Bosnia and Herzegovina Council of Ministers

BOSNIA AND HERZEGOVINA COUNCIL OF MINISTERS

SECOND READINESS REPORT ON THE IMPLEMENTATION OF THE ROAD MAP FOR VIZA LIBERALIZATION

Sarajevo, 1 October 2009

CONTENT

BLOCK 1 – Document Security ...... 3

BLOCK 2 - Illegal migration, including readmission ...... 7

BLOCK 3 - Public order and security……………………………………..………………...… 18

BLOCK 4 - External relations and fundamental rights………………...…………………….. 63

ANNEX 1 – Migration Profile of Bosnia and Herzegovina …………………………………... 65

ANNEX 2 – Returnee Reintegration Strategy…………………………………………………131

ANNEX 3 – Strategy for Combating Organized Crime…………………………………...... 167

ANNEX 4 – Strategy and Action Plan for the Prevention of Money Laundering and Financing of Terrorist Activities in Bosnia and Herzegovina………………....190

ANNEX 5 – National Anti-Corruption Strategy and Action Plan…………………………...217

ANNEX 6 – Draft Law on Amendments to the Criminal Code of Bosnia and Herzegovina …………………………………………………………242

ANNEX 7 – Draft Law on Agency for Prevention of Corruption and on Cooperation in Fight of Corruption……………………………………………………………281

ANNEX 8 – Law on Prohibition of Discrimination…………………………………...………290

ANNEX 9 - Bosnia and Herzegovina Chief Prosecutor Report...... 301

ANNEX 10 – Information on the situation in the Institution of Human Rights Ombudsman for Bosnia and Herzegovina………………………………..……308

BLOCK 1 Document Security

Passports/travel documents, ID cards and breeder documents (benchmarks 1-5)

 Introduction of biometric passports (please specify the number of biometric passports issued)  Bosnia and Herzegovina has started the issuance of passports in compliance with the biometric standards as of July 1, 2009: 1. 142 municipalities, 10 cantonal Ministries of Inferior (MoI), MoI of the Republic of Srpska, the Public Register of Brcko District, Ministry of Civil Affairs, Ministry of Foreign Affairs, and Diplomatic and Consular Representation (DCR) Network and the Agency are connected into the System; 2. The online system connects 322 locations in Bosnia and Herzegovina and abroad (DCR network), which includes all foreseen locations? 3. Over 45 000 applications, in compliance with the above procedures, have been received within the period from 1 July 2009 to 11 September 2009 and over 41,000 current passports have been issued under the biometric standard system. Since 1 July it is impossible to issue a passport without complete identity verification by the MoI and local authorities. 4. The applied procedure is the as following: a. A citizen submits an application with the MoIs in the municipality, DCR network or Public Register in Brčko; b. Police authorities require the electronic verification of the registration in the Main Register Books by municipalities; c. A municipality verifies the registration in the registers; d. MoI performs additional identity verification, and delivers the data to be personalized; e. Prior to personalization, a final check whether there is a person in the register with such an identity is to be done; f. Full procedure is applied apart from chip personalization on the form. g. Personalized passport is to be returned to the MoI or transported to the DCR network.

5. After control of biometric forms, and no later than 15 October 2009, issuing of biometric passports will begin:

a. The procedure is as described above; b. The phase of EAC chip personalization is to be included in the personalization process, c. Biometric passport control is to be included in the control process;

The institutions responsible for documents in BiH are:

1. Main register books, birth certificate and citizenship certificates a. Jurisdiction for issuance: local administration authorities (local authorities) b. Supervision over issuance i. FBiH: Cantonal MoIs and the Ministry of Justice ii. Republic of Srpska: Ministry of local administration iii. Brčko District: Public Register

c. Registers and personalization i. Registers are maintained by the local authorities ii. Personalization of documents is carried out by local authorities

2. Identity cards a. Jurisdiction for issuance: 3

i. FBiH: Police administrations of the Cantonal MoIs ii. Republic of Srpska: Public Security Centers, Public Security Stations and Police Stations of the MoI of RS iii. Brčko District: Public Register

b. Supervision over issuance: i. FBiH: Cantonal MoIs ii. Republic of Srpska: MoI iii. Brčko District: Government iv. Ministry of Civil Affairs

c. Central register and personalization: i. The Agency for identification documents, registers and data exchange (IDDEEA) deals with technical maintenance of the central register through which the data exchange is carried out. ii. The owners of the data are the authorities referred to under a. of this item iii. The IDDEEA is in charge of personalization of documents and a central stock of blank documents

3. Passports

a. Jurisdiction for issuance: i. FBiH: Police administrations of the Cantonal MoIs ii. Republic of Srpska: Public Security Centers, Public Security Stations and Police Station of the MoI of RS iii. Brčko District: Public Register iv. Diplomatic and Consular Representation Network b. Supervision over issuance: i. FBiH: Cantonal MoIs ii. Republic of Srpska: MoI iii. Brčko District: Government iv. Ministry of Foreign Affairs v. Ministry of Civil Affairs c. Central register and personalization: i. The Agency for identification documents, registers and data exchange (IDDEEA) deals with technical maintenance of the central register through which the data exchange is carried out. ii. The owners of the data are the authorities referred to under a. of this item iii. The IDDEEA is in charge of personalization of documents and a central stock of blank documents

All institutions are connected into a single electronic system which means that the system is fully operational throughout Bosnia and Herzegovina. BiH will provide information when the biometric forms have been introduced, which is foreseen at the latest by 15 October, 2009. Below you will find the planned number of issued biometric passports from the year of 2009.

1. Period October 15 – 31, 2009 – approx. 10 000 2. November 2009 – approx. 20 000 3. December 2009 – approx. 20 000

Larger quantities of issued biometric forms might be expected due to the fact that visa liberalization will be applied only to biometric passport bearers.

 Measures taken to ensure systematic training and general anti-corruption programmes targeting public officials dealing with issuance of breeder documents, ID cards and passports

At its 91st session, the BiH Council of Ministers adopted a Rulebook on protection of official secrets and data in the Agency for Identification Documents, Registers and Data Exchange. It is stipulated that any of the employees of all the competent authorities dealing with issuing of documents must undergo general security screening. All the competent authorities have already started the security screening procedures.

In compliance with the recommendations of the IDDEEA, all the local authorities in charge of maintenance of main register books and all the passport issuing authorities have adopted anti-corruption programs and those are being implemented throughout the country, which also have been confirmed in writing by these authorities to Ministry of Civil Affairs. In addition all authorities included into the so-called “identity chain” have adopted education programs and inspection plans.

During the summer months of 2009, the Minister of Civil Affairs of Bosnia and Herzegovina and the Director of Agency for Identification Documents, Registers and Data Exchange have visited all authorities competent for issuance of documents and have followed up directly on particular the necessity of fight against corruption.

 Measures taken to ensure systematic reporting of lost and stolen travel documents by IDDEEA via Interpol NCB Sarajevo

Project implementation PUSH & PULL i.e., automatic data entry in the database of stolen and lost travel documents (SLTD) and stolen vehicle (SMV) of the International Criminal Police Organization – INTERPOL, is realized.

Until 12.08.2009 communication between IDDEEA database of stolen and lost travel documents and Oracle Lite database in the NCB Interpol Sarajevo was successfully tested. Automatic transfer of data from the database of NCB Interpol Sarajevo with the central database server in the General Secretariat of INTERPOL was successfully tested as well.

Also, the transmission of manually entered data from IDDEEA‟s register of stolen documents in the Oracle Lite database of stolen documents in the NCB Interpol Sarajevo successfully has been tested.

The Guidelines on systematic reporting of lost and stolen travel documents have been adopted by IDDEEA and NCB Interpol Sarajevo.

Regarding above mentioned activities, NCB Interpol Sarajevo forwarded an Instruction to Ministries of Interior (Republic of Srpska, Federation of Bosnia-Herzegovina, 10 cantons and Brcko District Police) on insertion of stolen/lost BiH travel documents data.

Previously arranged with IPSG Lyon, on September 15 2009 PUSH/PULL process of data insertion was activated.

Activation requested following:

- all data was deleted and automatic data exchange with IDDEEA was terminated; - IPSG performed data transfer on PUSH/PULL server; - NCB Sarajevo performed synchronization with IPSG server.

On 15 September, 2009 IPSG activated PUSH/PULL server, and from this date on it is possible to access PUSH/PULL data inserted by Bosnia-Herzegovina, through ASF application.

On the same day IDDEEA activated information exchange with PUSH&PULL client, and now the information inserted in IDDEEA register of stolen document and vehicles are automatically replicated in PUSH&PULL client in NCB Interpol Sarajevo. Every change of status is automatically replicated in PUSH&PULL client in NCB Sarajevo, and from that place every 30 minutes those changes are synchronized with PUSH &PULL data base in Lyon. It has been arranged with IDDEA that NCB Sarajevo will conduct checks of data inserted by our Ministry of Interiors.   Progress of verification of all registry books and entry into central database managed by IDDEEA

As of 1 July, 2009, all competent local/municipal authorities in Bosnia and Herzegovina distribute data from the Main Register Books to the registers of the Agency for Identification Documents, Registers and Data Exchange (IDDEA).

Given that the verified data are distributed to the databases under the jurisdiction of the IDDEEA as prescribed by the European Commission this requirement may be considered fulfilled.

The relevant entity ministries have started the activities on improvement of regulations in this field, especially in the segment of the digital signature of the main register books and more efficient data exchange.

BLOCK 2 Illegal migration, including readmission

Border management (benchmarks 6-9)   Implementation of the Law on Border control

Law on Border Control was adopted in June, 2009 („Official Gazette of BiH“no. 73/08) and entered into force on 15th of July, 2009. Competent authorities are currently working on the implementation of the Law.

Upon the date of entry into force of the said Law, the Ministry of Security of BiH sent a request to all responsible authorities suggesting to form the working groups for drafting the bylaws in accordance with the Law on Border Control. It was suggested to form eight working groups in total for drafting of 13 bylaws as enshrined in the Law on Border Control. The Ministry of Security was proposed as the coordinator for drafting four bylaws, the Border Police for drafting six bylaws, whilst the Ministry of Civil Affairs, the Ministry of Communication and Transport and the Indirect taxation Authority were each proposed as the coordinators of a working group for drafting one bylaw. The Ministry of Security established two working groups tasked to draft the following: bylaw on determination of the temporary border crossings (Article 12 of the Law); bylaw on standards and conditions on constructing and equipping the border crossings (Article 14 of the law); bylaw on conditions and modus of determining the area of the border crossings (Article 17 of the Law) and bylaw on the procedure for determining and resolving of the border incidents and other violations of the state border. The representatives of the following institutions were appointed to the above mentioned working groups: Ministry of Security, Ministry of Finance and Treasury, Ministry of Foreign Affairs, Ministry of Civil Affairs, Ministry of Communication and Traffic, Border Police, Indirect Taxation Authority, State Veterinary Office and BiH Administration for Health Plant Protection. The first meeting of the above mentioned working groups was held on 8th of September and the draft bylaws prepared by the Ministry of Security were given to the members for their comments and suggestion. The process of finalizing of said bylaws is ongoing.

The Border police delegated its representatives for creation of sub-law regulations following the mentioned Law. BP representatives have been proposed to work in all inter-agency working groups, as well as to be chairing the working group the task of which is to create sub-law acts, that Border Police is in charge of enacting.

Border Police Director has formed three working groups (which include representatives of Ministry of Security, Ministry of Traffic and Communications and Indirect Taxation Authority) in order to draft rulebooks determined the implementation regulations which he is in charge of enacting in accordance with Law on Border Control. That task of these working groups is to draft proposals for rulebooks implementation regulations on the following: - conditions for issuance and cancellation of border permits, manner and deadlines for issuance, request form features, border permit form and contents, performing surveillance and statistical monitoring of border permit issuance (Article 8 of the Law) - border control in international transit air traffic at airports (Article 9 of the Law) - Features, contents and the way of issuance of permit for movement in the area where a boat is detained (Article 26 of the Law) - border checks performing and costs (Article 28 of the Law) - manner of border checks performing, input of data in travel documents appropriate for border crossing, input of data on entering and exiting the country, on entry refusal, as well as other relevant data (Article 31 of the Law) 7

- setting up and use of technical facilities, taking photographs, recording and carrying out video surveillance at border crossing points (Article 58 of the Law)

The working groups have drafted proposals for rulebooks on determination of temporary border crossing point; and on procedure of identifying and dealing with border incidents as well as other violations of state border, and those have been submitted for consideration, proposals and suggestions.

 Implementation of the Integrated Border Management (IBM) strategy and Action Plan, in particular, o measures to strengthen inter-agency cooperation between central, regional and local authorities working at the border

In order to implement Integrated Border Management Strategy in BiH, Council of Ministers has established a National Commission for Integrated Border Management in BiH, which members are directors of agencies included in the IBM Strategy (Border Police, Indirect Taxation Authority, Veterinary Office, Service for Foreigners Affairs, Plant Health Administration) and representatives of the Ministry of Security. The Commission is responsible for monitoring implementation of Strategy and Action Plan, preparation and implementation of Agreement on Border Crossing Points and Agreement on Border Area Traffic with neighboring countries, making proposals for opening, categorization and re-categorization of border crossing points, giving opinions and making suggestions for border crossing points, procedures etc. Council of Ministers adopted, at its 94th session, Report on activities of National Commission for Integrated Border Management, which has been forwarded to all relevant ministries involved in integrated border management.

Moreover, special sub-commissions have been formed, members of which are representatives of agencies included in IBM, and which are responsible for monitoring and implementation of some areas of IBM Strategy and Action Plan (legal and regulatory framework; infrastructure; joint risk analysis; leadership, organization and procedures).

The Agreement on Mutual Cooperation between the institutions involved in the process of integrated border management of the state border of BiH was signed on 23rd of September, 2009 in Sarajevo. The signatory parties to the Agreement are the heads of institutions which have certain competencies in the area of the border control at the state border of BiH, as follows: Ministry of Security, Border Police of BiH, Service for Foreigners‟ Affairs of BiH, Indirect Taxation Authority of BiH, State Veterinary Office of BiH, BiH Administration for Health Plant Protection, Federal Administration for Inspection Affairs of Federation of BiH, Republic Administration for Inspection Affairs of Republic of Srpska and the Government of Brčko District of BiH. The Agreement was developed in the framework of the work of the State Commission for Integrated Border Management of BiH. Signing of said Agreement is foreseen as one of the objectives in the Action Plan for the implementation of IBM Strategy of BiH, chapter 5.2. - Interagency cooperation, goal 5.2.1.1. “Harmonization of the legal and regulatory framework in BiH with good EU practice and EU requirements”. The Agreement regulates the basis for cooperation among the signatory parties in the implementation of their tasks related to the state border and border crossings aiming to facilitate impeded legal flow of people, goods and vehicles while at the same time preventing, documenting and detecting criminal acts and offences which are connected to the state border of BiH. The cooperation is foreseen at local, regional and central level among the included agencies in the area of exchange of data, joint purchase and use of equipment at the border crossings, organization and implementation of the joint actions, joint risk analysis, appointment of the liaison officers, holding of joint meetings, joint trainings, joint informing of the public, as well as other 8

activities which will ultimately lead to harmonized work and enhanced cooperation and coordination between the institutions which have certain competencies at the state border.

Special working groups formed by Border Police decision are to work constantly on realization of Border Police tasks determined by IBM Strategy and Action Plan.

Border Police has established a significant level of cooperation with institutions in BiH, with an accent on cooperation with authorities included in IBM Strategy in BiH. Currently, Border Police is applying Agreement on Cooperation with Indirect Taxation Authority. For the realization of the Agreement a mixed working body was formed, action plan for the Agreement implementation was adopted, regular meetings held with BP and ITA representatives, joint trainings of officers are carried out , as well as joint actions at local, regional and central levels .

Apart from this, Border Police has established cooperation with other law-enforcement agencies (Federation MOI, RS MOI, Brčko District Police, SIPA, OSA, competent prosecutions and courts). Indirect Taxation Authority, police and security authorities, competent BiH inspection authorities were, in 2009, were submitted 603 subjects – cases, 57 (9,45%) of which criminal acts, 473 (78,44%) offences, 59 (9,78%) information and 14 (2,32%) other matters.

For implementation of international obligations following IBM Strategy and Action Plan it is especially important to establish joint patrols of Border Police and neighboring countries police. In accordance with Agreement on Cooperation in State Border Surveillance and related Protocol, joint patrols of BiH Border Police and Croatian Police were established in 2008. During the first six months in 2009 BiH Border Police and Croatian Police carried out 439 mixed patrols. Joint plans are regularly made at all levels to carry out joint patrols and trainings of police officers participating in joint patrols. Training (including 150 police officers from BiH and Croatia – in total 300 police officers) consists of theoretical and practical part in the field. In accordance with Plan for Joint Training Implementation so far 60% of the activities have been realized, and the complete training process will be realized by the end of November 2009.

In June and July 2009, after the implementation Protocols were signed, first joint patrols have been formed at the border with Serbia and with Montenegro. At the same time activities are being carried out to create and implement joint plans for training the officers who will be involved in joint patrols in this part of BiH state border.

Joint patrols, apart from preventive effect, have resulted in prevention of smuggling of all kind of goods cross the state border and a decrease in number of illegal state border crossings, as well as in number of persons returned according to Agreement with Croatia.

o measures taken to strengthen risk analysis, in particular establishment of the Joint Risk Analysis Centre

The Joint Risk Analysis Center became operational in the end of March 2009, when officers were assigned to take up duty.

On 22 Dec 2008 Minister of Security and Directors of Border Police, Indirect Taxation Authority, Veterinary Office, Service for Foreigners Affairs and Plant Health Administration signed an Agreement on Establishment of Joint Risk Analysis Center related to BiH state border. The Agreement regulates matters such as the objective of the establishment of the Center, tasks, location

and personnel of the Center, modus operandi of the Center, forming of local centers. According to signed Agreement on Joint Center Establishment, all involved agencies formed local centers for risk analysis, appointed staff to work in Joint Center, BP has provided necessary office and equipment for the work of Joint Center, training of the staff is continuously carried out, European Commission has donated IT equipment for the work of both local centers and Joint Center. In order to improve risk analysis and strengthen analytical capacities at regional and local BP organizational levels, there has been a proposal made for Project “Forming Regional Analytical Teams in the Field Offices” in order to timely collect and analytically process information on persons and groups involved in criminal activities, using advanced computer technology. This project defines necessary steps for establishment and functioning of regional analytical teams.

By order of BP Director, all organizational units made risk analysis for their area of responsibility in accordance with Annual Working Plan for 2009.

In coordination with IOM, training of leading staff on Basic Principles of Integrated Border Management including Joint Risk Analysis has been carried out at regional and partly local levels. These trainings will, apart from Border Police officers, include officers from Indirect Taxation Authority, Veterinary Office and Plant Health Administration.

o modernization of infrastructure, equipment and IT technology

Border crossing points networking and passport scanners installation is the priority of Border Police in the field of modernization of infrastructure, equipment and installation of IT technologies at border crossing points in 2009. The aim is that all border crossing points in BiH are equipped with passport scanners by the end of 2009.

It is important to state that Border Police has established integrated System of Control of State Border Crossings (CSBC 2009), and currently at 25 border crossing points (13 more in comparison with previous reports) infrastructural conditions are created (networking with SPIN and SDH) and travel document scanners with related computer equipment are being installed there. The system is completely operational and has been applied at 20 border crossing points where travel document scanners are installed. This system (CSBC 2009) will be integrated into ISM as one of its modules (module – “Border Crossing”). The system enables automatic registering of border crossings and entry refusals to foreigners, simultaneously checking in search bases including MIND system for automatic control of travel document serial number in Interpol database on lost and stolen travel documents.

A significant contribution to SPIN network has been given by American organization ICITAP (US Department of Justice) by indirect donation of equipment to Border Police, SIPA and Ministry of Security, in the amount of $900.000. This network enables communication connection of BiH BP organizational units, as well as SIPA and Ministry of Security organizational units. It is important to state that BiH BP is the most important user of SPIN network, since the implementation of this project is the only way for rational and functional communicational connecting of border crossing points.

At the same time a tender was announced for procurement of 50 modern biometric passport scanners with related computer equipment, and there are efforts made to get additional 30 passport scanners through donations. Tender procedure finished, provider is selected and delivery and

installment of the equipment at border crossing points are to follow. These activities are expected to be finished by the end of October 2009. In accordance with available budgetary means in 2009, equipment for state border surveillance was purchased (such as hand thermal-vision cameras, thermal-vision cameras combined with high resolution and long-range video cameras, night-vision binoculars, passport scanners, etc.)

Two modern border crossing points are being built at the border with Montenegro – Klobuk (expected to open at the end of 2009) and Zupci (opening expected in April 2010).

At its 94th session BiH Council of Ministers made a decision to authorize Indirect Taxation Authority to deal with management and maintenance of border crossing points, by systematization of new posts in ITA, in order for activities on border crossing points' maintenance to be carried out in a quality and efficient manner.

o measures taken to strengthen human resources, including training

Border Police officers‟ training is carried out in two ways: basic training carried out in BP Training Center, and professional development. As we informed you before, BP has been continuously carrying out these activities. Education of 99 cadets of the 5th generation finished, and they have been sent to organizational units on probation. Simultaneously, we finished with selection of 6th generation cadets and education for 120 of them has already started.

The BP has via the Civil Service Agency started the hiring process for another 5 civil servants that will further strengthen the human resource of the BP.

Changes and amendments to the Rulebook on Procedure for Police Officers Promotion in the Transition Period, by which necessary preconditions for police officers‟ promotion have been created, as well as the base for recruitment and education of new generation of cadets in the following period. However, realization of these activities directly depends on available budgetary means to be granted to BiH Border Police for this purpose. In accordance with the Roadmap demands, Border Police has been carrying out Anti-Corruption Training Program. Curriculum and training program have been adopted, training of trainers has finished, and currently training is being carried out at local, regional and central levels. Following the planned activities, this program will include all Border Police employees by the end of the year.

In order to have optimal human resources in BP, it is of significant importance to enact Law on Changes and Amendments to Law on Border Police in BiH, and in accordance with that to enact a new Rulebook on Internal BP Organization. With regard to that, BP Director has formed a special working group for drafting a proposal for the Rulebook. Changes and amendments to the Rulebook on Internal BP Organization are expected to be enacted at the beginning of October 2009.

The Border Police has prepared and adopted a Strategy on human resources management for period 2010. – 2014. The document bring up issues related to workload, training and analyzing of quality of work, job descriptions, organizational merging of all functions in BP that are related to human resources and employment. The Strategy for human resources management envisages implementation of a comprehensive analysis of jobs in order to find out a real character and workload for every position and profiles of experts appropriate for every single position, aiming to adequate filling of positions with efficient personnel. Number of employees for individual positions, their education, knowledge and skills will be in accordance with recommended international practice and standards. 11

 Progress to close uncontrolled border crossings, in cooperation with neighboring countries

The configuration of the land part of BiH state border is such that there are several places suitable for illegal crossings of the state border.

The project of blocking locations suitable for illegal crossings of the land border between Bosnia and Herzegovina and Republic Croatia has finished. The project identified 118 locations, 68 of which have been blocked on the BiH side and remaining locations by Croatian side.

There are currently activities on similar project realization in the land part of the border with Montenegro. Joint commission formed by competent authorities in Bosnia and Herzegovina and Montenegro has identified 44 locations to be blocked. Border Police representatives from Bosnia and Herzegovina and Montenegro signed joint Elaborate on blocking. The next activity is tender announcement and provider selection.

An initiative to form BiH and Serbian teams of experts, who will also identify necessary locations for blocking at the common border, has been put forward by BiH side but so far there are no replay from Serbian side.

Above activities have bilateral nature and Bosnia and Herzegovina is not in a position to provide more information with regards the future activities and timeframes.

Asylum (benchmarks 11, 12)

 Adoption and implementation of bylaws on asylum procedure and access to travel and identification documents

All bylaws related to the asylum procedure, pursuant Law on Stay and Movement of Aliens and Asylum are adopted (The Bylaw on International Protection (Asylum) in BiH; The Rulebook on Standards and Other Matters of Importance for Functioning of Asylum Centres. Competent institutions have been implementing all those bylaws regularly.

All bylaws related to the access to travel and identification documents for aliens, including refugees, are adopted as follows: - Ministry of Security on 11 September, 2009 has adopted The Rulebook on the format and the content of the applications for the issuance of passport for refugees, passport for stateless persons and travel document (Laisser passer) ; - Ministry of Civil Affairs on 30 September, 2009 has adopted a) The Rulebook on travel document for aliens (Laissez passer); b) The Rulebook on passport for refugees; c) The Rulebook on passport for stateless persons.

All for rulebooks are expected to be published in Official Gazete and came into force in coming weeks.

The Ministry of Security and the Foreigners Affairs Service, which are competent institutions for issuance of above mentioned documents, will start with their issuance after procurement of necessary equipment and forms, which is expected in late November or early December 2009.  12

 Measures to ensure a sustainable solution for backlog of asylum applicants  The Law on Stay and Movement of Aliens and Asylum from 2008, and bylaws adopted on the basis of that Law created prerequisites for acceleration of the decision making process upon asylum applications. Out of total containing 48 asylum claims that were subject to evaluation in the year 2009, the Ministry of Security reached its decision for 36 claims. In cooperation with UNHCR, ongoing resettlement process includes persons covered by 4 asylum claims, while 8 other cases remain pending.   Progress of construction of permanent reception centre for asylum seekers in Trnovo

During 2008 and 2009 Ministry of Security of Bosnia and Herzegovina has accomplished bellow actions in order to prepare construction of permanent reception centre for asylum seekers in Trnovo: 1. The Asylum Centre‟s Concept Design was made and purchased. 2. Following the concept design and a request of the Ministry of Security, the Municipal Council of Trnovo had issued the decision on urban planning approval for the construction of the BiH Ministry of Security‟s Asylum Centre. 3. Based upon the concept design and the decision on urban planning approval, the Trnovo Municipality established the price for the land. Price has been paid by the Ministry of Security. 4. Activities of revision of the Main Concept Design were carried out in accordance with the applicable laws at an Architectural Bureau registered for this type of activities. Carrier of these activities also included the Committee for Public Purchases and Ministry‟s Sector for Legal Affairs, Human Resources, General and Financial Matters, having task to give their recommendations to the Bureau on necessary changes and adjustments to the Centre, if any, and to approach to the procedures on issuance of Municipal approvals on the construction itself, as well as to the related public utility matters (electricity, water-supply, telecommunication, establishing connection with the local Police Administration regarding fire protection issues, etc.). 5. The process of selection of projects concerning the Asylum Centre gates, fences and environmental set-up (including public utilities) was completed and applied. 6. The ongoing procedures concern selection of implementers and monitoring over activities on the Centre gate and fences, environmental set-up, roof repair, and selection of implementers and monitoring over construction and reconstruction of accommodation facilities, which include partial adaptation and furnishing of the Centre restaurant, as provided by the Concept Design. Project to support construction of asylum centre in Trnovo is approved within IPA 2008. Ministry of Security is waiting implementation of the project in order to start construction.

Migration Management (benchmarks 10, 13-17)   Monitoring of migration flows, in particular development of migration profile and implementation of the Information System on Migration (ISM)  Ministry of Security of Bosnia and Herzegovina in cooperation with Ministry of Human Rights and Refugees, Ministry of Foreign Affairs, Border Police, Foreigners Affairs Service, State Investigation and Protection Agency, Agencies for Labor and Employment and competent entity, 13

cantonal and Brcko District institutions has developed first Migration Profile of Bosnia and Herzegovina. Council of Ministers of Bosnia and Herzegovina on its session held on September 24 adopted above mentioned Migration Profile and adopted the Decision on obligation of all competent institutions in Bosnia and Herzegovina to submit regularly data related to the migration issues to the Ministry of Security in order to keep Migration Profile accurate.

First Migration Profile of Bosnia and Herzegovina is attached in Annex 1.

The Information System on Migration (ISM) started with its full functioning, including all four modules (visa, residence, border and asylum) on 29 September, 2009. The system is implemented in all competent institutions (Ministry of Foreign Affairs, Ministry of Security, Border Police and Foreigners Affairs Service).

 Measures to strengthen the integration of returnees

In order to strengthen the integration of returnees, primarily those readmitted from the EU countries, under Readmission Agreement between European Union and Bosnia and Herzegovina, Ministry of Human Rights and Refugees in cooperation with Ministry of Security and other competent state, entities, cantonal and local institutions has developed Strategy for Integration of Readmitted Returnees. Strategy which provides measures for support in the integration of the returnees was adopted by the Council of Ministers on 24 September 2009 and is attached in the Annex 2.   Measures taken to strengthen inter-agency cooperation between authorities involved in fighting illegal immigration, including inland detection

The Council of Ministers of Bosnia and Herzegovina has adopted the Strategy in the field of migrations and asylum, and the Action plan 2008-2011. Also the Council of Ministers had formed the permanent Coordination Body that follows dynamics of the implementation of this Strategy and Action plan. One of the goals of the Strategy is development and strengthening of the inter- agency cooperation between authorities involved in fighting illegal immigration, including inland detection. Coordination Body meets regularly in order to evaluate situation and to identify ways and means for strengthening interagency cooperation.

Border Police regularly cooperates with entity and cantonal MOIs, state level agencies (OSA, SIPA, Service for Foreigners Affairs) in border-related matters, and these agencies are forwarded all information related to their competence. During the first six months in 2009, Border Police forwarded 93 pieces of criminal-intelligence information for other agencies to use, which is almost 10% of the total of collected intelligence information.

During realization of the latest international operational actions on prevention of organized crime of smuggling people - „TARA 1“ and „TARA 2“ (realized in April and July 2009) a close cooperation was established with cantonal police of West-Herzegovina and Tuzla Cantons, which directly supported Border Police in realization of these activities. Mentioned actions were simultaneously realized in BiH, Slovenia and Austria, and through SECI Center representatives of police agencies from Turkey, Macedonia, Montenegro, Serbia, Croatia, Germany and Italy were also involved. During the actions 53 persons were arrested, 17 of which on the BiH territory. During these operational actions significant quantities of drugs, weapons and connection means used for commitment of crimes were seized.

Through the realization of international operational actions on prevention of organized crime of smuggling people excellent cooperation was established with the neighboring countries police (Croatia, Serbia and Montenegro) as well as with the police from Macedonia, Slovenia, and Austria, coordinated by SECI Center. Several operational actions (Joker, Danube, Put, Split, and Vršani) were organized and carried out, with police agencies in the region, on fighting illegal migration, mainly realized in cooperation with SECI Center. By their importance and results achieved we must single out the following: - Operation „Split“(realized in April 2007) in which representatives of BiH BP, police agencies from Croatia, Montenegro and Slovenia participated. One person – organizer of smuggling people was arrested. - Operation „Dunav“ (realized in May/June 2007) in which representatives of BiH BP, police agencies from Croatia, Serbia, Macedonia, Slovenia and Austria participated. Five persons – organizers of smuggling people were arrested. - Operation „Plitvice“(realized in September 2007) in which representatives of BiH BP, police agencies from Croatia and Montenegro participated. Three persons – organizers of smuggling people were arrested. - Operation „Havana“(realized in March 2008) in which representatives of BiH BP, SIPA BiH and police agencies from Croatia and Montenegro participated. The bearer of the operation was SIPA, and Border Police arrested 3 persons – organizers of smuggling people and 9 persons – their accomplices. - Operation „Vršani“(realized in June 2008) u in which representatives of BiH BP, police agencies from Croatia and Montenegro participated. Four persons organizers of smuggling people were arrested.

Border Police regularly supports Ministry of Security with data from its registry that serve to create migration profiles (refused entries to foreigners, illegal crossings of the state border, visas issued at border crossing points, persons detected by searches, crossing of the persons from high migration risk countries, deportations, extraditions, readmissions/admissions, repatriations etc).

Border Police was designated the national contact point in accordance with Memorandum on Establishment of System of Illegal Migration Statistical Data Exchange and Participation in Regional Early Warning System, signed between competent police authorities of BiH, Albania, Croatia, Macedonia, Montenegro and Serbia. Statistical data exchange between memorandum signatories has been carried out since 1 January 2009.

Improved cooperation between Border Police and MOI of RS, Federal MOI and Service for Foreigners Affairs, which is reflected in identification and extradition of foreigners detected inland as illegal migrants or as persons who crossed the border illegally.  Bellow are listed some of the examples of the successful operations against illegal migration, including inland detection, based on strengthened inter-agency and international cooperation, recognized, as well, by the European Union Police Mission in Bosnia and Herzegovina in its Reports as follows.  - Operation „Tara‟ – On 1 April 2009, following a long term investigation, BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). All suspects were handed over to the State Prosecutor‟s Office for further processing. In September 2008, the BiH Border Police commenced an investigation into human smuggling of Turkish citizens through BiH. Based on gathered information, Border Police invited Law 15

Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence. EUPM was informed from the initial phase of the investigation. This joint operation showed excellent cooperation and coordination between the countries in the region aimed at the fight against organized crime.1

- Organized Crime case of smuggling of persons - On 26 June, 2009 the Court of BiH pronounced the first-instance verdict against two accused persons who were found guilty of the criminal offence of Organized Crime in conjunction with the continued criminal offence of Smuggling of Persons. The Court sentenced one of the accused to seven years of imprisonment and the other to six years. The Court also seized material gain from the accused persons in different amounts of Euros 17,660.00 and 226, 00 and HRK (Croatian currency) 1,418.00. EUPM has been following and supporting this case for over a year and it is significant as it is the second verdict in a week where the BIH courts have found defendants guilty of being members of an organized criminal group (hence the higher sentences) and where asset seizure has been successfully applied.2

- Second phase of the operation „Tara‟ – On 15 July, 2009 based upon an order issued by the BiH State Prosecutor‟s Office, BiH Border Police (BP) assisted by various LEAs conducted the second phase of the operation “Tara” in Bijeljina, Gradacac, Samac and Domaljevac areas. During the operation, twelve persons suspected of human smuggling were arrested. During the searches, the police found and seized 1, 5 kg of cocaine valued at approximately 150,000 KM, 200 grams of heroin, approx. 1 kg of substance used for the production of drugs, 20 cell phones, 19 SIM cards and various other items. Thirty days detention has been ordered for four suspects. During the operation, one of the suspects armed with an automatic rifle succeeded to escape the police raid through the Drina River but he was arrested by the Serbian police authorities. This operation is the second phase of operation Tara that was conducted on 1 April 2009 when BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). (See MAR 04/09) Both phases of the operation followed an investigation launched by the Border Police in September 2008 into human smuggling of Turkish citizens through BiH. Based on gathered information, the Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April 2009, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence.3

 Progress of construction of additional facilities at detention centre for illegal immigrants

The construction works and procurement of equipment for the additional facilities at the detention centre for illegal immigrants are in final stage. New facilities will provide additional 80 places for accomodation of illegal immigrants compared to the current capacity of 40 places. The Council of Ministers of BiH approved on September 14, 2009 for the new Rulebook on Internal Organization and Systematization of the Service for Foreigners Affairs. According to this it will be

1 Monthly Report – April 2009Reporting Period: 1 – 30 April 2009Monthly Report # 04/09

2 Monthly Report – June 2009Reporting Period: 1 – 30 June 2009Monthly Report # 06/09

3 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

provided twenty (20) new posts for the security officers at the Immigration Center. Also, it has been provided the budget reserve about 450.000 KM for the employment of the new security officers at the Immigration Center. After the selection procedure and the training of the security officers, the new capacity of the Immigration Center of the Service for Foreigners Affairs should be in function by the end of November 2009. 

BLOCK 3 Public order and security

General/Overall policy on preventing and fighting organized crime and terrorism (Benchmarks 19, 24)   Adoption of a revised strategy and action plan for fight against organized crime

Council of Ministers of Bosnia and Herzegovina on its session held on 24 September, 2009 adopted revised Strategy for Fight against Organized Crime. In accordance with the Strategy action plans will be developed and adopted within 3 months.

Strategy is attached in Annex 3.   Measures taken for harmonization of the domestic legal and policy framework between state and entity levels  Bosnia and Herzegovina in the last few months made significant efforts to harmonize its policy framework in the filed of general policy on preventing and fighting organized crime and terrorism. Council of Ministers during September 2009, adopted Revised Strategy for Fight against Organized Crime (see Annex 3), Strategy and Action Plan for Prevention of Money Laundering and Financing of Terrorist Activities (see Annex 4), Anti-Corruption Strategy and Action Plan (see Annex 5) and Anty-Drug Action Plan. All mentioned strategies and action plans are drafted and agreed by state, entities and district authorities. On that way policy framework between state and entity levels is fully harmonized.  Bosnia and Herzegovina will harmonize its legislation, by enacting Law on Amendments to the Criminal Code of Bosnia and Herzegovina. Drafts of the new legal provisions are in compliance with the ratified conventions and other binding international documents and recommendations. That was estimated in the process of preparation of amendments to the Criminal Code of BiH by the Team for monitoring and evaluating the application of criminal laws. Team also used suggestions from the practice, as well as various analyses since 2003, i.e. since the entry into force of this Code, and contributions made by OCSE, OHR, EUPM and Council of Europe, whether by written suggestions or direct participation at the Team's meetings. The results of consultations are also legal solutions that are adopted in this area in certain countries of the region.

The Draft Law on Amendments to the Criminal Code of BiH, which harmonized provisions of the Criminal Code of BiH with the UN Convention against Transnational Organized Crime and its supplementing Protocols, Council of Europe Convention on Combating Organized Crime, Council of Europe Convention on the Prevention of Terrorism and Council of Europe Convention on Action against Trafficking in Human Beings, is adopted by the Council of Ministers and is in the Parliamentary procedure.

The Draft Law on Amendments to the Criminal Code of BiH provides the obligation of entities and Brcko District to harmonize their Criminal Codes with the Criminal Code of Bosnia and Herzegovina within 90 days after coming into force of the Criminal Code of Bosnia and Herzegovina (Entity Ministries of Justice and Brcko District are already working on that matter).

The Draft Law is attached to the Report (Annex 6) together with the Statement of the reasons.

 18

 Adoption and implementation of an adequate model of information exchange from police records throughout the country  With purpose to ensure more efficient work of police bodies and prosecution offices and establishment of the efficient cooperation between police bodies, other law enforcement agencies and prosecution offices and in accordance with conditions for a real time data exchange from police and prosecution registers, all police bodies and prosecutorial offices on 30 September 2009 have concluded an Agreement on establishment of electronic exchange of data from the registries of police bodies and prosecutorial offices throughout the country.    Measures taken to improve and better coordinate across state and entity levels trainings on preventing and fighting organized crime  The cooperation between Police Academies in Sarajevo and Banjaluka and newly established Agency for Police Education on state level is regular and good. Curriculum are harmonised and standardised in the whole territory of Bosnia and Herzegovina.  In the framework of the Department for police education of MoI RS (Police Academy and the Internal Affairs High School) the huge importance is given to the training in the filed of prevention and fight against organised crime. The continuous training for attendants of the Internal Affairs High School is conducted in the framework of the curriculum subject “Organised crime and corruption” at the third year of studies. Also, the continuous training is provided mostly in cooperation with ICITAP and EUPM in the form of periodical courses for employees of the MoI in charge of fight against organised crime. MoI employees upon invitation also attend different trainings and seminars in BiH and abroad. The results achieved are showing the high level of training and professionalism that are enabling leading the well organised and coordinated international actions.

Over the year 2009, police officers of the Police of Brčko District of BiH have undergone training in 43 various seminars, of which 26 were held in the period from March to the present day. Out of these 26 seminars and training sessions, 14 seminars were focused on the topics of fight against organized crime and corruption. Ten of these seminars were held in BiH and taught by national and foreign experts, while four seminars were held abroad. Training in the said 14 seminars was undergone by a total of 20 police officers, directly engaged in activities of investigation and documentation of criminal acts in the sphere of organised crime and corruption, seven of whom were senior officers.

The need for training was underlined in a number of strategic documents and it is one of the priorities of the European Partnership with Bosnia and Herzegovina, and its implementation is the responsibility of High Judicial and Prosecutorial Council (HJPC). In the field of education, HJPC closely cooperates with the Entity Centers for education of judges and prosecutors and the Judicial Commission of Brcko District of Bosnia and Herzegovina (hereinafter: JC BD), which are responsible for development and implementation of training programmes.

HJPC legal competencies in the field of education are:

- Monitoring the professional development of judges and prosecutors and counseling Entity Centers for education of judges and prosecutors and Judicial Commission of Brcko Districk (JCBD) in relation to the adoption of programme for professional training of judges and prosecutors,

- Determination of the minimum scope of professional development that every judge and prosecutor has to achieve during the year,

- Determination of initial training for persons who have been appointed as judges or prosecutors and monitoring the implementation of such training,

- Approval of the annual reports of the Steering Boards of the Entity Centers for education of judges and prosecutors and JC BD in a part related to the initial training and professional development of judges and prosecutors.

During planning and implementation of the mentioned activities, HJPC is guided by the HJPC Strategic Plan for 2007 - 2012, and Medium-term strategy for the initial training and professional development for 2007- 2010.

In order to improve the quality of training, the Medium-term strategy for the initial training and professional development for 2007- 2010 provided the determination of categories of educators, their rights and duties and the way of their selection. In this regard, Steering Boards of the Centers for education of judges and prosecutors (CEJP) adopted the Rulebooks on categories, selection, rights and duties of educators at the end of 2008, and those Rulebooks were approved by HJPC at the session held on 18 December 2008.

Rulebooks introduce a novelty related to the public call for the appointment of new educators, and their active participation in the development of plan and programme of training for every following year. Beside that, the criteria for evaluation of educators and their fees and status are determined.

Thanks to the donor assistance and support of the relevant state institutions, CEJPs were given new premises for their work. The CEJPs also planned to increase the number of staff. In June 2008, CEJPs gained the observer status to the European Judicial Training Network (EJTN). This network was established in 2000, as an association of institutions that are responsible for training of judges in EU countries. Involvement in EJTN gave the CEJPs an opportunity to, through the exchange of experiences with European institutions, improve their methodology of work and quality of education and to align it with the European standards.

CEJPs developed, through the coordinated work, Programmes of Work for 2009, taking into account the needs of judges and prosecutors and recommendations from the European Partnership with Bosnia and Herzegovina for 2008. HJPC adopted, at the session held on 18 December 2008, the CEJPs Programmes of Work for 2009.

Programmes of Work include continuous training and professional development in various fields of law, training and professional development of judges and prosecutors to prosecute war crimes in Bosnia and Herzegovina, and training provided by the HJPC Project "Establishment of better mechanisms of coordination and cooperation between police and prosecutors' offices in BiH".

The Programmes also provide initial training for persons who intend to become a judge or prosecutor, and a number of trainings on special topics such as international law, European law and international standards, the European Convention on Human Rights and Fundamental Freedoms and the training of judicial institutions' management. Part of the training will be implemented within the framework of cooperation between the CEJPs and JC BD.

In Bosnia and Herzegovina, among other things, are regularly held seminars and conferences of judges and prosecutors from all levels, who adjust their opinions and practice in order to achieve better training on the prevention and fight against organized crime. Coordination is also performed with the bodies for detection of perpetrators of criminal offences at all levels of the government (Ministries of Interior Affairs, ISA, SIPA, BP...). The result of such training, coordination and cooperation is detection and detention of several groups and individuals who were engaged in organized crime, especially drug trafficking and human trafficking.

In the report delivered by the Center for education of judges and prosecutors of the Federation of BiH the following was pointed out:

- 10 seminars, trainings and counseling were implemented in the area of General/overall policy on the prevention and fight against organized crime and terrorism in the period 2003-2009.

Total number of participants was 482 judges and prosecutors from the Court of BiH, Supreme Court of the Federation of BiH, Cantonal and Municipal Courts, Prosecutor's Office of BiH, Prosecutor's Office of the Federation of BiH and Cantonal Prosecutors' Offices, Supreme Court of the Republic of Srpska, Prosecutor's Office of RS, District and Basic Courts of RS and other representatives of BiH judicial community.

In the implementation of trainings, international legal experts were engaged in two seminars, while the remaining eight seminars were implemented by local legal experts.

In the report delivered by the Center for education of judges and prosecutors of the Republic of Srpska the following was pointed out:

Since its establishment in 2003 until today, Center for education of judges and prosecutors in the Republic of Srpska (CEJP RS) organized 6 two-days seminars for judges and prosecutors on "Human Trafficking", out of which three seminars were held in the framework of IOM Project "Training of Trainers on Human Trafficking".

CEJP RS is in the phase of drafting Professional Development Program for 2010, which also includes the topic "Human Trafficking" .

CEJP RS has planned in its draft Program for 2010 seminars on "International legal assistance in criminal matters", having in mind that the Law on International Legal Assistance in Criminal Matters entered into force on July 15, 2009,.

Through the Ministry of Justice of BiH, CEJP RS sent, in January of this year, four judges from RS to the seminar on "Provision of mutual assistance in criminal matters related to criminal offence of terrorism and extradition", which was organized by UNODOC and held in Neum.

Organized crime was the central topic of this year‟s Counseling in criminal-legal area, held on June 4, in Neum, and coorganized by FBIH Judges Association and Entities‟ CEJPs. Recognizing that financial investigations are new method in organized crime investigations, CEJP RS provided the technical support to the seminar-training of police officers and law enforcement agencies that was organized by ICITAP, on July 20-24, 2009, and held in CEJP RS premises. CEJP also informed the ESI representatives about the above mentioned at the meeting held in relation to the implementation of requirements set up in the Roadmap for the liberalization of visa regime, which was held on August 21, 2009.

Professional training of all the judges and prosecutors in BiH, which includes prosecutors in Brčko District of BiH, is being conducted through Entity centres for training of judges and prosecutors. Brčko District of BiH does not have its own centre for training of judges and prosecutors, but it has contracts with both Entity centres, so it is using their services in these activities, which means that training for judges and prosecutors in Brčko District of BiH is conducted by the two Entity centres. This year, BiH Federation Centre for Training of Judges and Prosecutors organised a seminar on the topic “Criminal Acts of Bribery and Criminal Acts against Official Duty or Other Type of Responsible Duty” (criminal acts of corruption and organised crime). There was discussion at the seminar about the experiences and practices of courts and prosecutors‟ offices in the Federation of BiH in application of the Criminal Code and Criminal Procedure Code to acts of corruption and organised crime.

From April 2008 to June 2009, The Project "Establishment of Enhanced Mechanisms of Coordination between the Police and the Prosecutors" under leadership of the High Judicial and Prosecutorial Council of BiH, and implemented jointly with all relevant ministries and institutions. More than 70 officials, including ministers, chief prosecutors and directors of all police agencies, actively participated in the project implementation. The purpose of the project was to enhance the existing and to adopt the new mechanisms of cooperation between the police and the prosecutors‟ offices and to increase their efficiency and capabilities to process criminal offences. The goal of the project was to ensure better cooperation between the police and prosecutorial bodies and to improve capacity of prosecutorial system by introducing new legislative and management solutions. There were four main objectives, as follows: . Secondary legislation, instructions and guidance drafted and adopted . Joint training programs for the police and prosecutors developed . Data and statistical information harmonized . Feasibility study conducted to define methodology for development of a criminal/other record system that can be accessed by the police and prosecutor' offices The project was successfully finalized with the following outcomes: . Uniform instructions guiding the procedures of and cooperation between the police officials and prosecutors in conducting actions aimed at obtaining evidence during the course of investigation adopted . Feasibility study finalized and submitted to the Ministry of Security for implementation . Set of uniform forms adopted . Joint training program introduced and incorporated into the training curriculum Apart from the above achievements, the joint efforts and dedication of all relevant law enforcement agencies and prosecution bodies in the implementation of the project represents a breakthrough in curbing the crime. The project itself was a local initiative and resulted in a series of similar activities after its completion.

