A CORPORATE–JUDICIAL AFFAIR IN BiH part 5
In the first part of the series “A Corporate-judicial affair in BiH”, we published the text titled “Judicial ineffectiveness in service of individual unjust enrichment”. There we described how the Municipal court in Mostar and the judge presiding over the case have intentionally abused her discretionary autonomy, afforded to her by virtue of her position as the judge, to undertake an incredible scheme – they usurped the judicial competencies of the Supreme court of FBiH. They placed themselves in the role of a sovereign and above the Constitution.
In the second part of the series “A Corporate-judicial affair in BiH”, we published the text titled “DRAWER – a model of obstruction of the rule of law”, where we presented evidence in the form of a document signed by the judge presiding over the case, Nina Ratkušić. The document details violations of professional standards of judicial duty and unjustified delay of the process of counter-enforcement, thereby illegitimately favoring one, and damaging the other party.
The third part of the series was a text titled “Family ties”, which is included as an example of how the local builder used illegal court judgments to extort alleged damages in the amount of 1,070.000 BAM. The international bank paid the local builder’s damages, because the local court held that the bank was at fault because an alleged purchaser Ljerka Ostojić withdrew from her sale contract for commercial property 300m2 in size. We described how the local builder, after he unjustly enriched himself with the illegal court judgments, paid back the advance on the sale to Ljerka Ostojić. In turn, she either “purchased” or “received” two apartments in the same building, of joint value of 158.000 BAM. The price for these two apartments was allegedly paid out in cash, thus there is no paper trail nor bank transfers available as evidence. Besides all that, the local builder remained owner of the commercial real estate in question in the case, and the judge Majna Lovrić, who presided over the case is in familial relationship with Ljerka Ostojić.
The fourth part of the series “A corporate-judicial affair in BiH” we published the text titled “Birds of a feather stick together” where we presented the actions of the Prosecution in Livno, as well as the Office of the Disciplinary Prosecutor of the HJPC, in relation to the complaints filed by the international bank. We observed the same methodology of rejecting the complaints both in the criminal and in the disciplinary sector. The methodology is based on a technique we named “avoiding uncomfortable claims”. We also observed that the ODP unjustifiably delays the processing of the complaints. Its “silent phase” has lasted whole of 487 days. That is why we expressed doubt that the ODP will ever prosecute judge Nina Ratkušić for disciplinary violations, for unjustifiably delaying the counter-enforcement order for more than 400 days.
The entire timeline of the delays, based on precide data from judicial documents, can be found in the first text, here.
We will continue to refer to the parties in the case by pseudonyms to avoid marketing. We shall refer to the party that the Court in Mostar favors “local builder” and the party that the Court discriminates “the international bank”.
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In this, part five, we present the role of the Chief Disciplinary Prosecutor and the role of the Office of the Disciplinary Prosecutor of the High Judicial and Prosecutorial Council (HJPC) of BiH, and the way that Mrs. Alena Kurspahić Nadarević sees this role.
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For a long while now, the public in BiH has been aware of the problem of inadequate judiciary. Public disappointment is only made greater as the corruption scandals involving certain officials, including scandals involving top High Judicial and Prosecutorial Council officials, have become increasingly common place. On the one hand, the specific scandal involving top officials, was widely presented in the media, and it unearthed the fact that the judiciary in BiH is heavily infested. It exposed the roots of many social deviations – lack of credible justice system. On the other hand, this focus on one case may be misleading and cause misperception that the only problem in the judiciary in BiH is the leadership of HJPC.
The truth is that the problem goes much deeper. This disease has permeated the entire judiciary branch, not unlike the blood flowing through the veins and capillars of the human body. In this series of stories, we have elaborated in great detail the unprofessional behavior of judges, which ranges from those who more or less openly violate all rules in order to help unjustly enrich one party to a court case (local builder), and cause damage to the other party in the case (the international bank), to all the way to the judge presiding over the proceedings for counter-enforcement order, Nina Ratkušić. Judge Ratkušić is unjustifiably blocking the process for over 400 days, thus illegally preventing the damaged party from reclaiming at least part of its hijacked resources.
Photo Linked in: judge Nina Ratkušić:
This case presents an evident risk of corruption in the behavior of the Court in Mostar. Otherwise, a judge would not “risk his career” only to unjustly enrich one party in a case. But, the most frightening part about our reality is not that some judges are corrupt and they take bribes to hand down illegal verdicts. The most frightening part is that they risk almost no consequences for that behavior.
In well developed judicial systems in the west, corruption scandals occur as well. Often it is a case of a corrupt judge or maybe a prosecutor, who was able to keep his practice hidden for years. But, once exposed, the institutions in charge are ruthless in prosecuting the “bad apple”, to discipline and punish them for abuse of power, and to remove them from the judiciary, in order to prevent infection from spreading to other judges and prosecutors. In BiH, opposite is true. When irregularities by certain judges or prosecutors are discovered, their colleagues in the judicial community try hard to protect the same “bad apple”, not to discipline it.
