received high evaluation marks by the panel but was
ranked below the threshold set for the eight judges of
Serb ethnicity. The selection process was based on
objective criteria rather than political opinion and
affiliation and provided the author with “a fair
opportunity” to run for the post of judge, in
accordance with domestic law and article 25 (c) of
the Covenant.
remedy available to him by filing a request for
reconsideration under article 79 (3)5 of the RS Law
on HJPC. The decision of the HJPC rejecting his
request clearly stated that it was not subject to
appeal. Furthermore, article 866 of the RS Law on
HJPC defined this Law as “lex specialis,” precluding
the application of any remedies foreseen in other
laws. The recent inclusion of a provision on court
protection in the new draft State Law on HJPC only
concerned disciplinary proceedings and was without
retroactive effect. The Human Rights Chamber had
ceased to receive cases at the time he sought to
appeal the decision of the HJPC. It was not a
domestic remedy. He therefore exhausted all
available domestic remedies.
5.3 The State party submits that during the
selection process, the HJPC was composed in
accordance with articles 53 and 764 of the RS Law
on HJPC. While article 5 defined the composition of
the Council in principle, article 76 gave the High
Representative a certain margin of discretion to
depart from this provision when appointing HJPC
members during the transitional period.
6.2 By reference to statistical reports which show
that he exceeded the workload quota by 217.4 per
cent in 2000 and by 161.5 per cent in 2001, the
author reiterates that his appointment was terminated
despite the fact that he obtained the highest
evaluation scores of all candidates, based on criteria
set out in article 41 of the RS Law on HJPC. In
accordance with article 17 of the rules of procedure
of the HJPC, the evaluation records are confidential
and not to be disclosed to the candidates. The State
party failed to present these records to the
Committee in order to conceal his and other
candidates’ evaluation scores.
Author’s comments
6.1 On 22 May 2004, the author commented,
arguing that he never contacted the European Court
of Human Rights and that the State party had failed
to cite a single provision under domestic law which
would have enabled him to challenge the decision of
the HJPC in another instance. He exhausted the only
3
Article 5 (“Members of the Council”) of the RS Law on
the HJPC reads: “The Council shall have members, as
follows:
A judge of the Supreme Court of Republika Srpska,
elected by all the judges of the Court;
A public prosecutor of the Public Prosecutor’s Office of
Republika Srpska elected by the Public Prosecutor of the
Republic and deputy public prosecutors in the Office;
One judge, either from a district court or a basic court,
elected by the Association of Judges and Prosecutors of
Republika Srpska;
One public prosecutor or deputy public prosecutor, either
from a district public prosecutor’s office or from a basic
public prosecutor’s office, elected by the Association of
Judges and Prosecutors of Republika Srpska;
A minor offence court judge elected by the Association of
Minor Offence Court Judges of Republika Srpska;
An attorney elected by the Bar Association of Republika
Srpska;
A person of high moral character and integrity appointed
by the President of Republika Srpska; and
The members of the High Judicial and Prosecutorial
Council established under the Constitution and laws of the
Federation of Bosnia and Herzegovina.
Members of the Council shall be independent and
impartial in the exercise of their functions, shall be
persons of high moral standing and integrity, and shall
have a reputation for efficiency, competence, and
integrity.”
4
Article 76 (“Composition, Appointment, and Terms of
Office”) of the RS Law on the HJPC reads:
“During the transitional period, the High Representative
shall appoint to the Council the members specified in
article 5, to the extent possible. During this period the
Council shall not include a minor offence court judge. The
mandates of the national members shall be for a term of
four years as set forth in by article 6 of this law.
The High Representative shall also appoint up to eight (8)
international members to the Council. The mandates of the
international members shall be confined to the transitional
period.”
6.3 Without challenging the selection of judges
on the basis of ethnic quota, the author submits that
ethnicity was not an issue in his case, given that the
eight judges appointed to the RS Supreme Court’s
criminal department were all Serbs. Four of them
came from lower instance courts; one had never
decided on appeal in his career.
6.4 The author emphasizes that the only reason
for not reappointing him to the Supreme Court of RS
was his legal assessment in the two verdicts, based
on which the HJPC marked him as unsuitable, unlike
other candidates who were appointed to the RS
Supreme Court or to the Constitutional Court of
Bosnia and Herzegovina although they had
5
Article 79 (3) of the RS Law on HJPC reads:
“An incumbent judge, public prosecutor, or deputy public
prosecutor who is not selected for judicial or public
prosecutorial office under this article may file a request
for reconsideration:
if the Council failed to consider material facts favorable to
the applicant provided that information was submitted to
the Council at the time of application, or if the applicant
exercised his right to review application material under
article 40 prior to the Council’s decision and the Council
took adverse decision based upon information not made
available to the applicant.”
6
Article 86 of the RS Law on HJPC reads:
“[…] Statutory provisions contained in the laws of
Republika Srpska shall be brought into harmony with this
law and any provisions that are inconsistent with this law
are hereby repealed.”
12
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