OVERVIEW OF THE REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA

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3 OVERVIEW OF THE REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA

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5 TABLE OF CONTENTS Foreword by the Chairman of the Working Group on the Reform of Judicial Salaries - January PART I Report of the Chairman of the Working Group on the Reform of Judicial Salaries - June Introduction Laws on Judicial Salaries of Measures taken post the adoption of the Laws on Judicial Salaries of Recent developments Current Method of Calculating Judicial/Prosecutorial Salaries Method of calculation in the Entities Method of calculation at the level of BiH Method of calculation applied by the Constitutional Court of BiH Method of calculation in Brcko District Judicial/Prosecutorial versus General Salary Increases since Judicial/Prosecutorial salary increases at Entity level Salary increases in Brcko District Salary increases at the level of BiH Non Judicial Staff Salaries in the Entities Consequences of the current salary structure Many courts and prosecutors offices accrued significant debts BiH is not in line with European Best Practice Investment has not been made in other areas Salary differences within courts and prosecutors offices Lack of funds for operational expenses Significant events leading up to and since the introduction of the 2000 salary laws Peace Implementation Council Statements Elimination of supplemental benefits for judges and prosecutors Constitutional Protection of judges and prosecutors remuneration Freeze of judicial salaries Constitutional amendments a prerequisite to the reform of judicial salaries Drafts of New Laws Prepared by the Working Group Salary levels and compensation for years of experience Future increases in salaries Duties, rights and entitlements of judges and prosecutors... 45

6 Table of Contents ANNEXES TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES Annex 1 Letter from the High Representative dated 25 January 2005 establishing the Working Group on the Reform of Judicial Salaries Annex 2 Conclusions of the Working Group on Reform of Salaries for Judges and Prosecutors in Bosnia and Herzegovina Annex 3 Proposed legislation prepared by the Working Group on Judicial Salaries at BiH and Entity level and in Brcko District Annex 4 Chart comparing salaries of judges and prosecutors with non-judicial staff salaries in courts and prosecutors offices Annex 5 Graph showing the budget allocations for courts and prosecutors offices in each canton and the RS for 2005 together with the budget allocation recommended by the HJPC. The graph also shows the accumulated debt of each district/canton Annex 6 Charts and graphs showing comparative data on judicial salaries in 38 countries Annex 7 Legislation in force in relation to judicial salaries at the time of the establishment of the Working Group Annex 8 Amendments to the legislation referred to in the Annex Annex 9 Decision of the Constitutional Court of the Federation of Bosnia and Herzegovina Annex 10 Decisions of the High Representative freezing judicial salaries in Annex 11 Chart showing the cost reductions which would be generated by the reform proposed by the Working Group Annex 12 Chart showing the cost reductions generated by the elimination of certain benefits for judges and prosecutors PART II Constitutional amendments and legislation imposed by the High Representative, December Section 1 Decision Enacting amendments to the Constitution of the Republika Srpska Section 2 Decision Enacting amendments to the Constitution of the Federation of Bosnia and Herzegovina Section 3 Law on salaries and other compensations in judicial institutions at the level of Bosnia and Herzegovina Section 4 Law on salaries and other compensations for judges and prosecutors in the Republika Srpska Section 5 Law on salaries and other compensations for judges and prosecutors in the Federation of Bosnia and Herzegovina Section 6 Law on salaries and other compensations for judges and prosecutors in the District of Brcko PART III Constitutional challenge before BiH Constitutional Court Annex 1 Request for review of constitutionality - Chair of BiH Presidency, mr. Ivo Miro Jovic Annex 2 Request for review of constitutionality - Member of BiH Presidency, mr. Sulejman Tihic Annex 3 The Opinion of the Office of High Representative

7 Foreword by the Chairman of the Working Group on the Reform of Salaries of Judges and Prosecutors 1. Introduction In January, 2005 I was asked by the High Representative to Bosnia and Herzegovina at that time, Lord Paddy Ashdown, to chair the Working Group which was established to make recommendations on the reform of the salaries of judges and prosecutors. The Working Group was given quite considerable freedom to draft amendments to the laws which were in force but it was, however, constrained by the High Representative in some very important respects. In particular, the High Representative requested that: The working group should keep in mind that the final draft of these laws must reduce judicial salaries, which are several times as great as any other comparable civil servant salaries in BiH. In 2004, salaries for civil servants will be reduced by ten percent; judges and prosecutors should not be exempt from this process. Additionally, the overall yearly savings in the working group s final draft must be at least the same amount of savings as achieved in the proposed drafts.1 I leave it to the discretion of the working group to determine the individual salaries. 2 In December, 2004 the High Representative had put a freeze 3 on judicial salaries until such time as the laws could be amended and it was in this context that the Working Group took on the task of recommending an appropriate solution to the problem which had been identified by the Independent Judicial Commission (IJC) and which had been highlighted to the High Representative for some time, before he decided to establish the aforementioned Working Group. In June, 2005 the Working Group presented to the High Representative a draft report with its observations and conclusions with respect to the laws regulating judicial salaries which were in force at the time. The Working Group also drafted four laws - one for each of the Entities, one at the level of Bosnia and Herzegovina and one for Brcko District. The principles on which these laws were drafted were, as follows: - If salaries were to be reduced they should not be reduced dramatically at any level; - Salaries should be harmonized between the Entities; - There should be an internal logic between salaries at the various levels (e.g. judge, head of department, president - first, second and third instance); - A majority of the Working Group members proposed that the new salary levels should not be increased until such time as the economic situation in BiH improved. In fact, the laws proposed by the Working Group suggested that salaries should not be increased until such time as the average net salary in BiH reached 800 KM; - A majority of the Working Group also recommended that the benefits payable to judges and prosecutors should be limited to anniversary awards, severance pay on retirement and a holiday bonus. A more detailed description of the conclusions of the Working Group together with the draft laws are attached as Annex 2 and Annex 3 to Part I of this publication - the Report of the Chairman of the Working Group June These proposed drafts are draft laws which had been prepared by the Independent Judicial Commission (IJC). These drafts were reviewed by the working group but, for the most part, a different solution was recommended. 2 See pages of this Report. 3 See pages of this Report. 5

8 Foreword 2. Independence of the Judiciary and the Remuneration of Judges and Prosecutors The Council of Europe in its publication entitled Independence, Efficiency and Role of Judges, 4 provides, as follows: The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles, for example by inserting specific provisions in the constitutions or other legislation or incorporating the provisions of this recommendation in internal law. Subject to the legal traditions of each state, such rules may provide, for instance, for the following ii. The terms of office of judges and their remuneration should be guaranteed by law Article 6.1 of the European Charter on the Statute for Judges provides, as follows: Judges exercising judicial functions in a professional capacity are entitled to remuneration, the level of which is fixed so as to shield them from pressures aimed at influencing their decisions and more generally their behavior within their jurisdiction, thereby impairing their independence and impartiality. The Council of Europe in its Recommendation of the Committee of Ministers to Member States on the Role of Public Prosecution in the Criminal Justice System 5 provides at Section 5.d thereof, as follows: States should take measures to ensure that: d. public prosecutors have reasonable conditions of service such as, remuneration, tenure and pension commensurate with their crucial role as well as an appropriate age of retirement and that these conditions are governed by law. Section 14 the following is stated: In countries where the public prosecution is independent of the government, the state should take effective measures to guarantee that the nature and scope of independence of the public prosecution is established by law. We can conclude from these extracts that the principle of independence needs to be enshrined in the legal architecture of each state. We will see below that the principle of independence is enshrined in the Entity Constitutions but not in the Constitution at the level of Bosnia and Herzegovina. We can also conclude that independence is closely intertwined with adequately remunerating judges and prosecutors and with ensuring that such remuneration is not subject to interference. The remuneration of judges (not prosecutors) is safeguarded in the Entity constitutions but not in the Constitution at the level of Bosnia and Herzegovina. The fact that judicial independence is so closely linked to the remuneration of judges and prosecutors was recognized by the Peace Implementation Council as far back as 1998 and it was their statements in their declaration of 1998 which led to the adoption of the following laws in 2000:6 - Law on Courts and Judicial Service of the RS; - Law on Public Prosecutors Offices of the RS; - Law on Judicial Service of the Federation. The relevant extracts from these laws are included in Annex 7 of Part I of this publication. Unfortunately these laws were drafted in such a way that the structure of judicial salaries became divorced from that of ordinary civil servants and, in addition, in such a way that an unacceptably wide chasm developed between judicial salaries and those of ordinary citizens. The methods for calculating judicial salaries are outlined in more detail in chapter 2 of the report which is included in Part I of this publication. 4 Recommendation No. R (94) 12 adopted by the Committee of Ministers of the Council of Europe on 13 October Recommendation Rec (2000) 19 adopted by the Committee of Ministers on 6 October, 2000 at the 724 th meeting of the Ministers Deputies. 6 See page 35 of this Report. 6

9 In general terms, however, judges and prosecutors received an unprecedented one time increase as a result of the adoption of the aforementioned laws in For example, third instance judges in the RS received an increase of 450%. Thereafter, in the years following the one time increase, salaries for judges and prosecutors continued to grow by approximately 7-8% per year on average. This led to a situation which was divorced from the reality of the economic situation in Bosnia and Herzegovina and one which I believe could not have been properly anticipated by the drafters of the laws of In order to keep the salary levels under control the Working Group recommended (as mentioned above) (a) that salaries be reduced so as, inter alia, to harmonise salaries between the Entities and (b) that salaries should be fixed at a certain level until such time as the average salary in BiH reached the level of 800 KM. This recommendation meant, however, that something would have to be done about the constitutional protection of judges salaries in the Entities. The High Representative resolved this problem through imposing changes to the Entity Constitutions at the same time as he imposed the salary laws in December, In particular, the High Representative imposed an amendment to each Entity Constitution whereby the salaries of judges could be reduced once (and only once) before 10 January, This meant that each of the Entity salary laws could be imposed and that thereafter no additional reduction of salaries would be tolerated from a constitutional perspective. 3. Outline of this publication This publication is divided into 3 parts. Part I of this publication is the Report of the Chairman of the Working Group of June It is worthy of note that this report was first published in June, 2005 and, therefore, not all of the facts are completely up to date. The Report of the Chairman is divided into seven chapters. Chapter 1 gives an outline of the laws on judicial salaries of 2000 of the Entities and the measures taken post the adoption of the 2000 laws. Chapter 2 gives details of the manner in which salaries were calculated under the 2000 laws and the other regulations which were in force at other levels. Chapter 3 outlines the actual salary increases for judges and prosecutors since the introduction of the 2000 laws until the freeze on salaries imposed by the High Representative in 2004 and Chapter 4 compares these salaries with those received by non-judicial staff in courts and prosecutors offices during the same period. Chapter 5 describes the consequences of the salary structure outlined in the 2000 laws and Chapter 6 outlines some of the important events leading up to the introduction of the 2000 laws. Finally, Chapter 7 provides a narrative on the draft laws proposed by the Working Group in June, The key findings of the aforementioned report were, as follows: - Since the initial dramatic increase in judicial salaries in 2000 salaries of judges and prosecutors increased by a staggering 41-44% from 2000 to The real salary increase for judges and prosecutors since the introduction of the 2000 salary laws ranged from 5.6 to 9.92 times more than the real average salary increase of citizens of BiH. - The methods of calculating judicial salaries under the laws of 2000 were extremely complicated and completely non-transparent. This made it difficult to assess how much judges and prosecutors earned but it also made it difficult to budget for the judiciary from year to year. - The difference between the salaries of judicial and non-judicial staff was excessive and did not promote a spirit of collaboration in courts and prosecutors offices. For example, a municipal court judge in Gorazde in June 2005 earned 2,735 KM whereas the maximum salary of non-judicial staff in that court was 451 KM. - The accumulated debts of the courts, although they decreased from , remained at a staggering level in At the end of 2004 they were in excess of 16 million KM and some courts continued to have their services discontinued/disconnected as a result of their failure to pay their bills. Some courts which had eliminated their debts as at the end of 2004 were, in June 2005, incurring new debts and they were under threat again in terms of discontinuation of vital services. 7

10 Foreword - The salaries paid to judges and prosecutors in BiH were out of line in terms of European practice. France, which in June 2005 had a national annual average gross salary approximately 4 times higher than that of BiH paid less to its judges who were at the beginning of their careers than BiH did. Given the financial reality in BiH in June 2005 the payment of these high salaries appeared incongruous. - As a result of the high salaries paid to judges and prosecutors, little or no investment could be made in judicial premises. Many courts and prosecutors offices were (and are) in a terrible state of disrepair (some having been damaged in the war) and have not been renovated since they were first built in the 1960s. Part II of this publication is the constitutional amendments and legislation which were imposed by the High Representative in December, 2005 following the recommendations of the Working Group which were presented to the High Representative in June, For the most part the recommendations of the Working Group were accepted by the Office of the High Representative and this fact is reflected in the legislation which was imposed by the High Representative in December, However, two major changes (and some smaller ones) were introduced by the Office of the High Representative: 1) Salaries for judges of the Constitutional Court of Bosnia and Herzegovina were included in the law regulating salaries at the state level; 2) Salaries for certain key non-judicial positions in judicial institutions at the state level (namely the Constitutional Court of BiH, the Court of BiH, the Prosecutors' Office of BIH and the HJPC) were included in the state law. The Working Group did not discuss the salaries of the judges of the Constitutional Court of BiH as these fell outside the mandate provided by the High Representative. It was expected, at the time when the mandate was formulated, that a separate law on the Constitutional Court of BiH would address this issue (ref chapter 2.3). However, when the proposed salary legislation was about to be imposed it was clear that the expected law on the Constitutional Court would not be forthcoming in the immediate future and thus there was no obvious reason for not also including the judges of this court in the state law. Fortunately the Working Group had collected the necessary information on the Constitutional Court of BiH as a part of its general research efforts. A constitutional challenge was submitted on 16 March, 2006 by one of the members of the BiH Presidency (Mr. Sulejman Tihic) and another on 17 February, 2007 by another Presidency member Mr. Jovic with respect to the provisions regulating the salaries for the judges of the Constitutional Court of BiH. The Office of the High Representative made submissions on this issue to the Constitutional Court after a request by the Constitutional Court on 26 May, The case has, however, not yet been decided by the Constitutional Court of BiH. The complaints and the submissions are attached as Annex 1, 2, and 3 in Part III to this Report. Furthermore, in the Law on Salaries and Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina at Article 17 thereof, special provision was made for certain staff categories in judicial institutions and, in particular, for professional staff in the Constitutional Court of BiH, the Court of BiH, the Prosecutor's Office of BiH and the High Judicial and Prosecutorial Council of BiH. With respect to the inclusion of certain categories of (support) staff in the Constitutional Court of BiH, the Court of BiH, the Prosecutor's Office of BiH and the HJPC I understand that the reasons behind the introduction of specific salaries ranges for the aforementioned staff categories, and for pitching the aforementioned salaries in relation to salary levels for judges and prosecutors, are manifold. However, most importantly it was recognized that these institutions face certain transitional challenges as most of the staff of these institutions were originally recruited under more favorable (international) conditions in order to attract highly skilled lawyers and managers to these institutions. These institutions are key for the implementation of the reform of the judiciary which is currently ongoing in Bosnia and Herzegovina and which must continue for several years to come. It is important to note also that these salaries (similar to the salaries for judges and prosecutors at the level of BiH) are "frozen" at their current level until the average salary of BiH reaches 800 KM. Also, these categories of staff do not enjoy the range of additional benefits to which other civil servants are entitled. 8

11 It is my firm opinion that the inclusion of the aforementioned staff categories into the state level law was and will continue to be of vital importance for further judicial reform efforts in BiH. If, for example, a lawyer can get a significantly higher salary by pursuing a career as a municipal/basic court judge as opposed to being a Legal Advisor of the Constitutional Court of BiH or the Head of the Legal Department of the HJPC then it naturally follows that the latter positions will be filled by less well qualified and talented jurists/managers. The Court and Prosecutor's Office of BiH and the High Judicial and Prosecutorial Council of BiH are young institutions which need to be supported in these vital early days of their existence and it is of key importance that a high staff turnover is avoided. In addition, the High Judicial and Prosecutorial Council of BiH is overseeing many key donor projects in the area of judicial reform and it is vital that this institution is well staffed and that such staff are kept at the institution in the short to medium term. Much has been invested in judicial reform in BiH to date, both financially and otherwise, and it was seen as necessary by the High Representative to ensure that every effort is made to guarantee the continued success of the judicial reform initiative. This effort should not be thwarted by arbitrary arguments about uniformity which fail to take into account the necessity to build upon and complete a number of key reforms in the country. 4. Relevant events since publication of Chairman Report in June, 2005 It is unfortunate that since the imposition of these laws the logic which was applied when they were drafted has been interfered with - in particular the principle of harmonization of salaries between the Entities. On 5 April, 2006 the Law on Curbing Organised and Most Serious Forms of Commercial Crimes was adopted and amendments were subsequently introduced in May, As a result of the adoption of this law a Special Prosecutor s Office was established in Republika Srpska. A special department was also established in the District Court of Banja Luka to hear such cases together with a panel to hear appeals in the Supreme Court of the RS. Article 28, paragraph 3 provides, as follows: Prosecutors of the Special Prosecutor s Office may be entitled to an additional allowance for risk and complexity of duties in an amount not to exceed a maximum of 30% of the basic net salary they have for the position to which they are appointed. Criteria in relation to risk and complexity of duties compensation shall be regulated by a special book of rules passed by the Chief Prosecutor and approved by the High Judicial and Prosecutorial Council. A special book of rules has been adopted in accordance with this provision. There are similar provisions in the law in relation to the special department of the District Court and the special panel of the Supreme Court (Article 35 of the aforementioned law). Such provisions interfere with the principle which was introduced as a result of the aforementioned salary laws imposed by the High Representative and unravels to a certain extent the reform which was introduced as a result of that imposition. This is unfortunate as the harmonization of salaries between the Entities is an important principle and one which should be safeguarded and protected. Another event of note is a recent statement given to the media by the Prime Minister of the RS where he suggested that the salaries of judges in the RS should be reduced by 30%. It is worthy of note that it would be necessary to effect a change to the RS Constitution in order to bring about this change for judges (not prosecutors). Subsequent to this statement by the Prime Minister of the RS a press statement was issued by the High Judicial and Prosecutorial Council and by the High Representative to Bosnia and Herzegovina. It is probably best summed up by the High Representative when he stated, as follows: The independence of the judiciary has to be understood, it has to be supported, it has to be defended, it has to be championed in print and on television and in everyday life - because it is being attacked by politicians who believe the best institutions are the sort that are under their control. 9

12 Foreword Interference with the remuneration of judges and prosecutors is something which I would strongly discourage if we are to ensure that the independence of the judiciary is maintained, enhanced and promoted in accordance with the principles outlined by the Council of Europe which are reproduced in detail above. 5. Recommendations for the Future 5.1 Constitutional protection at the level of BiH for judicial independence C. 1. Article 4 of the Constitution of the Federation of Bosnia and Herzegovina provides, as follows: (1) All judicial powers in the Federation shall be exercised independently and autonomously. (2) Courts shall ensure that all parties to legal proceedings are treated equally. (3) The Judiciary is autonomous and independent from the executive and legislative powers of the Federation. (4) The High Judicial and Prosecutorial Council of the Federation of Bosnia and Herzegovina shall ensure the autonomy, independence, impartiality, competence and efficiency of the judiciary and of the prosecutorial service in the Federation. The responsibilities of the High Judicial and Prosecutorial Council shall include, but shall not be limited to, the appointment, discipline and removal of judges, apart from the Judges of the Constitutional Court of the Federation, and shall also include prosecutors and deputy prosecutors in the Federation. The composition and additional responsibilities of the High Judicial and Prosecutorial Council shall be defined by law Article 121 of the RS Constitution provides, as follows: Judicial power shall be exercised by courts. The courts shall be autonomous and independent and shall adjudicate on the basis of the Constitution and laws. The courts shall protect human rights and freedoms, the established rights and interests of legal subjects and legality. Article 121.a goes on to provide, as follows: The Judiciary is autonomous and independent from the executive and legislative powers of Republika Srpska. The High Judicial and Prosecutorial Council of Republika Srpska shall ensure the autonomy, independence, impartiality, competence and efficiency of the Republika Srpska judiciary and of the prosecutorial service. The responsibilities of the High Judicial Council shall include, but shall not be limited to, the appointment, discipline and removal of judges, apart from the Judges of the Constitutional Court of the Republika Srpska, and shall also include public prosecutors and deputy public prosecutors in the Republika Srpska. The composition and additional responsibilities of the High Judicial and Prosecutorial Council shall be defined by law. There is no such constitutional protection of the independence of the judiciary at the level of Bosnia and Herzegovina. I am firmly of the view that such a principle should be enshrined in the Constitution at the level of Bosnia and Herzegovina in accordance with the principles outlined by the Council of Europe reproduced above. As mentioned previously there is also no protection for the remuneration of either judges or prosecutors at the level of Bosnia and Herzegovina and again I strongly urge that this be remedied. 5.2 Consolidated judicial salary legislation As outlined above, currently the salaries of judges and prosecutors are regulated in four separate laws - one at the level of BiH, one for each Entity and one for Brcko - these laws having been imposed by the High Representative in December, We have outlined above some instances where the principle of harmonization between the Entities has been interfered with and we have explained why such action should be discouraged if we are to establish a fully functioning and democratic state with an efficiently functioning judiciary. It is in this context that I suggest that all four laws should be consolidated in the Law on the High Judicial and Prosecutorial Council. By virtue of the Transfer Agreement signed by the Entities in 2004 the High Judicial and Prosecutorial Council has important competences with respect to safeguarding some of the 10

13 fundamental principles necessary in order to establish and maintain a fully functioning judiciary in a democratic state. In particular, the Transfer Agreement provides, as follows: The Council shall be responsible for the autonomy, independence, impartiality, competence and efficiency of the judiciary, which shall include the prosecutorial service, within the Federation and the Republika Srpska and at the level of Bosnia and Herzegovina. I believe that there is an inherent logic in consolidating the aforementioned four laws and including them as a chapter in the Law on the High Judicial and Prosecutorial Council. This would afford judges and prosecutors more protection in terms of their remuneration and would also mitigate against the possibility that salaries would be changed in one Entity and not in another. Finally, I would like to thank the members of the working group on the reform of judicial salaries whose input and insightful comments were invaluable in the preparation of the final report. I would also like to thank Adis Hodzic, Head of the Budget and Statistics Department who provided much of the financial and comparative economic data for the report and Lynn Sheehan, International Member of the High Judicial and Prosecutorial Council, for her assistance throughout the production of the report. Sarajevo, January 2007 Sven Marius Urke International Member of HJPC Chairman of the Working Group 11

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15 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA PART I REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES - JUNE

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17 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 1. Introduction 1.1 Laws on Judicial Salaries of 2000 Until 2000 the salaries and benefits of judges and prosecutors in the Republika Srpska and in the Federation of BiH were calculated in accordance with the laws governing civil servants. The relatively low salaries were supplemented by a range of non-taxable benefits, such as, compensation for traveling expenses to and from work, for food during working hours and for educational expenses. In 1998 a Declaration was made by the Peace Implementation Council requiring the adoption of legislation by 1999 to achieve an independent and impartial judiciary and prosecution service through, inter alia, the setting of adequate salaries for judges and prosecutors. In order to achieve this objective a number of laws were adopted in both Entities - the Law on Courts and Judicial Service and the Law on the Public Prosecutors Offices in the Republika Srpska7 and the Law on Judicial Service in the Federation of Bosnia and Herzegovina. 7 The methods for calculating salaries outlined in these laws are quite complex and are linked to increases in average salaries in the Entities. The provisions of the laws are outlined in detail in the next section of this Report. The initial effect of the legislation was to cause a dramatic increase in salary levels. Thereafter, the effect of the legislation was to increase the total bill for gross judicial and prosecutorial salaries9 from 45.3 million KM in 2000 to 61.7 million KM in If the current legislation were to remain unchanged (assuming no freeze of judicial salaries) the total bill for gross judicial and prosecutorial salaries in 2008 would be in and around 79.1 million KM. In a country such as Bosnia and Herzegovina where inflation has been insignificant these figures are staggering. 1.2 Measures taken post the adoption of the Laws on Judicial Salaries of 2000 Following the new legislation introduced in 2000, the Independent Judicial Commission (IJC) introduced a range of measures with the aim of improving the budgetary situation of courts and prosecutors offices and of securing funds for the necessary investments in judicial premises/operational expenses of courts and prosecutors offices. In particular, the IJC was involved in reducing the number of first instance courts in both Entities by 40% (approx.), the number of judges in both Entities by 30% (approx.) and the number of support staff at courts by 20% (approx.). The IJC also prepared draft legislation with the aim of stopping the regular salary increases of judges and prosecutors and of moderately reducing their salary levels. The overall rationale of all of these measures taken by the IJC was to reduce the annual salary costs and to use the savings generated for capital investment and operational expenses.10 Investment in capital assets cannot be made, however, until such time as the accumulated debts of the courts have been discharged. The accumulated debts of the courts will be discussed in more detail later in this report. Under these circumstances, the HJPC Secretariat (the successor to the IJC) has begun a process of lobbying international donors for funds for investment in judicial premises. It has also secured funding for the computerization of the courts. In addition, the HJPC has developed an accurate picture of the financial situation of the courts and prosecution service which it currently uses as a tool to lobby for increased funding. 7 Law on Courts and Judicial Service of the Republika Srpska (OG of RS 13/00, 15/00, 16/00, 70/01, 85/03 and 96/03) and the Law on the Public Prosecutors Office (OG of RS 13/00, 15/00, 70/01 and 85/03) 8 Law on Judicial Service (OG of FBiH 20/01, 57/01 and 63/03). This law was imposed by the High Representative on 17 May, Assuming 717 judges and 283 prosecutors in 86 courts and prosecutor s offices at all levels, excluding three constitutional courts. 10 This strategy was endorsed in Jobs and Justice: Our Agenda. 15

18 Introduction 1.3 Recent developments The Communiqué of the Peace Implement Council Steering Board of 2 and 3 December, 2004 highlighted the fact that the efficient administration of justice, as a core plank of BiH s post war rehabilitation, depended on a fully functioning and appropriately remunerated judiciary. However, the Steering Board also stressed the fact that they fully supported the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively. In light of the aforementioned Communiqué, and in view of the concerns raised in respect of judicial salaries, the High Representative introduced a freeze on judicial salaries in December, The effect is to freeze the basis for calculation of judicial salaries at net average salary levels as at December, 2003 in the Federation and as at November, 2004 in the Republika Srpska. In addition, on 25 January, 2005 the High Representative wrote to the Ministers of Justice at BiH and Entity level, the President of the High Judicial and Prosecutorial Council, the President of the Association of Judges and of the Association of Prosecutors of FBiH and the President of the Association of Judges and Prosecutors of the RS requesting that a member of staff of each of these bodies be nominated to a working group, the aim of which was to prepare draft amendments to the judicial salary laws at all levels. The High Representative appointed Mr. Sven Marius Urke, international member of the HJPC, to chair the Working Group. The text of this letter is attached as Annex 1 to the Report. In his letter of 25 January, 2005 the High Representative stated that the draft laws to be prepared by the working group were to reduce judicial salaries and that the overall yearly savings in the working group s final draft were to be at least the same amount of savings as generated in drafts which had been prepared by the IJC. The working group met on nine occasions - the 2, 15, 23 March, 6, 27 April, 11, 15, 16 and 24 June and prepared four draft laws - one for each Entity, one at BiH level and one for Brcko District. The following report prepared by the chairman of the working group outlines the manner in which current salaries are calculated and the consequences of that method of calculation. It also explains the new draft laws and the reasoning behind the decisions of the working group which were taken in preparing these drafts. The Conclusions of the Working Group are attached as Annex 2 to this Report and the proposed legislation at the various levels as Annex 3. 16

