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Dot on “i”: The BiH Constitutional Court has unraveled a corporate-judicial affair in Mostar (CJA: part 13)


After 12 texts / analyses in the series “Corporate-Judicial Affair” in Mostar and the great interest of the public because of this case, we’re putting a dot on i which is symbolically the title of this text.  We are making an epilogue, not because there is no more material to write, of course there is, but precisely for the reason of not going on indefinitely, we decided to complete this series.

The reason for writing was also given to us by the Constitutional Court of Bosnia and Herzegovina, which at the Grand Council session held on October 28, 2020, passed the Decision on admissibility and essence, i.e. rejected as unfounded the appeal of the “domestic builder” filed against the judgment of the Supreme Court of the Federation of Bosnia and Herzegovina. The Constitutional Court, in accordance with its authorization (Rules of the Constitutional Court), concluded that there was no violation of the right to a fair trial, which the Appellant “domestic builder” pointed out. The Constitutional Court pointed out that the Supreme Court gave a clear and well-argued explanation which in no segment leaves the impression of arbitrariness. The Constitutional Court agreed with the judgment of the Supreme Court of 05.10.2017. that the objection of the “international bank” was founded – wrong application of the substantive law – and for that reason the audit reason was realized.

The Constitutional Court concludes that there is no violation of the right to the property of the appellant “domestic builder” because he has not proved that he has a “realizable claim” that would represent the property.

And so as not to retell in detail the Decision of the Constitutional Court, which is already available on the website of the Constitutional Court or you can read it here: AP-5208-17-1213276, our goal is to remind the public how we from the first published article advocated the principles of responsibility, ethics and justice that are necessary for the judicial system of BiH.

In the first part of the series ‘Corporate-Judicial Affair in BiH’ we published an article entitled ‘Judicial ineffectiveness in the service of individual unjust enrichment’ and wrote about how the Municipal Court in Mostar and the judge who’s in charge of this case abused the discretionary autonomy of the judicial position to do a completely unbelievable thing, and that is to take away the validity of the judgment of Supreme Court of the Federation of BiH and to place themselves as a sovereign above the Constitution and determine for themselves that they will wait for the execution of the judgment of the Supreme Court, probably until the Constitutional Court makes a statement on the appeal of the “domestic builder”.

You can read the entire chronology of the delay, based on the exact data from the court file, in the first text at this link.

To put it simply, the Constitutional Court upheld the correctness of the Supreme Court’s judgment, which modified the lower-instance judgments by rejecting the plaintiff’s “domestic builder’s” claim in its entirety, all because of the incorrect application of substantive law.

Considering that we are making the epilogue of this “Corporate-Judicial Affair”, which was first published a year ago (November 2019), we are making the conclusion of the events coincidently on its anniversary.

In this final part, we would like to remind the esteemed readers of the importance of acting according to ethical principles, which the lower courts in Mostar did not adhere to, and unnecessarily caused a breach of confidence in the legal system of BiH. Acting according to the principles of ethics by its self excludes the possibility of entering the zones of corrupt behavior and all other negligent behaviors that have led to the judicial, as one of (three) highest instances of government being reduced to the worst possible level.

The failure of the judicial system to act according to ethical principles has triggered an avalanche of irregularities that the judiciary uses “holes in the law”, does not act on cases for years, does not act objectively and reasonably, acts arrogantly as if untouchable and puts itself in the function of “domestic builder” with the aim of unjustifiably appropriating several tens of millions of KM through unfounded lawsuits from the “international bank”.

Thus, in the first part of the series entitled “Judicial ineffectiveness in the service of individual unjust enrichment”, we cited a banal example of a neighbor who decides to file a lawsuit to appropriate a neighbor’s apartment and while the neighbor who owns the apartment finds the lawsuit ridiculous to say the least, the neighbor who filed a lawsuit in the end with the help of biased judges at the first and second instance level and got a neighbor’s apartment.

This so trivial example, at first glance ridiculous, described very well the judicial system in Mostar, which was deeply entangled in the dispute between the “international bank” and the “domestic builder”. The unraveling of the network and certain circumstances comes when we inform the public what is happening in the courts of Bosnia and Herzegovina and when we chronologically inform the public in stages, verified and accurately present the judges’ decisions and present the real state of our society, symbolically through the judiciary which should be a mirror of a democratic society.

According to the constitution, laws and international law, the state has an obligation to protect the rights and security of its citizens, i.e. to take all adequate measures to restore citizens’ trust in institutions (court, prosecutor’s office) and prevent continuous violations of rights by institutions that represent that right. Institutional reforms primarily mean activities to check professional capacity and moral integrity, with a special focus on employees in judicial institutions but also in public administration in general. The goal of this series of ours is to inform the public through a specific “case” about dangerous trends in the domestic judiciary that judges and prosecutors in BiH are increasingly concluding hidden “deals” with one party in the procedure in order to damage the other.

Considering that BiH legal principles and regulations essentially differ very little from modern European principles, we come to the conclusion that it is not a problem in legal norms, but in practice. Integrity and compatibility of treatment is a key shortcoming of our judicial system.

In the broadest sense, by publishing a “corporate-judicial series” we have tried to raise public awareness of institutions and their responsibility for institutional and responsible conduct that must be built on integrity and commitment to the highest ethical standards.

Our intention and focus in writing the series was to raise awareness in the field of an individual who reads our analyses with interest, seeks only verified and accurate information, is not inclined to make flat and superficial conclusions, enters into the essence of arguments and independently judges the presented facts.

In the eighth part, entitled “Deep justice phenomenon in the BiH judiciary!” and the following sentences listed in that part:

“The analysis shows that no single personnel change can solve the ‘deep justice’ phenomenon in BiH, but that the problem must be seen at the level of deeper causes.” … speaks in fact of our aspiration and need to point out the fact that the unethical nature of the judiciary does not live exclusively at the top of the HJPC, but that unprofessionalism, collusion and corrupt behavior in the judiciary are capillary at all levels. In this case, we have proven that the unprofessionalism of several individuals in lower courts can shake the already distorted image of the integrity of the rule of law.

We did not hesitate to hold the presidents of the courts accountable, as well as the High Judicial and Prosecutorial Council, all with one goal, to show the public that changes are possible if we responsibly present the case to the public using the principle that everything we write is absolutely accurate and verified. In BiH, judicial scandals are often talked about in a sensationalist way with a lot of unverified information, which further confuses the public and discourages the professional and general public.

We believe that we have succeeded in bringing the notion of corrupt behavior closer to the public and what the notion of corrupt behavior encompasses and how corrupt behavior itself has a basis in delaying proceedings in public services, courts and other institutions, which was specifically the case here.

Through the series ‘Corporate-Judicial Affair’, we have publicly pointed out the irregularities of judges and prosecutors, but always with absolute arguments. We have tried to bring closer to the public that every individual and holder of the judicial office should be aware of their important role in society and in building the trust and integrity of the judiciary.

Being a judge or prosecutor is an honor or at least it should be. Holders of judicial functions must be individually responsible to respect high ethical standards in their work and behavior, so we have individually and concisely elaborated the irregularities of those responsible through the series.

All BiH citizens have the right to an independent judiciary and guarantee of its integrity. It is essential that the citizens of a democratic society based on the principles of the rule of law have confidence in the entire judiciary as well as in each individual holder of judicial power.

The last sentence in the decision of the Constitutional Court reads: “Decisions of the Constitutional Court are final and binding.” We end this “Corporate-Judicial Affair” with a similar “message” and the desire that the judicial system will serve the public interest in accordance with the highest principles of ethics and professionalism!

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