Competent authorities of Bosnia and Herzegovina will further improve systematic cooperation between the different authorities involved in the fight against organized crime through implementation of the project “Joint training of SIPA Financial Intelligence Unit (FIU) and Crime Investigation Unit (CIU), Prosecutors, financial regulatory agencies and institutions”. The overall objective of the project is to improve the capabilities of law enforcement agencies in the implementation of the Anti-money laundering and financing terrorism measures. Expected results are the capabilities of the law enforcement agencies in the fight against money laundering, drugs, organized crime, terrorism and corruption will be enforced. Assistance will be provided to the

various departments of the State Investigation and Protection Agency (SIPA), the Office for Narcotics and other relevant services to improve their capabilities to fight against money laundering, drug trafficking, terrorism and organized crime. This activity will institutionalize measures combating money laundering within a larger number of responsible agencies as well as improve cooperation among the agencies in a sustainable manner. This will be completed through both the training activities and the development of guidelines and regulations within the financial regulatory agencies. In enhancing the cooperation between FIU and CIU, this activity will also develop mechanisms for the investigation of money laundering activities in a more proactive and preventive manner. With a systematic approach to combating money laundering by CIU and FIU, stronger evidence required for prosecution will be obtained. Finally, in increasing the skills of prosecutors in understanding the intricacies of money laundering transactions, cases presented for prosecution will result in a greater number of convictions. This activity will be a comprehensive approach to increasing awareness and skills for all parties involved in the anti-money laundering chain and should result in more cases being successfully prosecuted, thereby decreasing Bosnia and Herzegovina vulnerability as a country susceptible to money laundering. Project will start in January 2010.  A training held under the auspices of the Bosnia and Herzegovina State Prosecutor‟s Office and EUPM was carried out on 8-9 May with the aim of improving existing cooperation between different offices and departments based on experiences from conducted operations. Three SIPA units (CID, Operational Support Unit and Special Support Unit) and the representatives from the Bosnia and Herzegovina State Prosecutor‟s Office attended the training which focused on aspects of special investigative measures, crime scene investigations, necessary defense, degree of suspicion, search of dwellings and persons. EUPM assessed the training as very professional and productive. The conclusions have been brought to the attention of the management of the Bosnia and Herzegovina State Prosecutor‟s Office and SIPA.

For additional information please see Bosnia and Herzegovina Chief Prosecutor Report (Annex 9) in part 3.   Effective investigations, indictments and convictions against organized crime

The report of High Judicial and Prosecutorial Council of Bosnia and Herzegovina, provided the statistical data for the period January 1, 2006 – December 31, 2008.

Statistical data related to the processing of cases of criminal offences of conspiracy, preparation, association and organized crime, are divided in groups of criminal offences according to the chapters from the Criminal Codes of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina, Republika Srpska and Brcko District of Bosnia and Herzegovina, and presented separately for 2006, 2007 and 2008:

In 2006 (CC BiH- Chapter XXII, CC FBiH- Chapter XXIX, CC RS- Chapter XXX, CC BD- Chapter XXIX)

Total number of pending reported crimes– 70 Total number of pending investigations- 67 Orders to conduct an investigation- 4 Suspended investigations -4 Indictments issued - 16 Indictments confirmed –17

Guilty verdicts- 10 Verdicts of abandonment - 0 Verdicts of release – 2

In 2007 (CC BiH- Chapter XXII, CC FBiH- Chapter XXIX, CC RS- Chapter XXX, CC BD- Chapter XXIX)

Total number of pending reported crimes – 275 Total number of pending investigations - 219 Orders to conduct an investigation - 4 Suspended investigations -9 Indictments issued - 48 Indictments confirmed –48 Guilty verdicts - 81 Verdicts of abandonment - 0 Verdicts of release - 7

In 2008 (CC BiH- Chapter XXII, CC FBiH- Chapter XXIX, CC RS- Chapter XXX, CC BD- Chapter XXIX)

Total number of pending reported crimes – 437 Total number of pending investigations - 362 Orders to conduct an investigation - 3 Suspended investigations -14 Indictments issued - 63 Indictments confirmed –68 Guilty verdicts - 21 Verdicts of abandonment - 1 Verdicts of release -3

The above statistical data show that in the past three years the number of reported crimes, i.e. pending cases has almost doubled in each year.

During the year 2009 Police of Brčko District of BiH intensified measures and actions both in conducting investigations and documenting all sorts of organised crime and in undertaking a number measures in proactive operations aiming at fighting against the actions mentioned.

As for the fight against illegal use of narcotics, i.e. criminal acts of unauthorised production and placing to the market of intoxicating drugs and criminal acts of possessing, distribution and using drugs, there were 75% of these cases more in first eighth months this year than in the same period last year. It is necessary to emphasise that police officers are acting proactively in conducting investigations in all cases opened. Also, there were 16% persons more reported to the Prosecutor‟s Office of Brčko District as suspects for the above mentioned crimes in the same period in comparison to the year 2008.

As regards to the crime of robbery, as a manifestation of organized crime, it is important to emphasise that in first eight months of this year in comparison to last year, there was a decrease in number of reported cases recorded, which is the direct result of improvement in investigating and documenting of reported crimes. In first eight months of this year there were 30% less case reported in relation to the same period last year, while on the other hand in 35% more persons were reported

to the Prosecutor‟s Office of Brčko District because of the suspicion that they committed a concerned crime.

As regards to the car crime as a manifestation of organized crime, in relation to the same period last year, a decrease of 10% of car thefts has been recorded by the Brčko District Police.

In the course of the year and under the auspices of the State Prosecutor‟s Office, BiH Brčko District Police has conducted comprehensive investigative activities on documenting organised crime and misfeasance offences committed by persons from District and other parts of BiH in the CIPS case, i.e. abuse and forgery of personal documents issued by CIPS. Up-to-date investigation resulted in 160 persons being suspected for criminal offences of organized crime, 12 of which are civil servants (6 employees of Brčko District Government and 6 persons from Zvornik). Arrest warrants for 148 persons were consequently issued at the state level and 40 persons were arrested.

Investigative activities in all these areas were conducted in good cooperation with BiH police agencies (RS Ministry of Interior, FBiH Ministry of Interior, Border Police and State Investigation and Protection Agency) and international police agencies (cooperation and information exchange with Republic of Croatia Ministry of Interior in breaking down a drugs smuggling ring).

MoI RS is continuously and on the daily base working on investigations of criminal acts of organised crime and corruption. This could be demonstrated by the fact that in the last four months four big actions against organised criminal groups have been conducted (“Gradina”, “Pyramid”, “Alcohol” and “Delta”).

In first two actions the organised criminal groups illegal production and trade of drugs have been broken up. Action “Gradina 2” has been conducted in cooperation with the Croatian police and ministries of interiors of cantons Posavina and Orašje (29 places were searched, 7 persons arrested, 6 kg of heroin found). In action called “Pyramid” there have been 7 places searched, 4 persons arrested and 10 kg of heroin seized. In “Alcohol” action the criminal act of organised crime has been unveiled related to unauthorised use of company owned by another subject, specimens and models, production and placing to the market of harmful products, forgery of trademarks, measures and weights as well as deceiving the buyers. Ten places were searched, 7 persons arrested that belonged to the criminal group which had, in the longer period of time, produced spirits, bottled and packed spirits in adequate packaging, printed labelling and excise tags placing them on the market.

The recent action “Delta” has been conducted in cooperation with the police of Serbia, and Sarajevo Canton according to the BiH Court order. After almost six months of intensive research actions, the organised criminal group of Darko Elez has been broken up. The group has been operating in the area of Balkan and 22 persons have been arrested (6 in Serbia and 16 in BiH). This organised criminal group dealt with the strongest criminal acts of organised crime (murders, robberies, drug trafficking, car thefts, arms and explosive smuggling, etc.).

It is important to emphasise that MoI RS in the abovementioned actions was the leader of inter- agency coordination within BiH, as well as internationally. MoI RS is continuing its activities in investigating all kinds of criminal with particular highlight on organised crime.

Bellow are listed some of the examples of the effective investigations, indictments and convictions against organized crime, which are also recognized, as well, by the European Union Police Mission in Bosnia and Herzegovina in its Reports as follows.

- International cooperation against drug trafficking resulting in significant seizure of heroin - On 11 August, 2009 Federation BiH Police Administration conducted an operation in Tomislavgrad (Canton 10, Livno) and arrested a BiH citizen and a Croatian citizen suspected for drug trafficking. The cooperation was carried out upon a request made by the Croatian police who received information that the drug purchase would take place in Sarajevo (Canton 9). Acting immediately upon the received information, FMoI officers undertook all necessary measures and observed the purchase of the drugs in the Mercator shopping centre in Sarajevo. The suspects were followed from Sarajevo en route to Tomislavgrad where the vehicle was stopped. Based upon an order issued by the BiH State Prosecutor‟s Office, FMoI officers then searched the vehicle in which they found and seized 3,5 kg of heroin valued at about 60,000 EUR. The suspects were handed over to the State Prosecutor‟s Office for further proceedings and the BiH Court ordered one-month custody for both of them. The operation was well organized and carried out professionally. This operation shows once again that BiH is located on a transit route of the international trade in narcotics. Close cooperation of all relevant LEAs is highly needed. The prompt and professional work conducted by FBiH Police Administration was highly appreciated by the Croatian police and EUPM commends overall successful cooperation between the two police forces.4

- Operation „Gradina 2‟ – On 3 August, 2009 following a long term investigation and based upon an order issued by the District Court of Doboj, assorted units of the RS MoI officers conducted operation „Gradina 2‟ aimed at trafficking of drugs and organized crime. A number of locations in Doboj, Derventa, Odzak (Canton 2, Orasje), Brod, Banja Luka, Zvornik, Vlasenica, Sehovici, Sokolac and Sarajevo were searched. The police found and seized 6,6 kg of substance resembling heroin, 2,9 kg of substance resembling marijuana, 2 kg of Skunk and 44 grams of substance resembling cocaine. Also seized were explosives and various types of weapons. On 4 August, the police submitted charges to the RS Special Prosecutor‟s office against 18 persons suspected of organized crime and trafficking of drugs. One of the suspects is a police officer in Doboj.5

- Canton 7 and Canton 8 police intensify efforts in the fight against drugs - Canton 7 (Mostar) and Canton 8 (Ljubuski) police have recently intensified their activities in the fight against the illegal production and distribution of narcotics, which resulted in several seizures of various drugs and raiding marijuana plantations, between 19 and 22 August, 2009. Only at one location in Siroki Brijeg (Canton 8), during operation „Ambush‟ police found a plantation with 84 marijuana plants located behind the family home. Police officers identified and arrested three persons involved in cultivating the plantation and during searches of their accommodations seized a certain quantity of cocaine, marijuana seeds, weapons and ammunition. Total weight of the plants seized is around 118 kg, which, if processed, would yield around 50 kg of high-quality marijuana, whose estimated street value exceeds 50,000 Euros. The police determined that the drugs were intended for Croatia‟s drug market. On another occasion in Ljubuski municipality (also Canton 8) police seized 12 plants of marijuana in the vicinity of the family home belonging to a person who did not deny growing marijuana plants. Moreover, Canton 7 police arrested one person and seized 21 packages of heroin, and a day later upon controlling a vehicle the police patrol seized a small quantity of amphetamines and some marijuana. Some of the suspects were not known by the police for being involved in such criminal activities.6

4 Monthly Report – August 2009 Reporting Period: 1 – 31 August 2009Monthly Report # 08/09

5 Monthly Report – August 2009 Reporting Period: 1 – 31 August 2009Monthly Report # 08/09

6 Monthly Report – August 2009 Reporting Period: 1 – 31 August 2009Monthly Report # 08/09

- Border Police Unit (BPU) in Hum seize 1, 6 kg of suspected heroin – On 2 December, 2008 BPU Hum officers arrested a BiH citizen residing in Tuzla (Canton 3) while conducting a vehicle check in which they found 1,6 kg of suspected heroin. The suspect entered BiH having arrived from Montenegro. A second suspect, residing in Doboj, believed to be an accomplice was also arrested. Both suspects were handed over to the State Prosecutor‟s Office. EUPM assesses this detection and subsequent arrests as indicative of a professional approach by border police officers in cooperation with other LEAs. 7

- Large quantity of marijuana seized in Mostar (Canton 7) – On 13 December, 2008 following intelligence received and based upon an order issued by the State Prosecutor and the State Court, FMoI officers assisted by FMoI Support Unit, searched a house in Mostar. During the search, the police found and seized 90 packages of suspected marijuana, four cell phones as well as personal identification and travel documents issued by the authorities of Republic of Croatia. A suspect was arrested and subsequently the police searched another location in Mostar. During the search, they found and seized an additional 64 packages of suspected marijuana, vehicle registration plates, traffic license issued by the authorities of Republic of Croatia and a vehicle booklet. The total quantity of seized marijuana was 163 kg valued at approximately 250,000 EUR.8

- Significant SIPA investigation and operational activities - On 24 February, 2009 as a result of intensive investigations during the last years the State Prosecutor‟s Office launched the court order to arrest six suspects, two of whom can be categorized as leaders of an organized crime group. Furthermore the court order was given to search 12 premises in total - mainly the apartments/houses of the suspects, but also a hotel. Aspects of the case are focused on money laundering. All arrested suspects were brought to SIPA HQ for further interviews. The three main suspects remain in custody. The investigation concerns one of the most powerful and organized criminal groups in BiH. The investigation has shown links to seizures of significant quantities of heroin and that the organization is active in nine western European countries since the late 1990`s- transporting the drugs from the East (Turkey) via BiH to Western Europe. Up until last year it is estimated heroin seizures in Europe linked to this group totaled some 130 kilos. EUPM Assessment: It is believed that the group trafficked tons of heroin since the late 1990`s. The SIPA investigation had been opened in autumn 2007 and lead to last week‟s operation. The investigation as well as the operation has been performed in a very professional manner in accordance with best European Police standards.9

- Indictments against organized crime group - On 19 February, 2009 the Republika Srpska Special Prosecutor‟s Office filed indictments against thirteen (13) persons for the criminal acts of organized crime, drug trafficking and endangering public safety in relation to an operation aimed at deterring cross-border trafficking of drugs. All suspects were arrested during August and September 2008 and are suspected of being members of an organized criminal group. As for the part of indictment referring to endangering public safety, the group allegedly planted several explosive devices in Trebinje attempting in such way to extort money from the local individuals. Background: Between 23 and 27 August 2008, RS MoI PSC Trebinje in cooperation with F MoI led the four-phase operation „Leotar‟, which resulted in the arrest of 56 individuals allegedly involved in drug trafficking activities and conducted approximately 110 searches within BiH, Croatia and

7 Monthly Report – December 2008 Reporting Period: 1 – 31 December 2008 Monthly Report # 12/08

8 Monthly Report – December 2008 Reporting Period: 1 – 31 December 2008 Monthly Report # 12/08

9 Monthly Report – February 2009 Reporting Period: 1 – 28 February 2009 Monthly Report # 02/09

Montenegro. On 24 September a further phase of operation „Leotar‟ took place in Trebinje AoR and Prijedor. Police simultaneously searched 12 locations (10 in Trebinje and 2 in Prijedor) to gather additional evidence. The operation was well organized and carried out professionally. The operation demonstrated the ability of the RS police to coordinate a large -scale investigation, liaise with different Cantons and RS departments/PSCs, liaise with international agencies, and achieve successful results.10

- SIPA operation targeting International drug ring - On 11 March, 2009 following a long term investigation and based upon an order issued by the BiH State Prosecutor‟s Office, SIPA conducted an operation in Sarajevo (Canton 9) and arrested eight persons suspected of being involved in an international drug trafficking ring. Three persons are citizens of Serbia. During the operation, several locations were searched. Prior to this operation, FMoI officers arrested one person in Sarajevo and two in Zenica (Canton 4) as a part of this investigation. In total 3 kg of suspected heroin were seized, as well as a significant amount of money in various currencies, two firearms, mobile phones and vehicles. EUPM was involved from the initial phase of the investigation and was deployed in the field, and noted that the co-operation between SIPA and FMoI was excellent and should be an example of how to share information and how to cooperate successfully.11

- SIPA arrests in relation to CIPS case - On 24 March, 2009 based on an order issued by the State Prosecutor‟s Office, SIPA officers arrested three persons in Bijeljina area, suspected of being involved in the case of abuse and misuse of computerized CIPS ID cards and passport system (Citizens Identification Protection System), including document forgeries provided to persons indicted for war crimes. Two of the arrestees are senior police officials, PSC Bijeljina Chief of uniform police and PS Janja Assistant to Commander. The two are also under investigation pertaining to misuse of power. SIPA searched their private accommodations, offices and vehicles. EUPM teams were deployed in the field to monitor the operation which passed without incidents. The operation was professionally and properly carried out by SIPA and conducted with assistance and full cooperation of Chief of PSC Bijeljina. Background: On 28 May 2008, following a long- term investigation undertaken by the State Prosecutor‟s Office, SIPA, Brcko District and RS MoI officers executed 26 search warrants in Banja Luka, Brcko and Bijeljina. During the operation, 20 persons were arrested and four CIPS offices have been searched. The investigation uncovered evidence that the illegally obtained cards, possibly numbering hundreds, have been used as part of criminal activities in BiH). On 21 May, based upon an order issued by the BiH Court, SIPA officers assisted by PSC Bijeljina and MoI Canton 3 (Tuzla) arrested three persons in Vlasenica and Tuzla suspected of being involved in the case of abuse and misuse of computerized CIPS ID cards and passport system. SIPA also searched their private accommodations and offices. The suspects were handed over to the State Prosecutor‟s Office for further processing. This operation is a continuation of an ongoing investigation undertaken by the State Prosecutor‟s Office aimed at widespread abuse and misuse of BiH computerized CIPS ID cards and passport system. Background: On 28 May 2008, following a long-term investigation undertaken by the State Prosecutor‟s Office, SIPA, Brcko District and RS MoI officers executed 26 search warrants in Banja Luka, Brcko and Bijeljina. The operation aimed at widespread abuse and misuse of BiH computerized CIPS ID cards and passport system. The investigation uncovered evidence that the illegally obtained cards, possibly numbering hundreds, have been used as part of criminal activities in BiH. 20 persons were arrested and four CIPS offices have been searched. During the operation, a large amount of money was found and seized as well as certain documents, several weapons and some other evidence. EUPM members

10 Monthly Report – February 2009 Reporting Period: 1 – 28 February 2009 Monthly Report # 02/09

11 Monthly Report – March 2009 Reporting Period: 1 – 31 March 2009 Monthly Report # 03/09

were closely involved from the planning stage of this operation and were deployed in the field. Good co-operation was maintained between SIPA, Brcko District and RS police and excellent coordination with EUPM officers.12

- Operation „Tara‟ – On 1 April, 2009 following a long term investigation, BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). All suspects were handed over to the State Prosecutor‟s Office for further processing. In September 2008, the BiH Border Police commenced an investigation into human smuggling of Turkish citizens through BiH. Based on gathered information, Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence. EUPM was informed from the initial phase of the investigation. This joint operation showed excellent cooperation and coordination between the countries in the region aimed at the fight against organized crime.13

- SIPA operations targeting counterfeit DVDs and CDs – On 23 April, 2009 based upon an order issued by the Court, SIPA RO Sarajevo officers assisted by MoI Canton 9 (Sarajevo), conducted an operation in two markets in Centar and Novi Grad municipalities aimed at seizure of counterfeit DVDs and CDs. Several persons were arrested and a number of counterfeit DVDs and CDs were seized. Subsequent searches of the suspects‟ residences will be conducted. Also, on 29 April, following a long term investigation, SIPA officers conducted an operation in Arizona market (Brcko District AoR) aimed at seizure of counterfeit CDs. Approximately 17,000 counterfeit CDs were seized during the operation. The investigations are ongoing.14

- SIPA seize 80,000 counterfeit Euros in Sarajevo (Canton 9) - On 10 May, 2009 following a several-month long investigation, assorted SIPA units carried out an undercover operation „Banka‟ in Sarajevo and arrested three persons from Serbia suspected of being involved in the transportation and dissemination of counterfeit Euros. Officers seized 81,200 forged EUR, a pistol and several mobile phones. The point of origin is suspected to be in Serbia from where the forgeries were brought into BiH. Following interviews at SIPA HQ premises the arrestees were handed over to the Prosecutor for further proceedings. They have been charged with organized crime, counterfeiting of money, illegal possession of weapons and ammunition, and obstruction of justice.15

- SIPA operation targeting trafficking of drugs – On 30 May, 2009 following a long term investigation and based upon an order issued by the BiH State Prosecutor‟s office, SIPA officers assisted by MoI Canton 7 (Mostar), PSC Trebinje and PS Ljubinje arrested two BiH citizens and a citizen of Montenegro suspected of international drug trafficking. During the operation that was conducted in Ljubinje, Trebinje (Republika Srpska) and Medjugorje (Canton 7), SIPA officers seized 9, 5 kg of drugs valued at 19,000 EUR.16

12 Monthly Report – March 2009 Reporting Period: 1 – 31 March 2009 Monthly Report # 03/09

13 Monthly Report – April 2009Reporting Period: 1 – 30 April 2009Monthly Report # 04/09

14 Monthly Report – April 2009Reporting Period: 1 – 30 April 2009Monthly Report # 04/09

15Monthly Report – May 2009Reporting Period: 1 – 31 May 2009Monthly Report # 05/09

16 Monthly Report – May 2009Reporting Period: 1 – 31 May 2009Monthly Report # 05/09

- Member of an organized crime group arrested in Ilidza (Sarajevo, Canton 9) - On 23 May, 2009 based on operational information provided by SIPA via the Crime hot line, Canton 9 MoI officers arrested a person from Prijepolje (Serbia), suspected of being a member of the „Gasi‟ criminal group. The arrest was carried out in Ilidza. Two arrest warrants were issued for this suspect who was the only one still at large after the members of the group, including their leader Muhamed Ali Gasi, were arrested. The arrest was a result of a good cooperation between SIPA and Canton 9 Ministry of Interior (MoI), especially due to successful communication between the two LEAs, considering that the Crime hot line is a constant source of information to the police. The investigation continues in order to identify persons who possibly assisted the suspect while hiding. EUPM continues to monitor. Background: On 8 and 9 January 2008, FMoI officers conducted an operation aimed at arresting Muhamed Ali Gasi, a well known criminal, suspected of being the leader of one of the main organized criminal groups in BiH. Although the main suspect was not arrested at the time of the operation, five of his alleged associates were and upon search of several accommodations police seized certain items. On 14 January 2008, Muhamed Ali Gasi was arrested in Sarajevo. Two men suspected of assisting the main figure and known by the police for their links with criminals were also arrested.17

- Verdicts in Gasi trial - On 23 June, 2009 the Sarajevo Cantonal Court rendered the first-instance verdict in the case against Gasi and his accomplices finding all accused guilty. The main suspect Muhamed Ali Gasi, indicted for membership of criminal organization, was sentenced to 20 years of imprisonment. His associates were sentenced from 1 to 6 years of imprisonment. The trial against Gasi and others, commenced on 22 of September 2008 (See MAR 09/08). Gasi was acquitted on the charge of inciting the murder of Ramiz Delalic, aka Celo, a well known OC figure, that occurred on 27 June 2007 in Sarajevo (See MAR 06/07). Muhamed Ali Gasi remains in custody. Background: On 8 and 9 January 2008, FMoI officers conducted an operation aimed at arresting Muhamed Ali Gasi, a well known criminal, suspected of being the leader of one of the main organized criminal groups in BiH. Although the main suspect was not arrested at the time of the operation, five of his alleged associates were, and upon a search of several accommodations police seized certain items. On 14 January 2008, Muhamed Ali Gasi was arrested in Sarajevo. Two men suspected of assisting the main figure and known by the police for their links with criminals were also arrested. (See MAR 01/08).18

- Operation „Sword‟ in Canton 8 (Grude) targeting smuggling of cigarettes – EUPM is monitoring police operation „Sword‟, aimed at organized trafficking of narcotics and undeclared goods. On 9 June, 2009 Grude police officers searched a family house and surroundings and seized 271 cases of cigarettes of various brands, 74 cell-phones, two freight vehicles, one luxurious vehicle, several license plates. The seized cigarettes had no excise stamps and their market value is estimated at 400,000 KM.19

- BiH Border police seize 1.5 kg of heroin - On 23 June, 2009 Border Police Central Investigation Office in cooperation with Border police Unit Neum, searched a passenger vehicle in the border zone area of Neum municipality (Canton 7) and seized 1, 5 kg of heroin being transported by a citizen of Croatia. The suspect was arrested and the investigation is ongoing. Taking into

17 Monthly Report – May 2009Reporting Period: 1 – 31 May 2009Monthly Report # 05/09

18 Monthly Report – June 2009Reporting Period: 1 – 30 June 2009Monthly Report # 06/09

19 Monthly Report – June 2009Reporting Period: 1 – 30 June 2009Monthly Report # 06/09

consideration practice of stretching drugs, EUPM experts deem that the total street value of seized heroin could mount to approximately 60,000 Euros.20

- 3 kilograms of heroin seized in Sarajevo (Canton 9) - On 1 July, 2009 MoI Canton 9 officers searched three apartments located in Ilidža and Novo Sarajevo municipalities (Canton 9). During the searches, 3 kg of heroin valued between 100,000 and 150,000 Euros were found and seized. Two citizens of Serbia and one citizen of FYROM were arrested. At the time of arrest, the two suspects were in the possession of false ID documents and the local police are making necessary checks through Interpol and other LEAs in order to establish the real identity of the suspects.21

- Operation “Faraon” in Eastern Sarajevo targeting drug trafficking – On 1 July, 2009 following a long term investigation and based upon an order issued by the District Prosecutor‟s Office, PSC Eastern Sarajevo and RS MoI Crime Police conducted the operation “Faraon in Lukavica (Eastern Sarajevo) aimed at drug trafficking. During the operation, eleven persons were arrested and a number of searches were conducted. The suspects were handed over to the Prosecutor for further proceedings.22

- SIPA operation „Istok‟ targeting drug trafficking - On 9 July, 2009 following a long term investigation in Bileca municipality, SIPA Mostar assisted by PS Bileca officers arrested a person suspected of drug trafficking. During the operation, SIPA officers seized 70 kg of substance resembling marijuana (Skunk) valued at approximately 79,000 Euros. EUPM monitored the investigation and preparations for the operation. The suspect is known for being involved in organized crime. He was handed over to the BiH State Prosecutor for further processing. This is the second phase of operation „Istok‟ which started in 2007 with the gathering of information followed by the last six months of investigative work. The arrested person had been on the run since 2006 when he was discovered in possession of 100 kilos of skunk but escaped arrest until now. EUPM has monitored this investigation from the beginning and commends professional cooperation between LEAs.23

20 Monthly Report – June 2009Reporting Period: 1 – 30 June 2009Monthly Report # 06/09

21 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

22 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

23 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

the Border Police in September 2008 into human smuggling of Turkish citizens through BiH. Based on gathered information, the Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April 2009, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence.24

- Arrest of well known organized crime figure - On 29 July, 2009 based on the request issued by the MoI Canton 9 (Sarajevo), Eastern Sarajevo Support Unit officers together with PS Eastern Sarajevo arrested a well-known criminal. He is alleged of being involved in a recent hijacking and attempted extortion of a vehicle owner in Canton 9. During the search of his apartment, police recovered evidence which prove that extortion calls were made from his telephone number. EUPM Comment: Once again this arrest is an example of the growing levels of co-operation and coordination between the two LEAs, MOI Canton Sarajevo and PSC Eastern Sarajevo. EUPM will continue to closely monitoring this activity. More reports will be followed up and reported. These joined actions already have influenced the media and the public.25

- Significant quantity of marijuana seized in Border Police Trebinje area - On 29 July, 2009 BPU Trebinje officers found approx. 40 kilograms of marijuana divided in to 40 packages left off the road nearby the Deleusa border crossing. With the approval of the BiH Prosecutor‟s Office, PSC Trebinje and BPU Trebinje officers set up an ambush which was terminated the following day, as no person came to collect the drugs. There are indications that the marijuana was transported by foot from Montenegro. The investigation is ongoing.26

For additional information please see Bosnia and Herzegovina Chief Prosecutor Report (Annex 9) part 1.

24 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

25 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

26 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09

27 Monthly Report –September 2009Reporting Period: 1 – 30 September 2009Monthly Report # 09/09

Policy on preventing and fighting trafficking in human beings (benchmarks 20, 24)   Implementation of the action plan to combat trafficking in human beings

The implementation of the first two state action plans for combating trafficking in human beings from 2001 and 2005 resulted in good results and aligned Bosnia and Herzegovina to a list of countries that recorded positive trends in combating trafficking in human beings. Evident development of institutional capacity, legal and regulatory framework was made, series of preventive activities were conducted, good results in the field of criminal prosecution was achieved and development of standards for protection of victims of trafficking, and eventually the channels and mechanisms of international cooperation were built. However, as in most countries, despite the progress, trafficking continues to be present in Bosnia and Herzegovina changing its shape and adapting to new circumstances. The need for the continuation of activities aimed at combating trafficking in human beings and illegal migration through the institutionalization and further strengthening of the coordination structure, improved assistance to victims, effective prosecution of traffickers and comprehensive approach to activities aimed at preventing and combating this phenomenon still exists.

Bearing in mind the progress achieved so far in this field and considering the fact that some activities require a longer period of time, it is clear that there was a need for a new State Action Plan for Combating Trafficking in Human Beings. On 29 May, 2008 the Council of Ministers of Bosnia and Herzegovina has on May 29th 2008 adopted the Action Plan for prevention trafficking in human beings for period 2008-2012. In period of five years this Action Plan further elaborates on the objectives in combating trafficking in human beings and clearly defines measures for the realization of the objectives in the following fields: - support systems; - prevention; - protection and assistance to victims and witnesses; - prosecution; - international cooperation.

The response to trafficking requires the involvement of all government structures as well as high and specific level of coordination and cooperation of all participants in this process. Adequate response includes the establishment of general principles for operation of all relevant government institutions and civil society. Therefore, the Action Plan for combating trafficking in human beings is based on following guiding principles: - principle of human rights; - participation and accountability of government; - interdisciplinary and multi-sectoral approach; - non-discrimination principle; - inclusion of wider community; - principle of sustainability; - international and regional cooperation.

The activities for implementation of the Action Plan are ongoing and take place in the planned deadlines. The State Coordinator for Combating Trafficking in Human Beings and Illegal Migration is in charge for the monitoring of implementation and annual reporting to the BiH Council of Ministers. Below are reviews of basic objectives and activities to meet the objectives of the Action Plan. Detailed reports with specific and detailed activities can be found on the website of the Ministry of Security www.msb.gov.ba 33

1. Support systems

For realization of objectives set up in the field of support system, activities are planned to improve the institutional framework and coordination; capacity building and information management; securing the funding and implementation of a continuous process of monitoring and evaluation of the situation and the implementation of the State Action Plan: In order to achieve the goals following activities have been carried out so far: - The Draft amendments to the Criminal Code of Bosnia and Herzegovina adopted by Council of Ministers are in the parliamentary procedure. New draft provisions fully complying with the Council of Europe Convention on Action against Trafficking in Human Beings. The amended Law will be harmonized with other criminal regulations in the country within 90 days. Council of Europe Convention on Action against Trafficking in Human Beings entered into force in Bosnia and Herzegovina on May 1st 2008. At the request of the State Coordinator, Office for Democratic Institutions and Human Rights (ODIHR) has made an analysis of compliance of the legal and institutional framework with the Convention in Bosnia and Herzegovina which was used by making amendments to criminal legislation. - In April 2009 the Rulebook on Internal Organization of the Ministry of Security was adopted where the Office of the State Coordinator for Combating trafficking in human beings and illegal migration has turned into the Department for Combating Trafficking in Human Beings. In this way funds were permanently secured to finance activities related to planning, coordinating and monitoring activities in the fight against human trafficking. - Centres for judicial training, in collaboration with the State Coordinator and the International Organization for Migration, have, during 2008, created and published a Manual for judges and prosecutors entitled Trafficking in human beings - prevention and protection in Bosnia and Herzegovina. Within the same project the training of judges and prosecutors took place with the participation of police and social welfare services. During the presentation of these training and the performance of all future regular training at the Centre for training of judges and prosecutors, based on manual, special attention was given to gathering evidence and criminal prosecution of trafficking cases at the same time providing care and protection to victims. - A Manual for direct assistance to victims of trafficking has been prepared, .The manual is designed for multiple partners in the structures of government and civil society, involved in process of rehabilitation and reintegration, by representing a common mode and common standards in providing the necessary support at every stage. The manual is a result of cooperation between all actors in Bosnia and Herzegovina who are involved in providing assistance to victims of trafficking and it‟s made on the basis of best practices in the work and the application of common standards. - Through special projects manuals and instructions for action to combat trafficking for social workers, medical workers, teachers, police officers and other professionals were made. Special attention in all these manuals and training that followed was devoted to the question of identification of victims and potential victims of trafficking and providing support and assistance. - In area of information management and research, progress has been made through the implementation of the project in cooperation with the International Centre for Migration Policy Development (ICMPD). The project is aimed at harmonization and improvement of quality and reliability of collected data on human trafficking. Through the project two separate databases were developed. The first is a database of victims of trafficking and contains information about trafficked persons and information that may be useful in preventive activities and activities of protection and assistance provided to foreign and domestic victims of human trafficking. This database has been established within the

Ministry for Human Rights and Refugees. Another database is about traffickers and data‟s related to the prosecution and contains all information on offenders and monitors all taken legal actions and proceedings, and it is established in the State Investigation and Protection Agency. During 2009, a series of meetings with relevant institutions which in their work come to the data on human trafficking were held and training of their representatives on the manner of reporting and submission of data base was carried out. Reporting forms were harmonized and introduced into use. - In budgets of the Ministry of Security and Ministry of Human Rights funds are regularly provided, intended to finance shelters for foreign and domestic victims and for projects for rehabilitation and reintegration of victims and preventive projects. Funds are regularly assigned to non-governmental organizations with which these ministries have concluded cooperation protocols. They have also provided significant funding from donors to implement projects to combat trafficking in human beings in areas of prevention, protection of victims of trafficking, capacity building to combat trafficking and monitoring of the situation. - The State Coordinator, in cooperation with the state group in collaboration with other relevant governmental and nongovernmental organizations regularly collect data and monitors the situation of trafficking in the country, regularly perform the evaluation and report annually to the Council of Ministers on the situation of trafficking in human beings and the implementation of the Action Plan. Besides this other research and assessment were implemented to efficiently monitor and evaluate the situation. During 2008, the State Coordinator, in cooperation with the OSCE Mission in B&H and Agency for Social Research, initiated research project with the aim of improving general knowledge about the causes that lead to trafficking within Bosnia and Herzegovina with local citizens and the profiles of victims of internal trafficking and recruitment methods. Research goal is to identify recommendations that are used for defining prevention policies and building mechanisms to protect victims of trafficking.

2. Prevention

Despite the achieved results in combating trafficking, a number of factors that foster trafficking are still present in Bosnia and Herzegovina, and therefore, Action Plan predicted to continue intensive activities to raise awareness about trafficking in human beings and other activities that will have a direct preventive function and remove the causes that lead to human trafficking. In order to achieve the goals following activities have been carried out so far: - With the consent of ministries of education and pedagogical institutes it is ensured that the school programs introduce compulsory subject on trafficking through which the children as a vulnerable group will familiarize with the phenomenon of trafficking and how to prevent. As part of this project in cooperation with NGOs and relevant government institutions manuals and other educational materials have been made that will be used in teaching. Some of the teachers were already trained, in the coming period training of remaining teachers will continue. - Every year in cooperation with government and nongovernmental organizations public campaign erected on public awareness on human trafficking were conducted through print and electronic media and other means of public announcement. For the last quarter of 2009 preventive information campaign via chat rooms on the Internet are planned. - In 2008 began the implementation of the project entering the Roma children and adults in civil registers began. Until now, the project identified and registered in the civil register of several hundred people who have never been registered. The project was implemented in cooperation of UNHCR and NGO Vaša prava.

- Local authorities and NGOs carry out a number of projects in local communities with vulnerable groups of the population in preventing trafficking, economic strengthening and protecting such groups.

3. Protection of victims and witnesses

Detection and identification of victims of trafficking and the level of assistance and protection for victims need to continuously improve. In this regard, the Action Plan defined as the objectives, raising the level of knowledge of all professionals who participate in identifying victims and providing protection and assistance. Objectives related to the referral system were identified; social support and protection, and repatriation, and trans-national referral mechanisms. In order to achieve the goals following activities have been carried out so far: - Assistance and protection to identified victims of human trafficking is provided regularly in shelters or outside of shelters. Assistance and protection covers all the needs of housing victims, food and dress to the legal, medical, psychological and any other assistance. The work of NGOs that lead shelters and provide other assistance to victims outside the shelters is funded from the budget of the Ministry for Human Rights and the Ministry of Security and secured donor funds. - During 2008 and 2009 a number of activities were taken on development of monitoring mechanisms to monitor implementation of minimum standards for protection of victims of trafficking and care about them by the competent institutions. Monitoring teams for continuously monitor and evaluate the quality of professional activities and institutions were established and for assessing the quality of services provided to victims of trafficking. In the first phase of activities, all institutions and organizations involved in the fight against trafficking in human beings have based on regional organization of the State Investigation and Protection agency appointed their representatives to wider structure of regional monitoring group and in the second phase narrower groups of monitoring teams who are responsible for development of further cooperation, monitoring and coordination on regional and local level were formed. - The Council of Ministers decided to form a commission for monitoring residential facilities for accommodation and care of children, victims of violence, trafficking, asylum seekers, illegal immigrants, refugees, elderly persons, persons with disabilities and other agencies as needed. The Commission will, through its work ensure that all residential facilities, including those housing the victims of trafficking, fully build standards in accordance with the Council of Europe Convention. - A large shift in the quality of protection and assistance for victims, their identification, referral and return to the country of origin is made through the implementation of a regional project of establishing translational referral mechanisms, of which is discussed in the section on international cooperation.

4. Prosecution

In previous years, Bosnia and Herzegovina recorded a constant progress in the work of police, prosecutorial and judicial institutions in the detection, prosecution and punishment of traffickers. Most activities were focused on trafficking for sexual exploitation. As the objective of the Action Plan is defined a need to improve the prosecution and other forms of exploitation such as forced labour, organized forced begging, arranged marriages, child pornography and paedophilia. In order to achieve the goals following activities have been carried out so far: - The respective police agencies and prosecutors' offices continued to effectively investigate and accuse crimes related to trafficking. First cases of trafficking in human beings for forced

labour and organized forced begging are already investigated and accused. Number of investigations and indictments from year to year increases. Task Force comprised of representatives from all police agencies and prosecutor's offices is actively working on coordinating activities, exchange information and conduct joint investigations related to trafficking in human beings. - Ministry of Security in 2008 and 2009 in cooperation with the organization "Save the Children Norway" implement project „ Comprehensive response to child pornography “.Through this project were built capacity of police and prosecutorial institutions to effectively identify and investigate cases of child pornography and paedophilia. Also the project has provided equipment for police agency for research in child pornography cases in information systems and on internet.

5. International cooperation

Bosnia and Herzegovina has in previous period taken part very actively in international cooperation relating to the fight against trafficking in human beings. As the objective of the Action Plan the further strengthening of cooperation between Bosnia and Herzegovina and the international organizations is defined. In order to achieve the goals following activities have been carried out: - Bosnia and Herzegovina has concluded a number of agreements on police and judicial cooperation, which include cases of trafficking in human beings. Such agreements are regularly and effectively implemented. - Representatives of Bosnia and Herzegovina participate in the work of international organizations in implementation of regional and other projects at the international level regarding the fight against trafficking in human beings. - Bosnia and Herzegovina, together with other countries from Southeast Europe actively participated in implementing the project of translational referral mechanism for victims of trafficking in South Eastern Europe. The project is led by the International Centre for Migration Policy Development (ICMPD). Through the implementation of the project following results were achieved: the harmonization of the referral mechanism with international standards as prescribed by the relevant conventions and regulations; networking with the countries of the region; networking anti-trafficking actors in the country; commitment to implementing the guiding principles in the treatment of victims of trafficking. The result of this project is very active and effective practical cooperation between the competent national authorities in the region in reference to the victims of trafficking in human beings and return to their country of origin. Bosnia and Herzegovina made this collaboration in five specific cases when the trafficking victims were identified, assisted, and returned to the country of origin using the translational referral mechanism.

Bosnia and Herzegovina fight against trafficking have been identified as a priority in its work with government and non-governmental organizations and will continue with the activities on the implementation of the Action Plan in the coming years and meet the goals set in the plan.        

 Measures taken for harmonization of the legislative framework at State, entity and Brcko district level regarding the criminal offence of trafficking in human beings.

Draft Amendments to the Article 18628 of the Criminal Code of Bosnia and Herzegovina adopted by the Council of Ministers are in the parliamentary procedure. Draft provisions are fully harmonized the provision related to the Trafficking in Humane Beings with the Council of Europe Convention on Action against Trafficking in Human Beings. Definition of crime has been amended and penalties increased. Aggravating circumstances, organization of direction of criminal group for purpose of committing trafficking, seizure of Items and conveyances used for the perpetration of the offense closure of the facilities and premises used for human trafficking, are improved. Usage of the services of the victims of human trafficking is introduced in the Draft amendmetns to the Criminal Code as a crime.

Article 10029 of the Draft Law on Amendments to the Criminal Code of Bosnia and Herzegovina obliges authorized bodies of the Federation of Bosnia and Herzegovina, Republika Srpska and Brčko District of Bosnia and Herzegovina to harmonize their respective Criminal Codes within 90 days of the date of entry into force of the Criminal Code of Bosnia and Herzegovina.

28 “Human Trafficking” Article 186 (1) Whoever, by use of force or threat of use of force or other forms of coercion, abduction, fraud or deception, abuse of power or influence or a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, recruits, transports, transfers, harbors or receives a person for the purpose of the prostitution of that person or other forms of sexual exploitation, forced labor or services, slavery or a similar status, servitude or the removal of organs or of some other type of exploitation, shall be punished by imprisonment for a term of not less than three years. (2) Whoever recruits, solicits, transports, transfers, harbors or receives a person younger than 18 years of age with the purpose of exploitation referred to in Paragraph 1 of this Article, shall be punished by imprisonment for a term of not less than five years. (3) If the criminal offense referred to in Paragraphs (1) and (2) of this Article is committed by an official person while executing official duty ,the perpetrator shall be punished by imprisonment for a term of not less than five years. (4) Whoever counterfeits, procures or issues travel or identification documents, or uses, holds, seizes, alters, damages or destroys travel or identification documents of another person with the purpose of facilitating human trafficking, shall be punished by imprisonment for a term between one and five years. (5) Whoever organizes or directs at any level the group of people for the purpose of perpetration of the criminal offenses referred to in Paragraphs (1) and (2) of this Article, shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. (6) Whoever uses the services of the victims of human trafficking, shall be punished by imprisonment for a term of between six months and five years. (7) If the perpetration of the criminal offense referred to in Paragraphs (1) and (2) caused serious health damage, grievous bodily harm or the death of the persons referred to in Paragraphs (1) and (2), the perpetrator shall be punished by imprisonment for a term of not less than five years or long-term imprisonment. (8) Items and conveyances used for the perpetration of the offense shall be seized, while the facilities and premises used for human trafficking, without prejudice to the rights of the third parties, may be closed temporarily or permanently. (9) Whether the person who is a victim of human trafficking consented to the exploitation bears no relevance to the existence of the criminal offense of human trafficking.

29 Article 100 Authorized bodies of the Federation of Bosnia and Herzegovina, Republika Srpska and Brčko District of Bosnia and Herzegovina shall harmonize their respective Criminal Codes with this Code within 90 days of the date of entry into force of this Code.

Policy on preventing and fighting financial crimes (money-laundering, terrorist financing, confiscation of assets) (benchmarks 21, 24)    Adoption of a national strategy and action plan on the prevention and fighting of money-laundering and financing of terrorist activities

The Council of Ministers of Bosnia and Herzegovina on its session held on 30 September, 2009, adopted National Strategy and Action plan on the prevention and fighting of money-laundering and financing of terrorist activities.

The Strategy and Action Plan are attached in Annex 4.

 Effective measures taken against (suspected) money laundering, including temporary suspension of suspicious transactions, investigation, prosecution and convictions

During period January-September 2009 the reporting entities submitted to the Financial Intelligence Unit of the State Investigation and Protection Agency 119 reports related to the suspicious transactions in the total amount of 34,469,329,15 BAM (cca. 17,5 million EUR) . Further investigations have been conducted and Reports on committed acts submitted to the Prosecutor Office with regards to the amount of 12,130,792,38 BAM.   Measures taken to raise the awareness of the reporting entities of their obligations

The Law on Prevention of Money Laundering and Financing of Terrorist Activities came into force on 15 July, 2009. Pursuant Law, State Investigation and Protection Agency drafted A Rulebook on Risk Assessment, data, information, documentation, Identification Methods and other Necessary Indicators for Implementation of the Provision of the Law on Prevention of Money Laundering and Financing of Terrorist Activities. Guidelines for the Reporting Forms Usage and Electronic Input of Data on Reported Suspicious Transaction for the Reporting Entities are prepared as well. The Rulebook and the Guidelines will be adopted by the Minister of Security in October 2009. After adoption of the Rulebook and the Guidelines State Investigation and Protection Agency will organize trainings for reporting entities in order to raise their awareness. Trainings will be organized in November 2009.   Measures taken to adapt the legislative framework to international standards in the area of confiscation of assets and to harmonies it between state and entity levels.  The Draft Law on Amendments to the Criminal Code of Bosnia and Herzegovina determines new provision, “Extended Confiscation of Material Gain”, according to which:

(1) Court may, during the criminal procedure, confiscate material gain if there is a probable cause to believe that the gain derives from a criminal offence. (2) Suspect, or accused, owner or holder of the gain may in a separate court proceeding prove that the confiscated gain is obtained in a legal way. “

This enables more efficient fight against organized crime in accordance to the requirements set up in the UN Convention against Transnational Organized Crime and its supplementing Protocols, as well as certain Council of Europe Conventions on the fight against organized crime.

The Draft Law on Amendments to the Criminal Code of BiH provides the obligation of entities and Brcko District to harmonize their Criminal Codes with the Criminal Code of Bosnia and Herzegovina within 90 days after coming into force of Criminal Code of Bosnia and Herzegovina (Entity Ministries of Justice and Brcko District are already working on that matter).