19 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 2. Current Method for Calculating Judicial/Prosecutorial Salaries 2.1 Method of calculation in the Entities The current method for calculating the salaries of judges and prosecutors outlined in the laws on judicial salaries in the Entities is quite complicated. The basis for the calculation of salaries in the Republika Srpska is set at three times the average net salary of employees (including the private sector) of the Republika Srpska in the preceding month whereas in the Federation it is set at two and half times the average net salary of employees (again, including the private sector) in the Federation in the last month of the previous year. Thus, until the High Representative froze salaries for judges and prosecutors in December, 2004, the salaries in the Federation increased on an annual basis and the salaries in the RS increased on a monthly basis. The basic salary is then multiplied by the same coefficient in both Entities for first instance judges and prosecutors, 1.8 for second instance and 2.1 for third instance judges and prosecutors. In the Republika Srpska thirty-five percent is then added as an incompatibility bonus for not being able to take up additional employment. In the Federation, the incompatibility bonus is twenty-five percent for first instance judges and prosecutors, thirty-five percent for second instance and fifty for third instance. In addition, in each Entity a half a percent is added for each year of work experience up to a maximum of twenty percent (or a maximum of 40 years). For Court Presidents and Chief Prosecutors in the Republika Srpska a management bonus of twenty percent is then added. In the Federation the management bonus is set at ten percent at first instance and twenty percent at second and third instance. Judges of the Entity Constitutional Courts are included in these laws and their judges follow the same rules as Entity Supreme Court judges. As we will discuss in more detail in the next section of the report, salaries increased significantly under these new laws in the past four years. Firstly, all judges and prosecutors got an unprecedented one-time increase. In the Federation, for example the net salary of judges and prosecutors in the first year of application of the new laws increased for first instance judges and prosecutors at a rate of 2.7 times (270%), for second instance at a rate of 3.3 times (330%) and for third instance at a rate of 3.5 times (350%). In the RS the change was even more significant with salaries at first instance increasing at a rate of 4.1 times (410%), at second instance at a rate of 4.5 times (450%) and at third instance at a rate of 4.8 times (480%). Secondly, in the years following the one time increase, salaries for judges and prosecutors continued to grow by approximately 7-8% per year. While the structure of judicial salaries has become divorced from that of ordinary civil servants, for a certain period Entity judges and prosecutors retained the numerous non-taxable benefits that were added to the normally low government salaries. The withdrawal by legislation of these benefits in 2003 resulted in a decision of the Constitutional Court in the Federation - this Decision will be discussed in more detail at Chapter 6 of this Report Method of calculation at the level of BiH The first judges of the Court of BiH were appointed by a High Representative Decision of 8 May, The first prosecutors of the Prosecutor s Office of BiH were appointed in January, The Council of Ministers passed a provisional decision in May, 2002 setting the basic salary of a judge at the Court of BiH at 3, This amount was multiplied by a coefficient to take into account years of experience. 11 Annex 9 to Part I of this Report. 17

20 Current Method for Calculating Judicial/Prosecutorial Salaries In accordance with this decision judges were also to be entitled to the following allowances: - Luncheon voucher; - Per diems for official trips; - Field work allowance; - Local public transportation bonus; - Vacation bonus; - Separation allowance; - Severance pay; - Death premium, sickness and grave disability benefit and - Hotel and private accommodation allowance. This Decision was in relation to judges only. In December, 2002 and May, 2003 the Court passed its own internal decisions regulating salaries but these decisions were not legally binding. In July, 2003 the Council of Ministers passed a provisional decision regulating salaries for judges at the Court of BiH and prosecutors at the Prosecutor s Office of BiH and it was to be applied until the passing of a law determining the amount of salary and other compensations for judges and prosecutors. No such law has been adopted as of yet and no decisions have been passed amending this decision. In accordance with this decision, the basic salary of judges of the Court of BiH and of prosecutors of the Prosecutor s Office of BiH is 4, KM and is increased by 0.5% for each completed year of work experience up to a maximum of 20% of the basic salary. The salary of the President of the Court and the Chief Prosecutor is increased by a further 20% of the basic salary for having undertaken managerial duties. Judges and Prosecutors are entitled to the following compensations: - Per diems for official trips; - Costs of accommodation whilst on official trips; - Severance pay in case of retirement; - Compensation in case of death, illness or serious injury; - Allowance for vacation in the amount of 70% of the basic salary; - Anniversary awards. These compensations are determined in accordance with the Decision on the manner of calculating salaries and other compensations of the employees of the Council of Ministers of Bosnia Herzegovina and other institutions and bodies of the Council of Ministers of Bosnia and Herzegovina. 2.3 Method of calculation applied by the Constitutional Court of BiH The salaries of the judges of the BiH Constitutional Court are calculated in a different manner. The BiH Constitutional Court has decided that the BiH Constitution authorizes the judges of the Constitutional Court to set the salary levels of all staff of the Constitutional Court including the judges who sit on the bench of that court. At its session of 27 June, 2003 the Constitutional Court passed a decision providing that the basis for the calculation of salaries of the president and judges of the Constitutional Court would be 2.5 the average net salary in BiH12 in the last month of the year that precedes the year when salaries are paid. This is then multiplied by the coefficient 2.4 and by 0.5 for each completed year of work. A bonus of 50% of the basic salary is also payable. Accordingly, the salary for a judge at the BiH Constitutional Court (including additional compensation for 20 years of experience) should be in or around 5,646 KM net per month. We understand that some benefits are also payable but we have not been able to verify this. It is understood that the salaries of the judges of the Constitutional Court of BiH will be regulated in a separate law on that court. The mandate of the working group for reform of judicial and prosecutorial salaries does not include this court. 12 It needs to be noted that the decision defines Average Net Salary in BiH as arithmetic average of salaries in the FBiH, RS and Brcko District in the last month of the year that precedes the year when salaries are paid rather than by way of the weighted average. This significantly increases the basis for the calculation of salaries. 18

21 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 2.4 Method of Calculation in Brcko District In 2001 the salary levels of judges and prosecutors in Brcko were determined by the OHR and Brcko District Assembly and they have not been amended since that time. The salaries of judges and prosecutors in Brcko are (as at the Court and Prosecutor s Office of BiH) fixed amounts at the various levels. No supplemental compensations are paid in addition to the salary (not even the common annual increase for each year of experience which is paid everywhere else in BiH). There are no specific regulations in Brcko for increasing salaries in the future and, if such a move were to be taken, a proposal would simply need to be sent to the Assembly for approval. It is not envisaged that the OHR would play a role in the process. 19

22

23 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 3. Judicial/Prosecutorial versus General Salary Increases since Judicial/Prosecutorial salary increases at Entity level As outlined in the previous section, the salaries of judges and prosecutors increase annually in the Federation and monthly in the RS in line with increases in the average net salaries in each Entity. However, as the basic salary of judges and prosecutors is multiplied by a work experience factor judicial salaries increase at a faster rate than other salaries. The real increases in judicial salaries are quite significant when compared with the real increases in average net salaries. In addition, increases in inflation in the past five years in BiH have been insignificant and judges and prosecutors have therfore had their salaries increased significantly in terms of buying power. The following table shows the average net salary in the Federation in 2000, 2001, 2002, 2003, 2004 and the actual and real increase between 2000 and It also shows judicial salaries at each level in the same years and the actual increase at each level between 2000 and In 2000, a factor for 20 years of work experience is included (as this is the average amount of experience of judges/prosecutors) and it is increased on a yearly basis. FBiH (KM) Percentage increase between 2000 and 2004 Real increase between 2000 and 2004 (KM) Average net salary - December of previous year % 144 Years of experience Judicial Salaries - 1 st Instance 1,988 2,201 2,383 2,681 2,798 40% 810 Judicial Salaries - 2 nd Instance 2,577 2,853 3,088 3,475 3,626 40% 1,049 Judicial Salaries - 3 rd Instance 3,340 3,698 4,003 4,504 4,679 40% 1,339 A similar exercise was carried out for the Republika Srpska and it generated the following data: RS (KM) Percentage increase between 2000 and 2004 Real increase between 2000 and 2004 (KM) Average net salary - December of previous year % 113 Years of experience Judicial Salaries - 1 st Instance 1,818 2,007 2,239 2,411 2,620 44% 802 Judicial Salaries - 2 nd Instance 2,181 2,409 2,687 2,894 3,143 44% 962 Judicial Salaries - 3 rd Instance 2,545 2,810 3,134 3,376 3,667 44% 1,122 As mentioned above, when the fact that inflation is practically static is factored into the equation, this means that the divide between the average worker in BiH and the judiciary and prosecution grows wider year on year. 21

24 Judicial/Prosecutorial versus General Salary Increases since 2000 It is also interesting to look at the data on a more macro level. In 2004 an additional 18 million KM (17%) for the entire BiH judiciary was budgeted to cover increased annual salary expenses from 2003 to 2004 (including support staff). Approximately 10 million KM of this was required for severance payments to judges and prosecutors who lost office as a result of the reappointment process. Nonetheless, the increase of 8 million KM that can be attributed to the annual salary increments for the remaining judges and prosecutors is significant. A similar exercise could be carried out for However, it would not be representative because of the freeze on salaries imposed by the High Representative in Institution Gross Salaries 2003 Gross Salaries 2004 Increase 2004 BiH Constitutional Court 1,847,088 2,350,800 27% Court of BiH 1,841,997 2,097,640 14% BiH Prosecutor 787,171 1,748, % RS Constitutional Court 680,600 1,086,160 60% RS Supreme Court 922,600 1,323,490 43% RS Prosecutor 368, ,180 23% RS District Courts 3,648,300 4,467,370 22% RS District Prosecutors 4,697,596 5,990,300 28% RS Basic Courts 14,440,300 18,387,900 27% Federation Constitutional Court 798,100 1,324,040 66% Federation Supreme Court 3,230,700 3,906,430 21% Federation Prosecutor 972,400 1,563,000 61% Cantonal Courts 15,558,130 16,615,733 5% Municipal Courts 38,149,397 42,459,465 11% TOTAL BIH 102,620, ,184,984 17% 3.2 Salary increases in Brcko District As mentioned earlier, judicial salaries in Brcko have not increased since The following table shows the salaries which are currently applicable. It is interesting to note that these salaries are fixed and that they are not increased for anniversary rewards. In addition, no supplemental benefits are applied to these salaries, e.g. incompatibility bonus, etc. Level Monthly Net Salary (KM) Judges of Brcko Basic Court 3,312 President of Brcko Basic Court 3,588 Judges of Brcko Appellate Court 3,542 President of Brcko Appellate Court 3,910 Prosecutors of Brcko Prosecutor s Office 3,128 Deputy Chief Prosecutor of Brcko Prosecutor s Office 3,312 Chief Prosecutor of Brcko Prosecutor s Office 3, Salary increases at the level of BiH The salary increases at the level of BiH have been outlined in the previous section of this Report. Without a reform of the salary laws, however, these salaries are likely to increase in line with the salaries at Entity level. 22

25 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 4. Non Judicial Staff Salaries in the Entities The salaries of non-judicial staff in the courts and prosecutors offices were not increased in 2000 and this has led to many internal difficulties in the courts and prosecutors offices. It is interesting to contrast these salary differences so as to accurately show the vast chasm between judicial and non-judicial salary levels. The salary of a municipal court judge in the Federation (with 20 years experience) in the first quarter of 2005 was 2,735 KM. This can be compared with the average salaries in the same period of non-judicial staff who work in the municipal courts outlined in the chart below. The following chart also shows the ratio of the average salary of non-judicial staff to judicial staff and the last column of the chart shows the same average when salary extremes (i.e. very high and very low salaries) are not taken into account. The chart also shows the maximum salary of non-judicial staff members. FBIH Canton Municipal Court Average Salary KM* Ratio judicial salaries; non-judicial salaries Median Maximum non-judicial salary KM Canton 1 Bihaæ Bosanska Krupa Velika Kladuša Sanski Most Cazin Canton 2 Orašje Canton 3 Tuzla Graèanica Gradaèac Kalesija Živinice Canton 4 Zenica Žepèe Zavidoviæi Visoko Kakanj Tešanj Canton 5 Goražde Canton 6 Travnik Bugojno Kiseljak Canton 7 Mostar Èapljina Konjic ,011 Canton 8 Široki Brijeg Ljubuški Canton 9 Sarajevo Canton 10 Livno * In the FBiH these salaries are supplemented by a hot meal and transport allowance which can range from between 0 and 462 KM (176 KM on average). 23

26 Non Judicial Staff Salaries in the Entities As can be seen from the chart above, average non judicial salaries range from KM in Goražde to KM in Èapljina. The ratio of non-judicial to judicial salaries in the same courts range from 5.01 to 8.89 (5.65 to 9.00 when median figures are taken). A similar situation exists in the Republika Srpska. The salary of a judge in the RS District Courts in the first quarter of 2005 was 3,475 KM. The following chart shows the average salaries of non-judicial staff working at these courts, the same average without salary extremes (i.e. without the highest and lowest salaries) and the maximum salaries of non-judicial staff in these courts. RS District Courts Average Salary KM Ratio - judicial salaries: non-judicial salaries* Median Maximum non-judicial salary KM Banja Luka Bijeljina Doboj Trebinje Istoèno Sarajevo * In the RS these salaries are supplemented by a hot meal and transport allowance which can range from between 0 and 707 KM (171 KM on average). A more complete chart showing the differences between the salaries of judicial staff and non-judicial staff in a wider range of courts and prosecutors offices is attached as Annex 4. The chart also shows the ratio of judicial to non-judicial staff salaries together with the ratio when a median is taken. It also shows the maximum non-judicial salary in each court and prosecutor s office. It is clear from these figures that the difference between salaries of judges and prosecutors and those of support staff is too great. As long as this situation continues, it will be difficult to encourage an environment of collaboration and team work within the courts and prosecutors offices so that problems, such as backlogs, can be solved. Future affordable salary increases in the courts and prosecutors offices, therefore, clearly belong to non-judicial as opposed to judicial staff. 24

27 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 5. Consequences of the current salary structure Unfortunately, the salary reform of 2000 appears to have been introduced without any calculation of the costs of the changes or consideration of the ability of local governments to pay such high salaries. The introduction of the salary system led to the following consequences: 5.1 Many courts and prosecutors offices accrued significant debts In the years following the introduction of the new salary system in 2000 many courts accrued significant debts. Certain courts were unable to meet their operational expenses and, therefore, their utilities were disconnected. In addition, the post offices refused to deliver the post of certain courts. The accumulated debts of the courts reached an all time high in 2002 when the figure stood at 25, 986,455 KM. Certain courts were in a particularly bad situation, such as those of Canton 4, which at the end of 2002, owed the staggering sum of 4,519,877 KM and the courts of Banja Luka District which owed the sum of 2,551,259 KM. Since 2002 efforts have been made to reduce the accumulated debts of the courts and whilst these efforts have been successful the courts and prosecutors offices are still in a critical position with accumulated debts at the end of 2004 amounting to 16,280,740 KM. To give an idea of the distribution of the burden in relation to accumulated debts the following chart shows the accumulated debt per judge and per prosecutor in each canton and district. In global terms, it also shows that the problem of accumulated debt continues to be critical notwithstanding the decreases which have occurred since Level/Area Debt per judge 2004 (KM) Debt per prosecutor 2004 (KM) FBiH Entity Level 19,087 10,689 Canton 1 11,186 8,019 Canton 2 4,140 0 Canton 3 29,831 13,248 Canton 4 29,816 13,781 Canton Canton 6 19,416 0 Canton 7 55,510 33,171 Canton 8 64,160 51,886 Canton 9 3,671 0 Canton 10 34,127 16,906 RS Entity Level 1,609 15,836 District Banjaluka 15,087 6,845 District Bijelina 21,074 40,969 District Doboj 7,468 7,718 District I. Sarajevo 19,311 8,561 District Trebinje 11,001 1,167 As can be seen the problem of debt in some cantons and district is still staggering with 55,510 KM accumulated debt per judge in Canton 7 and 51,886 KM accumulated debt per prosecutor in Canton 8. To give an idea of the extent of the debts and the rate at which they are reducing over time the following chart shows the accumulated debts of the courts and prosecutors offices for 2003 and 2004 and the percentage difference between accumulated debts in 2002 when compared with those in

28 Consequences of the current salary structure Debt as of December 2003 Debt as of December 2004 Debt For For change operational operational 2004 For salaries Total debt For salaries Total debt and capital and capital Vs. expenses expenses 2002 FBiH Entity level , , ,116 0% Canton 1 1,065, ,411 1,674, , , ,641-66% Canton 2 108, , ,817 7,449 29,812 37,261-92% Canton 3 1,936,843 1,002,731 2,939,574 1,820, ,031 2,671,167-33% Canton 4 1,368,300 2,735,629 4,103, ,273 1,431,911 2,342,184-48% Canton % Canton 6 214,642 1,778,994 1,993, , , ,810-67% Canton 7* 578,377 3,046,163 3,624, ,766 2,514,130 3,216,896 13% Canton 8 82, ,148 1,006,153 85, ,368 1,041,625-3% Canton 9 54, , , ,788-65% Canton 10* 135, , , , , ,931-49% Total FBiH 5,544,132 11,143,150 16,687,282 5,057,626 7,138,793 12,196,419-38% RS Entity level 4,007 72,805 76,812 25,547 63,537 89,084 7% District Banja Luka* 964,063 1,716,282 2,680, ,459 1,379,238 1,657,697-35% District Bijeljina 509, ,011 1,263, , ,622 1,271,353-7% District Doboj 378, , ,707 96, , ,274-64% District I. Sarajevo* 311, , , , , ,071-24% District Trebinje 158, , ,864 70, , ,855-65% Total RS 2,326,674 3,687,624 6,014,297 1,267,593 2,816,742 4,084,335-34% BiH Total: 7,870,806 14,830,74 22,701,59 6,325,219 9,955,535 16,280,74-37% The reasons for the reduction in the accumulated debts of the courts and prosecutors offices are manifold. In the first place, the rationalization of the judicial system through the restructuring process has resulted in cost reductions. The following table outlines the cost reductions in recent years generated by the reformed system together with a projection in relation to future cost reductions (for the purposes of future projections in the following table, the projected annual increase in the average net salary is assumed to be 8.32% in the Federation and 9.08% in the Republika Srpska and judicial benefits are excluded). Gross Judicial and Non-Judicial Salaries 2004 KM 2005 KM 2006 KM 2007 KM Unreformed system ,000 86,400,000 91,100,000 96,200,000 Reformed system 14 61,300,000 64,500,000 67,900,000 71,700,000 Yearly Reduction 20,800,000 21,900,000 23,200,000 24,600,000 As you can see the projected yearly cost reductions generated by the restructured system are quite significant. The fact that more adequate funding is being allocated to the courts and prosecutors offices since the intervention of the HJPC (and the IJC before it) has also led to a reduction in accumulated debts. The HJPC has collected and compiled a significant amount of data on the courts and prosecutors offices and for the first time was able to present an accurate picture of the dire financial situation of the courts and prosecutors offices. This picture is so compelling that it galvanized local authorities into action first and second instance courts first and second instance courts. 26

29 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The results of the efforts of the HJPC to date are summarized in the graph attached as Annex 5 to this report. It shows the budget allocations for each canton and district for 2005 which were recommended by the HJPC compared with the actual budget allocations which were made. As you can see the results are quite encouraging and, in certain cases, the actual budget allocation was greater than the HJPC recommendation. However, these figures should be treated with caution for two reasons: 1. The recommended budget allocation made by the HJPC does not make provision for any capital expenditure. Actual approved budgets make very limited provision for capital expenditure. For example, in 2005 budgets, approximately 3.5 million was reserved for such expenditure. We will discuss this in more detail in the next subsection of this report. 2. The recommended budget allocation made by the HJPC does not make provision for accumulated debt. Accumulated debts are, however, graphically represented on the annexed graph and, as you can see, the budget allocations for 2005 will do little to remedy the problem of accumulated debt. Notwithstanding, therefore, the strides which have been made in this area further efforts are needed in order to regularize the position of the courts and prosecutors offices. The financial situation of the courts and prosecutors offices is still critical and every effort must be made to ensure that the accumulated debts are dealt with effectively and, ultimately, eliminated altogether. It is not sustainable to have a court system which runs on the credit (and often the goodwill) of others. The judiciary needs to operate in a manner independent from such pressure and immune from political influence. 5.2 BiH is not in line with European best practice Some comparative data has been compiled on salaries in other European countries and it reveals some very interesting results. 15 The following table shows the national annual average gross salary in thirtyeight countries together with the annual starting salaries of judges in each country and the annual salary of a judge in each country at the highest level court. In this table Bosnia Herzegovina (with an average gross annual salary of 4,634 Euro) currently ranks 20th on the list in terms of starting salaries for judges. Countries such as France (with an average salary of 21,000 Euro), Slovenia (with an annual average gross salary of 12,780 Euro) rank below BiH. This means that the lowest paid judges in France and Slovenia make less that the lowest paid judges in BiH. In addition, as the table below indicates, there are numerous other countries which have higher average gross annual salaries which also pay their lowest paid judges less than BiH. National Average Gross Annual Salary (Euro) Gross Annual Salary of a Judge at the Start of his Career (Euro) (Lowest) Gross Annual Salary of a Judge of the Supreme Court or Highest Appellate Court (Euro) (Highest) UK - Scotland 36, , ,180 UK - England/Wales 36, , ,960 Liechtenstein 62, ,586 Unknown Ireland 26, , ,389 Switzerland 51, , ,000 Norway 42,039 81, ,753 Denmark Unknown 77, ,198 Iceland 29,512 76,071 86,413 Netherlands 37,300 61, ,890 Andorra 18,038 61,100 32,139 (part time) Iceland 29,512 76,071 86, See European Judicial Systems 2002, Facts and figures on the basis of a survey conducted in 40 Council of Europe Member States, Council of Europe, European Commission for the Efficiency of Justice, CEPEJ (2004) 30, Strasbourg 10 December,

30 Consequences of the current salary structure Netherlands 37,300 61, ,890 Andorra 18,038 61,100 32,139 (part time) Iceland 29,512 76,071 86,413 Sweden 22,282 53,278 88,796 Finland 28,800 48,000 99,000 Spain 17,104 42, ,836 Germany 25,500 35,542 82,787 Italy Unknown 33, ,885 Portugal 8,005 32,272 77,583 Malta Unknown 31,627 36,530 Austria 21,424 28, ,698 BiH 4, , , France 21,000 23,793 65,470 Slovenia 12,780 22,084 44,165 Croatia 8,800 21,060 55,512 Estonia 4,915 18,744 25,776 Hungary 5,820 17,239 33,695 Czech Republic 5,950 15,153 47,100 Lithuania 4,198 12,714 32,348 Poland 6,631 12,563 22,100 Slovak Republic 4,236 10,366 15,292 SM - Serbia 2,110 9,122 12,427 Romania 2,304 8,406 13,017 Latvia 5,041 6,377 9,407 Armenia 607 4,125 4,800 Azerbaijan 800 4,000 5,150 Bulgaria 1,585 3,200 7,169 Georgia 612 2,724 3,432 Ukraine 1,223 1,944 11,249 Moldova 780 1,560 2,630 It is also interesting to present this data in another way. In the chart below the annual salaries of judges (minimum and maximum) as a ratio of the annual average gross salary in a range of countries 19 is outlined. The countries are ranked starting with those in which judges salaries at the highest courts in these countries (as a ratio of the annual average gross salary of these countries) are highest. This presents some very interesting data with Bosnia Herzegovina appearing at the head of the table. As can be seen from the table below, the lowest paid judge in BiH is paid 5.59 times more than the annual gross average salary in BiH and the highest paid judge is paid a staggering times higher than the average annual gross salary of BiH. In no other country is the highest paid judge paid more compared to the average salary in his country. 16 As of August Judge of the Municipal Court with one year work experience. 18 Judge of the Constitutional Court of BiH with 40 years work experience. 19 The same countries are used as in the previous table except Malta, Italy and Denmark as the gross average annual salary is not available. 28

31 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Judges Salaries Lowest Judges Salaries Highest BiH Portugal Ukraine Czech Republic Armenia Lithuania UK - England and Wales Ireland UK - Scotland Spain Azerbaijan Croatia SM - Serbia Hungary Romania Georgia Austria Estonia Bulgaria FYR Macedonia Sweden Switzerland Slovak Republic Slovenia Finland Moldova Germany Poland France Netherlands Iceland Norway Latvia Liechtenstein 1.8 N/A Andorra 3.4 N/A The information contained in the previous two charts is presented in a different manner and is also graphically represented in Annex 6 attached to this report. Bosnia Herzegovina can simply not afford the current salaries which are allocated to judges and prosecutors. It is of course important that the integrity of judges be maintained and the Rule of Law upheld. Council of Europe Recommendation No. R (94) 12 on the independence, efficiency and role of judges points out that it is important to ensure that the status and remuneration of judges is commensurate with the dignity of their profession and burden of responsibilities and this recommendation must be adhered to. However, it must be balanced in the context of the economic circumstances of the country involved and be comparable to other countries in similar financial situations. 29

32 Consequences of the current salary structure 5.3 Investment has not been made in other areas The proportion of allocated budgets spent on salaries is quite dramatic and is a major cause for concern. The following charts show the allocated budgets of categories of courts and prosecutors offices in 2004 and 2005 together with the proportion of these budgets which are used for the payment of salaries. The results show that the proportion of allocated budgets spent on salaries in 2005 ranges from 72.83% to 93.35%. The charts also show that the proportion of the total budget for all courts and prosecutors offices for all of BiH which is to be spent on salaries and benefits has increased from 78.81% in 2004 to 79.63% in Budgets 2004 Institution Budget 2004 (KM) Gross Salaries and Benefits 2004 (KM) Gross Salaries and Benefits 2004 (%) BiH Constitutional Court 3,449, ,350, % Court of BiH 2,974, ,097, % BiH Prosecutor 2,258, ,748, % Total State Level 8,682, ,196, % RS Constitutional Court 871, , % RS Prosecutor 707, , % RS Supreme Court 1,795, ,534, % RS District Courts 5,450, ,467, % RS Basic Courts 21,779, ,387, % RS District Prosecutors 9,342, ,802, % Total RS 39,946, ,321, % Federation Constitutional Court 1,480, ,324, % Federation Supreme Court 4,571, ,935, % Federation Prosecutor s Office 1,679, , % Cantonal Courts 19,575, ,670, % Municipal Courts 48,339, ,827, % Cantonal Prosecutors 17,617, ,442, % Total Federation 93,265, ,538, % Brcko Basic and Appellate Court 4,318, ,281, % Brcko Prosecutor s Office 1,092, , % Total Brcko District 5,411, ,034, % Grand Total BiH excl. Brcko District 141,894, ,056, % Grand Total BiH incl. Brcko District 147,305, ,090, % 30

