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JUDICIAL ACTS OUT OF THE PUBLIC EYE (CJA: part 12)

Net Consulting Sarajevo stopped one of the biggest abuses and risks of corrupt behavior in the judicial community in Bosnia and Herzegovina by writing a series of articles titled “Corporate – Judicial Affair”. Shortly afterward, a Mostar judge (Ms. Nina Ratkušić) tried to justify a year of reluctance through a defamation lawsuit against Net Consulting by “calling out” her fellow judges and associates.

In the “Corporate – Judicial Affair”, which contains ten texts based on material evidence, Ratkušić is listed as a judge who took over the subject of execution worth tens of millions of KM and “kept it in a drawer” for more than 13 months, regardless of the urgency of the action. 

Through the texts of the “Corporate – Judicial Affair”, the case of execution was resolved by replacing Judge Ratkušić, against whom the Office of the Disciplinary Prosecutor of the High Judicial and Prosecutorial Council (HJPC) initiated disciplinary proceedings for negligence in performing official duties (Article 56, item eight of the Law on the HJPC), based on a disciplinary report filed by Net Consulting. The report and texts point, among other things, to unethical behavior that has led or may lead to corrupt behavior in the Mostar Municipal Court, which must first be fought by judicial institutions within their ranks in order to build an independent judiciary as one of the basic foundations of a state. 

In a defamation lawsuit against Net Consulting and four employees, worth 10,000 KM, Judge Ratkusic insisted that “false” content had been presented and that she had been harmed as a public figure.

In response to the lawsuit, we will deal with “untrue” allegations, but what is more interesting is how Judge Ratkušić reveals the actions of colleagues from the Municipal Court in Mostar, which we would never know if she was not trying to justify herself, which shows intentional or unintentional incompetence of employees in judicial institutions and reveals the image of a “sluggish” judiciary.

In her lawsuit, Judge Nina Ratkušić reveals the piquancy of the Court: “The case file was assigned contrary to Articles 8 and 9 of the Rules because it was not a systemic assignment or an assignment based on a decision recorded in the CMS, especially the fact that the judge Ognjenka Škoro, who was assigned the case and was otherwise assigned to the criminal department, and executive documents were submitted to this department to supplement the norm, so she on October 30, 2018, on the verbal order of the president of the court, Divna Bošnjak, issued an order to resign the case to one of the judges from the non-litigation department, which resolves this type of proceedings ”.

Interpreting the above, we immediately come to the problem because the subject of the counter-enforcement is with the criminal judge, Ognjenka Škoro, in order to fulfill the norm. Enforcement / counter-enforcement simply means making a decision on the collection of claims. The guiltiness for which a prison sentence can be imposed in the legal sense is much more complex and refers to a wide range from abuse of position to acts with the death consequence. According to Ratkušić, Judge Škoro does not have enough cases of guiltiness, so the cases of debt collection are being transferred to her. The question is whether the Rulebook for automatic case management in courts (hereinafter the Rulebook), which aims to ensure a uniform and correct way of acting in the CMS by all users in accordance with their respective roles, has already been violated.

“WHY ME”

Although she works in the non-litigation department, it is not clear to Judge Ratkušić why the case was assigned to her: “How the court president transferred this file to the prosecutor remains unclear, except for the fact that criminal proceedings were conducted against previous judges, and with the aim of producing identical consequences towards the plaintiff, towards whom she has developed animosity, may be the only acceptable reason ”.

From the whole explanation, the question arises why the judge is looking for reasons why she was assigned the subject of execution and in the department in charge of that phase of the procedure (execution / counter-execution). Ratkušić's argument that the case was assigned to her because of the animosity of the President of the Court, with the conspiracy theory to “place” disciplinary and / or criminal proceedings on her, is not worthy of the dignity of a judge. Judge Ratkušić would have to provide evidence that she had timely filed a complaint against the President of the Court for animosity if she wanted the public to believe in these claims.

If her previous colleagues who worked on the dispute between the two sides, which we called the “international bank” and the “local builder”, acted outside legal procedures, violated the ethical standards of the honorable judicial profession and were at risk of corrupt behavior, then they are conducted not only by disciplinary but also by criminal proceedings because only in that way can we have an independent judiciary.

