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Annex I | |
Annex II | |
Annex III | |
Annex IV | |
Annex V | |
Annex VI |
In a country where the rule of law prevails, courts accord equal justice to all, rich or poor, powerful or weak, hero or villain… this is not yet the situation in BiH (1)
The Independent Judicial Commission (IJC) was formally established by the High Representative as a Civilian Commission under Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina (BiH). It is the lead international agency for judicial reform in BiH and was given the power and responsibility to guide and co-ordinate judicial reform activities in BiH(2). The purpose of this paper is to outline the IJC strategy for judicial reform for the next eighteen months and beyond.
Most of the recent complaints about judges and prosecutors made by the public concern delays and inefficiency in the judicial system. The public perception of the current judiciary is decidedly not positive. The reports of JSAP produced over the last two years confirm that the public is correct in its assessment. The underlying causes of this dissatisfaction are many and varied. The structure of the judiciary reflects in many ways the legacy of communism. Politicians are used to exercising influence over the judiciary and judges are used to obeying. Under-funding of the judiciary creates a relationship of dependency with the executive. Outdated procedural laws do not help the courts to deal with cases efficiently, but at the same time the judges themselves are reluctant or unwilling to use the tools at their disposal to speed cases up. Neither the judges nor the court staff have any apparent perception of the fact that they should be providing a public service and the courts are not organised to do so.
The IJC will promote the development of a more independent, impartial and competent judiciary and judicial system in BiH, which deliver timely justice in accordance with the law. Specifically, the IJC will assist and guide the judicial system to operate in accordance with the highest international and European standards and ensure that its institutions respect and uphold the rule of law. IJC anticipates and welcomes the co-operation of local legal institutions in this project. Despite the dark overall picture of the BiH judicial system, there are many causes for optimism, especially greater recent co-operation between institutions in each entity and the enthusiasm of many individual judges and prosecutors for change.
Rakel Surlien, Director
July 2001
1 IJC GOALS FOR JUDICIAL REFORM
The Constitution of BiH provides that the country shall be a democratic state operating under the rule of law. However, despite the emphasis placed on the rule of law by the Peace Implementation Council, there is still a long way to go before the understanding of and the reality of what it means to operate under the rule of law evolve within BiH. Development of an independent and impartial judiciary, delivering timely justice in accordance with law, is fundamental to the rule of law. Reaching that goal will require effort at different levels and the use of a variety of tools, including new legislation, especially on procedure, new structures, much training and the development of new attitudes amongst those working in the judiciary and the public.
In determining its reform priorities, the IJC has relied largely on the identification of the main problems and the analysis of their various causes as identified in the reports of other international agencies in BiH, especially those of JSAP on political influence on the judiciary and on the effect of delays on the delivery of justice in BiH. The overall goals of IJC are:
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In working towards these goals, the IJC will take an active, leading role in some of the more important or urgent fields of activity. On other issues, the IJC will rely more on its mandate to guide and co-ordinate the reform process and will support other agencies, both national and international, in their undertaking of various projects. The IJC will also design specific projects for additional donor funding.
All judicial reform must take account of the fact that BiH is part of the civil law tradition and all reforms should be compatible with that heritage, as well as with European norms and standards in general and Council of Europe guidelines.
The next two sections in this part of the paper identify the goals that the IJC intends to see achieved over the next eighteen months, divided into those of improving the independence of the judiciary and those of improving the quality and efficiency of the judicial system.
1.2 Improving the independence of the judiciary
In order to achieve freedom from external political influence for the judiciary, it is necessary to have an appointment and dismissal system for judges and prosecutors that depends on professional qualifications rather than political influence, adequate financing that is not dependent on the relationship of individual courts or judges with politicians, and the provision of proper security for judges and courts. It also requires judges who have sufficient personal integrity to resist any attempted improper influence and whose behaviour is amenable to proper disciplinary and ethical systems.
Some progress was made with the introduction of laws on judicial and prosecutorial service in both entities in 2000. Those laws provided for the creation of commissions in the Federation of BiH and councils in the Republika Srpska (RS) charged with significant tasks in respect of the appointment, discipline and dismissal of judges and prosecutors. One of those tasks is the conduct of a Comprehensive Review Process to determine whether current judges or prosecutors are unsuitable to hold office. Monitoring the implementation of those laws, especially the review process, is the main priority for the IJC for 2001. Indications so far are that further work is necessary to refine the legislation in respect of many aspects of the work of the commissions and councils.