33 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Budgets 2005 Institution Budget 2005 (KM) Gross Salaries and Benefits 2005 (KM) Gross Salaries and Benefits 2005 (%) BiH Constitutional Court 4,214, ,091, % Court of BiH 3,912, ,055, % BiH Prosecutor 2,286, ,771, % Total State Level 10,412, ,917, % RS Constitutional Court 1,253, ,086, % RS Prosecutor 600, , % RS Supreme Court 2,250, ,038, % RS District Courts 5,781, ,891, % RS Basic Courts 20,164, ,679, % RS District Prosecutors 9,324, ,832, % Total RS 39,373, ,966, % Federation Constitutional Court 1,647, ,505, % Federation Supreme Court 5,547, ,894, % Federation Prosecutor s Office 2,026, ,892, % Cantonal Courts 18,826, ,601, % Municipal Courts 45,815, ,080, % Cantonal Prosecutors 19,514, ,145, % Total Federation 93,378, ,119, % Brcko Basic and Appellate Court 4,086, ,951, % Brcko Prosecutor Office 1,107, , % Total Brcko District 5,194, ,718, % Grand Total BiH exclu. Brcko District 143,165, ,003, % Grand Total BiH including Brcko District 148,359, ,721, % It is also interesting to represent the 2005 budget in another manner so that it can be seen (as mentioned in the previous section of this Report) that very limited investment in courts and prosecutors offices is included in the budget allocation. For 2005 the total amount allocated for capital expenditure was 3.3 million KM or 2.2% of total 2005 budget. This is at a time when courts and prosecutors offices are in urgent need of repair. One explanation for these small budget allocations in respect of capital expenditure is that funds are being diverted from this budget line to pay the salaries as prescribed by the law. The result of this is that the judiciary in BiH is highly paid but they are unable to work efficiently because of inadequate premises and obsolete equipment. 31

34 Consequences of the current salary structure Institution Budget 2005 (KM) Budget 2005 for operational expenses (KM) Budget 2005 for capital expenditure BiH Constitutional Court 4,214, , , Court of BiH 3,912, , , BiH Prosecutor 2,286, , Total State Level 10,412, ,695, , RS Constitutional Court 1,253, , , RS Prosecutor 600, , , RS Supreme Court 2,250, , , RS District Courts 5,781, , , RS Basic Courts 20,164, ,184, , RS District Prosecutors 9,324, ,911, , Total RS 39,373, ,372, ,035, Federation Constitutional Court 1,647, , , Federation Supreme Court 5,547, , , Federation Prosecutor s Office 2,026, , , Cantonal Courts 18,826, ,875, , Municipal Courts 45,815, ,255, , Cantonal Prosecutors 19,514, ,313, ,055,500 Total Federation 93,378, ,277, ,981, Brcko Basic and Appellate Court 4,086, , , Brcko Prosecutor s Office 1,107, , , Total Brcko District 5,194, ,206, , Grand Total BiH excluding Brcko 143,165, ,344, ,066, Grand Total including Brcko 148,359, ,550, ,336, Salary differences within the courts and prosecutors offices As mentioned earlier, the salaries of non-judicial staff within the courts and prosecutors offices (which were outlined in the previous subsection of this report) were not increased in As you will have noted from the data in the previous subsection, the difference between judicial and non-judicial staff salaries is quite remarkable. This has led to a decrease in the morale of non-judicial staff. Even in the event that the rate of increase of judicial salaries is stopped in accordance with the draft laws prepared by the working group, there will be a need in the near future to consider more closely the salaries of non-judicial staff in the courts and prosecutors offices and to increase their level. This will put further pressure on the budgets of courts and prosecutors offices and is really only sustainable if judicial salaries are brought under control. 32

35 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 5.5 Lack of funds for operational expenses In addition, the high salaries for judges and prosecutors make it difficult for operational expenses to be paid and this means that many courts do not function at an optimum level because they cannot pay their phone bills, electricity costs, postage expenses, etc. The most recent examples are as follows: - Since December 2003, Banja Luka Basic Court has made significant progress in terms of reducing the amount of its total debt in respect of salaries and compensations from 1,154,025 KM to 60,836 KM and in eliminating altogether its debts in respect of operational expenses as at the end of Notwithstanding this progress, however, the court has managed to run up debts in respect of electricity in the amount of 9,846 in the first half of 2005 and its provider is now threatening to cut off its supply; - The municipal courts in Mostar and Konjic are also currently in a very difficult situation as the postal authority has refused to deliver any further mail for them until such time as they have paid their outstanding debts in respect of postage. It is understood, on the basis of recent information from both courts, that each of them may need to stop operating (either totally or partially) until normal service is resumed. The lack of a postal service means that neither court can issue court documents, set up hearings, etc. In addition, judges of the Municipal Court in Mostar are forced to purchase their own office supplies as their supplier has refused to deliver because of outstanding debts. Finally, the phones have been disconnected in the Municipal Court in Konjic and the Cantonal Court in Mostar. The accumulated debt of Mostar Municipal Court at the end of 2004 was 1.4 million KM that of the Municipal Court in Konjic was 412, KM and that of Mostar Cantonal Court was 677, KM. 33

36

37 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 6. Significant events leading up to and since the introduction of the 2000 salary laws 6.1 Peace Implementation Council Statements As previously mentioned the PIC Declaration of 1998 required: the adoption by 30 June 1999 of legislation to achieve an independent and impartial judiciary, focusing on judicial and prosecutorial appointments, adequate salaries and objective standards for the appointment of judges and prosecutors, consistent with those of European democratic practice and the promotion of a multi-ethnic judiciary throughout BiH. This initiative by the PIC led to the reform of judicial and prosecutorial salaries in 2000 as described in Section 2 of this Report. However, in December 2004 the PIC, having received a clear indication that the salaries and benefits of judges and prosecutors were out of control, made the following statement: The efficient administration of justice, as a core plank of BiHs postwar rehabilitation depends on a properly functioning and appropriately remunerated judiciary. The Steering Board fully supports the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively. Moreover at its last meeting in June 2005 the PIC addressed salary reductions in the BiH public services in general and stated as follows: The Steering Board... remains worried... over the fiscal sustainability challenge faced by BiH s governments, especially at Entity level. It commended the BiH authorities for establishing a Fiscal Council and extending the mandate of the Fiscal Sustainability Working Group, which is charting a way forward on rational reductions in salaries and benefits so as to make room in the State and entity budgets for the full staffing of existing institutions and the taking on of new competencies. 6.2 Elimination of supplemental benefits for judges and prosecutors The Law on Courts and Court Service and the Law on the Public Prosecutors Offices of the Republika Srpska 20 provided that judges and prosecutors were entitled to the following supplemental benefits: - Compensation for transport expenses to and from work; - Compensation for food expenses at work; - Holiday bonus; - Separation from family allowance; - Compensation for non-working day transport expenses; - Compensation for moving from a permanent residence to an official use apartment; - Compensation for education expenses; - Anniversary awards; - Retirement severance pay; - Duty shift bonuses. The Law in the Federation provided for a similar list of supplemental benefits.21 In 2003 in the Republika Srpska the Law on Amendments to the Law on Courts and Court Service in the Republika Srpska and the Law on Amendments to the Law on the Prosecutors Offices of the Republika Srpska 22 were adopted. These laws eliminated many of these benefits and reduced them to the following: 20 See Annex 7 to the Report. 21 See Annex 7 to the Report. 22 See Annex 8 to the Report. 35

38 Significant events leading up to and since the introduction of the 2000 salary laws - Severance payment when retiring; - Annual leave allowance; - Anniversary awards. A similar law was passed in the Federation entitled Law on Amendments to the Law on Judicial and Prosecutorial Service in the Federation of Bosnia Herzegovina.23 In the IJC Report to the High Representative explaining the reasoning behind the need to reduce judicial salaries it was estimated that this intervention - which was, in fact, initiated by the IJC - resulted in annual savings of approximately 4 million KM. It was seen as an important step in order to free up funds which could be used for capital investment, operational expenses and debt payment. 6.3 Constitutional Protection of judges and prosecutors remuneration Constitutional protection at the level of BiH There is no specific constitutional protection at the level of BiH with respect to the salaries and benefits for judges and prosecutors. However, Article IX, paragraph 2 of the BiH Constitution reads, as follows: Compensation for persons holding office in the institutions of Bosnia and Herzegovina may not be diminished during an office holders term. The BiH Constitutional Court has not yet interpreted this Article and it is not clear what the term compensation would include. As a minimum it is anticipated that it would include salaries but most probably it would also include other benefits Constitutional protection in the Federation Section IV, C, Article 7(1) of the Federation Constitution reads, as follows: The salary and emoluments of a judge may not be diminished during the period of his or her judicial office except as a result of disciplinary proceedings in accordance with the law. The same provision is included in Section V, Chapter 4, Article 11(3) with respect to cantonal court judges and in Section VI, Article 7(4) with respect to municipal court judges. It should be noted that these provisions only protect salaries and emoluments of judges and not of prosecutors Constitutional protection in the RS Article 127 of the RS Constitution reads, as follows:... The salary and other emoluments of a judge may not be diminished during the period of his/her judicial office except as a result of disciplinary proceedings in accordance with law. This amendment was actually imposed by the High Representative in May 2002 and it was published in the Official Gazette in June, 2002 (OG of RS 31/02) Constitutional challenge in the Federation On 29 January, 2004 an application to the Constitutional Court of the Federation was made by the Vice President of the Federation of Bosnia Herzegovina requesting a decision as to whether the law referred to in section 6.2 of this Report was constitutional. The Constitutional Court determined that the Law was not in accordance with the Constitution in the part relating to judges of the court in the Federation of BiH ( as opposed to prosecutors in FBiH) and that it should be applied for no longer than six months from the date of the publication of the decision of the Constitutional Court. A copy of the Constitutional Court decision is attached as Annex 9 to the Report. 23 See Annex 8 to the Report. 36

39 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The Constitutional Court does not appear to have accepted that there could be any circumstances in which judges salaries could be reduced and took this ban to be absolute. In other words, it did not adopt a contextual interpretation of the provision and, in so doing, it failed to read the provision in light of the ill which it was introduced to remedy, i.e. to ensure that the independence and the effective functioning of the judiciary is not affected. The provision has been interpreted as if the ban on the reduction of salaries is the only manner in which judicial independence can be ensured. If this were the case it might be necessary to read it in this absolute manner but the independence of the judiciary is ensured by many other measures, e.g. appointment and disciplinary mechanisms, ban on the government interfering with their decisions, etc. One of the primary negative effects of reading the provision in this manner is that there is absolutely no flexibility to react to conditions in the country and in the market. There is little point of having an independent judiciary that is bankrupt. Even in the event that the Federation (because of extreme financial circumstances) was forced to reduce the salaries of all civil servants and government employees, it would be in a position where it could not apportion the burden of such salary reductions over all of those receiving salaries from the government because of the constitutional protection of a specific group. This is clearly not the intention of the constitutional protection. A more proportionate response of the Constitutional Court would have been to read the provision in a qualified manner so that the ban could be lifted in certain extremely limited circumstances. It could also have made reference to the fact that there are other means of ensuring independence of the judiciary and could have couched its decision in these terms. The Decision was published on 1 June, 2004 and the 6 month grace period provided for in the Decision, thus expired in December, The Prime Minister of the Federation is tasked with implementing the decisions of the Constitutional Court and, as of yet, he has taken no action in relation to this decision. This probably means that the judges of the Federation are currently not receiving the range of supplemental benefits, referred to earlier, but are instead in receipt of a reduced number of benefits in accordance with the amendment of The decision of the Constitutional Court rendered the reduction of benefits unconstitutional only with respect to judges in the Federation. It is not applicable to prosecutors. Furthermore, it must be understood that the reduction is unconstitutional with respect to judges in the Federation who were reappointed before the Law on Amendments to the Law on Judicial and Prosecutorial Service came into force on 16 December, Judges appointed after that date have clearly not had their salaries and benefits diminished during the period of their judicial office. Notwithstanding the pertinence of this issue, it was not referred to by the Constitutional Court. The Federation and Cantonal governments are clearly obliged to reintroduce the said benefits for judges appointed before 16 December, Freeze of judicial salaries In December, 2004 the High Representative published three decisions with the aim of freezing judicial salaries in the Entities. The three Decisions 24 are, as follows: - Decision enacting the Law on Amendments to the Law on Judicial and Prosecutorial Service in the Federation of Bosnia and Herzegovina of 13 December, 2004; - Decision enacting the Law on Amendments to the Law on Courts and Judicial Services of Republika Srpska of 13 December, 2004; - Decision enacting the Law on Amendments to the Law on Amendments to the Law on the Prosecutors Offices of the Republika Srpska of 13 December, As mentioned in the introduction to this Report, the effect of these decisions is to freeze the basis for calculation of judicial salaries at net average salary levels as at December, 2003 in the Federation and as at November, 2004 in the Republika Srpska. 24 See Annex 10 to the Report. 37

40 Significant events leading up to and since the introduction of the 2000 salary laws The freeze does not in any way violate the Constitutional protections in the Entities as it does not diminish or reduce the salaries of judges - rather it simply eliminates, for a limited period, the further growth of these salaries. 6.5 Constitutional amendments a prerequisite to the reform of judicial salaries In order to allow for the adoption of the draft laws as proposed by the working group it will be necessary to proceed with one of the following three options: a) To delete the provisions of the RS and Federation Constitution referred to in section 6.3 of this Report, b) To amend the provisions of the RS and Federation Constitution in order to allow for the reduction of judges salaries in certain limited circumstances, c) To suspend the relevant provisions of the RS and Federation Constitution until such time as the proposed laws have been adopted by the relevant parliaments. A deletion of the provisions would not be an appropriate response in this instance. As mentioned earlier, there are a number of provisions which ensure that the independence of the judiciary is maintained and once salary levels have been properly regulated, the constitutional protection would work well in assisting in achieving this goal. Under these circumstances, the constitutional provisions could simply be suspended. Under the Bonn Powers the High Representative has the power to amend constitutional provisions and a suspension would, in real terms, have the same effect as an amendment. Alternatively, the constitutional provisions could be amended to read, as follows: The salary and emoluments of a judge and prosecutor may not be diminished during the period of his office except as a result of disciplinary proceedings in accordance with the law or when it is absolutely necessary due to a critical budgetary situation and the reduction has been approved by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. A majority of the Working Group on reform of judicial salaries recommends that the High Representative pave the way for the reform by suspending the relevant constitutional provisions. This would make it possible to implement the reform without waiting for the constitutional amendments and it would also prevent undesirable changes to the constitutions. The aforementioned provisions are part of a matrix, the aim of which is to ensure the independence of the judiciary and we suggest that, in the long term, it is not in the interests of the judiciary of BiH to interfere with this matrix. 38

41 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 7. Draft of New Laws Prepared by the Working Group As a result of the discussions of the working group on judicial salaries, a number of draft laws were prepared - one for each Entity, one at BiH level and one for the District of Brcko. In summary, the proposed laws equalize judicial salaries in the Entities and they stop the automatic yearly increases. They also introduce a new system for adjusting judicial salaries in the future. The working hours and leave entitlements of judges and prosecutors are standardized and the supplemental benefits payable by governments are limited to severance pay on retirement, annual leave allowance and anniversary awards. The draft laws have previously been referred to and are annexed to this report. More detailed commentary on each of the provisions of the draft laws is given below. 7.1 Salary levels and compensation for years of experience Proposed salary levels (Articles 2 and 3) In the draft laws, the salary levels are set for municipal, basic, district, cantonal, supreme and constitutional court judges at an Entity level. They are also set for judges of the Court of BiH, for the Basic and Appellate Courts of Brcko District and for prosecutors of the cantonal, district and Entity Prosecutors Offices and the Prosecutor s Office of BiH. Increased salaries are prescribed for heads of court departments and sections of prosecutors offices, court presidents and deputy chief and chief prosecutors. When setting the salaries at the various levels the working group applied the following general principles: a) That salaries should be harmonized between the Entities; b) That salaries should not be significantly reduced at any level; c) That there should be an internal logic between the salaries at the various levels (judge, head of department, president at first, second and third instance); d) That salaries at the Court of BiH and the Prosecutor s Office of BiH should be the same as the highest level positions in the Entities. As a result of the fact that the salaries of judges and prosecutors have developed differently over time in various jurisdictions, it was sometimes difficult to stay entirely faithful to these principles. One particular difficulty, in this regard, was harmonizing judges salaries with those of prosecutors given that the number of levels of prosecution offices was decreased in the most recent prosecutorial reform. Another difficulty was placing all the different categories of judges and prosecutors and levels of courts and prosecutors offices within the range of 2,400 KM to 4,400 KM whilst at the same time striving to recognize the differences in responsibilities of the different categories at the different levels. At the beginning of the mandate of the working group it was thought that it would be difficult to harmonise the salaries of the judiciary in Brcko with those of the Entities as it was incorrectly assumed that the Brcko judiciary were far better paid than their Entity counterparts. At first glance salaries in Brcko appeared higher but this was not the case when one factored into the equation that they currently do not get any benefit for years of experience. In the conclusions of the working group all members of the working group agreed that the specific structure of the judiciary and prosecution in Brcko justified a salary structure that is different from those of the Entities. The working group began the task of setting the salary levels by agreeing on a minimum salary level for judges and prosecutors of the lowest level court and prosecutor s office and on a maximum level for those of the highest level court and prosecutor s office. The guiding principle when setting these limits was that salaries overall should not be radically reduced but that instead only minor alterations should be made to the current salary levels. The lowest basic salary level for judges and prosecutors is set at 2,400 KM net per month and the highest at 4,400 per month. In the RS, for example, this represents a reduction of 8.8% at the first instance and a reduction of 0.4% at the highest level. In the Federation it represents a reduction of 3.5% at the lowest level and of 12.2% at the highest level. Overall the salary reductions proposed are relatively moderate. However, some positions have been reduced less moderately, in particular, the highest positions in the Federation as well as some other positions in order to bring them into line with the rationale which was agreed upon by the working group. 39

42 Draft New Laws Prepared by the Working Group Proposed compensation for years of experience (Article 4) In addition in the draft laws it is proposed that the salaries of judges/prosecutors be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. This is in line with the current law at State and Entity level and long traditions in BiH. As mentioned earlier, the judges and prosecutors of Brcko District do not currently receive this supplement Cost reductions as a result of the proposed salary decreases in respect of courts and prosecutors offices In the following subsections we outline the yearly cost reductions at each level which will be generated if the draft laws prepared by the working group are adopted. In total it is expected that the actual cost reductions generated will be of the order of 2.7 million KM which is a 4.4% reduction when compared with current cost levels. A chart with all the categories of judges and prosecutors, the current monthly net salary and proposed monthly net salary (including and excluding work experience) and the current annual gross salary and proposed annual gross salary (including and excluding work experience) is attached as Annex 11 to this report Cost reductions in respect of courts and prosecutors offices at Entity level25 Courts of the Federation of BiH The following chart outlines the current total actual annual cost of judges in the Federation at all levels together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 1.1 million KM which is a 3.9% reduction of costs. Category of Judge Number of judges within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Municipal Court Judges ,482,475 10,117, , Heads of Department of Municipal Courts 75 4,159,712 4,349, , Presidents of Municipal Courts 28 1,863,551 1,748, , Presidents of Municipal Courts >/= 30 judges 1 66,555 71,373 +4, Cantonal Court Judges 101 7,259,862 6,758, , Heads of Department of Cantonal Courts 19 1,365,717 1,356,086-9, Presidents of Cantonal Courts , , , Supreme Court Judges 21 1,956,729 1,779, , Heads of Dept. of the Supreme Court 3 279, ,648-11, President of the Supreme Court 1 111,813 98,138-13, TOTAL ,408,505 27,304,606-1,103, * Includes 20 years of work experience Prosecutors Offices of the Federation of BiH The following chart outlines the current total actual annual cost of prosecutors in the Federation at all levels together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 0.5 million KM which is a 4.2% reduction of costs. 25 The following analysis excludes any cost reductions in respect of the Constitutional Court of the Federation and the Constitutional Court of the Republika Srpska. 40

43 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Category of Prosecutor Number of prosecutors within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Cantonal Prosecutors 136 7,542,945 7,280, , Heads of Sections of Cantonal Prosecutors Offices , , ,915 Deputy Chief Prosecutors at Cantonal Prosecutors Offices , , , Chief Prosecutors at Cantonal Prosecutors Offices , , , Federal Prosecutors 6 559, ,532-50, Deputy Chief Prosecutors at the Federal Prosecutor s Office 2 186, ,432-7, Chief Prosecutor at the Federal Prosecutor s Office 1 111,813 98,138-13, TOTAL ,885,357 10,429, , * Includes 20 years of work experience Courts of the Republika Srpska The following chart outlines the current total actual annual cost of judges in the Republika Srpska at all levels together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 0.65 million KM which is a 5% reduction of costs. Category of Judge Number of judges within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Basic Court Judges 79 4,169,450 3,804, , Heads of Department of Basic Courts 27 1,425,002 1,408,493-16, Presidents of Basic Courts 19 1,203,335 1,067, , Presidents of Basic Courts <30 judges 1 63,333 64, District Court Judges 59 3,736,672 3,551, , Heads of Department of District Courts , ,072-13, Presidents of District Courts 2 152, ,435-15, Supreme Court Judges 15 1,108,335 1,143, , Heads of Departments of the Supreme Court 3 221, , , President of the Supreme Court 1 88,667 88, TOTAL ,118,462 12,467, , * Includes 20 years of work experience Prosecutors Offices of the Republika Srpska The following chart outlines the current total actual annual cost of prosecutors in the Republika Srpska at all levels together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 0.3 million KM which is a 6.8% reduction of costs. 41

44 Draft New Laws Prepared by the Working Group Category of Prosecutor Number of prosecutors within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) District Prosecutors 51 2,691,670 2,455, , Heads of Sections of District Prosecutors Offices 7 369, ,165-4, Deputy Chief Prosecutors at District Prosecutors Offices , ,920-31, Chief Prosecutors at District Prosecutors Offices 5 380, ,088-38, Republic Prosecutors 2 147, ,486 +4, Deputy Chief Prosecutors at the Republic Prosecutor s Office 1 73,889 80,256 +6, Chief Prosecutor at the Republic Prosecutor s Office 1 88,667 88, TOTAL 77 4,384,784 4,085, , * Includes 20 years of work experience Cost reductions in respect of courts and the prosecutor s offices at BiH level 26 Court of BiH The following chart outlines the current total actual annual cost of judges at the Court of BiH together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 121,426 KM which is a 5.4% reduction of costs. Category of Prosecutor Number of prosecutors within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Judges at the Court of BiH 21 1,890,593 1,779, , Heads of Department of the Court of BiH 3 270, ,648-2, President of the Court of BiH 1 106,397 98,138-8, TOTAL 25 2,267,075 2,145, , * Includes 20 years of work experience Prosecutor s Office of BiH The following chart outlines the current total actual annual cost of judges at the Prosecutor s Office of BiH together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 84,000 KM which is a 5.0% (approx.) reduction of costs. 26 The Constitutional Court of BiH in not included in this analysis nor do the draft laws prepared by the working group provide for any changes to be made to their salaries. 42

45 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Category of Prosecutor Number of prosecutors within each category Current Annual Gross Salary* Proposed Annual Gross Salary* Actual Cost Reductions Reduction of costs as % Prosecutors of the Prosecutor s Offices of BiH 14 1,260,396 1,186,575-73, Heads of Section of the Prosecutor s Offices of BiH 3 270, ,648-2, Chief Prosecutor of the Prosecutor s Office of BiH 1 106,397 98,138-8, TOTAL 18 1,636,877-1,552,361-84, * Includes 20 years of work experience Cost reductions in respect of courts and prosecutors offices in Brcko District The following chart outlines the current total actual annual cost of judges in Brcko District together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 14,264 or 1.0%. Category of Judge Number of judges within each category Current Annual Gross Salary Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Judges of Brcko Basic Court , ,652-9,923-1 President of Brcko Basic Court 1 65,445 64,205-1, Judges of Brcko Appellate Court 5 323, ,024-2, President of Brcko Appellate Court 1 71,318 70,224-1, TOTAL 23 1,426,368 1,412,104-14, The following chart outlines the current total actual annual cost of prosecutors in Brcko District together with the proposed annual cost under the draft laws prepared by the working group. As you can see, total cost reductions generated would be of the order of 2,736 or 0.6% Category of Prosecutor Number of prosecutors within each category Current Annual Gross Salary Proposed Annual Gross Salary* Actual Cost Reductions (+/-) Reduction of costs as % (+/-) Prosecutor 5 302, ,954-3, Deputy Chief Prosecutor 1 65,445 62,198-3, Chief Prosecutor 1 64,606 68, , TOTAL 432, ,370-2, * Includes 20 years of work experience 7.2 Future increases in salaries When deciding on future increases in salaries the working group applied the following principles: a) That judicial salaries needed to be frozen for a certain period of time so as to reduce the current vast difference between judicial salaries and those of average citizens; b) That salaries of judges and prosecutors in the future should remain harmonized and should therefore be linked to a common reference point; c) That increases in salaries of judges and prosecutors should not depend on yearly decisions of the legislature or executive; d) That an optimum ratio of judicial salaries to average salaries should be determined. 43

