Strasbourg, 31 May 2005 Opinion no. 326 / 2004	Restricted CDL(2005)016rev Engl. only

 

                                                             

 

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

 

 

 

draft opinion

 

on A possible solution

to the issue of decertification of police officers

in bosnia and herzegovina

 

 

 

on the basis of comments by

 

 

Mr Pieter van Dijk (Member, the Netherlands)

Mr Jan Helgesen (Member, Norway)

Mr Giorgio Malinverni (Member, Switzerland)

 

 

 

 

I.                    Introduction

 

1.  By a letter of 8 December 2004, Mr Adnan Terzic, Prime Minister of Bosnia and Herzegovina, requested the assistance of the Commission in finding an adequate solution to the issue of a possible review of some of the decisions taken by UNMBiH until 2002 on decertification of police officers in Bosnia and Herzegovina.

 

2.  A working group, composed of Messrs Pieter van Dijk, Jan Helgesen and Giorgio Malinverni,  was subsequently set up.

 

3.  A preliminary discussion was held within the Sub-commission on international law on 10 March 2005.

 

4. By a letter of 30 March 2005,  Mr Jean-Marie Guéhenno, Under-Secretary-General of the Department of Peacekeeping Operations of the United Nations, was invited to inform the Commission of possible comments on the Commission’s draft opinion.

5.  In a letter of 25 April 2005, Mr Guéhenno submitted his arguments, which are reflected in the pertinent parts of the present opinion.

 

6.  The present opinion, which was prepared on the basis of the contributions of the members of the working group, was discussed within the sub-commission on international law on … and subsequently adopted by the Commission at its .. Plenary Session (Venice…)

 

II.                Background

 

7.  In the period 1996-2002, the United Nations International Police Task Force (IPTF) of Bosnia and Herzegovina, established under Annex 11 to the Dayton Peace Accords (General Framework Agreement for Peace in Bosnia and Herzegovina – GFAP), proceeded with the reorganisation of the police forces in both the Federation of Bosnia and Herzegovina (pursuant to the Bonn-Petersberg agreement of 1996[1]) and in the Republic Srpska[2] (see in particular the UN Security Council Resolution No. 1088/1996 and the decisions of the Peace Implementation Conference held in London on 4-5 December 1996).

 

8.  The vetting process of police officers in Bosnia and Herzegovina was notably conducted pursuant to IPTF Policies Nos. P10-2002 and P11-2002.

 

9.  The certification criteria set out in Policy P11 were the following:

 

Positive criteria (all to be complied with):

• Demonstrated ability to perform police powers;
• Proof of citizenship of Bosnia and Herzegovina (original or certified copy of the certificate would be accepted);
• Valid educational credentials;
• Completed Human Dignity and Transitional Course;
• Proof that no criminal case is pending (Certificate from the court: original or certified copy would be accepted); and
• Compliance with the property legislation.

 

Negative criteria (any of which would prevent certification):

• Failure to have demonstrated ability to uphold human rights and/or abide by the law (e.g: pattern of abuses, of violations of law and/or of duty);
• Officer made a deceptive statement in the context of the registration process and/or certification process;
• Criminal proceedings against the officer have been commenced by a domestic court, in case of war crimes (in accordance with the Rules of the Road); and
• Non-compliance with the property legislation, when an officer has been identified as:

1) an illegal occupant, or

2) a multiple occupant, or

3) having an expired deadline specified in a court or administrative decision (i.e. 15 and 90 day), or

4) occupying claimed property where there is a) housing authority and/or b) CRPC decision, and s/he has failed to vacate within 30 days from receipt of the notification sent by the IPTF Commissioner.

 

10.  Police Officers were registered by the UN/IPTF and given an ID card and a registration number. They were then provisionally authorized to work as police officials until final certification. After a review of their files, police officers were either certified or denied certification[3].

 

11.  Before being certified, police officials who had been registered by the UN were thus able to provisionally work as police officials.  The provisional authorization could be removed. The criteria and the procedure applicable to removals of provisional authorization were outlined in Article 2 a) to h) of Policy no. IPTF-10A/2002.