Draft Law on Amendments to the Criminal Code of Bosnia and Herzegovina is adopted by the Council of Ministers and is in the parliamentary procedure, and with Statement of the reasons is attached in Annex 6.   Trainings to enhance expertise on confiscation of assets , financial investigations, economic crimes and prosecutor-police cooperation

Center for Education of Judges and Prosecutors of Republika Srpska recognizes that financial investigations are new method in organized crime investigations and provided the technical support to the seminar-training of police officers and law enforcement agencies that was organized by ICITAP, on July 20-24, 2009.

Center for Education of Judges and Prosecutors of Federation of Bosnia and Herzegovina has delivered trainings for judges and prosecutors in the area “Policies of prevention and fight against financial crime” (money laundering, financing of terrorist activities, seizure of property). In the above mentioned area, in the period 2003-2009, the Center organized 6 seminars on “Money laundering, special investigative actions and management of the confiscated property gained in the criminal procedure”. Total number of judges and prosecutors who attended those seminars is 159.

In the period from January 1 to July 30, 2009, 6 seminars on “Investigation – legality of evidence” were implemented as it was planned in the Professional Development Program of judges and prosecutors for 2009. Total number of participants was 161 judges and prosecutors from the Court of BiH, Supreme Court of FBiH, Cantonal and Municipal Courts, Prosecutor‟s Office of BiH, Prosecutor‟s Office of FBiH and Cantonal Prosecutors‟ Offices, as well as several representatives of OSCE Mission to BiH.

During the implementation of Professional Development Program of judges and prosecutors for 2009, one seminar was held on ” Management of confiscated property” as planned by Professional Development Program of judges and prosecutors for 2009. The seminar was attended by 30 participants, presidents of the courts, judges and officers from the courts of Federation of BiH and Republic of Srpska.

BiH Federation Centre for Training of Judges and Prosecutors (whose services are used by the judiciary of Brčko District of BiH) has an annual action plan which includes organising, in November 2009, a seminar on the topic “Confiscation of Properties Acquired through Criminal Acts“. As part of this seminar, there will be an analysis of the legal basis for confiscation of properties acquired through criminal acts. The analysis will also concern the legal consequences of conviction and the legal practices of courts in this field. In October 2009, the Centre is planning to organise a seminar on taxation and customs policy. The Republika Srpska Centre for Education of Judges and Prosecutors (whose services are also used by the judiciary of Brčko District of BiH) is planning to hold a seminar on the topic “Criminal Acts against Economy and Financial Exchange”. The aim of the seminar is to analyse the essential features of the criminal acts against economy and financial exchange, with a special focus on the criminal acts of tax evasion and of money laundering. One of the prosecutors of the Office is an educator of the BiH Federation Centre for Education of Judges and Prosecutors and has participated as a lecturer in a seminar on the topic 40

“Relations Between Police and Prosecutors in Investigation”. Two prosecutors of the Office attended the seminar, held in Banja Luka, as trainees. A five-day seminar on the topic “Financial Investigations”, organised by the USA Department of Justice – ICITAP, will be held in Brčko in mid-October and attended by 5 prosecutors of the Office.

The competent authorities of Bosnia and Herzegovina have identified the need for further trainings to enhance expertise on confiscation of assets, financial investigation, economic crimes and prosecutor-police cooperation in 2007, and therefore applied for funds under IPA 2007 for a project “Joint training of SIPA Financial Intelligence Unit and Crime, Investigation Unit, Prosecutors, financial regulatory agencies and institutions”. The project worth 400.000 EUR is approved and its implementation is about to start in coming months. The overall objective of the project is to improve the capabilities of law enforcement agencies in the implementation of the Anti-money laundering and financing terrorism measures. The project purpose is to strengthen the capacity of the Financial Intelligence and Criminal Investigation Units‟ (FIU and CIU) in investigating money laundering and financing cases and improve the cooperation with Prosecutors and financial regulatory agencies in cases of money laundering and financing terrorism. Expected results are the capabilities of the law enforcement agencies in the fight against money laundering, drugs organized crime, terrorism and corruption will be enforced. Assistance will be provided to the various departments of the State Investigation and Protection Agency (SIPA), the Office for Narcotics and other relevant services to improve their capabilities to fight against money laundering, drug trafficking, terrorism and organized crime. This activity will institutionalize measures combating money laundering within a larger number of responsible agencies as well as improve cooperation among the agencies in a sustainable manner. This will be completed through both the training activities and the development of guidelines and regulations within the financial regulatory agencies. In enhancing the cooperation between FIU and CIU, this activity will also develop mechanisms for the investigation of money laundering activities in a more proactive and preventive manner. With a systematic approach to combating money laundering by CIU and FIU, stronger evidence required for prosecution will be obtained. Finally, in increasing the skills of prosecutors in understanding the intricacies of money laundering transactions, cases presented for prosecution will result in a greater number of convictions. This activity will be a comprehensive approach to increasing awareness and skills for all parties involved in the anti-money laundering chain and should result in more cases being successfully prosecuted, thereby decreasing BiH's vulnerability as a country susceptible to money laundering. The preparations and a framework calendar (since beginning of February onward) have been completed for implementation of the above twining project.

State Investigation and Protection Agency and International Criminalist Association will organize and international conference on corruption and money laundering during the second week of October 2009. The invited participants are from domestic and foreign police agencies, non-governmental organizations, scientific institutions and universities. Two-day conference will present 42 scientific elaborates. Centers for Education of Judges and Prosecutors are planning, after coming into force of new criminal legislation to organize trainings and improvement of knowledge in this area, in accordance to the new solutions mentioned in the amendments to the Criminal Code of BiH.

MoI RS organised the training on conducting the investigation and confiscation of property acquired through criminal activities, which has been realised in cooperation with European Commission TAIEX Office in February 2009. The training was attended by all police and prosecutors bodies in BiH. Having understand the importance of fight against economic crime and

in particular conducting the financial investigation, MoI is planning to organise the training on the topic in November this year, again in cooperation with the EC TAIEX Office. MoI employees also attended the trainings organised by Education Centre for Judges and Prosecutors on this and similar topics. They took part in the training organised by ICITAP related to financial investigations. The actions performed in the area of economic crime in first six months this year are witnessing on the high level of skills in MoI employees for conducting investigations (302 criminal acts of economic crime, 225 reports against 297 persons).

State Investigation and Protection Agency in cooperation with the Greek Police, has prepared a training programme, related to integrated financial investigations. The Programme implementation will starts in October.

For additional information please see Bosnia and Herzegovina Chief Prosecutor Report (Annex 9) part 3.

Anti-drug policy (benchmark 22)   Adoption of a national action plan 2009-2013 for drug control, suppression and prevention.

Council of Ministers of Bosnia and Herzegovina on its session held on 24 September 2009 adopted National Action Plan 2009-2013 for drug control, suppression and prevention.

 Measures taken to enhance training and equipment of specialized law enforcement structures at state and entity levels.  In the area of “Policy on the fight against narcotics trafficking“, Centers for Education of Judges and Prosecutors have organized 4 seminars of joint training of police agencies‟ officers and prosecutors on narcotics. Beside great number of members of police agencies, Police Academy, MIA of Federation of BiH, MIA of Republic of Srpska, Police of Brcko District of BiH, seminars were also attended by 14 prosecutors.

Additionally three seminars were held on “Drugs – the challenge of modern society” and “Cooperation between prosecutors and law enforcement agencies”. Trainings were attended by 36 judges and prosecutors from the territory of Federation of BiH and Republic of Srpska.  The training held under the auspices of the BiH State Prosecutor‟s Office and EUPM was organized on 8/9 May 2009 with the aim of improving existing cooperation between different offices and departments based on experiences from conducted operations. Training was focused on aspects of special investigative measures, crime scene investigations, search of dwellings and persons. EUPM assessed the training as very professional and productive.  The second Twinning project30 in support of Border Police was implemented in cooperation with Hungarian State Police and it partners (Border Service of Poland, Customs of Finland, British Ministry of Interior and EUROPOL). The aim of the project was to strengthen BP capacities necessary for more efficient fight against organized cross-border crime in the field of information management, improvement of operational analytics, intelligence system and investigative component, through transfer of knowledge, experience and best practices. Within the project there

30 The project started on 1 June 2008, and finished on 1 August 2009, lasted for 14 months. Contract No. BA 06 JHO2 42

were 12 trainings, seminars and workshops organized for 150 participants, covering areas such as strategic planning, rules and procedures development, as well as specialized analytical and investigative trainings (ANCAPA, telephone listings‟ analysis, and I-2 software application). Training for u I-2 software application (Analyst's Notebook) was organized for BP police officers (central, regional and local levels) and for officers of agencies participating in Joint Risk Analysis Center. These analytical programs were the base for collecting and processing a great deal of information on operational actions carried out in the previous period. One of more important parts of Twinning Project refers to development of strategic documents in Border Police. In relation to that, together with the Twinning partner and participation of EUPM representatives, a document – “Analysis of Shortcomings and Requirements” was produced as the final result of current situation evaluation in Border Police. On basis of these documents, BP Director passed Border Police Strategy for period 2010 – 2014, as well as two other functional strategies: Strategy on management of information and Strategy on human resources management in BP. At the moment, we are preparing methodology for creation of projects for implementation of BP strategic documents. There was equipment installed for legal telecommunications interception, and in relation to that specialist training was conducted for police officers working with devices for surveillance and technical telecommunications recording. There was also equipment obtained and put into function for forensic expertise of telephones suspected of having been used as communication means during commitment of crimes. A special interview room has been technically equipped.

Organisational structure of Republika Srpska Ministry of Interior comprises Department for fight against drug production and trafficking that is well trained and equipped according to current financial capacities. Members of this Department participate in all trainings organised in BiH and abroad. Moreover, RS Ministry of Interior organised a study trip to Slovenia (in cooperation with TAIEX) which aimed at addressing the issues of undercover investigations of drug trafficking cases. Different trainings for Ministry of Interior staff on fight against drugs are also being organised through Department for Police Education and in cooperation with ICITAP.

From March of this year to the present day the police staff of Brcko District Police participated in three specialised seminars on fight against abuse of narcotics.   Implementation of EU standards for sharing drugs-related information with the European Monitoring Centre for Drugs and Drug Addiction.  Bosnia and Herzegovina has participated in EC funded CARDS project "Assessment of the capacity of Western Balkan countries to establish a drug information system compatible with the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA)”. During the implementation of the project an analysis of the situation in Bosnia and Herzegovina has been conducted in relation to drugs and drug addicts according to the EMCDDA standards.

The concerned analysis consists of two output reports, 1) the Information Map on drug related data sources and 2) Country Overview.

The Information Map represents collected databases and researches that were conducted on the territory of Bosnia and Herzegovina in the post war period, with the presentation of all identified sources of drug-related information, with the descriptions of databases, strong and weak points and overview of the overall situation.

The Country Overview includes all data related to five key epidemiological indicators collected on the basis of technical instruments and guidelines recommended by EMCDDA.

- Prevalence and patterns of drug use among the general population (population surveys); - Prevalence and patterns of problem drug use (statistical prevalence/incidence estimates and surveys among drug users); - Drug-related infectious diseases (prevalence and incidence rates of HIV, hepatitis B and C in injecting drug users); - Drug-related deaths and mortality of drug users (general population mortality statistics, special mortality registers and cohort studies among drug users); - Demand for drug treatment (statistics from drug treatment centers on clients starting treatment).

The final Country Overview report consists of the following 13 chapters: - Social Demographic overview - Prevalence and patterns of drug use among the general population and young people - Prevention - Patterns of problem drug use - Drug treatment demands - Drug related infectious diseases - Drug related deaths and mortality rate among drug addicts - Drug addiction treatment statistics - Harm reduction responses - Drug markets and drug abuse related offences - National drug law on suppression of narcotic drug abuse in Bosnia and Herzegovina - National narcotic drug surveillance strategy - Coordination mechanism in the field of fighting narcotic drugs abuse in Bosnia and Herzegovina.

The reports contain all information in the field of drugs and drug addiction and are compatible with the standards of the European Monitoring Centre for Drugs and Drug Addicts.

The Council of Ministers has adopted a Unique Registration Drug User Form created on the basis of an International Form, and the respective software has been created for collecting, analyzing and reporting to EMCDDA and other international bodies.

Both reports, the Country Overview and Information Map, are approved by EMCDDA and are currently at the stage of translation and printing.   Measures taken to ensure availability of information on drugs seizures and persons involved at border crossing points.

With purpose to ensure more efficient work of police bodies and prosecution offices and establishment of the efficient cooperation between police bodies, other law enforcement agencies and prosecution offices and in accordance with conditions for a real time data exchange from police and prosecution registers, all police bodies and prosecutorial offices on 30 September 2009 have concluded an Agreement on establishment of electronic exchange of data from the registries of police bodies and prosecutorial offices throughout the country. 

Exchange of data from the registries will include information on drugs seizure and persons involved. On of the Parties in the Agreement is Border Police which will make available information on drug seizures and persons involved to its border crossing points.

Policy on preventing and fighting corruption (benchmarks 23-24)   Adoption of a revised strategy and action plan for the fight against corruption

Council of Ministers of Bosnia and Herzegovina on its session held on 24 September 2009 adopted revised Strategy and Action plan for the Fight against Corruption.

Strategy and Action Plan are attached in the Annex 5.   Adoption of law on anti-corruption body

The Council of Ministers of Bosnia and Herzegovina adopted Draft Law on Agency for Prevention of Corruption and on Cooperation in Fight of Corruption on its session held on 24 September 2009. Draft Law is currently in parliamentary procedure for adoption.

The Draft Law is attached in Annex 7.   Results in effectively tackling suspected cases of high-level corruption  The results in effectively tackling suspected cases of high-level corruption of the Prosecutor Office of Bosnia and Herzegovina are visible in the bellow table.

REPORT ING PERIOD 01.01.2009.-15.9.2009 2. Orders to 1.Received reports conduct an 3.Indictments issued 4. Convictions Criminal Code investigation Persons Persons Persons Persons Report involved Report involved Report involved Report involved

217-BIH 1 1 0 0 0 0 1 1

218-BIH 1 1 1 1 1 1 0 0

219- BIH 0 0 1 1 1 1 0 0

220 –BIH 17 30 4 7 1 2 1 2

224-BIH 1 11 0 0 0 0 0 0

358-FBIH 0 0 1 1 1 2 0 0

347- RS 1 15 1 9 0 0 0 0

TOTAL 21 58 8 19 4 6 2 3

Among the cases that were handled by the Prosecutor's Office in the past nine (9) months, and which relate to criminal offenses of corruption and criminal offenses of abuse of office or authority are three that involve high ranking officials of previous Entity Governments. These three indictments were confirmed and the procedure instituted before the Court of Bosnia and Herzegovina. One of the cases in which the indictment is confirmed involves a high ranking police official form one of the Law Enforcement Agencies accused of four criminal offences including the criminal offenses of corruption and abuse of office and authority. Other reported criminal offenses are still being investigated as they also involve dozens of persons from various levels of executive 45

and legislative authority and a major number of criminal offenses that fall within the list of criminal offenses of corruption and abuse of office and authority.  Republika Srpska Ministry of Interior is continuously investigating corruption cases, treating all of them in equal manner, even when it comes to persons holding certain positions, such as civil servants, police officers etc. In the previous period, a number of criminal reports were submitted against at least twenty persons holding high-level positions, such as directors of public companies, civil servants, members of police agencies etc.

There is an ongoing investigation before this Prosecutor‟s Office against two highly-positioned public officials suspected of committing, to the harm of the budget of Brčko district of BiH, a criminal act of abuse of estimate, as stated in Article 244 of the Criminal Code of Brčko District of BiH, and a criminal act of stipulation of a harmful contract, as stated in Article 246 of the Code. The activities by the suspects were related to disposition of unused land. The handling prosecutor will decide by the end of this year whether or not to raise an indictment.   Results in effective application of special investigative means to corruption cases

Special investigative means are on disposal to the prosecutors and police during investigation of crime and corruption (surveillance and technical recording of telecommunications; access to the computer systems and computerized data processing; surveillance and technical recording of premises; covert following and technical recording of individuals and objects; use of undercover investigators; simulated purchase of certain objects and simulated bribery; supervised transport and delivery of objects).

Available capacities of SIPA for conducting special investigative actions, among other things, are used for investigation of criminal offences of corruption. Currently, 60% capacity of the System for lawful communication interception is used, and a certain number of the Court and Prosecutor‟s Office orders is related to the criminal offences of corruption. So far, competent judicial bodies have issued 27 orders for application of special investigative means. Results of the application are used regularly during investigation, prosecution and trials.

Republika Srpska Ministry of Interior has at its disposal the equipment for special investigative techniques and makes use of this equipment, in line with the law (amendments to the Criminal Procedure Code from December 2008), when conducting its regular activities related to investigation of corruption related crimes (abuse of official position, misfeasance, conclusion of detrimental contract etc.). Several investigations took place, in which special investigative techniques were applied, which resulted in submission of reports on committed corruption related offences to the Prosecutor‟s Office.          

 Legal and administrative measures taken to implement international standards including outstanding GRECO recommendations and signature of the additional protocol to the Council of Europe Criminal Law Convention on Corruption

PROGRESS IN IMPLEMENTATION OF GRECO RECOMMENDATIONS (for period July 1st – October 1st, 2009)

Recommendation I “... to enlarge the scope of the provisions of the Republika Srpska on confiscation of indirect proceeds of crime and with regard to situations where no conviction is possible (in rem confiscation).”

• On the session held on September 29th 2009, the National Assembly of the Republika Srpska had adopted the Draft Law on Confiscation of the Crime-Related Property. The Law regulates conditions, procedures and competent authorities for detection, confiscation and management of the property gained through criminal activities. The Law also enacts establishment of an agency for management of the confiscated property.

Recommendation II “... to analyse the practical implementation of the Law on confiscation and temporary seizure of the instruments and proceeds of criminal offences, including corruption, with a view to providing harmonised guidelines and trainings for both prosecutors and judges; particular attention should be paid to making a better use of legal provisions concerning confiscation of proceeds of crime held by a third party.” • The BiH Ministry of Justice had established the Work Group consisting of representatives from relevant State, Entity and Brčko District institutions having task to: (a) determine level of harmonisation between the respective State, Entity and Brčko District laws on confiscation of illegally gained property; (b) propose directions towards the harmonisation and common application of the criminal legislation and laws on criminal proceedings, and (c) suggest new solutions and cover storage, management and disposal of temporary seized property. The Work Group drafted the Law on Confiscation of Crime-Related Property in BiH that would be sent for further procedures. The above mentioned draft law enacts establishment of a separate Agency for Management of Seized Property.

• The Team for Monitoring of Application and Evaluation of Criminal Legislation in BiH, as the competent body of the BiH Ministry of Justice, created a proposal on changes and amendments to the BiH Criminal Code. These changes and amendments introduced a new article on “Extended confiscation of the proceeds from criminal activities”. Proposed Law on Changes and Amendments to the Criminal Code was agreed on by the BiH Council of Ministers and sent to the BiH Parliamentary Assembly for considerations in the regular legislative procedures.

Recommendation VI “... to ensure a systematic assessment and evaluation of the effectiveness of the Anti-Corruption Strategy and its Action Plan through the setting up of an independent anti-corruption body with sufficient resources.” • The Work Group, nominated by the Decision of the BiH Council of Ministers, drafted the Law on Agency for Prevention and Anti-Corruption Coordination. The BiH Council of Ministers agreed to the Proposed Law on Agency for Prevention and Anti-Corruption Coordination on its 99th session held on September 24th 2009, and referred the Proposal to the regular proceedings of its consideration and adoption at the BiH Parliamentary Assembly. The Law provides establishment of the state level Agency, being an independent administrative organisation responsible to the BiH Parliamentary Assembly.

• On the 99th session held on September 24th 2009, the BiH Council of Ministers also adopted the Anti-Corruption Strategy and accompanying Action Plan covering the period 2009- 2014.

Recommendation VIII “... to (i) adopt a Code of Conduct for civil servants at State level; (ii) expand the Code of Ethics of the Federation of Bosnia and Herzegovina to include explicit references to ethical issues and risks of corruption; and (iii) develop regular training at all levels of government on public ethics and risks of corruption, including the resolving of practical, specific cases, such as reaction to gifts, conflict of interests and reporting corruption”. • Article 3 of the Law on Changes and Amendments to the Law on Civil Service in the Institutions of Bosnia and Herzegovina (“The BiH Official Gazette”, number: 43/09) creates legal basis for issuance of the Code of Conduct for state level civil servants. The BiH Civil Service Agency had prepared the text of the Pre-draft Code and referred it to the preliminary procedure for opinions. Upon received opinions, the Proposal of the Code of Conduct for Civil Servants in the Institutions of BiH would be referred to the procedure of adoption at the BiH Council of Ministers.

• The Civil Service Agency of the BiH Federation referred the text of the Changes and Amendments to the Ethical Code for Civil Servants in the BiH Federation for opinions of the Office of the Government of Federation of Bosnia and Herzegovina for Legislation and Harmonisation with EU Regulations and of the Federal Ministry of Justice. By adoption of above mentioned changes and amendments to the existing text of the Ethical Code for Civil Servants in the BiH Federation would be covered provisions to explicitly regulate matters of: understanding risks of corruption, the ethics, and the conduct of civil servants as provided by the provisions. The Civil Service Agency of the BiH Federation plans to create and provide training for civil servants in 2010 on ethics and corruption, as well as to give practical solutions for certain cases of reporting corruption, reaction to the gifts, etc.

Recommendation X „... to develop clear rules/guidelines in the Republika Srpska and the Brčko District for situations where civil servants move to the private sector in order to avoid conflicts of interest.” • The Government of the Republika Srpska, on its 139th session held on September 3rd 2009, adopted the Code of Amendment to the Code of Conduct of Civil Servants of Republika Srpska and thus established clear rules which regulate movement of civil servants to private sector in order to avoid conflict of interests.”

Recommendation XI „... to introduce clear rules/guidelines for civil servants on reporting of suspicions of corruption in public administration, and ensure that civil servants who report suspicions on corruption in good faith are adequately protected from adverse consequences (of whistleblowing)”. • The Civil Service Agency of BiH Federation had prepared the Initiative for issuance of the Law on Amendments to the Law on Civil Service of the BiH Federation and referred it to the Prime Minister of the BiH Federation and the Federal Ministry of Justice. This Initiative proposes amendments to the existing text of the Law with provisions to regulate rules of conduct of civil servants in situations of becoming aware of the corruption or misuse of positions, and entitlements of the civil servants employed in governmental bodies of the BiH Federation.

• The Government of the Republika Srpska, on its 139th session held on September 3rd 2009, adopted the Code on Amendments to the Code of Conduct of Civil Servants of the Republika Srpska, determining rules for civil servants on reporting cases of suspected corruption in the republic administrative bodies, as well as the means of protection for civil whislteblowers.

• Proposed Law on Agency for Prevention and Anti-Corruption Coordination provides protection for “reporting corruption”. The law determines that “no one would be punished or suffer any consequences for reporting, in good faith, the matter believed to be corruptive acting or irregularity in the prescribed procedures. In case a person who informed of the potential corruptive behaviour or misconduct in public service, suffers consequences, he/she has right to a compensation defined in the separate procedure before a competent body to be additionally regulated by the Agency.”

The Presidency of Bosnia and Herzegovina, at its 59th session, held on July 27, 2009, passed the Decision on Ratification of Additional Protocol to the European Criminal Law Convention on Corruption.

Judicial co-operation in criminal matters (benchmarks 25-27)   Implementation of the law on international legal assistance in criminal matters

Law on International Legal Assistance in Criminal Matters has entered into force on July 15, 2009. Since than competent institutions are implementing the Law.

Especially important are the solutions related to the payment of extradition costs and costs of the transfer of the sentenced persons, which is regulated through the provisions of Articles 60 and 82 of the mentioned Law. Article 62 of the Law stipulates that the extradition costs shall be paid from the budget of the body that requested extradition, and they are planned and paid in by the Ministry of Justice which is financed from the same budget. The same solution is provided in the Article 82 of the mentioned Law, concerning the costs of the transfer of the sentenced persons, and which provides that those costs shall be paid from the budget of the court that passed the decision on taking over further execution of prison sentence of a convicted person, and those costs are planned and paid in by the Ministry of Justice which is financed from the same budget.

The above mentioned solutions have resolved the previous negative practice according to which courts did not have funds in their budgets for those purposes, namely they conducted the complete procedure, and at the end there was no extradition or transfer.

At the same time, the Law resolved the issue of responsibility of bodies to act in certain matters, so that the conflicts of competency, both positive and negative competency, between different bodies in BiH are very rare since the application of the Law.

Implementation of the Law is continuously being monitored, and possible negative effects (which are not noticed yet) would be solved through the amendments to the Law, by which would be achieved greater efficiency in the implementation of the Law.

 Training to judges and prosecutors on the new legislation

Concerning the provision of international legal assistance in criminal matters, the regular trainings of judges and prosecutors are being held, especially in 2009, when five continuous seminars were held with foreign and local experts in this area. International legal assistance is included in the regular topics of the seminars which are organized by the Centers for education of judges and prosecutor.

It is also planned to hold a special training in relation to the implementation of the Law on International Legal Assistance in Criminal Matters, as well as round tables, where would be solved certain dilemmas and achieved appropriate standards for different activities of certain bodies.   Measures taken to reinforce qualified staff dealing with mutual legal assistance requests  Ministry of Justice of Bosnia and Herzegovina after adoption of the Law on International Legal Assistance in Criminal Matters started with selection procedure for recruitment of 2 new expert associates in the Sector for international legal assistance and cooperation. With that recruitment staffing of the Sector will reach 95%.

Current professional staff is constantly included in the education in the field of provision of international legal assistance in criminal matters, through seminars and conferences where lecturers are local and foreign experts, and through regular working meetings, where it is discussed about certain problematic issues. The actions of the other states are analyzed, good examples are extracted and appropriate views are taken.   

 Progress in cooperation with Eurojust

The meeting between the representatives of the Ministry of Justice of Bosnia and Herzegovina and the representatives of EUROJUST in The Hague was held on May 11, 2009. After the meeting, the names of the persons authorized for cooperation with it were delivered to EUROJUST, as well as relevant documentation requested by EUROJUST, on the basis of which it will be decided whether Bosnia and Herzegovina will be placed at the list of candidates for the signing of the Agreement on Cooperation with the EUROJUST. However, even without that Agreement, the requests of the EUROJUST are accepted and processed as a priority and in the same way as if Bosnia and Herzegovina is the member of EUROJUST, in the same capacity as requested from us.

Law enforcement co-operation (benchmarks 28-32)   Measures taken to introduce systematic cooperation between the different authorities involved in the fight against organized crime (including law enforcement bodies, judiciary, prosecution, but also other relevant structures)

Law enforcement agencies on state and entity level have reached joint strategic and operational capacity coordinated amongst others through the Ministry of Security. Since late 2008, a key group of police directors from state and entity level, including a representative of cantonal police services, of the Brcko District and the chief state prosecutor are meeting systematically. This group has been enlarged to include a representative of the Ministry of Security. While not a new concept, the regular meetings of the group indicate that a pragmatic approach to systematic inter-agency cooperation in a multi-layered complex federal system is taking root. First topical sub-committees have been formed and met. Joint work of agencies is also carried out through participation in working groups (National Group for Fighting Terrorism, National Group for Fighting Trafficking in Drugs, National Group for Fighting Trafficking in Humans, Group for Fighting Vehicle Crime). There are ongoing activities to prepare establishment of a working group to be fighting drugs trafficking in the area of North-Eastern Bosnia. The bearer of these activities is SIPA – Regional Office in Tuzla.

Police and judiciary on state level have developed and applied investigative capability in consistent cooperation with police and judiciary at other levels. In the development and application of joint investigative capability significant progress has been registered, leading to noteworthy results, including through intra- and inter-entity cooperation, in conjunction with state level agencies. Special attention is paid on special investigative measures and on enhancing the consistency of cooperation, including through supporting standard development with judiciary institutions (High Judicial and Prosecutorial Council).

solutions. There were four main objectives, as follows: . Secondary legislation, instructions and guidance drafted and adopted . Joint training programs for the police and prosecutors developed . Data and statistical information harmonized . Feasibility study conducted to define methodology for development of a criminal/other record system that can be accessed by the police and prosecutor' offices The project was successfully finalized with the following outcomes: . Uniform instructions guiding the procedures of and cooperation between the police officials and prosecutors in conducting actions aimed at obtaining evidence during the course of investigation adopted . Feasibility study finalized and submitted to the Ministry of Security for implementation . Set of uniform forms adopted . Joint training program introduced and incorporated into the training curriculum Apart from the above achievements, the joint efforts and dedication of all relevant law enforcement agencies and prosecution bodies in the implementation of the project represents a breakthrough in curbing the crime. The project itself was a local initiative and resulted in a series of similar activities after its completion.

The competent authorities of Bosnia and Herzegovina will improve systematic cooperation between the different authorities involved in the fight against organized crime through implementation of the project “Joint training of SIPA Financial Intelligence Unit and Crime Investigation Unit, Prosecutors, financial regulatory agencies and institutions”. The overall objective of the project is to improve the capabilities of law enforcement agencies in the implementation of the Anti-money laundering and financing terrorism measures. Expected results are the capabilities of the law enforcement agencies in the fight against money laundering, drugs, organized crime, terrorism and corruption will be enforced. Assistance will be provided to the various departments of the State Investigation and Protection Agency (SIPA), the Office for Narcotics and other relevant services to improve their capabilities to fight against money laundering, drug trafficking, terrorism and organized crime. This activity will institutionalize measures combating money laundering within a larger number of responsible agencies as well as improve cooperation among the agencies in a sustainable manner. This will be completed through both the training activities and the development of guidelines and regulations within the financial regulatory agencies. In enhancing the cooperation between FIU and CIU, this activity will also develop mechanisms for the investigation of money laundering activities in a more proactive and preventive manner. With a systematic approach to combating money laundering by CIU and FIU, stronger evidence required for prosecution will be obtained. Finally, in increasing the skills of prosecutors in understanding the intricacies of money laundering transactions, cases presented for prosecution will result in a greater number of convictions. This activity will be a comprehensive approach to increasing awareness and skills for all parties involved in the anti-money laundering chain and should result in more cases being successfully prosecuted, thereby decreasing Bosnia and Herzegovina vulnerability as a country susceptible to money laundering. Bellow are listed some of the examples of the successful systematic cooperation between the different authorities involved in the fight against organized crime, recognized, as well, by the European Union Police Mission in Bosnia and Herzegovina in its Reports as follows.

- Anti-Narcotics Working Group Meet in Tuzla (Canton 3) - On 27 August, the second meeting of the multi-jurisdictional anti-narcotics working group was held at SIPA in Tuzla. The working

group was established on 20 August when the main agenda was to reach an agreement on the framework for cooperation. During the second meeting participants discussed two drugs related cases. The meeting was attended by members of all LEAs working in the North East BiH area; SIPA, BiH Prosecutor‟s office, Border Police, OSA (Intelligence and Security Agency), FBiH MoI, MoI Canton 3 (Tuzla), MoI Canton 2, Brcko District police, PSC Bijeljina, ICITAP and EUPM. The next meeting will be held on 3 September when the most important agenda will be three drug related cases identified for future joint operations.31

- Indictments against organized crime group - On 19 February, the Republika Srpska Special Prosecutor‟s Office filed indictments against thirteen (13) persons for the criminal acts of organized crime, drug trafficking and endangering public safety in relation to an operation aimed at deterring cross-border trafficking of drugs. All suspects were arrested during August and September 2008 and are suspected of being members of an organized criminal group. As for the part of indictment referring to endangering public safety, the group allegedly planted several explosive devices in Trebinje attempting in such way to extort money from the local individuals. Background: Between 23 and 27 August 2008, RS MoI PSC Trebinje in cooperation with F MoI led the four-phase operation „Leotar‟, which resulted in the arrest of 56 individuals allegedly involved in drug trafficking activities and conducted approximately 110 searches within BiH, Croatia and Montenegro. On 24 September a further phase of operation „Leotar‟ took place in Trebinje AoR and Prijedor. Police simultaneously searched 12 locations (10 in Trebinje and 2 in Prijedor) to gather additional evidence. The operation was well organized and carried out professionally. The operation demonstrated the ability of the RS police to coordinate a large -scale investigation, liaise with different Cantons and RS departments/PSCs, liaise with international agencies, and achieve successful results.32

- SIPA operation targeting International drug ring - On 11 March, following a long term investigation and based upon an order issued by the BiH State Prosecutor‟s Office, SIPA conducted an operation in Sarajevo (Canton 9) and arrested eight persons suspected of being involved in an international drug trafficking ring. Three persons are citizens of Serbia. During the operation, several locations were searched. Prior to this operation, FMoI officers arrested one person in Sarajevo and two in Zenica (Canton 4) as a part of this investigation. In total 3 kg of suspected heroin were seized, as well as a significant amount of money in various currencies, two firearms, mobile phones and vehicles. EUPM was involved from the initial phase of the investigation and was deployed in the field, and noted that the co-operation between SIPA and FMoI was excellent and should be an example of how to share information and how to cooperate successfully.33

- SIPA arrests in relation to CIPS case - On 24 March, based on an order issued by the State Prosecutor‟s Office, SIPA officers arrested three persons in Bijeljina area, suspected of being involved in the case of abuse and misuse of computerized CIPS ID cards and passport system (Citizens Identification Protection System), including document forgeries provided to persons indicted for war crimes. Two of the arrestees are senior police officials, PSC Bijeljina Chief of uniform police and PS Janja Assistant to Commander. The two are also under investigation pertaining to misuse of power. SIPA searched their private accommodations, offices and vehicles. EUPM teams were deployed in the field to monitor the operation which passed without incidents.

31 Monthly Report – August 2009 Reporting Period: 1 – 31 August 2009Monthly Report # 08/09

32 Monthly Report – February 2009 Reporting Period: 1 – 28 February 2009 Monthly Report # 02/09

33 Monthly Report – March 2009 Reporting Period: 1 – 31 March 2009 Monthly Report # 03/09

The operation was professionally and properly carried out by SIPA and conducted with assistance and full cooperation of Chief of PSC Bijeljina. Background: On 28 May 2008, following a long- term investigation undertaken by the State Prosecutor‟s Office, SIPA, Brcko District and RS MoI officers executed 26 search warrants in Banja Luka, Brcko and Bijeljina. During the operation, 20 persons were arrested and four CIPS offices have been searched. The investigation uncovered evidence that the illegally obtained cards, possibly numbering hundreds, have been used as part of criminal activities in BiH.34

- Police arrest fugitives from Ustikolina prison (Gorazde, Canton 5) - On 10 March, a prison break occurred from the Ustikolina prison during which two prison guards were disarmed and nine inmates escaped. During the incident they stole one automatic rifle with 150 bullets, 2 pistols and two official vehicles which they used to drive to Sarajevo (Canton 9). The cars were subsequently found abandoned. Police managed to re-arrest 8 prisoners in Ilidza municipality (Canton 9) and recover an automatic rifle and one pistol. Out of nine fugitives, three were sentenced for murder all of whom were re-arrested. The last fugitive was caught on 16 March, in an apartment located in Sarajevo, by the Drugs Department staff. All the 9 fugitives are now back in jail. There was good coordination between police forces of FMoI, RS, Canton 9 and Canton 5, with the majority of coordinating activities carried out by PC MoI Canton 9. All officers acted professionally and managed to control a dangerous situation avoiding a serious incident escalating into a major one. EUPM issued a press release commending a prompt reaction which resulted in the arrest. “The swift reaction from the police resulted in the arrest of eight of the nine prisoners in a remarkably short time” said EUPM HoM, “I particularly would like to congratulate the Police Commissioner of Canton Sarajevo and the Chief of Public Security Centre East Sarajevo. The excellent cooperation between the police of Canton Sarajevo and the Public Security Centre East Sarajevo was the key to success”. 35

- Operation „Tara‟ – On 1 April, following a long term investigation, BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). All suspects were handed over to the State Prosecutor‟s Office for further processing. In September 2008, the BiH Border Police commenced an investigation into human smuggling of Turkish citizens through BiH. Based on gathered information, Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence. EUPM was informed from the initial phase of the investigation. This joint operation showed excellent cooperation and coordination between the countries in the region aimed at the fight against organized crime.36

- Further arrests in relation to CIPS case - On 21 May, based upon an order issued by the BiH Court, SIPA officers assisted by PSC Bijeljina and MoI Canton 3 (Tuzla) arrested three persons in Vlasenica and Tuzla suspected of being involved in the case of abuse and misuse of computerized CIPS ID cards and passport system. SIPA also searched their private accommodations and offices. The suspects were handed over to the State Prosecutor‟s Office for further processing. This

34 Monthly Report – March 2009 Reporting Period: 1 – 31 March 2009 Monthly Report # 03/09

35 Monthly Report – March 2009 Reporting Period: 1 – 31 March 2009 Monthly Report # 03/09

36 Monthly Report – April 2009Reporting Period: 1 – 30 April 2009Monthly Report # 04/09

operation is a continuation of an ongoing investigation undertaken by the State Prosecutor‟s Office aimed at widespread abuse and misuse of BiH computerized CIPS ID cards and passport system. Background: On 28 May 2008, following a long-term investigation undertaken by the State Prosecutor‟s Office, SIPA, Brcko District and RS MoI officers executed 26 search warrants in Banja Luka, Brcko and Bijeljina. The operation aimed at widespread abuse and misuse of BiH computerized CIPS ID cards and passport system. The investigation uncovered evidence that the illegally obtained cards, possibly numbering hundreds, have been used as part of criminal activities in BiH. 20 persons were arrested and four CIPS offices have been searched. During the operation, a large amount of money was found and seized as well as certain documents, several weapons and some other evidence. EUPM members were closely involved from the planning stage of this operation and were deployed in the field. Good co-operation was maintained between SIPA, Brcko District and RS police and excellent co-ordination with EUPM officers.37)

- Member of an organized crime group arrested in Ilidza (Sarajevo, Canton 9) - On 23 May, based on operational information provided by SIPA via the Crime hot line, Canton 9 MoI officers arrested a person from Prijepolje (Serbia), suspected of being a member of the „Gasi‟ criminal group. The arrest was carried out in Ilidza. Two arrest warrants were issued for this suspect who was the only one still at large after the members of the group, including their leader Muhamed Ali Gasi, were arrested. The arrest was a result of a good cooperation between SIPA and Canton 9 Ministry of Interior (MoI), especially due to successful communication between the two LEAs, considering that the Crime hot line is a constant source of information to the police. The investigation continues in order to identify persons who possibly assisted the suspect while hiding. EUPM continues to monitor. Background: On 8 and 9 January 2008, FMoI officers conducted an operation aimed at arresting Muhamed Ali Gasi, a well known criminal, suspected of being the leader of one of the main organized criminal groups in BiH. Although the main suspect was not arrested at the time of the operation, five of his alleged associates were and upon search of several accommodations police seized certain items. On 14 January 2008, Muhamed Ali Gasi was arrested in Sarajevo. Two men suspected of assisting the main figure and known by the police for their links with criminals were also arrested.38

- SIPA operation „Istok‟ targeting drug trafficking - On 9 July, following a long term investigation in Bileca municipality, SIPA Mostar assisted by PS Bileca officers arrested a person suspected of drug trafficking. During the operation, SIPA officers seized 70 kg of substance resembling marijuana (Skunk) valued at approximately 79,000 Euros. EUPM monitored the investigation and preparations for the operation. The suspect is known for being involved in organized crime. He was handed over to the BiH State Prosecutor for further processing. This is the second phase of operation „Istok‟ which started in 2007 with the gathering of information followed by the last six months of investigative work. The arrested person had been on the run since 2006 when he was discovered in possession of 100 kilos of skunk but escaped arrest until now. EUPM has monitored this investigation from the beginning and commends professional cooperation between LEAs.39

37 Monthly Report – May 2009Reporting Period: 1 – 31 May 2009Monthly Report # 05/09

38 Monthly Report – May 2009Reporting Period: 1 – 31 May 2009Monthly Report # 05/09

39 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09 55

twelve persons suspected of human smuggling were arrested. During the searches, the police found and seized 1, 5 kg of cocaine valued at approximately 150,000 KM, 200 grams of heroin, approx. 1 kg of substance used for the production of drugs, 20 cell phones, 19 SIM cards and various other items. Thirty days detention has been ordered for four suspects. During the operation, one of the suspects armed with an automatic rifle succeeded to escape the police raid through the Drina River but he was arrested by the Serbian police authorities. This operation is the second phase of operation Tara that was conducted on 1 April 2009 when BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). (See MAR 04/09) Both phases of the operation followed an investigation launched by the Border Police in September 2008 into human smuggling of Turkish citizens through BiH. Based on gathered information, the Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April 2009, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence.40

- Arrest of well known organized crime figure - On 29 July, based on the request issued by the MoI Canton 9 (Sarajevo), Eastern Sarajevo Support Unit officers together with PS Eastern Sarajevo arrested a well-known criminal. He is alleged of being involved in a recent hijacking and attempted extortion of a vehicle owner in Canton 9. During the search of his apartment, police recovered evidence which prove that extortion calls were made from his telephone number. EUPM Comment: Once again this arrest is an example of the growing levels of co-operation and co-ordination between the two LEAs, MOI Canton Sarajevo and PSC Eastern Sarajevo. EUPM will continue to closely monitoring this activity. More reports will be followed up and reported. These joined actions already have influenced the media and the public.41

- Significant quantity of marijuana seized in Border Police Trebinje area - On 29 July, BPU Trebinje officers found approx. 40 kilograms of marijuana divided in to 40 packages left off the road nearby the Deleusa border crossing. With the approval of the BiH Prosecutor‟s Office, PSC Trebinje and BPU Trebinje officers set up an ambush which was terminated the following day, as no person came to collect the drugs. There are indications that the marijuana was transported by foot from Montenegro. The investigation is ongoing.42

- A particular complex case needs to be highlighted. The investigation led to arrests of regional significance. A high level organized crime network, suspected of being responsible for a series of murders, including that of police chiefs, dating back to the 1990s, is at the verge of being properly dismantled. One of the feuding gang leaders was arrested early this year for one of the murders in Germany and extradited. Thanks to covert investigations led by prosecutors from Serbia and Bosnia and Herzegovina, several arrests were carried out in September, including the second gang leader who was arrested in Serbia. This has created momentum to solve the remaining murder cases. The matter will be reported in future as it progresses. However, already at this stage, the investigation has to be considered another major achievement in creating a track record in the fight against organized crime achieved by international police and judicial cooperation. Operational results have been achieved by state level agencies and police services at other levels and increasingly in cooperation with their peers elsewhere in Europe. Particularly noteworthy are the arrests and trials of high-profile individuals and their accomplices from both entities and neighboring countries, previously perceived as “untouchables”. Such operations and trials have sent a message to the

40 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09 41 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09 42 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09 56

public that law enforcement agencies and the judiciary are committed and prepared to address crime and corruption in a proactive and robust manner. Achievements were possible thanks to professional international police cooperation and an unprecedented legal assistance in criminal matters.43

For additional information please see Bosnia and Herzegovina Chief Prosecutor Report (Annex 10) part 3.

 Measures taken to improve international cooperation, including with Europol

The Law Enforcement Agencies of Bosnia and Herzegovina have actively been taking measures to improve international cooperation including cooperation with Europol, Interpol, SECI Center, cooperation based on Southeastern Europe Police Cooperation Convention and on bilateral agreements on police cooperation.

1. Cooperation with EUROPOL

Strategic Agreement on Cooperation between BIH Ministry of Security and the EUROPOL was signed on 26 January 2007. This agreement is being continuously and actively implemented. In February, 2008, the GAP Questionnaire was filled-in and submitted to the EUROPOL in order to define the Road Map. The Road Map mentioned defines the activities that yet have to be implemented on the objective of signing Operative Agreement with the EUROPOL. Last, revised, version of the GAP Questionnaire was submitted to the EUROPOL in June of 2009. At the beginning of March 2009, in order to begin with negotiations on signing the Operative Agreement, the EUROPOL delivered a questionnaire that concerns data protection. Beside the above mentioned we need to admonish that Agency for Law enforcement in BIH exchanges strategic information with EUROPOL. Among the information being subject to the exchange, the information needed for strategic report named OCTA (Organized Crime Threat Assessment) is being delivered too. Memorandum of Understanding on establishment of security communication link between BIH and EUROPOL has been signed in March of 2009. Completion of establishing the security communication link is expected in coming weeks when EUROPOL experts install necessary equipment. In April of 2009 there was a workshop targeting police agencies, BIH Public Prosecutors Office, BIH Intelligence and Security Affairs Agency, and representatives from Department for Indirect Taxation was conducted by EUROPOL. One of the purposes of the workshop was to discuss the GAP Questionnaire. The preparations for implementation of Awareness seminar on EUROPOL are in progress.

2. Cooperation with INTERPOL

The CNB INTERPOL Sarajevo implements police operative, legal, and other expert works that relates to establishing of cooperation with crime-police forces, judiciary, and other organs within an arena of combating all types and forms of criminal, especially in field of conducts against life and bodily integrity, dignity of person and the moral, conducts against property, conducts against the Economy, terrorism acts and war crimes, and other types of international crimes, and is the only

43 Monthly Report – September 2009Reporting Period: 1 – 30 September2009Monthly Report # 09/09

institution for operative police international cooperation. (The cooperation with the SECI and the EUROPOL is also implemented through CNB INTERPOL Sarajevo.) CNB INTERPOL Sarajevo administers expansion of communication network and enables the access for BIH Law enforcement services (i.e. providing them an access to databases on stolen vehicles, persons that are warrant-tagged/wanted; administrative documents reported stolen) which resulted in, for example in cooperation with IDDEEA, a significant increase of stolen vehicles detection achieved in BIH within process of registration. CNB INTERPOL Sarajevo was rewarded with very high marks by the INTERPOL General Secretariat All these activities have caused increase in volume of works which, in current situation, demands increase in number of employees along with bracing technical equipment. In regards to the above said we expect its implementation after integration of the CNB INTERPOL Sarajevo in to Direction for Police coordination after the later gets established.

3. SECI Centre (Centre for combating transnational criminal in SEE region)

BIH Ministry of Security and Agencies for law enforcement in BIH has achieved operative and strategic cooperation with SECI Centre (Centre for combating transnational criminal in SEE region) via Bosnia and Herzegovina Liaison Officer sited in Bucharest. Throughout year of 2008, within the above mentioned cooperation, a total of 6 trainings were implemented on the following subjects: Illegal trafficking in drugs; Falsification, and credit cards frauds; Undisclosed investigator/agent and undisclosed tracking/surveillance; Organised crimes and trafficking in humans; and Thefts of antiques, and works of art.

4. Convention on South-East Europe Law Enforcement Centre SELEC

SELEC Convention text proposal was adapted at the 13th Meeting of SELECT Expert Working Group, held during 6-10 July, 2009 in Constanca, Romania, and approved by the Joint Cooperation Committee held on 10 September, in Thessalonica. The representatives of BIH Ministry of Security participated to the work of the Expert Working Group and Joint Cooperation Committee.