By December 2002, the IJC intends to see:
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1.3 Improving the quality and efficiency of the judicial system
It is questionable whether the courts of BiH really deliver justice in accordance with the law, despite that being their primary purpose(3). Cases take years to resolve and are then overturned on appeal. Successful plaintiffs are often unable to enforce their judgement. Judges themselves acknowledge that they are not sufficiently familiar with some aspects of the law to be able to deal properly with cases. They lack copies of legislation, commentaries and training. The performance of lawyers is generally poor, and witnesses and parties frequently fail to attend hearings. The system itself is more focussed on producing statistics than in ensuring the resolution of disputes.
The broad topic of improving the quality and efficiency of the judicial system thus encompasses a number of different aspects, revolving around the issues of the timeliness of judicial decision making, the ability of the judiciary to make decisions in accordance with the law and the various legislative and operational constraints that prevent judges from working as well as they might. Inadequate procedural laws have been identified as the primary reason for delays in the judicial process(4) , but their reform alone will not reduce delays or prevent the increase of case backlogs without provision of training and legal information, reform of court administrative and management systems and a fundamental shift in attitude of the judiciary. Improving efficiency is a priority for the IJC.
By December 2002, the IJC intends to see:
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2. IMPLEMENTATION OF IJC GOALS
Clearly, fulfilment of the goals outlined in the previous section will depend on a number of internal and external factors, many of which are out of the control of the IJC. Principally, the plan has been drafted on the assumption that local authorities will continue their expressed support for many of these initiatives and that international agencies will continue their work in particular areas or in particular initiatives.
IJC must remain able to respond to other demands and priorities as they arise and so this strategy plan will be flexible. For example, the IJC is pleased that the Ministries of Justice from time to time request its advice on various law reform initiatives, and it is hoped that this co-operation will develop further. It is anticipated that from the end of 2001 or beginning of 2002 the IJC, along with the Legal Department of the Office of the High Representative (OHR), will take up its mandate in the District of Brcko, although the delineation of responsibilities is still under discussion. Brcko has therefore not been referred to in particular in this paper.
The IJC also anticipates the development of more project proposals than those referred to in this paper, as needs and opportunities become clear. IJC involvement may include the identification of projects, the development of a project proposal and the seeking of funding and could extend to finding contractors, overseeing the project and assisting with logistical issues.
Annex III is a timeline for implementation of the IJC’s goals until the end of 2002 and Annex IV provides a more detailed outline of the IJC workplan with reference to specific objectives and with activities set out in periods of six months. IJC will supplement these activities by various co-ordination functions, such as:
- the holding of regular judicial reform co-ordination meetings to ensure that both the IJC and other organisations are fully informed of all judicial reform initiatives;
- co-ordination of trial monitoring activities of other organisations, including the development of standard reporting forms, to ensure that all monitors understand the limits of their work, that resulting information is channelled to the right organisation and that implementation of reforms is monitored;
- collating information on past and current judicial training activities, to identify gaps in training activities and to ensure that appropriate local professionals are engaged in giving as well as receiving training.
3 OTHER CURRENT AND FUTURE ISSUES FOR JUDICIAL REFORM
The goals and activities outlined in this paper reflect what the IJC considers priorities for reform. They do not reflect the whole ambit of judicial reform. There are some issues that would be better dealt with later and others that are simply beyond the capacity of the IJC in the next eighteen months. As progress with the priority projects becomes known, these omitted areas could become part of the IJC strategy, or they could be taken up by a follow-on project or other institution.
One important such issue is the structure of the judiciary. There are many ways in which the structure of the court system could be improved. BiH has many courts and many judges for such a small country, but despite this cases still take a long time to resolve. Streamlining the system would not doubt produce cost-savings that could be used to improve court funding in general.
However, the IJC does not believe that it is appropriate to deal with these issues at this time or until proposed procedural and other reforms have taken place. Criminal procedure reform should eliminate need for five judges in all first instance courts and would allow many courts in small municipalities to reduce numbers of judges significantly. Civil procedure reform may remove the Federation requirement to have three judges sitting on every case. At the same time, changes in the appeal system may make it desirable to give municipal courts greater first instance jurisdiction, so that parties can more easily exercise two rights of appeal. While procedural reform could have considerable impact on the internal organisation of each court, more fundamental structural changes to the court system will need to be addressed through other legislation.
There are many other questions. For example, could the different levels of prosecutors’ offices be merged? Would it be possible to create more flexibility with judges appointed to the municipal court bench in general and able to be moved from court to court? Should judges be prohibited from sitting in a town if they have recently been working there as a lawyer or prosecutor in order to ensure the appearance of independence? Should minor offence courts be referred to in the constitution or be merged into the regular courts?
