Milan Tegeltija, the president of HJCP BiH, is not guilty for everything!
In the first 7 articles in the series titled “A corporate-judicial affair in BiH” we published in 2019., we presented in detail the corrupt behavior of the Court in Mostar. The court violated laws and the Code of judicial ethics by conspiring with one party in a legal proceeding. We named that party anonymously as “local builder”. The Court enabled the said party to illegally defraud the other party, who we anonymously presented as “the international bank”, out of tens of millions of BAM.
The Mostar municipal court’s persistent corruption was especially obvious after the Supreme court of FBiH handed down a verdict, which overturned the illegal judgments of the lower courts in Mostar and held in favor of “the international bank”. At that time, the Municipal court in Mostar had the obligation to enforce the order of counter-enforcement of seized transactional accounts and property of the “local builder.” Unlike in the proceeding favoring the local builder, when the Municipal court in Mostar finished the process in record 30 days, after the judgment was overturned by the Supreme court in favor of the International bank, the Municipal court in Mostar decided to delay the counter-enforcement proceedings, and these delays have been going on for 26 months now.
The entire timeline of the delays, based on exact data from the judicial documents, can be found here.
We will continue to refer to parties involved in pseudonyms to avoid marketing, and will refer to the party that the Court in Mostar favors: local builder, and the party discriminated by the Court is referred to as: the international bank.
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In the eighth text we present an analysis of the causes behind the crisis in the BiH judiciary, with a particular emphasis on the phenomenon of “deep justice”. Mid-year 2019, the public understandably focused on the well-known scandal involving the president of HJPC Milan Tegeltija. However, this scandal exposed merely the top of the iceberg of what is a very diseased judicial system. Failure to see it as such could lead the public to wrongly conclude that a removal of few officials could solved the problem. On the contrary, our analysis shows that no single individual staff change can solve the “deep justice” phenomenon in BiH. The problem must be tackled at the level of deeper causes.
The syntagm “deep justice” is used in this text as a reaction to the state of drastic corruption and unprofessionalism permeating all levels of the judiciary in BiH. What is more, decades-long corruption has resulted in entire networks of corrupt judges and prosecutors who support each other and are key factor in creating a culture of corruption, which envelops almost every corner of every judicial proceeding. Such culture of corruption is a threat to each individual in the judiciary who would dare stand up to the culture of corruption by obeying the law and the required procedures.
In the world, the expression “deep state” has become common place, known as a state inside a state, i.e., a form of secret government composed of hidden or covert networks of power, which act independently of the political leadership of the state, in search of own plans and goals.
Bosnia and Herzegovina can be deemed a true global phenomenon when it comes to the degree of corruption present in the judiciary. Using polished western terminology about the need of reform in the judiciary creates the wrong impression that such reform is possible to implement using the usual legal interventions copied from the west. This terminology and approaches are not at all appropriate for the circumstances on the ground.
Therefore, it is essential that we correctly name such drastic level of permeating corruption in the judiciary, which has become an accepted norm of behavior, and which has resulted in a culture that completely passivizes and marginalizes all non-corrupt segments of the judiciary: “Deep justice in BiH”.
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The case of corruption in the Court in Mostar and the corresponding analysis exposed a variety of deviant behavior by deep justice. Therefore, in the continuation of the series, we will identify key characteristics and sources of this phenomenon, which has devolved the entire BiH judiciary.
Responsibility of the corrupt and passive members of the judiciary
The unrestricted corruption by the deep justice in BiH includes two groups of people: the ones who have had direct material gains from such behavior, and those who should be suppressing corruption, but are not doing their job.
The first group includes the judges and prosecutors who have obtained direct material gain in the process of handing down illegal verdicts or by conducting themselves in various neglectful ways in order to benefit one party in a proceeding. People in this group are simply unethical and are an easily explained phenomenon. Those people are usually immoral, selfish, individuals who put their own material interest ahead of any principle or public interest. In turn, they are prepared to violate their honorable duties if it will gain them additional financial benefit. These persons use lies without hesitation, and we can often see them present themselves as respectable public figures in public. They often, falsely, express their commitment to e.g., religion or other humanistic ideas. Their proclamations however, do not align with their immoral behavior.