5. Convention on Police Cooperation in countries in SEE

BiH is signatory to Convention on Police Cooperation in countries of South-East Europe. Among other signatories are: Albania, Bulgaria, Moldova, Romania, Macedonia, Serbia, and Montenegro. For the sake of better implementation of the Convention working groups have been established for police cooperation, integrated border management, and expert working group. So far, most of the activities on implementation of the Convention were done by BIH Border Police (in course of duty, since our neighbouring countries: Montenegro, and Serbia are also signatories to implementation Protocols to the Convention). In order to implement the Convention following protocols have been signed: - Protocol on performance of joint patrols alongside mutual state border- signed between BIH Ministry of Security and Ministry of Internal Affairs and Public Administration of Montenegro; - Protocol on Performance of joint patrols alongside mutual state border between BIH Ministry of Security and Republic of Serbia Ministry of Interior; - Agreement on Execution of border controls on mutual border crossings between Council of Ministers of Bosnia and Herzegovina and the Government of Montenegro; - Protocol on Implementation of regular meetings of Border Police representatives at state, regional, and local level between Ministry of Security of Bosnia and Herzegovina and Ministry of Interior of Republic of Serbia ; and

- Protocol on organizing and implementation of regular meetings of Border Police representatives at state, regional, and local level between Ministry of Security of Bosnia and Herzegovina and Ministry of Internal Affairs and Public Administration of Montenegro.

These protocols are implemented continuously and the results of the cooperation are visible. Currently, the works on developing drafts for implementation protocols to the Convention concerning police cooperation and other fields as defined by the Convention are in progress.

6. Bilateral agreement on police cooperation

In field of police cooperation with EU Countries Bosnia and Herzegovina is a signatory of bilateral agreements with: Hungary, Greece, Italy, Republic of Austria; Republic of Slovakia, Romania, Bulgaria, and Republic of Slovenia. Agreements are negotiated and are to be concluded with Spain and Poland.

Bellow are some examples of successful international cooperation based on above bases, recognized, as well, by the European Union Police Mission in Bosnia and Herzegovina in its Reports as follows.

- International cooperation against drug trafficking resulting in significant seizure of heroin - On 11 August, Federation BiH Police Administration conducted an operation in Tomislavgrad (Canton 10, Livno) and arrested a BiH citizen and a Croatian citizen. The cooperation was carried out upon a request made by the Croatian police who received information that the drug purchase would take place in Sarajevo (Canton 9). Acting immediately upon the received information, FMoI officers undertook all necessary measures and observed the purchase of the drugs in the Mercator shopping centre in Sarajevo. The suspects were followed from Sarajevo en route to Tomislavgrad where the vehicle was stopped. Based upon an order issued by the BiH State Prosecutor‟s Office, FMoI officers then searched the vehicle in which they found and seized 3,5 kg of heroin valued at about 60,000 Euro. The suspects were handed over to the State Prosecutor‟s Office for further proceedings and the BiH Court ordered one-month custody for both of them. The operation was well organized and carried out professionally. This operation shows once again that BiH is located on a transit route of the international trade in narcotics. Close cooperation of all relevant LEAs is highly needed. The prompt and professional work conducted by FBiH Police Administration was highly appreciated by the Croatian police and EUPM commends overall successful cooperation between the two police forces. 44

44 Monthly Report – August 2009 Reporting Period: 1 – 31 August 2009 Monthly Report # 08/08

Prijedor. Police simultaneously searched 12 locations (10 in Trebinje and 2 in Prijedor) to gather additional evidence. The operation was well organized and carried out professionally. The operation demonstrated the ability of the RS police to coordinate a large -scale investigation, liaise with different Cantons and RS departments/PSCs, liaise with international agencies, and achieve successful results.45

- Second phase of the operation „Tara‟ – On 15 July, based upon an order issued by the BiH State Prosecutor‟s Office, BiH Border Police (BP) assisted by various LEAs conducted the second phase of the operation “Tara” in Bijeljina, Gradacac, Samac and Domaljevac areas. During the operation, twelve persons suspected of human smuggling were arrested. During the searches, the police found and seized 1, 5 kg of cocaine valued at approximately 150,000 KM, 200 grams of heroin, approx. 1 kg of substance used for the production of drugs, 20 cell phones, 19 SIM cards and various other items. Thirty days detention has been ordered for four suspects. During the operation, one of the suspects armed with an automatic rifle succeeded to escape the police raid through the Drina River but he was arrested by the Serbian police authorities. This operation is the second phase of operation Tara that was conducted on 1 April 2009 when BiH Border Police (BP) assisted by MoI Canton 8 (Ljubuski) officers, arrested five persons in Canton 8 AoR suspected of human smuggling. Also, on 6 April, BiH Border Police arrested two main suspects in Sarajevo (Canton 9). (See MAR 04/09) Both phases of the operation followed an investigation launched by the Border Police in September 2008 into human smuggling of Turkish citizens through BiH. Based on gathered information, the Border Police invited Law Enforcement Agencies (LEAs) from the countries in the region to establish a joint operation named „Tara‟. On 1 April 2009, LEAs from BiH, Austria, Slovenia and Croatia started the operation in their countries and arrested 41 suspects in total. Prior to this operation all involved LEAs gathered and shared their intelligence.47

 Measures taken to implement the two police laws of 2008, in particular appointment of pending directors  On 26 February 2009, the Council of Ministers adopted a Decision on beginning the work and establishing the seats respectively of the Agency for Forensic Examinations and Expertise, the Agency for Education and Professional Upgrading of Personnel and the Agency for Support of Police Structure.

45 Monthly Report – February 2009 Reporting Period: 1 – 28 February 2009 Monthly Report # 02/09

46 Monthly Report – April 2009Reporting Period: 1 – 30 April 2009Monthly Report # 04/09

47 Monthly Report – July 2009Reporting Period: 1 – 31 July 2009Monthly Report # 07/09 60

At the same session the Council of Ministers also adopted a Decision for appointing the Director and the Deputy Directors of these institutions. This was the first breakthrough in the implementation phase since the adoption of the two Police Reform Laws (Law on Directorate for Coordination of Police Bodies and Agencies for Support of the Police Structure of BiH and Law on Independent and Supervisory Bodies of the Police Structure of BiH) on 14 May, 2008.  As part of the harmonization of legislation with the Police Reform Laws, BiH House of Representatives (HoR) on 1 April, 2009, adopted the Proposed Law on Amendments to the Law on Police Officials in the second reading, and the Proposed Law on Amendments to the Law on SIPA and the Proposed Law on Amendments to the Law on Border Police in the first reading. On 27 April, 2009 the House of Peoples (HoP) adopted Laws from the Police Reform (PR) Laws harmonization package. The Proposed Law on Changes and Amendments to the Law on Ministries and other Administration Bodies of BiH and the Proposed Law on Changes and Amendments to the Law on Police Officials of BiH were adopted in the second reading (procedure completed), while the Proposed Law on Changes and Amendments to the Law on State Investigation and Protection Agency (SIPA) and the Proposed Law on Changes and Amendments to the Law on Border Police were adopted in the first reading.

The Ad Hoc Commission interviewed 40 eligible candidates and agreed on a shortlist for the Independent Board and the Citizen Complaints Board to be forwarded to both BiH PA Houses for their adoption. The agreed list of candidates was considered by the House of Representatives on 22 July and by the House of Peoples on 23 July respectively. On 23 July 2009 the House of Peoples of the BiH Parliament has confirmed the list of candidates for the Independent Board (IB) and Public Complaints Board (PCB). This marks the completion of the appointment procedure for the two bodies.

 Adoption of the draft law on changes to the use of special investigative measures

Parliamentary Assembly of Bosnia and Herzegovina adopted Law on Amendments to the Criminal Procedure Code of Bosnia and Herzegovina in July, 2008 (Official Gazette No. 58/08). Amendment came into force on 29 July, 2008.

Peoples Assembly of Republika Srpska adopted Law on Amendments to the Criminal Procedure Code of Republika Srpska in December 2008, (Official Gazette of Republika Srpska No. 119/08). Amendments came into force on 26 December, 2008.

Assembly of Brčko District of Bosnia and Herzegovina adopted Law on Amendments to the Criminal Procedure Code of Brčko District in June 2009, (Official Gazette of Brčko Distrikct No. 17/09). Amendmets came into force on 27 June, 2009.

All above mentioned amendments to the criminal procedure codes extend the application of special investigative measures (surveillance and technical recording of telecommunications; access to the computer systems and computerized data processing; surveillance and technical recording of premises; covert following and technical recording of individuals and objects; use of undercover investigators; simulated purchase of certain objects and simulated bribery; supervised transport and delivery of objects) onto a wide range of criminal acts of crime and corruption.

Protection of personal data (benchmarks 33, 34)   Measures to make the Data Protection Agency fully operational  Measures taken to ensure the implementation of the rules for personal data protection

Agency for Protection of Personal Data of Bosnia and Herzegovina is fully operational. All necessary measures are taken to ensure the implementation of the rules for personal data protection as follows. - The Rulebook on the Procedure upon Objection filed by Data Holder with the Personal Data Protection Agency of Bosnia and Herzegovina is adopted and into force (“Official Journal of BiH” nº 51/09); - The Rulebook on Inspection Monitoring in the Field of Personal Data Protection is adopted and into force (“Official Journal of BiH” nº 51/09); - Council of Ministers adopted Rulebook on the Manner of Keeping Records on Collections of Personal Data. Rulebook is into force (“Official Journal of BiH” nº 52/09). - Council of Ministers adopted Rulebook on the Manner of Keeping and Special Measures for Personal Data Technical Protection. Rulebook is into force (“Official Journal of BiH” nº 67/09). - The Instruction on Check Methods Performed by the Agency prior to Establishing Data Registers is adopted; - Currently the Agency comprises 15 staff members: director, two assistant directors, a head of IT Sector, three senior advisors for Inspection Monitoring, one senior associate for objections, one senior advisor for Legal Affairs; one senior associate – Chief Accountant and five administrative staff members. According to the budget for this year, the Agency can engage one more civil servant and the procedure for recruitment of assistant director in the Sector for International Cooperation and Public Relations is underway. - In the previous period Agency started and completed its planned inspection monitoring activities in twelve following agencies: Ministry of Interior‟s Agency for Identification Documents, Evidence and Data Exchange of Sarajevo Canton, Zenica-Doboj Canton, Livno Canton, Srednja Bosna Canton, Podrinje Canton, Una-Sana Canton, Tuzla Canton and Posavina Canton, Republika Srpska Ministry of Interior, Brčko District Police and in Sub- department for Personal Documents of Brčko District Government. - The Agency acted upon objections and within the reporting period it completed procedures and made three decisions on blocking and erasure of personal data. In addition, the Agency initiated and completed one ex officio procedure. Currently three procedures are underway. - During the reporting period the Agency issued four opinions upon request of controller that related to processing and protection of personal data. - The budget was restructured thus providing BAM 70,000.00 for the purposes of establishment and functioning of “Central Register”. - The Agency has got its web site: www.azlp.gov.ba

BLOCK 4 External relations and fundamental rights

Citizens' rights including protection of minorities (benchmarks 38-42   Adoption of Anti-discrimination law

Parliamentary Assembly of Bosnia and Herzegovina has adopted Law on Prohibition of Discrimination on July 23 2009. Law has been published in Official Gazette 59/09 and came into force on August 6 2009.

Text of the Law is attached in the Annex 8.   Follow up to cases of discrimination and ethnically motivated incidents (police investigations, prosecution and court action)  Until the adoption of the Law on Prohibition of Discrimination in July 2009, Bosnia and Herzegovina did not have a formal system for collection of information related to the ethnically motivated incidents.

Ad hoc data through been collected;

Ministry of Interior of Republika of Srpska reported: - in 2008. there were 877 registered crimes against returnees (region of Banja Luka, Doboj, East Sarajevo and Trebinje) were reported. Out of this, 608 crimes were crimes against property, and out of those 386 were heavy robberies, 155 robberies, 48 damages of the others goods, 10 fraud and 9 armed robberies. There was also 1 murder of a returnee, 2 murder attempts, 7 severe physical harms, 33 physical harms, 2 cases of rape, 21 case of violence in family, 12 cases of provoking of common danger, 10 cases of safety violation and10 cases of cemetery vandalism.

- During 2008, 14 crimes of provoking national, racial and religious hate and intolerance were reported. The same number of crimes was reported in 2007, 17 in 2006, and 18 in 2005. - In the Beginning of 2007, crimes against returnees fall with 3%, which represents 7.8% out of total number of crimes. The positive trend has continued in 2008 when the number of crimes reported fall by 7,3% of total number of crimes.

There are mostly cases of damaging of sacral buildings- mosques and attacks on Islamic community on the territory of municipality of Banja Luka, Doboj, Trebinje, Pale, Zvornik, Vlasenica, Bratunac and Bijeljina, and catholic churches in Trn and East Sarajevo.

Prosecutor's offices reported: a) Prosecutor‟s office of East Sarajevo - In 2009, there was one case related to damage of a mosque reported. From 2003. to 2007, there were two convictions and one acquital for ethnically motivated crimes. b) Regional office of the Regional Prosecutor‟s Office of Republic of Serpska - 15 court trails for attacks on religious and sacral objects, and from those 13 attacks on mosques and two on catholic churches.

c) Prosecutor‟s office -Doboj 63

- Registered 5 crimes of provoking of national, racial and religious hate, in 1 investigation was stopped, in 3 there was no verdict and in one there was admonition measure. d) Prosecutor‟s office -Trebinje - registered 3 cases of provoking of national, racial and religious hate, in one case there were not enough evidence for starting prosecution, in second case there were stated strict supervision by parents measure, and in third case there was sentenced obligatory treatment in the psychiatric clinic. e) Republic Prosecutor‟s office - Banja Luka - In connection to crimes outlined in Criminal Law no. 390 RS :

In 2005, there were 2 convictions, in 2006, 11 convictions and 1 acquittal, in 2007, 2 convictions, and in 2008, 4 convictions. f) There is an ongoing investigation before Prosecutor‟s Office of Brcko District against a person who is suspected of committing a criminal act of causing nationally, racially or religiously-based hatred, dissention and intolerance, stated in Article 160 of the Criminal Code Brčko District of BiH, perpetrated through writing of insulting graffiti on the wall of a religious facility. It is evident that an indictment will be raised against one person in the upcoming period.

Prosecutor‟s Office of Bosnia and Herzegovina, Prosecutor‟s Office of Federation of Bosnia and Herzegovina, and Ministry of Interior of Federation B&H, didn‟t provide any information.

As a follow on the adoption of the Law against discrimination in Bosnia and Herzegovina in the upcoming, Ministry of human right and refugees shall make a methodology with the aim to follow and register all cases of discrimination, and annually report on ethnically motivated incidents to the Council of Ministers. It is predicted that first report will be made in first quarter of 2010, and first Initial report on human rights will be made by using new methodology in 2010.   Progress towards full functioning of the single Ombudsman Office

Information on the situation in the Institution of Human Rights Ombudsman for Bosnia and Herzegovina, which includes information on progress towards full functioning of the single Ombudsman Office, is attached in Annex 10.

ANNEX 1

Bosnia and Herzegovina Ministry of Security

______

Immigration Sector

BOSNIA AND HERZEGOVINA

MIGRATION PROFILE

Area: 51,129 km2

Total borders: 1,665 km

Total border crossings: 89

Sarajevo, August 2009

TABLE OF CONTENTS

I INTRODUCTION ...... 70 1. Data sources, collection methodolgy, categorization and processing ...... 71 2. Data availability and quality ...... 72 3. Harmonization with the EU Regulation 862/2007 ...... 73 4. Consultations completed ...... 74 II BOSNIA AND HERZEGOVINA MIGRATION PROFILE ...... 75 1. Visas ...... 75 1.1. Visas issued by diplomatic-consular representation offices of Bosnia and Herzegovina 75 1.2. Visas issued at border crossing points ...... 77 2. Denial of entry and illegal border crossings ...... 80 2.1. Denial of entry into Bosnia and Herzegovina ...... 80 2.2. Illegal border crossings ...... 84 3. Temporary and permanent residence of aliens ...... 87 3.1. Temporary residence ...... 87 3.2. Permanent residence ...... 93 4. Illegal migration and measures taken against aliens ...... 32 4.1. Residence cancellation ...... 33 4.2. Expulsion decisions...... 34 4.3. Placing aliens under supervision ...... 34 4.4. Forced removal of aliens from Bosnia and Herzegovina...... 35 5. Return of irregular migrants ...... 35 5.1. Voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina, with the IOM’s assistance ...... 36 5.2. Voluntary return of aliens from Bosnia and Herzegovina to their countries of origin with IOM’s assistance ...... 36 5.3. Admission and return on the basis of the readmission agreements ...... 40

1.1.1.1 5.3.1. Admission and return on the basis of the readmission agreement with the Republic of Croatia …………………………………………………………………………………………………………………………….... 39

1.1.1.2 5.3.2. Admission and return on the basis of other readmission agreements ……………………… 41 5.4. Voluntary return of aliens from Bosnia and Herzegovina ...... 43 6. International protection/asylum ...... 44 7. Work permits issued to aliens ...... 114 8. Obtaining the citizenship of Bosnia and Herzegovina ...... 51 9. Emigration from Bosnia and Herzegovina ...... 53 10. Immigration policy of Bosnia and Herzegovina: legal and institutional framework ..... 55 ANNEXES ......

Summary

Bosnia and Herzegovina’s Migration Profile was created in response to the need to establish: (1) a mechanism for collecting statistical data about migration and international protection: (2) a system for processing statistical data on migration; and (3) a system of timely, complete and accurate reporting on migration flows in Bosnia and Herzegovina. The purpose of this document is to provide the Council of Ministers of Bosnia and Herzegovina with insight into migration trends. The Migration Profile is also intended to assist the Ministry of Security in developing high quality migration policies and relevant regulations. This document also enables international organizations active in the field of migration to gain a deeper understanding of migration trends in Bosnia and Herzegovina.

The Bosnia and Herzegovina Migration Profile fulfills one of the “migration management” obligations from the Roadmap for Visa Liberalization, which was presented by the European Commission to the Bosnian- Herzegovinian government in June 2008. The Roadmap states that Bosnia and Herzegovina should “set up and start to apply a mechanism for the monitoring of migration flows, defining a regularly updated migration profile for Bosnia and Herzegovina, with data both on illegal and legal migration, and establishing bodies responsible for the collection and analysis of data on migration stocks and flows.”

While collecting data for the Bosnia and Herzegovina Migration Profile, temporary instruments for analysis of migration flows in Bosnia and Herzegovina were also established. The Ministry of Security's Immigration Sector developed a variety of tables for the various institutions and agencies charged with implementing the “Law on Movement and Stay of Aliens and Asylum in Bosnia and Herzegovina.” The tables include data on: countries of residence, birth and previous residence; sex and age; and other relevant information on procedures and decisions related to movement and stay of aliens and asylum in Bosnia and Herzegovina in 2007 and 2008.

The final Bosnia and Herzegovina Migration Profile includes data on emigration, diaspora remittances, foreigners who were granted Bosnian-Herzegovinian citizenship, working permits granted to foreigners, data relating to the voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina and, conversely, the voluntary return of foreigners from Bosnia and Herzegovina. The tables were designed in accordance with European and international standards, including the Regulation (EC) No. 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Protection, which requests that member states provide harmonized reporting on migratory flows and international protection.

Once data and reports from relevant institutions and agencies were obtained, a qualitative and quantitative analysis was performed for the period 2001 to 2008. Comparative indicators were calculated for all migration flows in 2007 and 2008. After this data was processed and analyzed, the Bosnia and Herzegovina Migration Profile was defined.

Migration Trends 1. Visas 1.1. Visas issued by diplomatic-consular representation offices In 2008, the diplomatic-consular representation offices of Bosnia and Herzegovina issued a total of 10,139 visas. With the exception of 2007, when there was an insignificant increase in the number of visas issued in comparison with previous years, there has been a consistent downward trend in the number of visas issued.

1.2. Visas issued at border crossing points

In 2008, 684 visas were issued at the border crossing points of Bosnia and Herzegovina. Since 2002 there has been a constant downward trend in the number of visas issued at the border crossing points of Bosnia and Herzegovina.

2. Denial of entry and illegal border crossings 2.1. Denial of entry into Bosnia and Herzegovina In 2008, there were 3,102 denied entries into Bosnia and Herzegovina by the Border Police of Bosnia and Herzegovina. This number represents a reduction by more than half as compared with the previous year. 2.2. Illegal border crossings In 2008, a total of 543 individuals were caught while trying to cross the border of Bosnia and Herzegovina illegally. This number represents a reduction of 36.19% when compared with 2007.

3. Temporary and permanent residence of aliens 3.1. Temporary residence In 2008, temporary residence was granted to 5,971 individuals. There has been a consistent upward trend in the number of temporary residence permits issued since 2002. 3.2. Permanent residence In 2008, permanent residence was granted to 215 individuals. In looking at data on residence permits issued since 2001, 2003 represents a peak year for the number of permanent residence permits issued.

4. Illegal migration and measures taken against aliens 4.1. Residence cancellation In 2008, 516 residence permits were cancelled, representing an increase of 107% as compared to 2007. 4.2. Expulsions decisions In 2008, 787 decisions on expulsion were issued, representing a reduction of 4% as compared to 2007. 4.3. Placing of aliens under supervision Since the establishment of the Immigration Centre in 2008, a total of 198 aliens have been placed under supervision. 4.4. Forced removal of aliens from Bosnia and Herzegovina In 2008, 172 aliens were removed from Bosnia and Herzegovina, representing an increase of 129% as compared to 2007.

5. Irregular migrant return 5.1. Voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina, with the IOM’s assistance In 2008, 16 citizens of Bosnia and Herzegovina returned, with IOM assistance, to Bosnia and Herzegovina voluntarily. From 2001 to 2008 a total of 4,259 citizens of Bosnia and Herzegovina were returned with IOM assistance. 5.2. Voluntary return of aliens from Bosnia and Herzegovina to their countries of origin with IOM’s assistance In 2008, 28 aliens were voluntarily returned, with IOM assistance, from Bosnia and Herzegovina to their countries of origin. From 2001 to 2008 a total of 1,291 aliens were voluntarily returned to their countries of origin with IOM assistance.

5.3. Admission and return on the basis of readmission agreements In 2008, pursuant to the readmission agreement with the Republic of Croatia, 248 third-country citizens were admitted to Bosnia and Herzegovina, representing a 3% increase as compared to 2007.

6. International protection/asylum In 2008, international protection/asylum was requested by 95 individuals. From 2001 to 2008 a total of 3,238 individuals requested international protection/asylum from Bosnia and Herzegovina. 68

7. Work permits issued to aliens In 2008, 2,993 work permits were issued to aliens, representing an increase of 11% as compared to 2007.

8. Obtaining the citizenship of Bosnia and Herzegovina In 2008, 1,159 individuals obtained the citizenship of Bosnia and Herzegovina. The majority of granted citizenship requests were from citizens of Serbia and Croatia.

9. Emigration from Bosnia and Herzegovina In 2006 there were an estimated 1,350,000 emigrants from Bosnia and Herzegovina. It is assumed that there were no significant changes in Bosnian-Herzigovinian emigration rates in 2007 and 2008.

With a view to setting up and applying mechanisms for the monitoring of migration flows and annual updating of Bosnia and Herzegovina Migration Profile, the instruments for collection and exchange of statistical data should be formally defined through a Decision of the Council of Ministers, which will charge the competent institutions and agencies with forwarding data in line with the parameters needed for the completion of the migration profile and monitoring of migration flows of Bosnia and Herzegovina.

2 I INTRODUCTION

The Road Map for Visa Liberalization, which was presented by the European Commission to the government of Bosnia and Herzegovina in June 2008, states that Bosnia and Herzegovina should:

“set up and start to apply a mechanism for monitoring migration flows, define a regularly updated migration profile for Bosnia and Herzegovina, with data both on illegal and legal migration, and establish bodies responsible for collection and analysis of data on migration stocks and flows.”

In January 2009, in order to meet the Road Map for Visa Liberalization, the Ministry of Security's Immigration Sector, in cooperation with a project of technical support of the UK Government, conducted an analysis of the measures necessary to monitor migration flows and define a migration profile.48

The January 2009 analysis included overviews of the legislative, institutional and organizational frameworks for the collection of statistical data on migration in Bosnia and Herzegovina, as well as an overview of European and international standards and practices in the field of migration statistics. Various recommendations were made on the basis of these comprehensive information and Action Plan Measures were proposed to implement these recommendations. Adopting of these Action Plan Measures will result in Bosnia and Herzegovina meeting the obligations of the Road Map for Visa Liberalization, which requires that mechanisms be established to monitor migration flows, and that a regularly updated migration profile for Bosnia and Herzegovina be defined, with data on both illegal and legal migration.

Included in the January 2009 analysis was the recommendation that the government of Bosnia and Herzegovina, in order to meet the obligations of the Road Map for Visa Liberalization: "Establish a department within the Ministry of Security’s Immigration Sector for analysis and strategic planning in the field of migration, where migration statistics shall be compiled, statistical data processed, and reports created for various purposes.”49 This department was slated to be tasked with defining a regularly updated migration profile for Bosnia and Herzegovina, which includes data on both illegal and legal migration. In order to define the Bosnia and Herzegovina Migration Profile, the required statistical data was collected. However, the foundations for regular updating of the profile will be laid by establishing mechanisms for monitoring migration flows, as outlined in the Road Map for Visa Liberalization.

Definition of the Migration Profile will be the task of the proposed Department for Analysis and Strategic Planning in the Field of Migration within the Ministry of Security’s Immigration Sector. However, the proposed department was not operational during the creation of the Migration Profile. Despite this obstacle, the Ministry of Security’s Immigration Sector coordinated all relevant institutions, organizations and agencies necessary to collect data and prepare the Migration Profile as required by the Road Map for Visa Liberalization.

While collecting the data necessary to define the Bosnia and Herzegovina Migration Profile, temporary instruments to analyze migration flows in Bosnia and Herzegovina were also established. The Ministry of Security's Immigration Sector developed a variety of tables for various institutions and agencies charged with the implementation of the “Law on Movement and Stay of Aliens and Asylum in Bosnia and Herzegovina.” The tables include data on: countries of residence, birth, previous residence, sex and age, and other relevant information about procedures and decisions related to movement and stay of aliens and asylees in Bosnia and Herzegovina in 2007 and 2008.

48 Ministry of Security, “Analysis of measures necessary for setting up mechanisms for monitoring of the migration flows and defining of a Bosnia and Herzegovina Migration Profile,” Sarajevo, January 2009. 49 Ministry of Security, “Analysis of measures necessary for setting up mechanisms for monitoring of the migration flows and defining of a Bosnia and Herzegovina Migration Profile,” Sarajevo, January 2009, p. 6. 70

The final Bosnia and Herzegovina Migration Profile includes data on emigration, diaspora remittances, foreigners who were granted Bosnian-Herzegovinian citizenship, working permits granted to foreigners, voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina and voluntary return of foreigners from Bosnia and Herzegovina. The tables were designed in accordance to European and international standards, including the Regulation (EC) No. 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Protection, which requests that member states provide harmonized reporting on migratory flows and international protection.

In order to establish and apply mechanisms monitoring migration and to annually update the Bosnia and Herzegovina Migration Profile, instruments for the collection and exchange of statistical data need to be formally defined through a Decision of the Council of Ministers. Such a decision should charge the relevant institutions and agencies with providing data according to the parameters necessary to complete the migration profile and monitor migration flows in Bosnia and Herzegovina.

2.1 1. Data sources and collection methodology, categorization and processing

The January 2009 migration analysis outlined data sources and collection methods necessary to establish mechanisms to monitor migration flows and define a Bosnia and Herzegovina migration profile. The following institutions, organizations and agencies were designated as sources of information by the January 2009 migration analysis:

 Ministry of Foreign Affairs: data on visas;  Bosnia and Herzegovina Border Police: data on denial of entry to foreigners and visas issued at border crossing points;  Service for Foreigners’ Affairs: data on stays of foreigners in Bosnia and Herzegovina and measures taken against foreigners in Bosnia and Herzegovina;  Ministry of Security – Asylum Sector: international protection;  Ministry of Civil Affairs: Bosnian-Herzegovinian citizenship;  Ministry for Human Rights and Refugees – Emigration Sector: emigration of Bosnian-Herzegovinian citizens;  Work and Employment Agency of Bosnia and Herzegovina: work permits for aliens in Bosnia and Herzegovina;  International Organization for Migration (IOM): repatriation of citizens of Bosnia and Herzegovina and foreigners from Bosnia and Herzegovina through the assisted voluntary return program;  United Nations High Commissioner for Refugees (UNHCR): asylum applications in Bosnia and Herzegovina until 30 June 2004, when the procedure was taken over by the relevant authorities of Bosnia and Herzegovina.

In order to collect data for the Bosnia and Herzegovina Migration Profile, a variety of tables were developed for the institutions and agencies that are charged with implementing the “Law on Movement and Stay of Aliens and Asylum in Bosnia and Herzegovina.” The tables include: data on countries of residence, birth and previous residence; sex and age; and other relevant information about procedures and decisions related to movement and stay of aliens and asylees in Bosnia and Herzegovina in 2007 and 2008. Tables were also used as a means of establishing a mechanism to monitor migration flows and define the Bosnia and Herzegovina Migration Profile. The tables were designed to contain data on emigration, the voluntary return of citizens of Bosnia and Herzegovina, and about work permits granted to foreign nationals in Bosnia and Herzegovina. They were designed in accordance to European and international standards, including the Regulation (EC) No. 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Protection, which requests that member states 71

provide harmonized reporting on migratory flows and international protection, pursuant to the models of UN and IOM migration profiles.

Pursuant to Regulation (EC) No. 862/2007, the tables were delivered to relevant authorities responsible for migration and international protection in Bosnia and Herzegovina. The tables contained the following data categories:

 citizenship  country of birth  country of previous residence  sex  age  borders types for certain procedures  visa types  types of requests in procedures relating to foreigners in Bosnia and Herzegovina  types of decisions in procedures relating to foreigners in Bosnia and Herzegovina  reasons/grounds for certain decisions in procedures relating to foreigners in Bosnia and Herzegovina  unaccompanied minors  foreigners' employment qualifications  country of destination (for emigrants and returnees)

After receiving the filled-in tables and annual reports from relevant institutions and agencies, a qualitative and quantitative analysis of their data was performed. Both the qualitative and quantitative analyses of the data were performed for the period covering 2001 to 2008. However, comparative indicators were calculated for all migration flows only during 2007 and 2008. After all the available data was processed and analyzed, the Bosnia and Herzegovina Migration Profile was defined.

2.2 2. Data availability and quality

The data analysis led to several conclusions on data availability and quality. Most institutions, organizations and agencies managed to deliver the requested data before the given deadline.

The analysis showed that most authorities have detailed records on foreigners and procedures related to foreigners in Bosnia and Herzegovina. However, it was also clear that the records are not adjusted to as required by European standards. Hence, authorities were not able to obtain the requested data from their records in a timely and speedy manner to include them in the delivered tables. They most often had to calculate the data and fill in the tables manually. Most of the authorities were able to deliver the required data, arranged by the country of origin (birth), age and sex. Not a single institution was able to meet the requirement of delivering the data arranged by the countries of previous residence, which is a new requirement for institutions in Bosnia and Herzegovina that stems from the Regulation (EC) No. 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Pprotection.

Data on work permits issued to foreigners is also incomplete, because although the Work and Employment Agency of Bosnia and Herzegovina delivered the consolidated information from the relevant institutions of both entities and the District Brcko disaggregated by the workers' countries of origin and qualifications, there was no data delivered on the age and sex of workers or jobs they perform. Additionally, the Ministry of Civil Affairs does not have information about persons who obtained the citizenship of Bosnia and Herzegovina through naturalization, treaties or some other way. Because of this gap in citizenship data, the

data on citizenship delivered by entity ministries - the Ministry of Interior of the Federation of Bosnia and Herzegovina and the Ministry of Administration and Local Government of Republika Srpska - was consolidated.

Additional reasons for such data availability lie in the total lack of consolidation of data obtained from entity institutions and the District Brcko, by state-level institutions (e.g. Ministry of Civil Affairs of Bosnia and Herzegovina with regards to acquired citizenship of Bosnia and Herzegovina and Work and Employment Agency of Bosnia and Herzegovina with regards to work permits issued to foreigners).

The data on Bosnian-Herzegovinian emigrants is not disaggregated by sex or age because no entity or state level institution is in the possession of such data. In addition, no entity or state level institution has mechanisms for collecting data on Bosnian-Herzegovinian emigrants. Data delivered on emigrant’s sex and age is not official. According to the Ministry of Human Rights and Refugees, this data is based on estimates made in the Diplomatic-Consular Representation offices of Bosnia and Herzegovina abroad. The lack of coordination was also evident in the relationship between the Emigration Sector of the Ministry for Human Rights and Refugees of Bosnia and Herzegovina and the Ministry of Foreign Affairs of Bosnia and Herzegovina (i.e. gaps in data collection by the consulates and embassies of Bosnia and Herzegovina on citizens of Bosnia and Herzegovina living abroad exist).

Despite shortcomings in terms of the completeness of delivered data, the quality of the delivered data was satisfactory. The data that was delivered on the basis of the pre-designed tables, the annual activity reports of the Service for Foreigners' Affairs and the Bosnia and Herzegovina Border Police and the analysis performed by the Emigration Sector of the Ministry for Human Rights and Refugees of Bosnia and Herzegovina, provided a satisfactory basis for the analysis of migration flows and defining of the Bosnia and Herzegovina Migration Profile.

2.3 3. Harmonization with the EU Regulation 862/2007

Regulation (EC) No 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Protection provided the framework for establishing a European standard for collecting statistical data on migration and international protection. Pursuant to the Regulation, which states that the first reference year for collecting data shall be 2008, EU member countries must supply the relevant statistics to Eurostat. The Regulation provides basic definitions of terms and procedures related to migration and international protection. However, for the first reference year, the Regulation stipulates that the statistics supplied to Eurostat may be based on alternative (national) definitions. In such cases, Member States must to notify Eurostat of these alternative definitions.

Although a detailed survey was conducted, no forms were created for collecting relevant data, as required by Eurostat pursuant to Regulation 862/2007. Hence, the tables that were designed using Bosnia and Herzegovina’s methodology for collecting migration statistic were compatible with the principles of the Regulation 862/2007. Tables were not designed according to technical details of the Regulation 862/2007 because, on the basis of available information, they have not yet been either defined or published by Eurostat.

Bearing in mind that the "Analysis of Measures Necessary for Establishing Mechanisms to Monitor Migration Flows and Define a Bosnia and Herzegovina Migration Profile" already contains a detailed analysis of Regulation 862/2007, some practical recommendations were given for the harmonization of Bosnian-Herzegovinian legal framework with the Regulation which have been used in the newly written Rulebook on the Centralized Database on Foreigners. Hence, the Bosnian-Herzegovinian legal framework for recording migration statistics can be viewed as harmonized with the principles of Regulation 862/2007.

2.4 4. Consultations completed

The draft of Bosnia and Herzegovina Migration Profile was delivered to all institutions, organizations and agencies that participated in its definition by delivering relevant data. The goal of providing the draft Migration Profile was to receive opinions, remarks and suggestions. After all the opinions, remarks and suggestions were obtained, the proposal of the Bosnia and Herzegovina Migration Profile was completed.

The proposed Bosnia and Herzegovina Migration Profile was forwarded to the minister of the Ministry of Security for approval and then sent to the Council of Ministers of Bosnia and Herzegovina for adoption.

3 II BOSNIA AND HERZEGOVINA MIGRATION PROFILE

3.1 1. Visas

A visa is a permit that allows an alien to cross the state border and either enables him/her to enter and stay in the country for the period specified in the visa or transit through the country. An alien has the obligation to obtain visa before arriving at a border crossing point, unless he/she is a citizen of a country whose nationals do not need a visa for entering Bosnia and Herzegovina. Visas are issued by the Ministry of Foreign Affairs through its Diplomatic-Consular Representation offices (hereinafter referred to as: DKP B&H). In exceptional cases that are regulated by the Law on Movement and Stay of Aliens and Asylum (hereinafter referred to as: the Law) a visa can be issued at the border crossing by the Bosnia and Herzegovina Border Police.

3.1.1 1.1. Visas issued by diplomatic-consular representation offices of Bosnia and Herzegovina

3.1.1.1.1 On the basis of the information obtained from the Ministry of Foreign Affairs, we provide both tabulated and graphical overviews of the number of visas issued annually, along with a short analysis of the visa trends.

Table 1 - Visas Issued from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Visas 23,458 21,978 17,411 15,638 14,801 11,960 12,071 10,139

Graphic Overview of Visas Issued from 2001 to 2008

An analysis of data on the number of visas issued for the reporting period by the DKP B&H shows a continued decrease in the number of visas issued, with a sharp decrease between 2002 and 2003, which was the result of the introduction of visa stickers in May 2002. There was also a significant decrease in visas issued between 2005 and 2006 as the result of accession to EU of the following countries: the Czech Republic, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (1 May 2004).

The citizens of the newly admitted EU countries, with the exception of Slovenia50, were exempt from obtaining a visa for Bosnia and Herzegovina following the Decision of the Council of Ministers of Bosnia and Herzegovina51, which came into force on 21 July 2005. A significant decrease in the number of visas issued in 2008 as compared to 2007 is the result of the accession to the EU of Romania and Bulgaria (1 January 2007), with the citizens of those countries being exempt from obtaining visas for Bosnia and Herzegovina following the Decision of the Council of Ministers of Bosnia and Herzegovina52, which came into force on 28 June 2007.

In order to define current problems in visa issuance, we present comparative indicators on the number of visas issued during 2007 and 2008 for those countries whose citizens were granted the majority of the visas for Bosnia and Herzegovina, along with a short analysis of the relevant parameters.

Table 2 - Visas Issued in 2007 and 2008 Disaggregated by Country No Country 2007 2008 % No Country 2007 2008 % 1. Albania 2,360 1,638 -30.59% 9. Mexico 205 488 138.05% 2. Lebanon 1,205 1,786 48.22% 10. Egypt 392 225 -42.60% 3. Belarus 918 900 -1.96% 11. Bulgaria 490 122 -75.10% 4. Ukraine 615 921 49.76% 12. China 393 211 -46.31% 5. Brazil 590 213 -63.90% 13. Iran 307 250 -18.57% 6. Romania 720 6 -99.17% 14. Argentina 298 209 -29.87% 7. India 498 212 -57.43% 15 Indonesia 203 264 30.05% Other 8. Serbia 302 402 33.11% 16 2,575 2,292 -10.99% Countries Total 12,071 10,139 -16.01%

Visas Issued in 2007 and 2008 Disaggregated by Country

50 Citizens of Slovenia did not need a visa to enter Bosnia and Herzegovina. 51 Decision on amendments to the Decision on determining the countries whose citizens are exempt from the visa regime when entering, exiting, or transiting the territory of Bosnia and Herzegovina ("B&H Official Gazette" no. 57/05) 52 Decision on amendments to the Decision on determining the countries whose citizens are exempt from the visa regime when entering, exiting, or transiting the territory of Bosnia and Herzegovina (“B&H Official Gazette” No. 8/08) 76

An analysis of data on visas issued in the consulates and embassies of Bosnia and Herzegovina in 2008, when compared to 2007 and disaggregated by countries whose citizens were granted greatest number of visas, shows that there is a decrease in the number if visas issued. This decrease is not only the case for Romania and Bulgaria, whose citizens are not required to obtain visas for Bosnia and Herzegovina, but is also the case for the majority of analyzed countries. This trend can be attributed to legislative changes in the visa issuance system because the Law, which came into force in May 2008, enables issuing of short- term visas (Visa-C) and long-term visas (Visa-D). Short-term visas allow aliens to have a single r multiple stays in the country, provided that they do not stay continuously stay. The total duration of several consecutive stays under short-term visas may last for no more than 90 days per six month period. In contrast, long-term visas enable an alien to enter and stay in Bosnia and Herzegovina for up to six months, commencing from the date of the the aliens’ first entry. Long-term visas are issued for a single or multiple entries into Bosnia and Herzegovina. A significant increase in the number of visas issued in 2008, as compared to 2007, was recorded for citizens of Mexico and Lebanon, who come to Bosnia and Herzegovina for religious tours and vacations. Visas issues to citizens of Serbia relate to bearers of UNMIK passports. According to the data obtained from the Ministry of Foreign Affairs, there is also a small percentage of denied requests for visas. Of 22,269 requests for visas submitted in 2007 and 2008, 59 requests were refused, the majority of which came from Cuba and China (25 each).

3.1.2 1.2. Visas issued at border crossings

The Law on Movement and Stay of Aliens and Asylum, in exceptional cases, allows the Bosnia and Herzegovina Border Police to issue visas in certain cases (Article 36). Under the previous law a similar possibility existed in the use of the Visa-F category (i.e. visas issued at the border). The new Law, which was adopted in May 2008, does not contain a Visa-F category, and instead prescribes that the Bosnia and Herzegovina Border Police, when issuing visas at border crossings, must adhere to the new categorization of visas and issue only Visas A (i.e. airport transit visa), B (i.e. transit visa) or C (i.e. short-term stay visa for one entry of up to 15 days).

Table 3 - Visas Issued from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Visas 3,706 4,853 4,327 5,641 2,049 927 735 684

Graphic Overview of Visas Issued from 2001 to 2008

An analysis of data on the number of visas issued at border crossing points shows a significant decrease in the number of visas issued from 2004 onwards. This decrease leads suggests that the goal of reducing the number of visas issued at border crossing points is being met. This achievement stems from the development of a network of consulates and embassies abroad and a legal framework that prescribes that visas can be issued at border crossing points only in exceptional situations stipulated by the Law and consistent with enforcement of the Law.

In order to present a comparative overview of visa issuance in Bosnia and Herzegovina, data on the number of visas issued to those countries whose citizens received the most visas is presented for 2007 and 2008. This data is followed by a short analysis of the relevant parameters that takes into account legislative changes that may have affected the data.

Table 4 - Visas Issued at Border Crossings in 2007 and 2008 Disaggregated by Country No Country 2007 2008 % No Country 2007 2008 % 1. Albania 134 94 -29.85% 9. Brazil 23 28 21.74% 2. Ukraine 67 74 10.45% 10. Romania 46 0 / 3. Moldova 83 54 -34.94% 11. Serbia 33 10 -69.70% 4. Azerbaijan 37 37 0.00% 12. Belarus 7 29 314.29% 5. Armenia 16 51 218.75% 13. Mexico 18 18 0.00% 6. Kazakhstan 23 34 47.83% 14. Colombia 6 22 266.67% 7. Tunisia 31 24 -22.58% 15 Chile 2 24 1,100.00% Other 8. Georgia 23 30 30.43% 16 186 155 -16.67% Countries Total 735 684 -6.94% Graphic Overview Visas Issued in 2007 and 2008 Disaggregated by Country

During 2007, the Bosnia and Herzegovina Border Police issued a total of 735 visas at border crossing points. All visas issued at border crossing points in 2007 were type F visas. During 2008, when changes were introduced to visa legislation, 408 Visa-Fs 276 Visa-Cs were issued at border crossing points, for a total of 684 visas issued at border crossing points. Bearing mind the principle that visas issued at border crossing points should be reduced, Bosnia and Herzegovina can report that there was a definitive decrease (6.94%) in the number of visas issued in 2008, when compared with 2007. 78

The previous two years showed that the majority of visas issued at border crossing points were issued to foreign nationals coming from Albania, Moldova, Ukraine, Armenia and Azerbaijan. The data shows that more visas were issued to men than women and that, for both sexes, the majority of visas were issued to individuals between 18 and 59 years old, with a similar distribution for 18 to 35 year olds and 36 to 59 year olds.

Table 5 - Visas Issued in 2007 at Border Crossing Points Disaggregated by Age, Sex and Nationality Other Countries Albania Moldova Ukraine Romania Azerbaijan Total (out of 66) 0-17 0 0 0 0 0 5 5 18-35 28 19 7 9 5 50 118 36-59 12 15 11 5 3 53 99 60+ 0 0 0 0 0 8 8 Total 40 34 18 14 8 116 230 Females 0-17 0 0 0 0 0 4 4 18-35 61 27 6 21 22 99 236 36-59 33 22 42 11 7 139 254 60+ 0 0 1 0 0 10 11 Total Males 94 49 49 32 29 252 505 Total by 134 83 67 46 37 368 735 Nationality

Graphic Overviews of Visas Issued at Border Crossing Points in 2007 Disaggregated by Age and Sex

Table 6 - Visas Issued in 2008 at Border Crossing Points Disaggregated by Age, Sex and Nationality Other Albania Tunisia Mexico Armenia Azerbaijan Countries Total (out of 58) 0-17 0 0 1 2 0 15 18 18-35 20 0 2 6 10 56 94 36-59 20 1 3 3 2 54 83 60+ 0 0 0 0 2 9 11 Total Females 40 1 6 11 14 134 206 0-17 0 0 0 0 12 29 41 18-35 23 17 6 26 9 119 200 36-59 31 6 6 14 2 142 201 79

60+ 0 0 0 0 0 36 36 Total Males 54 23 12 40 23 326 478 Total by 94 24 18 51 37 460 684 Nationality

Graphic Overviews of Visas Issued at Border Crossing Points in 2008 Disaggregated by Age and Sex

3.2 2. Denial of entry and illegal border crossings

Aliens are denied entry by the Bosnia and Herzegovina Border Police, pursuant to the Law when they attempt to illegally cross the Bosnian-Herzegovinian border and enter the country without meeting the entry requirements prescribed by the Law. After the denial of entry, the Bosnia and Herzegovina Border Police issue a decision on the refusal of entry pursuant to the regulations of the Law. A foreign national or a person with no citizenship can file a complaint against this decision with the Ministry of Security, but the lodging of the complaint itself does not give that person the right to enter Bosnia and Herzegovina.

An illegal border crossing occurs when a person is caught trying to cross the border of Bosnia and Herzegovina illegally, either entering or leaving the country, regardless of whether that person is a citizen of Bosnia and Herzegovina, a foreign national or a person with no citizenship.

3.2.1 2.1. Denial of entry into Bosnia and Herzegovina

3.2.1.1 A foreign national who does not meet the requirements for entering Bosnia and Herzegovina, nor international treaty or decision on entry in special circumstances apply to him/her, can be denied entry into Bosnia and Herzegovina on the strength of Article 19 of the Law on Movement and Stay of Aliens and Asylum.

Table 7 - Denied Entries at the Borders of Bosnia and Herzegovina from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Denied Entries 9,955 10,522 9,450 10,469 7,758 7,829 6,618 3,102

Graphic Overview of Denied Entries to Bosnia and Herzegovina from 2001 to 2008

An analysis of data on denied entries from 2001 to 2008 shows that after 2004, when there was a significant increase in the number of denied entries, there was a continuous decrease in the number of denied entries. The significant increase in 2004 followed by a sharp decrease in 2005, was mostly the result of the accession of ten (10) new member countries to the EU on 1 May 2004. Visas for the citizens of nine (9) of the ten (10) countries who previously needed visas for entry into Bosnia and Herzegovina were no longer required in 2005 (21 July 2005).

In order to give a comparative analysis of denied entries, data from 2007 and 2008 is presented for the 15 countries whose citizens received greatest number of denied entries into Bosnia and Herzegovina. This data is followed by a short analysis of the relevant parameters.