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What is the role of the Office of the Disciplinary Prosecutor of the HJPC?
In order to identify how is it that there is no risk for judges or prosecutors when acting unprofessionally and illegally, we must first identify the institution in charge of oversight of their work and their compliance with professional regulations. Under the Law on HJPC, the Office of the Disciplinary Prosecutor is tasked with this responsibility.
On paper, the law, the rules of procedure, codes and other acts that define professional behavior of judges and prosecutors, translated from western countries, proscribe the same standards of professional behavior for judicial officials here as exist in Sweden, Denmark, German or France. Admittedly, laws and regulations can always be upgraded, but we can safely conclude that in this aspect of the rule of law, we are an advanced European country, with built in standards for avoiding conflict of interest, bribery, unprofessionalism, bias, etc.
It is a universal expectation that the judges and prosecutors are persons of high morals, educated in the spirit of obeying the law and upholding ethical standards of behavior, more fair and honest than the average citizen. Nonetheless, it is not realistic to allow the system to rely solely on conscientiousness of individuals for compliance. Therefore, mechanisms are created for discplinary prosecutions of those who act without honor in performing their official duties.
The Law on HJPC regulates disciplinary mechanisms. It creates the Office of the Disciplinary Prosecutor (ODP), independent in its work, in charge of investigating claims of disciplinary violations and proving claims in disciplinary complaints in front of the first-instance Disciplinary Committee of the Council. They also defend appeals with the second-instance Appellate Commission, which is also composed of the judges and prosecutors who are members of the HJPC.
Even though in the past we have witnessed situations that rendered Disciplinary Committees incredible, the fact remains that the ODP is the office in charge of initiating investigations. In other words, the Disciplinary Commitees get to see only those allegations that are pursued by the ODP. All this makes the Office of the Disciplinary Prosecutor the key actor in the efficacy of the judiciary in BiH. A well-run, professional and courageous Office of the Disciplinary Prosecutor should be the fear and fury of nightmares of the judicial officials with something to hide. Regardless of the scandals involving the leadership of HJPC, and the fact that they also influence decisions of the Disciplinary Committees, the ODP could be the force to be reckoned with, sending earthquakes through the unethical structures in the judiciary on a weekly basis. If only they conducted good investigations and good quality disciplinary prosecutions. Public in BiH would be thrilled with this approach, and the ODP would have their full support.
Unfortunately, as this series shows, the ODP did not rise to the occasion in this case. In fact, it was the ODP’s lack of initiative and continuous neglect that created the above-mentioned situation where judges and prosecutors have almost nothing to risk when they behave unprofessionally.
If the ODP is NOT doing its job, that must be the priority problem of the judiciary. It is unrealistic to expect that the judicial community promotes honor and ethics, when the institution in charge of guarding judicial ethics is not doing its job. We will analyse why this is so, by examining the views of the person in charge of the Office of the Disciplinary Prosecutor.
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Alena Kurspahić Nadarević, Chief disciplinary prosecutor, HJPC
Disciplinary judges are supposed to be experienced judges and prosecutors, with significant experience and credibility, with at least one term on the Supreme court; in other words, persons who would be authoritative in the eyes of the judicial community. However, the ODP is staffed mostly with young and insufficiently experienced persons. Experience is not the only requirement for success, because young age can bring with it a dose of positive arrogance and fearlessness. Much more disconcerting are the ODP staff’s incorrect views and lack of understanding of their role in the system.
The Chief Disciplinary Prosecutor Alena Kurspahić Nadarević revealed mistaken understanding of her own role, and that of the ODP, in upholding the judicial and prosecutorial ethics and professionalism. In only one sentence, she also described to a large extent the reason why BiH judiciary has never been in worse condition.
Namely, Net Consulting d.o.o., when analysing this case, determined that a series of ommissions occurred in the work of the disciplinary prosecutor who was in charge of the complaint. In the last text, we elaborated in greater detail on how the disciplinary prosecutor obstructs the complaint in two ways: a) with unjustified undue delays, and b) rejecting the complaint and avoiding claims that do not fit the decision.
We decided to report one of those ommissions, and filed a report electronically, by sending an email to: vstvprituzbe@pravosudje.ba on 18.11.2019. The email contained our findings on the ommissions in the work of the disciplinary prosecutor. Since nobody responded to our email in the first seven days, we decided to call them on the phone and ask if they had received the report, as well as an expected timeline for the response. The woman who answered the phone informed us that the report had arrived, and that the part of the report referencing judge Nina Ratkušić was joined with the existing case against the judge Nina Ratkušić, who has been delaying the counter-enforcement order for over 13 months.
After we inquired about the rest of the complaint, specifically the part that referred to unprofessionalism of the disciplinary prosecutor, the woman on the line expressed her suspicion that the Law even provided for a disciplinary process against the disciplinary prosecutor, and that such a possibility is not foreseen by the Law.
She then directed us to use our own best judgement in deciding on next steps.
We decided to ask Alena Kurspahić Nadarević directly, the Chief disciplinary prosecutor, in order to clarify the issue.
