Restructuring the Courts: In Search of Basic Principles for the Judiciary of Post-War Bosnia and Herzegovina

Article excerpt

I. INTRODUCTION

While judicial reform projects are underway in many countries, particularly in the developing world, it is unusual for the reform efforts to include a complete restructuring of a court system which redefines the number, size, and location of courts, as well as their territorial and subject-matter jurisdiction. A court restructuring initiative in post-war Bosnia and Herzegovina, therefore, broke new ground in its effort to divine the guiding principles for how many courts are needed, where they are needed, and how many judges are required for each of them. The report of that effort-entitled Restructuring the Court System: Report and Proposal ("Report")-has not, until now, been published in a way that makes it available to those considering similar issues. This deficiency is unfortunate, as the principles derived for that restructuring effort, both in terms of the substantive criteria applied and the political issues anticipated and managed, are instructive and worth preserving. This Article summarizes those principles, recounts the Author's experiences and challenges in restructuring the courts, and also attaches the full Report of the court restructuring team in Bosnia and Herzegovina for the benefit of future efforts along similar lines.

II. BACKGROUND

The structure of any country's court system-specifically, the number and location of courts-is rarely the product of a comprehensive exercise in central planning. Court systems tend to evolve historically, with courts created on an ad hoc basis, responding to economic growth and shifting demographics.1 Once created and organized, an existing court configuration will persist long after any coherent justification has disappeared.2

Consider the map of the circuits in the United States Federal Court system. The cluster of geographically small circuits in the northeastern part of the country stand in almost comical contrast to the huge circuits of the West, which consist not only of much larger states but, for the most part, more states in each circuit.3 The population dispersion of the United States in 1891 undoubtedly justified defining the circuits this way,4 but population patterns of the twenty-first century no longer map the original circuit distribution. While adjustments in the geographical boundaries of a circuit's jurisdiction have been made-as with the split of the Eighth Circuit to form the new Tenth Circuit in 1929s and the split of the Fifth Circuit to form the new Eleventh Circuit in 19816 -such changes are rare and can be exceedingly difficult to effect. An example of this difficulty is illustrated by the decades-long protracted battle to split the Ninth Circuit.7

Only once in a great while is there an opportunity to do a comprehensive reassessment and completely redraw the map on court configurations, right down to the trial court level.8 As a result of the rarity of such an exercise, there is no significant body of experience, or other generally-accepted wisdom, to draw upon in approaching it.

This was the dilemma that faced the international community in Sarajevo in 2001-2002, as it assisted in the execution of institutional reforms to implement the Dayton Peace Accords that ended the war in the former Yugoslavia. The Independent Judicial Commission ("IJC"), established under the auspices of the Office of the High Representative,9 had launched a major initiative to reform the courts of Bosnia and Herzegovina. A key element of that initiative was a comprehensive restructuring of the courts.10 The problem was where and how to begin such a project.

The European Union had pledged money to hire two experts to lead the restructuring effort, but after circulation of the Terms of Reference on two separate occasions-first in late 2001 and again in the spring of 2002-it became clear that no such experts were available and that, in all probability, they did not exist. After all, when was the last time anyone had done a comprehensive restructuring of a nation's court system? …