Interesting as these problems are, they are better addressed at a later stage of the reform process, once the implications of the various procedural reforms are known. In the meantime, the IJC encourages local governments to take their own initiatives on these issues and will also remain aware of these issues when working on other reform projects. However, the IJC is opposed to the creation of specialised courts, given the existing multitude of courts. Problems in the way that courts deal with particular types of case are generally related principally to lack of knowledge or training, which will not be solved by shifting cases from court to court. There are many different ways to address some of these problems and solutions should be sought within the current judicial framework.
A related issue is the question of prison reform. There are some acute problems, especially in the Federation, with the capacity of penal institutions, for example for mentally disturbed prisoners, and in both entities with regard to juvenile detention. However, while other organisations such as the Council of Europe and the UNMIBH Human Rights Office are dealing with this issue on different levels, the IJC does not intend to take any initiative of its own.
Another issue that the IJC will consider later is the adequacy of the basic legal education provided by the country’s five law faculties. This is a complex and difficult issue. While in some senses it might seem fundamental to the development of the legal profession as a whole, the other training initiatives included in the IJC strategy should enable judges and other legal professionals to receive on-the-job training that will, to some extent, ameliorate any possible deficiencies in the education received at the faculty.
On the procedural law side, having a suitable legislative framework for administrative litigation will become an important issue with the development of a market-oriented economy based on private ownership. USAID intends to work in the area of administrative procedure in general, and will be developing its project plan late in 2001. The IJC will ensure that this and other possible initiatives are appropriately co-ordinated and fit within the overall efforts in those matters.
Finally, OHR has been undertaking a number of projects to do with judicial reform that, at least in the meantime, will remain within OHR. These include institutional development of the Court of BiH and related legislation, the Constitutional Court of BiH and merger of that court with the Human Rights Chamber, development of a free legal aid scheme, criminal procedure reform and draft legislation on court experts. The IJC will assist OHR as necessary or requested on any of these issues.
4 MAJOR PRIORITIES FOR THE IJC
As noted above, the IJC strategy is flexible in its approach and priorities may need to be changed from time to time. The various projects described in Annex IV will require differing amounts of resources. It may prove necessary for the IJC to transfer resources from one project to another in order to ensure implementation of particularly important goals(5). Should this be necessary, and for the sake of transparency, the IJC at this stage sets its priorities in order of importance as:
- Completion of the Comprehensive Review Process. (This process is time-limited by law and the relevant periods expire early in 2002.)
- Completion of reform of the appointment process for judges and prosecutors
- Reform of court administration and management
- New legislation on enforcement of civil judgements
- New legislation on civil procedure
5 FUTURE JUDICIAL REFORM ACTIVITIES
It is foreseeable that the reforms promoted in this paper will receive setbacks and not everything will take place according to the proposed schedule. Some of the projects outlined may not be completed until after 2002. In particular, training is an ongoing part of all the reforms and should any major legislative initiative be delayed, the necessary support training will also have to be delayed. The final stage of any reform must be the monitoring of results to ascertain whether the reform had any practical effect. While the IJC will use the trial monitoring process to assist in this stage, it is likely that many results of the reforms implemented as part of this strategy will not be seen until after 2002. The IJC intends to update this strategy from time to time to take account of changes and to give a better indication of what will and will not be completed by December 2002, which is the planned end of the IJC mandate period.
Judicial reform is an ongoing process, however, and the end of the mandate does not mean that judicial reform should end. A preliminary view of possible judicial reform activities anticipated for 2003 and onwards is given in the timeline in Annex VI. The need to monitor the effect of reforms as well as identifying other reform needs is an important function in any society. These are ongoing processes, along with, of course, the related legislative drafting, institution building, training and other activities that are part of actual reform. What agency should deal with these issues in the long term in BiH, and whether it is domestic and/or international, is something to be determined later.
Annex I
Decision of the High Representative Providing the IJC with a Comprehensive Mandate, 14 March 2001
Annex II
Annex III
Timeline for IJC activities July 2001 – December 2002
Annex IV
This annex contains the detailed outline of the IJC strategy for implementing its goals, as referred to in section 2 of the text.