A representative of Net Consulting sent a new email on 28.11.2019. stating among other things, the following:
“I consider You as the Chief Disciplinary Prosecutor, accountable for the work of the Office as independent and objective in its work, and for the professionalism, efficacy and appropriate behavior of prosecutors and other staff. In line with that, you are the most qualified person in charge of removing irregularities in the Office. I do not wish to debate the legal possibility or impossibility that the Office of the Disciplinary Prosecutor holds disciplinary prosecutions against disciplinary prosecutors. In holding you accountable, I rely exclusively on provisions of other legal acts that regulate the organization and the work of the Office as independent and objective, as well as other general jurisdiction laws, as well as legal obligations of management to organize adequate and efficient work of the staff in question.
If you should consider it useful to get more detailed information about the ommissions by disciplinary prosecutors that we have identified, Net Consulting’s research team is hereby offering to visit your Office and present our findings to you. If you would like us to write a written report on our findings, then I would like to ask you to firstly let us know about the legal basis, and the procedure for filing complaints against disciplinary prosecutors for neglect and unprofessionalism.”
Contrary to our expectations that, as the person in charge, she would direct us toward correct procedure, Alena sent us a letter on 02.12.2019.. The letter included a sentence in which she, in a very hostile tone, rejects our offer to visit the Office to introduce her to our findings of irregularities in actions of disciplinary prosecutors.
Alena Kurspahić Nadarević: “With regard to the part of your email that refers to complaints about the actions of disciplinary prosecutors in the Office, you have at your disposal actions in accordance with legal requirements, which you have identified.”
In our domestic justice system, analysing someone’s sentences is not considered important, unlike in the west, where that is the key part of argumentation. The language used by judicial officials is assessed to determine intent, truthfulness, work ethic, attitude, openness and the overall philosophy informing that person’s approach to the public function. Net Consulting team is of the opinion that this sentence sums up all the problems of the domestic judiciary, because it reveals the tone of the Chief Disciplinary Prosecutor, and by definition also of the Office she runs.
Moreover, the fact that in the current system there is nobody else in charge of initiating disciplinary prosecutions against judges and prosecutors, it is clear as day why the ethics in judiciary are at a very low level.
Let us highlight few illogical parts of the sentence:
a) considering that Alena Kurpsahic Nadarevic, and not Net Consulting, is the Chief Disciplinary Prosecutor, we believe that the Office should have readily available legal provisions and procedures on complaints against disciplinary prosecutors. That is not the regular citizens’ job after all;
b) if we were correct in stating that it is the responsibility of the Office to act on complaints, it follows that the Office by default must be interested in learning about the complaints against their own disciplinary prosecutors;
c) considering that in this situation, Net Consulting is the source of information (whistle-blower, applicant) and we express our desire to share this knowledge with those who by the nature of their position, should be “interested” in receiving said knowledge. It would then follow that we are helping the Chief Disciplinary Prosecutor in her efforts to organize the work of the Office in the most efficient manner – by using the knowledge and information we possess;
d) as the party filing the report, we reasonably asked for the basis, for and the procedure for further action;
e) Alena Kurspahić Nadarević responded in an unclear and uninstructive manner when she writes that we have at our disposal an option to act in accordance with legal provisions. This does not answer our question, which was to direct us to the legal basis for the filing of the complaint, and to clarify next steps in the procedure;
f) Even if the procedure for complaints against disciplinary prosecutors was clarified in a brochure that the Office sends to applicants (and it is not), it was the obligation of Alena Kurspahić Nadarević, as the Chief of the Office, to proactively show interest in receiving the complaints, something that she could have expressed even in an email. In addition, in her role as the Chief ot the OPD, she should encourage potential complainants to come forward, as this is one of the most efficient ways to improve the work of the institution.
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Conclusion: Alena Kurspahić Nadarević’s response discourages potential complainants from filing a complaint against her colleagues. Even though it may seem human and understandable to protect her colleagues, the law does not protect collegiality at the expense of efficiency, professionalism or legal certainty.
If a person in her position sent this type of response in the US for example, this would result in the Chief Disciplinary Prosecutor immediately appearing for questioning in front of the Congress. She would be called to explain to the public whether she understands that her role is to prosecute judges and prosecutors for unethical omissions without compromise. She would have to demonstrate decisiveness in confronting everyone who is violating ethical standards of behavior, to convince the public of her fearlessness and her steadfastedness in service of public interest and ideals.
Our second attempt at getting more information about the basis for, and the procedure for action on complaints against disciplinary prosecutors, Alena Kurspahić Nadarević has decided to answer with silence. She has not responded so far.
End of part five.
*Net Consulting d.o.o. monitors and analyses business practices and processes, conflicting business relationships, administrative and judicial proceedings, and identifies irregularities that damage legitimate and legal business interests of clients. This text has been published with the consent of the damaged party in this case. Net Consulting d.o.o. has confirmed the veracity of all claims in the text by verifying the primary sources of documentation and other material evidence.