46 Draft New Laws Prepared by the Working Group The manner in which salaries currently increase at each level has been explained in Chapter 2 of this Report. It is important to note that the salaries at State level and in Brcko are set and any increase necessitates a decision of the Council of Ministers in respect of the former and of the Brcko Assembly in respect of the latter. However, in the Entities salary increases are linked to increases in average salaries in the two Entities. Under the proposed laws prepared by the working group, salaries will not be increased until such time as the average monthly net salary of BiH (as published by the Agency for Statistics of BiH) reaches 800 KM over a calendar year. Once the average net salary of BiH reaches 800 KM, it is proposed that the salaries of judges and prosecutors at all levels will be increased annually by the percentage increase (if any) in the average monthly net salary of BiH. This percentage increase will be calculated by comparing the average monthly net salary of BiH over a calendar year with the average monthly net salary of the previous year. If the average net monthly salary of BiH remains the same or decreases over a calendar year, there will be no increase in the salaries of judges/prosecutors. In addition, following a decrease in the average monthly net salary of BiH over a calendar year, judges and prosecutors will not receive an increase in their salaries until such time as the average monthly net salary of BiH re-reaches the peak which it attained during the period since the mechanism for increasing salaries was initiated, i.e. since the average monthly net salary of BiH reached 800 KM. Given that the salaries of judges and prosecutors cannot be reduced it is important to guard against the possibility that they may benefit disproportionately from every fluctuation of average monthly net salaries and this mechanism guards against that possibility. The following chart is illustrative of this point. In the first column of the chart a scenario is presented in terms of the average net salary of BiH - it is assumed that it decreases steadily over a period, that it drops for two years running and that it then recovers. In the second column, we show what would happen if the preventative mechanism outlined in the previous paragraph was not operable and in the third we show what would happen if it was operable. Average Monthly Net Salary of BiH Basic Monthly Salary of a Judge of a municipal court (mechanism not operable) Basic Monthly Salary of a Judge of a municipal court (mechanism operable) 700 2,400 2, ,400 2, ,640 2, ,904 2, ,904 2, ,098 2, ,485 2,904 1,000 3,872 3,227 1,100 4,259 3,549 As can be seen from the chart above, the aim of the mechanism is to ensure that, in so far as possible the ratio of 3:1 (in terms of average salaries to judicial salaries) is maintained once the 800KM threshold has been exceeded. It will not always be possible to maintain this ratio due to fluctuations in the average monthly salary of BiH. However, if the average salary of BiH steadily increases, so too will the basic monthly salary of judges and prosecutors. In addition, judges and prosecutors will benefit from certain increases doubly in a certain sense. This is best explained by looking at the above example. When the average monthly salary of BiH decreased from 968 to 750 the basic monthly salaries of judges and prosecutors remained the same and did not increase again until the average monthly salary increased to However, the percentage increase given to judges at that stage is the jump from 900 to 1,000 as opposed to 968 to 1,000. The working group discussed in detail the appropriate ratio (in terms of average salaries to judicial salaries) which should be attained. As you will have noted from section 5 of this report this ratio varies from country to country but 3:1 appears to be in line with European best practice as most countries have a ratio in the range from 1.3 to

47 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The process outlined in proposed Article 5 should rectify the current system of abnormally high judicial salaries (when compared with average salaries) over time. The proposed article 5 would also secure that salaries remain harmonized throughout all jurisdictions and that they do not depend on decisions of the legislative or executive. 7.3 Duties, rights and entitlements of judges and prosecutors The proposed laws outline the duties, rights and entitlements of judges and prosecutors. As discussed in section 6 of this Report, judges and prosecutors were once entitled to a range of benefits including a hot meal allowance, certain transport costs, duty shift allowances. By way of two RS laws and one Federation law, these benefits were radically reduced in However, in the Federation since December of last year judges of the Federation (those appointed before the reduction became effective) regained their right to the full range of benefits. In the Entities we, therefore, have a situation where judges of the Federation are entitled to the full range of benefits and where judges and prosecutors of the RS and prosecutors of the Federation are not so entitled. At State level we have a situation where judges and prosecutors are also entitled to the short list of benefits and where the judiciary in Brcko are not (and indeed never were) so entitled. In the draft laws it is proposed that the range of benefits be harmonized and reduced (in certain cases) to those outlined in subsections to below. The cost savings which are generated by the elimination of each benefit are outlined in the attached Annex 12. These cost reductions will be transformed into savings once the competent authorities have adequate funds. If the draft laws prepared by the working group are accepted, the cost reductions per annum in respect of all benefits would be 3,187,720 KM. The cost savings in respect of the hot meal allowance would be approximately 1.5 million KM, in respect of the transport allowance approximately 0.5 million KM, in respect of the duty shift allowance approximately 0.8 million KM and in respect of the separate living allowance approximately 128,000 KM Minimum working hours (Article 6) Under the draft laws proposed by the working group, each judge/prosecutor at Entity and BiH level and of Brcko District would be obliged to work forty hours per week. This is in accordance with other legislation in BiH Number of Annual Leave Days (Articles 7 and Article 8) The current law on salaries in the Federation provides that each judge/prosecutor is entitled to 30 days of annual leave and paid absence of up to seven working days in one calendar year. The current laws on salaries in the RS provide that a judge/prosecutor is entitled to 30 days annual leave which can be extended by an additional 6 days under extraordinary circumstances in accordance with the law. At State level judges and prosecutors are entitled to 30 days annual leave according to an internal decision. The leave day of judges and prosecutors in Brcko District are regulated by the Book of Rules of Employees in the Judiciary. According to this book of rules, all judges and prosecutors are entitled to 18 days of annual leave. However, they are also entitled to additional leave days - one day for every three years of service, 4 days for promotion, 1 day for each child they have under 7 and 2 days for single parents. 27 For the purpose of these calculations it was assumed that the average hot meal allowance per judge and prosecutor per month was 132 KM, the average transportation allowance 44 KM, the average duty shift allowance 70 KM and the average separate living allowance 11 KM. These averages are based on historical data from 2002/2003. In addition, Brcko was excluded from this analysis as its judges and prosecutors do not receive these allowances nor are they entitled to receive them. 45

48 Draft New Laws Prepared by the Working Group Under the proposed draft laws prepared by the working group each judge/prosecutor at Entity and BiH level and of Brcko District would be entitled to thirty days of annual leave plus two paid and two non-paid annual leave days to fulfill religious commitments. Each judge and prosecutor would also be entitled to up to seven days of Extraordinary Annual leave which can be taken if certain events occur, e.g. marriage of the judge/prosecutor. The aim of these provisions is to standardize leave days for the judiciary throughout the country Amount of Annual Leave Bonus In the Federation, under the Collective Agreement each judge/prosecutor is entitled to 70% of his net salary as an annual leave bonus. However, in practice judges and prosecutors do not receive this amount. For example, they receive 314 KM in Canton 1, 300 KM in Canton 2, 200 KM in Canton 3, 150 KM in Canton 4 and 350 KM in Canton 8. In the RS, under the Collective Agreement judges and prosecutors are entitled to a holiday bonus equal to the minimum price of labor in the RS multiplied by three. They usually actually receive much less. At a State level judges and prosecutors are entitled to a holiday bonus of 70% of the basic salary. Finally, in Brcko judges and prosecutors are not entitled to an annual holiday bonus. If the proposed laws drafted by the working group were adopted, judges of the Federation would be entitled to 50% of the basic monthly salary of judges of the Municipal Courts, judges of the RS would be entitled to 50% of the basic monthly salary of judges of the Basic Courts and judges of Brcko would be entitled to 50% of the basic monthly salary of judges of Brcko Basic court as a holiday bonus. Prosecutors would receive a similar bonus. Judges of the Court of BiH (including heads of department and the president of the court) would receive 50% of the basic monthly salary of judges of that Court and prosecutors of the Prosecutor s Office of BiH (including heads of section, the Deputy Chief Prosecutor and the Chief Prosecutor) would receive 50% of the basic monthly salary of prosecutors of that office. The working group encountered problems with recommending the appropriate level of holiday bonus which should be allocated to judges and prosecutors. This is primarily because, as outlined above, the actual amount paid to judges and prosecutors is, in many instances, far less than that to which they are entitled under the law. It is also interesting to note that some courts and prosecutors offices do not record the difference as an accumulated debt and this compounds the difficulties. If the current proposal of the working group is adopted it will mean that cost reductions of 196,240 KM will be generated.28 However, this is misleading because of the actual amounts which are paid in respect of this allowance. If the current proposal of the working group is adopted the amount payable under that proposal (1,339,360 KM) and the amount actually currently paid (194,000 KM) 29 will result in actual cash cost increases of 1,145,360 KM. As many courts do not currently record the difference between what is owed, in terms of this benefit, under the law and that which is actually paid this may result in the balance sheets of many courts looking worse than they were before the reform. The situation in relation to the holiday bonus only crystallized after the working group sessions had come to a close. Under these circumstances we suggest that this matter should be revisited when the legislation is being discussed further as part of the adoption process. The Chairman of the Working Group suggests that thought should be given to awarding an annual holiday bonus to each judge and prosecutor in the amount of one average net monthly salary of BiH in the year previous to the year in which the bonus is payable. In 2005, for example, this would cost the sum of 505,000 KM (the average net monthly salary of BiH as per data of the Agency for Statistics of BiH was 505 KM for 2004). This would mean that cost reductions of 1,030,600 KM would be generated (the current cost of the benefit according to the law less 505,000KM). As above, however, this is misleading because the holiday 28 The current cost according to the law of this benefit is 1,535,600 KM. For the purpose of this calculation it was assumed that the minimum price of labor in the RS is 82 KM, that the benefit was 70% of the basic salary at the level of BiH, that the benefit was 70% of each judge s/prosecutor s own salary in FBiH and that in Brcko District judges and prosecutors are not entitled to the benefit. Under the proposal of the working group the cost of this benefit would be reduced to 1,339,360 KM. 29 It is assumed on this basis that each judge and prosecutor receives on average 200 KM per month except in Brcko District. 46

49 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA bonus is not paid in accordance with the law. However, the actual cost increases would amount to 311,000 KM which is far less than that under the proposal outlined above. In addition, the situation in relation to holiday bonus would be clear and there would be legal security for those obliged to make the payment Leave of Absence without pay (Article 9) The HJPC can, in accordance with Article 17(13) of the Law on the HJPC, grant a leave of absence to a judge or prosecutor. The draft law prepared by the working group envisages that judges and prosecutors could be paid during such leaves of absence in certain circumstances to be decided upon by the HJPC in cooperation with the relevant Ministry of Justice. We anticipate that the HJPC may direct that a judge or prosecutor continue to receive his salary if he is carrying out duties during his leave of absence which are consistent with the judicial function, e.g. assisting with the drafting of certain laws, etc. In addition, it may be that a judge or prosecutor needs to attend a particular and longer educational course in order to better carry out his functions and, again, it may be decided that he should be remunerated during this period. In the current laws the payment of salaries during a leave of absence is not regulated Compensation when retiring (Article 10) In the amendments of 2003 to the current salary laws in the RS it was stated that severance payments when retiring should continue to be paid. In addition, the 2003 amendments in the RS stating that bylaws regulating severance payment when retiring should be passed within 30 days of the passing of the 2003 amendments. Currently, the severance payment which is paid is three average salaries of employees in the judiciary. In the Federation the law varies from canton to canton. However, in most cantons the amount due is the three most recent monthly salaries of the person who is retiring or three average salaries in FBiH (whichever is more favorable). At a state level the Decision on the manner of calculating salaries and other compensations of the employees of the Council of Ministers of BiH and other institutions and bodies of the Council of Ministers of BiH provides that each judge and prosecutor is entitled to a retirement severance payment in the amount of his three monthly salaries paid out during the previous three months. In Brcko no such benefit is payable. In Article 10 of the draft laws prepared by the working group it is proposed that judges and prosecutors receive one basic monthly salary as stipulated in Articles 2 and 3 of each of the draft laws. The law will also standardize the payments due across all of BiH. The draft laws also outline the fact that judges and prosecutors are entitled to health insurance, sick leave, pension and disability insurance in accordance with the applicable laws, be they at Entity of BiH level or the laws of Brcko District Travel Costs (Article 13) Article 42 of the law on judges and prosecutors salaries in the Federation provides that judges and prosecutors are entitled to compensation incurred during official trips (per diem, transportation expenses and so on). Article 48 of the current law on prosecutors salaries in the RS provides that prosecutors have a right to costs incurred during business trips (per diems, transportation costs and lodging costs). Article 94 of the current law on judges salaries of the RS contains a similar provision. The Decision on temporary financing of the Court and Prosecutor s Office of BiH provides that judges and prosecutors are entitled to per diems for official trips and to the costs of accommodation on official trips. In Brcko the Book of Rules of Employees of the Judiciary provides that judges and prosecutors are entitled to per diems of 50KM and their transport and hotel accommodation is also covered. The draft laws prepared by the working group provide that judges and prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties. Compensation is calculated based on the relevant government regulations and they must be within the budget of the court/prosecutor s office. 47

50 Draft New Laws Prepared by the Working Group Compensation for Educational Expenses (Article 14) Article 44 of the law on judges and prosecutors salaries in the Federation outlines the obligations of judges and prosecutors in relation to their participation in educational events. It does not address the question of expenses incurred as a result of this participation. Article 97 of the law on judges salaries in the RS provides that judges shall be compensated for participating in educational events which take place outside of their permanent place of residence. There is no such provision in the law on prosecutors salaries in the RS. At a State level, in terms of educational expenses, judges and prosecutors are entitled to compensation for educational expenses and this is regulated by Section XXVI of the Decision on the manner of calculating salaries and other compensations of the employees of the Council of Ministers of BiH and other institutions and bodies of the Council of Ministers of BiH. In Brcko the Book of Rules of Employees of the Judiciary provides that judges and prosecutors are entitled to expenses incurred when attending educational events. These are similar to those which they are entitled to in terms of business expenses. The draft laws prepared by the working group provide that judges and prosecutors would be entitled to compensation for educational expenses in accordance with the relevant government regulations Compensation for assignment with or without consent Under the Law on the HJPC there is a possibility that a judge can be assigned to another court with or without his consent (see further Articles 50 and 51 of the Law on the HJPC). The HJPC law does not, however, outline how his/her expenses will be compensated in this regard. The draft law prepared by the working group states that the HJPC, in cooperation with the relevant ministry of justice, is to promulgate rules in relation to the compensations payable and how these compensations will be calculated. 48

51 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 1 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES LETTER FROM THE HIGH REPRESENTATIVE DATED 25 JANUARY 2005 ESTABLISHING THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES 49

52

53 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 51

54 Annex 1 52

55 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 2 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES CONCLUSIONS OF THE WORKING GROUP ON THE REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 53

56

57 Conclusions of the Working Group for Reform of Salaries for Judges and Prosecutors in Bosnia and Herzegovina 1. Introduction The High Representative initiated the establishment of the Working Group for Reform of Judicial Salaries by way of letter dated 25 January, The Working Group has had the following 10 members: Mr. Sven Marius Urke, International Member of the HJPC, Chairman; Milana Popadic - Representative of the Ministry of Justice of BiH; Snezana Marjanac - Assistant Minister of Justice of the RS; Ediba Tafro - Expert Associate of the MoJ of FBiH; Amor Bukic - Chief Prosecutor of the RS and member of the HJPC; Ljiljana Filipovic - Judge of the Federation Supreme Court and member of the HJP; Alexandra Martinovic - Judge of Sarajevo Cantonal Court and President of the Association of Judges of FBiH; Zdravko Knezevic - Chief Prosecutor of FBiH and Representative of the Association of Prosecutors of FBiH; Veljko Ikanovic, Judge of the RS Supreme Court and representative of the Association of Judges and Prosecutors of the RS; Nada Majinovic - President of the Judicial Commission of Brcko District. Baric Zelimir) - Judge of the RS Supreme Court and representative of the Association of Judges and Prosecutors of the RS (attending on behalf of Veljko Ikanovic); Adis Hodzic and Lynn Sheehan of the HJPC Secretariat assisted the Working Group. 2. All members of the Working Group agree on the following: That the decisions of the High Representative to freeze judicial and prosecutorial salaries and to establish a Working Group for reform of judicial and prosecutorial salaries were welcome initiatives. That the salaries of judges and prosecutors at the various levels in the Republika Srpska and the Federation of Bosnia and Herzegovina should be harmonized. That the specific organisational structure of the judicial and prosecutorial services in Brcko justifies a specific salary structure for Brcko that is different to that of the Entities. That the constitutional protection for judges salaries should not be eliminated but should instead be extended to include prosecutors. That future growth of judicial salaries should be linked to a reference point that secures continued harmonisation of salaries within BiH. Future salary increases should not depend on annual decisions of the executive or legislative authorities but should instead be automatic as a result of the link to the aforementioned reference point. That any saving generated by the proposed reform should be earmarked for investment in the judiciary and prosecution and this process should be monitored by the HJPC. That if judicial salaries are to be reduced, the position of the working group is that they should be in accordance with the system and not go below the levels in Articles 2 and 3 of the draft legislation presented by the working group. 3. A majority of the members of the Working Group - except Ljiljana Filipovic, Zdravo Knezevic and Alekandra Martinovic - agree that it is necessary to slightly reduce judicial and prosecutorial salaries as outlined in Articles 2 and 3 of the draft laws. 55

58 Annex 2 4. A majority of the members of the Working Group - except Zdravo Knezevic and Alexandra Martinovic - agree on the following: That the proposed reductions at the various levels are reasonable when taking into account the financial situation of the Bosnia and Herzegovina, the need to improve the financing of operational and capital expenditure of courts and prosecutors offices and, finally, the need to, over time, increase the salaries of the support staff and to reduce the accumulated debt in the judiciary and prosecution. That the salaries of judges and prosecutors should not increase until such time as the average salary in BiH has reached 800 KM. 800KM represents one third of the lowest salary for judges and prosecutors as regulated in Articles 2a and 3a of the proposed legislation That from the year subsequent to the year in which the average salary of BiH reaches 800 KM, the salaries of judges and prosecutors shall increase on an annual basis by the same percentage amount as the average salary of BiH. The details of how the mechanism will work are outlined at Article 5 of the proposed law. That the solutions expressed in Articles 4 and 6 to 14 of the proposed legislation represent a reasonable compromise in respect of the issues dealt with in these articles. 5. A majority of the working group members - except Ljilana Filipovic, Zdravo Knezevic, Baric Zelimir and Alexandra Martinovic - agree that the High Representative should suspend the application of the relevant Federation, RS and Cantonal constitutional provisions which hinder a reduction of salaries and benefits of judges and prosecutors until the proposed law has been passed by the competent legislative bodies. 56

59 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 3 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES PROPOSED LEGISLATION PREPARED BY THE WORKING GROUP ON JUDICIAL SALARIES AT BIH AND ENTITY LEVEL AND IN BRCKO DISTRICT 57

60

61 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS AT THE LEVEL OF THE STATE OF BOSNIA AND HERZEGOVINA I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors at the level of the State of Bosnia and Herzegovina. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary of Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of the Court of Bosnia and Herzegovina: 3,800 KM (b) For Heads of Departments of the Court of Bosnia and Herzegovina: 4,000 KM. (c) For the President of the Court of BiH: 4,400 KM. Article 3 Basic Monthly Salary of Prosecutors The Basic Monthly Salary of Prosecutors shall be as follows: a) For Prosecutors of the Prosecutor s Office of Bosnia and Herzegovina: 3,800 KM. b) For Heads of Sections of the Prosecutor s Office of Bosnia and Herzegovina: 4,000 KM. c) For the Chief Prosecutor of the Prosecutor s Office of Bosnia and Herzegovina: 4,400. Article 4 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2 and 3 of this Law respectively shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 5 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2 and 3 of this Law shall not be increased until such time as the average monthly net salary of BiH, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of BiH, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2 and 3 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovia. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in BiH over a calendar year with the average monthly net salary in BiH in the previous calendar year. 59

62 Annex 3 4. In the event that in any year the average monthly net salary of BiH, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of BiH, calculated over a calendar year, reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 6 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2 and 3 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 7 Annual Paid Leave 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of annual leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in Articles 2a and 3a respectively. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Regulations on Internal Operations of the respective court/prosecutor s office. Article 8 Extraordinary Paid Leave In addition to the Annual Leave as provided for in Article 7 of this Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step Father, Step Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand- Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent residence to another: 1 day. 60

63 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 9 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of Bosnia and Herzegovina in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 10 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively as compensation when retiring. Article 11 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant laws on health insurance in either the Republika Srpska or the Federation of Bosnia Herzegovina depending on the permanent residence of the Judge or Prosecutor. Article 12 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with the relevant laws on pensions and disability insurance in either the Republika Srpska or the Federation of Bosnia Herzegovina depending on the permanent residence of the Judge or Prosecutor. Article 13 Travel Costs Judges and Prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) in accordance with relevant BiH government regulations and within the approved budget of the court/prosecutor s office. Article 14 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the Regulations on Internal Operations of the court/prosecutor s office and within the approved budget of the court/prosecutors office. Article 15 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of BiH. 61

64 Annex 3 II FINAL PROVISIONS Article 16 Repealing of Provisions The provisions contained in other laws, regulations or decisions at the level of the State of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 17 Publication and Entering into Force This law shall enter into force from 1 January

65 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN THE FEDERATION OF BOSNIA AND HERZEGOVINA I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors in the Federation of Bosnia and Herzegovina. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Municipal Courts: 2,400 KM. (b) For Heads of Department of Municipal Courts: 2,600 KM. (c) For Court Presidents of Municipal Courts: 2,800 KM. (d) For Court Presidents of Municipal Courts with 30 judges or more: 3,200 KM. (e) For Judges of Cantonal Courts: 3,000 KM. (f) For Heads of Department of Cantonal Courts: 3,200 KM. (g) For Court Presidents of Cantonal Courts: 3,400 KM. (h) For Judges of the Constitutional Court of the Federation of Bosnia and Herzegovina and Judges of the Supreme Court of the Federation of Bosnia and Herzegovina: 3,800 KM. (i) For Head of Departments of the Constitutional Court of the Federation of Bosnia and Herzegovina and the Supreme Court of the Federation of Bosnia and Herzegovina: 4,000 KM. (j) For the Court Presidents of the Constitutional Court of the Federation of Bosnia and Herzegovina and the Supreme Court of the Federation of Bosnia and Herzegovina: 4,400 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutors shall be as follows: (a) For Prosecutors of Cantonal Prosecutors Offices: 2,400 KM. (b) For Heads of Section of Cantonal Prosecutors Offices: 2,600 KM. (c) For Deputy Chief Prosecutors of Cantonal Prosecutors Offices: 3,000 KM. (d) For Chief Prosecutors of Cantonal Prosecutors Offices: 3,400 KM (e) For Prosecutors of the Entity Prosecutor s Office: 3,800 KM. (f) For the Deputy Chief Prosecutor of the Entity Prosecutor s Office: 4,000KM. (g) For the Chief Prosecutor of the Entity Prosecutor s Office: 4,400 KM. 63

66 Annex 3 Article 4 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2 and 3 of this Law respectively shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 5 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2 and 3 of this Law shall not be increased until such time as the average monthly net salary of B, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of BiH, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2 and 3 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovina. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in BiH over a calendar year with the average monthly net salary in BiH in the previous calendar year. 4. In the event that in any year the average monthly net salary of BiH, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of BiH calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 6 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2 and 3 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 7 Annual Paid Leave 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of annual leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in Articles 2a and 3a respectively. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Regulations on Internal Operations of the respective court/prosecutor office. 64

67 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 8 Extraordinary Paid Leave In addition to the Annual Leave as provided for in Article 7 of this Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step Father, Step Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand- Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent residence to another: 1 day. Article 9 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council, in cooperation with the Federal Ministry of Justice in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 10 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively as compensation when retiring. Article 11 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of the Federation of Bosnia and Herzegovina. Article 12 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with the relevant law on pensions and disability insurance of the Federation of Bosnia and Herzegovina. Article 13 Travel Costs Judges and Prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) in accordance with the relevant Federation Government regulations and within the approved budget of the court/prosecutor s office. 65

68 Annex 3 Article 14 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the Regulations on Internal Operations of the court/prosecutor s office and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Federation Ministry of Justice. II FINAL PROVISIONS Article 16 Repealing of Provisions The provisions contained in other laws, regulations or decisions of the Federation of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 17 Publication and Entering into Force This law shall enter into force from 1 January

69 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN THE REPUBLIKA SRPSKA I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors in the Republika Srpska. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Basic Courts: 2,400 KM. (b) For Heads of Department of Basic Courts: 2,600 KM. (c) For Court Presidents of Basic Courts: 2,800 KM. (d) For Court Presidents of Basic Courts with 30 judges or more: 3,200 KM. (e) For Judges of District Courts: 3,000 KM. (f) For Heads of Department of District Courts: 3,200 KM. (g) For Court Presidents of District Courts: 3,400 KM. (h) For Judges of the Constitutional Court of the Republika Srpska and Judges of the Supreme Court of the Republika Srpska: 3,800 KM. (i) For Head of Departments of the Constitutional Court of the Republika Srpska and the Supreme Court of the Republika Srpska: 4,000 KM. (j) For the Court Presidents of the Constitutional Court of the Republika Srpska and the Supreme Court of the Republika Srpska: 4,400 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutors shall be as follows: (a) For Prosecutors of District Prosecutors Offices: 2,400 KM. (b) For Heads of Section of District Prosecutors Offices: 2,600 KM. (c) For Deputy Chief Prosecutors of District Prosecutors Offices: 3,000 KM. (d) For Chief Prosecutors of District Prosecutors Offices: KM (e) For Prosecutors of the Republic Prosecutor s Office: 3,800 KM. (f) For the Deputy Chief Prosecutor of the Republic Prosecutor s Office: 4,000 KM. (g) For the Chief Prosecutor of the Republic Prosecutor s Office: 4,400 KM. 67

70 Annex 3 Article 4 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2 and 3 of this Law respectively shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 5 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2 and 3 of this Law shall not be increased until such time as the average monthly net salary of BiH, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of BiH, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2 and 3 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovina. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in BiH over a calendar year with the average monthly net salary in BiH in the previous calendar year. 4. In the event that in any year the average monthly net salary of BiH, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of BiH calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 6 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2 and 3 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 7 Annual Paid Leave 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of annual leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in Articles 2a and 3a respectively. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Regulations on Internal Operations of the respective court/prosecutor s office. 68

71 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 8 Extraordinary Paid Leave In addition to the Annual Leave as provided for in Article 7 of this Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step-Father, Step-Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand-Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent address to another: 1 day. Article 9 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of the Republika Srpska in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 10 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively, as compensation when retiring. Article 11 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of the Republika Srpska. Article 12 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with the relevant law on pensions and disability insurance of the Republika Srpska. Article 13 Travel Costs Judges and Prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) in accordance with the relevant Republika Srpska Government regulations and within the approved budget of the court/prosecutor s office. 69

72 Annex 3 Article 14 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the Regulations of Internal Operations of the court/prosecutor s office and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his7her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of the Republika Srpska. II FINAL PROVISIONS Article 16 Repealing of Provisions The provisions contained in other laws, regulations or decisions of the Republika Srpska that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 17 Publication and Entering into Force This law shall enter into force from 1 January

73 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN BRCKO DISTRICT I GENERAL PROVISION Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors of Brcko District. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Brcko Basic Court: 2,980 KM. (b) For the Court President of Brcko Basic Court: 3,200 KM. (c) For Judges of Brcko Appellate Court: 3,200 KM. (d) For the Court President of Brcko Appellate Court: 3,500 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutors shall be as follows: (a) For Prosecutors of Brcko Prosecutor s Office: 2,980 KM (b) For Deputy Chief Prosecutors of Brcko Prosecutor s Office: 3,100 KM (c) For Chief Prosecutors of Brcko Prosecutor s Office: 3,400 KM Article 4 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2 and 3 of this Law respectively shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 5 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2 and 3 of this Law shall not be increased until such time as the average monthly net salary of BiH, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of BiH, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2 and 3 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovia. 71