Table 8 - Denied Entries at Border Crossing Points in 2007 and 2008 Disaggregated by Country No Country 2007 2008 % No Country 2007 2008 % 1. Serbia 1,452 807 -44.42% 9. Romania 241 5 -97.93% 2. Croatia 1,479 732 -50.51% 10. Albania 102 83 -18.63% 3. Turkey 267 411 53.93% 11. Brazil 107 64 -40.19% 4. Montenegro 365 291 -20.27% 12. Argentina 125 41 -67.20% 5. Switzerland 440 186 -57.73% 13. Mexico 105 34 -67.62% 6. Slovenia 467 22 -95.29% 14. Italy 64 44 -31.25% 7. Bulgaria 275 3 -98.91% 15 Austria 61 40 -34.43% 8. Macedonia 176 73 -58.52% 16 OTHERS 892 266 -70.18% Total: 6,618 3,102 -53.13%

Graphic Overview of Denied Entries at Border Crossing Points in 2007 and 2008 Disaggregated by Country

There is a significant difference in the number of denied entries in 2008 as compared to 2007. This difference is a consequence of the abolition of visas for new EU members, Romania and Bulgaria. Citizens from these countries were previously denied entry to Bosnia and Herzegovina in large numbers. An additional reason for the significant reduction in the number of denied entries lays in the consistent application of the Law on Movement and Stay of Aliens and Asylum of Bosnia and Herzegovina by the Bosnia and Herzegovina Border Police.53

The majority of denied entries into Bosnia and Herzegovina come from neighboring countries and account for 55.96% of all denied entries. However, an analysis of comparative indicators for 2008 and 2007 shows a significant reduction in the in the mentioned parameters. Of the number of denied entry to Bosnia and Herzegovina for citizens of Serbia, 102 such cases in 2007 and 94 in 2008 were holders of UNMIK passports in. From a security standpoint it is important to note that the number of denied entries for Turkish citizens increased by 53.93% in 2008 as compared to 2007.54 During 2007, 6.618 foreign nationals were denied entry to Bosnia and Herzegovina; of that number, 6,262 persons were denied entry at land border crossings (3,995 persons were denied entry at the border with Croatia, 826 persons were denied entry at the border with Montenegro, and 1,441 persons were denied entry at the border with Serbia). An additional 356 persons were denied entry at airport border crossings. The reasons for denying entry to foreign nationals were: a.) failures to meet the general criteria for entry as prescribed by law (82%); b.) failure to present documents requested for entry, failure to explain circumstances for meeting the criteria for entry, or intentionally giving misleading information in order to fulfill the criteria for entry (8%); the existence of reasonable doubt that the stay would not be used for the said purpose (8%); or, reasonable doubt that a person would perform activities that require a work permit (2%). “Citizens of the Republic of Croatia, Republic of Slovenia and Switzerland are denied entries largely because they have no travel documents with them. Citizens of the Republic of Serbia and the Republic of Montenegro are denied entries on several grounds: a.) lack of possession of a valid travel document; b.) presentation of false data; and, c.) lack of possession of means of subsistence and work permit. Citizens of Romania and Bulgaria were largely denied entry because they lacked a visa (in the period before the abolition of visas came into force as a result of the Decision of the Council of Ministers on 28 June 2007). Citizens of the Republic of Turkey were largely denied entry because of they presented false data about their right of entry"55.

53 Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 8. 54 “2008 Activity Report of the B&H Border Police”. 55 BH Border Police, “2007 Activity Report of the B&H Border Police”, Sarajevo, January 2008, p. 6. 82

However, the number of denials of entries to Bosnia and Herzegovina was more than halved during 2008. A total of 3,102 persons were denied entry in 2008. Of that number, 2,844 persons were denied entry at the land border of Bosnia and Herzegovina (1,337 persons were denied entry at the border with Croatia, 1,101 persons were denied entry at the border with Montenegro, and 497 persons were denied entry at the border with Serbia). A further 258 persons were denied entry at airport border crossings. However, the countries of origin of the foreign nationals who were denied entry to Bosnia and Herzegovina remained largely the same, with the exception of new EU members. The reasons for denying entry to foreign nationals in 2008 were: a.) failure to meet the general criteria for entry as prescribed by law (70%); failure to present requested documents for entry, failure to explain circumstances for meeting the criteria for entry, or intentionally giving misleading information in order to fulfill the criteria for entry (21%); the existence of reasonable doubt that the stay would not be used for the said purpose (7%); and, the existence of reasonable doubt that a person would perform activities that require a work permit (2%) . In 2009, like in previous years, most denials of entry by the Border Police occurred at the land border (2,844 persons), while 258 persons were denied entry at the international airports. According to information from the Bosnia and Herzegovina Border Police "most denials of entry at international airports stem from the fact that individuals intentionally provided misleading data about their right to enter Bosnia and Herzegovina, while in all other Field Offices entry was most often denied because individuals did not possess a valid travel document.”56

“Citizens of the Republic of Croatia and of Montenegro are largely denied entry because they lack a valid travel document. Citizens of Serbia and Macedonia are most often denied entry on several grounds: a.) lack of a valid travel document; intentionally presenting false data; and, lack of sufficient means of subsistence. Citizens of Turkey were largely denied entry because they presented false data related to their right to enter Bosnia and Herzegovina and they lack sufficient means of subsistence. A large number of citizens of Switzerland were denied entry because they attempted to cross the border of Bosnia and Herzegovina without passports, falsely thinking that a personal ID card would suffice like in EU member countries and the Republic of Croatia. Even though citizens of Mexico, Argentina and Brazil were not as frequently denied entry as citizens from other countries, many were denied entry because they lacked visas. These denials of entry were mostly cases of religious tourism, with citizens of the aforementioned countries arriving most often from Croatia and believing that they did not need a visa to enter Bosnia and Herzegovina”.57

Graphic Overviews of Denied Entries in 2007 and 2008 Disaggregated by Reasons for Denied Entry

Graphic Overviews of Denied Entries in 2007 and 2008 Disaggregated by Reasons for Denials Entry and Citizenship

56 Bosnia and Herzegovina Border Police, “The Analysis of Work of the Border Police in the first nine months of 2008," Sarajevo, October 2008, p. 6. 57 BH Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2008, p. 8. 83

3.2.1.2

3.2.1.3

3.2.1.4

3.2.2 2.2. Illegal border crossings

3.2.2.1 An illegal border crossing occurs when a person is caught trying to cross the state border of Bosnia and Herzegovina illegally, regardless of whether the person is entering or leaving the country, or whether the person is a citizen of Bosnia and Herzegovina, a foreign national or a person with no citizenship. In 2007, a total of 851 persons were caught trying to cross the border of Bosnia and Herzegovina illegally. By the end of 2008, 543 persons were caught attempting illegal border crossings. This data shows a reduction of 36.19% in the number of persons caught trying to cross the border illegally.

Table 9 - Illegal Border Crossing Attempts in 2007 and 2008 Disaggregated by Citizenship No Country 2007 2008 % No Country 2007 2008 % Bosnia and 1. 390 170 -56.41% 9. Slovenia 6 2 -66.67% Herzegovina 2. Serbia 199 136 -31.66% 10. Brazil 3 4 33.33% 84

3. Croatia 73 96 31.51% 11. Romania 2 3 50.00% 4. Albania 95 55 -42.11% 12. France 1 4 300.00% 5. Turkey 22 35 59.09% 13. Germany 0 4 / 6. Macedonia 22 12 -45.45% 14. China 0 4 / 7. Switzerland 10 5 -50.00% 15 Italy 3 0 / 8. Montenegro 5 4 -20.00% 16 Others 20 9 / Total 851 543 -36.19%

Graphic Overview of Discovered Illegal Border Crossings in 2007 and 2008 Disaggregated by Country

According to available data, most illegal border crossings are attempted by citizens of Bosnia and Herzegovina. In terms of foreign nationals, most illegal immigrants are citizens of the neighboring countries and countries in the region. An analysis of the data shows that 31.31% of all illegal crossings that were discovered in 2008 were attempted by citizens of Bosnia and Herzegovina. However, this percentage is lower than in 2007, when 45.83% of discovered attempts to illegally cross the border were made by citizens of Bosnia and Herzegovina. There was also a significant increase in 2008 in the number of illegal border crossings by citizens of the Republic of Croatia and the Republic of Turkey. According to data from the activity report of the Bosnia and Herzegovina Border Police “at border crossing points in 2007 (both entrance and exit) 371 persons (176 + 195) tried to cross the state border illegally and 480 persons (321+159) tried to cross the border outside the border crossing area.”58 In 2008, "185 persons (126 + 59) tried to cross the state border illegally at border crossing points and 358 persons (242 + 116) tried to cross the border outside the border crossing area.”59

58 Bosnia and Herzegovina Border Police, “2007 Activity Report of the B&H Border Police”, Sarajevo, January 2008, p. 11. 59 Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 13. 85

Graphic Overview of Attempted Illegal Border Crossings

In 2007, illegal crossings exiting the country accounted for 41.60% of the total number of persons caught while trying to cross the state border illegally (851). In 2008, that percentage decreased to 32.23% (543). With regards to the land border, the data obtained from the Bosnia and Herzegovina Border Police indicates that the majority of illegal border crossings (both into and out of the country) were registered outside official border crossing areas. However, there were a small number of attempted illegal crossings at international airports.

Table 10 - Illegal Border Crossing Attempts in 2007 and 2008 Disaggregated by Type of Border Crossing 2007 2008 2007 to 2008 to % to % from Country from 2007 ∑ from 2008 ∑ % B&H B&H B&H B&H B&H B&H Croatia 238 280 518 180 151 331 -24.37 -46.07 -36.10 Montenegro 182 7 189 119 9 128 -34.62 28.57 -32.28 Serbia 61 41 102 61 8 69 0.00 -80.49 -32.35 Sea traffic 0 0 0 0 0 0 / / / Air traffic 16 26 42 8 7 15 -50.00 -73.08 -64.29 Total 497 354 851 368 175 543 -25.96 -50.56 -36.19

Graphic Overview of Attempted Illegal Border Crossings in 2007 and 2008 Disaggregated by Type of Border Crossing

An analysis of data on attempted illegal border crossings into Bosnia and Herzegovina disaggregated by type of the border crossing and neighboring country, clearly shows that there were 528 attempted illegal

land border crossings in 2008. This percentage decreased to 34.73% as compared to 2007, when there were 809 attempted illegal land border crossings. There was also a decrease in attempted illegal border crossings at international airports in 2008. In 2008, there were 15 attempted illegal crossings at international airports, which represent a decrease of 64.29% when compared to 2007, when there were 42 attempted illegal crossings at international airports.

The border Bosnia and Herzegovina and the Republic of Croatia is an interesting case for analysis because 86.29% of all attempted illegal crossings out of Bosnia and Herzegovina in 2008 were registered along this border. According to the Bosnia and Herzegovina Border Police, “46.41% of all attempted illegal crossings were registered in the western-northeastern part of the border with the Republic of Croatia, indicating a preference by illegal migrants to use this part of the border to try and leave Bosnia and Herzegovina.”60

There was an apparent decrease in all the parameters in 2008, as compared to 2007. However, it is quite characteristic that in 2008 along the border with Republic of Croatia more attempted illegal border crossings into BiH were seen in comparison to attempted crossings out of BiH. The data and analysis show that good results were achieved in this field in 2008. An activity report of the Bosnia and Herzegovina Border Police states that “the progress that was made by the Border Police in this field in 2008 was the result of breaking up the networks for transferring illegal migrants across the border.”61

3.3 3. Temporary and permanent residence of aliens

An application for residence is filed with the DKP B&H or the competent organizational unit of the Service for Foreigners' Affairs, either personally or through a legal proxy in cases where an alien is incapable of conducting business. Applications must be submitted no later than 15 days prior to the expiration of his/her long-term residence visa (Visa D), or for granting of non-visa residence or approved residence in case of a renewal of temporary residence on the same basis or permanent residence. The Service for Foreigners' Affairs issues decisions granting and extending residence. Residence is granted by affixing a residence permit sticker into the valid passport of the alien. The residence permit sticker allows an alien to cross the border of Bosnia and Herzegovina during the period of the approved stay.

3.3.1 3.1. Temporary residence

3.3.1.1 Approval of temporary residence is granted for the period of up to one year, under the condition that the period of validity of the alien’s passport extends at least three months longer than the period for which the temporary residence is granted. Pursuant to the Law, which came into force in May 2008, temporary residence can be granted on the following grounds: marriage or common law marriage with a B&H citizen, family reunification, education, scientific-research work, artistic work, sport work, or consultant work; labor of key staff in legal person or labor upon issued work permit; private entrepreneurship or volunteer work or realization of a project significant for B&H; engagement in religious organizations or congregations, medical treatment, humanitarian grounds; or other justified reasons or reasons based on an International treaty of which B&H is a party. Temporary residence can, in exceptional cases, be granted on the basis of ownership of a real estate, provided there is an effective connection between the alien and Bosnia and Herzegovina.

Table 11 - Total Temporary Residence Permits Issued from 2001 to 2008

60 Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 14. 61 Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 14. 87

Year 2001 2002 2003 2004 2005 2006 2007 2008 Temporary 3,756 3,305 4,646 4,897 5,143 5,274 5,513 5,971 Residence

Graphic Overview of Temporary Residence Permits Issued from 2001 to 2008

An analysis of data on temporary residence permits (permit stickers) shows that there was a decline in residence permits issued from 2001 to 2002. This reduction was the result of introducing stickers in May 2002 that were printed, at the time, by the Immigration and Asylum Sector of the Ministry of Human Rights and Refugees of Bosnia and Herzegovina that had supervisory power in the period of 30 days after the date of delivery of the decision and dossier about the granted temporary residence by the Cantonal Ministries of the Interior of the Federation of Bosnia and Herzegovina, Public Security Centers of the Ministry of Interior of Republika Srpska, and the Brcko District Police. In addition, the previous Law on Immigration and Asylum in Bosnia and Herzegovina did not stipulate any sanctions for aliens who did not adhere to the Law, creating the possibility for abuse of the legal framework. The sharp increase in temporary residence permits seen from 2002 to 2003 was a consequence of the adoption of the new Law, which regulates the immigration and asylum in a much more concrete manner than was the case under the previous law. Enhanced legal regulations, along with the existing centralized institutional framework, helped to bring order to the fields of aliens’ movement and residence in Bosnia and Herzegovina. From 2003 to 2008 there was a continued steady increase which leads to the conclusion that alien movement and residence was placed under the control of authorities in Bosnia and Herzegovina.

In order to describe the current temporary residence situation, data on the number of residence permits granted (i.e. resident permits approved for the first time or extended for a certain period) for temporary stay in 2007 and 2008 is presented.

Table 12 - Temporary Residence Permits Granted in 2007 and 2008 Disaggregated by Country No Country 2007 2008 % No Country 2007 2008 % 1. Serbia 1,977 1,298 -34.34% 9. Austria 84 125 48.81% 2. Croatia 642 631 -1.71% 10. Slovenia 94 94 0.00% Russian 3. China 601 569 -5.32% 11. 60 108 80.00% Federation 4. Turkey 534 595 11.42% 12. Italy 56 64 14.29% 5. Montenegro 35 1,002 2,762.86% 13. India 64 53 -17.19% 6. Macedonia 362 280 -22.65% 14. Romania 55 60 9.09% United 7. Germany 148 201 35.81% 15 43 72 67.44% Kingdom Other 8. USA 114 105 -7.89% 16 644 714 10.87% Countries Total 5,513 5,971 8.31%

Graph Overview of Temporary Residence Permits Granted in 2007 and 2008 Disaggregated by Country

An analysis of the data presented shows a sharp decrease in the number of temporary residence permits issued to Serbian citizens in 2008 together with a significant increase of the number of citizens of Montenegro applying for a residence permit. However, this data should be viewed in a consolidated manner, as most citizens of Montenegro submitted their applications for temporary residence with Serbian passports. When the consolidated data on temporary residence permits issued to citizens of Serbia and Montenegro is analyzed, an increase of 14.31 % in 2008 of residence temporary residence permits for temporary stay in the amount of 14.31%, as compared to 2007. The six countries of origin for aliens who were granted either approval or extension of their temporary stay in Bosnia and Herzegovina that are mentioned on a regular basis are: Serbia, including Kosovo/UNSCR 1244, Montenegro, Croatia, Turkey, China, and the Republic of Macedonia (these are not necessarily listed in that ranking order). These six

countries of origin account for 75.29% of all persons who were granted temporary residence permits in Bosnia and Herzegovina during 2007. In 2008, the number of such persons amounted to 73.27%.

In 2008, 3,420 applications were submitted requesting a new temporary stay visa and 3,435 applications were submitted requesting an extension of a current temporary stay visa. In total, 6,855 applications were submitted in 2008, representing is an increase of 2.84%, when compared with 2007 when 6,666 applications were submitted (3,302 applications for new temporary stay visas and 3,364 applications for the extension of a current temporary stay visa).

Graphic Overview of Temporary Residence Applications and Decisions in 2007 and 2008

Of the 6,855 temporary residence applications submitted in 2008, approval/extension was granted in 5,971 cases. New temporary residence was granted in 2,975 cases and 2,996 temporary residence visas were extended. The number of approved/extended temporary residence applications increased by 8.31% in 2008 as compared to 2007, when 5,513 temporary residence permits were granted/extended (new temporary residence permits were granted in 2,560 cases and temporary residence was extended in 2,953 cases). According to this data, 82.70% of temporary residence applications were approved/extended in 2007 and 87.10% were approved/extended in 2008.

In order to construct a profile of foreign nationals who submitted applications and received temporary residence permits in 2008, data on approved/extended temporary residence permits is shown disaggregated by sex and age. This data shows that more men than women whose applications were submitted and approved/extended in a number of age brackets: aged 60+ (282 men and 209 women), 36 to 59 (1,054 men and 831 women), and 0 to 17 (93 men and 71 women). On the other hand, there were more women among persons aged 18 to 35 (1,676 women and 1,366 men).

According to information obtained from the Service for Foreigners' Affairs “most foreign nationals were granted temporary residence in Bosnia and Herzegovina in 2008 on the basis of: a work permit; marriage with a citizen of B&H; family reunification; education; private entrepreneurship etc.)."62

62 The B&H Service for Foreigners’ Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 6. 91

Statistical data from 2008 shows that citizens of neighboring countries obtain temporary residence in Bosnia and Herzegovina largely on the basis of their marriage with a citizen of Bosnia and Herzegovina, family reunifications, work permit, or attendance of education programs. Education frequently provides grounds for residence for citizens of Serbia, Montenegro and Turkey. For citizens of Turkey, education in Bosnia and Herzegovina is the most frequent basis for temporary residence, even though there is also an increase in the number of Turkish citizens who obtain residence on the basis of work permits. Citizens of China frequently obtain temporary residence on the basis of work permits, family reunification and private entrepreneurship.

Serbia and Other Basis for Residence Turkey Croatia China Macedonia TOTAL Montenegro countries Marriage with a Citizen of Bosnia 674 39 359 2 154 500 1,728 and Herzegovina Family Reunification 226 97 22 161 46 319 871 Common Law Marriage with a 8 7 3 22 40 citizen of Bosnia and Herzegovina Education 345 239 16 2 14 175 791 Scientific & 1 1 1 6 9 Research Activities Consultant Activities 10 10 Labor of key staff in a natural or legal 4 4 person Labor upon issued 655 232 155 191 44 504 1,781

work permit Private 35 12 10 118 3 91 269 Entrepreneurship Volunteer Work 3 3 5 94 105 Realization of Projects Important 1 3 4 to B&H Religious Activities 1 2 14 36 53 Medical Treatment 38 3 5 46 Humanitarian Issues 3 1 1 11 16 Other Reasons 52 18 2 172 244 TOTAL 2,042 624 611 474 268 1,952 5,971

Temporary residence on the basis of private entrepreneurship is mostly used by citizens of China.

3.3.2 3.2. Permanent residence

3.3.2.1 A permanent residence permit can be issued to an alien provided that he/she: a.) resided in the territory of B&H under a temporary residence permit for at least five years uninterruptedly prior to submitting the application for issuance of permanent residence permit; b.) has sufficient and regular funds to support himself/herself; and, c.) has confirmed adequate accommodation and health insurance.

Table 13 - Permanent Residence Permits Issued from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Permanent 336 309 439 178 196 153 136 215 Residence

Graphic Overview of Permanent Residence Permits Issued from 2001 to 2008

The analysis of the trend of permanent residence permits (permit stickers) shows that there was a decline in their number from 2001 to 2002, which was the consequence of introducing stickers in May 2002 that were printed, at the time, by the Immigration and Asylum Sector of the Ministry of Human Rights and Refugees of Bosnia and Herzegovina that had supervisory power in the period of 30 days after the date of delivery of the decision and dossier about the granted temporary residence by the Cantonal Ministries of the Interior of the Federation of Bosnia and Herzegovina, Public Security Centers of the Ministry of Interior of Republika Srpska, and the Brcko District Police. Also, the then Law on Immigration and Asylum of Bosnia and Herzegovina did not stipulate any sanctions for aliens who did not adhere to the Law, so there were possibilities for abuse of the valid legal framework. The sharp increase in the number of permanent residence permits was seen from 2002 to 2003, which we see as a consequence of the adoption of the new Law, which regulates the fields of immigrations and asylum in a much more concrete and quality manner than was the case before. Quality legal regulations, along with the existing centralized institutional framework, helped to bring order into the fields of aliens’ movement and residence in Bosnia and Herzegovina. However, while there was a continued steady growth of the number of temporary residence permits issued from 2003 to 2008, the number of permanent residence permits sharply decreased in the period from 2003 to 2004. The analysis shows that the decrease in the number of permanent residence permits resulted from the changes introduced to legal regulations. The Law on Movement and Stay of Aliens and Asylum adopted in 2003 stipulates that a permanent residence permit can be issued to an alien provided that she/she has resided on the B&H territory on the basis of a temporary residence permit for at least five years uninterruptedly before submitting the application for issuance of a permanent residence permit. The previous Law on Immigration and Asylum of Bosnia and Herzegovina stipulated that a permanent residence permit can be issued to an alien before the five year period, when the permit is applied for by a family member with the condition that the issue of the permanent residence permit to an alien who is the spouse of a citizen of Bosnia and Herzegovina is subjected to a waiting period of one year following the date of marriage. The previous Law also prescribed that family members of an alien who holds a permanent or temporary residence permit should be granted residence for the same period as the alien.

In order to describe the current state of permanent residence permits, data on the number of permanent residence permits granted in 2007 and 2008 is presented.

Table 14. Number of permanent residence permits granted in 2007 and 2008, disaggregated by countries No Country 2007. 2008. % Change No Country 2007. 2008. % Change 1. China 48 99 106.25% 9. Poland 3 4 33.33% 2. Croatia 18 32 77.78% 10. Ukraine 4 3 -25.00% 3. Macedonia 7 18 157.14% 11. Moldova 1 5 400.00% Syrian Arab 4. Turkey 12 7 -41.67% 12. 2 3 50.00% Republic 5. Romania 7 4 -42.86% 13. Slovenia 3 2 -33.33% 6. Germany 6 3 -50.00% 14. Serbia 0 5 / 7. USA 4 5 25.00% 15 Montenegro 0 3 / 8. Austria 4 3 -25.00% 16 Other Countries 17 19 11.76% TOTAL 136 215 58.09%

Graph overview of the number of permanent residence permits granted in 2007 and 2008, disaggregated by countries

The number of permanent residence permits granted to aliens in Bosnia and Herzegovina in 2008 increased by 58.09% as compared with 2007. The countries of origin whose nationals were granted permanent residence in Bosnia and Herzegovina most often in 2007 and 2008 were: China, Croatia, Macedonia and Turkey. According to a 2008 report of the Service for Foreigners' Affairs, the increase in the number of permanent residence permits stems from the fact that “a greater number of foreign nationals met conditions for granting permanent residency on the basis a temporary residence permits for at least five years uninterruptedly, which led to the increase of the number of applications for permanent residence”.63 However, the Report stresses that only a small percentage of citizens of the Republic of Serbia were granted permanent residence (5 cases in 2008 and none in 2007) because the “Dual Citizenship Agreement enables citizens of the Republic of Serbia to meet conditions for obtaining the citizenship of Bosnia and Herzegovina before obtaining those that are necessary for permanent residence permit”.64

3.4 4. Illegal Migrations and Measures Taken Against Aliens

According to the 2007 and 2008 reports from the Service for Foreigners' Affairs, the Service performed regular and required operative measures and control of movement and stay of aliens (hotels and

63 Bosnia and Herzegovina Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 8. 64 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 8. [See above.] 95

restaurants, companies, educational institutions, night clubs, visits to the place of living).65 Control actions such as these are some of the basic ways of finding illegal immigrants in Bosnia and Herzegovina, and result in measures being taken against foreign nationals who have no legal grounds for staying in Bosnia and Herzegovina. The measures taken against such foreign nationals include: cancellation of non-visa and temporary or permanent residence; decisions on expulsions; placing of foreign nationals under surveillance; and forceful removal of aliens from Bosnia and Herzegovina.

A comparison of data on the measures taken against foreign nationals in 2007 and 2008 follows, as well as the data on the measures taken in 2008 disaggregated by the citizenship of aliens against whom measures were taken.

Table 15 - The number of measures taken in 2007 and 2008, disaggregated by the types of measures No. Type of Measure 2007. 2008. % 1. Decisions on the cancellation of non-visa or temporary residence 229 484 111.35 2. Decisions on the cancellation of permanent residence 20 32 60.00 3. Decisions on expulsion 822 787 -4.26 4. Decisions on placing aliens under supervision 0 198 / 5. Forced removal of aliens from Bosnia and Herzegovina 75 172 129.33

Graphic overview of the measures taken in 2007 and 2008, disaggregated by the type of the measure

3.4.1.1

3.4.2 4.1. Residence Cancellation

3.4.2.1 During 2007, a total of 249 residence permits were cancelled – 229 non-visa residence permits and 20 permanent residence permits. During 2008, the number cancelled residence permits increased to 516 – 484 non-visa and temporary residence permits and 32 permanent residence permits.66 A graphic overview of decisions related to the cancellation of non-visa, temporary and permanent residence permits in 2008, disaggregated by the citizenships of aliens against whom the measure was taken, follows.

65 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2008, pp. 8- 10 and The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, pp. 11-12. 66 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 11. [See previous citation] 96

Most decisions to cancel residence permits of Serbian citizens (including Kosovo/UNSCR 1244) were reached on the basis of “work without a work permit” or “changes in circumstances of granting residence.” Residence of Turkish citizens was also cancelled largely on the basis of “work without a work permit” and “changes in circumstances of granting residence.” Decisions to cancel residence permits of Chinese citizens were largely the result of “changes in circumstances of granting residence,” while residence permits for citizens of Croatia were cancelled largely due to “lack of possession of work permits.” Generally speaking, the most frequent reasons for the cancellation of residence are: work without possession of a work permit, and changes in circumstances related to granting of residence permits.

3.4.3 4.2. Decisions on Expulsion

3.4.3.1.1 During 2008, a total of 787 decisions on expulsion were reached. In contrast, there were 822 expulsion decisions in 2007. According to a 2008 report from the Service for Foreigners' Affairs, most expulsion measures were taken because: “foreign nationals breached the regulations on crossing the state border; foreign nationals who were accepted on the basis of readmission agreement with the Republic of Croatia without having the permit to stay in Bosnia and Herzegovina remained in the country after the expiration of their visas or non-visa stay or temporary residence permit; [or,] foreign nationals tried to hide the true intentions of their stay in Bosnia and Herzegovina”.67

A graphic overview of decisions related to expulsion in 2008, disaggregated by the citizenship of the alien against whom the measure was taken, follows.

67 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 12. [Ditto] 97

3.4.4 4.3. Placing of Aliens under Supervision

3.4.4.1 Under the Law on Movement and Stay of Aliens and Asylum, aliens may be placed under supervision. When an alien is placed under supervision, he/she is placed in an immigration center, which is located on the premises of the Service for Foreigners' Affairs. This immigration center began operations on 30 June 2008, when the law of placing aliens under supervision went into effect. In 2008, a total of 198 foreign nationals were placed under supervision. Illegal migrants largely came from Turkey, Serbia, Macedonia, Albania, China and Pakistan.

A graphic overview of decisions related to placing of aliens under supervision in the Immigration center in 2008, disaggregated by the citizenships of aliens against whom the measure was taken, follows.

According to a report from the Service for Foreigners' Affairs: “of the total number of persons placed in the Immigration Center, 67 persons were placed under supervision in the Center on the basis of the readmission agreement with Croatia – 58 citizens of Turkey and 9 citizens of Albania”.68

3.4.5 4.4. Forced removal of aliens from Bosnia and Herzegovina

3.4.5.1 Removal of aliens from Bosnia and Herzegovina is a measure that is undertaken by the Service for Foreigners' Affairs when an alien who has received a valid decision that orders him/her to leave Bosnia and Herzegovina has no intention of leaving the country within the deadline for voluntary return as defined in the decision. According to the report of the Service for Foreigners' Affairs “172 aliens were forcefully removed from the country in 2008, while in 2007 there were 75 cases of the forced removal of aliens from Bosnia and Herzegovina.”69 The number of forced removals significantly increased in 2008 (by 129.33%) as compared to the situation in 2007 especially when taking into account the fact that the Immigration Center was set up on 30 June 2008. The Center is one of the essential preconditions for efficient forced removal of aliens from Bosnia and Herzegovina. Forced removal of aliens is also easier, quicker, and more efficient when readmission agreements can be used. Use of readmission agreements requires Bosnia and Herzegovina sign readmission agreements with countries into which aliens are removed and that those agreements subsequently enter into force.

3.5 5. Irregular migrant return

Data and analyses of trends in irregular migrant returns are presented on the following subjects:

 Voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina, with the assistance and support of the International Organization for Migration (IOM);

68 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 18. [Change according to previous citations] 69 The B&H Service for Foreigners' Affairs, “Activity Report for the period from 1 January 2008 to 31 December 2008,” Sarajevo, January 2009, p. 11. [Ditto] 99

 Voluntary return of aliens from Bosnia and Herzegovina to their countries of origin with the support from IOM;  Acceptance and return on the basis of the readmission agreement with the Republic of Croatia; and,  Voluntary return of aliens from Bosnia and Herzegovina.

3.5.1

3.5.2 5.1. Voluntary return of citizens of Bosnia and Herzegovina to Bosnia and Herzegovina, with the assistance and support of the International Organization for Migration (IOM)

3.5.2.1 Bosnia and Herzegovina participates in programs which voluntarily return citizens of Bosnia and Herzegovina from other countries. Programs that voluntarily return citizens of Bosnia and Herzegovina are largely implemented with the mediation of IOM. IOM was the source of the data that follows.

Table 16 - The total number of citizens of Bosnia and Herzegovina who returned to Bosnia and Herzegovina with the assistance from the IOM from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Total Persons 1,566 1,355 844 295 101 54 28 16 4,259

Graphic overview of the number of citizens of Bosnia and Herzegovina who returned to the country from 2001 to 2008 with the IOM's assistance

A total of 4,259 citizens of Bosnia and Herzegovina returned voluntarily to Bosnia and Herzegovina from 2001 to 2008 through IOM programs. According to the presented data there has been noted a continuous decreaseing trend of BiH citizens who return to BiH in the above mentioned manner. In the last few years an extremely small number of citizens of Bosnia and Herzegovina have opted for voluntary return with IOM’s assistance. This small number may result from a lack of funds for voluntary return programs, or may indicate that citizens of Bosnia and Herzegovina have solved their status in their respective countries of destination.

100

Table 17 - The number of citizens of Bosnia and Herzegovina who returned voluntarily to the country with the support from IOM

No. COUNTRY 2001 2002 2003 2004 2005 2006 2007 2008 Total

1 Croatia 1,160 1,244 591 185 1 2 3,183 The 2 Netherlands 87 12 79 25 8 4 215 The United 3. Kingdom 3 6 9 1 19 4 Norway 43 50 139 41 18 1 12 4 308 5 Germany 175 4 179 6 Belgium 79 16 9 4 2 1 111 7 Switzerland 1 12 35 57 27 15 7 154 8 Austria 4 1 1 1 7 9 Italy 9 24 3 1 6 2 1 46 10 Finland 7 3 11 1 4 3 29 11 Hungary 1 2 3 12 Montenegro 2 2 13 Macedonia 1 1 14 Slovakia 2 2 Total 1,566 1,355 844 295 101 54 28 16 4,259

Having analysed the data in accordance to the respective countries from which BiH citizens have voluntarily returned to BiH with the IOM’s assitence it was observed that the largest nuber of returns took place from Croatia (74.74%), then follows Norway (7.23%), The Netherlands (5.05%), Germany (4.20%), Switzerland (3.62%), Belgium (2.61%), while the total return from the remaing countries was 2.55%. Graphic overview of the numbers of citizens of Bosnia and Herzegovina who returned voluntarily from 2001 to 2008, disaggregated by the countries from which they returned

101

3.5.3 5.2. Voluntary return of aliens from Bosnia and Herzegovina to their countries of origin with the support from IOM

3.5.3.1 Legal provisions in the field of immigration and asylum in all legal proceedings aimed at deciding on the status of foreign nationals in Bosnia and Herzegovina, in cases when an alien is forced to leave Bosnia and Herzegovina, a deadline for voluntary compliance with the decision is supplied. When an alien wants to leave Bosnia and Herzegovina voluntarily but has no funds for return, he/she can return through the “Assisted Voluntary Return” (hereinafter referred to as: “AVR”) Program, which is implemented by IOM.

Table 18 - The total number of aliens who returned from Bosnia and Herzegovina with the IOM's assistance from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Total Persons 78 141 374 211 244 58 233 28 1,291

Graphic overview of the number of aliens who returned from Bosnia and Herzegovina with the IOM's assistance from 2001 to 2008

From 2001 to 2008, 1,291 aliens returned voluntarily from Bosnia and Herzegovina to their countries of origin through IOM's programs. This process of return peaked in 2003, when 374 foreign nationals were returned from Bosnia and Herzegovina. There were significant decreases in the number of IOM assisted voluntary returns in 2006 and 2008. The decrease that occurred in 2006 resulted both from a lack of funds for the AVR program and the requirement that it be proved that an alien was attempting to migrate to Western Europe. The decrease in the number of returns in 2008 was also a result of the lack of funds for the AVR program, which resulted in the program only being implemented during the first two months of the year.

When analyzing the continuity of the return process, one can see that there has been a continued return of citizens of Serbia originating from Kosovo, Albania and Macedonia. The second largest source of assisted voluntary returns is Turkish citizens, although there were no assisted voluntary returns in 2008.

102

When it comes to foreign nationals who return from Bosnia and Herzegovina voluntarily, the authorities of Bosnia and Herzegovina were included into the AVR program. During 2007, 233 aliens from Albania, Serbia (including those originating from Kosovo), Turkey, Macedonia, India and Iran were returned to their countries of origin. 99% of the individuals returned were males, with 74% of them being aged 18 to 35. The majority of individuals returned under the AVR program in 2007 were persons originating from Albania (including 42 minors) and Serbia (originating from Kosovo). In total, 28 individuals participated in the AVR Program in 2008, 27 of the individuals assisted were males.

Table 19 - The return of aliens from Bosnia and Herzegovina within the AVR program, disaggregated by years and countries of return No. COUNTRY 2001 2002 2003 2004 2005 2006 2007 2008 Total Serbia (UNSCR 1 19 52 204 62 91 36 70 9 523 1,244) 2. Albania 1 59 106 125 15 136 18 490 3 Macedonia 2 8 23 19 17 3 11 1 82 4 FR Yugoslavia 1 5 31 9 4 2 52 5 Turkey 28 14 8 5 5 2 13 47 6 China 6 36 6 42 7 Moldova 8 10 3 13 8 Romania 11 6 1 3 10 9 Iran 4 1 1 6 10 Ukraine 2 3 1 6 11 Hungary 5 5 12 Nigeria 4 4 13 Bulgaria 2 1 3 14 Egypt 2 2 15 Andorra 2 2 16 India 2 2 17 The Philippines 1 1 18 Slovakia 1 1 Total 78 141 374 211 244 58 233 28 1,291

103

Graphic overview of the number of aliens returned from Bosnia and Herzegovina from 2001 to 2008, disaggregated by the countries in which they were returned

3.5.4 5.3. Admission and return on the basis of the readmission agreements

3.5.4.1 Readmission agreements facilitate and expedite the return of citizens of signatory states who reside with no residence permit in another state that is party to the readmission agreement. Readmission agreements also facilitate and expedite the return of citizens of third countries or stateless persons who left illegally from the territory of one signatory to the territory of another signatory. Implementation of readmission agreements to admit citizens of Bosnia and Herzegovina, i.e. identity and check citizenship, is done through the Ministry of Security's Sector for Immigration. In contrast, implementation of readmission agreements to admit citizens of third countries and stateless persons, as well as to return citizens of signatory states from Bosnia and Herzegovina, is done by the Service for Foreigners' Affairs.

104

3.5.4.2 5.3.1. Admission and return on the basis of the readmission agreement with the Republic of Croatia

3.5.4.3 The readmission agreement through which Bosnia and Herzegovina admits the greatest number of persons is the agreement signed with the Republic of Croatia. These readmitted individuals are either citizens of Bosnia and Herzegovina who reside in the Republic of Croatia without residence permits, individuals who were returned from other countries “on the same basis” to the Republic of Croatia, or citizens of third countries or stateless persons who illegally crossed from the territory of Bosnia and Herzegovina into the Republic of Croatia.

The Readmission Agreement with the Republic of Croatia is one monitoring source for irregular migration. The Readmission Agreement is particularly useful for monitoring the admission of citizens of third countries who, after entering Bosnia and Herzegovina either legally or illegally, proceed to move illegally into the Republic of Croatia and countries of Western Europe. In order to present the mentioned parameter and on the basis of data obtained from the Bosnia and Herzegovina Border Police, data on the admission of citizens of third countries in Bosnia and Herzegovina pursuant to the Readmission Agreement with the Republic of Croatia is provided.

Table 20 - Admission of citizens of third countries pursuant to the Readmission Agreement with the Republic of Croatia Year 2001 2002 2003 2004 2005 2006 2007 2008 Admission in B&H, 2,317 766 756 255 170 174 240 248 persons

Graphic overview of the number of citizens of third countries admitted to Bosnia and Herzegovina pursuant to the Readmission Agreement with the Republic of Croatia

An analysis of the data on the admission of citizens of third countries pursuant to the Readmission Agreement with the Republic of Croatia shows a significant decline in admissions in 2002 as compared to 2001. This reduction is largely a consequence of the introduction of visas for Iranian citizens. There was also a significant decline in the number of admissions of citizens of third countries in 2004 as compared to 2003. This reduction was due to the introduction of stickers for visas and residence permits in 2002.

105

A comparison of data from 2002 to 2004 indicates that responsible authorities in Bosnia and Herzegovina achieved a considerable degree of control over and progress in migration. From 2002 to 2003 there was a significant decrease in the number of visas issued at consulates, embassies and border crossings. However, during this same period there was also a significant increase in the number of temporary and permanent residence permits issued. From 2003 to 2004 the number of citizens of third countries admitted to Bosnia and Herzegovina pursuant to the Readmission Agreement with the Republic of Croatia significantly decreased.

Reports from the Bosnia and Herzegovina Border Police were a key source of data for a consolidated overview of 2007 and 2008. Pursuant to the Readmission Agreement with the Republic of Croatia, the Bosnia and Herzegovina Border Police submit regular reports on the admission of persons, whose residence is illegal or who entered Croatia illegally via Bosnia and Herzegovina. According to data from 2007, 431 persons were admitted to Bosnia and Herzegovina from Croatia (240 foreign nationals and 191 citizens of Bosnia and Herzegovina). In contrast, Bosnia and Herzegovina returned only 16 persons to Croatia in 2007.70 In 2008, the number of individuals admitted to Bosnia and Herzegovina from Croatia increased by 6.49% to 459 persons, of whom 248 were foreign nationals and 211 were citizens of Bosnia and Herzegovina. Four persons were returned to Croatia in 2008.71

Table 21 - Admission of citizens of third countries pursuant to the Readmission Agreement with the Republic of Croatia for 2007 and 2008 No. Country 2007. 2008. % No. Country 2007. 2008. % 1. Serbia 120 123 1.67 6. Sri Lanka 3 1 -66.67 2. Turkey 19 77 305.26 7. Montenegro 3 / 3. Albania 68 15 -77.94 8. Azerbaijan 1 / 4. Macedonia 25 27 8.00 9. France 1 / 5. Egypt 4 / 10. Iran 1 / Total 240 248 3.33

Graphic overview of the admission of citizens of third countries to Bosnia and Herzegovina pursuant to the Readmission Agreement with the Republic of Croatia for 2007 and 2008

70 Bosnia and Herzegovina Border Police, “2007 Activity Report of the B&H Border Police”, Sarajevo, January 2008, p. 8. 71 Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 12. 106

And analysis of data shows a significant increase in 2008 in the number of Turkish citizens admitted to Bosnia and Herzegovina pursuant to the Readmission Agreement with Croatia. However, there was also a large decrease in the number of Albanian citizens admitted under the Readmission Agreement.

3.5.4.4 5.3.2. Admission and return on the basis of other readmission agreements

3.5.4.5 Under Bosnia and Herzegovina’s readmission agreements with countries other than the Republic of Croatia, a total of 20 citizens of Bosnia and Herzegovina were admitted in 2008 and five citizens in 2007 by the Ministry of Security’s Sector for Immigration.

Table 22 - Admission of citizens of Bosnia and Herzegovina in 2007 and 2008 pursuant to other readmission agreements No. Country 2007 2008 No. Country 2007 2008 1. Austria 1 16 3. Romania 1 2. Denmark 3 3 4. Sweden 1 Total 5 20

Outside of the Readmission Agreement with the Republic of Croatia, there were no approved admissions of citizens of third countries and stateless persons by the Service for Foreigners' Affairs in 2007 and 2008.

3.5.5 5.4. Voluntary return of aliens from Bosnia and Herzegovina

The Voluntary return of foreign nationals from Bosnia and Herzegovina was not monitored separately in the past period. Because of this gap in data, numbers for voluntary returns were calculated based on data recorded by Bosnia and Herzegovina Border Police for “deportations.” This data contains information on all aliens who were ordered by the Service for Foreigner’s Affairs to leave Bosnia and Herzegovina and subsequently returned to their countries of origin. This data includes individuals who participated in assisted forced and voluntary returns. According to the data obtained from the Bosnia and Herzegovina Border Police, the number of individuals deported from Bosnia and Herzegovina was reduced by 3.34% in 2008 as compared to 2007.72

Table 23 - The number of deported foreign nationals in 2007 and 2008 No. Country 2007 2008 No. Country 2007 2008 1. Albania 158 86 8. China 0 2 2. Serbia 139 178 9. France 0 1 3. Croatia 11 7 10. Belgium 0 1 4. Turkey 10 11 11. Ukraine 0 1 5. Macedonia 9 15 12. Bulgaria 1 0 6. Romania 0 12 13. Iran 1 0 7. Montenegro 0 4 Total 329 318

72 Bosnia and Herzegovina Border Police, “2007 Activity Report of the B&H Border Police”, Sarajevo, January 2008, p. 7; Bosnia and Herzegovina Border Police, “2008 Activity Report of the B&H Border Police”, Sarajevo, January 2009, p. 10. 107

According to data obtained from Bosnia and Herzegovina Border Police, there were 318 “deportations” in 2008. Taking into account that in that same year the Service for Foreigners' Affairs forcefully removed 172 persons from the country and that the AVR program voluntarily returned 28 aliens, a total of 118 persons voluntarily left Bosnia and Herzegovina without assistance.

According to data obtained from Bosnia and Herzegovina Border Police there were 329 “deportations” in 2007. Taking into account that in that same year the Service for Foreigners' Affairs forcefully removed 75 persons from the country and that the AVR program voluntarily returned 233, a total of 21 persons voluntarily left Bosnia and Herzegovina without assistance.

This data indicates that the number of independent voluntary returns to countries of origin by foreign nationals who were ordered by the Service for Foreigners' Affairs to leave Bosnia and Herzegovina increased in 2008 by 461.90% as compared to 2007.

It is reasonable to assume that the number of independent voluntary returns is even greater than presented in this report, as foreign nationals who can cross the border of Bosnia and Herzegovina by showing their personal ID card only may do so without showing a written decision ordering them to leave the country to Bosnia and Herzegovina Border Police when actually leaving the country.

3.6 6. International protection/asylum

Up to 30 June 2004 applications for asylum were received and decided upon by the UNHCR, following UNHCR procedures.

Bosnian-Herzegovinian authorities took control of the asylum and international protection application process on July 1st, 2004. The asylum and international protection process is now governed by Bosnian- Herzegovinian laws. The institution of first instance is the Ministry of Security - Sector for Asylum, whereas the Court of Bosnia and Herzegovina represents the institution of second instance, which deliberates complaints and appeals. While deciding whether an applicant will be approved for international protection, the principle of "non-refoulement” is also deliberated upon. One of four Ministry decisions may result:

a) the application for international protection is approved and applicant’s refugee status in B&H is recognized; b) the application for international protection is approved, refugee status is not recognized, and the right to subsidiary protection is granted; c) the application for international protection is rejected, and the alien is given a deadline by which he/she must leave B&H; d) the international protection process is ceased and the alien is given a deadline by which he/she must leave B&H; or, e) the alien is denied the international protection process and the given a deadline by which he/she must leave B&H.

An alien who has exhausted all available legal remedies and whose request for international protection/asylum was rejected by a final and binding decision brought in accordance with Article 116 (Decisions upon the application for international protection) subparagraph c) or by a final decision made pursuant to Article 116 subparagraphs d) or e), but who nevertheless cannot be removed from the territory of Bosnia and Herzegovina for the reasons prescribed in Article 91 of this Law, shall come under the authority of the Service. (2) The Service shall issue to the alien a temporary residence permit on

108

humanitarian grounds pursuant to Article 54 (Temporary residence on humanitarian grounds) paragraph (1) subparagraph d) of this Law.

The Service shall place under supervision any alien who it is determined poses a threat to the public order, legal order, or peace and security of Bosnia and Herzegovina, in accordance with articles 98 through 104 of the Law.

The Service, in cooperation with the Ministry, other ministries and Council of Ministers, shall undertake all measures in necessary under the law and regulations of Bosnia and Herzegovina and international law in regard to resolution of the final status of the alien.

In order to identify trends in asylum, data asylum applications, i.e. international protection from 2001 to 2008, is provided. Applications for asylum in Bosnia and Herzegovina were submitted to the UNHCR from 2001 to June 30th, 2004. During this period 2,249 individuals applied for asylum in Bosnia and Herzegovina. All applications for asylum were received and decided upon by the UNHCR following UNHCR’s procedures. From 2001 to 2006, when the procedure for deciding upon submitted applications was completed, the UNHCR recognized the refugee status for 355 persons (2001 – 36 persons, 2002 - 88 persons, 2003 - 20 persons, 2004 - 41 persons, 2005 - 163 persons, and 2006 - 7 persons).73

From July 1st, 2004 to December 31st, 2008, authorities of Bosnia and Herzegovina received 375 applications for asylum. These 375 applications resulted in asylum requests by 989 persons. During this period, Bosnia and Herzegovina recognized the refugee status of seven individuals. In the past several years UNHCR implemented projects of moving to third countries. As a result of these UNHCR projects, at the end of 2008 187 persons were afforded refugee status.74

In accordance to the transfer of jurisdiction, 301 persons applied for asylum in 2004. Of those 301 asylum seekers, UNHCR received applications from 203 persons and the remaining applications for 98 persons were submitted to authorities in Bosnia and Herzegovina.

