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IV. Staffing and Specialization of Judges and Prosecutors

Inadequate numbers of prosecutors, judges, and support staff, as well as a lack of specialization among judges and prosecutors, pose a barrier to addressing the large number of existing complaints for crimes under international law in Bosnia.

A. Staffing needs for judges

At present, the shortage of judges, though real, is not as severe as the shortage of prosecutors. In Mostar, court staff said that the number of judges dealing with war crimes, crimes against humanity, or genocide cases in that court was being reduced from three to two due to a decrease in these cases and that this number of judges was adequate.66 Others, however, including the High Judicial and Prosecutorial Council (HJPC), the body charged with assessing the needs and proposing the numbers of staff at courts and prosecutors’ offices,67 have recognized that the entity courts employ an insufficient number of judges to deal with the current caseload of war crimes and other international law cases.68 It is also important to bear in mind that any increase in the rate at which these cases are brought to trial, whether due to an increased number of prosecutors or otherwise, will make the effects of the shortage of judges more severe.

The solution to the shortage of judges proposed by the HJPC and the former IJC69 is the appointment of “reserve” or temporary judges, rather than a permanent increase in the number of serving judges.70 This system will make it easier to reduce the number of judges at a later date if the backlog of cases is reduced significantly. Some court personnel, however, expressed skepticism about this approach.71 One prosecutor, who also serves on the HJPC, noted that the number of judges needed in Bosnia was determined with reference to other European countries but argued that given the unique challenges faced by Bosnia, such as the backlog of cases related to the war, practices in other European countries may be of limited comparative value.72 Temporary judicial appointments could potentially also raise concerns regarding judicial independence.73 Additionally, cases for crimes under international law touch on specialized areas of law that may require additional specialized training to which reserve judges may not have had access.

Practical difficulties, such as bureaucratic delays surrounding budgeting and funding in entity and cantonal governments, also impede the provision of adequate numbers of reserve judges. In the district court in East Sarajevo, court staff stated that the court had been waiting two years for a reserve judge who had been approved but not yet funded to serve a six-month term.74 As the pace of prosecutions of crimes committed during the war will likely increase in coming years, it is important that the courts be sufficiently staffed with judges to efficiently deal with the increased caseload.

B. Staffing shortages in prosecutors’ offices

The HJPC has concluded that the staffing levels of prosecutor’s offices, as well as the technical facilities and level of specialization and expertise, are inadequate to handle the current number of cases for crimes under international law.75 The shortage of qualified prosecutors is an urgent problem since it is prosecutors who bear responsibility for the investigations of cases, in addition to trials.76

Nearly all prosecutors who spoke with Human Rights Watch told of being short-staffed and of the difficulty of attracting new prosecutors.77 Recent changes can account for some of this shortage. One prosecutor stated that qualified staff were lost to the State Court upon its creation.78 Prosecutors are no longer reimbursed for travel expenses, a problem for retaining staff where prosecutors must, at times, commute long distances to work in areas where there are no qualified staff available locally.79 In any event, it has been difficult in Bosnia since the war to recruit, train, and fund sufficient numbers of prosecutors to handle the country’s large backlog of cases. Staff working on training say that more steps need to be taken to train young lawyers to become prosecutors and to entice them to enter the field.80

Beyond the overall shortage of prosecutors, there are very few prosecutors specializing in war crimes, crimes against humanity, or genocide and almost none who work exclusively on these cases.81 Trials for these crimes demand expertise in international law, including the Geneva Conventions, customary international law, human rights treaties, and the jurisprudence of international and hybrid tribunals. In addition, the investigation of these crimes, especially those that occurred years ago, requires specialized skills and knowledge. While it is true that prosecutors’ offices also handle a large number of other types of important cases, it would be extremely beneficial for prosecutors working on cases involving crimes under international law to be able to specialize in this type of case, particularly because of the large number of such cases.

Compounding the inadequate number of prosecutors is the near universal lack of support staff within prosecutors’ offices. The District Prosecutor’s Office in Banja Luka, for example, employs 35 prosecutors to deal with a territory of over half a million people, with no trainees or assistants.82 Only one cantonal or district prosecutor of the ten with whom Human Rights Watch spoke has the assistance of an associate, and that associate’s time is shared with other prosecutors.83 The result of this shortage is that prosecutors are forced to do nearly every aspect of cases personally, from interviewing witnesses, to drafting submissions, to routine administrative tasks.84 Prosecutors’ heavy workloads were cited as a reason why prosecutors often urge the transfer of cases theoretically under the jurisdiction of the cantonal and district courts to the State Court.85



66 Human Rights Watch interview with staff of the Mostar Cantonal Court, Mostar, December 17, 2007.

67 Law on High Judicial and Prosecutorial Council, http://www.ohr.int/ohr-dept/legal/oth-legist/doc/LAW-ON-HIGH-JUDICIAL-AND-PROSECUTORIAL-COUNCIL-OF-BH.doc (accessed February 29, 2008), art. 17(12).