The second group is composed of all those who have the duty to prevent and investigate unethical behavior of those in the first group. This includes the criminal and disciplinary prosecutors, who, despite their duties, and even when they themselves are not corrupt, in various ways persistently protect the first group. It is this behavior that is difficult to understand or explain. Such attitudes have sociological and cultural roots. Main components of this culture are in essence, anti-democratic values. These were built and implanted into the collective consciousness decades before the institution of the High Judicial and Prosecutorial Council was established. This argument should not be used to abdicate the responsibility of the HJPC for the state of affairs in the judiciary, rather, it is used to better illustrate the cultural foundations of a phenomenon that has as a consequence had the current state of affairs in the judiciary. As things stand right now, the HJPC is not capable of dealing with this task. We will term this deficiency a “cultural defect”.
Below are just a few examples of behaviors that are characteristic of this cultural defect:
- a) bending for all forms of political authority, at the expense of a democratic fight for one’s rights;
- b) culture of non-confrontation and no wave-making, caused by fear or dissinterest;
- c) collective way of thinking and group decision-making, at the expense of individual responsibility and courage;
- d) avoidance of own responsibility with the excuse that the entire system is broken;
- e) mistaken interpretation of the so-called “guild of solidarity” among the judges, prosecutors and attorney, to mean support to criminal “colleagues”, at the expense of quality and integrity of the profession;
- f) animosity toward whistleblowers reporting irregular behavior;
- g) assimilation into the bad environment by betraying own professional dignity and sincerity, etc.;
It is somewhat of a paradox that the members of the first (corrupt) group can in a way be seen as less responsible than the members of the second (passive) group. Namely, the first group obviously knows what they are doing, they are aware of the illegal nature of their behavior and they know that there are legally proscribed sanctions if they are caught in unethical and illegal actions. They violate their duties purposefully with an obvious aim to gain some material and financial interest and therefore they take on the risk of being caught in the act and being held responsible for it.
The justice system, just like other systems, must be controlled. As the most important link in the chain of upholding the rule of law, there is a specific reason why there are built-in control mechanisms in charge of exposing and sanctioning even the smallest deviations in performance. Primary control mechanisms include the criminal and disciplinary prosecutors in charge of investigating unprofessional and unethical behavior of judges and prosecutors in their managing of cases.
When the Office of the Disciplinary Prosecutor (ODP) and the Office of the Prosecutor as control mechanisms within the judiciary, clearly fail to do their job when it comes to developing a culture of ethics among those with judicial functions, it is possible to conclude that theirs is an even greater responsibility than the corrupt members of the judiciary.
Their failure to act renders meaningless the existence of any mechanism to fight unethical judges and prosecutors, thereby indirectly incentivizing more and more of them to commit violations of the law.
It is fair to say also that the fear of corrupt structures in the judiciary discourages disciplinary and criminal prosecutors to fulfill their duties. It is an indisputable fact that courageous behavior would jeopardize their existence and safety. However, we are faced with a situation where every one who had honest intentions in the beginning, but was afraid to comply with his/her duties, in the end becomes part of the “deep justice” phenomenon. As such, later on, they oppose any and all efforts at reform.
Nonetheless, regardless of the fear as the real state of affairs in the BiH judiciary, it is essential to underline that here on the one hand we have officials fulfilling their own duties in accordance with the law, and on the other is abuse of power through failure to act. The law does not foresee fear as an excuse or a justification for non-performance of official duties.
If there is true fear of compliance with official duties, what would have been just is if they had not taken on important control functions in the judiciary in the first place. That way others who are not afraid can have the opportunity to do the job.
Phenomenon “deep justice” in practice
To illustrate the cultural background of the phenomenon of deep justice, we will use the example from this case:
We already wrote about judge Nina Ratkusic malevolently holds the order of counter-enforcement against the local builder, in her drawer for 14 months. This order would result in the return of tens of millions of BAM to the international bank, money that was paid via illegal judgments. We also talked about the president of the Court in Mostar Divna Bošnjak. We proved that she was corrupt by supporting the judge Nina Ratkušić in her obstruction of the judicial process in this case. In addition, we explained also the case of conflict of interest of Majna Lovrić, judge who brought the illegal judgment in the first-instance court in favor of the local builder.
These women judges are without a doubt members of the group that is directly in the zone of acts of corruption, because their illegal behavior causes direct financial gain to one party in the proceeding. In this situation it is reasonable to assume that all three have direct financial interest in the hands of the domestic builder, because otherwise why would anyone risk their job and hand down illegal judgments “for free”.