Table 24 - Number of persons who applied for asylum/international protection in Bosnia and Herzegovina from 2001 to 2008 Year 2001 2002 2003 2004 2005 2006 2007 2008 Number of persons 732 575 739 301 146 69 581 95

Graphic overview of the number of persons who applied for asylum/international protection in Bosnia and Herzegovina from 2001 to 2008

73 A total of 390 persons were recognized as having refugee status by the UNHCR in the period from 1999 until 30 June 2006 74 Of 187 persons with recognized refugee status and residence in Bosnia and Herzegovina, the UNHCR recognized the refugee status of only 180 individuals. The refugee status of the remaining seven individuals was recognized by authorities in Bosnia and Herzegovina. 109

The high degree of variation between years in the number of persons who applied for asylum in Bosnia and Herzegovina is the result of legal changes in the definition of temporary admission that occurred during a massive influx of citizens of Serbia. The trend in submitted applications shows a peak in asylum applications in 2003. This peak the result of the November 2001 adoption of the Decision on Partial Cessation of Application of Instructions on Temporary Admission of Refugees from the Federal Republic of Yugoslavia in Bosnia and Herzegovina (“B&H Official Gazette no. 28/01"), which stopped the use of the status of temporary protection for newly arrived persons. A second peak in asylum applications is evident in 2007. The 2007 peak is the result of the September 2007 cessation of temporary admission of citizens of Serbia originating from Kosovo. In both of these cases, the individuals who lost their status of temporary protection had the opportunity to submit applications for asylum/international protection in Bosnia and Herzegovina.

In order to analyze international protection situation in Bosnia and Herzegovina, data on applications for international protection and numbers of persons who submitted them in 2007 and 2008 is presented.

Table 25 - Number of applications (persons) who submitted applications for asylum/international protection in Bosnia and Herzegovina in 2007 and 2008 ASYLUM 2007 2008 % No. Country Applications Persons Applications Persons Applications Persons 1 Bangladesh 1 1 / / / / 2 Brazil 1 1 / / / / 3 Montenegro 2 2 / / / / 4 Croatia / / 2 2 / / 5 India / / 6 6 / / 6 Iran 2 2 / / / / 7 Cameroon / / 1 1 / / 8 China 3 3 / / / / 9 Lithuania 1 1 / / / / 10 Macedonia 1 1 4 7 300 600 11 Pakistan 2 2 1 1 -50 -50 12 Palestine / / 1 2 / / 13 Poland / / 1 1 / /

110

14 Syria 1 1 / / / / 15 Serbia 132 564 28 73 -79 -87 16 Sri Lanka 3 3 1 1 -67 -67 17 Turkey / / 1 1 / / Total 149 581 46 95 -69 -84

Graphic overview of the number of persons who applied for asylum/international protection in Bosnia and Herzegovina from 2001 to 2008

The data shows that 149 applications were submitted in 2007 for 581 persons. In contrast, in 2008 there were 46 applications for 95 persons. Most of the individuals seeking asylum or international protection were citizens of Serbia (predominately originating from Kosovo). In 2007 there were 132 applications for 564 Serbian citizens. In 2008 there were 28 applications for 73 Serbian citizens. These data shows that in 2007 asylum applications represented a greater number of individuals than in 2008 (on average, more than four individuals were represented per application in 2007), a fact that indicates a higher percentage of families applied for asylum in 2007. International protection applications representing individuals, i.e. not families, from other countries other than Macedonia and Palestine were submitted in 2008.

In 2007 and 2008 Bosnia and Herzegovina received no applications for international protection of unaccompanied minors.

In order to precisely analyze the current international protection situation in Bosnia and Herzegovina, data on applications that were submitted and decisions that were reached in 2007 and 2008 by numbers of individuals represented is presented.

111

According to the data obtained from the Ministry of Security - Sector for Asylum applications were submitted in 2007 for international protection in Bosnia and Herzegovina for 581 persons. During that year, there were applications to be decided upon for 629 persons (taking into account the applications that were not decided upon during previous years - for 48 persons). Of all the applications submitted in 2007, 578 persons submitted their applications for international protection in Bosnia and Herzegovina for the first time, while the applications were repeated for three persons. During the year, seven persons revoked on their applications. At the end of 2007, there were unresolved applications for 371 persons.

The majority of applications for international protection in 2007 were submitted by citizens of Serbia - for 564 persons, i.e. 608 persons when taking into account the unresolved applications from the previous years. Of all those applications submitted in 2007, applications for 561 persons were submitted for the first time, while applications were repeatedly submitted for three persons. During 2007, applications were revoked for six persons and at the end of the year the unresolved applications related to 361 persons, all citizens of Serbia.

112

Since applications submitted by citizens of Serbia account for 97.07% of all applications for international protections in Bosnia and Herzegovina in 2007, we present the data disaggregated by the age group and sex of those persons. Among the applications that were to be deliberated in 2007 there were 288 men and 320 women. The age groups to which these persons belong are various. Still, minors are prevalent - 321 or 52.80% of all persons from Serbia that submitted applications for international protection. Then, there were 144 persons from the age group 18 to 35, and 124 persons aged 36 to 59 and 19 persons aged 60+.

The remaining applications for international protections in 2007 were submitted for persons from Bangladesh, Brazil, Montenegro, Iran, China, Lithuania, Macedonia, Pakistan, Syria and Sri Lanka and they all account for 2.93% persons who asked for international protection in Bosnia and Herzegovina in 2007.

However, there are some interesting data on persons who submitted applications for international protection or were included in such applications as family members pursuant to their country of birth. These data from the Ministry of Security - Sector for Asylum show that in 2007 the applications related, among others, to 163 minors who were born in Bosnia and Herzegovina, Macedonia, German, Sweden and Switzerland. Most of those persons were born in Bosnia and Herzegovina - 155 persons. This number accounts for 26.68% of the total number of persons who applied for international protection in Bosnia and Herzegovina in 2007.

When talking about the decision on applications for international protections that were deliberated in 2007, Bosnia and Herzegovina did not recognize a single refugee status or subsidiary protection or temporary residence for humanitarian reasons following the principle of “non-refoulement”. All the applications that were decided on, i.e. 251 applications were rejected by either the first- or second-instance decision, or the procedures were stopped by either the first- or second-instance decision. Most rejected applications were those submitted by citizens of Serbia - 131 applications, which were the greatest in number. The reasons for such decisions lie mostly in the lack of basis for submitting applications for international protection.

The number of persons who submitted applications for international protection in Bosnia and Herzegovina in 2008 was significantly reduced when compared with the previous year. During 2008, there were applications for 95 persons, which is a reduction in number of 83.65%.

However, the Ministry of Security - Sector for Asylum in 2008 had to decide on applications for 466 persons, taking into account the applications transferred from previous years (371). Of all the applications submitted in 2008, 93 applications was for persons who applied for international protection in Bosnia and Herzegovina for the first time, while two applications were repeated from 2004 and 2005. Applications for five persons were rejected. During 2008, applications were resolved for 239 persons, while applications for 222 persons were transferred to next year. Even though some new countries of origin appeared among applications for international protection in comparison to 2007, e.g. Croatia, India, Cameroon, Palestine, Poland and Turkey, the structure of the countries of origin is such that most applications in 2008 again refer to citizens of Serbia - 73 persons in 2008, which accounts for 76.84% of persons who asked for international protection in Bosnia and Herzegovina in 2008. Among the new applications for international protection minors from Serbia account for the most numerous age group - 35.61% of all applications from Serbia. The next age group is 18 to 35 years and it accounts for 32.88% applicants from Serbia, and then persons aged 36 to 59 (24.66%) and persons aged 60 and more (6.85%). Applications submitted for women account for 45.20% of all applications for international protection in Bosnia and Herzegovina coming from citizens of Serbia.

Among all other applicants for international protection, 22 from various countries, there were eight women.

113

Even though the number is smaller in 2008, there are still some applications for international protection submitted by persons born in Bosnia and Herzegovina (15 applications, 13 of them for minors), which account for 13.68% of all applications for international protection submitted in 2008.

In 2008, of all the applications (for 239 persons), one persons was recognized refugee status in Bosnia and Herzegovina; 148 persons were refused international protection through either the first- or second- instance decision, while procedures for 89 persons were stopped by either the first- or second-instance decision, with one application being rejected through a first-instance decision. Five persons withdrew their applications. At the end of 2008, there were unresolved applications for 222 persons.

3.7 7. Work permits issued to aliens

According to the data obtained from the Work and Employment Agency of Bosnia and Herzegovina, and on the basis of data received from the relevant entity services and the Brcko District, 2.696 work permits were issued to foreign nationals in 2007 and 2.993 work permits in 2008. Here follow the data on work permits issued to foreign national, disaggregated by nationalities and qualification structure of aliens. Table 26 - Work permits issued to foreign nationals, disaggregated by nationalities for 2007 and 2008 No. Country 2007 2008 % No. Country 2007 2008 % 1. Serbia 1,031 1,108 7.57 7.. Macedonia 61 89 45.90 2. China 462 442 -4.33 8.. Austria 52 58 11.54 3. Croatia 333 317 -4.80 9. Germany 48 62 29.17 4. Turkey 222 259 16.67 10. Italy 33 47 42.42 5. Montenegro 108 133 23.15 11. Russia 14 44 214.29 Other 6. Slovenia 91 98 7.69 12. 241 336 39.42 Countries Total 2,696 2,993 11.02

The majority of foreign nationals with work permits in Bosnia and Herzegovina are citizens of Serbia. They are followed in number by citizens of China, Croatia, Turkey, Montenegro, Slovenia, Macedonia and some old EU member countries. The number of work permits issued to nationals of these countries grew in 2008 as compared to 2007, with the exception of Croatia and China where a decrease in the number of work permits issued is registered.

114

Work permits issued to foreign nationals, disaggregated by nationalities

An examination of the qualifications of foreign nationals who were issued work permits in 2007 and 2008 shows that the majority were university educated, followed by individuals who completed high school and other qualified workers.

3.8 8. Obtaining citizenship in Bosnia and Herzegovina

115

Although its responsibilities include approving applications for Bosnian-Herzegovinian citizenship, the Ministry of Civil Affairs does not information assembled on the routes by which individuals obtained Bosnian-Herzegovinian citizenship, i.e. through naturalization, on the basis of treaties between states, or through some other means. For this reason, competent entity level institutions (Ministry of Interior of the Federation of Bosnia and Herzegovina and the Ministry of Administration and Local Communities of Republika Srpska) provided the relevant data to the Ministry of Security’s Sector for Immigration t for the preparation of this section. The data that follows is consolidated and disaggregated by year.

Table 27 - The number of persons who were granted Bosnian-Herzegovinian citizenship, disaggregated by the countries of origin in 2007 and 2008

Country of No. Country of Origin 2007 2008 No. 2007 2008 Origin 1 Algiers 1 0 13. Pakistan 0 1 2 Armenia 0 2 14. Russia 3 2 3 Montenegro 26 29 15. Saudi Arabia 0 2 4 Egypt 0 1 16. SFRJ 0 1 5 The Netherlands 0 1 17. Syria 1 3 6 Croatia 151 213 18. Slovenia 0 1 7 Iran 1 0 19. Serbia 990 880 8 Jordan 1 0 20. Sudan 0 1 9 China 0 3 21. Ukraine 2 4 10 Libya 1 0 22. Turkey 1 0 11 Macedonia 7 4 Total 1,190 1,159 12 Moldova 5 11

116

The majority of persons who were granted the citizenship of Bosnia and Herzegovina in the past two years originate from Serbia and Croatia.

1,190 persons obtained the citizenship of Bosnia and Herzegovina in 2007. Of them, 979 persons obtained the citizenship on the basis of the Dual Citizenship Agreement with Serbia. 1,159 persons obtained the citizenship of Bosnia and Herzegovina, with 866 persons obtaining the citizenship on the basis of the Dual Citizenship Agreement between Bosnia and Herzegovina and Serbia during 2008.

In 2007, 641 persons obtained the citizenship of Bosnia and Herzegovina and the Federation of Bosnia and Herzegovina. Of them, 630 persons obtained the citizenship pursuant to the Dual Citizenship Agreement between Bosnia and Herzegovina and Serbia. In 2008, 402 persons obtained the citizenship of Bosnia and Herzegovina; with 388 of them obtaining the citizenship on the basis of the Dual Citizenship Agreement between Bosnia and Herzegovina and Serbia. In 2007, 549 persons obtained the citizenship of Bosnia and Herzegovina and Republika Srpska. Of them, 349 persons obtained the citizenship pursuant to the Dual Citizenship Agreement between Bosnia and Herzegovina and Serbia. In 2008, 757 persons obtained the

117

citizenship of Bosnia and Herzegovina; with 478 of them obtaining the citizenship on the basis of the Dual Citizenship Agreement between Bosnia and Herzegovina and Serbia.

The analysis of the overall data about the persons who obtained the citizenship of Bosnia and Herzegovina disaggregated by their age and sex, shows that most of the persons who obtained the citizenship of Bosnia and Herzegovina are aged 18 to 59 and that there were more women than men obtaining the citizenship of Bosnia and Herzegovina.

Persons who obtained the citizenship of Bosnia and Herzegovina disaggregated by their age and sex

Women (2007) Men (2007) Women (2007) Men (2007)

3.9 9. Emigration from Bosnia and Herzegovina

Data on emigration, as compared to the data on immigration, is indispensable to every country that defines migration profiles. These standards are defined by the UN, IOM,75 and the EU. EU standards are particularly important for Bosnia and Herzegovina because they represent the requirements laid out in the Roadmap for Liberalization of the Visa Regime. The European standard, which can found in Regulation (EC) No. 862/2007 of the European Parliament and the Council on Community Statistics on Migration and International Protection, requests that member countries provide harmonized reporting on migratory flows and international protection and imposes an obligation to monitor emigrants and their citizenship, age, sex, and countries of destination (Article 3, paragraph 1, subparagraph b.)

The Sector for Emigration of the Ministry for Human Rights and Refugees of Bosnia and Herzegovina has the data on the number of emigrants from Bosnia and Herzegovina in 2006, and it is estimated that there were no significant changes in those numbers in 2007 and 2008. According to those estimates, there are about 1,350,000 emigrants from Bosnia and Herzegovina, which amounts to about 26% of the population in Bosnia and Herzegovina. The estimates of the Statistics Agency of Bosnia and Herzegovina say that the total population in Bosnia and Herzegovina on 30 June 2006 was 3,842,942 persons. These data represent the current situation because statistical data are not updated on the annual basis.

According to the data that are available from the Ministry for Human Rights and Refugees of Bosnia and Herzegovina, which were mostly obtained on the basis of estimates by the diplomatic-consular

75 Sector for Immigration of the Ministry of Security of Bosnia and Herzegovina, “Analysis of measures necessary for setting up mechanisms for monitoring of the migration flows and defining of a Bosnia and Herzegovina Migration Profile,” Sarajevo, January 2009. 118

representation offices in 2006, there are about 1,350,000 emigrants from Bosnia and Herzegovina living abroad. Of them, there are 850,000 persons living in Europe; 450,000 living in North America; and 50,000 living in Australia. In European countries, most emigrants from Bosnia and Herzegovina live in Germany (about 160,000); and then in Austria - 130,000; Serbia / Montenegro - 130,000; Slovenia - 100,000; Sweden 75,000; Croatia 60,000; Switzerland 50,000; and Italy 40,000.

The Ministry for Human Rights and Refugees’ Section for Emigration reports that the “status of Bosnian- Herzegovinian emigrants in countries of destination is satisfactory and adds that more than 90% of emigrants from Bosnia and Herzegovina resolved their status by obtaining citizenship, working, legal arrangement, or some other legally founded basis”.76 Bosnian-Herzegovinian emigrants are considered among best integrated foreign nationals in their respective countries of destination. A small percentage of emigrants (around 5%) do not have permanent residence permits. Emigrants without permanent residence permits are largely individuals with refugee or similar status who are provided humanitarian protection but they have not made the decision to permanently stay in their country of destination.77

When it comes to Bosnian-Herzegovinian authorities’ attitudes and policies towards the emigrants, “there exists awareness of the large number of emigrants [from Bosnia and Herzegovina] and that emigration has continued in the post-war period.”78 As a result of this awareness, “there is a commitment to strengthening ties with emigrants, utilizing [emigrant] resources and promoting return. However, in the past period, due to other priorities within the country like reconstruction and rebuilding of the country, refugees, displaced persons and other current issues, there were no major initiatives aimed at citizens of Bosnia and Herzegovina living abroad."79

However, the benefits of the Bosnian-Herzegovinian diaspora for the country are numerous. Diaspora remittances are a case in point. According to estimates from the Central Bank of Bosnia and Herzegovina, about 47% of all money transfers are done through informal channels or in person.80

REMITTANCES FROM EMIGRANTS FROM ABROAD

In million BAM 2007 2008 1. Remittances from emigrants 2,770.5 2,522.0 2. Nominal GDP, current prices 21,647 25,100 3. As a percentage of GDP 12.8 10.00

In million USD 2007 2008 1. Remittances from emigrants 1,938.1 1,886.9 2. Nominal GDP, current prices 15,138 18,779 3. As a percentage of GDP 12.8 10.00

3.10 10. Immigration policy of Bosnia and Herzegovina: legal and institutional framework

76 Ministry of Human Rights and Refugees of Bosnia and Herzegovina, "Report on the Situation of Emigration of Bosnia and Herzegovina,” Sarajevo, July 2008, p. 4. [See edits in FN 30] 77 Ministry of Human Rights and Refugees of Bosnia and Herzegovina, "Report on the Situation of Emigration of Bosnia and Herzegovina,” Sarajevo, July 2008, p. 4. [Ditto] 78 Ministry for Human Rights and Refugees – Sector for Emigration in its overviews delivered for completion of this Overview. 79 Ibid. 80 Ministry of Human Rights and Refugees of Bosnia and Herzegovina, “An Overview of remittances from Bosnian-Herzegovinian emigrants,” Sarajevo, November 2008, p. 4. 119

Pursuant to Article III, Paragraph (1), subparagraph f) of the Constitution of Bosnia and Herzegovina, development of policy and regulation of immigration issues, refugees, and asylum is the responsibility of state-level institutions.

10.1. Immigration policy

Data from 2000 regarding the illegal migration of foreign nationals attempting to enter Western Europe via Bosnia and Herzegovina led to the conclusion that Bosnia and Herzegovina had become a transit center for well-organized international crime involving smuggling of human beings.

 An overview of the immigration and asylum situation, completed in the first quarter of 2001 identified the types of illegal migration, explained the causes that led to the illegal migration trend, and proposed measures to remedy the situation. The Council of Ministers adopted this overview during its May 10th, 2001 session. The adoption of this overview provided a solid foundation for further activities aimed at controlling illegal migration. This overview was also the first document to define the goals and bases for immigration policies in Bosnia and Herzegovina.

 The second document that defined Bosnia and Herzegovina’s policy and developed its immigration and asylum system was the Action Plan in the Field of Immigration and Asylum, as adopted by the Council of Ministers on April 6th, 2004. This document identified issues of visas, borders, immigrations and asylum and elaborated on each of them with clearly established goals, tasks and responsible stakeholders.

 The current policy in the field of immigration and asylum was also defined by the Strategy in the Field of Immigration and Asylum and the 2008-2011 Action Plan, as adopted by the Council of Ministers on November 13th, 2008. This document outlined the development of immigration and asylum systems in Bosnia and Herzegovina, and defined the goals, activities, deadlines, and parties responsible for activities in the following fields: visas, borders, immigration, asylum and protection of foreign victims of trafficking in human beings. The Council of Ministers of Bosnia and Herzegovina, at its session held on March 19th, 2009, adopted the Decision on Appointing the Coordinating Body for Monitoring the Implementation of the Strategy in the Fields of Immigration and Asylum and the 2008-2011 Action Plan.

10.2. Legal framework

From 2000 to 2008, three laws were adopted that regulating immigration and asylum in Bosnia and Herzegovina

 The first legal act which regulated immigration and asylum at the state-level was the Law on Immigration and Asylum of Bosnia and Herzegovina, which came into force at the end of 1999 (“B&H Official Gazette” no 23/99).

 Significant progress on the legal framework that regulates the issues of movement and stay of aliens in Bosnia and Herzegovina with the adoption of the Law on Movement and Stay of Aliens and Asylum in late 2003 (“B&H Official Gazette” no. 29/03, 4/04, and 53/07).

 As a result of the development of the EU acquis communautaire, the need for changes or amendments to a significant number of provisions of the Law that was adopted in 2003 emerged. In order for Bosnian-Herzegovinian immigration and asylum legislation to be harmonized with the EU acquis communautaire and Schengen Agreement, and to remedy

120

shortcomings that became evident with the application of the then current law, the new Law on Movement and Stay of Aliens and Asylum was adopted. This law entered into force in May 2008 (“B&H Official Gazette” no. 36/08). Pursuant to the new Law, the following bylaws were adopted:

- Rulebook on the Entry and Stay of Aliens (“B&H Official Gazette" no. 81/08), - Rulebook on the Supervision and Removal of Aliens from Bosnia and Herzegovina (“B&H Official Gazette” no. 81/08), - Rulebook on the Protection of Alien Victims of Trafficking in Humans (”B&H Official Gazette” no. 90/08), - Rulebook on Standards of Functioning and Other Issues Important for the Work of the Immigration Center (“B&H Official Gazette” no. 105/08), - Rulebook on Covering Expenses Incurred by the Return of Aliens and Placement of Aliens Under Supervision (“B&H Official Gazette“ no. 2/09), - Rulebook on the Obligations of Carriers, Organizers of Tours, and Similar Travel (“B&H Official Gazette“ No. 17/09), - Decision on the Minimum Means of Subsistence During the Intended Stay in Bosnia and Herzegovina (“B&H Official Gazette“ no. 17/09), - Rulebook on the Central Database on Aliens (“B&H Official Gazette“ no. 25/09), - Rulebook on International Protection (Asylum) in Bosnia and Herzegovina (“B&H Official Gazette“ no. 37/09), - Decision on Visas (“B&H Official Gazette“ no. 100/08), - Rulebook on Issuance of Long-Term Stay Visas (Visa D) and on Procedures to be Followed When Issuing Such Visas (“B&H Official Gazette“ no. 104/08), - Rulebook on Procedures to be Followed When Issuing Visas in Bosnian-Herzegovinian Consulates and Embassies and on Technical Conditions for Issuing Airport Transit Visas (Visa A) and Transit Visas (Visa B) (“B&H Official Gazette“ no. 26/09).

10.3. Institutional Framework

A. State-level Bodies

A1. Presidency of Bosnia and Herzegovina

Comprised of a tripartite Presidency with a rotating chair, the Presidency has the responsibility for conducting the foreign policy of Bosnia and Herzegovina, including the ratification or denouncement of treaties with the consent of the Parliamentary Assembly and in the pursuit of membership within international and European organizations.

A2. The Council of Ministers of Bosnia and Herzegovina

The Council of Ministers of Bosnia and Herzegovina is an executive body. It is comprised of representatives of nine national ministries and it operates at the state-level as the central government of Bosnia and Herzegovina. Its duties include the adoption or amendment of decisions, resolutions, laws, strategies and other acts. Each Minister has a Deputy Minister from a different constituent ethnic group.

The following ministries’, administrative organizations and other bodies’ responsibilities directly related to migration management:

A2.1. Ministry of Security

121

The Ministry of Security was formed in 2003 and is responsible for: the protection of international borders; internal border crossings and regulation of traffic at border crossings of Bosnia and Herzegovina; prevention and tracking of perpetrators of terrorism, drug trade, counterfeiting of domestic and international currencies, and trafficking in humans, and other crimes of international or inter entity nature; international cooperation in all fields that fall within the responsibilities of the Ministry; collection and usage of data useful for the security of Bosnia and Herzegovina; organization and harmonization of the activities of entity ministries of interior and the Brcko District with the goal of performing security tasks in the interest of Bosnia and Herzegovina. The Ministry of Security is also responsible for the creation, maintenance and implementation of immigration and asylum policy in Bosnia and Herzegovina; it also regulates procedures related to movement and stay of aliens in Bosnia and Herzegovina.

The Ministry of Security makes first instance decisions on the international protection of foreigners in Bosnia and Herzegovina and is responsible for second instance decisions regarding appeals of first instance decisions made by the Service for Foreigners' Affairs and Bosnia and Herzegovina Border Police pursuant to the Law on Movement and Stay of Aliens and Asylum.

 Bosnia and Herzegovina Border Police

Introduced in 2000, the Bosnia and Herzegovina Border Police (originally the State Border Service) is the police body responsible for : the surveillance and control of the cross-border movement of goods and persons; the protection of state borders; the protection of the lives and health of people; the prevention of criminal acts and tracking of criminals; the prevention of illegal cross-border migration and prevention and tracking of other hazards to public security, legal system and national security. From its inception in 2003, the Bosnia and Herzegovina Border Police have been a comprising element of the Ministry. The Bosnia and Herzegovina Border Police enforces immigration laws by: controlling the movement of foreigners across the borders of Bosnia and Herzegovina, pursuant to the Law on Movement and Stay of Aliens and Asylum; denying the entry of foreigners to Bosnia and Herzegovina when they do not meet the requirements for entry; and issues decisions, under certain circumstances, on denials of entry; issuing visas at border crossings in exceptional circumstances as defined by the Law; annulling visas or shortening their duration; keeping records and exchanging data in this field. A foreigner can express his/her intention to the Border Police about submitting an application for asylum in Bosnia and Herzegovina.

 The Service for Foreigners' Affairs

The Service for Foreigners’ Affairs is an administrative unit within the Ministry of Security. It has operational independency to perform duties and solve issues within its responsibilities. The Service was established to: perform administrative and inspection activities related to movement and stay of foreigners in Bosnia and Herzegovina; issue decisions on administrative matters related to applications submitted by foreigners; and to perform other duties pursuant to the Law on Movement and Stay of Aliens and Asylum, and other laws and regulations related to movement and stay of foreigners. The Service for Foreigners' Affairs was established on October 1st, 2006.

 State Investigation and Protection Agency (SIPA)

The State Investigation and Protection Agency (SIPA) is an administrative organization within the Ministry of Security, with operational independence in its work. SIPA was created so to perform police duties. Its responsibilities, as defined by the relevant Law, include preventing, tracing and investigating criminal acts that fall under the Court of Bosnia and Herzegovina. In particular, SIPA is concerned with acts of organized crime, terrorism, war crimes, trafficking in humans, and other crimes against humanity and principles

122

protected by the international law. In its present capacity, SIPA began operations in 2004, replacing the ‘State Information and Protection Agency.’

3.10.1.1 A.2.2. Intelligence and Security Agency (OSA)

3.10.1.2 In terms of immigration, the Intelligence and Security Agency is responsible for security checks of foreigners. The purpose of these checks is to determine Bosnia and Herzegovina’s security level.

3.10.1.3 A2.3. The Ministry of Human Rights and Refugees

3.10.1.4 The Ministry of Human Rights and Refugees is responsible for: monitoring and implementing international conventions and other documents that relate to human rights and basic freedoms; defining and implementing activities fulfilling the obligations of Bosnia and Herzegovina for accession to the European Union, with particular concern for the European Convention on Human Rights and Fundamental Freedoms and its Protocols; monitoring and composing overviews on human rights standards and activities; taking care of the rights and concerns of refugees in Bosnia and Herzegovina once their status as refuges has been determined; defining and implementing the policy of Bosnia and Herzegovina in regards to emigration and the return of refugees and displaced persons to Bosnia and Herzegovina, including reconstruction projects and the provision of other conditions for sustainable return.

3.10.1.5 A2.4. Ministry for Foreign Affairs

3.10.1.6 The Ministry for Foreign Affairs is responsible for the: implementation of Bosnia and Herzegovina’s policy; development of international relations; representation of Bosnia and Herzegovina in diplomatic relations; cooperation with international organizations; proposals to the Presidency related to country's participation in the work of international organizations; preparation of bilateral and multilateral agreements; performance of duties related to the residence and protection of rights of citizens of Bosnia and Herzegovina who have temporary or permanent residence abroad and of domestic legal persons abroad; and, for the cooperation with emigrants from Bosnia and Herzegovina. In the field of implementation of the immigration legislation, the Ministry for Foreign Affairs prepares for the Council of Ministers proposals of decisions about the states whose citizens do not need visas for entering Bosnia and Herzegovina; proposals of decisions on the countries whose citizens can enter Bosnia and Herzegovina with a document other than a passport; and proposals of decisions on exempting holders of certain types of travels documents from visa requirements. In addition, the Ministry for Foreign Affairs issues visas through the consulates and embassies of Bosnia and Herzegovina, and decides on extension of short-term visas (Visa C) in exceptional circumstances, pursuant to the Law on Movement and Stay of Aliens and Asylum.

123

3.10.1.7 A2.5. Ministry of Justice

3.10.1.8 The Ministry of Justice is responsible for administrative functions related to state-level judicial bodies and international and inter-entity judicial cooperation. It ensures that Bosnian-Herzegovinian legislation and its implementation is in accord with Bosnia and Herzegovina’s obligations under international treaties. The Ministry of Justice cooperates with the Ministry for Foreign Affairs and entities in drafting international bilateral and multilateral agreements. It acts as a central coordinating body for harmonizing legislation and standards of the judicial system between entities. extradition; jobs of administrative inspections over implementation of laws; and for issues relating to associations of citizens, and keeping records of association of citizens and NGOs that are active in Bosnia and Herzegovina.

The Ministry of Justice inspects the administrative procedures of all ministries and other civil bodies, including those responsible for migration management and asylum.

3.10.1.9 A2.6. Ministry for Civil Affairs

3.10.1.10 The Ministry for Civil Affairs is responsible for activities related to citizenship, protection of personal data, registration of domicile and residence, identification and travel documents, and other activities prescribed by the law. In terms of its migration duties, the Ministry for Civil Affairs is responsible for defining travel documents for foreigners.

3.10.1.11 A2.7. Directorate for European Integration

3.10.1.12 Formed in 2002, the Directorate of European Integration was created to direct the progress of Bosnia and Herzegovina towards EU integration. The Directorate assumed the responsibilities of the former Ministry for European Integrations of Bosnia and Herzegovina. The Directorate for European Integration coordinates harmonization of Bosnia and Herzegovina’s legal system with the EU acquis communautaire.

3.10.1.13 A2.8. Court of Bosnia and Herzegovina

3.10.1.14 The State Court has jurisdiction over crimes violating the state laws of Bosnia and Herzegovina and inter- Entity disputes over the legal meaning and implementation of state laws. It may also preside over cases involving international treaties, and international or national criminal law.

Within its criminal responsibilities, the Court of Bosnia and Herzegovina has jurisdiction over crimes defined by the Criminal Code of Bosnia and Herzegovina and other laws of Bosnia and Herzegovina. Within its administrative responsibilities, the Court of Bosnia and Herzegovina has the jurisdiction over appeals of final administrative decisions. Within its appellate responsibilities, the Court of Bosnia and Herzegovina hears appeals of and decides on legal remedies for decisions delivered by the Criminal or Administrative Division of the Court. However, the Court of Bosnia and Herzegovina does not hear on appeal requests to reopen proceedings.

124

In terms of its immigration duties, the Court of Bosnia and Herzegovina is a body of second instance and decides appeals of international protection decisions by the Ministry of Security. This function stems from the fact that all immigration decisions adopted by the Ministry of Security are subject to judicial review.

3.10.1.15 A2.9. Constitutional Court

3.10.1.16 The Constitutional Court acts at the state level. It has exclusive jurisdiction to decide any dispute that arises under the Constitution between the Entities, Bosnia and Herzegovina and an Entity or Entities, or between the institutions of Bosnia and Herzegovina. The Constitutional Court may decide whether a provision of an Entity's constitution or law is consistent with the Constitution.

The appellate jurisdiction of the Constitutional Court is established by the Constitutional provision, which states that the Court has appellate jurisdictions over issues under the Constitution arising out of a judgment of a lower court. The Constitutional Court has jurisdiction over whether a law is compatible with the Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina. It may also decide the existence or scope of a general rule of public international law as it pertains to the Court's decision.

B. Entity-level Bodies

The increasing responsibility of state bodies over migration management directly impacts the role of entity level actors. Prior to the inception of the Bosnia and Herzegovina Border Police (former State Border Service in 2000), entity level Ministries of Interior (MUPs) had wide authority in migration management. This authority included border control and the operation of a ‘Department for Foreigners’ within each MUP. Currently, the responsibility for enforcing in-country migration management has shifted from the cantonal/regional level of each MUP to the recently established Service for Foreigners' Affairs within the Ministry of Security. The Service was established to reform an under-funded and decentralized system under which Aliens Inspectors have operated and ineffective actions resulted. The Aliens Inspectors’ authority could not be exercised beyond their respective cantonal/entity boundaries. In addition, the Aliens Inspectors’ powers varied according to cantonal/entity legislation. Poor communication between Aliens Inspectors and entity and state bodies resulted in a lack of harmonized activities and decentralized data.

B1. Republika Srpska

B1.1. Republika Srpska Ministry of the Interior

The Republika Srpska Ministry of the Interior is responsible for civil and security related investigations. It also supports state migration management bodies, primarily the Service for Foreigners' Affairs, in registering the arrival or departure of foreign nationals and the forceful removal of aliens from Bosnia and Herzegovina.

3.10.1.17 B1.2. Ministry of Administration and Local Government

3.10.1.18 The Ministry of Administration and Local Government performs administrative tasks relating to citizenship, registries, personal names, entity/state personal identity numbers, and other duties pursuant to the laws and regulations of Republika Srpska and Bosnia and Herzegovina. 125

B2. Federation of Bosnia and Herzegovina

3.10.1.19 B2.1. Ministry of the Interior of the Federation of Bosnia and Herzegovina

3.10.1.20 The Federation Ministry of the Interior is responsible for preventing, tracking and apprehending the perpetrators of: international crime, terrorism, drug trade, and organized crime. As part of its crime fighting efforts, the Federation Ministry of the Interior also initiates and announces INTERPOL, federal, and inter-cantonal searches and cooperates with attorney's offices to investigate criminal acts. The Federation Ministry of the Interior also deals with issues relating to citizenship in the Federation of Bosnia and Herzegovina and the protection of human rights and civil freedoms.

In terms of its immigration activities, the Ministry provides support to the Service of Foreigners’ Affairs in the forceful removal of aliens from Bosnia and Herzegovina.

B2.2. Cantonal Ministries of the Interior

The Cantonal Ministries of the Interior support the Service for Foreigners' Affairs in immigration matters by assisting in registering the arrival or departure of foreign nationals and, forcefully removing aliens from Bosnia and Herzegovina upon request by the Service for Foreigners’ Affairs.

B3. Brcko District

The Brcko District Police’s immigration duties include providing support to the Service for Foreigners’ Affairs, when requested, to assist in the forceful removal of aliens from Bosnia and Herzegovina.

126

ANNEX 2

RETURNEE REINTEGRATION STRATEGY under the Community Readmission Agreement

127

CONTENT

I. INTRODUCTION ...... 129

II. READMISSION IN BOSNIA AND HERZEGOVINA ...... 131

III. LEGAL FRAMEWORK FOR SOLVING THE PROBLEM OF RETURNEES UNDER READMISSON AGREEMENTS ...... 133 1. INTERNATIONAL SOURCES ...... 133 1.1. European Convention on Human Rights ...... 133 1.2. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol133 1.3. Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation ...... 134 1.4. Bilateral Agreements ...... 134 1.5. Other relevant international sources ...... 135 2. DOMESTIC LEGAL AND STRATEGIC FRAMEWORK ...... 136

IV. INSTITUTIONAL FRAMEWORK AND PROCEDURES ...... 137 1. BODIES COMPETENT FOR IMPLEMENTATION OF READMISSION AGREEMENTS 137 1.1.BiH Ministry of Security ...... 137 1.2. BiH Ministry of Human Rights and Refugees ...... 138 1.3. Ministry of Foreign Affairs ...... 138 1.4. Entity Ministries and Brčko District ...... 138 2. PROCEDURES ...... 139 3. PERSONS THAT READMISSION REFERS TO ...... 141 4. PROVISION OF CITIZENSHIP AND PERSONAL IDENTIFICATION DOCUMENTS ... 142 5. REPORTING TO THE SYSTEM INSTITUTIONS AND RETURNEES ...... 143

V. SOCIAL ENVIRONMENT – THE PRESENT SITUATION, IDENTIFIED PROBLEMS AND POSSIBILITIES OF IMPROVING THE CONDITIONS FOR RETURNEE REINTEGRATION ...... 144 1. SECURITY SITUATION ...... 144 2. HOUSING SITUATION ...... 145 3. SITUATION IN THE FIELD OF LABOUR AND EMPLOYMENT ...... 146 4. SITUATION IN THE FIELD OF HEALTH CARE ...... 147 5.SITUATION IN THE FIELD OF SOCIAL CARE AND RETIREMENT AND DISABILITY INSURANCE ...... 148 5.1.Social care ...... 148 5.2. Retirement and disability insurance ...... 148 6. SITUATION IN THE FIELD OF EDUCATION ...... 149

VI. PLAN OF STRATEGY AIMS IMPLEMENTATION ...... 150

VII. EXPECTED RESULTS AND FINAL CONSIDERATIONS ...... 160

VIII. STRATEGY IMPLEMENTATION AND PERIODICAL RECONSIDERATION161

128

I. INTRODUCTION

One of the consequences of the wars lead in this area is a great movement of people away from the entire territory of Bosnia and Herzegovina and towards European countries. Although these mass movements from Bosnia and Herzegovina have been considerably decreased, a conclusion can still be drawn that the problem of migration as a phenomenon in the territory of Bosnia and Herzegovina has never ceased to exist because, owing to economic trends, people continued to migrate even after the end of the war, although at a much smaller scale. The post-war period, especially the past years, have been marked by more intense migrations, mostly within the Bosnia and Herzegovina borders and into Bosnia and Herzegovina in a spontaneous and organised return of people, as part of the organised return of displaced persons and refugees. According to the Ministry of Human Rights and Refugees‟ estimations, over 1,350.00081 people coming from BiH live abroad, mostly in Europe and Northern America, which amounts to one third of the population in the country. Given the proportionally great number of migrants in comparison with the total population, BiH has one of the most copious emigration populations in the world. For the most part, such a large number of emigrants is the result of the war which took place in the 1990s. Most migrants ended up abroad as refugees who in time decided to stay in the countries of immigration and regulated their status by obtaining permission to reside on employment grounds, on the grounds of family reunification or by obtaining citizenship of the country of immigration. Migrations away from BiH have continued even after the war, with no precise data existing. The UNDP estimates that 92,000 young people left Bosnia and Herzegovina between January 1996 and March 2001.82 Thus far, Bosnia and Herzegovina has mostly been focused on assisting the voluntary return of people who fled the country during the war. The Revised Strategy for the Implementation of Annex VII of the Dayton Peace Agreement reads as follows: However, despite the fact that considerable work has been done on implementing the provisions set out in Annex VII, almost half of the total number of 2.2 millions of refugees and displaced persons has not returned to their homes yet. There remains a significant number of refugees, displaced persons and other conflict-affected persons of concern who are still in need of durable solutions, with 125,000 displaced persons among them whose status was confirmed in the 2005 re-registration. Many of these people are extremely vulnerable and traumatised, living in inhumane conditions in displacement. Unfortunately, around 2,700 families still live in collective accommodations in BiH. Also, many are unable to return because their pre-war property is destroyed and is still on the list of close to 45,000 housing units of returnees waiting for their reconstruction or landmines have not been cleared from their places of return. Many persons who never owned property before the war have not even had the opportunity to benefit from any project to lead towards a durable solution for them and for their families. At the same time, many people who have already returned face conditions that threaten their ability to remain in the place of return. Today, there exists a huge disproportion between the level of investments and the real need for the implementation of the strategic goals set in the BiH Strategy for the Implementation of Annex VII of the DPA. Economic opportunities are scarce, infrastructure, including electricity, is often lacking and their access to rights and services such as health care, education, social welfare and pensions is limited.

81 The World Bank has a higer estimate: 1,471.594 which amounts to 37.7% of the total population. World Bank, Migration and Remittances Factbook 2008. (Zbirka činjenica o migraciji i novčanim doznakama). Available at: http://siteresources.worldbank.org. 82 UNDP, 2002. Human Development Report – Bosnia & Herzegovina. p. 42. 129

In many cases discrimination lies at the root of these limitations, contrary to the principles set out in Annex VII. In other cases the primary obstacle is the changed social environment with many persons, particularly younger persons, seeking higher education and employment opportunities in larger towns instead of rural communities.83

Given the fact that this Strategy is oriented towards securing rights for our citizens who reside outside Bosnia and Herzegovina, we also take into account the indicators set out in the said Strategy which pertain to refugees from BiH:

„..It is estimated that out of the 1.2 million Bosnia and Herzegovina citizens who left the country between 1992 and 1995 there are still approximately 400,000 people who reside outside the country and who are registered as refugees from BiH. The largest number of them has been integrated in their respective countries of admission and it is estimated that almost 80.000 refugees from BiH are still in need of durable solutions, primarily through their return to BiH. 6,550 families from abroad have registered for reconstruction assistance for the purpose of return of approximately 23,500 refugees, out of which number almost three quarters (75%) reside in neighbouring countries, in the Region, approximately 20% reside in European countries and about 5% in overseas immigration countries. The return of particularly vulnerable categories of our refugees from the countries of admission constitutes a major problem because, even after the long-standing bilateral efforts it has made in this area, Bosnia and Herzegovina has been unable to completely resolve this issue within the system. This particularly refers to the return of mental patients, which completely depends on the state. Such groups of BiH refugees can be found in the Republic of Hungary and the Republic of Croatia, but in other countries as well. One such 18-refugee group is in the refugee camp in Debrecen, in the Republic of Hungary, and there are in total 56 BiH refugee patients in psychiatric hospitals in the Republic of Croatia. Similar examples of vulnerable BiH refugee groups, mental patients but other vulnerable returnee categories, such as former camp inmates, unaccompanied children, disabled persons, etc., can also be found in other neighbouring countries, in Central European countries, in overseas countries, etc.‟

From the international legislation aspect, these migrations have resulted in the need to proceed with and intensify the protection of the rights of individuals affected. On the other hand, EU countries, overburdened themselves with large numbers of people trying to find refuge in their countries, have been tightening up the legislative and administrative measures in order to control migration flows for fear of uncontrolled migration and people smuggling and because of the misuse of the institute of asylum.

That is why the objectives to be met and activities to be undertaken by Bosnia and Herzegovina in order to join the European Union and which concern the reintegration under the Readmission Agreement these countries, i.e. Bosnia and Herzegovina, concluded with EU countries and each other in order to regulate the rules of return and readmission of persons into these countries, if they lose their right to reside in them, are considered as part of the Returnee Reintegration Strategy Under the Community Readmission Agreement.

In the present document, our starting point is the obligation set out in the documents related to the liberalisation of the visa regime for Bosnia and Herzegovina, i.e. Roadmap towards a Visa Free Regime with Bosnia and Herzegovina or Requirements related to the Correct

83Source: BiH Ministry of Human Rights and Refugees, Revised Strategy for the Implementation of Annex VII of the General Framework Agreement for Peace 130

Implementation of the Community Visa Facilitation and Readmission Agreements, which read as follows: „Bosnia and Herzegovina has to take the necessary measures ensuring effective implementation of the Community Readmission Agreement and in particular, the replacement of the previous bilateral agreements or arrangements by the Community Readmission Agreement, the conclusion of 'implementing protocols' with Member States, the adoption of the measures ensuring that proper infrastructure is in place, in particular sufficient staff, to deal with readmission applications, the respect of the various deadlines set by the Community Readmission Agreement, the refusals of readmission applications only on the grounds provided by the Community Readmission Agreement, the acceptance of the 'EU standard travel document for expulsion purposes', the acceptance of readmission applications for third country nationals/stateless persons.‟

In the course of the implementation of these processes, Bosnia and Herzegovina shall closely cooperate with the European Commission to support the EU Member States' implementation of the Visa Facilitation Agreement, ensuring in particular continuous monitoring of all institutions, authorities and bodies in BiH involved with the implementation of this Agreement, as regards the issuing of invitations, certificates and other documents.

Bosnia and Herzegovina should:

 adopt and implement a National Returnee Reintegration Strategy, including sustainable financial and social support;  report on the development of the Strategy;  deliver the Strategy (including the overview of issues such as the following: the issue of return of vulnerable persons and returnees‟ access to employment, health care, education, social welfare and possible first results). Pursuant to the above responsibilities aimed at fulfilling this complex responsibility, the Returnee Reintegration Strategy Under the Community Readmission Agreement (hereinafter: Strategy) has been drafted and members of the following institutions participated in the drafting process: - BiH Ministry of Human Rights and Refugees (Sector for Human Rights, Sector for Displaced Persons and Refugees and Emigration), - BiH Ministry of Security (Sector for Illegal Migrations, Sector for Asylum), - BiH Ministry of Foreign Affairs, - BiH Ministry of Civil Affairs, - Brčko District Department for Refugees and Displaced Persons, - RS Ministry for Refugees and Displaced Persons, - FBiH Ministry of Displaced Persons and Refugees.

II. READMISSION84 IN BOSNIA AND HERZEGOVINA

Signing and implementing readmission agreements, i.e. agreements on the readmission of persons residing without authorisation in other countries is one of the obligations of Bosnia

84 Readmission is considered to be an act of the country to readmit individuals (who are nationals of that country, third-country nationals or stateless persons) if it is proven that the persons in question illegally entered, were present or stayed in another country. In general, and also in this context, the concept is related to the framework that is defined by readmission agreements. Readmission agreements (RAs) regulate the procedures on how a country shall return its illegal migrants (its own nationals or third-country nationals) to their mother country or transit country...

131

and Herzegovina foreseen by the Stabilisation and Association Agreement between Bosnia and Herzegovina and the European Community.

Signing and implementing readmission agreements is a key element in the cooperation of countries in the field of prevention and control of illegal immigration. These agreements include the provisions on the readmission of own nationals, third-country nationals and stateless persons.

Article 81 of the Stabilisation and Association Agreement stipulates that contracting parties shall cooperate in order to prevent and control illegal immigration. This practically means that Bosnia and Herzegovina and EU Member States shall ensure the Readmission Agreement implementation, that is: - They shall readmit any of their nationals illegally present in their territories, , - They shall readmit all third-country nationals and stateless persons who are illegally present in their territories and who entered the territory of Bosnia and Herzegovina directly through or from some of the EU Member States, or who entered the territory of some of the countries – EU Member States directly through or from Bosnia and Herzegovina.

Contracting parties shall sign an implementing Protocol that regulates the implementation of the Readmission Agreement. The Protocol shall precisely define the manner of filing the application itself, formal requirements of the readmission application, means of evidence regarding nationality, border crossings for admission, that is, deportation and other particulars.

Under bilateral readmission agreements, 20 BiH nationals were admitted in 2008, and five BiH nationals were admitted in 2007 through the Ministry of Security – Immigration Sector.