68 High Judicial and Prosecutorial Council, “Capability Assessment Analysis of the Prosecutors’ Offices, Courts and Police Bodies in BiH for Processing War Crimes Cases,” June 2006, pp. 18-19.

69 See note 48.

70 American Bar Association, “Judicial Reform Index for Bosnia and Herzegovina, Volume II,” February 2006, p. 52.

71 Human Rights Watch interview with staff of the Ministry of Justice of Republika Srpksa, Banja Luka, December 14, 2007; Human Rights Watch interview with staff of the District Court of East Sarajevo, East Sarajevo, December 6, 2007.

72 Human Rights Watch interview with staff of the Prosecutor’s Office of Federation BiH, Sarajevo, December 7, 2007.

73 The European Court of Human Rights has held that factors to be weighed in assessing the independence of tribunals under article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms include “the manner of appointment of its members and their term in office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.” Findlay v. the United Kingdom, judgment of February 25, 1997, Reports 1997-I, available at www.echr.coe.int, para. 73. The European Court offers no firm guidelines as to acceptable length of appointment but has in at least one case viewed skeptically a term of four years for judges. Incal v. Turkey, judgment of June 9, 1998, Reports of Judgments and Decisions 1998-IV, available at www.echr.coe.int, para. 68.

74 Human Rights Watch interview with staff of the District Court of East Sarajevo, East Sarajevo, December 6, 2007.

75 High Judicial and Prosecutorial Council, “Capability Assessment,” pp. 18-19.

76 Human Rights Watch interview with staff of the Mostar Cantonal Court, Mostar, December 17, 2007.

77 Human Rights Watch interviews with staff of the Prosecutor’s Office of Republika Srpska, Banja Luka, December 14, 2007; Human Rights Watch interviews with staff of the Banja Luka District Prosecutor’s Office, Banja Luka, December 13, 2007; Human Rights Watch interviews with staff of the Prosecutor’s Office of Federation BiH, Sarajevo, December 7, 2007; Human Rights Watch interviews with staff of the Bijeljina District Prosecutor’s Office, Bijeljina, December 10, 2007; Human Rights Watch interviews with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the Mostar Canton Prosecutor’s Office, Mostar, December 17, 2007.

78 Human Rights Watch interview with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007.

79 Human Rights Watch interview with staff of the Centre for Judicial and Prosecutorial Training of Federation BiH, December 6, 2007; American Bar Association, “Judicial Reform Index,” February 2006, p. 31.

80 Human Rights Watch interview with staff of the Centre for Judicial and Prosecutorial Training of Federation BiH, December 6, 2007.

81 In the Federation, there are between two and five prosecutors within the war crimes division of each of the cantonal prosecutors’ offices. The number of specialized prosecutors is higher in busier cantons, such as Tuzla, where there are five war crimes prosecutors, and Sarajevo and Mostar, where there are four and three, respectively. These prosecutors also work on other types of cases, depending on their caseloads. In Republika Srpska, there are three war crimes prosecutors in Trebinje, three in Doboj, two in Bijeljina, one in East Sarajevo, and one in Banja Luka. Of these in Republika Srpska, only the prosecutor in Banja Luka works exclusively on war crimes. Human Rights Watch interviews with staff of the Tuzla Canton Prosecutor’s Office, Tuzla, December 11, 2007; Human Rights Watch interviews with staff of the Bijeljina District Prosecutor’s Office, Bijeljina, December 12, 2007; Human Rights Watch interviews with staff of the Sarajevo Canton Prosecutor’s Office, Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007; Human Rights Watch interviews with staff of the Mostar Canton Prosecutor’s Office, Mostar, December 17, 2007; Human Rights Watch e-mail correspondence from staff of the Office of the Chief Prosecutor of Republika Srpska, March 25, 2008; Human Rights Watch telephone interview with staff of the Prosecutor’s Office of Federation BiH, May 9, 2008.

82 Human Rights Watch interview with staff of the Prosecutor’s Office of Republika Srpska, Banja Luka, December 14, 2007.

83 Human Rights Watch interview with staff of the East Sarajevo District Prosecutor’s Office, East Sarajevo, December 21, 2007.

84 Human Rights Watch interview with staff of the Prosecutor’s Office of Republika Srpska, Banja Luka, December 14, 2007.

85 Human Rights Watch interview with staff of the Court of BiH, Sarajevo,December 21, 2007; Human Rights Watch telephone interview with staff of the Special Department for War Crimes of the Prosecutor’s Office of BiH, April 1, 2008.


July 2008

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