 

12.  The certified officers, who by their acts or omissions, would fall within the scope of application of Policy IPTF-P10/2002 para. 2(a) to 2(h), i.e. in the following cases:

·        Conviction of a serious breach of law, and the law enforcement agency in which the officer is employed has failed to take appropriate actions/sanctions in conformity with domestic law;

·        Conviction by a disciplinary panel of a serious breach of duty, and the penalty assigned does not correspond to the severity of the misconduct of the officer;

·        In the context of investigations conducted under Security Council resolution 1088, UNMIBH/IPTF has obtained independent evidence that an officer has committed a serious breach of duty that would obligate a law enforcement agency and the judiciary to take action under domestic law;

·        An officer has committed a pattern of minor offences that demonstrate disregard for upholding the law;

·        In the context of investigations conducted under Security Council resolution 1088, UNMIBH/IPTF has obtained independent evidence that an officer committed a serious breach of duty that would obligate a law enforcement agency to take action under domestic law and rulebooks on disciplinary procedure;

·        An officer has been issued two substantive non-compliance reports as outlined in UNMIBH/IPTF “Performance Assessment Policy” (IPTF-P05/2001);

·        An officer has made a material misrepresentation to UNMIBH that fundamentally affects consideration of suitability to exercise police powers; or

·        An officer, whose acts and/or omissions, and/or functions from the period of April 1992 to December 1995, demonstrate the inability or unwillingness to uphold internationally recognised human rights standards.

 

were decertified.

 

13.  Non-certification and de-certification precluded the local police officer from holding any position within a law enforcement agency in BiH.

 

14. A review of the decisions on both removal of provisional authorization (carried out pursuant to Policy IPTF- P10A/2002) and denial of certification (carried out pursuant to Policy IPTF-P11/2002) could be sought before the Commissioner.

 

15.  The procedure was as follows: within eight days of the Commissioner’s decision on non-certification or decertification, an appeal could be lodged before a panel composed of UNMBiH staff members. The application was to be made on the basis of the reasons for the refusal, but without access to the file and the evidence. Neither the applicant nor a representative were allowed to appear before the panel. The panel would make its recommendation to the Commissioner who would then make the final and binding decision.

 

16.  According to the information provided by the UNMBiH, 16,762 officers were certified, and 598 decertified, of which 150 have challenged the decisions decertifying them before national courts.

 

17.  UNMBiH terminated its mission on 31 December 2002.[4] The continuation was ensured by the European Union with the European Union Police Mission[5] as of 1 January 2003.

 

III.             Analysis

 

18.  A decision whereby an individual is prevented from continuing to exercise his or her profession for life directly affects him or her in the exercise of his or her profession. It must therefore be open for the individual in question to challenge this decision before an independent and impartial court in conformity with Article 6 ECHR[6], or at least before a body competent to effectively review the merits of the decision in accordance with Article 13 ECHR.

19.  Police officers are, however, public servants. The Commission thus considers that it is appropriate, at the outset, to address the matter of applicability of Article 6 ECHR to the decertification proceedings.

 

20.  The United Nations have recalled that, in its judgment Pellegrin v. France, the European Court of Human Rights has stated that “the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police.”[7] Accordingly, in the opinion of the United Nations, the decertification proceedings did not have to satisfy the requirements of Article 6 ECHR.

 

21.  The Commission is cognizant of the Pellegrin case-law. It recalls however that Article 53 ECHR on safeguard for existing human rights provides that: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party. (…).” This provision means that the European Convention, as interpreted by the European Court, represents a minimum common standard of human rights protection in Council of Europe member states. National legislation, as interpreted by the national courts, may well extend this protection beyond the scope determined by the European Court. The latter’s position on a specific matter must not be used to reduce the national scope of protection of that same right.

 

22.  In the case under examination, the Human Rights Commission of the Constitutional Court of Bosnia and Herzegovina, the highest human rights authority in BiH, has extended Article 6 ECHR to cover disputes raised by police officers.

 

23.  In the Commission’s opinion, this decision should not be questioned and should serve as the starting point for the reflection on the situation concerning the decertification of Bosnian police officers. The latter may therefore legitimately invoke the protection of Article 6 ECHR.

 

24.  In addition, the Commission recalls that the decertification procedure which was conducted in Bosnia and Herzegovinaby the UN/IPTF was motivated by a very specific situation. As the United Nations underline, after the war the Bosnian police forces counted 44,000 officers, many of whom were demobilized soldiers and paramilitary personnel. A great number of these personnel has inadequate qualifications and little or not training in the core values of the rule of law and human rights. Some of them, in addition, were known or suspected to have been involved in the continuing commission of acts of ethnic violence or in organised crime.

 

25.  It follows that a decertification decision carried with it, in the Commission’s opinion, certain negative inferences as to the relevant police officer’s qualifications or, even, criminal involvement.

 

26.  A decision on decertification, therefore, was likely to have a negative impact on the one hand on the officer’s reputation[8], and on the other hand on the possibility for him or her to find another job in the public administration and possibly in the private sphere[9].  Accordingly, in the Commission’s opinion, the relevant public officers’ right to respect for their private life, guaranteed by Article 8 of the Convention, was at stake.

 

27.  Decisions whereby police officers are prevented from continuing to exercise their profession would normally fall under domestic law, and domestic courts would be competent to review them. However, in the circumstances under consideration, they were taken by an international organisation rather than by the competent national bodies of Bosnia and Herzegovina. This is due to the particular constitutional arrangement of Bosnia and Herzegovina. The national authorities of Bosnia and Herzegovina did not have any margin ofappreciation in respect of decertification recommendations issued by UN/IPTF, and were therefore bound to implement them in order to comply with their international obligations[10].