The prosecutor Nevenka Čorić from Livno, is in the group that indirectly assists the local builder’s illegal enrichment. Namely, she responded inadequately to the criminal charges against the judges. She sought a reason to not act by using manipulative and illogical reasoning. Disciplinary prosecutors of the Office of the Disciplinary Prosecutor (ODP) Aldijana Porča and her boss Anela Kurspahić Nadarević, both of whom rejected disciplinary charges against the judges using the same approach of reasoning without foundation.
In the domestic system of control of legality of the work of the judges, all further opportunities are exhausted when the prosecution in charge rejects the potential for investigating criminal acts conducted by the judges, and the ODP rejects the possibility for filing disciplinary charges. These two institutions represent the second group of people as explained above, who indirectly help unjust enrichment of the local builder by tolerating corrupt behavior of the judges from the first group. That way they directly spread the corrupt behavior throughout the judiciary in BiH.
There are cases of prosecutors in BiH directly taking bribes from the parties in a case, and the public is often informed of these. However, situations where one needs to investigate own “colleagues” prosecutors and judges are more a product of the cultural defect than bribe taking. The same is the case in actions of the ODP, as the office that prosecutes judges and prosecutors and not parties in the case, which makes it less likely they would have access to bribes and other modes of direct corruption. Although we cannot exclude even that aspect.
The cultural defect of the Office of the Disciplinary Prosecutor – ODP
In the case of failure to act by the ODP on numerous different complaints, authors of this analysis heard various excuses that paint a great picture of the above-described cultural defect. Some of them are particularly interesting:
- You all are in the right here, but there is no use filing disciplinary charges when they will just overturn them in the disciplinary committees;
- It is true what you write in your texts about some disciplinary prosecutors, but you do not understand that in ODP we think like a collective entity, each individual follows the collective’s position on an issue;
- We will wait for the Supreme court or the Constitutional court to hand down the judgment, and then we will consider whether ODP will act, even though regular or extraordinary courts do not have jurisdiction over disciplinary charges. That is the exclusively ODP’s jurisdiction;
- When asked to explain the disciplinary duties of the disciplinary prosecutors, the ODP with a hostile tone responds that the complainant has legal provisions at his disposal, thereby protecting their unethical “colleagues”;
- With a desire to avoid any type of unease by prosecuting judges who have strong lobby groups within the judicial community, we will invent a bureaucratic justification with which we will simply throw out all indisputable claims of irregularity stated by the complainant;
These justifications have been put forward, even though the Law on HJPC and the Rules of procedure proscribe the complete opposite of the reasoning provided by the ODP. One of the rules is that each disciplinary prosecutor must do their part of the work, regardless of the ultimate outcome of the complaint as decided by the disciplinary commission. Every disciplinary prosecutor, by virtue of their order of appointment, signed on to clearly proscribed individual duties to uphold the law. A collective position of the agency may be illegal, and in turn acts of such agency are non-binding on the individuals. It is clearly written that the disciplinary prosecutor wants to discover illegalities. This in turn should make them glad when they discover a complaint, and not the opposite. The disciplinary prosecutor should be discovering disciplinary violations before judicial decisions are final, and not afterwards when it is too late.
All this leads to the conclusion that we have here existence of a cultural defect that permeates the breadth and depth of the judiciary in BiH, and as a consequence has a state of affairs where almost nobody is doing the job they are paid to do.
What does all this have to do with Milan Tegeltija, the president of the HJPC?
In our judgment, nothing, even though the role of Milan Tegeltije in BiH judiciary is huge as such. He presides over the Council, which is the regulatory agency for the entire judiciary. Analyses prove beyond a shadow of a doubt that the HJPC did not do their job reforming the judiciary. The “Shoeing” affair additionally collapsed the president’s own reputation, and the BiH public’s attention was occupied with the topic for months.
However, the public must be informed that every disciplinary complaint against a judge or a prosecutor ends up in the Office of the disciplinary prosecutor of the HJPC, as the first post in charge of conducting an investigation to confirm the veracity of the claim. Following the investigation, they arrive at an independent decision on whether to file disciplinary charges. There is no formal role for the president of the HJPC in the filing of the disciplinary charges. So, everything that the ODP considers to be a disciplinary violation by any judge or prosecutor, they have the power to investigate, collect evidence, and in the end file charges. Every filing of disciplinary charges raises the public’s attention, which makes it a great opportunity for the ODP to courageously and boldly stand at the front line in defense of the honor and integrity of all levels of the judiciary in BiH. This would undoubtedly win them favors with the citizens.
