HRVATSKA RIJEC: Where did the selection of new judges of the Constitutional Court of FBH "trip up"?
ILIC: The procedure for the selection of the judges of the Constitutional Court started while Ivo Andric-Luzanski and Ejup Ganic were president and vice-president of the Federation BH. We started that process in accordance with the Law About Judges and Prosecutors, as the procedure specifies. Therefore the Federation Justice Ministry advertised vacancies, collected all the applications, and passed them on to our federation commission for the election and appointment of judges. After that the commission held meetings and proposed the most qualified candidates, and all of this is envisaged in the abovementioned Law About Judges and Prosecutors. That law precisely defines what conditions must be satisfied by the candidates in order to be even considered for the position of a judge of the Constitutional Court. Therefore a whole scale of criteria is listed, from the professional qualifications to ability to perform the tasks of a judge. Following the mentioned criteria we proposed several candidates to the former president and vice-president.
Why didn't they accept candidates proposed by your commission?
As far as I know, Luzanski wanted to accept our candidates, while Ganic refused. I think that Ganic's refusal is related to the hidden games of individuals who knocked on the door of his office. The biggest obstacle, it seems, was the fact that we excluded university professors as possible candidates for judges of the Constitutional Court. However, they are actually excluded by the law. Minimum requirements for a candidate for a judge of the Constitutional Court are a passed bar exam and a law degree. We did not create that law. It was imposed by the High Representative Wolfgang Petritsch and adopted by the Parliament. Although I personally believe that law professors should serve on the Constitutional Court, we could not take their applications in consideration as the law does not allow us to do so. Consequently, some professors of the law school in Sarajevo tried to influence the selection of the judges of the Constitutional Court through Ganic's office.
Could you explain why the new president and vice-president of the Federation BH also rejected your proposed candidates for the judges of the Constitutional Court?
When the new president and vice-president of the Federation, Karlo Filipovic and Safet Halilovic respectively, were elected, I saw president Filipovic and agreed with him that the judges of the Supreme Court should be elected as that court also waited for the confirmation of new judges. We finished that job, and then I asked that the process of the appointment of judges of the Constitutional Court also be concluded. He and vice-president Halilovic sent us a written reply that is interesting in many ways. They wrote that with total respect for the personal and professional qualities of the offered candidates, they concluded that the proposed candidates "could not meet the demands" facing the Constitutional Court. In other words, they demanded obedience from the new judges. Besides, everything is clear from their media appearances. If the Federation vice-president Safet Halilovic states for the newspapers: "We are not seeking obedient cadres but people who can stick to the reform course in the showdown with corruption. We have troubles finding the best people, who are capable of implementing the reforms in this transition," the immediate impression is that he is convinced that only he knows the true meaning of the term transition. Then, consider another thing he said. Ortynski [state prosecutor in Croatia] had trouble in Croatia because of a far less questionable statement. This is what Halilovic said: "People who are capable of a radical showdown with the judicial and investigative bodies that were the extended arm of the politics". It is shocking that he could give such a statement, even as a politician. Look, he says that they should carry out a radical showdown with the judiciary and the Constitution clearly says that the executive authorities are separated from the judiciary and that no one has the right to meddle with the judiciary. I challenge you to think of a more blatant meddling of executive authorities in the judiciary. Furthermore, his statements given for the media clearly indicate that he has no idea what the actual role of the Constitutional Court is, because he says that the Constitutional Court should eliminate corruption. The Constitutional Court is not a regular court that deals with corruption. Its task is to make sure that laws do not violate the constitution. It has nothing to do with corruption.
The law, nevertheless, allowed the president and vice-president of the Federation to reject the candidates proposed by your commission. What do you object?
The law envisaged the possibility that the president and vice-president of the Federation may not accept our proposal, but they must specify why they oppose the appointment of the proposed candidates. Furthermore, they asked that we propose more candidates, which would imply that we are the Federation Commission for the Selection, rather than the Federation Commission for the Election and Appointment of Judges. The meaning of Petritsch's law is that judges should have the major influence on the judicial appointments, instead of politicians and the executive authorities. Their demand to be offered more candidates so that they could select those they prefer, actually increases the influence of the executive authorities on the appointment of judges, and the law does not envisage that. When we warned them about that, they told us that they would take steps to annul the whole process of candidate selection. As this commission has nothing to do with the advertising of vacancies, because that is the task of the Justice Ministry, I informed the minister about this demand.
Did you inform the international institutions in charge of reforms in the judiciary in Bosnia-Hercegovina about the whole dispute?
There is the Independent Judicial Commission, which was established by the High Representative and its task is to assist the establishment of the judicial system. We invite their members to the meetings of our Federation commission, so that we have been cooperating well with them. That Independent Judicial Commission has suggested to us, nevertheless, to give in and nominate new candidates for judges, as that is in the interest of the establishment of the Constitutional Court of the Federation BH. We accepted that suggestion and sent the president and the vice-president of the Federation a new list with candidates for judges of the Constitutional Court. We changed one name on that list. We still haven't received a reply to our new proposal.
What is the solution for this stalemate and when will the Federation BH get a new Constitutional Court?
I have been informed through the grapevine that the Ministry of Justice is preparing amendments to the Law About Judges and Prosecutors and that a new attempt to appoint judges to the Constitutional Court will be made only after those amendments are adopted, which means that we shall remain without a functioning Constitutional Court for at least another year.
What is the status of the current judges of the Constitutional Court? Do they continue to work until the new judges are appointed?
They cannot accept new cases because their mandate has expired. The law specifies that the Constitutional Court still functions in "technical mandate". That is nonsense! Fortunately, no cases have recently been submitted to the Constitutional Court, so they have nothing to do.