On 24 February 2021, an online seminar on the “Judicial Code of Ethics and the Practice of disciplinary Processes” was organised by the Centre for Judicial and Prosecutorial Training of the Federation of Bosnia and Herzegovina (CEST FBiH) and IRZ. 69 judges and public prosecutors took part in the event. The high number of participants underlined the significance of the subject.
Dr. Davor Trlin opened the event on behalf of the CEST FBiH, whilst IRZ Head of Section Dr. Stefan Pürner welcomed the participants on behalf of IRZ. The speaker at the seminar was the former President of the Constitutional Court of the State of Saxony-Anhalt and of the Higher Regional Court of Naumberg and long-standing Senior Public Prosecutor, Winfried Schubert.
In the first section of his two-part lecture, Winfried Schubert outlined the way the disciplinary process for judges and public prosecutors works in Germany, with the help of some practical examples.
The second part of his lecture focussed on the judicial code of ethics. The speaker pointed out that appropriate behaviour does not just concern the circumstances of the case, which could become the subject of a disciplinary process. Winfried Schubert talked about judicial self-perception and the danger of self-righteousness amongst judges. He also discussed the risk of judges being influenced in their decisions by their own personal moral understanding, instead of construing the law. He stressed the importance of a realistic self-perception and self-image in overcoming these challenges.
On 11 December 2020, IRZ and the Constitutional Court of Bosnia and Herzegovina organised a regional conference on “Dissenting opinions in constitutional jurisdiction”. Judges from the constitutional courts of Croatia, Montenegro, North Macedonia, Serbia and Slovenia also took part in the online event.
During the first part of the conference, the speakers presented the possibility of dissenting opinions in the case law of the participating constitutional courts and the relevant practices in this area. The speakers were:
Zlatko M. Knežević, President of the Constitutional Court of Bosnia and Herzegovina
Hamdija Šarkinović, interim director of the Constitutional Court of Montenegro
Dr. Mato Arlović, a judge at the Constitutional Court of Croatia,
Sali Murati, President of the Constitutional Court of North Macedonia
Prof. Dr. Rajko Knez, President of the Constitutional Court of Slovenia
Snežana Marković, President of the Constitutional Court of Serbia
The German point of view was provided by Prof. Dr. Michael Eichberger, a former constitutional court judge in Germany. The lectures mapped out many similarities, as well as some different positions, which led to intense discussions and a lively exchange of experiences.
One common feature for all the constitutional courts represented at the conference is the possibility of a dissenting opinion, which is relatively new to the region. These can be dissenting opinions, which disagree with the majority opinion, as well as dissent in the form of simply demonstrating an alternative way of reasoning.
The participants underlined the positive aspect of an announcement of a dissenting opinion by a judge being enough to provoke more in-depth discussions in the relevant Senate and very well-founded reasoning by the majority. They also reported on cases, in which the majority was led to revise its original opinion once it had analysed a dissenting opinion. Since the European Court of Human Rights in Strasbourg adheres in isolated cases to the dissenting opinion and not to the majority opinion when reviewing decisions, a dissenting opinion can also encourage scientific debate of the legal issue in question. Dissenting opinions can, however, also have negative effects, such as when their reporting in the media gives the impression that a constitutional court is not united. The participants therefore agreed that dissenting opinions should be reserved for rare cases in which, out of principle, a judge cannot defend being identified with the majority verdict. Dissenting opinions should on no account be used with a view to potential re-election, for example, or to continue a career beyond the end of a judge’s official mandate in certain political circumstances.
Background information
IRZ organises the annual regional conference on constitutional law, which is financed by the German Federal Foreign Office (AA), in turn with the constitutional courts of Bosnia and Herzegovina, North Macedonia or Montenegro.
On 14 and 15 September 2020, the Centre for Judicial and Prosecutorial Training of the Federation of Bosnia and Herzegovina and IRZ organised a two-day online seminar on “The practical Application of Property Law”. Around a hundred judges from all parts of the country took part in the event.
Following the opening of the seminar by Dr. Davor Trlin and Dr. Stefan Pürner, representing the two institutions respectively, Prof. Dr. Meliha Povlakić gave the lecture on the first day of the seminar. Professor Povlakić is the leading property law expert in Bosnia and Herzegovina. She has also worked for several years in a notary’s office in Germany. This meant that she was able to share her expert knowledge of the property law of the Federation of Bosnia and Herzegovina, which came into force five years ago. The law incorporates solutions from German law, as well as being based on Austrian and Croatian laws.
The lecture by Professor Povlakić was supplemented on the second day of the seminar by a lecture by Adnan Baručija, a judge at the canton court in Zenica. In this way, the seminar led to fruitful discussions between academics and practising judges.
The discussions, which are very important in terms of investment and therefore also the economy, centred on the legal institutions taken from German law, such as the basic principle that buildings and plots of land share the same legal status or the principle of public faith in the land registry. It became clear that courts frequently interpret the relevant provisions differently. The seminar can therefore also contribute towards the standardisation of case law, since so many judges took part in the event. The participants are also being sent written articles on the topics discussed at the seminar.
This seminar proves that online events are a good way, given the present circumstances, of getting plenty of people involved.