Despite this well-placed legal independence of the ODP, they relinquish their independence willingly, due to the above-described cultural defect. The politics of non-confrontation, condescension toward strong players in the judiciary and subjugation to authority, auto-censorship and other anti-democratic cultural disorders in the ODP have caused the state of affairs where immorality and lack of discipline among those endowed with judicial functions are not being prosecuted decisively. All this is causing damage to those honorable judges and prosecutors among them, because those rare few that hold onto principles of honor and integrity, and speak publicly about it, are made to seem like some rebels that stick out and disturb the established anti-democratic and corruptible harmony in the depths of the BiH judiciary.
Shock therapy for Ružica Jukić, Deputy president of HJPC
The best diagnosis of the ODP’s work was publicly uttered by the deputy president of the HJPC Ružica Jukić, publicly considered to be Milan Tegeltija’s right hand woman. She posted on her Facebook profile on 14th December 2019, a commentary on the presentation of the judge Branko Perić, who presented his analysis of the BiH judiciary that day. Among the many claims she made in her quite long commentary, she also remarked on the work of the ODP and confirmed what we had concluded in this analysis about the work of the ODP, which is that the ODP is not doing its job.
She also claimed that the members of the HJPC do not have any insight into the process of rejection of complaints by the ODP, that about 90% of the complaints are rejected right off the bet, and that whistleblowers and complainants of judicial and prosecutorial irregularities do not have any legal recourse available to them to complain against the decision of the disciplinary prosecutor to not file charges, in which the ODP informs the complainant that there is insufficient evidence to file disciplinary complaint.
Excerpt from the commentary by Ružica Jukić directly:
“The Office of the Head Disciplinary Prosecutor is completely autnomous, i.e. independent of members of the Council and members of the Council do not have insight into the individual cases prosecuted until the disciplinary prosecutor files disciplinary charges.
Over 90% of the complaints are rejected by the disciplinary prosecutor without any knowledge by the HJPC members to review the decisions, because there is no legal recourse available against the decision by the disciplinary prosecutor in which ODP informs the parties involved that there is insufficient evidence to file disciplinary charges.”
As we presented in previous texts, the ODP decisions rejecting disciplinary complaints were not credible in the case at hand either. That only adds to the suspicions about the 90% of the remaining decisions that were rejected without any members of the HJPC members ever finding out, or any possibility for the unsatisfied party to complain against such decisions of the ODP. One could probably find good number of reasons for the state of neglect and unprofessionalism within the “deep justice” phenomenon in BiH among those 90% of the cases that never saw the light of day.
ODP is trying to shift their responsibility for not filing disciplinary charges to the disciplinary commissions, claiming that they are likely to reject the charges anyway, so it is better to dismiss the complaint immediately rather than uselessly take the complaint in front of the disciplinary commission. And there you have it, the senseless argument of the ODP straight from the zone of the cultural defect. Luckily, the commentary by the deputy president of the HJPC Ružica Jukić refutes this argument as senseless.
One cannot refute the argument by Ružica Jukić that the ODP without anyone’s knowledge independently rejects 90% of the complaint. If we add to that the fact that the lack of discipline among those carrying official judicial functions in BiH is widespread, a fact even the special European envoy Reinhard Priebe referred to in his report, then we must be candid and state that it would be too naive to put the blame for the bad state of the judiciary on only one man. This analysis shows that, in the order of things, the ODP is the first key institutional problem of widespread lack of discipline in the BiH judiciary. This, in addition to all other cultural defects among those carrying judicial functions in BiH demands a wide-spread airing out and shaking up of the judiciary at all levels, not just at the level of the HJPC.
In order for BiH to overcome the “deep justice” problem, there is no real priority or urgency to develop new legal frameworks, rather we are in need of more boldness and responsibility in the carrying out of public functions.
End of part eight.
Next part of the story will be published on 26th of January 2020.
Net Consulting d.o.o. monitors and analyses business processes and practice, conflicting business relationships, administrative judicial processes, and identifies irregularities that damage legitimate and legal corporate interests of clients. This text is published with consent of the damaged party in this case. Net Consulting d.o.o. confirmed the veracity of all claims in the text with secondary documentation and other material proof.