PROJECT 1 | COMPREHENSIVE REVIEW PROCESS |
Goal | Improvement in the quality of the judiciary by removal from office of unsuitable judges and prosecutors through the ongoing Comprehensive Review Process and enforcement of appropriate standards and procedures of professional conduct. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 2 | APPOINTMENT OF JUDGES AND PROSECUTORS |
Goal | A fair, objective and transparent appointment process for judges and prosecutors that conforms to European standards and ensures adequate representation of minorities. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 3 | REFORM OF COMMISSIONS AND COUNCILS |
Goal | Further de-politicisation of the appointment, disciplinary and dismissal processes by restructuring the Commissions and Councils and clarifying and extending their competencies. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 4 | COURT FUNDING |
Goal | Improved funding of the judiciary by giving the judiciary more control over its budget and by ensuring full and timely payment of salaries and operating expenses. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
PROJECT 5 | COURT SECURITY |
Goal | Development of the legislative framework for the provision of adequate security for individual judges and prosecutors and court buildings. |
Specific objectives |
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Timeframe July – Dec. 2001 | Development and training of the court police is largely in the hands of UNMIBH. The IJC should only:
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
PROJECT 6 | CIVIL PROCEDURE REFORM |
Goal | Increased efficiency in civil cases by the introduction of modern civil procedure legislation in both entities that is compatible with European standards and practices and that is implemented by the judiciary and other relevant agencies. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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ENFORCEMENT OF CIVIL JUDGEMENTS | |
Goal | Improvement in the ability of creditors to enforce judgements by the introduction of modern legislation on enforcement of civil judgements in both entities. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 8 | COURT ADMINISTRATION REFORM |
Goal | Progress towards increasing the efficiency and effectiveness of the courts in general and to increase public access to them by developing a strategic approach to reform of court administration and management, including the introduction of new technology and equipment. |
Specific objectives | Development of strategy for low-cost low-tech reform of court administration that can be implemented by each court without further assistance. (This project must be well co-ordinated with local institutions especially the Ministries of Justice and the Associations of Judges and other initiatives that involve computerisation of court registries.) |
Timeframe July – Dec. 2001 |
The assessment would include, but not be limited to factors such as:
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 9 | JUDICIAL TRAINING INSTITUTES |
Goal | The creation of government funded judicial training institutes in each entity that are properly funded and operational. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 10 | CRIMINAL PROCEDURE TRAINING |
Goal | Judges and prosecutors trained on the anticipated new criminal procedure codes. |
Specific objectives | Creation and implementation of comprehensive inter-agency training programme for the judiciary on new criminal procedure legislation. |
Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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ACCESS TO LEGAL INFORMATION | |
Goal | Improved provision of legal information to judges and prosecutors, especially access to legislation, commentaries, and decisions of superior courts. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
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PROJECT 12 | LEGAL PROFESSION |
Goal | The development of a properly regulated legal profession whose members provide proper professional service to their clients, who are subject to appropriate codes of ethics and a functioning disciplinary system and who have the right to practice in any courts in either entity. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
PROJECT 13 | INTER-ENTITY JUDICIAL CO-OPERATION |
Goal | Improved co-operation between courts in each entity and Brcko on all matters necessary for completion of their functions. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
PROJECT 14 | MINOR OFFENCE COURTS |
Goal | Unification of the rules and procedures governing minor offence courts, including the budgeting and appointment systems as well as the procedure for dealing with minor offence cases. |
Specific objectives |
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Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
PROJECT 15 | HERZEGOVINA-NERETVA CANTON |
Goal | Completion of the ongoing unification of the judiciary in Herzegovina Neretva Canton, including the City of Mostar. |
Specific objectives |
While there are other outstanding issues, such as unification of the cantonal budget and unification of the Ministry of Justice, these are outside both the mandate and the resources of the IJC. |
Timeframe July – Dec. 2001 |
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Jan. – June 2002 |
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July – Dec. 2002 |
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Funding requirements |
Annex V
Annex VI
Timeline for Possible Judicial Reform Activities 2003 and onwards
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(1) JSAP’s Thematic Report IX Political Influence: The Independence of the Judiciary in Bosnia and Herzegovina, November 2000. JSAP was the Judicial System Assessment Programme of the United Nations Mission in Bosnia and Herzegovina, which ran from October 1998 until its closure on 30 November 2000. The IJC is the successor to JSAP, moving from more diagnostic approach of JSAP to a focus on implementation of reform.
(2) The Decision of the High Representative on the creation and mandate of the IJC is attached as Annex I.
(3) A pictorial representation of the number of judicial institutions in BIH and their staffing levels forms Annex II, which also indicates those judicial institutions for which the IJC is primarily responsible.
(4) See JSAP’s Thematic Report X Serving the Public: The Delivery of Justice in Bosnia and Herzegovina, November 2000.
(5) The organisation chart of the IJC is presented in Annex V.