74 Annex 3 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in BiH over a calendar year with the average monthly net salary in BiH in the previous calendar year. 4. In the event that in any year the average monthly net salary of BiH, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of BiH calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 6 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2 and 3 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 7 Annual Paid Leave 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of annual leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in Articles 2a and 3a respectively. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Regulations on Internal Operations of the respective court/prosecutor s office. Article 8 Extraordinary Paid Leave In addition to the Annual Leave as provided for in Article 7 of his Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step-Father, Step-Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand-Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent residence to another: 1 day. 72

75 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 9 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council, in cooperation with the Brcko Judicial Commission in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 10 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively as compensation when retiring. Article 11 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of Brcko District. Article 12 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with relevant laws on pensions and disability insurance of the Republika Srpska or the Federation of Bosnia and Herzegovina depending on the pension fund to which they pay contributions. Article 13 Compensation for Travel Costs Judges and Prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) in accordance with the relevant Book of Rules for Employees in the Judiciary of Brcko District and within the approved budget of the court/prosecutor s office. Article 14 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the Regulations on Internal Operations of the court/prosecutor s office and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Brcko Judicial Commission. 73

76 Annex 3 III FINAL PROVISIONS Article 16 Repealing of Provisions The provisions contained in other laws, regulations or decisions of Brcko District that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 17 Publication and Entering into Force This law shall enter into force from 1 January

77 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 4 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES CHART COMPARING SALARIES OF JUDGES AND PROSECUTORS WITH NON-JUDICIAL STAFF SALARIES IN COURTS AND PROSECUTORS OFFICES 75

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79 Entity/ Brcko District Level Average net salary for judges. prosecutors and administrative staff in courts and prosecutor s offices in BiH Name of court/prosecutor's office Average net salary - Admin. staff Average salary (MEDIAN) Judicial salary - 20 years experience Judicial salary / admin. staff average salary Judicial salary / MEDIAN Court BiH Sarajevo Average , ,403 PO BiH PO BiH Average 1, , ,497 FBIH Supreme Court FBiH Sarajevo Average , ,360 RS Supreme Court RS Banja Luka Average , Brcko Brcko Apellate Court Brcko Apellate Court Average 1, , , ,504 FBIH Cantonal Court Bihac Average , ,372 FBIH Cantonal Court Tuzla Average , FBIH Cantonal Court Posavina Average , FBIH Cantonal Court Zenica Average , FBIH Cantonal Court Gorazde Average , FBIH Cantonal Court Travnik Average , FBIH Cantonal Court Mostar Average , ,148 FBIH Cantonal Court Siroki Brijeg Average , FBIH Cantonal Court Sarajevo Average , ,198 FBIH Cantonal Court Livno Average , RS District Court Banja Luka Average , RS District Court Bijeljina Average , RS District Court Doboj Average , RS District Court Trebinje Average , RS District Court Istocno Sarajevo Average , MAX Brcko Brcko Basic Court Brcko BC Average ,125 FBIH Municipal Court Bihac Average , FBIH Municipal Court Bosanska Krupa Average , FBIH Municipal Court Velika Kladusa Average , FBIH Municipal Court Sanski Most Average , FBIH Municipal Court Cazin Average , FBIH Municipal Court Orasje Average , FBIH Municipal Court Tuzla Average , FBIH Municipal Court Gracanica Average , FBIH Municipal Court Gradacac Average , FBIH Municipal Court Kalesija Average , FBIH Municipal Court Zivinice Average , FBIH Municipal Court Zenica Average , FBIH Municipal Court Zepce Average , FBIH Municipal Court Zavidovici Average , FBIH Municipal Court Visoko Average , FBIH Municipal Court Kakanj Average , FBIH Municipal Court Tesanj Average , FBIH Municipal Court Gorazde Average , FBIH Municipal Court Travnik Average , FBIH Municipal Court Bugojno Average , FBIH Municipal Court Kiseljak Average , FBIH Municipal Court Mostar Average , FBIH Municipal Court Capljina Average , FBIH Municipal Court Konjic Average , ,011 FBIH Municipal Court Siroki Brijeg Average , FBIH Municipal Court Ljubuski Average , FBIH Municipal Court Sarajevo Average , FBIH Municipal Court Livno Average , RS Basic Court Banja Luka Average , RS Basic Court Bosanska Gradiska Average , RS Basic Court Prijedor Average , RS Basic Court Prnjavor Average , RS Basic Court Kotor Varos Average , RS Basic Court Mrkonjic Grad Average , RS Basic Court Novi Grad Average , RS Basic Court Bijeljina Average , RS Basic Court Srebrenica Average , RS Basic Court Zvornik Average , RS Basic Court Doboj Average , RS Basic Court Modrica Average , RS Basic Court Teslic Average , RS Basic Court Derventa Average , RS Basic Court Trebinje Average , RS Basic Court Foca Average , RS Basic Court Sokolac Average , RS Basic Court Visegrad Average , RS Basic Court Vlasenica Average , FBIH FBiH PO Average , ,372 RS RS Prosecutor's Office Banja Luka Average , ,288 Brcko Brcko PO Brcko PO Average , ,497 FBIH Prosecutor s Office Bihac Average , FBIH Prosecutor s Office Odzak Average , FBIH Prosecutor s Office Tuzla Average , FBIH Prosecutor s Office Zenica Average , FBIH Prosecutor s Office Gorazde Average , FBIH Prosecutor s Office Travnik Average , FBIH Prosecutor s Office Mostar Average , ,140 FBIH Prosecutor s Office Siroki Brijeg Average , FBIH Prosecutor s Office Sarajevo Average , FBIH Prosecutor s Office Livno Average , RS District PO Banja Luka Average , ,321 RS District PO Bijeljina Average , RS District PO Doboj Average , RS District PO Trebinje Average , RS District PO Istocno Sarajevo Average , GRAND AVERAGE

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81 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 5 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES GRAPH SHOWING THE BUDGET ALLOCATIONS FOR COURTS AND PROSECUTORS OFFICES IN EACH CANTON AND IN THE RS FOR 2005 TOGETHER WITH THE BUDGET ALLOCATION RECOMMENDED BY THE HJPC. THE GRAPH ALSO SHOWS THE ACCUMULATED DEBT OF EACH DISTRICT/CANTON 79

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83 2005 judicial budget (62 First and Second Instance Courts) 81

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85 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 6 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES CHARTS AND GRAPHS SHOWING COMPARATIVE DATA ON JUDICIAL SALARIES IN 38 COUNTRIES 83

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87 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 85

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89 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 87

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91 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 7 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES LEGISLATION IN FORCE IN RELATION TO JUDICIAL SALARIES AT THE TIME OF THE ESTABLISHMENT OF THE WORKING GROUP 89

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93 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA EXTRACT FROM THE FBIH LAW ON COURTS AND JUDICIAL SERVICE 30 Article 34 A judge or prosecutor has a right to a salary that is adequate for a judicial or prosecutorial position, or a position for which he/she is appointed or elected. Provisions set forth in Articles 35 through 46 of this Law represent the minimum salary structure for judges and prosecutors working at the Federation level. For judges and prosecutors working at the cantonal and municipal levels, the following provisions represent general principles that shall regulate this issue throughout the Federation. Such general principles shall not preclude cantonal governments from enacting legislation that may provide for a different salary structure as long as compensation does not fall below the levels defined in the provisions set forth in Articles 35 through 46 of this Law. Article 35 The initial basis for calculation of judicial or deputy prosecutor salary for all judges and deputies is the same and is 2,5 of the average net salaries of employees in the FBiH in the last month of the year previous the year of paying out. Judges and deputy prosecutors are categorised in three salary grades: the first grade are the judges of municipal courts and deputies of municipal prosecutors, second are the judges of cantonal courts and deputies to the cantonal prosecutor, and third are the judges of the Federation level courts of FBH and deputies of Federal prosecutor. The coefficient for first salary grade is 1,5, for second 1,8, and for third 2,1. Article 36 Salary is determined in a way that the basis from the previous Article is multiplied by the coefficient of salary grade and increased by a judicial or prosecutor. addition due to incompatibility of the service in the judiciary and prosecution with other works, and the total amount is increased based on working experience. The addition for first category is 25%, for second 35% and for the third 50%. Salary is.increased by 0,5% for every started year of working experience, up to a maximum of 20%. Article 37 The salary of Presidents, or acting Presidents of courts is increased for the managerial function, and 10% for municipal courts and 20% for cantonal and the Federation level courts of FBH. The salary of the Federation, cantonal and municipal prosecutors shall be determined by the same criteria as the salaries of the presidents of the Federation level, cantonal and municipal courts. Article 38 To the judges or prosecutors who are performing investigation service on duty belongs special addition for work, which is counted, according to the regular provisions as work under special conditions. 30 Imposed in 2000 by the High Representative; Adopted in 2001 by the FBiH Parliament, published in OG FBiH no: 20/01 and 57/01. 91

94 Annex 7 Article 39 In a case in which in one of the courts or prosecutor offices all positions cannot be filled due to the impossibility of providing personnel, judges or prosecutors that are performing work there have special advantage in salary, so the basic salary is increased for up to 50% depending on the increase of the workload created by the shortage of personnel. Article 40 The judge or prosecutor has a right to compensation up to the amount of one salary during a period of annual leave and paid absence and for first 30 days of the absence from work due to sickness or disability. Article 41 A judge or prosecutor has a right to remuneration for certain specific expenses: 1. Compensation for travel expenses to and from the work; 2. Compensation for food during working hours; 3. Regress for annual leave 4. Compensation for separate life from the family; 5. Compensation for travel expenses for non-working days from the place of work in which they have an official apartment, to the place of permanent residence and back, in other words compensation for the expense of travel to the place of residence of his/her family during the weekends, state holidays and non-working days; 6. Compensation for moving expenses from the place of permanent residence to the place where the official apartment is and back; 7. Compensation for education expenses; 8. Anniversary rewards; 9. Severance pays while retiring. Article 42 The Judge or prosecutor has a right to compensation for expenses concerning official trips (per diem, transportation expenses and so on). Article 43 A judge or prosecutor has a right to annual leave of 30 days and paid absence of 7 working days in one calendar year. Usage of annual leave is determined according to annual work schedule, while taking care that most of the annual leave should be taken during the court holiday period (court holiday). Article 44 Judges or prosecutors are obliged to work permanently on their expert education, familiarisation with new laws, and to be familiar with court practice, including those of international courts. Judges or prosecutors have a right and obligation to participate in educational activities, seminars, or other gatherings of legal experts. After the Centre for education of judges has started with its work, commissions will periodically send their working proposals to the Centre, and participation of judges and prosecutors is obligatory. A President of the court or authorised prosecutor will decide on participation of judges or prosecutors in seminars and other kinds of educational activities, having in mind besides proportional participation of all the judges or prosecutors. 92

95 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 45 In the case that the court or prosecutor office stops working due to a permanent decrease in the volume of work or reorganisation of judicial authority, salary from the same category of salary shall be provided to a judge or prosecutor for 12 months, if he/she cannot be assigned to some other court of prosecutor office. Article 46 Allocating the judge or prosecutor for work on temporary basis to some other court or prosecutor office will be in accordance with Federation and cantonal regulations. During temporary work in another court or prosecutor s office, a judge or prosecutor achieves receipt of the salary scale of the court or prosecutor s office from which he has been assigned for temporary service or the salary scale of the court or prosecutor s office in which he performs temporary work, depending on which is more favourable for the judge or prosecutor. Article 47 Pensions of the judge or prosecutor are determined on pension basis that represents his/her average monthly salary in calendar year before gaining his right to a pension. 93

96 Annex 7 EXTRACT FROM THE RS LAW ON COURTS AND JUDICIAL SERVICE Salaries and compensation of judges Article 87 A judge shall be entitled to a salary corresponding to his/her judicial post or position to which he/she was appointed. Judges shall be classified under three salary groups. Municipal court judges fall under the First Salary Group. District court judges fall under the Second Salary Group. Republika Srpska Supreme Court judges fall under the Third Salary Group. Article 88 The basis for judges salary calculation shall be equal to three average net salaries of employees in Republika Srpska in the preceding month. Article 88 Judges salaries shall be calculated as follows: the basis referred to in the previous paragraph shall be multiplied by salary category coefficient, plus the judicial bonus (hereinafter: judicial bonus), so the total whole amount shall be increased for 0.5% for each year of work commenced, the maximum being 20%. A judge shall be entitled to judicial bonus due to incompatibility of judicial duties as envisaged in Article 6, Paragraph 3 of this Law and that bonus shall be 35%. Special bonus under Article 93 of this Law shall be given to duty judges. Article 90 The following salary categories shall be specified under respective salary groups: GROUP I Municipal court judge - coefficient 1.5 GROUP II District court judge - coefficient 1.8 GROUP III Supreme Court Judge - coefficient 2.1 Senior post bonus shall be added to salaries of court presidents and that bonus shall be 20%. Article 91 A judge is entitled to salary compensation in the amount of his/her salary for the duration of his/her summer vacation and extraordinary paid leave, as well as for the initial 30 days of his/her sick leave or disability leave. 31 OG RS, no: 13/00, 15/00, 16/00, 70/01, and 77/02. 94

97 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 92 The pension for the judges shall be regulated in accordance with regulations on pension and invalid insurance. Article 93 A judge shall be entitled to other personal income and compensation as follows: 1. Compensation for transport expenses to and from work 2. Compensation for catering at work 3. Holiday bonus 4. Separation allowance 5. Compensation for non-working days transport expenses, from place in which apartment for official use is located to place of permanent residence and back 6. Compensation for moving into place in which apartment for official use is located from place of permanent residence and back 7. Compensation for education expenses 8. Anniversary rewards 9. Retirement severance pay 10. Duty shifts bonus Article 94 A judge shall be entitled to compensation for business trip expenses (per diems, transport expenses, accommodation expenses). Article 95 A judge shall be entitled to annual leave in duration of 30 days, or up to 36 days under extraordinary circumstances in accordance with the law. A judge shall be entitled to extraordinary paid leave of absence for personal reasons of up to seven working days in a particular calendar year. 95

98 Annex 7 EXTRACT FROM THE LAW ON THE PROSECUTOR S OFFICES OF THE REPUBLIKA SRPSKA 32 Article 41 (1) Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors have the right to a salary corresponding to the prosecutorial position to which he/she has been appointed. (2) Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall be classified into three salary groups. (a) The first salary group shall consist of District Prosecutors. (b) The second salary group shall consist of Chief District Prosecutors and Deputy Chief District Prosecutors. (c) The third salary group shall consist of the Chief Republic Prosecutor, Deputy Chief Republic Prosecutors and Republic Prosecutors. Article 42 The basic rate for the calculation of the Chief Prosecutor s, Deputy Chief Prosecutor s, and Prosecutor s Salary shall be equal to three average net salaries of the employees of the Republika Srpska for the preceding month. Article 43 (1) Chief Prosecutors, Deputy Chief Prosecutors and Prosecutors salary shall be determined by multiplying the basic rate from the previous article by the coefficient of the salary class, which shall be increased by adding the Prosecutorial wage supplement, so that the total amount shall be increased for 0.5% for each year of work commenced, with a maximum of 20%. (2) Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall have the right to the Prosecutorial wage supplement due to the incompatibility of prosecutorial duty envisaged by Article 7 paragraph 2 of this law, and for all Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors it shall be 35%. Article 44 The following salary classes shall be determined: (1) GROUP I District Prosecutors - coefficient 1.5 (2) GROUP II Chief District Prosecutors and Deputy Chief District Prosecutors -coefficient 1.8 (3) GROUP III Chief Republic Prosecutors, Deputy Chief Republic Prosecutors and Republic Prosecutors-coefficient 2.1 (4) A senior post bonus of 20% shall be added to salaries of prosecutors who hold a Chief Prosecutor s position or are acting in the Chief Prosecutor s position. 32 OG RS, no. 55/02. 96

99 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 45 Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall have the right to salary compensation in the amount of the salary in the course of an annual leave and an extraordinary paid leave of absence and for the first thirty (30) days of absence from work due to sickness or disability. Article 46 A pension for Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall be regulated according to the regulations on pension and disability insurance. Article 47 The Chief Prosecutors, Deputy Chief Prosecutors and Prosecutors shall have the right to other personal earnings and compensations: 1. Compensation of costs for commuting to and from work, 2. Compensation for meal during office hours 3. Holiday cash grant 4. Compensation for living apart 5. Compensation for duty shifts 6. Compensation of costs for transportation in the course of the days off, from the place where he has an official apartment to the place of permanent residence and back 7. Compensation of costs of moving from the place of permanent residence to the place where he has an official apartment and back 8. Compensation of costs for education 9. Reward on the occasion of anniversaries 10. Indemnity when retiring Article 48 Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall have the right to the compensation of costs incurred during business trips (per diems, transportation costs, and lodging costs). Article 49 Chief Prosecutors, Deputy Chief Prosecutors, and Prosecutors shall have the right to an annual leave for the time period of thirty (30) days. Exceptionally, in accordance with the law, up to 36 days may be approved. 97

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101 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 8 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES AMENDMENTS TO THE LEGISLATION REFERRED TO IN ANNEX 7 99

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103 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA EXTRACT FROM THE 2003 AMENDMENTS TO THE FBIH LAW ON COURTS AND JUDICIAL SERVICE 33 Article 38 /deleted/ Article 41 A judge and prosecutor shall be entitled to other personal income and compensation as follows: 1. Retirement severance pay; 2. Holiday bonus; 3. Jubilee awards. 33 OG FBiH, no: 63/

104 Annex 8 EXTRACT FROM THE 2003 AMENDMENTS TO THE RS LAW ON COURTS AND JUDICIAL SERVICE 34 Article 93 A judge and shall be entitled to other personal income and compensation as follows: 1. Retirement severance pay; 2. Holiday bonus; 3. Jubilee awards. 34 OG RS, no: 85/

105 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA EXTRACT FROM THE 2003 AMENDMENT TO THE LAW ON THE PROSECUTOR S OFFICES OF THE REPUBLIKA SRPSKA 35 Article 47 The Chief Prosecutors, Deputy Chief Prosecutors and Prosecutors shall have the right to other personal earnings and compensations: 1. Retirement severance pay; 2. Holiday bonus; 3. Jubilee awards. 35 RS OG, no. 85/

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107 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 9 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES THE DECISION OF THE CONSTITUTIONAL COURT OF THE FEDERATION OF BOSNIA AND HERZEGOVINA 105

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109 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA CONSTITUTIONAL COURT OF THE FEDERATION OF BOSNIA AND HERZEGOVINA 36 The Constitutional Court of the Federation of BiH, deciding upon request to assess the constitutionality if the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH, based on Article IV.C.10. of the Federation BiH Constitution, after the public discussion, at the session of May 26 and June 1, 2004, rendered the following: JUDGMENT 1. It is established that the Law on Amendments to the Law on judicial and prosecutorial function in the Federation of BiH ("Official Gazette of the Federation of BiH", no. 63/03) is incompatible with the Federation BiH Constitution in a part related to judges of courts in the Federation BiH. 2. Pursuant with Article IV.C.3.12.b) of the Federation BiH Constitution, the Constitutional Court finds that Law on Amendments to the Law on judicial and prosecutorial function in the Federation of BiH may be applied no longer than six months from the day of publishing this judgment in the ("Official Gazette of the Federation of BiH." 3. The judgment shall be published in the "Official Gazette of the Federation of BiH." Reasoning The petition to assess the constitutionality of the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH, in accordance with Article IV.C.10. (2) a) of the Federation BiH Constitution, was filed on January 29, 2004, by the Federation of BiH Vice President, as an authorized petitioner before the Federation BiH Constitutional Court, and upon the initiative of the Federation BiH Supreme Court President and Chief Federation Prosecutor. The petition seeks that the Federation BiH Constitutional Court finds that the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH is incompatible with amendments LX, LXII i LXIII to the Federation BiH Constitution ("Official Gazette of the Federation of BiH" no. 22/02). The same amendments prescribe, as the petitioner asserts, that "the salary and other compensation to judges cannot be reduced for the time spent in judicial function in the Federation of BiH, unless it is a consequence of a disciplinary proceedings, and in accordance with the Law ". The petition further states that the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH passed in 2001, regulated that judges and prosecutors are entitled to salary correspondent to the position of judge or prosecutor, ie. the position to which he was appointed or hired (Article 34), that they have a bonus for investigative actions (Article 38), and compensation for certain special costs. The special compensations are in Article 41. of the law above and they include: transportation costs to and from the job, meal during working hours, vacation leave allowance, allowance for separate life, transportation for non-working days from the place to work to the place of residence and back, and compensation for family costs to the place of residence for weekends, state holidays and non-working days, compensation for costs of moving from the permanent place of residence to the place where the official apartment is located and back, compensation for education, annual awards and severance pay before the retirement. The same compensations, as the petitioner argues, were established in accordance with the Federation BiH Constitution and amendments, so the proposed and adopted provisions in the disputed law which rescind or reduce some compensations to judges and prosecutors stand contrary to the Federation BiH Constitution, Article IV.C.7. and amendments LX, LXII i LXIII to the Federation BiH Constitution. For these reasons the petitioner seeks that the Federation BiH Constitutional Court finds that this law is incongruous with the Federation BiH Constitution. 36 The Decision was published in the F BiH Official Gazette, no. 35/

110 Aneks 9 At the request of the Federation BiH Constitutional Court, the Federation BiH House of Representatives and House of Peoples failed to give their statement within the deadline and before the public heading, regarding the request of the Federation of BiH President to assess the constitutionality of the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH, and they also failed to submit specific documentation. The Federation BiH Constitutional Court in this case held a public hearing on May 26, At this hearing, the agent of the n the Federation of BiH vice president, as petitioner, was not present, but the petitioner in the document no /04 of May 17, 2004, stated adherence to the petition of January 29, 2004, highlighting that the Law on Amendments to the law on judicial and prosecutorial function in the Federation of BiH is incongruous with the Federation BiH Constitution. The agent of the Federation of BiH House of Representatives, in the statement at the public hearing, referenced to the hard financial situation in the Federation of BiH due to debts, the lack of funds in the budget of the Federation BiH to be directed at salaries and technical equipment for courts and prosecutor offices, the problems emerging after court and prosecutor office restructuring, stating that the law is not in accordance with the Federation BiH Constitution. The agent of the Federation of BiH House of Peoples did not attend the public heading, but the agent of the Federation of BiH House of Representatives said that the above reasons for enactment of the disputed law were accepted by the House of Peoples. The petitioners, the President of the Supreme Court of the Federation of Bosnia and Herzegovina and the Chief Federation Prosecutor, in their statements at the open hearing fully stood by the statements made in the initiative that was delivered to the President and the Deputy Presidents of the Federation of Bosnia and Herzegovina. Also, they stressed that the said Law was contrary to Article 2.19a of the Universal Declaration on the Independence of the Judiciary, which prescribes that "the duration of judicial service, independence and the personal safety of judges, together with corresponding compensation and terms of service shall be guaranteed with the law and may not be amended to the detriment of the judges". The President of the Association of Judges and the representative of the Association of Prosecutors of the Federation of Bosnia and Herzegovina stressed that the rendering of the Law brings into question the autonomy and the independence of judges and prosecutors in the Federation of Bosnia and Herzegovina which are guaranteed with the Constitution of the Federation of Bosnia and Herzegovina along with the adopted amendments. Furthermore, they stressed that the prosecutorial function represents a component part of the judicial function regarding operating in the criminal/legal field and, thus, regardless of the fact that prosecutors are not a constitutional category, their salaries should be on the same level as that of judges. The representative of the drafter of the law, on behalf of the Federation Ministry of Justice, stressed that there is a constitutional basis for the rendering of a Law on Amendments to the Law on Judicial and Prosecutorial Function of the Federation of Bosnia and Herzegovina, that prosecutors are not a constitutional category according to the Constitution of the Federation of Bosnia and Herzegovina and thus proposed that the Court, upon holding an open hearing, finds that the Law is in accord with the Constitution of the Federation of Bosnia and Herzegovina and with Amendments LX, LXII and LXIII of the Constitution of the Federation of Bosnia and Herzegovina. The Constitutional Court of the Federation of Bosnia and Herzegovina, when considering the grounds of the motion for the evaluation of the constitutionality of the said Law, reviewed the provisions of Amendments LX, LXIII and LXIII of the Constitution of the Federation of Bosnia and Herzegovina which regulate that "the salaries and other compensations of judges may not be reduced for the duration of performing their judicial function in the Federation of Bosnia and Herzegovina, except as a consequence to a disciplinary proceedings, in accordance with the Law". The Constitution of the Federation of Bosnia and Herzegovina, thus, explicitly regulates a ban on reducing salaries and other compensations for judges with one exception in the event of the holding of a disciplinary proceedings against any such individual. Such constitutional solution has, of course, the purpose of affirming the division of powers principle which is a generally accepted international legal standard. Therefore, under the terms of the said constitutional/legal situation, a reduction in the salaries and other compensations of judges may have been foreseen, according to the Law, only as a consequence to the holding of a disciplinary proceedings and for no other instances. Considering that the disputed Law determines the revoking of multiple compensations for judges, that were until such time stipulated with the law, this independent to the holding of a disciplinary proceedings, with such being the only instance allowable in accordance with the Constitution of the Federation of Bosnia and Herzegovina, thus, based on the standpoint of the Constitutional Court the actions 108

111 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA were opposite to the Constitution of the Federation of Bosnia and Herzegovina and the Amendments to the Constitution of the Federation of Bosnia and Herzegovina and therefore the Constitutional Court has decided that this Law is not in accord with the Constitution of the Federation of Bosnia and Herzegovina in the part which refers to judges of the courts of the Federation of Bosnia and Herzegovina. Considering that the Constitution of the Federation of Bosnia and Herzegovina and the Amendments rendered to the Constitution of the Federation of Bosnia and Herzegovina explicitly ban a reduction to the salaries only for judges, thus the Court did not accept the motion of the petitioners i.e. that the Law is not in accord with the Constitution of the Federation of Bosnia and Herzegovina also in the part that refers to compensations for prosecutorial function holders in the Federation of Bosnia and Herzegovina. According to Article IV.C.3.12b) of the Constitution of the Federation of Bosnia and Herzegovina, when the Constitutional Court determines that a Law or other regulation is not in accord with the Constitution of the Federation of Bosnia and Herzegovina, such Law shall not be applied, unless it is amended in the manner as prescribed by the Court or unless the Court establishes transitional solutions that may not be in force for more than six months. In line with the said provision and the fact that the lawmaker, the Parliament of the Federation of Bosnia and Herzegovina, should be given the possibility to regulate this in a constitutional manner within a reasonable period of time, also that the amendments to the budget of the Federation of Bosnia and Herzegovina for 2004 and the Law on the Execution of the Budget of the Federation of Bosnia and Herzegovina need to undergo an appropriate legislative procedure, the Court deems that in this case it is necessary to determine a transitional solution, in that this Law may be applied, at most, for six months as of the day of publication of this judgment in the "Official Gazette of the Federation of BiH". Keeping in mind all of the above, the Constitutional Court of the Federation of Bosnia and Herzegovina, has decided in accordance with the operative part of the judgment rendered. The Court has passed this judgment while in the following composition: Mirko Boskovic MA, President of the Court, Sead Bahtijarevic, Ranka Cvijic MA, Muamer Herceglija, Miomir Jocic, Domin Malbasic, Nedjeljko Milicevic PhD, Kata Senjak and Kasim Trnka PhD, all judges of the Court. Number: U-3/04 1 June 2004 Sarajevo President of the FBiH Constitutional Court mr. Mirko Boškoviæ 109