 

28.  As a result of this, the Bosnian courts, even if formally competent to review the decisions of domestic authorities implementing UN/IPTF decisions on denial of certification, have no competence to annul such decisions and order that new ones should be taken, as they have no power to ignore or reverse the IPTF recommendations on decertification.[11]

 

29.  The Venice Commission considers thatthis situation of lack of effective domestic remedies is due to the immunity of jurisdiction of the UN/IPTF : as a consequence, it should be analysed in a similar manner as if the policemen had been employed by the United Nations and consequently not subjected to the jurisdiction of domestic courts.

 

30.  In the opinion of the Human Rights Commission of Bosnia and Herzegovina,the limitation on the relevant police officers’ right of access to a domestic court which resulted from the impossibility for them to bring their case before a court competent to examine the merits of their case is compatible with Article 6 ECHR.[12]

 

31.  The Venice Commission recalls that theimmunity of international organisations from legal proceedings in courts of member states and other international institutions is generally compatible with public international law. The purpose of this rule is to ensure that international organizations can perform their tasks without undue and uncoordinated interference by courts from individual states and other international institutions with their respective different legal systems. Therefore, it is with good reason that international organizations and their organs, such as the UN and UNMBiH (and their personnel) are not subjected to legal proceedings in member states and before other international institutions.

 

32.  It is particularly important in the present circumstances that the authority of the United Nations Mission in Bosniashould not be undermined or diminished by allowing IPTF’s decisions to be reopened by the national authorities of BiH after the end of the mandate of the same mission.

 

33.  The Commission nevertheless refers to the case-law of the European Court of Human Rights in the field of the immunity of jurisdiction of international organisations.[13] The compatibility of the limitation on the right of access to a court depends on certain factors such as the existence of adequate alternative means for determining the claims. Compatibility in that case rests on the assumption that the latter comply with the ECHR. “Adequate” means providing sufficient guarantees in terms of independence and impartiality and offering adequate procedural guarantees that could be said to fulfil the general requirements of Article 6 ECHR or Article 13 ECHR, as the case may be.[14]  

 

34.  If that is not the case, that is to say if the alternative procedure carried out within the international organisation in question is not capable of ensuring compliance with internationally recognised human rights standards, the State in question may not be exempted from its responsibilities under the ECHR.

 

35.  It is so, because compliance with human rights standards is so important that no international mechanism or procedure may be allowed to circumvent it. Consequently, a State may neither engage in international obligations, nor rely on these as a justification for any action or omission, if these obligations result in such circumvention.

 

36.  The Venice Commission underlines thatthe Human Rights Commission has found[15] that the decertification proceedings before IPTF and the Ministry of Internal Affairs (in that particular case, but the pattern was repeated in several other cases) did not satisfy the requirements of Article 6 ECHR, on account of the lack of public, adversarial, impartial and independent examination of the applicants’ rights. In this respect, the Venice Commission stresses that the Human Rights Commission has found that no breach of Article 6 ECHR had been committed by the national authorities. In the Venice Commission’s opinion, instead, the Human Rights Commission suggested that such breach, which had taken place, had indeed been committed by the UN/IPTF. The Human Rights Commission, however, does not have any jurisdiction over the UNMBiH, hence could not declare such breach.

 

37.  The Venice Commission recalls that Bosnia and Herzegovina did not decide to transfer its powers in the field of police reorganisation to the United Nations: the UN powers derived directly from the GFAP. Bosniais not free to choose to take back these powers: it follows that it cannot be held accountable for shortcomings in the proceedings carried out by the United Nations.

 

38.  It is therefore of the utmost importance that compliance with international human rights standards be ensured by the United Nations itself.[16]

 

39.  In the vetting process, IPTF has failed to provide the relevant police officers with a public, adversarial, impartial and independent examination of their rights,[17] while the review mechanism (see §§ 8 and following) appeared to be abortive for the larger part.

 

40.  The VeniceCommission notes that no convincing justification has been adduced for this failure. The United Nations underline that the certification of the Bosnian police officers, as organized and administered by the IPTF, formed a core component of the international community’s response to the situation then prevailing in Bosnia and Herzegovina,which constituted “a threat to international peace and security”. The police apparatus was inadequate to ensure the maintenance of law and order and the security of the Bosnian citizens, and even represented a potential threat to the stability, and integrity, of the State.

