A CORPORATE-JUDICIAL AFFAIR IN BiH part 2
In the first part of the “ A corporate-judiciary affair in BiH” series, we published a text named “Judicial ineffectiveness in the service of individual unjust enrichment”. There we wrote about how the Municipal court in Mostar and the judge that presided over the case abused their discretionary autonomy, afforded to them by virtue of their position as a judge to accomplish something seemingly impossible. Namely, they usurped the judicial competencies of the Supreme court of FBiH and positioned themselves above the Constitution. Then from that position, they decided on their own volition to issue a stay of the order of the Supreme court for counter-enforcement. These delays coincide with the appeal filing by the local builder with the Constitutional court.
The entire chronology of undue delays, based on exact data from judicial documents, can be found in the first text here.
In this, second part of the series, the parties involved will still be referred to in pseudonyms. So, the party favored by the Court in Mostar will be referred to as: the local builder, and the party discriminated by the Court: the international bank.
The text below will describe in detail one of numerous instances of obstruction of justice, of the type that permeates this case. As a side note, the practice we describe below is widespread in the BiH judiciary, it is known as the “Drawer” method. This (mal)practice is in essence an example of brutal and primitive manner of abuse of power and violations of judicial duties and ethical and legal standards.
Let’s remind ourselves, it has been 25 months since the Municipal court in Mostar began obstructing enforcement of the judgment of the Supreme court of the Federation of BiH with undue delays.
The Municipal and Cantonal courts in Mostar have in the past expressly reached decision for the local builder, in all stages of the court proceedings, breaking all records in the efficiency of decision-making. They even managed to reach an appellate decision with the second-instance court, issue and enforce the judgment, thereby illegally seizing several tens of millions of BAM from the international bank.
But, when the Supreme court of the Federation BIH overturned judgments of the Municipal and the Cantonal courts and held that the local builder must repay the illegally seized millions, the Municipal court began the undue delays and obstructions, preventing counter-enforcement order of the higher court. All in service of the interests of the local builder.
The judge presiding over the case has been instrumental to the malfeasance at hand, and has been systematically preventing any kind of court hearings on this matter. As evidence of our claim, below is a letter from the judge which explains the situation perfectly in only a few sentences. The same text is also indicative of the level of awareness of her responsibilities toward the official duty in the judicial community in BiH.
At this point, we would like to present to our readers this evidence for their own examination. The contents of this document would, in some “normal” democratic states, be sufficient evidence for the office of public prosecutor and the disciplinary committee of the VSTV to initiate investigations of their own, each within its own jurisdiction.
We already presented the chronology of events in the first text, in order to analyse this piece of communication, we will first list the facts as admitted by the court as undisputed.
Undisputed facts:
1. It is clear that the decision on counter-enforcement in favor of the international bank was issued on 12.10.2018.
2. The local builder filed an appeal to the decision on counter-enforcement with the court on 24.10.2018.
3. It is evident that the judge dated the communication 19.07.2019, and the attorney’s office representing the international bank received the communication on 24.07.2019;
4. It is also clear that a whole 268 days passed between the date that the court received the appeal of the local builder and the date that the judge sent the notice of the appeal to the international bank.
5. The communication also clearly reveals that, in addition to having obstructed due process and unduly delayed the case for 268 days, the judge allows the international bank 3 days to respond to the appeal by the local builder. On its own, this deadline is legitimate, and legally permitted. However, the short deadline speaks more to the manner in which the enforcement procedure was to be executed, in other words, its urgency.
Additional fact number 1: In the first text we already clarified that the international bank saw the appeal by the local builder in the CMS system immediately after it was filed on 24.10.2018. They proactively submitted their response on 01.11.2018, in order to speed up the process and not waste any more time than the two days that it takes for the letter to be sent in mail. Despite this, and after 268 days of undue delay, the judge presiding over the case, sends the presented letter requesting the same document, which she already had in files and in the electronic CMS system.
Additional fact number 2: The team and Net Consulting studied the appeal of the local builder and his lawyers and concluded that there is a great amount of false information and disconnected arguments in the complaint, completely irrelevant for the case at hand. The incomprehensible and unreasonable argumentation is additional proof of the delay strategy by the judge who waited 268 days to merely send the complaint to the international bank.
Moreover, the moment she chose to finally send the complaint to the international bank also is indicative of the delay strategy. It was sent shortly before collective vacations of the court, and possibly even the lawyers of the international bank, which would make it even less likely that the information about the appeal would get delivered to the right person in time.
Analysis of the letter:
In only one sentence of her own admission, the judge presiding over the case sums up all of the banality of the approach taken to obstruct justice in this case:
a) “someone ordered me or I arranged with someone to delay sending the complaint for 268 days without justification?”
b) Because the Municipal and Cantonal court in Mostar previously, by issuing illegal verdicts, which were later overturned by the Supreme court of the FBIH, damaged the international bank for several tens of millions of BAM, the Municipal court now would have to, because of feelings of own shame and embarrassment, prioritize the process of counter-enforcement in this case. This way it would at least not continue being complicit in the enlargement of the damages suffered by the international bank because of its incorrect judgments.
c) Contrary to the elementary principles of fairness, the court, without any feeling of shame of guilt, decided to prevent counter-enforcement by any means, and thereby break the law again.
d) Is it more reasonable to think that the judge does not decide the complaint for so many months because she does not know her duties as a judge, or because she is just too busy, so she cannot get to all the cases, or because someone ordered her, or because someone blackmailed her, or because there is some form of corruption in the background of this undue delay?
e) Until the institutions in charge like the Office of the Disciplinary Prosecutor (ODP) of the HJCP and others in charge examine the background of these obstructions, the public will be left with nothing but to guess the reasons. Regardless which options is true, evidence abounds proving undignified performance of judicial profession. In some, normal countries, that qualifies for a prison sentence.
f) A “normal” mind finds it difficult to even imagine what goes on in the mind of the judge who sends a letter of request for a document 268 days too late, and asks something that she had already received 9 months prior. It is even more difficult to understand the depth of the abyss in which our domestic judiciary currently finds itself. The same judge, after receiving the response the second time, continued her silence for 121 more days, or until this text was published. (26.11.2019.)
g) The total number of days that the case documentation was in the presiding judge’s drawer is: 268 +121 = 389 days of doing absolutely nothing in this matter. In other words, this is another example of how a simple and banal action of hiding case files in the drawer can obstruct the functioning of the democratic state institutions. It is understandable therefore, that the extent of the abuse of power in this case may be unimaginable to lawyers in functioning states. It must indeed be difficult to imagine that a Supreme court’s judgment is obstructed solely by means of a lower court’s judge’s own volition, fully discretionary and not argued adequately.
Expectations:
We concluded based on numerous reactions and letters from our readers, that there is a great level of interest in the story on the part of expert public and the judicial community. That is why we decided to continue with the third part of the series, with additional facts. We will publish it in seven days, on 03.12.2019.
End of part two.
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.