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113 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 10 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES THE DECISIONS OF THE HIGH REPRESENTATIVE FREEZING JUDICIAL SALARIES IMPOSED IN

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115 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Decision Enacting the Law on Amendments to the Law on Judicial and Prosecutorial Service in the Federation of BiH 37 In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1.(d) of the last said Agreement, according to the terms of which the High Representative shall Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation ; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid by making binding decisions, as he judges necessary on certain issues including (under sub-paragraph (c) thereof) measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities ; Convinced of the vital importance to Bosnia and Herzegovina of ensuring that the rule of law is strengthened and followed in order to create the grounds for economic growth and foreign investment; Noting the Communiqué by the Steering Board of the Peace Implementation Council of 2 and 3 December 2004, in which the Steering Board reiterated its support for the work of national and international judges and prosecutors in Bosnia and Herzegovina underlining that the efficient administration of justice, a core plank of Bosnia and Herzegovina s postwar rehabilitation, depends on a properly functioning and appropriately remunerated judiciary; Further noting that the Steering Board fully supports the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively ; Cognizant of the necessity to stop further increases of salaries for judges and prosecutors until a new law regulating such salaries has been brought into effect; Having considered the totality of the matters aforesaid, I hereby issue the following: DECISION Enacting the Law on Amendments to the Law on Judicial and Prosecutorial Service in the Federation of Bosnia and Herzegovina (Official Gazette of Federation of Bosnia and Herzegovina, Nos. 22/00, 20/01, 37/01, 57/01 and 63/03), which is hereby attached as an integral part of this Decision. The said Law shall be published on the official website of the Office of the High Representative and shall enter into force as a law of the Federation of Bosnia and Herzegovina, with immediate effect, on an interim basis, until such time as the Parliament of the Federation of Bosnia and Herzegovina adopts this Law in due form, without amendment and with no conditions attached. This Decision shall come into force forthwith and shall be published without delay in the Official Gazette of the Federation of Bosnia and Herzegovina. Sarajevo, 13 December 2004 Paddy Ashdown High Representative 37 The High Representative s Decision amending the FBiH Law on Judicial and Prosecutorial Service was published in the FBiH Official Gazette, no. 78/

116 Annex 10 LAW ON AMENDMENTS TO THE LAW ON JUDICIAL AND PROSECUTORIAL SERVICE IN THE FEDERATION OF BOSNIA AND HERZEGOVINA Article 1 In the Law on Judicial and Prosecutorial Service Federation of Bosnia and Herzegovina ( Official Gazette of the Federation of Bosnia and Herzegovina, Nos. 22/00, 20/01, 37/01, 57/01 and 63/03) Paragraph 1 of Article 35 shall be amended to read as follows: The initial basis for calculation of judicial or deputy prosecutor salary for all judges and deputies is the same and is 2,5 of the average net salaries of employees in the FBiH in the month of December Article 2 This Law shall enter into force forthwith and shall be published without delay. 114

117 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Decision Enacting the Law on Amendments to the Law on Courts and Judicial Service of the Republika Srpska 38 In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1.(d) of the last said Agreement, according to the terms of which the High Representative shall Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation ; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid by making binding decisions, as he judges necessary on certain issues including (under sub-paragraph (c) thereof) measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities ; Convinced of the vital importance to Bosnia and Herzegovina of ensuring that the rule of law is strengthened and followed in order to create the grounds for economic growth and foreign investment; Noting the Communiqué by the Steering Board of the Peace Implementation Council of 2 and 3 December 2004, in which the Steering Board reiterated its full support for the work of national and international judges and prosecutors in Bosnia and Herzegovina underlining that the efficient administration of justice, a core plank of Bosnia and Herzegovina s postwar rehabilitation, depends on a properly functioning and appropriately remunerated judiciary; Cognizant of the necessity to stop further increases of salaries for judges until a new law regulating such salaries has been brought into effect; Further noting that the Steering Board fully supports the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively, Having considered the totality of the matters aforesaid, I hereby issue the following: DECISION Enacting the Law on Amendments to the Law on Courts and Judicial Service of the Republika Srpska (Official Gazette of Republika Srpska, No. 13/00, 15/00, 16/00, 70/01, 77/02 and 85/03) which is hereby attached as an integral part of this Decision. The said Law shall be published on the official website of the Office of the High Representative and shall enter into force as a law of the Republika Srpska, with immediate effect, on an interim basis, until such time as the National Assembly of the Republika Srpska adopts this Law in due form, without amendment and with no conditions attached. This Decision shall come into force forthwith and shall be published without delay in the Official Gazette of the Republika Srpska. Sarajevo, 13 December 2004 Paddy Ashdown High Representative 38 The High Representative s Decision amending the RS Law on Courts and Judicial Service was published in the RS Official Gazette, no. 115/

118 Annex 10 LAW ON AMENDMENTS TO THE LAW ON COURTS AND JUDICIAL SERVICE OF REPUBLIKA SRPSKA Article 1 In the Law on Courts and Judicial Service of the Republika Srpska ( Official Gazette of the Republika Srpska, Nos. 13/00, 15/00, 16/00, 70/01, 77/02 and 85/03), Article 88 shall be amended to read as follows: The basis for judges salary calculation shall be equal to three average net salaries of the employees in the Republika Srpska in the month of November Article 2 This Law shall enter into force forthwith and shall be published without delay. 116

119 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Decision Enacting the Law on Amendments to the Law on the Prosecutor s Offices of the Republika Srpska 39 In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1.(d) of the last said Agreement, according to the terms of which the High Representative shall Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation ; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid by making binding decisions, as he judges necessary on certain issues including (under sub-paragraph (c) thereof) measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities ; Convinced of the vital importance to Bosnia and Herzegovina of ensuring that the rule of law is strengthened and followed in order to create the grounds for economic growth and foreign investment; Noting the Communiqué by the Steering Board of the Peace Implementation Council of 2 and 3 December 2004, in which the Steering Board reiterated its full support for the work of national and international judges and prosecutors in Bosnia and Herzegovina underlining that the efficient administration of justice, a core plank of Bosnia and Herzegovina s postwar rehabilitation, depends on a properly functioning and appropriately remunerated judiciary. Further noting that the Steering Board fully supports the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively ; Cognizant of the necessity to stop further increases of salaries for prosecutors until a new law regulating prosecutor s salaries has been brought into effect; Having considered the totality of the matters aforesaid, I hereby issue the following: DECISION Enacting the Law on Amendments to the Law on the Prosecutor s Offices of the Republika Srpska ( Official Gazette of Republika Srpska, No. 55/02 and 85/03) which is hereby attached as an integral part of this Decision. The said Law shall be published on the official website of the Office of the High Representative and shall enter into force as a law of the Republika Srpska, with immediate effect, on an interim basis, until such time as the National Assembly of the Republika Srpska adopts this Law in due form, without amendment and with no conditions attached. This Decision shall come into force forthwith and shall be published without delay in the Official Gazette of the Republika Srpska. Sarajevo, 13 December 2004 Paddy Ashdown High Representative 39 The High Representative s Decision amending the RS Law on the Prosecutor s Office was published in the RS Official Gazette, no. 115/

120 Annex 10 LAW ON AMENDMENTS TO THE LAW ON THE PROSECUTOR S OFFICES OF THE REPUBLIKA SRPSKA Article 1 In the Law on the Prosecutor s Offices of the Republika Srpska ( Official Gazette of Republika Srpska, No. 55/02 and 85/03), Article 42 shall be amended to read as follows: The basic rate for the calculation of the Chief Prosecutor s, Deputy Chief Prosecutor s, and Prosecutor s Salary shall be equal to three average net salaries of the employees of the Republika Srpska for the month of November Article 2 This Law shall enter into force forthwith and shall be published without delay. 118

121 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 11 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES CHART SHOWING THE COST REDUCTIONS WHICH WOULD BE GENERATED BY THE REFORM PROPOSED BY THE WORKING GROUP 119

122

123 Current salaries of Judges and Prosecutors Categories Description/Level Number of budget units and positions Current monthly net salary excluding working experience New monthly net salary excluding working experience MONTHLY NET BASIS + / - Current monthly New monthly net net salary including salary including working experience working experience + / - difference Current annual gross salary excluding working experience New annual gross salary excluding working experience ANNUAL GROSS BASIS + / - Current annual gross salary including working experience New annual gross salary including working experience JUDGES BiH 1 a BiHCourt Judges 21 4,036 3,800 (236) 4,440 4,180 (260) -5.9% 1,718,721 1,618,057 (100,664) 1,890,593 1,779,862 (110,731) -5.9% b BiH Court head of departments 3 4,036 4,000 (36) 4,440 4,400 (40) -0.9% 245, ,317 (2,215) 270, ,648 (2,436) -0.9% c BiH Court President 1 4,844 4,400 (444) 5,247 4,840 (407) -7.8% 98,213 89,216 (8,996) 106,397 98,138 (8,259) -7.8% Total: 25 Average -4.8% 2,062,465 1,950,590 (111,876) 2,267,075 2,145,649 (121,426) -5.4% Republic Srpska 25 a Basic Courts Judges 79 2,630 2,400 (230) 2,894 2,640 (254) -8.8% 3,790,409 3,458,304 (332,105) 4,169,450 3,804,134 (365,316) -8.8% b Basic Court head of departments 27 2,630 2,600 (30) 2,894 2,860 (34) -1.2% 1,295,456 1,280,448 (15,008) 1,425,002 1,408,493 (16,509) -1.2% c Presidents of the Basic Courts 19 3,157 2,800 (357) 3,472 3,080 (392) -11.3% 1,093, ,368 (123,573) 1,203,335 1,067,405 (135,930) -11.3% d Presidents of the Basic Courts >=30 1 3,157 3, ,472 3, % 57,576 58, ,333 64, % e District Court Judges 59 3,157 3,000 (157) 3,472 3,300 (172) -5.0% 3,396,974 3,228,480 (168,494) 3,736,672 3,551,328 (185,344) -5.0% f District Courts head of departments 15 3,157 3, ,472 3, % 863, ,520 11, , ,072 13, % g District Court Presidents 2 3,788 3,400 (388) 4,167 3,740 (427) -10.2% 138, ,032 (14,150) 152, ,435 (15,565) -10.2% h Supreme Court Judges 15 3,683 3, ,051 4, % 1,007,577 1,039,680 32,103 1,108,335 1,143,648 35, % i Supreme Court head of departments 3 3,683 4, ,051 4, % 201, ,880 17, , ,768 19, % j Supreme Court President 1 4,419 4,400 (19) 4,861 4,840 (21) -0.4% 80,606 80,256 (350) 88,667 88,282 (385) -0.4% Total: 221 Average -2.2% 11,925,875 11,334,336 (591,539) 13,118,462 12,467,770 (650,693) -5.0% Federation BiH 39 a Municipal Court Judges 189 2,487 2,400 (87) 2,735 2,640 (95) -3.5% 9,529,522 9,197,375 (332,147) 10,482,475 10,117,113 (365,362) -3.5% b Municipal Court head of departments 75 2,487 2, ,735 2, % 3,781,557 3,953, ,341 4,159,712 4,349, , % c Municipal Court Presidents 28 2,984 2,800 (184) 3,282 3,080 (202) -6.2% 1,694,137 1,589,670 (104,468) 1,863,551 1,748,637 (114,914) -6.2% d Municipal Court Presidents >=30 1 2,984 3, ,282 3, % 60,505 64,884 4,380 66,555 71,373 4, % e Cantonal Court Judges 101 3,223 3,000 (223) 3,545 3,300 (245) -6.9% 6,599,875 6,143,749 (456,126) 7,259,862 6,758,124 (501,738) -6.9% f Cantonal Court head of departments 19 3,223 3,200 (23) 3,545 3,520 (25) -0.7% 1,241,561 1,232,805 (8,756) 1,365,717 1,356,086 (9,631) -0.7% g Cantonal Court Presidents 10 3,867 3,400 (467) 4,254 3,740 (514) -12.1% 784, ,398 (94,746) 862, ,337 (104,221) -12.1% h Supreme Court Judges 21 4,178 3,800 (378) 4,595 4,180 (415) -9.0% 1,778,844 1,618,057 (160,787) 1,956,729 1,779,862 (176,866) -9.0% i Supreme Court head of departments 3 4,178 4,000 (178) 4,595 4,400 (195) -4.3% 254, ,317 (10,804) 279, ,648 (11,884) -4.3% j Supreme Court President 1 5,013 4,400 (613) 5,514 4,840 (674) -12.2% 101,648 89,216 (12,432) 111,813 98,138 (13,675) -12.2% Total: 448 Average -4.3% 25,825,913 24,822,369 (1,003,544) 28,408,505 27,304,606 (1,103,899) -3.9% District Brcko 2 a Judges of the Basic Court in Brcko 16 3,312 2,980 (332) 3,312 3,278 (34) -1.0% 966, ,683 (96,891) 966, ,652 (9,923) -1.0% b President of the Basic Court in Brcko 1 3,588 3,200 (388) 3,588 3,520 (68) -1.9% 65,445 58,368 (7,077) 65,445 64,205 (1,240) -1.9% c Apellate Court Judges in Brcko 5 3,542 3,200 (342) 3,542 3,520 (22) -0.6% 323, ,840 (31,190) 323, ,024 (2,006) -0.6% d Apellate Court President in Brcko 1 3,910 3,500 (410) 3,910 3,850 (60) -1.5% 71,318 63,840 (7,478) 71,318 70,224 (1,094) -1.5% Total: 23 Average -1.3% 1,426,368 1,283,731 (142,637) 1,426,368 1,412,104 (14,264) -1.0% Total Judges: ,240,622 39,391,026 (1,849,596) 45,220,410 43,330,128 (1,890,282) -4.2% + / - Percentage of increasing/ decreasing PROSECUTORS BiH 1 a Prosecutors of BiH PO 14 4,036 3,800 (236) 4,440 4,180 (260) -5.9% 1,145,814 1,078,704 (67,110) 1,260,396 1,186,575 (73,821) -5.9% b Head of departments of BiH PO 3 4,036 4,000 (36) 4,440 4,400 (40) -0.9% 245, ,317 (2,215) 270, ,648 (2,436) -0.9% c Chief prosecutor of BiH PO 1 4,844 4,400 (444) 5,247 4,840 (407) -7.8% 98,213 89,216 (8,996) 106,397 98,138 (8,259) -7.8% Total: 18 Average -4.8% 1,489,558 1,411,237 (78,321) 1,636,877 1,552,361 (84,516) -5.2% Republic Srpska 7 a Prosecutors of DP 5 12,630 2,400 (230) 2,894 2,640 (254) -8.8% 2,446,973 2,232,576 (214,397) 2,691,670 2,455,834 (235,837) -8.8% b Head of the departments of DPO 7 2,630 2,600 (30) 2,894 2,860 (34) -1.2% 335, ,968 (3,891) 369, ,165 (4,280) -1.2% c Deputy Chief Prosecutors of DPO 10 3,157 3,000 (157) 3,472 3,300 (172) -5.0% 575, ,200 (28,558) 633, ,920 (31,414) -5.0% d Chief prosecutors of DPO 5 3,788 3,400 (388) 4,167 3,740 (427) -10.2% 345, ,080 (35,375) 380, ,088 (38,913) -10.2% e Prosecutors of RS PO 2 3,683 3, ,051 4, % 134, ,624 4, , ,486 4, % f Deputy Chief Prosecutors of RS PO 1 3,683 4, ,051 4, % 67,172 72,960 5,788 73,889 80,256 6, % g Chief Prosecutor of RS PO 1 4,419 4,400 (19) 4,861 4,840 (21) -0.4% 80,606 80,256 (350) 88,667 88,282 (385) -0.4% Total: 77 Average -2.0% 3,986,167 3,713,664 (272,503) 4,384,784 4,085,030 (299,753) -6.8% Federation BiH 10 a Prosecutors of Cantonal PO 136 2,487 2,400 (87) 2,735 2,640 (95) -3.5% 6,857,222 6,618,217 (239,006) 7,542,945 7,280,039 (262,906) -3.5% b Head of departments of Cantonal PO 15 2,487 2, ,735 2, % 756, ,780 34, , ,858 37, % c Deputy Chief Prosecutors of Cantonal PO 11 3,223 3,000 (223) 3,545 3,300 (245) -6.9% 718, ,121 (49,677) 790, ,033 (54,645) -6.9% d Chief Prosecutors of Cantonal PO 10 3,867 3,400 (467) 4,254 3,740 (514) -12.1% 784, ,398 (94,746) 862, ,337 (104,221) -12.1% e Prosecutors of Federal PO 6 4,178 3,800 (378) 4,595 4,180 (415) -9.0% 508, ,302 (45,939) 559, ,532 (50,533) -9.0% f Deputy Chief Prosecutors of Federal PO 2 4,178 4,000 (178) 4,595 4,400 (195) -4.3% 169, ,211 (7,203) 186, ,432 (7,923) -4.3% g Chief Prosecutor of Federal PO 1 4,419 4,400 (19) 5,514 4,840 (674) -12.2% 89,605 89,216 (389) 111,813 98,138 (13,675) -12.2% Total: 181 Average -6.2% 9,883,736 9,481,245 (402,491) 10,885,357 10,429,369 (455,988) -4.2% District Brcko 1 a Prosecutors of Brcko PO 5 3,128 2,980 (148) 3,312 3,278 (34) -1.0% 285, ,776 (13,498) 302, ,954 (3,101) -1.0% b Deputy Chief Prosecutors of Brcko PO 1 3,312 3,100 (212) 3,588 3,410 (178) -5.0% 60,411 56,544 (3,867) 65,445 62,198 (3,247) -5.0% c Chief Prosecutor of Brcko PO 1 3,542 3,400 (142) 3,542 3, % 64,606 62,016 (2,590) 64,606 68,218 3, % Total: 7 Average -0.1% 410, ,336 (19,955) 432, ,370 (2,736) -0.6% Total Prosecutors: 283 1,769,752 14,996,482 (773,270) 17,339,123 16,496,130 (842,993) -4.9% TOTAL 1,000 57,010,374 54,387,508 (2,622,866) 62,559,534 59,826,259 (2,733,275) -4.4% 121

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125 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 12 TO THE REPORT OF THE CHAIRMAN OF THE WORKING GROUP ON THE REFORM OF JUDICIAL SALARIES CHART SHOWING THE COST REDUCTIONS GENERATED BY THE ELIMINATION OF CERTAIN BENEFITS FOR JUDGES AND PROSECUTORS 123

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127 Cost reduction benefits (for Judges and Prosecutors) Categories Description/Level Number of budget units and positions Hot meal p.a. Transport p.a. Duty shift p.a. Separate living p.a. Actual regres p.a. According to the LAW Recommended regres (working group) Recommended regres per Average Net Salary Net change (assuming regres per recommendation of the Working Group) Net change (assuming regres per recommendation of the Chairman of the Working Group) JUDGES BiH 1 a BiH Court Judges 21 (59,335) 39,900 10,605 b BiH Court head of departments 3 (8,476) 5,700 1,515 c BiH Court President 1 (2,825) 1, Total: 25 (39,600) (13,200) (21,000) (3,300) (5,000) (70,637) 47,500 12,625 (100,237) (135,112) Republic Srpska 25 a Basic Courts Judges 79 (19,434) 94,800 39,895 b Basic Court head of departments 27 (6,642) 32,400 13,635 c Presidents of the Basic Courts 19 (4,674) 22,800 9,595 d Presidents of the Basic Courts >=30 1 (246) 1, e District Court Judges 59 (14,514) 88,500 29,795 f District Courts head of departments 15 (3,690) 22,500 7,575 g District Court Presidents 2 (492) 3,000 1,010 h Supreme Court Judges 15 (3,690) 28,500 7,575 i Supreme Court head of departments 3 (738) 5,700 1,515 j Supreme Court President 1 (246) 1, Total: 221 (350,064) (116,688) (185,640) (29,172) (44,200) (54,366) 301, ,605 (434,630) (624,325) Federation BiH 39 a Municipal Court Judges 189 (361,885) 226,800 95,445 b Municipal Court head of departments 75 (143,605) 90,000 37,875 c Municipal Court Presidents 28 (64,335) 33,600 14,140 d Municipal Court Presidents >=30 1 (2,298) 1, e Cantonal Court Judges 101 (250,631) 151,500 51,005 f Cantonal Court head of departments 19 (47,148) 28,500 9,595 g Cantonal Court Presidents 10 (29,778) 15,000 5,050 h Supreme Court Judges 21 (67,552) 39,900 10,605 i Supreme Court head of departments 3 (9,650) 5,700 1,515 j Supreme Court President 1 (3,860) 1, Total: 448 (709,632) (236,544) (376,320) (59,136) (89,600) (980,744) 594, ,240 (1,768,276) (2,136,136) District Brcko 2 a Judges of the Basic Court in Brcko 16 23,840 8,080 b President of the Basic Court in Brcko 1 1, c Judges of the Apellate Court in Brcko 5 8,000 2,525 d President of the Apellate Court in Brcko 1 1, Total: 23 34,930 11,615 Total Judges: 717 (1,099,296) (366,432) (582,960) (91,608) (138,800) (1,105,747) 977, ,085 (2,268,213) (2,883,958) PROSECUTORS BiH 1 a Prosecutors of BiH PO 14 (39,557) 26,600 7,070 b Head of departments of BiH PO 3 (8,476) 5,700 1,515 c Chief prosecutor of BiH PO 1 (2,825) 1, Total: 18 (28,512) (9,504) (15,120) (2,376) (3,600) (50,859) 34,200 9,090 (72,171) (97,281) Republic Srpska 7 a Prosecutors of DPO 51 (12,546) 61,200 25,755 b Head of the departments of DPO 7 (1,722) 8,400 3,535 c Deputy Chief Prosecutors of DPO 10 (2,460) 12,000 5,050 d Chief prosecutors of DPO 5 (1,230) 6,000 2,525 e Prosecutors of RS PO 2 (492) 3,800 1,010 f Deputy Chief Prosecutors of RS PO 1 (246) 1, g Chief Prosecutor of RS PO 1 (246) 1, Total: 77 (121,968) (40,656) (64,680) (10,164) (15,400) (18,942) 95,200 38,885 (161,210) (217,525) Federation BiH 10 a Prosecutors of Cantonal PO 136 (251,328) 163,200 68,680 b Head of departments of Cantonal PO 15 (30,030) 18,000 7,575 c Deputy Chief Prosecutors of Cantonal PO 11 (25,410) 13,200 5,555 d Chief Prosecutors of Cantonal PO 10 (26,180) 12,000 5,050 e Prosecutors of Federal PO 6 (17,556) 10,200 3,030 f Deputy Chief Prosecutors of Federal PO 2 (6,160) 3,400 1,010 g Chief Prosecutor of Federal PO 1 (3,388) 1, Total: 181 (286,704) (95,568) (152,040) (23,892) (36,200) (360,052) 221,700 91,405 (696,556) (826,851) District Brcko 1 a Prosecutors of Brcko PO 5 7,450 2,525 b Deputy Chief Prosecutors of Brcko PO 1 1, c Chief Prosecutor of Brcko PO 1 1, Total: 7 10,430 3,535 (10,430) (3,535) Total Prosecutors: 283 (437,184) (145,728) (231,840) (36,432) (55,200) (429,853) ()361, ,915 (919,507) (1,138,122) TOTAL 1,000 (1,536,480) (512,160) (814,800) (128,040) (194,000) (1,535,600) 1,339, ,000 (3,187,720) (4,022,080) 125

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129 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA PART II CONSTITUTIONAL AMENDMENTS AND LEGISLATION IMPOSED BY THE HIGH REPRESENTATIVE DECEMBER

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131 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA SECTION 1 129

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133 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Decision 40 Enacting amendments to the Constitution of the Republika Srpska In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1.(d) of the last said Agreement, according to the terms of which the High Representative shall Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation ; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid by making binding decisions, as he judges necessary on certain issues including (under sub-paragraph (c) thereof) measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities ; Mindful of paragraph I.2.a of the Conclusions of the said Bonn Conference, which recognised that an impartial and independent judiciary was essential to the rule of law and reconciliation withinbosnia and Herzegovina ; Noting the Annex to the Declaration of the Peace Implementation Council of 16 December 1998, in which the Steering Board urged the adoption by 30 June 1999 of legislation to achieve an independent and impartial judiciary, focusing on judicial and prosecutorial appointments, adequate salaries and objective standards for appointment of judges and prosecutors, consistent with those of European democratic practice, and the promotion of a multi-ethnic judiciary throughout Bosnia and Herzegovina ; Recognizing that relevant legislation was passed by the RSNA in April 2000 and came into effect on 2nd June 2000; Appreciating the fact that, when the Independent Judicial Commission started its work in the spring of 2001, the financial situation within the judiciary was critical and that the Independent Judicial Commission, in close cooperation with Entity ministries of justice and Entity Parliaments, achieved significant reduction of the yearly costs of the judiciary and prosecution by unifying the prosecutorial services, reducing the number of first instance courts and the number of judges and support staff in the judiciary; Realizing that the financial situation within the judiciary and the prosecution at all levels in Bosnia and Herzegovina continues to be extremely critical and that the yearly costs of salaries and benefits for judges and prosecutors clearly represents a disproportionate part of the overall budgets; Realizing further that the current situation is unsustainable and could lead to a collapse of the judiciary in Bosnia and Herzegovina; Mindful that the courts and prosecutors offices have accrued significant debt due to lack of funds to pay operational expenses and salaries on time, that the total debt at the end of 2004 was 16 million KM and that many courts have had and continue at this very moment to have their basic services - such as post and telephone - cut off and therefore are not operational and able to deliver the services required by the citizens of Bosnia and Herzegovina; Cognisant of the fact that judges and prosecutors in Bosnia and Herzegovina had - due to the mechanisms provided for in the current legislation - their salaries increased by approximately 40% from the initial increase in 2000 until the salaries were frozen in December 2004 while at the same time the inflation in Bosnia and Herzegovina has been minimal; 40 The High Representative s Decision amending the RS Constitution was published in the RS Official Gazette, no