Judges should work in accordance with the law and in the prescribed deadlines on the cases assigned to them, but also be aware of their role in society and building trust in the judiciary and its integrity. Being a judge is an honor and not just a job. Fear of possible criminal or disciplinary proceedings must not interfere with judges doing their job. If it is done in accordance with the law and the prescribed deadlines, at least judges and prosecutors should know that, so that they are sure of their arguments.

Furthermore, if we accept Judge Ratkušić's claim that President Bošnjak violated the Rules, and as a result, we finally have that the subject of counter-enforcement “wanders” to the non-litigation department, i.e. the executive report, can be interpreted as a way to correct previously made mistakes.

When the case of counter-enforcement “wanders to the right hands” on October 31, 2018, when Judge Ratkušić states that she was assigned the case, it is questionable why she will not take any credible legal action in the coming months.

Ratkušić states as an explanation in the defamation lawsuit: “It is only on April 25, 2019, by the order of the expert associate Vladislav Lukić, that the objection to the decision on counter-enforcement to the phase for which the plaintiff is in charge was submitted, after half a year from the assignment of the said file, even though the said objection was lodged much earlier in the file phase assigned to the expert associate ”.

If we accept the claim that Lukić “retains” the objection for more than half a year, we justifiably wonder why the judge's actions depend on the will of the expert associate. According to the hierarchy, the judge is above the expert associate, but even if we ignore that, it would be somehow logical that when you borrow a file at a certain stage, you ask your colleagues who acted earlier if there are any other objections. If you don't already do that, then it is not clear why you do not take legal action in accordance with what you have in the file, but wait half a year and then blame the expert associate. In the end, we have no explanation as to whether Judge Ratkušić requested the sanctioning of associate Lukić because he endangered her work and also contributed to causing damage to the parties in the proceedings.

As a further explanation for the inaction, Judge Ratkušić states that there are several submissions in the CMS, which do not have the title of appeal, complaint, and the like, except that the comment states that it is a complaint of a third party.

In the evidence on the “list of files” in the short description, the objections are marked as submissions and are related to the names of lawyers representing the parties in the proceedings or third parties, which supports Ratkušić's claim that they do not have a title or complaint. But it also does not diminish the responsibility for the judge not to show interest and see what a document called a submission refers to and is in the case in which she is in charge.

TRADITIONAL NON-ACTION

Although the judge finally has objections and is aware when she took the case (October 31, 2018), the question arises as to why she is continuing the tradition of inaction.

In the period when Lukić submitted the complaint of a third party from April 25 to mid-June 2019, Judge Ratkušić stated that she changed the case records several times and called for bringing them to work, but this did not happen for reasons unknown to her.

Following these findings, it would be justified to ask whether the judges work is being obstructed in Municipal Court in Mostar and why she did not report it to the authorities in order to be sanctions.

However, since Judge Ratkušić did not report the possible obstruction of work to the authorities and did not take action to resolve the counter-enforcement case for more than a year, it can be reasonably concluded that it did not bother her during the obstruction of the case, but only when the DPO (Disciplinary Prosecutors Office) filed a lawsuit against her. The consequence of all this is enormous damage on one side in the proceedings, but also a disturbed overall picture of the judiciary in Bosnia and Herzegovina in terms of the efficiency of resolving cases.

Judge Ratkušić's inaction, as well as the allegations she makes in her defense, will be declared by the disciplinary commission regarding the procedure initiated by the DPO upon Net Consulting's report, so it is meaningless that the judge tries to address her inaction and unprofessionalism to Net Consulting. 

It is reasonable to assume that the above actions in the Municipal Court in Mostar were performed with the intention of delaying the procedure in favor of the party that should reimburse the multimillion amount because previously the same court acted much faster.

Delays in the procedure, whether intentional or not, run the risk of corrupt behavior. Any behavior of a public official who without good reason delays procedures or invents new excuses for some action or inaction is corrupt behavior and is defined in the Anti-Corruption Strategy, as well as Integrity Plans adopted by all judicial institutions.

Given all the above, as well as all texts written as part of the Corporate – Judicial Affair, we can be guided by the principle of “The court knows the law” (Iura novit curia), but judges in the Municipal Court in Mostar do not have time to apply it.

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