according to which the establishment of judicial institutions at the State level, which meet an established constitutional need to deal with criminal offences perpetrated by public officials of Bosnia and Herzegovina in the course of their duties, and with administrative and electoral matters, is a precondition for the establishment of the rule of law in Bosnia and Herzegovina;

Having regard to the reinvigorated strategy for judicial reform to strengthen the Rule of Law efforts in Bosnia and Herzegovina in 2002/03, which was endorsed by the Steering Board of the Peace Implementation Council on 28 February 2002 and noting that the aforementioned strategy was devised in response to calls by the authorities in Bosnia and Herzegovina for firmer international community actions to tackle economic crime, corruption and problems inherent in the judicial system;

Noting that the Communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 31 July 2002 stated that the Board welcomed the creation of Special Chambers of the Court of Bosnia and Herzegovina and endorsed the proposal of the High Representative to include national and international judges and prosecutors in a Special Panel/Department for Organised Crime, Economic Crime and Corruption within the Court of Bosnia and Herzegovina and within the Prosecutor’s Office of Bosnia and Herzegovina;

Bearing in mind that criminal activities continue to infringe on the democratic, economic, fiscal, commercial and other social rights and interests of the citizens of Bosnia and Herzegovina, and that the establishment of the Special Department for Organised Crime, Economic Crime and Corruption within the Prosecutor’s Office of Bosnia and Herzegovina advances the efficient and effective fight against crime in Bosnia and Herzegovina;

Convinced of the vital importance to Bosnia and Herzegovina of ensuring that the rule of law is strengthened and followed in order to create the foundation for economic growth and foreign investment;

Recalling the Agreement between the High Representative for Bosnia and Herzegovina and Bosnia and Herzegovina on the Establishment of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina signed by the Presidency of Bosnia and Herzegovina and the High Representative on 1 December 2004;

Recalling further the relevant provisions of the Law on the Prosecutor’s Office of Bosnia and Herzegovina (“Official Gazette of Bosnia and Herzegovina”, 24/02, 3/03, 37/03, 42/03, 9/04, 35/04 and 61/04) providing for a number of international prosecutors to be appointed to the Special Department for Organised Crime, Economic Crime and Corruption within the Prosecutor’s Office of Bosnia and Herzegovina;

Noting the Joint recommendation for an appointment of an international prosecutor as Deputy Chief Prosecutor and Head of the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina of 2 November 2005, signed by the Registrar of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia, Chief Prosecutor of Bosnia and Herzegovina and President of the High Judicial and  Prosecutorial Council of Bosnia and Herzegovina;

Noting further that the Deputy Chief Prosecutor and Head of the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina appointed on 15 January 2004 will cease to perform the function of Deputy Chief Prosecutor and Head of the Special Department for Organised Crime, Economic Crime and Corruption as of 3 December 2005 due to resignation as Deputy Chief Prosecutor;

Mindful therefore of the need for continuous operation of the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina, and for the appointment of international prosecutors to the Prosecutor’s Office of Bosnia and Herzegovina and for all the reasons as aforesaid;

The High Representative hereby issues the following

DECISION

Appointing David L. Upcher to the Special Department for Organised Crime, Economic Crime and Corruption in the Prosecutor’s Office of Bosnia and Herzegovina

1.      As provided by Article 18a, paragraphs 1 and 2 of the Law on the Prosecutor’s Office of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, Nos. 24/02, 3/03, 37/03, 42/03, 9/04, 35/04 and 61/04; hereinafter: the Law), the following person is hereby appointed as international prosecutor and as Deputy Chief Prosecutor and Head of the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina:

David L. Upcher

2.         The initial term of appointment of David L. Upcher as an international prosecutor shall be for two years from the date of taking up of the official duties, which occurs on 3 December 2005, subject to reappointment pursuant to the Law. The term of appointment of David L. Upcher as Deputy Chief Prosecutor and Head of the Special Department for Organised Crime, Economic Crime and Corruption shall equal the initial term of appointment as an international prosecutor to the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina .

3.         The appointed international prosecutor shall perform the duty of prosecutor and of Head of the Special Department in accordance with the Constitution of Bosnia and Herzegovina and laws of Bosnia and Herzegovina, take decisions upon his best knowledge, conscientiously, responsibly and impartially uphold the rule of law, and shall protect the freedoms and rights of individuals granted by the Constitution of Bosnia and Herzegovina and the European Convention on Human Rights and Fundamental Freedoms. Before taking up his official duties, the international prosecutor shall take a solemn oath to that effect before the President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina.

4.         The appointed international prosecutor is required to reside in Bosnia in Herzegovina during the term of his appointment and cannot perform any other function that is incompatible with the prosecutorial service or that can impede his performance of the prosecutorial function on a full time basis.

5.          During the term of appointment, the appointee shall complete all training programs as directed by the Chief Prosecutor of the Prosecutor’s Office of Bosnia and Herzegovina , and adhere to all professional conduct standards as established by the Prosecutor’s Office of Bosnia and Herzegovina .

6.       The International Registrar of the Registry for Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption of the Criminal and Appellate Divisions of the Court of Bosnia and Herzegovina and the Special Department for War Crimes and the Special Department for Organised Crime, Economic Crime and Corruption of the Prosecutor’s Office of Bosnia and Herzegovina shall notify the High Representative of any occurrence, including the ones as referred to in paragraph 4 of this Decision,  that may cause the inability of the appointed international prosecutor to perform his mandate. In the event of resignation by or inability of the international prosecutor to complete his mandate, the High Representative may appoint a successor to complete the above-mentioned term of office.

7.     This Decision shall enter into force forthwith and shall be published without delay in the Official Gazette of Bosnia and Herzegovina.