134 Section 1 Noting the Communiqué by the Steering Board of the Peace Implementation Council of 3 December 2004, in which the Steering Board underlined that the efficient administration of justice, a core plank of Bosnia and Herzegovina s postwar rehabilitation, depends on a properly functioning and appropriately remunerated judiciary and in which it fully supported the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively. Noting further that, to avoid a further deterioration of the situation, the High Representative froze judicial salaries by Decision of 13 December, 2004 and that a Working Group, consisting of the representatives from the ministries of justice at Entity and Bosnia and Herzegovina levels, Brcko District Judicial Commission, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina as well as judges and prosecutors associations in both Entities, was established and tasked with reviewing judicial salaries and drafting new legislation; Welcoming the recommendations of the Working Group that salaries for judges and prosecutors should be harmonized between the Entities, that the benefits that were eliminated by the Entity Parliaments in 2003 should not be reinstated, that salaries for judges and prosecutors should be modestly reduced, that the current salaries should continue to be frozen until the average salary in Bosnia and Herzegovina has reached a certain level, that when the salaries again start to increase they will increase with the same percentage as the average salary in Bosnia and Herzegovina thus securing a fixed ratio between the average salary in Bosnia and Herzegovina and judicial salaries as well as continued harmonization between the Entities; Welcoming that fact that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, at its session held on 23 August 2005, has supported the recommendations of the Working Group; Recalling the Communiqué by the Steering Board of the Peace Implementation Council of 24, June 2005 where it remained worried over the fiscal sustainability challenge faced by Bosnia and Herzegovina s governments, especially at Entity level; Realizing that implementation of the recommendations of the Working Group is critical for a functioning judicial system in Bosnia and Herzegovina and that in this respect it is paramount that they take effect from the beginning of the upcoming budget year starting 1 January, 2006; Realizing that a reduction of salaries and benefits in the judiciary and prosecution which is particularly pertinent, fair and needed - would be impossible without amendments to the Constitution of the Republika Srpska; Having considered and borne in mind all these matters, the High Representative hereby issues the following: DECISION Enacting amendments to the Constitution of the Republika Srpska The Amendment set out hereunder forms an integral part of this Decision. This amendment shall enter into force on 31 December 2005 unless the said Amendment is adopted in the same text, in due form, without amendments and with no conditions attached by the National Assembly of Republika Srpska before 30 December Should such an Amendment be adopted by the National Assembly of Republika Srpska in a different text, with amendments or with conditions attached, such Amendment shall not enter into force. In the event that the Amendment attached as an integral part of this Decision enters into force in accordance with the terms of this Decision, it shall enter into force on an interim basis, until such time as the National Assembly of Republika Srpska adopts this Amendment in due form, without amendments and with no conditions attached. This Decision shall come into force forthwith and shall be published without delay in the Official Gazette of the Republika Srpska. Sarajevo, 9 December 2005 Paddy Ashdown High Representative 132

135 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA AMENDMENTS TO THE CONSTITUTION OF THE REPUBLIKA SRPSKA AMENDMENT CXIV After Article 138, a new Article 138.a shall be added to read as follows: Article 138. a As a derogation to the principle prescribed in Article 127 of this Constitution, salaries and/or other emoluments of judges may be diminished by law before 10 January The reduction referred to in Paragraph 1 of this Article may only occur once. Nothing in Paragraphs 1 and 2 of this Article shall be interpreted as allowing in any manner or form either directly or indirectly any other reduction of salaries and/or emoluments of judges protected by Article

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139 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Decision 41 Enacting amendments to the Constitution of the Federation of Bosnia and Herzegovina In the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, according to which the High Representative is the final authority in theatre regarding interpretation of the said Agreement on the Civilian Implementation of the Peace Settlement; and considering in particular Article II.1.(d) of the last said Agreement, according to the terms of which the High Representative shall Facilitate, as the High Representative judges necessary, the resolution of any difficulties arising in connection with civilian implementation ; Recalling paragraph XI.2 of the Conclusions of the Peace Implementation Conference held in Bonn on 9 and 10 December 1997, in which the Peace Implementation Council welcomed the High Representative s intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of any difficulties as aforesaid by making binding decisions, as he judges necessary on certain issues including (under sub-paragraph (c) thereof) measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities ; Mindful of paragraph I.2.a of the Conclusions of the said Bonn Conference, which recognised that an impartial and independent judiciary was essential to the rule of law and reconciliation within Bosnia and Herzegovina ; Noting the Annex to the Declaration of the Peace Implementation Council of 16 December 1998, in which the Steering Board urged the adoption by 30 June 1999 of legislation to achieve an independent and impartial judiciary, focusing on judicial and prosecutorial appointments, adequate salaries and objective standards for appointment of judges and prosecutors, consistent with those of European democratic practice, and the promotion of a multi-ethnic judiciary throughout Bosnia and Herzegovina. Recognizing that relevant legislation in the Federation was imposed by the High Representative on 17 May 2000 and was later adopted by the Parliament of the Federation of Bosnia and Herzegovina and published in the Official Gazette of the Federation of Bosnia and Herzegovina No. 20/01; Appreciating the fact that, when the Independent Judicial Commission started its work in the spring of 2001, the financial situation within the judiciary was critical and that the Independent Judicial Commission, in close cooperation with Entity ministries of justice and Entity Parliaments, achieved significant reduction of the yearly costs of the judiciary and prosecution by unifying the prosecutorial services, reducing the number of first instance courts and the number of judges and support staff in the judiciary; Realizing that the financial situation within the judiciary and the prosecution at all levels in Bosnia and Herzegovina continues to be extremely critical and that the yearly costs of salaries and benefits for judges and prosecutors clearly represents a disproportionate part of the overall budgets; Realizing further that the current situation is unsustainable and could lead to a collapse of the judiciary in Bosnia and Herzegovina; Mindful that the courts and prosecutors offices have accrued significant debt due to lack of funds to pay operational expenses and salaries on time, that the total debt at the end of 2004 was 16 million KM and that many courts have had and continue at this very moment to have their basic services - such as post and telephone - cut off and therefore are not operational and able to deliver the services required by the citizens of Bosnia and Herzegovina; Cognisant of the fact that judges and prosecutors in Bosnia and Herzegovina had - due to the mechanisms provided for in the current legislation - their salaries increased by approximately 40% from the initial increase in 2000 until the salaries were frozen in December 2004 while at the same time the inflation in Bosnia and Herzegovina has been minimal; 41 The Decision amending the FBiH Constitution was published in the FBiH Official Gazette, no

140 Section 2 Noting the Communiqué by the Steering Board of the Peace Implementation Council of 3 December 2004, in which the Steering Board underlined that the efficient administration of justice, a core plank of Bosnia and Herzegovina s postwar rehabilitation, depends on a properly functioning and appropriately remunerated judiciary and in which it fully supported the urgent need to review judicial salaries in order to ensure the proper allocation of funds to enable the judicial system to work effectively. Noting further that to avoid a further deterioration of the situation the High Representative froze judicial salaries by Decision of 13 December, 2004 and that a Working Group, consisting of the representatives from the ministries of justice at Entity and Bosnia and Herzegovina levels, Brcko District Judicial Commission, the High Judicial and Prosecutorial Council of Bosnia and Herzegovina as well as judges and prosecutors associations in both Entities, was established and tasked with reviewing judicial salaries and drafting new legislation; Welcoming the recommendations of the Working Group that salaries for judges and prosecutors should be harmonized between the Entities, that the benefits that were eliminated by the Entity Parliaments in 2003 should not be reinstated, that salaries for judges and prosecutors should be modestly reduced, that the current salaries should continue to be frozen until the average salary in Bosnia and Herzegovina has reached a certain level, that when the salaries again start to increase they will increase with the same percentage as the average salary in Bosnia and Herzegovina thus securing a fixed ratio between the average salary in Bosnia and Herzegovina and judicial salaries as well as continued harmonization between the Entities; Welcoming that fact that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, at its session held on 23 August 2005, has supported the recommendations of the Working Group; Recalling the Communiqué by the Steering Board of the Peace Implementation Council of 24, June 2005 where it remained worried over the fiscal sustainability challenge faced by Bosnia and Herzegovina s governments, especially at Entity level; Realizing that implementation of the recommendations of the Working Group is critical for the functioning of the judicial system in Bosnia and Herzegovina and that in this respect it is paramount that they take effect from the beginning of the upcoming budget year starting 1 January 2006; Realizing that a reduction of salaries and benefits in the judiciary and prosecution which is particularly pertinent, fair and needed - would be impossible without amendments to the Constitution of the Federation of Bosnia and Herzegovina; Having considered and borne in mind all these matters, the High Representative hereby issues the following: DECISION Enacting amendments to the Constitution of the Federation of Bosnia and Herzegovina The Amendment set out hereunder forms an integral part of this Decision. This amendment shall enter into force on 31 December 2005 unless the said Amendment is adopted in the same text, in due form, without amendment and with no conditions attached by the Parliament of the Federation of Bosnia and Herzegovina before 30 December Should such an Amendment be adopted by the Parliament of the Federation of Bosnia and Herzegovina in a different text, with amendments or with conditions attached, such Amendment shall not enter into force. In the event that the Amendment attached as an integral part of this Decision enters into force in accordance with the terms of this Decision, it shall enter into force on an interim basis, until such time as the Parliament of the Federation of Bosnia and Herzegovina adopts this Amendment in due form, without amendment and with no conditions attached. This Decision shall come into force forthwith and shall be published without delay in the Official Gazette of the Federation of Bosnia and Herzegovina. Sarajevo, 9 December 2005 Paddy Ashdown High Representative 138

141 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA AMENDMENTS TO THE CONSTITUTION OF THE FEDERATION OF BOSNIA AND HERZEGOVINA AMENDMENT CVI After Article IX. 11 e, a new Article IX. 11 f shall be added to read as follows: Article 11 f (1) As a derogation to the principle prescribed in Paragraph 1 of Article IV.C.7, Paragraph 3 of Article V.4.11 and Paragraph 4 of Article VI.7 of this Constitution, salaries and/or other emoluments of judges may be diminished by law before 10 January (2) The reduction referred to in Paragraph 1 of this Article may only occur once. (3) Nothing in Paragraphs 1 and 2 of this Article shall be interpreted as allowing in any manner or form either directly or indirectly any other reduction of salaries and/or emoluments of judges protected by Paragraph 1 of Article IV.C.7, Paragraph 3 of Article V.4.11 and Paragraph 4 of Article VI.7 of this Constitution. 139

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145 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS IN JUDICIAL AND PROSECUTORIAL INSTITUTIONS AT THE LEVEL OF BOSNIA AND HERZEGOVINA 42 I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges, Prosecutors and certain categories of professional staff in judicial institutions at the level of Bosnia and Herzegovina. II SALARY AND OTHER RIGHTS AND COMPENSATIONS FOR JUDGES AND PROSECUTORS Article 2 Basic Monthly Salary of Judges of the Constitutional Court of Bosnia and Herzegovina The Basic Monthly Salary shall be as follows: (a) For Judges of the Constitutional Court of Bosnia and Herzegovina: KM. (b) For the President of the Constitutional Court of Bosnia and Herzegovina: KM. Article 3 Basic Monthly Salary of Judges of the Court of Bosnia and Herzegovina The Basic Monthly Salary shall be as follows: (a) For Judges of the Court of Bosnia and Herzegovina: 3,800 KM (b) For Heads of Departments of the Court of Bosnia and Herzegovina: 4,000 KM. (c) For the President of the Court of Bosnia and Herzegovina: 4,400 KM. Article 4 Basic Monthly Salary of Prosecutors of the Prosecutor s Office of Bosnia and Herzegovina The Basic Monthly Salary shall be as follows: a) For Prosecutors of the Prosecutor s Office of Bosnia and Herzegovina: 3,800 KM. b) For Heads of Sections of the Prosecutor s Office of Bosnia and Herzegovina: 4,000 KM. c) For the Chief Prosecutor of the Prosecutor s Office of Bosnia and Herzegovina: 4,400 KM. Article 5 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2, 3 and 4 of this Law shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. 42 The High Representative s Decision imposing the Law was published in the BiH Official Gazette, no

146 Section 3 Article 6 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2, 3 and 4 of this Law shall not be increased until such time as the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2, 3 and 4 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovina. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in Bosnia and Herzegovina over a calendar year with the average monthly net salary in Bosnia and Herzegovina in the previous calendar year. 4. In the event that in any year the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this Article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 7 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor works on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2, 3 and 4 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 8 Annual Paid Leave and Leave for Religious Purposes 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement in paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of leave in order to fulfil their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary stipulated in item a) of Article 2 of this Law. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the internal regulations for the operation of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina and the Prosecutor s Office of Bosnia and Herzegovina respectively. 144

147 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 9 Extraordinary Paid Leave In addition to the Annual Leave and Leave for Religious Purposes as provided for in Article 8 of this Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step Father, Step Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand- Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent residence to another: 1 day. Article 10 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of Bosnia and Herzegovina in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 11 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2, 3 and 4 of this Law respectively as compensation when retiring. Article 12 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant laws on health insurance in either the Republika Srpska or the Federation of Bosnia Herzegovina depending on the permanent residence of the Judge or Prosecutor. Article 13 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with the relevant laws on pensions and disability insurance in either the Republika Srpska or the Federation of Bosnia Herzegovina depending on the permanent residence of the Judge or Prosecutor. Article 14 Travel Costs Regulations shall be promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of Bosnia and Herzegovina in respect of the circumstances in which a Judge or Prosecutor shall be entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) and the amount of such compensation. For the Constitutional Court of Bosnia and Herzegovina such regulations shall be promulgated by the Constitutional Court of Bosnia and Herzegovina in cooperation with the Ministry of Justice of Bosnia and Herzegovina. 145

148 Section 3 Article 15 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the internal regulations for the operation of the Constitutional Court of Bosnia and Herzegovina, the Court of Bosnia and Herzegovina and the Prosecutor s Office of Bosnia and Herzegovina respectively. Article 16 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of Bosnia and Herzegovina. III SALARY AND OTHER RIGHTS AND COMPENSATIONS FOR CERATIN CATEGORIES OF PROFESSIONAL STAFF Article 17 Basic Monthly Salary 1. The Basic Monthly Salary of the following professional staff shall be: a) For the General Secretary of the Constitutional Court of Bosnia and Herzegovina and the Director of the Secretariat of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina: KM. b) For the Registrar of the Constitutional Court of Bosnia Herzegovina, the Registrar of the Court of Bosnia and Herzegovina and the Deputy Director of the Secretariat of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina: KM. c) For the General Secretary of the Court of Bosnia and Herzegovina and the Secretary of the Prosecutor s Office of Bosnia and Herzegovina and the Disciplinary Counsel of the Secretariat of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina: 3,000 KM. d) For Heads of Department of the Constitutional Court of Bosnia and Herzegovina: KM. e) For Senior Legal Advisors of the Constitutional Court of Bosnia and Herzegovina and Heads of Department and Senior Advisors of the Secretariat of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina: from to KM. f) For Legal Advisors of the Constitutional Court of Bosnia Herzegovina, Assistant General Secretary of the Court of Bosnia and Herzegovina, Legal Advisors of the Court of Bosnia Herzegovina and Senior Lawyers and Deputy Heads of Department of the High Judicial and Prosecutorial Council of Bosnia Herzegovina: from 1,900 to 2,400 KM. g) For Judicial Associates of the Constitutional Court of Bosnia Herzegovina, Judicial Associates and Secretaries of Departments of the Court of Bosnia Herzegovina, Prosecutorial Associates/Assistants of the Prosecutor s Office of Bosnia Herzegovina and Junior Lawyers/Professional Staff of the Secretariat of the High Judicial and Prosecutorial Council of Bosnia Herzegovina: from 1,200 to 1,800 KM. 2. The criteria for determining salaries in the ranges prescribed in paragraphs 1 (e), (f) and 1(g) of this Article shall be regulated in the internal regulations of the respective institutions. 146

149 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Article 18 Other Compensations and Material Rights 1. Articles 5-7, paragraphs 2, 4 and 5 of Article 8, Article 9 and Articles of this Law shall be applicable to all categories of staff stipulated in Article 17 of this Law. 2. Those categories of staff referred to in paragraph 1(a) to 1(e) of Article 17 of this Law shall be entitled to 30 days of paid annual leave. 3. Those categories of staff referred to in paragraph 1(f) and 1(g) of Article 17 of this Law shall be entitled to 25 days of paid annual leave. 4. All categories of staff referred to in Article 17 shall be entitled to a net holiday allowance amounting to 50% of their Basic Monthly Salary stipulated in Article 17. IV FINAL PROVISIONS Article 19 Repealing of Provisions The provisions contained in other laws, regulations or decisions at the level of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 20 Publication and Entering into Force This law shall enter into force from 1 January

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153 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN THE REPUBLIKA SRPSKA 43 I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors and Judicial Associates in the Republika Srpska. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Basic Courts: 2,400 KM. (b) For Heads of Department of Basic Courts: 2,600 KM. (c) For Court Presidents of Basic Courts: 2,800 KM. (d) For Court Presidents of Basic Courts with 30 judges or more: 3,200 KM. (e) For Court Presidents of Basic Courts with 60 judges or more: 3,600 KM. (f) For Judges of District Courts: 3,000 KM. (g) For Heads of Department of District Courts: 3,200 KM. (h) For Court Presidents of District Courts: 3,400 KM. (i) For Judges of the Constitutional Court of the Republika Srpska and Judges of the Supreme Court of the Republika Srpska: 3,800 KM. (j) For Head of Departments of the Constitutional Court of the Republika Srpska and the Supreme Court of the Republika Srpska: 4,000 KM. (k) For the Court Presidents of the Constitutional Court of the Republika Srpska and the Supreme Court of the Republika Srpska: 4,400 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutorsshall be as follows: a) For Prosecutors of District Prosecutors Offices: 2,400 KM. b) For Heads of Section of District Prosecutors Offices: 2,600 KM. c) For Deputy Chief Prosecutors of District Prosecutors Offices: 3,000 KM. 43 The High Representative s Decision imposing the Law was published in the RS Official Gazette, no

154 Section 4 d) For Chief Prosecutors of District Prosecutors Offices: KM e) For Republika Srpska Prosecutors: 3,800 KM. f) For the Deputy Chief Republika Srpska Prosecutors: 4,000 KM. g) For the Chief Republika Srpska Prosecutor: 4,400 KM. Article 4 Basic Monthly Salary for Judicial Associates 1. The Basic Monthly Salary of Judicial Associates who carry out judicial duties in accordance with Article 50, paragraph 2 of the Law on Courts of the Republika Srpska shall be 1200 KM. 2. The number of Judicial Associate referred to in paragraph 1 of this Article shall be decided by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina.They shall be appointed by the High Judicial and Prosecutorial Council in accordance with the Rules of Procedures of the High Judicial and Prosecutorial Council and shall not hold the position of Judicial Associate for a period longer than 6 years. Article 5 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2, and 3 of this Law respectively and of Judicial Associates who fall under Article 4 of this Law shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 6 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2, 3 and 4 of this Law shall not be increased until such time as the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors and Judicial Associates as stipulated in Articles 2, 3 and 4respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovina. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in Bosnia and Herzegovina over a calendar year with the average monthly net salary in Bosnia and Herzegovina in the previous calendar year. 4. In the event that in any year the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Law shall remain the same and shall not increase again until such time as the average monthly net salary of Bosnia and Herzegovina calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutorsand Judicial Associates who fall under Article 4 of this Law shall increase in accordance with paragraph 2 of this Article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 7 Working Hours 1. The working hours for Judges and Prosecutorsand Judicial Associates who fall under Article 4 of this Law shall be 40 hours per week. 152

155 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 2. If a Judge or a Prosecutor or Judicial Associate who falls under Article 4 of this Law work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2, 3 and 4 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 8 Annual Paid Leave and Leave for Religious Purposes 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave and Judicial Associates who fall under Article 4 of this Law shall be entitled to 20 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law shall be entitled to two paid and two unpaid days of leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in item a) of Article 2 and item a) of Article 3 of this Law respectively. Judicial Associates who fall under Atricle 4 of this law shall be entitled to a net holiday allowance amounting to 50% of their salary stipulated in item 1 of Article The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge, Prosecutor and Judicial Associates who fall under Article 4 of this Law shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Book of Rules for the operation of courts and prosecutors offices. Article 9 Extraordinary Paid Leave In addition to the Annual Leave and Leave for Religious Purposes as provided for in Article 8 of this Law, Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Law shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step-Father, Step-Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand-Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent address to another: 1 day. Article 10 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of the Republika Srpska in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. 153

156 Section 4 Article 11 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively, as compensation when retiring. Article 12 Health Insurance and Sick Leave Judges, Prosecutors and Associates who fall under Article 4 of this Law are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of the Republika Srpska. Article 13 Pension and Disability Insurance Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law are entitled to pension and disability insurance in accordance with the relevant law on pensions and disability insurance of the Republika Srpska. Article 14 Travel Costs Judges, Prosecutors and Judicial Associateswho fall under Article 4 of this Law are entitled to compensation for travel costs in accordance with the Book of Rules for the operation of courts and prosecutor offices and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Educational Expenses Judges, Prosecutors and Judicial Associateswho fall under Article 4 of this Law are entitled to compensation for educational expenses in accordance with the Book of Rules for the operation of courts and prosecutors offices and within the approved budget of the court/prosecutor s office. Article 16 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Ministry of Justice of the Republika Srpska. II FINAL PROVISIONS Article 17 Repealing of Provisions The provisions contained in other laws, regulations or decisions of the Republika Srpska that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 18 Publication and Entering into Force This law shall enter into force from 1 January

157 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA SECTION 5 155

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159 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN THE FEDERATION OF BOSNIA AND HERZEGOVINA 44 I GENERAL PROVISIONS Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors and Judicial Associates in the Federation of Bosnia and Herzegovina. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Municipal Courts: 2,400 KM. (b) For Heads of Department of Municipal Courts: 2,600 KM. (c) For Court Presidents of Municipal Courts: 2,800 KM. (d) For Court Presidents of Municipal Courts with 30 judges or more: 3,200 KM. (e) For Court Presidents of Municipal Courts with 60 judges or more: 3,600 KM. (f) For Judges of Cantonal Courts: 3,000 KM. (g) For Heads of Department of Cantonal Courts: 3,200 KM. (h) For Court Presidents of Cantonal Courts: 3,400 KM. (i) For Judges of the Constitutional Court of the Federation of Bosnia and Herzegovina and Judges of the Supreme Court of the Federation of Bosnia and Herzegovina: 3,800 KM. (j) For Head of Departments of the Constitutional Court of the Federation of Bosnia and Herzegovina and the Supreme Court of the Federation of Bosnia and Herzegovina: 4,000 KM. (k) For the Court Presidents of the Constitutional Court of the Federation of Bosnia and Herzegovina and the Supreme Court of the Federation of Bosnia and Herzegovina: 4,400 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutorsshall be as follows: a) For Prosecutors of Cantonal Prosecutors Offices: 2,400 KM. b) For Heads of Section of Cantonal Prosecutors Offices: 2,600 KM. c) For Deputy Chief Prosecutors of Cantonal Prosecutors Offices: 3,000 KM. 44 The High Representative`s Decision imposing the Law was published in the FBiH Official Gazette, no

160 Section 5 d) For Chief Prosecutors of Cantonal Prosecutors Offices: 3,400 KM e) For Federation of Bosnia and Herzegovina Prosecutors: 3,800 KM. f) For the Deputy Chief Federation of Bosnia and Herzegovina Prosecutor: 4,000KM. g) For the Chief Federation of Bosnia and Herzegovina Prosecutor: 4,400 KM. Article 4 Basic Monthly Salary for Judicial Associates 1. The Basic Monthly Salary of Judicial Associates who carry out judicial duties in accordance with Article 43, paragraph 2 of the Law on Courts of the Federation of Bosnia and Herzegovina shall be 1200 KM. 2. The number of Judicial Associate referred to in paragraph 1 of this Article shall be decided by the High Judicial and Prosecutorial Council of Bosnia and Herzegovina. They shall be appointed by the High Judicial and Prosecutorial Council in accordance with the Rules of Procedures of the High Judicial and Prosecutorial Council and shall not hold the position of Judicial Associate for a period longer than 6 years. Article 5 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2, and 3 of this Law respectively and of Judicial Associates who fall under Article 4 shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 6 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2, 3 and 4 of this Law shall not be increased until such time as the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovina. 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in Bosnia and Herzegovina over a calendar year with the average monthly net salary in Bosnia and Herzegovina in the previous calendar year. 4. In the event that in any year the average monthly net salary of Bosnia and Herzegovina, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Law shall remain the same and shall not increase again until such time as the average monthly net salary of Bosnia and Herzegovina calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Lawshall increase in accordance with paragraph 2 of this Article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 7 Working Hours 1. The working hours for Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Law shall be 40 hours per week. 158

161 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 2. If a Judge or a Prosecutor and Judicial Associates who fall under Article 4 of this Law works on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2, 3 and 4 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 8 Annual Paid Leave and Leave for Religious Purposes 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave and Judicial Associates who fall under Article 4 of this Law shall be entitled to 20 working days of paid annual leave. 2. In addition to the annual leave entitlement regulated at paragraph 1 of this Article, Judges and Prosecutors and Judicial Associates who fall under Article 4 of this Law shall be entitled to two paid and two unpaid days of leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors Law shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in item a) of Article 2 and item a) of Article 3 of this Law respectively. Judicial Associates who fall under Article 4 of this law shall be entitled to a net holiday allowance amounting to 50% of their salary stipulated in item 1 of Article The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor and Judicial Associates who fall under Article 4 of this Law shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Book of Rules for the operation of courts and prosecutors office. Article 9 Extraordinary Paid Leave In addition to the Annual Leave and Leave for Religious Purposes as provided for in Article 8 of this Law, Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step Father, Step Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand- Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; (v) In the event of a move from one permanent residence to another: 1 day. Article 10 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council, in cooperation with the Federal Ministry of Justice in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. 159

162 Section 5 Article 11 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively as compensation when retiring. Article 12 Health Insurance and Sick Leave Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of the Federation of Bosnia and Herzegovina. Article 13 Pension and Disability Insurance Judges, Prosecutors and Judicial Associates who fall under Article 4 of this Law are entitled to pension and disability insurance in accordance with the relevant law on pensions and disability insurance of the Federation of Bosnia and Herzegovina. Article 14 Travel Costs Judges, Prosecutors and Judicial Associateswho fall under Article 4 of this Law are entitled to compensation for travel costs in accordance with the Book of Rules for the operation of courts and prosecutors offices and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Educational Expenses Judges, Prosecutors and Judicial Associateswho fall under Article 4 of this Law are entitled to compensation for educational expenses in accordance with the Book of Rules for the operation of courts and prosecutors offices within the approved budget of the court/prosecutor s office. Article 16 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Federation Ministry of Justice. II FINAL PROVISIONS Article 17 Repealing of Provisions The provisions contained in other laws, regulations or decisions of the Federation of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 18 Publication and Entering into Force 160