Admission of BiH nationals in 2007 and 2008 under bilateral readmission agreements No. State 2007 2008 No. State 2007 2008 1. Republic of 1 16 3. Romania 1 Austria 2. Kingdom of 3 3 4. Kingdom of 1 Denmark Sweden Total 5 20

The Aliens Office did not authorise any admissions of third-country nationals and stateless persons under other readmission agreements in 2007 and 2008.

Readmission Agreement with the Republic of Croatia is one of the parameters used for monitoring illegal migrations, primarily as regards the admission of the third-country nationals who illegally entered the Republic of Croatia, that is, the countries of Western Europe, either via the BiH territory or by legal or illegal entry to BiH. For the purpose of presenting the aforementioned parameter, according to the BiH Border Police data, we hereby present the records on the admission of third-country nationals to BiH under the said agreement with the Republic of Croatia.

Admission of third-country nationals under the Readmission Agreement with the Republic of Croatia Year 2001 2002 2003 2004 2005 2006 2007 2008 Admission of 2,317 766 756 255 170 174 240 248 persons to BiH 132

Diagram showing the number of third-country nationals admitted to BiH under the Readmission Agreement with the Republic of Croatia

III. LEGAL FRAMEWORK FOR SOLVING THE PROBLEM OF RETURNEES UNDER READMISSON AGREEMENTS

1. INTERNATIONAL SOURCES

The European Convention for the Protection of Human Rights and its Protocol No. 4 and the 1951 Convention Relating to the Status of Refugees and its 1968 Protocol are integral parts of the legal system in BiH, taking into account that they are specified by the provisions of Annex 1 to the BiH Constitution as international legal documents that have precedence over domestic legislation.

1.1. European Convention on Human Rights

The Convention and the Protocols thereto contain several provisions on the rights of aliens legally residing in the territory of Contracting Parties (Article 16, Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7). Those provisions actually prohibit expulsion of aliens legally residing in the territory of the country, apart from the decision adopted in accordance with the law and the statutory procedure. The Convention also prohibits collective expulsion of aliens. The European Commission of Human Rights defines the term “collective” as “any measure of the competent authority compelling aliens as a group to leave the country except where such measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group”. The Convention itself contains only one provision that restricts those rights, which relate to the political activity of aliens. Indirectly, through practice of the European Court of Human Rights in Strasbourg, application of Article 3 of the Convention (”No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”) guarantees the right to refugees that they shall not be returned to the country where these provisions would be violated.

1.2. The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol

The Convention Relating to the Status of Refugees presents the foundation of international refugee law. The 1967 Protocol is a separate document although it forms a legal unit together with the Convention. It removes geographical and time restrictions of the definition of the 133

term “refugee” from the Convention. Above all, the Convention defines the term “refugee” as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country”. The second part of the Convention individually specifies the rights marking the juridical status of refugees and their rights and liabilities in the countries of refuge. Other provisions of the Convention deal with administrative and diplomatic aspects of the Convention application, specifically defining the duties of the States signatories to cooperate with the UNHCR office in performing its function and to facilitate its duty of supervising the application of the provisions of these instruments.

Global Consultations on International Protection of Refugees – Agenda for Protection – On the occasion of the 50th anniversary of the 1951 Convention Relating to the Status of Refugees, the UNHCR organised the Global Consultations on International Protection in 2000 in order to stimulate the action of restoring the Convention principles. Although it is not a legally binding document, the Agenda for Protection is the product of the consultation process and it contains the activities for improving international protection of asylum seekers and refugees. The aforementioned activities derive from the Declaration unanimously adopted by the Member States of the Convention and Protocol on 12 and 13 December 2001. Action Programme, deriving from the said Declaration, was adopted. The Programme includes six general goals relating to the improvement of the 1951 Convention and 1967 Protocol implementation, improvement of protection of refugees in the scope of bigger migrations, provision of sharing the burden and responsibilities of building the capacities for admission and protection of refugees, meeting the needs for protection of refugee women and children, more efficient resolution of security problems and doubling the efforts of seeking long-term solutions. Each programme goal contains a certain number of identified tasks that should be carried out by States signatories and the UNHCR.

As regards the topic of this Strategy which relates to the problems of readmission of the persons who have lost their refugee status in European countries, it can be concluded that the Agenda has invited all states to make sure that their asylum systems provide efficient and equitable decision making without delay and with applicable results, including the return and re-entry of persons not in need of international protection. The return is important for safeguarding asylum systems against abuse and maintaining asylum systems integrity. The Agenda has also invited the states to develop strategies that would include bilateral and regional readmission agreements, in order to promote return and readmission of persons not in need of international protection, in a humane manner and fully respecting their human rights and dignity, without resorting to excessive force, and, when it comes to children, taking into account their best interests.

1.3. Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation

The Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation came into force on 1 January 2008. Liberalisation of visa regime for the citizens of Bosnia and Herzegovina in relation to the European Community Member States depends on its implementation.

1.4. Bilateral Agreements

134

Having in mind that Bosnia and Herzegovina has by the Roadmap towards visa-free regime with BiH taken over the duty to establish full control of the security of documents, illegal immigration, public order and security, foreign affairs regarding the movement of readmitted persons, 20 international readmission agreements were signed and ratified by September 2009.

The purpose of agreements is to establish mutually reciprocal obligations, define in detail administrative and operational procedures for carrying out the return or transit of persons who do not, or no longer fulfil the conditions for entry to, presence in or residence in the host country.

List of countries that Bosnia and Herzegovina signed and ratified readmission agreements with: - Swiss Confederation (BiH Official Gazette No. 4/09) - Republic of Hungary (BiH Official Gazette No. 08/05) - Republic of Croatia (BiH Official Gazette No. 04/04) - Kingdom of Norway (BiH Official Gazette No. 01/06) - Romania (BiH Official Gazette No. 04/06) - Republic of Greece (BiH Official Gazette No. 14/06) - Republic of Bulgaria (BiH Official Gazette No. 14/06) - Republic of Italy (BiH Official Gazette No. 16/06) - The State Union of Serbia and Montenegro (BiH Official Gazette No. 12/07) - Kingdom of Denmark (BiH Official Gazette No. 08/07) - Kingdom of Sweden (BiH Official Gazette No. 04/07) - Federal Republic of Austria (BiH Official Gazette No. 03/07) - Republic of Slovakia (BiH Official Gazette No. 03/07) - The Benelux countries (BiH Official Gazette No. 04/07) - Republic of Slovenia (BiH Official Gazette No. 03/07) - Republic of France (BiH Official Gazette No. 10/07) - Republic of Macedonia (BiH Official Gazette No. 08/08) - Republic of Albania (BiH Official Gazette No. 06/09) - Readmission Agreement between the European Community and Bosnia and Herzegovina (BiH Official Gazette No. 13/07)85.

In accordance with the obligations undertaken, Bosnia and Herzegovina shall perform activities on concluding readmission agreements with the other countries of the Stabilisation and Association process with which it has not concluded the said agreements. Signing the readmission agreements has been initiated with China, India, Pakistan, Turkey, Sri Lanka, Syria, Egypt and Moldavia.

1.5. Other relevant international sources

Ratification of the big number of international conventions in the field of human rights clearly shows our country‟s resolution to improve human rights. International Pact on Economic, Social and Cultural Rights, International Convention on the Elimination of all Forms of Racial Discrimination, International Pact on Civil and Political Rights, UN Convention on the Rights of the Child are the documents that have special influence on creating the basis for proposing the measures within this Strategy.

85 Provisions of this Agreement shall have precedence over the provisions of any bilateral agreement or agreement on the readmission of persons who do not possess residence permits, signed between individual Member States and BiH.

135

2. DOMESTIC LEGAL AND STRATEGIC FRAMEWORK

Bosnia and Herzegovina is defined by its Constitution as a democratic state, which shall operate under the rule of law and with free and democratic elections and shall consist of the two entities: the Federation of Bosnia and Herzegovina and the Republic of Srpska (hereinafter referred to as “the Entities”) where the highest degree of human rights and freedom of movement throughout Bosnia and Herzegovina shall be guaranteed. Bosnia and Herzegovina and the Entities shall not impede full freedom of movement of persons, goods, services, and capital throughout Bosnia and Herzegovina. Neither Entity shall establish controls at the boundary between the Entities.

Bosnia and Herzegovina and both Entities shall ensure the highest level of internationally recognised human rights and fundamental freedoms. The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall be applied directly in Bosnia and Herzegovina. These documents shall have priority over all other laws. The Constitution also sets out a catalogue of rights based on non- discrimination as a universal principle, that is, the rule of law and social justice, principles of civil democracy, human and minority rights and freedoms and belonging to the European principles and values.

The Constitution, the acts regulating social welfare, health care acts, health insurance acts, family acts, acts in the field of education, as well as several strategic documents such as the BiH Strategy for the Implementation of Annex VII of the General Framework Agreement for Peace and the Revised Strategy for the Implementation of Annex VII, BiH Development Strategy, National Action Plan for Children 2002-2010, National Strategy on Combating Violence against Children 2007-2010, National Strategy for Juvenile Delinquency Prevention, Strategy for Improvement of the Position of Roma Population in BiH and Roma Problem Solving Action Plans in the field of housing, employment and health care, National Action Plan to Combat Human Trafficking and Illegal Migration in BiH for 2008-2012, Disability Policy, National Project Enhancing the Social Protection and Inclusion System for Children in Bosnia and Herzegovina, BiH National Integrated Border Management Strategy, which was designed through cooperation within services, cooperation among all services in charge of the affairs regarding the state border and international cooperation, Strategy in the Field of Immigration and Asylum and Action Plan for 2008/2011 and Migration Profile generated as the result of the need to establish a mechanism for collecting statistical data on migrations and international protection, the system of processing migration statistics, as well as the system of timely and adequate reporting on migrations in BiH.

All of the stated strategic documents contribute to the improved implementation of this Strategy.

New strategic documents and plans are in the pipeline, such as: Action Plan for the Improvement of the Position of Persons with Disabilities, Transitional Justice Strategy, Population Policy Platform in BiH and strategic documents whose goal is to strengthen the developmental influence of diaspora‟s contribution.

The listed legal and strategic documents actively promote social cohesion through the achievement of the following specific goals: – Securing an adequate level of social welfare; – Providing protection for the most vulnerable social groups; 136

– Promoting equal opportunities to citizens; – Creating adequate institutional capacities and sustainable systems of funding planned development activities; – Prohibiting social exclusion and discrimination on grounds of sex, religion or ethnicity; – They contain the measures for improvement of the European cooperation in the population migration processes.

IV. INSTITUTIONAL FRAMEWORK AND PROCEDURES

Successful implementation of readmission agreements means not only the admission of returnees but also their sustainable social and economic reintegration in the full sense. Active reintegration is an efficient policy of the state whose goal is to integrate returnees in an effective manner, including their active participation in the development and implementation of the strategy, that is, the programmes and measures by means of which the integration will be realised.

1. BODIES COMPETENT FOR IMPLEMENTATION OF READMISSION AGREEMENTS

According to the BiH Constitution, immigration issues come within the exclusive competence of the institutions of Bosnia and Herzegovina.

Access to the rights and therefore to the rights of the persons returned under readmission agreements comes within the competence of the Entities, the Brčko District and FBiH Cantons.

A specific challenge in BiH due to the complexity of its constitutional, legal and institutional system is the regulation of procedural and institutional frameworks and mechanisms for the implementation of readmission agreements.

This Strategy proposes adequate solutions for the purpose of establishing a sustainable system for the implementation of agreements on reintegration of returnees under readmission agreements.

The Strategy identifies the institutions and procedures that ensure access to the guaranteed rights based on readmission.

It is clear that state bodies also have authority and competence to perform coordination activities of competent institutions that have the obligation to admit the readmitted persons.

1.1. BiH Ministry of Security

The BiH Ministries and Other Administrative Bodies Act (BiH Official Gazette Nos. 5/03, 26/04 and 42/04) stipulates, among other things, the competence of the Ministry of Security in the field of implementing the policy of immigration and asylum in BiH, as well as the issues pertaining to readmission as the process of readmission of the persons illegally residing in the territory of other countries. The Ministry is also competent for the temporary admission and accommodation, as well as the deportation from BiH of the persons who are the citizens of the states signatories to readmission agreements. In that regard, the Ministry is

137

competent for the preparation of agreements, negotiations and signing those agreements, as well as their implementation.

1.2. BiH Ministry of Human Rights and Refugees

The aforementioned Act sets forth that the Ministry of Human Rights and Refugees shall deal with the problem of the return of refugees and displaced persons to BiH in terms of the implementation of Annex VII of the General Framework Agreement for Peace in BiH, with brining in line, guiding and supervising the application of this Annex, development and implementation of the policy in the field of return of refugees and displaced persons by the BiH Commission for Refugees and Displaced Persons and in cooperation with Entity ministries in charge of these issues, as well as the activities regarding the monitoring and implementing international conventions and other documents in the field of human rights and fundamental freedoms; promotion and protection of individual and collective human rights and freedoms; monitoring the development and distribution of information on standards and achievements in the field of human rights; cooperation with the non-governmental sector on the issues that come within the competence of the Ministry, collection of data, protection of all vulnerable groups (children, women, minorities, the disabled, victims of war, elderly, aliens, asylum seekers, etc.), development of emigration policy, cooperation with diaspora, etc. Apart from the implementation of activities regarding the protection of individual and collective human rights, the Ministry also implements the activities, in accordance with its organisational structure, regarding the protection of children‟s rights, especially by monitoring and promoting the children‟s rights in accordance with the Convention on the Rights of the Child, etc.

1.3. Ministry of Foreign Affairs

This Ministry is in charge of implementing the determined foreign policy of BiH and it works on developing international relations in accordance with the views of the BiH Presidency, acting on behalf of BiH in diplomatic relations, monitoring the situation in international relations, establishing and monitoring the maintenance of diplomatic relations, organising, guiding and coordinating the work of diplomatic and consular representations in BiH and abroad, establishing cooperation and joining international organisations, monitoring international economic trends, preparing bilateral and international agreements, organising diplomatic visits, performing activities pertaining to the residence and protection of rights and interests of BiH citizens with permanent and temporary residence abroad and of domestic legal entities abroad and other activities pertaining to international relations.

1.4. Entity Ministries and Brčko District

Apart from the competent Entity Ministries, the problems of refugees and displaced persons are addressed by the cantonal ministries and municipal departments in the Federation of BiH, competent departments of the Brčko District, while these activities in the Republic of Srpska are organised through separate departments of the Ministry of Refugees and Displaced Persons for each municipality area.

Municipalities Social welfare services and centres are active within municipalities in Bosnia and Herzegovina. All municipalities, through their offices and departments (or other competent bodies defined by the municipality) will assist the institutions of BiH and the Entities in confirming the identity and origin of persons that should be readmitted from host countries. After the readmission process is finished, the municipalities will perform coordination 138

activities together with the state bodies and without delay prepare the reintegration of readmitted persons to the relevant municipalities.

2. PROCEDURES

Readmission procedures will be designed in detail by the rulebook that will be prepared by joint efforts of the Ministry of Security, Border Police, Ministry of Foreign Affairs and Ministry of Human Rights. The rulebook will define the following issues in detail:

a) Manner of checking and confirming identity of a person

The BiH Ministry of Security shall perform activities with the ministries of the interior (police agencies) pertaining to the confirmation of identity and origin of persons who reside in the host country without any legal status, and whom the host country wants to return to Bosnia and Herzegovina. Generally, no person shall be returned to Bosnia and Herzegovina unless it is confirmed that BiH is the person‟s country of origin. Travel documents shall be issued only if the identification is established in accordance with the following readmission procedures and such travel documents shall be issued by the nearest diplomatic and consular representation of Bosnia and Herzegovina.

b) Readmission Application86

The Ministry of Foreign Affairs of Bosnia and Herzegovina, to be more exact, the BiH diplomatic and consular representations shall be the first points of contact for host countries when it comes to the readmission of persons whose country of origin is Bosnia and Herzegovina. Bosnia and Herzegovina shall accept the readmission of a person only if there is proof or valid assumption based on sufficiently credible proof that the person who is supposed to be readmitted comes from the territory of Bosnia and Herzegovina. The readmission application shall be forwarded by the means of communication as set forth in readmission agreements and technical agreements between Bosnia and Herzegovina and the host country.

c) Means of evidence regarding nationality – sufficiently credible proof

The following documents can be used as proof that the person to be readmitted comes from Bosnia and Herzegovina:

86 To the extent possible, the readmission application is to contain the following information: a) Particulars of the person to be readmitted, e.g. given names, surname(s), father‟s name, mother‟s name, date of birth, place of birth, last place of residence, where possible, b) Ethnicity information c) Copies of the documents showing nationality, place of origin, last place of residence or place of birth. d) A statement indicating (if available) whether the person to be readmitted may need help or a special arrangement in the course of the readmission process. This may require inter alia information concerning the health of the person. e) A statement indicating (if available) any security measures or arrangements for arrest that may be necessary during and after the readmission process. Readmission agreements do not need to contain the details on criminal or health status, except when required, as explained in (d) and (e) above. No information on asylum status of the persons going through the readmission process shall be revealed to the BH authorities, which is in accordance with the European standards and data protection acts in the host countries and in Bosnia and Herzegovina. 139

a) valid BiH travel documents; b) valid BiH ID cards;

The following documents can be considered sufficiently credible proof of the assumption that the person‟s country of origin is Bosnia and Herzegovina: a) photocopies of valid BiH travel documents and BiH identification cards c) driver‟s licences or good quality copies thereof d) birth certificates or copies thereof e) military IDs or copies thereof f) witness statements given in good faith g) the language that the person speaks, h) any other documents that may help determine the place of origin of the concerned person, such as the valid Yugoslavian/BiH passports and ID cards, i) any of the aforementioned documents that are expired.

d) Procedures of internal check for the purpose of establishing identity

As stated in the BiH State Border Service Act87, the Border Police shall be responsible for integrated border management in terms of organising arrangements for crossing the borders and at the same time dealing with the cases of forced return (taking over of readmitted persons) pertaining to every individual case of return across the established border crossings in BiH. The competent department of the Ministry of Security shall be responsible for further internal checks. Further detailed procedure shall be regulated by a rulebook that will contain detailed internal check procedures for establishing identity.

e) Time limits

Replies to readmission applications shall be provided in writing within reasonable time. Time limits shall be agreed upon with every country individually by bilateral agreements or memoranda of understanding. Bosnia and Herzegovina authorities shall try to close cases in the short period of time, if possible. Specific cases where the person to be repatriated is in prison of the host country shall be given priority. Efforts shall be made to finish the procedures in the shortest period possible in order to avoid unnecessarily long stay in the prison. These time limits can be changed based on the estimation of test cases.

f) Data protection

In the course of the readmission process, competent BiH institutions shall ensure that nobody apart from the parties involved in the process, shall have access to the personal data of the persons that are to be readmitted or the persons who have been readmitted to the territory. The BiH Personal Data Protection Act is fully applied in this procedure; the Act includes the European standards for personal data protection. Personal data can be used only for specific, explicit and legitimate purposes and assistance of the BiH Personal Data Protection Agency shall be available for the purposes of compliance with this standard.

g) Human rights standards

International human rights standards shall be fully observed in the readmission process and BiH authorities shall ensure safe and dignified return of the persons that are subjects of involuntary return (admission and reintegration upon readmission), and they shall also make

87BiH State Border Service Act (BiH Official Gazette No. 50/04). 140

efforts to create adequate conditions for return to Bosnia and Herzegovina, according to the sources available. The Ministry of Human Rights and Refugees in cooperation with the competent Entity ministries and competent body of the Brčko District shall be responsible for carrying out these activities.

h) Process management and supervision

The readmission process shall be supervised and managed by the BiH Ministry of Security, which shall, in cooperation with other competent institutions in Bosnia and Herzegovina in accordance with this Strategy, agree on all required procedures for carrying out the activities defined by the BiH laws and this Strategy.

3. PERSONS THAT READMISSION REFERS TO

As already mentioned, international law has defined a principle that states must readmit their citizens. The Bosnia and Herzegovina authorities shall not receive any persons who reside in host countries and for whom Bosnia and Herzegovina is considered as their country of origin without the procedures of determining and establishing the country of origin of those persons. To be more precise, in order to determine whether a person‟s country of origin is Bosnia and Herzegovina, BiH authorities shall establish coordination mechanisms among the relevant ministries and municipalities. Repatriation shall be continued upon clear identification.

Treatment of third-country nationals or stateless persons who entered some other countries via BiH is determined by readmission agreements. In accordance with the said terms, the persons that readmission may refer to are country‟s own nationals, third-country nationals or stateless persons.

The persons that readmission refers to can also find themselves in this process in various economic and social conditions and they can accordingly be more or less vulnerable when it comes to carrying out the process of their return.

The Bosnia and Herzegovina authorities shall in accordance with their abilities also take into account the needs of these groups and differentiate and establish the procedures of treating the vulnerable groups in the return process, among which the following can be classified:

1. The most vulnerable: 1. children without parental care, abandoned children, 2. the elderly and frail without care, 3. persons with disabilities (seriously ill persons including mental patients), 4. traumatised persons (victims of war and human trafficking).

b) Other vulnerable groups: 1. refugees from BiH, especially “minority” returnees 2. minority population, especially the Roma population 3. economically vulnerable persons, persons without any property or dwelling, 4. single-mother households.

The social group of returnees is not homogenous in terms of the possibility of access to the rights, structure and distribution of poverty, and at the same time, the type and quantity of needs for social intervention. The fact that a big number of these people are returned by force

141

presents a risk to the protection of human rights of the persons going through the readmission process.

A certain number of these persons are not adequately informed about their rights or the procedures in the countries they seek asylum from, or about the rights and liabilities awaiting them in Bosnia and Herzegovina. A big number of returnees in the readmission process are members of ethnic minorities. The greatest percentage of them are the Roma population (over 70% of the forced returns are accounted for by Roma). 1. Children returnees

Children present an especially vulnerable group, as follows: – Children born in Bosnia and Herzegovina not registered in the registry of births and registry of citizens; – Children born abroad not registered in the registry of births and registry of citizens.

As regards this problem, it is necessary to define additional adequate solutions that would facilitate their readmission and that could be a follow-up to the existing project activities that the Ministry of Human Rights and Refugees conducts in UNHCR and UNCF programmes on the reduction of the number of children not registered in the registries of births in Bosnia and Herzegovina.

2. Roma in the return process

The Roma present a group exposed to special risk in the return process as they belong to the marginalised and socially vulnerable group. Poverty, special cultural and social pattern, high unemployment rate, stereotypes and discrimination, low level of education and alarming situation in health care are the visible problems in domicile Roma population that will reflect on the Roma returnees, unless a planned and adequate action is undertaken. The Roma ethnic minority is especially vulnerable when it comes to housing, and the transfer from flats or admission centres with adequate living conditions to insanitary Roma settlements presents an additional trauma. The problem of personal identification documents is the problem connected to the several generations within this population. Low level of education renders the possibility of employment difficult, and persons who received education in the meantime have a problem of acquiring the relevant documents and validating them. The main problem of their access to education is illiteracy. Many Roma people find the only source of income in grey economy; hence, there is no possibility of protecting their rights regarding employment, social welfare and health care, as well as the other employment rights. A special problem is health care where only a small number of them exercise the right to it, although in the past several years, local communities have provided the Roma with access to health care.

4. PROVISION OF CITIZENSHIP AND PERSONAL IDENTIFICATION DOCUMENTS

The basic identification document that a returnee possesses in the process of readmission is an emergency travel document.

The emergency travel document is a travel document issued to the person who finds himself/herself abroad without a travel document and it is issued by the diplomatic and consular representation. The emergency travel document is a temporary travel document that serves the purpose of conducting the procedure of returning and admitting the persons in the 142

readmission process. The emergency travel document is issued for the period required for the return to Bosnia and Herzegovina and is valid for three days at most, i.e., when it comes to issuing the emergency travel document under the Readmission Agreement, the emergency travel document issued to the person for return to BiH is valid for the minimum of 30 days.

The emergency travel document is oftentimes the only identification document that the person possesses until he/she obtains other documents and it is treated as a public document. It is used in the procedures before state bodies, as well as for exercising certain rights in the field of social welfare and health care.

Although the basic problems are stated here, there is a series of cases observed in practice that show that the issue of registration and personal documents is a problem faced by the returnees when they try to start a successful reintegration process.

The biggest problem occurs when these persons appear before the institutions of public administration, judiciary, social welfare or health care, most frequently due to the conditions defined by law, regarding the registration of residence or abode. Without an adequate address, a person cannot obtain the relevant documents, and at the same time he/she cannot access the basic health care, education, social welfare or employment. There is also a series of other reasons why the returnees face the lack of adequate documents, such as:

1. Persons registered at one address and living at another address in bigger towns:

– Persons who cannot register their new address because they do not have adequate conditions (proof of legal grounds for using the dwelling unit at the address they are registering) – live in insanitary settlements, property is not legal, the address is not adequate (new settlements), they cannot register with their cousins or friends because the latter do not have personal identification documents either; – Persons cannot register because they are not eligible any more – they either lost or sold their property, cousins or friends they stayed with either moved away or died.

2. Persons who never had personal identification documents of Bosnia and Herzegovina

Persons not eligible to have new personal identification documents and never were eligible to have them – those are mostly the persons belonging to the Roma ethnic minority who were not registered in the registry of births and registry of citizens.

5. REPORTING TO THE SYSTEM INSTITUTIONS AND RETURNEES

Competent ministries and local authorities are not sufficiently informed about the process of readmission. Therefore, they are not ready or organised to get involved in the integration of the citizens of Bosnia and Herzegovina returning to the country.

That is why it is necessary to conduct campaigns and certain reporting activities. In the scope of the campaign, the environment, the system institutions and returnees that receive the information should be precisely informed about all the measures and activities foreseen by the Strategy regarding the provision of social, economic, legal, psycho-social and other forms of assistance, for the purpose of providing sustainable integration of returnees.

143

A significant contribution to the returnees being better informed, even before their return to Bosnia and Herzegovina, could be made by the diplomatic and consular representations that would distribute to the interested returnees timely printed brochures and other information materials regarding their rights and liabilities.

It is necessary to create the opportunities for the provision of the said information to illiterate persons too. That is how the returnees, even before arriving to their country, could be better informed about the measures and rights they can exercise, depending on their needs-

Organisations and clubs of our emigrants in the countries where readmissions are mostly announced from could have a special role in this process. It is necessary to establish a closer relationship and cooperation with them, as well as to carry out adequate activities so that their capacities available could be used to inform our citizens. Print and electronic media in the languages of BiH available to our citizens abroad are also a good way of communicating information and can be used to inform people about the readmission process.

The Border Police is the first to meet returnees at border crossing throughout BiH and they inform them of the basic rights in the field of social welfare and health care, education and employment. Information material can on such occasions be provided to the returnees upon their readmission. Information for returnees should be available to the social welfare centres, schools, associations dealing with the issues of readmission, hospitals, health centres, local community offices, employment bureaus and all institutions and organisations that will encounter the problems of returnees in the process of reintegration and work on solving them.

V. SOCIAL ENVIRONMENT – THE PRESENT SITUATION, IDENTIFIED PROBLEMS AND POSSIBILITIES OF IMPROVING THE CONDITIONS FOR RETURNEE REINTEGRATION

1. SECURITY SITUATION

Complete freedom of movement, as well as personal and property safety, belong to the most important elements of sustainable return and returnee reintegration.

To that end, the priority task and responsibility of the state, Entities, Cantons and local communities is to provide all returnees physical security and access to their basic civil and human rights and freedoms without any form of discrimination or risk of injury.

The period immediately after the signing of the General Framework Agreement for Peace, apart from the fear of returnees, especially the members of the so-called “minorities”, who were facing personal safety risks, was also characterised by the lack of personnel and logistic capacities and resources of security bodies. It was a period of huge distrust of returnees towards the security bodies, but also towards the population in local communities they had fled from and decided to return to those areas.

The security situation in the country today, generally speaking, is satisfactory, which can also be confirmed by the officially presented data of the competent institutions. This opinion is shared by the representatives of the Ministry of Human Rights and Refugees, competent Entity institutions, EUPM, UNHCR and other international organisations. Nevertheless, the actual and potential minority returns indicate that threats or perceived threats against their physical safety are still an important factor in deciding to return. 144

Besides the conclusion of principle on the satisfactory security situation, especially encouraging is the improvement of the situation in the field of mine clearance, carried out by the realisation of the defined strategic goals and tasks, in accordance with the legal framework they derive from, authority for action and available estimations. All these positive activities result in the significant reduction of the number of victims of mines and explosive remnants of war year after year.

Frightening is the data that 4,953 casualties from mines were recorded between 1992 and 2007 in Bosnia and Herzegovina. Out of that number, in the period from 1996 until the present time, 1,608 casualties were recorded, where 472 cases ended in death. The total number of returnee victims is 204, which is 12.7% in relation to the total number of casualties since 1996.

In the same period, mines were cleared from the territory of 85,514,310m2 in Bosnia and Herzegovina, including the previous annual performance rate of mine clearing operations of about 11 million m2 and the same performance rate is expected in the upcoming strategic period. The total remaining suspicious area is approximately 1,889km2 or approximately 3.68% of the territory of Bosnia and Herzegovina, which is why Bosnia and Herzegovina is unfortunately still a country with the biggest mine problem in Europe.

2. HOUSING SITUATION

Out of around 1.1 million dwelling units in Bosnia and Herzegovina recorded in the latest 1991 census, around 453,000 units were destroyed or damaged between 1992 and 1995, which is around 42% of the pre-war housing stock. Out of this number, around 100,000 dwelling units suffered low damage (up to 20% of damage), the biggest number, around 270,000 of them suffered medium damage (between 20 and 70%), and over 800,000 units were heavily to totally damaged (over 70%).

Unfortunately, destruction of the housing stock continues after the signing of the peace agreement, so that in the period after 1995, almost 14,000 dwelling units were devastated, of which the biggest number (over 80%) was in the territory of the present Federation of BiH.

Approximately 317,000 dwelling units have been reconstructed in BiH so far, which is the rate of 68% of reconstruction. Out of this number, around 232,000 dwelling units have been reconstructed in the territory of the Federation of BiH, around 72,000 in the RS territory, and around 12,000 in the territory of the Brčko District.

It is estimated that almost two thirds, that is, around 200,000 dwelling units have been reconstructed by means of various international and domestic donations, while the remaining third, mostly the facilities with the small extent of damage, have been reconstructed by means of private funds of owners and housing right holders.

Based on the field data collected by the competent municipal services, there are still around 150,000 unreconstructed dwelling units in BiH, that is, 32% of the total damaged and destroyed housing stock. The biggest number of these dwelling units has suffered the highest degree of damage, to the extent of total destruction. There are still around 80,000 dwelling units in the territory of the Federation of BiH that have not been reconstructed, which is the rate of 26% of destroyed or damaged housing stock in FBiH, around 66,000 dwelling units in 145

RS, which is the rate of 48%, and around 3,000 unreconstructed dwelling units in the territory of the Brčko District, which is the rate of 20% of damaged and destroyed housing stock.

3. SITUATION IN THE FIELD OF LABOUR AND EMPLOYMENT

According to the assessment of the Labour Market Review of Bosnia and Herzegovina, the current unemployment situation is the cause and effect of the overall social and economic situation in Bosnia and Herzegovina. The number of unemployed persons in Bosnia and Herzegovina reaches dramatic proportions, so that the problem of unemployment is considered one of the most serious problems of the society as a whole. Due to the segregated and fragmented market, which came as a consequence of the country‟s constitutional order and the absence of overarching labour and employment laws at the state level, the problem of labour market is even more dramatic if compared to other countries in transition.

Some of the major characteristics of labour market in Bosnia and Herzegovina are as follows: - Employment legislation falls under the competence of entities (Federation of Bosnia and Herzegovina, the Republic of Srpska and BiH Brčko District) and is harmonised with the International Labour Organisation conventions; - The formal sector employs workforce with the long-term working experience, whereas labour market entrants have difficulties in accessing formal sector jobs; - The actual unemployment is much less than the registered unemployment; - „Black labour market“ is significant; - The labour force participation rate for women is amongst the lowest in the region, however difference in wages between men and women is not great; - The level of job creation and levering jobs is low as well as the mobility and flexibility of workforce; - High taxes and difficult access to loans are evident, which coupled with the administrative barriers, slows down the development of entrepreneurship; - Majority of companies do not declare the full amount of employees' wages due to the high rates of salary contributions; - The private sector is much more dynamic than the public sector when it comes to job creation.

According to the Labour Force Survey, the activity and employment rates in 2007 were 43.9% and 31.2% respectively, while in 2006 they were 43.1% and 29.7%. Both rates were significantly higher for men than for women. The activity and employment rates were the highest in the age group 25 to 49 years (67.0% and 48.8%).

Less than half of working age population in BiH account for the economically active persons, that is, those who participate in the labour market as employed and unemployed.

The educational structure of employed persons shows that the largest share (62.6%) has completed secondary school, followed by employees with elementary or lower education (23.5%) and 13.9% with post-secondary education.

146

Unemployed persons show somewhat similar educational structure: 69.9% with secondary education, 26.1% with elementary or lower education, whereas 4.1% has completed a college, faculty, academy, master's or doctor's studies.

The returnee population faces significantly more problems in exercising their rights to labour and employment, which affects the pace and sustainability of return.

Problems affecting the right to labour that returnees face and that influence the return process are linked to the general unemployment situation that exists in Bosnia and Herzegovina. Namely, there is lack of jobs; the general devastation of the economic system affects the limited possibility of returnee population employment. Apart from that, minority returnees are discriminated against during the recruitment to which they have the statutory right, in the administrative bodies, police, judiciary, etc.

In addition, there is a lack of noteworthy interest of young highly educated human resources amongst potential returnees to apply for the published job announcements in the pre-war places of residence, which would create preconditions for sustainable return.

4. SITUATION IN THE FIELD OF HEALTH CARE

Providing adequate health care represents the challenge faced not only by the underdeveloped countries but also the developed, high standard countries. Health care industry is rather costly and represents one of the criteria for assessing the level of the country‟s economic development, which means that the level of health care for entire population is affected by the level of economic potential of the society. Very complex constitutional and legal solutions within the health care system in Bosnia and Herzegovina do not ensure functionality of relationship between health and human rights in the broadest terms. At the level of Bosnia and Herzegovina, there is only very limited coordinating function of the state institutions in terms of harmonization of plans of the entity- level authorities as well as defining health care strategy at the international level.

The actual legal and institutional jurisdiction for health care sector in Bosnia and Herzegovina rests with the entities and BiH Brčko District. Whereas, on one side, this jurisdiction is centralized at the level of the Republic of Srpska, on the other side, the jurisdiction for the health care sector of the Federation of BiH, institutionally and legally, is split between the entity and cantons.

Unfortunately, the overall intention to ensure universal health insurance coverage through the health insurance legislation is not implemented in practice, since certain estimates show that many persons are not covered by the health insurance.

In addition, it is evident that there are differences in terms of available health care depending on the area, more precisely, there are significant differences in co-payment/exemption from co-payment of the health care costs or physical availability of the adequate level of health care.

Although extensive measures are undertaken in order to facilitate access of returnees to the right to health care, the results achieved so far do not represent the permanent systematic resolution to returnee problems in this sector. In order to create conditions that would enable 147

undisturbed and equal access of returnees to the health care system, it is obvious that there is need for undertaking coordinated activities by all levels of government in BiH and various sectors.

5.SITUATION IN THE FIELD OF SOCIAL CARE AND RETIREMENT AND DISABILITY INSURANCE

5.1.Social care

Social care, being an integral part of the social policy, is the organised activity aimed at ensuring social security of citizens and their families in situations of social need, which is achieved through providing financial aid and social services.

Social need means permanent or temporary state during which a citizen or family needs help in order to overcome the social hardships and satisfy subsistence needs.

Social care is provided to beneficiaries who are unfit for work, have neither subsistence means nor relatives who are obliged to support them and who are unable to secure means for satisfaction of subsistence needs due to special circumstances. Beneficiaries of social care, by definition, are the poorest and the most vulnerable members of a society. Unfortunately, results in the area of providing social care to returnees as well as access to retirement and disability insurance are not satisfactory.

Difficult economic situation, absence of employment, frequently discriminatory approach towards returnees and belated programmes of the so-called sustainable return brought the large number of returnees to the edge of survival and the occurrence of new displacements.

Many displaced persons and returnees are in the state of social need, faced with the very serious existential difficulties and frequently unbearable social status, both in the places of displacement and following return to the pre-war places of residence. Causes are manifested in the inability to rightly exercise social rights of returnees based on their actual needs, especially in the years immediately after return, that is, during the reintegration period.

The actual legal and institutional jurisdiction in the field of social care in BiH rests with the entities and BiH Brčko District, whereas the Ministry of Civil Affairs has the jurisdiction for the coordinating function at the level of BiH. Jurisdiction within the Federation of BiH is decentralised and split between the entity and cantons, whereas in the Republic of Srpska it is centralised and split between the entity and municipal authorities.

5.2. Retirement and disability insurance

The retirement and disability insurance system in Bosnia and Herzegovina is regulated by entity laws, coupled with the problematic cross-entity payment of pensions. Varied pension amounts in the entities are primarily caused by the differently determined rates of contributions for the retirement and disability insurance.

The percentage of 24% contribution rate in the FBiH is applied to the gross salary, whereas the same rate in the RS is applied to the net salary, which results in the lower influx of 148

contribution funds into the RS Retirement and Disability Insurance Fund and consequently lower amount of pensions in that BiH entity.

In order to resolve the issues emerging from the implementation of the retirement and disability insurance in the return process, the Agreement on Mutual Rights and Obligations was signed in 2000 between the then administrators of the insurance.

This Agreement enables equal financial status in terms of the pension amount to all retired persons, returnees to the pre-war places of residence, who reached eligibility for retirement by 30 April 1991 at the single legal and economic space of the former Social Republic of Bosnia and Herzegovina.

However, the “discrepancy” between the legislation of two entities and the absence of the state-level legislation that would regulate pensions and other social payments caused problems for the returnees.

6. SITUATION IN THE FIELD OF EDUCATION

Bosnia and Herzegovina signed international agreements in the field of education, which bound the country to implement certain educational standards in the country. The agreements generally promote the same principles: accessibility, availability, acceptability, efficiency and official recognition of diplomas, non-discrimination, absence of educational segregation and the obligation to maintain and continue reforms.

At the level of BiH, the coordinating role of the state institutions has been established in terms of the harmonisation of plans of the entity authorities and defining strategies at the international level in the field of education.

Just like in the field of health care, the actual legal and institutional jurisdiction over the field of education in BiH rests with the entities, cantons and BiH Brčko District. Whereas, on one side, this jurisdiction is centralised at the level of the Republic of Srpska, on the other side, institutionally and legally the jurisdiction over the field of education in the Federation of BiH is split and mainly rests with the cantons.

Due to difficult conditions, it happens that the large number of returnee children finishes education at the elementary level. According to the Refugees from BiH and Displaced Persons in BiH Act, these children have the right to education. The BiH Framework Elementary and Secondary Education Act regulates other rights to education.

Bearing in mind the increasing needs of returnee families to accommodate the basic needs, on 5 March 2002, the Minister of the FBiH Ministry of Education and Science and the Minister of Education of the Republic of Srpska signed the Interim Agreement on Accommodation of Specific Needs and Rights of Returnee Children.

Subsequent to the signing of the Interim Agreement, all BiH Ministers of Education (entity and cantonal) signed the Implementation Plan for the Interim Agreement.

Bearing in mind the increasing number of returnees, their constitutional right and the right of their children to adequate education and bearing in mind that various assessments and studies list the absence of adequate education as one of the basic obstacles for return, the aim of the Interim Agreement was to create conditions for inclusion of returnee children into the schools 149

BiH-wide and to provide solutions, although temporary ones, that would also through the schooling sector guarantee equality of all constituent peoples in BiH.

Implementation Aims of the Interim Agreement:

1) Increase the number of employed returnee/minority domicile teachers; 2) Organise teaching process for the national group of subjects (language and literature, history and geography – natural and social science in the initial classes of the elementary school, and religious classes); 3) Harmonised national composition of school board members with the national composition of the school population; 4) Remove offensive content from textbooks for the national group of subjects; 5) Elimination of bussing of children to mono-ethnic schools; 6) Identify permanent solutions for the education of returnees and the accommodation of specific needs and rights of all constituent peoples and ethnic minorities, including: a) Development of amended and harmonised entity and cantonal education legislation that ensures the adequate protection of rights and needs of all constituent peoples and ethnic minorities, b) Comprehensive review and revision of textbooks, supplemental textbooks and other literature used in the education process so that the content is acceptable to all returnee children, c) Removal of inappropriate school names, school symbols and objects based on recommendations of the Coordination Board for Implementation of the Interim Agreement on Returnee Children.

VI. PLAN OF STRATEGY AIMS IMPLEMENTATION

The reason for adopting this Strategy is to create a planning document that would define activities to ensure successful reintegration of returnees on the basis of the readmission agreement. The successful implementation of these activities requires cooperation of various stakeholders in and out of the country. Therefore, it is necessary to strengthen the strategic partnership of relevant national and international organisations, representatives of competent institutions at all levels of government and local communities. For the purpose of implementation of this Strategy, we understand that it is necessary to ensure that: a) All operational activities are jointly planned, coordinated and implemented in accordance with the international standards; b) All activities are planned in accordance with the current competences of the involved institutions and authorised organisations in BiH in order to ensure the actual implementation; c) Specific activities and deadlines are identified; d) The necessary funds are ensured; e) The legal solutions are improved and new ones enacted if needed. Embarking on the obligations assumed by the competent authorities based on the document Roadmap towards a Visa Free Regime with Bosnia and Herzegovina, that is, meeting the requirements related to the correct implementation of the Community Visa Facilitation and 150

Readmission Agreements, the text below includes the key activities of the responsible institutions and organisations that should be implemented in the coming period in order to ensure the integration of readmitted persons in Bosnia and Herzegovina.

OVERALL OBJECTIVE:

ENSURE SUSTAINABLE REINTEGRATION OF RETURNEES IN THE COMMUNITY BY PROVIDING EQUAL ACCESS TO THE ENTITLEMENTS

For the purpose of implementation of the overall objective, we are planning a number of specific objectives to accompany activities that ensure their implementations, as follows:

SPECIFIC OBJECTIVE 1. Ensure additional capacities and functionality of the institutional framework through implementation of the following activities: Activity 1. Establish new capacities and restructure the existing capacities at the level of BiH, Activity 2. Provide support in planning the needs for entity and local institutions, Activity 3. Improve cooperation and coordination among the involved stakeholders, Activity 4. Ensure resources for the professional and targeted training of officers and employees involved in the process.

DESCRIPTION OF ACTIVITY 1. Establish new capacities and restructure the existing capacities at the level of BiH

The establishment of the necessary capacities is accomplished through forming the new one and/or restructuring the existing administrative organisations and institutions at all levels, provided that their competences include ensuring the functionality of the returnee admission system arising from readmission and the system of providing assistance to the readmitted persons. The entrusted institutions immediately draft the detailed action plan if needed in order to implement this obligation.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITY:

1. The Ministry of Human Rights and Refugees shall establish the appropriate capacity for management of the system that provides assistance following admission:

a) Establishment or restructuring the organisational unit within the Ministry of Human Rights and Refugees with the mission to coordinate and organise the primary admission and cooperation with the admitting communities creates conditions for successful reintegration of this category of population (prevention of human trafficking, promotion of the positive discrimination principles as well as implementation of supplemental

151

activities of interest for the implementation of the Poverty Alleviation Strategy, etc) and for tackling issues necessary for the prevention of the secondary migration. In organisational terms, this unit would be directed towards the work and activities within the transit centres for primary admission of refugees and cooperation with the local community units in the places of returnee reintegration).

b) Create legal and other conditions for the establishment of a single state transit centre through transformation of the already existing capacities (collective centres for refugees and displaced persons, social care institutions or introduction of the existing non-governmental capacities). In the first stage, the transit centre should accommodate up to 50 persons (10-15 families), who would be temporarily cared for (10 to 30 days) depending on the existing conditions to remain further in the country. During that period: – All facts of social and economic status, including legal, family, health, educational and financial status, should be established; – Databases should be created and data entered; – Activities regarding the collection of the missing personal documents would be initiated; - Link with the competent authorities of the admitting local community would be established. Following the establishment of all mentioned statuses, transportation shall be organised to send returnees to the admitting communities where their needs can be accommodated in the most appropriate way; – In cases of especially sensitive categories, admission activities would be carried out by the appropriate social care institutions; - The information on refugee rights, possibilities and obligations would be provided to the beneficiaries, as well as on other issues pertaining to the successful reintegration into the wider and immediate admitting community. - Funds for providing emergency one-off monetary assistance would be ensured. - The legal framework would be defined in relation to the establishment of criteria for the priority groups who will receive the assistance as well as the amount of funds to be provided as one-off monetary assistance. Following the establishment of all statuses within the transit centres, returnees would be sent to the admitting communities where their needs can be accommodated in the most appropriate way.

2. The Ministry of Security shall strengthen the existing capacities, especially within the competent sector.

3. The Ministry of Foreign Affairs shall strengthen the capacities of diplomatic missions and consular offices in the foreign countries and establish closer cooperation with the Clubs of our expatriates in the foreign countries.

4. The Ministry of Civil Affairs – Personal Documents Agency in cooperation with the entity institutions shall develop the programs of strengthening human resources and technical capacities of local community authorities responsible for administrative affairs in relation to the personal documents management (address, residence, citizenship).

152

5. Entity Ministries responsible for social care, refugee and displaced persons return as well as the respective Brčko District office shall ensure capacities (establishing additional admission capacities solely based on needs) in cooperation with the competent municipalities in order to implement the reintegration activities for readmitted persons: a) Organise the pro-bono legal assistance in relation to exercising rights in the field of registries and family law within units of the local authorities that maintain the registries; organise returnee information campaign in relation to their rights and the procedure of exercising rights in the field of registries as well as organisation of the in-service training for the employees within the units of the local authorities that maintain the registries for the purpose of legitimate and proper procedures in this field. b) If not done already, identify the authority responsible for creation of conditions and providing support in local community capacity building in view of returnee housing; c) Cede the arable and construction land to usage in accordance with the available local community resources as well as the returnees‟ possibilities and interests; d) Support in providing returnee housing resources and conditions through social housing programmes, especially for Roma minority members; e) Regulate the legal status of insanitary settlements and construction of the elementary infrastructure, which will also contribute to the housing problem resolution; f) Creating conditions and providing support to building capacities of the local community units for the inclusion of returnees into the social and health care system through: – Developing the accessibility of services and informing beneficiaries – returnees on the possibilities and means of pursuing the social and health care; – Inclusion of the returnees into the social care system through exercising rights to financial support and other financial aid, including the one-off monetary assistance as well as other social care services achieved through the respective social welfare centre. g) Creating conditions and providing support to the local community capacity building in view of the inclusion of returnees into the educational system and labour sphere: – Implementing local languages learning programmes and harmonizing the diploma recognition system, while finding possibilities to exempt the returnees from paying fees, which would contribute to the better integration; – Reporting returnees to the labour market and recognizing them as the group of impeded factor of employment; – Implementation of active employment measures for returnees through additional training and prequalification; – Inclusion of returnees through public works into the employment programmes by the employment offices as the recognized vulnerable group.

