Due process in Bosnia and Herzegovina: A catch-22?

You know what they say: “better late than never.” Or wait, is it the other way around?

Businesses having their claims heard by courts in Bosnia and Herzegovina (BiH) seem to be facing this dilemma non-stop. Either go to court and, if you are lucky, receive an enforceable judgment within a couple of years or simply steer clear of the courts…or the whole country, for that matter.

For years, foreign and local investors have been complaining about the sluggishness of the court system in BiH, accusing it of being the reason for the poor business climate in the country. Apart from some frowns and pouts, however, no convincing rebuttal has been put forward by those who disagree with this assessment.

Even the biased ones cannot ignore some of the more daunting facts: in some BiH courts, the average duration of commercial cases exceeds 500 days for the first instance and 900 days on appeal - turning due process into a dead letter, or, even worse, a bad joke. Statistics on the time lapse between key procedural steps seem to be even more alarming – with businesses waiting more than a year, on average, just to meet the judge for the first time. This might make claimants moody – unless, of course, they end up forgetting that they had filed a claim in the first place!

And this is just the beginning.

Once the process starts rolling, judges get swamped by piles of irrelevant evidence, adjournment motions, expert witness testimonies, and many other tasks. Not all judges are great at multitasking, especially when they may have 500 or more pending cases sitting on their desks.

Looking at the big picture, this snail-like commercial justice obstructs the economy, pulls valuable assets away from the market for long periods of time, and makes the country anything but attractive to investors.

On a positive note, it seems that change is finally coming on several fronts. In 2016, at the request of the Federation of Bosnia and Herzegovina (FBiH), the World Bank, with financial support from the UK Government, produced a study outlining possible ways to improve commercial case processing in the entity. This study recommended that FBiH implements a package of reforms to boost commercial justice - including procedural reforms to close loopholes and reduce bottlenecks in commercial cases.

In continuation of this work, the World Bank conducted a number of focused analyses in the field of commercial case processing. Among the many aspects analyzed, the World Bank examined procedural rules and practices in both FBiH and Republika Srpska – notably, those governing key aspects of every trial: service of process, scheduling and adjournment of hearings, the role of expert witnesses and bankruptcy trustees, court fees, and use of the case management system.

The analysis was based on an in-depth review of relevant procedural rules and available statistical data, several rounds of discussions with key stakeholders, and surveys of the business and professional communities. When designing recommendations, the analysis relied on best practice examples from BiH courts, the regulatory framework of countries that share the same legal heritage as BiH (with a particular focus on European Union and Council of Europe member states and the European Court of Human Rights case law), and recommendations and opinions of international institutions on judicial efficiency.

In the analysis, the World Bank recommends a number of procedural and other reforms, including:

• amendments to systemic procedural laws to streamline and improve rules on service of process, selection and presentation of evidence, and adjournment of hearings;
• amendments to relevant procedural rules to enhance accountability of all parties and their attorneys, and avoid frivolous litigations and dilatory tactics;
• amendments to the rules governing expert witnesses and bankruptcy trustees to refine their licensing process and enhance their expertise and responsibility;
• amendments to capacity building programs to put stronger emphasis on judicial trainings in the niche fields of commercial law, non-legal fields relevant for commercial cases and case management;
• changes to the case management system to enhance supervision and improve transparency.

These ideas are many and they are all aimed at improving the efficiency of courts, boosting user satisfaction, and, in turn, improving access to justice for those who are taking their businesses seriously.

In proper symbiosis with organizational reforms, they can only help courts in BiH get ahead of the game and restore the overall confidence of the business community in the court system – something that can benefit everyone in the country!

Let us know your thoughts. And, keep your fingers crossed!