163 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA SECTION 6 161

164 LAW ON SALARIES AND OTHER COMPENSATIONS FOR JUDGES AND PROSECUTORS IN BRCKO DISTRICT 45 I GENERAL PROVISION Article 1 Scope of this Law This Law regulates the salary, compensations and certain material rights of Judges and Prosecutors of Brcko District. II SALARY AND OTHER RIGHTS AND COMPENSATIONS Article 2 Basic Monthly Salary for Judges The Basic Monthly Salary of Judges shall be as follows: (a) For Judges of Brcko Basic Court: 2,980 KM. (b) For the Court President of Brcko Basic Court: 3,200 KM. (c) For Judges of Brcko Appellate Court: 3,200 KM. (d) For the Court President of Brcko Appellate Court: 3,500 KM. Article 3 Basic Monthly Salary for Prosecutors The Basic Monthly Salary of Prosecutors shall be as follows: (a) For Prosecutors of Brcko Prosecutor s Office: 2,980 KM (b) For Deputy Chief Prosecutors of Brcko Prosecutor s Office: 3,100 KM (c) For Chief Prosecutors of Brcko Prosecutor s Office: 3,400 KM Article 4 Supplement for Experience The Basic Monthly Salary for each category of Judge and Prosecutor under Articles 2 and 3 of this Law respectively shall be supplemented by 0.5% for each complete year of work experience up to a maximum of 40 years. Article 5 Regulation of the Basic Monthly Salary 1. The salaries stipulated in Articles 2 and 3 of this Law shall not be increased until such time as the average monthly net salary of BiH, calculated over a calendar year, has reached or exceeded 800 KM. 2. From the year subsequent to the year in which the average monthly net salary of BiH, calculated over a calendar year, first reaches or exceeds 800 KM, the Basic Monthly Salary of Judges and Prosecutors as stipulated in Articles 2 and 3 respectively shall be adjusted annually by the percentage increase in the average monthly net salary of Bosnia and Herzegovia. 162

165 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 3. The percentage increase referred to in paragraph 2 of this Article shall be derived by comparing the average monthly net salary in BiH over a calendar year with the average monthly net salary in BiH in the previous calendar year. 4. In the event that in any year the average monthly net salary of BiH, calculated over a calendar year, decreases, the Basic Monthly Salary of Judges and Prosecutors shall remain the same and shall not increase again until such time as the average monthly net salary of BiH calculated over a calendar year reaches its highest level since the first increase in salaries in accordance with paragraph 2 of this Article. Thereafter, the salaries of Judges and Prosecutors shall increase in accordance with paragraph 2 of this article. 5. The average monthly net salary shall be as per data published by the Agency for Statistics of Bosnia and Herzegovina. Article 6 Working Hours 1. The working hours for Judges and Prosecutors shall be 40 hours per week. 2. If a Judge or a Prosecutor work on a part time basis in accordance with specialized legislation or regulations, the Basic Monthly Salary under Article 2 and 3 of this Law respectively shall be adjusted according to the number of days worked in relation to the number of normal working days in that month. Article 7 Annual Paid Leave 1. Judges and Prosecutors shall be entitled to 30 working days of paid annual leave. 2. In addition to the annual leave entitlement at paragraph 1 of this Article, Judges and Prosecutors shall be entitled to two paid and two unpaid days of annual leave in order to fulfill their religious obligations. 3. All Judges and Prosecutors shall be entitled to a net holiday allowance amounting to 50% of the Basic Monthly Salary as stipulated in Articles 2a and 3a respectively. 4. The net holiday allowance referred to in paragraph 3 of this Article shall be paid in addition to the ordinary salary in July of each year regardless of when annual leave is taken. 5. The Annual Paid Leave for each Judge and Prosecutor shall be regulated in an Annual Leave Plan to be determined by the Court President or Chief Prosecutor on an annual basis in accordance with the Regulations on Internal Operations of the respective court/prosecutor s office. Article 8 Extraordinary Paid Leave In addition to the Annual Leave as provided for in Article 7 of his Law, Judges and Prosecutors shall be entitled to up to seven paid leave days in a calendar year, as follows: (i) In the event of his/her marriage: 5 days; (ii) In the event of the death of his/her Close Relative (Spouse, Partner, Father, Mother, Step-Father, Step-Mother, Child, Step-Child, Brother, Sister, Step-Brother, Step-Sister): 3 days; (iii) In the event of the death of his/her Less Close Relative (Grand-Father, Grand-Mother or a Close Relative of his/her spouse or partner): 1 day; (iv) In the event of the birth of his child: 2 days; 163

166 Section 6 (v) In the event of a move from one permanent residence to another: 1 day. Article 9 Leave of Absence with Pay 1. The High Judicial and Prosecutorial Council may decide that a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence granted by the High Judicial and Prosecutorial Council in accordance with Article 17, item 13 of the law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, no. 25/04). 2. Regulations shall be promulgated by the High Judicial and Prosecutorial Council, in cooperation with the Brcko Judicial Commission in respect of the circumstances in which a Judge or Prosecutor shall continue to receive his/her salary during a leave of absence referred to in paragraph 1 of this Article. Article 10 Compensation when Retiring Judges and Prosecutors are entitled to one Basic Monthly Salary, as stipulated under Article 2 or 3 of this Law respectively as compensation when retiring. Article 11 Health Insurance and Sick Leave Judges and Prosecutors are entitled to health insurance and sick leave in accordance with the relevant law on health insurance of Brcko District. Article 12 Pension and Disability Insurance Judges and Prosecutors are entitled to pension and disability insurance in accordance with relevant laws on pensions and disability insurance of the Republika Srpska or the Federation of Bosnia and Herzegovina depending on the pension fund to which they pay contributions. Article 13 Compensation for Travel Costs Judges and Prosecutors are entitled to compensation for costs incurred for travel undertaken in the course of carrying out their official duties (per diem, transport and accommodation expenses) in accordance with the relevant Book of Rules for Employees in the Judiciary of Brcko District and within the approved budget of the court/prosecutor s office. Article 14 Compensation for Educational Expenses Judges and Prosecutors are entitled to compensation for educational expenses in accordance with the Regulations on Internal Operations of the court/prosecutor s office and within the approved budget of the court/prosecutor s office. Article 15 Compensation for Assignment with or without Consent In the event that a judge is assigned to perform judicial service at another court in accordance with Article 50 or Article 51 of the Law on the High Judicial and Prosecutorial Council, he/she shall be entitled to compensation for his/her expenses in accordance with regulations promulgated by the High Judicial and Prosecutorial Council in cooperation with the Brcko Judicial Commission. 164

167 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA III FINAL PROVISIONS Article 16 Repealing of Provisions The provisions contained in other laws, regulations or decisions of Brcko District that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. Article 17 Publication and Entering into Force This law shall enter into force from 1 January

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169 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA PART III CONSTITUTIONAL CHALLENGE BEFORE BIH CONSTITUTIONAL COURT 167

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171 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 1 169

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173 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Request for review of constitutionality - Chair of BiH Presidency, mr. Ivo Miro Jovic BOSNIA AND HERZEGOVINA PRESIDENCY Chairman Ivo Miro Jovic No /06 Sarajevo, 17 February 2006 BOSNIA AND HERZEGOVINA Constitutional Court According to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina and Article 19 of the Rules of the Constitutional Court of Bosnia ("Official Gazette of Bosnia and Herzegovina", No. 50/05), I hereby submit REQUEST FOR REVIEW OF COMPATIBILITY OF THE LAWS WITH THE CONSTITUTION OF BOSNIA AND HERZEGOVINA 1. Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 90/05), Article 2, Article 8, paragraph 5 in the part reading as follows: "of the Constitutional Court of Bosnia and Herzegovina", Article 14, the second sentence reading: "As for the Constitutional Court of Bosnia and Herzegovina, these provisions are enacted by the Constitutional Court of Bosnia and Herzegovina in cooperation with the Ministry of Justice of Bosnia and Herzegovina", Article 15 in the part reading as follows: "of the Constitutional Court of Bosnia and Herzegovina", Article 17, item a) in the part reading: "for the Secretary General of the Constitutional Court", item b) in the part reading: "For the Registrar of the Constitutional Court", item d), item e) in the part reading: "for Senior Legal Advisors of the Constitutional Court" and item g) in the part reading: "For Judicial Associates of the Constitutional Court of Bosnia and Herzegovina" and Article Law on Civil Service in the Institutions of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 19/02, 35/03, 4/04, 17/04, 26/04 and 37/04), Article 4 in the part reading: "Judges of the Constitutional Court of Bosnia and Herzegovina". I hold that the challenged law provisions are not compatible with Article I.2, IV.4.a) and VI.2.b) of the Constitution of Bosnia and Herzegovina. 171

174 Annex 1 Reasoning The Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina was passed by the decision of the High Representative for Bosnia and Herzegovina, and the Law on Civil Service in the Institutions of Bosnia and Herzegovina, after it had been passed by the decision of the High Representative for Bosnia and Herzegovina, was also adopted by the Parliamentary Assembly of Bosnia and Herzegovina with no changes of the text. With reference to the authorities of the Constitutional Court of Bosnia and Herzegovina to take decision on the compatibility of the laws passed by the High Representative of Bosnia and Herzegovina with the Constitution of Bosnia and Herzegovina, the Constitutional Court has already expressed its position (decisions No. U-9/00, U-16/00 and U-25/00) that the authorities of the High Representatives are arising under Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina, the relevant resolutions of the Security Council of the United Nations and Bonn Declaration and neither of these authorities nor the exercises of these authorities are subjected to the supervision of the Constitutional Court of Bosnia and Herzegovina. However, when the High Representative for Bosnia and Herzegovina intervenes into the legal system of Bosnia and Herzegovina, substituting for the domestic authorities, he acts as the authority of Bosnia and Herzegovina and the laws passed by him/her have the character of domestic laws and must be considered the laws of Bosnia and Herzegovina, whose compatibility with the Constitution of Bosnia and Herzegovina is subjected to the supervision of the Constitutional Court of Bosnia and Herzegovina. According to Article I.2. of the Constitution of Bosnia and Herzegovina, "Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections". According to Article IV.4.a) of the Constitution of Bosnia and Herzegovina: "The Parliamentary Assembly shall have responsibility for, inter alia, "enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution". According to Article VI.2.b) of the Constitution of Bosnia and Herzegovina, "the Constitutional Court of Bosnia and Herzegovina shall adopt its own rules of court by a majority of all members". The challenged law provisions regulate certain status and organizational issues relating to the work of the Constitutional Court of Bosnia and Herzegovina, as well as its roles defined by the Constitution of Bosnia and Herzegovina. Thus, the challenged Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina regulates the issues of basic monthly salary of the Judges of the Constitutional Court of Bosnia, the issues of annual leave and leave for religious purposes, travel expanses and expenses for educational purposes, as well as the basic monthly salary for the persons appointed by the Constitutional Court of Bosnia and Herzegovina. It is also defined by final provisions of Article 19 of this Law that the provisions contained in other laws, regulations or decisions at the level of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. This provision means that the provisions of the Rules of the Constitutional Court of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 60/05), which was passed by the Constitutional Court based on its competence to enact such provision under Article VI.2.b) of the Constitution of Bosnia and Herzegovina, shall also cease to have effect. According to the challenged provision of the Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina, the Judges of the Constitutional Court of Bosnia and Herzegovina shall not be considered civil servants and their status shall be defined by some other provisions. 172

175 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The Constitutional Court of Bosnia and Herzegovina is established based on Article VI of the Constitution of Bosnia and Herzegovina, whereby its powers, organization and procedures are regulated, as well as the final and obligatory character of its decisions. According to Article VI.3 of the Constitution of Bosnia and Herzegovina, the Constitutional Court shall uphold this Constitution, which means that the Constitutional Court of Bosnia and Herzegovina is entrusted with the role of protection of constitutionality in the territory of whole country. Moreover, the Constitutional Court of Bosnia and Herzegovina is an institutional guarantee for the protection of human rights and freedoms established by Article II of the Constitution of Bosnia and Herzegovina and the guarantee for all the instruments of Annex I to the Constitution of Bosnia and Herzegovina. The Constitutional Court of Bosnia and Herzegovina is an independent institution as regards the legislative and executive authority, as well as regards other institutions of judicial power. It is not placed above the mentioned authorities nor is placed as functional or operative part of them. In order for the Constitutional Court of Bosnia and Herzegovina to be able to successfully carry out its constitutional powers, its independence must be secured by the method of election of judges, duration of their term of office, and in particular by the manner in which the Court will be financed, where it should be ensured that the Constitutional Court is able to independently decide on the funds provided by the budget of the institutions of Bosnia and Herzegovina. The independence of the Constitutional Court of Bosnia and Herzegovina also implies the so-called administrative independence, which includes the independence pertaining to the manner of organization of internal administration and employees of the Constitutional Court of Bosnia and Herzegovina. The provisions of Article VI of the Constitution of Bosnia and Herzegovina, taken together with the provision of Article I.2, should be interpreted as an expression of the existence of legal state, which presumes an imperative for the Constitutional Court of Bosnia and Herzegovina to be independent as a form of resistance to all political and other pressures. The independence of the Constitutional Court of Bosnia and Herzegovina means also the independence of constitutional justice and the Constitutional Court of Bosnia and Herzegovina is not like other ordinary courts because it is established in order to support emergence, stability and harmony of democratic way of living and therefore its status must be special when compared to the status and competence of other ordinary courts. The established principle of legal state from Article I/2 of the Constitution of Bosnia and Herzegovina with regards to the necessity of independence of the Constitutional Court of Bosnia and Herzegovina is also the provision o Article VI.2. b) of the Constitution Court of Bosnia and Herzegovina, which means that this institution has constitutionally guaranteed normative powers of self-organization. Accordingly, although the principle of independence of the Constitutional Court is not explicitly provided for in the Constitution of Bosnia and Herzegovina it has a constitutional value because it is imposed as a result of the constitutional principle of legal state and distribution of power. This constitutional principle is the source of autonomy of the Constitutional Court of Bosnia and Herzegovina and it enables the court to enact, by itself, fundamental and vital norms on certain matter. By Article IV.4.a) of the Constitution of Bosnia and Herzegovina the responsibility of the Parliamentary Assembly is established for enacting legislations necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution. However, none of the provisions of the Constitution of Bosnia and Herzegovina provides for expressis verbis the possibility for enacting laws by which the issues of work will be regulated or the issue of its roles or other issues related to the Constitutional Court of Bosnia and Herzegovina. The applicant is aware of the fact that the financial situation in judiciary of Bosnia and Herzegovina in general is very critical and that it needs an appropriate distribution of funds. The applicant raises no doubts that the Constitutional Court of Bosnia and Herzegovina must share the destiny of other institutions in Bosnia and Herzegovina in a proper manner. However, the applicant holds that the Constitution of Bosnia and Herzegovina does not give the basis for enactment of laws, provisions or general acts relating to the work of the Constitutional Court and its role, which is defined by that Constitution. According to the Constitution of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina is a special state body of high authority whose primary task is the supervision of the constitutionality of laws. Therefore, the Constitutional Court of Bosnia and Herzegovina is not subject to "ordinary" laws because it deals with their constitutionality and that is why it can only be subject to the Constitution or the constitutional law. In order for 173

176 Aneks something like that to be possible it is necessary to amend the current Constitution of Bosnia and Herzegovina in course of amending procedure, in which case these issues will be regulated within the constitution or the Parliamentary Assembly might be granted the responsibility for enacting the constitutional organic law, whereby, based on the constitution, the constitutional principles will be worked out and the organization and functioning of the Constitutional Court of Bosnia and Herzegovina will be more precisely defined. With reference to this, the applicant invokes the relevant case laws of other countries with highly developed democracies such as Germany, Austria, France, Slovenia and Croatia. By contrast, the enactment of challenged law provisions represents the interpretation of the constitution based on sub-constitutional law, which is also in contravention of the legal hierarchy under Article III.3 b) of the Constitution of Bosnia and Herzegovina. Given that in formal sense the constitution has stronger legal force than a law or other general legal acts and that as a rule it has to be amended in the parliament by a qualified majority only, it follows that in course of legal interpretation the function of the constitution must not be bypassed. In case of doubt, the constitution cannot be interpreted in a way that the legislator may achieve goals without the amendments to the constitution. For all the reasons mentioned above, the applicant holds that the challenged legal provisions are not compatible with Articles I.2, IV.4.a) and VI.2.b) of the Constitution of Bosnia and Herzegovina and therefore he suggests the Constitutional Court of Bosnia and Herzegovina adopt decision, whereby this incompatibility will be established and the challenged provisions abolished, which will cease to have effect on the day of publication of this decision in the sense of Article 63, paragraphs 2 and 3 of the Rules of the Constitutional Court of Bosnia and Herzegovina. With respect, Ivo Miro Jovic /signed/ 174

177 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 2 175

178

179 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA Request for review of constitutionality of mr. Sulejman Tihic, Member of Presidency BOSNIA AND HERZEGOVINA PRESIDENCY Memeber of the Presidency Sulejman Tihic No /06 Sarajevo, 27 February 2006 BOSNIA AND HERZEGOVINA Constitutional Court According to Article VI.3 (a) of the Constitution of Bosnia and Herzegovina and Article 19 of the Rules of the Constitutional Court of Bosnia ("Official Gazette of Bosnia and Herzegovina", No. 60/05), I hereby submit REQUEST FOR REVIEW OF COMPATIBILITY OF THE LAWS WITH THE CONSTITUTION OF BOSNIA AND HERZEGOVINA 1. Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 90/05), Article 2, Article 8, paragraph 5 in the part reading as follows: "of the Constitutional Court of Bosnia and Herzegovina", Article 14, the second sentence reading: "As for the Constitutional Court of Bosnia and Herzegovina, these provisions are enacted by the Constitutional Court of Bosnia and Herzegovina in cooperation with the Ministry of Justice of Bosnia and Herzegovina", Article 15 in the part reading as follows: "of the Constitutional Court of Bosnia and Herzegovina", Article 17, item a) in the part reading: "for the Secretary General of the Constitutional Court", item b) in the part reading: "For the Registrar of the Constitutional Court", item d), item e) in the part reading: "for Senior Legal Advisors of the Constitutional Court" and item g) in the part reading: "For Judicial Associates of the Constitutional Court of Bosnia and Herzegovina" and Article Law on Civil Service in the Institutions of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 19/02, 35/03, 4/04, 17/04, 26/04 and 37/04), Article 4 in the part reading: "Judges of the Constitutional Court of Bosnia and Herzegovina". I hold that the challenged law provisions are not compatible with Article I.2, IV.4.a) and VI.2.b) of the Constitution of Bosnia and Herzegovina. 177

180 Annex 2 Reasoning The Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina was passed by the decision of the High Representative for Bosnia and Herzegovina, and the Law on Civil Service in the Institutions of Bosnia and Herzegovina, after it had been passed by the decision of the High Representative for Bosnia and Herzegovina, was also adopted by the Parliamentary Assembly of Bosnia and Herzegovina with no changes of the text. With reference to the authorities of the Constitutional Court of Bosnia and Herzegovina to take decision on the compatibility of the laws passed by the High Representative of Bosnia and Herzegovina with the Constitution of Bosnia and Herzegovina, the Constitutional Court has already expressed its position (decisions No. U-9/00, U-16/00 and U-25/00) that the authorities of the High Representatives are arising under Annex 10 of the General Framework Agreement for Peace in Bosnia and Herzegovina, the relevant resolutions of the Security Council of the United Nations and Bonn Declaration and neither of these authorities nor the exercises of these authorities are subjected to the supervision of the Constitutional Court of Bosnia and Herzegovina. However, when the High Representative for Bosnia and Herzegovina intervenes into the legal system of Bosnia and Herzegovina, substituting for the domestic authorities, he acts as the authority of Bosnia and Herzegovina and the laws passed by him/her have the character of domestic laws and must be considered the laws of Bosnia and Herzegovina, whose compatibility with the Constitution of Bosnia and Herzegovina is subjected to the supervision of the Constitutional Court of Bosnia and Herzegovina. According to Article I.2. of the Constitution of Bosnia and Herzegovina, "Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections". According to Article IV.4.a) of the Constitution of Bosnia and Herzegovina: "The Parliamentary Assembly shall have responsibility for, inter alia, "enacting legislation as necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution". According to Article VI.2.b) of the Constitution of Bosnia and Herzegovina, "the Constitutional Court of Bosnia and Herzegovina shall adopt its own rules of court by a majority of all members". The challenged law provisions regulate certain status and organizational issues relating to the work of the Constitutional Court of Bosnia and Herzegovina, as well as its roles defined by the Constitution of Bosnia and Herzegovina. Thus, the challenged Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina regulates the issues of basic monthly salary of the Judges of the Constitutional Court of Bosnia, the issues of annual leave and leave for religious purposes, travel expanses and expenses for educational purposes, as well as the basic monthly salary for the persons appointed by the Constitutional Court of Bosnia and Herzegovina. It is also defined by final provisions of Article 19 of this Law that the provisions contained in other laws, regulations or decisions at the level of Bosnia and Herzegovina that conflict with this Law shall cease to have effect on the day of the entry into force of this Law. This provision means that the provisions of the Rules of the Constitutional Court of Bosnia and Herzegovina ("Official Gazette of Bosnia and Herzegovina", No. 60/05), which was passed by the Constitutional Court based on its competence to enact such provision under Article VI.2.b) of the Constitution of Bosnia and Herzegovina, shall also cease to have effect. According to the challenged provision of the Law on Salaries and Other Compensations in Judicial and Prosecutorial Institutions at the Level of Bosnia and Herzegovina, the Judges of the Constitutional Court of Bosnia and Herzegovina shall not be considered civil servants and their status shall be defined by some other provisions. 178

181 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The Constitutional Court of Bosnia and Herzegovina is established based on Article VI of the Constitution of Bosnia and Herzegovina, whereby its powers, organization and procedures are regulated, as well as the final and obligatory character of its decisions. According to Article VI.3 of the Constitution of Bosnia and Herzegovina, the Constitutional Court shall uphold this Constitution, which means that the Constitutional Court of Bosnia and Herzegovina is entrusted with the role of protection of constitutionality in the territory of whole country. Moreover, the Constitutional Court of Bosnia and Herzegovina is an institutional guarantee for the protection of human rights and freedoms established by Article II of the Constitution of Bosnia and Herzegovina and the guarantee for all the instruments of Annex I to the Constitution of Bosnia and Herzegovina. The Constitutional Court of Bosnia and Herzegovina is an independent institution as regards the legislative and executive authority, as well as regards other institutions of judicial power. It is not placed above the mentioned authorities nor is placed as functional or operative part of them. In order for the Constitutional Court of Bosnia and Herzegovina to be able to successfully carry out its constitutional powers, its independence must be secured by the method of election of judges, duration of their term of office, and in particular by the manner in which the Court will be financed, where it should be ensured that the Constitutional Court is able to independently decide on the funds provided by the budget of the institutions of Bosnia and Herzegovina. The independence of the Constitutional Court of Bosnia and Herzegovina also implies the so-called administrative independence, which includes the independence pertaining to the manner of organization of internal administration and employees of the Constitutional Court of Bosnia and Herzegovina. The provisions of Article VI of the Constitution of Bosnia and Herzegovina, taken together with the provision of Article I.2, should be interpreted as an expression of the existence of legal state, which presumes an imperative for the Constitutional Court of Bosnia and Herzegovina to be independent as a form of resistance to all political and other pressures. The independence of the Constitutional Court of Bosnia and Herzegovina means also the independence of constitutional justice and the Constitutional Court of Bosnia and Herzegovina is not like other ordinary courts because it is established in order to support emergence, stability and harmony of democratic way of living and therefore its status must be special when compared to the status and competence of other ordinary courts. The established principle of legal state from Article I/2 of the Constitution of Bosnia and Herzegovina with regards to the necessity of independence of the Constitutional Court of Bosnia and Herzegovina is also the provision o Article VI.2. b) of the Constitution Court of Bosnia and Herzegovina, which means that this institution has constitutionally guaranteed normative powers of self-organization. Accordingly, although the principle of independence of the Constitutional Court is not explicitly provided for in the Constitution of Bosnia and Herzegovina it has a constitutional value because it is imposed as a result of the constitutional principle of legal state and distribution of power. This constitutional principle is the source of autonomy of the Constitutional Court of Bosnia and Herzegovina and it enables the court to enact, by itself, fundamental and vital norms on certain matter. By Article IV.4.a) of the Constitution of Bosnia and Herzegovina the responsibility of the Parliamentary Assembly is established for enacting legislations necessary to implement decisions of the Presidency or to carry out the responsibilities of the Assembly under this Constitution. However, none of the provisions of the Constitution of Bosnia and Herzegovina provides for expressis verbis the possibility for enacting laws by which the issues of work will be regulated or the issue of its roles or other issues related to the Constitutional Court of Bosnia and Herzegovina. The applicant is aware of the fact that the financial situation in judiciary of Bosnia and Herzegovina in general is very critical and that it needs an appropriate distribution of funds. The applicant raises no doubts that the Constitutional Court of Bosnia and Herzegovina must share the destiny of other institutions in Bosnia and Herzegovina in a proper manner. However, the applicant holds that the Constitution of Bosnia and Herzegovina does not give the basis for enactment of laws, provisions or general acts relating to the work of the Constitutional Court and its role, which is defined by that Constitution. According to the Constitution of Bosnia and Herzegovina, the Constitutional Court of Bosnia and Herzegovina is a special state body of high authority whose primary task is the supervision of the constitutionality of laws. Therefore, the Constitutional Court of Bosnia and Herzegovina is not subject to "ordinary" laws because it deals with their constitutionality and that is why it can only be subject to the Constitution or the constitutional law. In order for 179

182 Aneks something like that to be possible it is necessary to amend the current Constitution of Bosnia and Herzegovina in course of amending procedure, in which case these issues will be regulated within the constitution or the Parliamentary Assembly might be granted the responsibility for enacting the constitutional organic law, whereby, based on the constitution, the constitutional principles will be worked out and the organization and functioning of the Constitutional Court of Bosnia and Herzegovina will be more precisely defined. With reference to this, the applicant invokes the relevant case laws of other countries with highly developed democracies such as Germany, Austria, France, Slovenia and Croatia. By contrast, the enactment of challenged law provisions represents the interpretation of the constitution based on sub-constitutional law, which is also in contravention of the legal hierarchy under Article III.3 b) of the Constitution of Bosnia and Herzegovina. Given that in formal sense the constitution has stronger legal force than a law or other general legal acts and that as a rule it has to be amended in the parliament by a qualified majority only, it follows that in course of legal interpretation the function of the constitution must not be bypassed. In case of doubt, the constitution cannot be interpreted in a way that the legislator may achieve goals without the amendments to the constitution. For all the reasons mentioned above, the applicant holds that the challenged legal provisions are not compatible with Articles I.2, IV.4.a) and VI.2.b) of the Constitution of Bosnia and Herzegovina and therefore he suggests the Constitutional Court of Bosnia and Herzegovina adopt decision, whereby this incompatibility will be established and the challenged provisions abolished, which will cease to have effect on the day of publication of this decision in the sense of Article 63, paragraphs 2 and 3 of the Rules of the Constitutional Court of Bosnia and Herzegovina. With respect, Sulejman Tihic /signed/ 180

183 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA ANNEX 3 181

184

185 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA The Opinion of the Office of High Representative of 23 June

186 Annex 3 184

187 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 185

188 Annex 3 186

189 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 187

190 Annex 3 188

191 REFORM OF SALARIES FOR JUDGES AND PROSECUTORS IN BOSNIA AND HERZEGOVINA 189