 

41.  The Venice Commission is aware of the situation as described by the United Nations, and fully agrees that it was imperative to proceed with the vetting process. Indeed, the VeniceCommission recognises the excellent work the United Nations has done in Bosnia; the tasks performed by the IPTF, particularly in the area of restructuring of the police forces, are part thereof and the difficulties faced in this respect must certainly not be forgotten or underestimated.

 

42.  The Venice Commission, however, is of the opinion that the crucial nature of this process in ensuring peace in Bosnia does not explain why, for example, the police officers were not heard in person or allowed to make submissions or challenge allegations against them, or why they were not provided with access to their files and the evidence adduced against them. The need to complete the process speedily, while at the same time preparing to wind down the mission, may explain some of the shortcomings in question. It may not, however, justify them.

 

43.  It must be underlined that in this respect, the UN-IPTF has carried out tasks which are certainly more similar to those of a State administration than those of an international organisation proper. It is inconceivable and incompatible with the principles of democracy, the rule of law and respect for human rights that it could act or have acted as a State authority and be exempted from any independent legal review[18]. In the Venice Commission’s opinion, transparency and accountability of transitional territorial administration by international organisations are an extremely important element of their credibility and authority  Peace and security cannot but be fostered by transparent and fair proceedings.  

 

44. The United Nations should be ready to fulfil IPTF’s mission “in accordance with internationally recognised standards and with respect for internationally recognised human rights and fundamental freedoms”.[19]

 

45.  The VeniceCommission considers therefore that it is appropriate that the United Nations carry out a review process of the decertification decisions that have been challenged before the Bosnian authorities after the end of 2002.

 

46.  It deems this to be even more so on account of the far-reaching consequences of the decertifications: the policemen who were decertified are prevented from continuing to exercise this profession for life.

 

47. It is obviously up to the Security Council to decide on the body that most appropriately should review the decertification proceedings that have been subject to legal challenge before the domestic courts of Bosnia and Herzegovina.  

 

48.  The Venice Commission, for its part, would recommend that the Security Council set up a review body of (three) independent experts, entrusted with reviewing the approximately 150 decertification cases which have been challenged before the domestic courts.

 

49.  In this respect, the Commission notes with appreciation that, in a letter addressed on 14 October 2004 to the High Representative of Bosnia and Herzegovina, the UN Under-Secretary-General for Peacekeeping Operations, Mr Jean-Marie Guéhenno, indicated the readiness of the United Nations Secretariat to assist “whatever competent agency may be authorised [by the Security Council] to carry out a review of certification cases, by providing such agency with the relevant files on a case-by-case basis”. The Commission welcomes this readiness which would indeed be essential in order for the review body to carry out its tasks.

 

50.  In the proposed SC Resolution, the task and relevant powers should be given to the appropriate national authority (notably the Ministry of the Interior of the FBiH) - in case the review body, in the light of any potential new information provided to it by the applicants in the course of adversarial proceedings, should come to the conclusion that the original recommendation should be reversed - to implement a new recommendation by annulling its own previous decision on decertification.

 

51.  The (three) members of the review body could be appointed  by the Secretary General, in consultation with the High Representative, also in the latter’s capacity as European Union Special Representative.

 

52.  In the Venice Commission’ opinion, thereview process of the approximately 150 cases which are currently pending before the Bosnian courts (several of which raise similar issues) could be expected to be completed within a relatively short period of time. The review body should be assisted by a small secretariat, which should immediately proceed with preparing appropriate rules of procedure. The decisions should be rendered in both English and the applicant’s local language.

 

IV.              Conclusions

 

53.  The Venice Commission considers ithighly appropriate that the decertification cases that have been challenged before the Bosnian courts be reviewed by the United Nations. The Commission wishes to underline that it by no means considers that domestic authorities are entitled or competent to proceed themselves to review decisions on decertification.

 

54. While it is up to the UN Security Council to decide on the body that most appropriately should review the decertification proceedings, the Venice Commission suggests that a special body be set up by the Security Council and mandated to review the decertification cases that have been challenged before the Bosnian authorities.

 

55.  This review body might be composed of (three) independent experts, appointed by the UN Secretary General, in consultation with the High Representative, also in the latter’s capacity as European Union Special Representative.

 

56.  This body would be competent to review the recommendations on decertification previously made by IPTF, on the basis of the information previously gathered by IPTF (with the assistance of the UN Secretariat) and in the course of an adversarial procedure in which the former policeman concerned would be allowed to have access to such a file (with the exception of duly classified information) and provide new information.

 

57.  Should the review body come to the conclusion that the original recommendation needs to be reversed, the competent national authorities would have to implement the new recommendation and annul their previous decision on decertification.

 

58.  The Venice Commission considers thatthis review body, with the assistance of a small secretariat, could be expected to complete the review process within a short period of time (six months).     

 

59.  The Venice Commission remains at the disposal of the Bosnian authorities and of the United Nations, should any further assistance be necessary in this matter.