DEADLINE: ongoing

DESCRIPTION OF ACTIVITY 2. Provide support in planning the needs of entity and local institutions

Disproportionate deprivation and pressure that only a number of local communities will face also represents the risk for an adequate care for returnees that the admitting communities cannot resolve based on their own sources. Providing support in identification and implementation of refugee support activities at the level of local communities, in accordance with the possibilities and needs of local communities, is of utmost significance for the sustainable reintegration. 153

IMPLEMENTING AGENCIES AND THEIR ACTIVITIES:

1. Municipalities of admission are obliged to identify the authorities and/or persons responsible for admission of the persons and implementation of the reintegration programme at the level of the local community.

2. The Ministry of Human Rights and Refugees shall provide support in developing entity and local reintegration plans – plan inter-sectoral activities based on identified needs.

3. The Ministry of Human Rights and Refugees shall develop mechanisms for rapid action assistance in order to provide support to the services network development within a community in accordance with the potentials and, respecting the fact that the population can efficiently, economically, timely and cost-effectively accommodate the needs within the immediate environment, provide support to the community empowerment in view of the implementation of the returnee reintegration programme.

DEADLINE: ongoing

DESCRIPTION OF ACTIVITY 3. Improving cooperation and coordination among the involved stakeholders:

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITY:

1. All institutions and organisations participating in the returnee admission on grounds of readmission shall ensure capacities based on which the system of compulsory cooperation, that is, coordination will be improved.

2. The Ministry of Human Rights and Refugees and the Ministry of Security shall propose to the BiH Council of Ministers the establishment of the Expert Coordination Team to monitor the implementation of the Refugee Reintegration Strategy arising from the Readmission Agreement, with the following assignments: a) To consider and propose measures and activities for implementation of returnee admission, caring and reintegration, monitoring the signed Readmission Agreements and their implementation, status of returnees, exchange of information with all relevant stakeholders, linking activities to the implementation of other strategies and plans, etc. b) To consider problems and dynamics of the implementation of measures at the level of entities, that is, local community as well as the quality and scope of the assistance provided to returnees by the local community, c) To initiate development of operational plans of the ministries responsible for returnee reintegration on grounds of the Readmission Agreements and to monitor their implementation, d) To propose legal and systematic solutions for the establishment of dialogue between countries on issues of protection and exercising rights of migrants and the issues of illegal migration aimed at strengthening regional cooperation, e) To prepare the assessment of the BiH legal and strategic framework, monitor the implementation of measures by the competent institutions and prepare proposals and

154

opinions for the BiH Council of Ministers on other issues aimed at implementation of this Strategy and the established readmission policy in Bosnia and Herzegovina.

DEADLINE: October 2009 (establishment of the Expert Coordination Team) DEADLINE: Other activities – ongoing

DESCRIPTION OF ACTIVITY 4. Ensure resources for the professional and targeted training of officers and employees involved in the process

IMPLEMENTING AGENCIES AND DESCRIPTION OF THE ACTIVITIES:

1. This activity shall be coordinated by the BiH Ministry of Security, whereas all involved institutions shall contribute to the preparation of the joint training programme for key officers and employees involved in the process, using the existing domestic resources, international aid and regional cooperation for fund-raising. - Training plan should particularly include: timeframe for implementation of training of professionals and all stakeholders involved in the process aimed at continuing improvement of their activities based on the identified needs of beneficiaries and for the purpose of developing and providing services in accordance with the international standards. Training would be provided through organisation of seminars and introductory meetings, brochure and leaflet printing and dissemination, implementation of media promotions and campaigns as well as all other activities that could contribute to the improvement of the returnee status.

- Education of employees within municipalities by means of trainings, seminars, publishing brochures with the relevant information on how to more efficiently work with returnees.

- Information and education of the social care and other public services professionals on the readmission process.

DEADLINE: training plan by the end of 2009 and the training ongoing

SPECIFIC OBJECTIVE 2. ENACTING NEW CHANGES AND HARMONISATION OF THE EXISTING REGULATIONS WITH THE INTERNATIONAL STANDARDS

Activity 1. Legal assessment of the existing legislation Activity 2. Enacting the necessary new regulations Activity 3. Regular monitoring of their implementation

DESCRIPTION OF ACTIVITY 1. Legal assessment of the existing legislation

All involved institutions shall regularly examine the existing legislation, however, due to the need for identifying the crucial shortcomings, the established Expert Coordination Team shall primarily develop the assessment of the existing legal framework in order to establish if it is necessary to adopt new laws or make more significant interventions to the existing legislation. 155

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Security and the Ministry of Human Rights and Refugees shall be the main stakeholders within the Expert Coordination Team that will implement these activities in cooperation with the other involved institutions.

Deadline: December 2009

DESCRIPTION OF THE ACTIVITY 2. Enacting the necessary new regulations Depending on the recommendations and prepared assessment, immediate activities shall be initiated in view of enacting the new laws and harmonisation of the existing ones, all which should follow after the BiH Council of Ministers adoption of the necessary conclusions in relation to the proposals and recommendations of the Expert Coordination Team. IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES: 1. The Ministry of Security and the Ministry of Human Rights and Refugees shall be the main stakeholders within the Expert Coordination Team that will implement these activities in cooperation with the other involved institutions.

Deadline: March 2010

DESCRIPTION OF ACTIVITY 3. Regular monitoring of their implementation

The task of the Expert Coordination Team, considering that it is established in order to monitor the implementation of this Strategy, is also to monitor the implementation of all legal arrangements and detect potential problems of implementation of the internationally accepted standards.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Security and the Ministry of Human Rights and Refugees shall be the main stakeholders within the Expert Coordination Team that would coordinate these activities in cooperation with the other involved institutions.

Deadline: ongoing

SPECIFIC OBJECTIVE 3. PROVIDE FUNDING FOR THE PLANNED ACTIVITIES

Activity 1. Regular reporting and annual estimates of the expected readmissions Activity 2. Preparation of institutional activity plans with a financial plan

156

Activity 3. Developing mechanisms for rapid action assistance in support of the entity and local authorities

DESCRIPTION OF ACTIVITY 1. Regular reporting and annual estimates of the expected readmissions

Bosnia and Herzegovina is obliged to develop the migration profile and regularly monitor and collect all the available information pertaining to the implementation of the Readmission Agreement. In order to implement the obligations that the BiH authorities have committed to, it is necessary to regularly prepare reports and perform the annual estimate of the expected readmissions as well as to ensure the information exchange among the involved institutions.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Security shall prepare regular estimates on the expected readmissions and deliver them to the BiH Ministry of Human Rights and Refugees in order to establish the joint information exchange system.

2. The BiH Ministry of Human Rights and Refugees shall develop and establish the comprehensive database of refugees and their needs following readmission.

DEADLINE: first quarter of 2010

DESCRIPTION OF ACTIVITY 2. Preparation of institutional activity plans with a financial plan

Funding of these activities represents definitely the major challenge for the authorities of Bosnia and Herzegovina due to the persistent lack of funds and accumulated social problems, which is why we expect that the additional financial expertise would be provided to Bosnia and Herzegovina, that is, the key ministries for implementation of the activities. In order to identify the actual needs, preparation of institutional programmes would be made a priority as they are one of the major criteria for financial needs planning.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. All involved institutions, depending on their competences, shall ensure inclusion of the beneficiary group of returnees into all sectoral plans and budgetary positioning: 1) Accounting for returnees in the regular programmes and their recognition in the annual operational plans; 2) Defining additional budgetary resources for implementation of regular programmes with an increased number of beneficiaries; 3) Developing additional support programmes through development of projects to be funded by foreign donors and state investment programmes.

157

2. The Ministry of Human Rights and Refugees shall gather information on identified budgets and initiate the identification of the budgetary position – Establishment of the budgetary fund to support the local community development and returnee integration aimed at implementation of assumed obligations arising from the Agreement between the European Community and Bosnia and Herzegovina on the readmission of persons residing without authorisation. Activities and funds shall be organised so as to stimulate the particularly underdeveloped local community units that would admit these persons in order to mitigate the regional emigration flows, coupled with the coincident stimulation of employment and regional development. Priority and incentive support for starting self-employment businesses in the less developed areas would reduce the regional disparity. Sources of funding: budgetary and donor funds.

3. All other relevant institutions shall also initiate the identification of the budgetary position at the level of local community units (define budgetary line for support of the integration programmes for all vulnerable groups, particularly returnee reintegration programmes arising from the Readmission Agreement). Planning of the so-called balancing components within the planned activities, that would include the categories (or at least one part) of vulnerable domicile population in the returnee community, is of utmost importance for preventing negative reactions of the admitting communities.

DEADLINE: 2009 and after that ONGOING

DESCRIPTION OF ACTIVITY 3. Developing mechanisms for rapid action assistance in support of the entity and local authorities

As stressed already under the specific objective referring to ensuring additional capacities and functionality of the existing institutional framework, there is the issue of disproportionate deprivation and pressure to which only one number of local communities will be exposed, which represents the risk for adequate caring for returnees, that the admitting communities cannot account for from within their own sources. Providing support in identification and implementation of returnee assistance activities at the level of local communities and in accordance with the potentials and needs of a local community is particularly important for the sustainable reintegration.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. Based on the available data, the Ministry of Human Rights and Refugees in cooperation with the Ministry of Finance and Treasury shall develop the joint financial mechanism for providing the rapid action assistance (using the already available resources allocated to the refugee and displaced persons return, to resolving Roma housing problems) that would be provided to entities and local communities that will not be able to ensure the sustainable reintegration program for readmitted persons on their own.

DEADLINE: first quarter of 2010

158

SPECIFIC OBJECTIVE 4. INFORMATION EXCHANGE AND REGULAR REPORTING

Activity 1. Information exchange with countries where returnees come from Activity 2. Development of suitable information material for readmitted persons in the home and foreign countries Activity 3. Regular reporting to the authorities on implementation of the Strategy

DESCRIPTION OF ACTIVITY 1. Information exchange with countries where returnees come from

Informing the international and domestic organisations, all relevant stakeholders and public information on readmission and returnee issues in order to create adequate social support within wider social community and local areas aimed at their reintegration and acceptance is a very significant segment for implementation of this Strategy that the competent institutions must carry out.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Security, Ministry of Foreign Affairs and Ministry of Human Rights and Refugees shall initiate cooperation with the international and domestic organisations, as well as organisations and clubs of BiH citizens in foreign countries that could provide support to these persons aimed at development of the appropriate readmission support programs and projects.

2. The involved ministries shall initiate regular meetings with representatives of other countries for the purpose of better information exchange.

DEADLINE: ONGOING

DESCRIPTION OF ACTIVITY 2. Development of suitable information material for readmitted persons in the home and foreign countries Informing returnees on the readmission process, returnee rights, opportunities and obligations as well as all issues related to the successful integration into the wider and immediate admitting community with full respect for diversity, cultural and linguistic differences. Informing refers both to returnees in the country and the potential returnees whose arrival is yet to be expected.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Human Rights, in cooperation with and within entity ministries, shall establish networks of associates or form resource centres as information points and support centres within the local community units with the largest number of returnees, whose activities would be aimed at: - Better information of returnees on how to exercise rights, which leads to the improved accessibility of rights in all areas of interest for this category of beneficiaries; - Information of returnees on the possibility of using pro-bono legal assistance in view of the property requests, including the issues related to property disputes in the home and foreign countries; 159

- Information related to the possible customs reliefs; - Providing support to registering beneficiaries and their needs.

2. All involved institutions shall provide at their internet sites the key information for readmitted persons and non-governmental organisations assisting in this process.

3. A forum for exchange of best lessons learned within towns and local community units that already provided some conditions and capacities for the economic integration of returnees shall be established.

4. The Ministry of Human Rights and Refugees in cooperation with the Ministry of Security and Ministry of Foreign Affairs shall develop a leaflet targeting beneficiaries that would contribute to the information of returnees especially on programmes educating returnees on the independent and equal living with full respect for social and cultural diversity and informing them on the possible support programmes based on the surveyed returnee needs.

5. Through BiH citizen clubs and associations in the foreign countries and through the BiH media in the foreign countries, the Ministry of Human Rights and Refugees shall provide information on the readmission procedure and the method of exercising rights of readmitted persons.

DEADLINE: ONGOING

DESCRIPTION OF ACTIVITY 3. Regular reporting to the authorities on implementation of the Strategy

Expert Coordination Team is entrusted with monitoring the implementation of this Strategy, hence the regular reporting, apart from the preparation of reports by competent institutions involved in the process. The Report for Bosnia and Herzegovina related to the implementation of the Returnee Reintegration arising from the Readmission Agreement shall be available to all competent institutions that would also be involved in their implementation and have the possibility to give their suggestions and recommendations.

IMPLEMENTING AGENCIES AND DESCRIPTION OF THEIR ACTIVITIES:

1. The Ministry of Security and the Ministry of Human Rights and Refugees shall be the major stakeholders within the Expert Coordination Team that would coordinate this activity in cooperation with the other involved institutions, prepare the annual report and develop a mechanism for its preparation.

DEADLINE: EVERY YEAR

VII. EXPECTED RESULTS AND FINAL CONSIDERATIONS

The previous activities in the field of implementing the returnee reintegration process have been conducted in absence of the systematic and coordinated approach by the competent ministries and other state bodies and the sufficient cooperation with the local community units.

160

The international obligations of Bosnia and Herzegovina highlighted above have brought about the need to make systematic organisational, personnel and financial arrangements for resolution of multiple problems of the readmission returnees.

The Strategy outlining the proposed activities represents a document which commences the process of their resolution in a systematic way.

Apart from that, the reintegration process is the basic segment of sustainable control of migrations and one of the methods by which Bosnia and Herzegovina can utterly fulfil the obligations assumed in the Stabilisation and Association Process.

The identified activities ensure a significant contribution to alleviation of new poverty and contribute to the achievement of basic human rights. The starting point of the Strategy is to ensure effective state policy aimed at the efficient, effective and sustainable integration into the society for returnees fully exercising their rights and the active inclusion of returnees themselves.

Expected results include:  Sustainable returnee integration with respect to the social and cultural aspect and creating conditions for admission and housing as well as educating returnees for the independent and equal living;  Active inclusion of the local community and developing the network of support services which encourages the decentralization process;  Prevention of new poverty;  Prevention of secondary migrations, control of migrations;  Prevention of human trafficking;  Inclusion of the economically active returnees into the labour system aimed at reducing the unemployment rate;  Development of rural and depopulated areas;  Building trust and inter-ethnic tolerance.

VIII. STRATEGY IMPLEMENTATION AND PERIODICAL RECONSIDERATION

Due to the importance of solving the returnee integration issue for Bosnia and Herzegovina, the Expert Coordination Team is established as the authority of the BiH Council of Ministers to include all competent institutions and organisations.

The Strategy forms the basis and direction of activities for preparation of action plans of all relevant entities as well as the regulating and other acts required for its implementation.

Apart from the activities under Specific Objective 1 Ensure additional capacities and functionality of the institutional framework through implementation of the following activities as described under Activity 3, another assignment of the Expert Coordination Team for monitoring the implementation of the Returnee Reintegration Strategy arising from the Readmission Agreement is also the regular evaluation of the Strategy.

161

The Ministry of Human Rights and Refugees coordinates the planned activities and initiates the establishment of the coordination, cooperation and decision-making mechanisms related to the evaluation process.

The evaluation shall be conducted at least once every two years. In that respect, the Expert Coordination Team shall employ internal and external resources. The evaluation shall be performed in order to: – Detect the strategically disputable issues; – Identify the need to adjust the strategic document and the activity plan to the newly arising circumstances and actual needs.

It is estimated that the implementation of the strategic objectives in the coming years will require considerable Bosnia and Herzegovina budget allocations. In case of insufficient regular funds, the Ministry of Human Rights and Refugees will deliver a proposal to the BiH Council of Ministries to allocate funds from the budgetary contingencies for support to the local community development and returnee integration. The budgetary funds will provide for the development of local community services for the essential needs of returnees as well as the implementation of the reintegration programmes that cannot be implemented by means of the existing budgetary funds.

162

ANNEX 3

BOSNIA AND HERZEGOVINA COUNCIL OF MINISTERS

BOSNIA AND HERZEGOVINA STRATEGY FOR COMBATING ORGANISED CRIME (for the period 2009 – 2012)

Sarajevo, September 2009

163

Table of Contents

1. INTRODUCTION ...... 164 2. VISION ...... 166 3. UNDERLYING PRINCIPLES ...... 166 4. MISSION ...... 167 5. STRATEGY AIMS ...... 167 5.1. GOALS OF THE STRATEGY FOR COMBATING ORGANISED CRIME ...... 167 5.2. OBJECTIVES OF COMBATING ORGANISED CRIME ...... 168 6. ORGANISED CRIME IN BOSNIA AND HERZEGOVINA ...... 168 6.1. DEFINITION AND MANIFEST FORMS ...... 169 6.2. ANALYSIS OF THREATS FROM ORGANISED CRIME IN BOSNIA AND HERZEGOVINA ...... 169 6.3. FACTORS CONDUCIVE TO ORGANISED CRIME PROGRESSING ...... 175 7. INSTITUTIONS, CAPACITIES AND RESOURCES FOR FIGHTING ORGANISED CRIME ...... 176 7.1. NORMATIVE AND LEGAL FRAMEWORK ...... 176 7.2. INSTITUTIONAL FRAMEWORK TO FIGHT ORGANISED CRIME ...... 178 7.3. INSTITUTIONAL CAPACITIES ...... 178 7.4. ESTABLISHING NEW ORGANISATIONAL UNITS ...... 181 7.5. CAPACITIES FOR FIGHTING ORGANISED CRIME ...... 181 7.6. CIVIL SOCIETY AND MEDIA IN FIGHT AGAINST ORGANISED CRIME ...... 182 8. MEASURES ...... 183 8.1. NORMATIVE AND LEGAL ...... 183 8.2. INSTITUTIONAL ...... 183 8.3. CAPACITIES ...... 183 8.4. PUBLIC AND MEDIA...... 184 9. IMPLEMENTATION ...... 184 10. ACTION PLAN ...... 185

1. INTRODUCTION

164

Among all forms of crimes, organised crime is considered to be the most complex and dangerous form crime in any society and one of the biggest global threats to the modern mankind due to its capacity to swiftly adapt to any given circumstances and situations and to use the modern cyber and technological achievements in illegal actions.

Organised crime as a contemporary security threat without borders jeopardises the current level of the development of civilisation and its achievements, as well as an obstacle to further progress. Organised crime is a threat to democracy, rule of law, human rights, stability, social and economic progress.

In the modern world, organised crime presents a particular problem and challenge and it is, for a good reason, one of the global priorities to be dealt with in the 21st century to suppress the evident organised crime threat to international peace and security.

Aware of the fact that, in addition to national security, regional and global security is of crucial importance, Bosnia and Herzegovina is determined to apply a strategic approach and with the assistance of the international community, through concerted and coordinated efforts of judiciary and executive powers, develop national capacities and resources in order to efficiently combat against all forms of organised crime, particularly against various forms of corruptive actions and influence of the actors of corruption on the structure of all authority levels.

Development and implementation of the Strategy for Combating Organised Crime (hereinafter referred to as: the Strategy) is of the crucial importance to all citizens of Bosnia and Herzegovina and presents an important step in the process of accession to the European Union; however, Bosnia and Herzegovina's commitment to give its contribution to combating this evidently global problem, to the extent possible, is undisputed.

The Bosnia and Herzegovina Council of Ministers will ensure all political and legal prerequisites for successful implementation of the Strategy with a focus on three fundamental principles: a proactive approach to developing and implementing preventive actions, regressive action and seizure of unlawful proceeds

Also, through its own and competent institutions of the entities and Bosnia and Herzegovina Brčko District, the Bosnia and Herzegovina Council of Ministers will develop trust and cooperation with citizens, public, social and private sector in order to liaise between all forces and resources of the society to combat organised crime.

Through this Strategy, the BH Council of Ministers establishes the policy in the area of setting up an efficient system to combat organised crime, where strategic goals, roles and responsibilities of all stakeholders are defined, and it also stipulates frameworks for the development of implementation plans. Also, the Strategy provides for additional conditions for more efficient involvement of Bosnia and Herzegovina in regional, European and global concepts of combat against organised crime.

The Strategy is in line with the commitments specified in the process of stabilisation and accession to the European Union and implementation of the Map of the Road requirements for visa regime liberalisation for BH nationals, as well as the current reform processes within the country, primarily those that are laid down in the European Partnership. It has a strong conceptual and functional nexus to specific strategies i Bosnia and Herzegovina that cover

165

various fields88: integrated border management, fight against corruption, prevention of money laundering and financing of terrorist activities, prevention of human trafficking, control and prevention of unlawful trade in narcotics and dealing with illegal migrations.

2. VISION

A society with an efficient, effective and coordinated system of prevention of and fight against organised crime yielding respectable outcomes of such fight in the region. A system that is in full conformity with EU standards and best practices, which identifies, in the best manner possible, the key security threats to Bosnia and Herzegovina with a view to eliminating and constraining organised crime activity in the period until 2012.

3. UNDERLYING PRINCIPLES

1. Political will – active action against organised crime constitutes the priority of Bosnia and Herzegovina institutions. 2. Non-discrimination and observance of citizens' freedoms and rights – activities aimed at implementing the Strategy safeguard all human freedoms and rights in accordance with the Bosnia and Herzegovina Constitution and laws and international legal standards. 3. Legality – observance of the Constitution and national legislation in the area, as well as provisions of international agreements (international legal instruments) Bosnia and Herzegovina is a signatory to. 4. Uniform and global vision – combating organised crime is founded on a uniform and global analysis of the problem. 5. Coordination and joint cooperation – practices and procedures applied in combating organised crime will be based on the uniform state-level concept of the public and private sectors, international organisations in Bosnia and Herzegovina, civic society and citizens. 6. Professionalism and conformity in all areas of action - combating organised crime implies continuing professional training, education and advancement, as well as the exchange of experiences, best practices and modern achievements, as well s theri conformity to preventive – repressive measures. 7. Active international cooperation – active cooperation in the course of preparations for joining the European Union and securing a more active role of Bosnia and Herzegovina at the international level. 8. Observing commitments in the implementation of the Strategy – implies monitoring of the Strategy implementation where responsible implementing institutions, their clearly defined tasks and timeframes for the Strategy implementation need to be identified. 9. Continuity and progressiveness – a continuation of systemic activities undertaking in combating organised crime, which are permanent and affirm all positive outcomes. 10. Confidentiality – personal particulars arising from specific activities will not be discloses, except in the cases and circumstances identified in the law. 11. Analysis – a periodic analysis and evaluation of the goals attained and measures undertaken 12. Involvement of public and private sectors and civic society – active cooperation of public and private sectors, civic society, international institutions and citizens.

88 Which are being implemented or pending procedure at the time of this Strategy's adoption.

166

13. Alignment – alignment and appropriate use of educational, preventive and repressive measures. . 14. Project transparency and openness – activity outcomes of combating organised crime will be made available to the public.

4. MISSION

Bosnia and Herzegovina will efficiently combat organised crime with all its available capacities through its cooperation with international organisations, as well as through developing modern legal frameworks, institutions and capacities.

5. STRATEGY AIMS

In accordance with international standards and recommendations, the Strategy provides for long-term potential trends and directions of development of organised crime and defines goals, objectives and potentials of Bosnia and Herzegovina for its prevention and minimisation. Also, the Strategy defines the policy, direction and methodology to be used by Bosnia and Herzegovina responsible authorities in combating organised crime.

5.1. GOALS OF THE STRATEGY FOR COMBATING ORGANISED CRIME

1. Align BH legislation with international conventions, treaties, recommendations and standards providing for combating organised crime, as well as rules on the seizure of unlawful proceeds. 2. Improve efficiency in combating organised crime through appropriate awareness raising, preventive and repressive action, as well as seizure of unlawful proceeds. 3. Strengthen capacities (human and material-technical) of all stakeholders in BiH that are involved in combating organised crime. 4. Develop a proactive approach to combating organised crime. 5. Strengthen and develop inter-institutional and inter-agency cooperation within Bosnia and Herzegovina. 6. Develop international cooperation in combating all forms of organised crime with more intensive participation in international organisations, initiatives, working groups and clubs, with efficient and timely implementation of decisions and conclusions arising from their activity. 7. Design independent surveys of organised crime, support institutions dealing with multi-disciplinary research and improve cooperation with scientific and academic organisations. 8. Strengthen cooperation of public, social and private sectors and civic society. 9. Raise awareness of the civic society and education of citizens in respect of risks and adverse effects organised crime has on the society as a whole. 10. Create awareness of judicial authorities and law enforcement agencies of the need to cooperate wit electronic and printed media for the sake of objective and timely informing of the public with the factors conducive to organised crime, important cases of organised crime and examples of the seizure of items and unlawful proceeds.

167

5.2. OBJECTIVES OF COMBATING ORGANISED CRIME

1. Improve the legislative framework and institutional capacities in the area of criminal analyses and criminal intelligence work; 2. Ensure conditions for adequate application of primary and secondary legislation providing for the seizure of unlawful proceeds; 3. Set up a legal framework and strengthen institutional capacities to conduct financial investigations within criminal investigations as well as in procedures for the seizure of unlawful proceeds; 4. Ensure a standardised and efficient legal framework, as well as institutional capacities for undertaking special investigative actions; 5. Ensure a standardised and efficient legal framework for the implementation of all witness protection measures in Bosnia and Herzegovina, as well as financial prerequisites for the implementation of the witness protection programme; 6. Establish and develop international cooperation in criminal-law matters of judicial authorities through which it will be possible, in particular, to undertake joint criminal and financial investigations, 7. Set up and develop the cooperation of law enforcement agencies at the national, regional and international levels that will enable, in particular, joint operations. 8. Build a new standardised IT system and the databases of law enforcement agencies and develop, maintain and update the existing ones; continuing IT training of the staff; 9. Intensify activities aimed at preventing illegal narcotic production and trafficking; 10. Fully implement international standards and recommendations in the area of money laundering prevention and terrorist activity financing; 11. Continue to implement activities aimed at preventing cases of stolen and resold of vehicles as well as of extortion related to the stolen motor vehicles; 12. Reduce the quantity of forged banknotes in circulation and number of the cases of fraud committed by means of forged securities and money equivalents; reduce the number of cases of copyright infringements; reduce tax evasion, goods smuggling and customs fraud; prevention and control of cyber crime; 13. Reduce the number of larceny and robbery cases; 14. Eliminate unlawful trafficking in armament and military equipment and ban the acquisition, transportation, storage and disposal of nuclear material within the territory of Bosnia and Herzegovina; 15. Coordinate the Strategy and its implementation with other relevant strategies such as: integrated border management; fighting corruption; prevention of money laundering and terrorist activity financing; human trafficking; control and prevention of illicit trafficking of narcotics; dealing with illegal migrations; 16. Ensure adequate prison facilities (safe prisons, sufficient capacities); 17. Ensure effective inter-agency and inter-institutional cooperation and coordination with clear roles and responsibilities as well as coordination of the functions between teh agencies at various levels of authority; 18. Improved cooperation between law enforcement agencies and judicial authorities at all levels; 19. Set up a system for an effective assessment of threats coming from organised crime in Bosnia and Herzegovina 4. Set up and maintain a functional information system; 5. Strengthen international cooperation and representation.

6. ORGANISED CRIME IN BOSNIA AND HERZEGOVINA

168

6.1. DEFINITION AND MANIFEST FORMS

Organised crime is an extremely detrimental phenomenon for any society at any stage of development and even more so for those at the stage of transition and democratic transformation. It permeates all spheres of the society, ruins lives and causes huge material damage, produces and encourages other forms of crime, brings in the feeling of fear and hopelessness and jeopardises the integrity and image of a state and state institutions in general.

Organised crime is defined as perpetration of criminal acts by an organised criminal group or its members. An organised criminal group is defined as a group made up of three or more persons that is active for a period of time and who act in concordance in order to commit one or more criminal acts carrying a statutory sentence of imprisonment for a term of a minimum of three years or a harsher sentence, with a view to gaining, either directly or indirectly, financial or other proceeds.

The following are the characteristics to identify organised crime:  Each member of the criminal organisation has their own appointed or evidently appointed tasks or roles;  The criminal organisations operates for a prolonged or indefinite period of time;  The organisation's operations are based on certain rules for internal control and discipline of its members;  The organisation plans and operates at international level;  The organisation uses violence and intimidation in its operations, or is ready to use them;  In its operations, it uses commercial or businesslike structures, money laundering and unlawful proceeds;  The organisation or part of it exerts pressure on politics, the media, legislative, executive and judicial powers or other important social and economic stakeholders.

The information available suggests that here are certain forms of organised crime within Bosnia and Herzegovina in their different aspects of emergence (illicit production and trafficking in narcotics, illicit trafficking in armament and military equipment, human trafficking, smuggling of humans and illegal migrations; white collar crime and tax fraud, money and securities forgery, abuse of office, cyber crime, motor vehicle stealing and reselling, blackmails, extortions, kidnapping, larceny, etc.).

6.2. ANALYSIS OF THREATS FROM ORGANISED CRIME IN BOSNIA AND HERZEGOVINA

In Bosnia and Herzegovina, there have been no relevant or comprehensive surveys in respect of the forms and distribution of organised crime. It is in this sense that it must be concluded that Bosnia and Herzegovina is under-researched territory. This further aggravated by the fact that political decisions are typically issued in an untimely manner, that reforms are implemented at a slow pace, that insufficient efforts are invested into consolidation and harmonisation of the criminal-law system with law enforcement agencies, which are fragmented, poorly linked and coordinated, lacking data collection and their timely exchange, which is why combating organised crime remains to be inadequate as a response to the actual problems.

169

It is evident from the above that a clear assessment of the current situation is not possible and is made exclusively on the basis of the intelligence collected so far, conclusions arising from the intelligence collected in operational actions; work of police officers and criminal prosecution, as well as processing of statistics on persons denounced to prosecutor's offices.

Given the assessment of the current situation concerning organised crime in the region, it is clear that such an assessment is by far more difficult to make that the assessment of the so called conventional crime, particularly in light of the fact that any detection of organised crime rests almost exclusively on detailed and comprehensive state activity.

Analyses undertaken so far suggest that organised crime in Bosnia and Herzegovina is, to a significant extend, determined by the following three factors: geo-political position, transition processes in the country and surrounding area and a troubled socio-economic system.

It is estimated that a large number of organised criminal groups are active in Bosnia and Herzegovina, which share the following common characteristics:

- Three or more persons collaborate in the criminal arena; - The groups have a hierarchical structure with clear division of tasks within the group; - The groups are determined by the pursuit of profit; - The groups use violence to achieve the goal; - The groups use modern technology and infrastructure; - These groups are very well linked in the territory of Bosnia and Herzegovina as well as with other criminal groups abroad, mainly from Montenegro, Serbia, Croatia, Macedonia, Albania, Slovenia and Turkey; - As of recently, the groups have been hiring the members of certain groups from the region to commit ordered murders that can be related to organised crime.

The organised criminal groups have an extremely detrimental effect on the economic and industrial development of Bosnia and Herzegovina. The basic method of their operations is to invest a large sums of unlawfully gained money into legal channels as well as to corrupt public administration officials in order to have access to protected information and affect the flow and outcome of criminal prosecution. It is impossible to give accurate calculations of material and financial harm that organised crime does to Bosnia and Herzegovina; however, it is certain that it is of large magnitude.

- Given the geo-strategic position of Bosnia and Herzegovina as well as the importance of the so-called Balkans route, one section of which passes through Bosnia and Herzegovina, narcotics trafficking may be considered one of the major activities of the organised criminal groups that are active in the territory of Bosnia and Herzegovina. The data on the quantities seized corroborate it, although the quantities seized represent only a minor portion of what is assumed to be the total quantity of drugs smuggled through or into Bosnia and Herzegovina. The processes of disintegration of the previous social system running in parallel to those of setting up a new one, which is still in its cradle, along with the take-off of organised crime, prostitution, human trafficking and general impoverishment of the nation only contributed to deepening of the problems related to drugs. Aware of this fact, the BH criminal groups direct a significant part of their activities at organising the supply, transport, storage and distribution of narcotics. Economic consequences for the society arising from drug trafficking, illicit money channels and transactions are huge, which are, amongst other things, conducive to large costs of the treatment and social care of addicts; at the same time, such addicts are usable for errands within the criminal groups.

170

The available data suggest that, irrespective of certain results attained in preventing and stopping illegal activities, narcotics trafficking is taking off, particularly if viewed in light of the parameters such as the number of persons involved in the above activities and increasing numbers of addicts in the area of Bosnia and Herzegovina. With regard to the above, law enforcement agencies have identified a number of persons and organised groups, which are active in drug trafficking operating along the so-called Balkans route. The intelligence and information from the international exchange suggest that in the SEE region huge quantities of heroin are in transit on the way to Western Europe, hand in hand with regional production of cannabis, synthetic drugs and precursors for the European market. Criminals with addresses in Western Europe but descending from this region smuggle drugs to Western European countries and further resell it there. The fact that law enforcement agencies from Western Europe have recently seized a large quantity of heroin from BH nationals proves the high level of involvement i of a large number of persons from this area n heroin trafficking, as well as the fact that heroin is most frequently smuggled drugs in this region.

Concerning heroin, it is quite certain that the major quantities just pass through Bosnia and Herzegovina; based on the same data, it can be concluded that Bosnia and Herzegovina is mainly used as a transit area with some of the well-treaded routes of the "Balkans drug route". This is the route through which drug from eastern countries (Afghanistan, Turkey) is smuggled via Bulgaria, Macedonia, Serbia, Montenegro to Bosnia and Herzegovina, Croatia and EU countries. This is the pre-war "Balkans route" which, following the war in the former Yugoslavia, contorted and ramified.

Concerning cocaine, it can be rightly concluded that cocaine from South America reaches the Western European market via large sea ports of Greece, Montenegro, Albania, Italy and Croatia. This is further corroborated by large quantities of cocaine seized on ships carrying such cargo from South America to Greece, Croatia, and other countries. For further distribution of cocaine, the Balkan route is used again almost in an identical manner as in the case of heroin.

Various types of drugs have been observed to be in circulation within the territory of Bosnia and Herzegovina: heroin, cannabis, cocaine, speed, ecstasy, marijuana, hashish, methamphetamine and other, so-called medical drugs (Hepthanon and others). Also, significant quantities of chemical substances have been seized in Bosnia and Herzegovina (acetic anhydride), which are used to produce the so-called precursor narcotics. The most predominant drugs are marijuana, heroin, speed and ecstasy, whereas other drugs, such as cocaine and hashish are less represented, primarily because of their high prices.

Given the above as well as relevant indicators of large quantities of narcotics seized at the state borders of Turkey, Bulgaria, Serbia, Montenegro, Bosnia and Herzegovina, Croatia, Slovenia, Austria, France all the way to Germany and Sweden, on which occasions Bosnia and Herzegovina nationals were apprehended, it can be undoubtedly concluded that Bosnia and Herzegovina has a prominent role in the transfer of narcotics along the eastbound and westbound lines.

Some areas of the Western Balkans, including Bosnia and Herzegovina, have become source areas of trafficking of armament, which remained as "excess armament", particularly after the armed conflicts in the last decade of the last century. In terms of armament trafficking, Bosnia and Herzegovina is not only a transit country, but also a source and destination country as well. Illicit armament and military equipment trafficking activity have been observed in the country. According to the available intelligence, trafficking in armament of military origin left behind the war conflicts or military storehouses is increasing. Law enforcement agencies 171

in Bosnia and Herzegovina have identified a number of potential locations where illicit armament is being hidden, which also serve as hideouts of some groups where they hided or are still hiding until they identify potential clients. The quantity of armament hidden at those locations ranges from several to many pieces of different kind of arms, ammunition or mines and explosives. It is in this form of illicit trafficking as well that criminal groups from the area of Bosnia and Herzegovina cooperate with those from other countries (Montenegro, Serbia, Croatia), which gives rise to the conclusion that his form of crime has an international dimension with prominent characteristics of organisation.

- One form of crime that has lately been seen in the area of Bosnia and Herzegovina as increasingly taking on elements of organisation is certainly motor vehicle stealing and reselling. Persons involved in this form of crime are extremely organised and equipped with sophisticated equipment. This conclusion is further supported by the data on the large number of groups dealing with motor vehicle stealing and reselling that have been identified so far. The fact is that criminal groups are able to establish good mutual cooperation irrespective of cantonal or entity boundaries, which is also true for international borders, which obviously do not constitute any obstacle for them whatsoever. This situation is used by well organised individuals and an increasing number of criminal organisations, which control the stolen vehicle market in this part of Europe by means of sophisticated technology and a network of international contacts. Forged and stolen registration plates, forged vehicle registration documents, false "identification plates" that ensure a new vehicle identity are used to pass police and customs checks smoothly; also, good connection of criminals with border crossing point officers is evident. The data suggest that organised groups are also well connected with individual police officers in some law enforcement agencies in Bosnia and Herzegovina.

Organisation, in is manifest form, is reflected in the fact that groups of persons "select" and steal targeted automobile types and makes of German motor vehicles, such as VW- manufactured Golf and Passat, „AUDI“, „Mercedes“, „BMW“, which are then transported to the final destinations along the well-treaded routes. In Bosnia and Herzegovina, there is a special mode of vehicle-based crime in which some criminal groups have specialised: stealing vehicles followed by blackmailing of the owners, where the owners are demanded to repurchase their own vehicles. It is not rare that the owners are willing to give the demanded amount of money to repurchase their own vehicle; however, they are typically conned because the vehicle is never returned and is instead dismantled and sold as spare parts. The data suggest that in Bosnia and Herzegovina, a total od 1.766 motor vehicles were stolen in 2008. - As well as being a country of transit or destination, Bosnia and Herzegovina is increasingly seen as a country of origin of human trafficking victims, who are trafficked predominantly for the purpose of sexual and labour exploitation. Bosnia and Herzegovina used to be among top transit routes for both legal and illicit transfer of goods and people. It is exactly the Balkans route that has been used to smuggle African, Asian, Albanian and Turkish nationals to the countries of Western Europe for a number of years now. Increasingly frequent breaking of illegal migration chains by BH and neighbouring states authorities, prosecuting of both organisers and actors, preventing illegal crossings and deportation of dozens of immigrants, as well as the application of the Protocol on Joint Patrols Along the Joint Borderline, which Bosnia and Herzegovina and the neighbouring countries (Croatia, Serbia, Montenegro) signed, have resulted in a lower scope of illegal migrations relative to previous periods.

172

However, the data and activities of law enforcement agencies in the field suggest that this phenomenon is still present. In addition to the illegal migrations via the territory of Bosnia and Herzegovina as a transit country, economic migration of BH nationals has become more prominent over the past period of time,

- Corruption has been identified as a serious social problem and its scope is often impossible to determine. Corruption is a relationship based on abuse of office in the public or private sector with the intent to derive an advantage for oneself or others. Organised crime is inseparably linked to corruption, primarily authorities at all level of governance. Corruption in state bodies, organisations and public services jeopardises legal procedures, professional ethics and moral, rules of profession as well as citizens' rights to social welfare, education, medical treatment, fair and just trial. Corruption particularly affects the educational and health sectors, local self-governance, judiciary, customs and police services. The issue of the relation between corruption and organised crime may be viewed from two angles of the cause - result link: corruption as fertile soil for organised crime and organised crime resulting in corruption.

- Money laundering is a mix of general and white collar crime and is one of the important factors of organised crime. The trends observed suggest that money from predicate crimes is invested to acquire property and luxuries in the territory of Bosnia and Herzegovina. Also, unlawful proceeds are exported from the country and transferred into private accounts of physical persons, as well as the accounts of "off-shore" companies incorporated for the purpose. There is also a trend to legalise unlawful proceeds from predicate general crimes, where persons who are specialist in finances are used to help launder money. It has also been observed that unlawful proceeds acquired abroad enters the country, either physically or via bank transfers, and are invested in real estates in Bosnia and Herzegovina, which is further made possible by the absence or insufficient application of property origin laws. The privatisation process in Bosnia and Herzegovina largely enables investing "dirty" money in acquiring legal persons subject to privatisation.

- It is generally recognised that money forgery is an issue in Bosnia and Herzegovina, which will certainly become more prominent once the single European currency is introduced. This crime mainly refers to distribution and circulation of forged banknotes, which has been identified in a number of towns across Bosnia and Herzegovina. A large number from Bosnia and Herzegovina, as well as other countries (Serbia, Montenegro, and Croatia) are involved in the production, supply and circulation of forged banknotes. In most cases, forged Euro banknotes (mainly in EUR 100 denomination notes) are found in circulation, as well as BAM banknotes (mainly in BAM 20 and 50 denomination notes, particularly in the area of North- Eastern Bosnia). Such banknotes are of high quality and are sold at the 20-30% rate of the nominal value of the notes. Also, forged coins (with a denomination of BAM 5) have also been observed recently. In addition to the forgery cases, certain organised groups dealing with payment cards forgery and abuse have been observed, as the payment cards are increasingly used in our country.

It is estimated that the general situation in Bosnia and Herzegovina will remain burdened, to a significant extent, with all adverse effects of the above criminal forms, where the economic stability and legal cash flow channels are directly jeopardised. Except in Bosnia and Herzegovina, the very same problem is highly prominent in other countries of the region and Western Europe.

173

- The intelligence suggests that high-tariff goods trafficking has become prominent, particularly of cigarettes. This activity is observed in the border areas between Bosnia and Herzegovina and Montenegro, and, to a lesser extent, between Serbia and Bosnia and Herzegovina, and Croatia and Bosnia and Herzegovina. This activity varies in terms of its intensity and stagnation intervals caused by numerous factors, primarily the price of cigarettes on the markets in Bosnia and Herzegovina and neighbouring countries. Of the total quantities of cigarettes smuggled into Bosnia and Herzegovina, one portion ends up on black markets in the country, while the remainder is transported to Croatia and EU countries. A large number of persons from Bosnia and Herzegovina and neighbouring countries (Serbia, Montenegro, Croatia) have increasingly taken part in high-tariff goods trafficking (cigarettes notably). This suggests that this phenomenon has a character of international organised crime, where each individual involved in the chains of trafficking has his/her specific role (supply, transport to the border crossing, taking over, smuggling across the border, storage at various locations along the route and at the final destination, transport and distribution to ultimate consumers.

- The current situation in the area of cyber crime underlines the fact that the rate of expansion of this form of crime and the number of recidivists are increasing, particularly in terms of unauthorised access to protected computers, computer network and electronic data processing as well as infringement of intellectual property rights. Also, organised criminal groups active in narcotics trafficking, money forgery, human trafficking and money laundering increasingly use new technologies in their communication, such as VoIP technology, e-mail, and instant massagers.

It is believed that the forthcoming era of cyber crime will be characterised by increasing use of computers by organised crime groups in the distribution of narcotics; child pornography; payment cards abuse; human trafficking; electronic transfers of money, which are attractive because of more reliable and swifter ways to launder large amounts of money; more intensified involvement of minors in serious crimes, identity theft and e-commerce abuse.

Bosnia and Herzegovina has recently registered a large number of cases of brigandage cases, where well-organised groups attacked banks and postal services without adequate protection mechanisms. In addition, such crimes have been committed in commercial and catering establishments, such as shopping malls, petrol stations, betting shops and the like. What is particularly alarming are the cases of brigandage aimed at private residential property and cases of highway robbery. The common feature of all these crimes is that they are committed by use of arms and other means of coercion, and that they are always well prepared and organised criminal activities. In addition to multi-million damages, this form of crime has particularly adverse effects on the citizens' feeling of safety and security.

The perpetrators of brigandage and robberies of banks, postal services, betting shops and petrol stations in Bosnia and Herzegovina are organised criminal groups specialised in these forms of crime. Due to their nature but also the media presentation, these crimes contribute to the feeling of insecurity and a perception of a high level of threat in terms of security in the country.

In 2008, Bosnia and Herzegovina has seen 24 robberies of banks, postal services and cash transport vehicles, whereas the number such cases was 26 in 2007.

The number of brigandage and robbery cases is increasing: betting shops (60), petrol stations (48) as well as lottery offices (4). What is alarming is the further downturn in the number of cases resolved relative to previous periods, particularly cases of crimes committed in establishments without proper physical or other security systems. Relative to 2007, when a 174

total of BAM 3.585.214 was stolen in those crimes, in 2008 a total of BAM 2.108.260 was stolen. 52 persons received serious or minor injuries in those brigandage and robbery cases89.

- Violent crimes, such as kidnapping, extortion and blackmails characterise the specific economic and social conditions in Bosnia and Herzegovina. The current global economic crisis, which has spilled over to Bosnia and Herzegovina as well, will contribute to the increase of violent crimes and criminal groups specialising in these crimes, as well as links with organised criminal groups in the neighbouring areas.

6.3. FACTORS CONDUCIVE TO ORGANISED CRIME PROGRESSING

The factors that are conducive to organised crime progressing in Bosnia and Herzegovina are many and are similar by their form and intensity to the factors omnipresent in the countries in transition.

The following factors need to be noted in particular:

- Troubled socio-economic system and corruption; - Transition of the society and transformation from social to private property; - Instable political situation; - Specific geo-strategic position of Bosnia and Herzegovina; - Social inequity and poverty; - High unemployment rates; - Non-application or selective application of laws; lack of professionalism and abuse of modern technologies; - Lack of inter-agency and inter-institutional cooperation as well as of coordinated effort.

It is believed that any further directions and progressing of organised crime in Bosnia and Herzegovina, with a varying intensity, will result in effects and consequences to be brought about by further deepening of the economic crisis. All experiences observed so far lead to the conclusion that in an economic crisis, all forms of organised crime tend to take on a new intensity and form. Namely, an increasing number of jobless people whose subsidence is at stake might inflate the number of potential criminals and crimes in all their forms, primarily narcotics trafficking, illegal migrations, all forms of smuggling of high-tariff goods, armament, stolen vehicles, etc.

This might bring about a "new" criminal relationship between "influential" organised crime actors, which will result in their mutual squaring accounts with the use of force (murders, blackmails, kidnapping).

In case the effects of socio-economic problems are stopped or eliminated, with the support provided through adequate political decisions, all forms of organised crime could be reduced and further weakened, and the overall adverse effects on the society could be further reduced or eliminated.

89 2008 Report on Security in Bosnia and Herzegovina 175

It is exactly for these reasons that it is necessary for the Strategy to incorporate a continuous and integrated process of measures and methods to be undertaken by all state authorities and other relevant stakeholders in Bosnia and Herzegovina in combating organised crime.

7. INSTITUTIONS, CAPACITIES AND RESOURCES FOR FIGHTING ORGANISED CRIME

7.1. NORMATIVE AND LEGAL FRAMEWORK

The Strategy is founded on all applicable laws, conventions, bilateral and multilateral agreements, as well as on other acts issued and adopted by the date of the entry into force of this Strategy. In the past period, Bosnia and Herzegovina has ratified major conventions pertaining to the fight against organised crime.

Establishing a modern and comprehensive legal framework in keeping with the relevant international standards constitutes one of the key system conditions for an efficient fight against organised crime in Bosnia and Herzegovina. All authorities responsible for fighting organised crime assess the effectiveness of the legal framework and aim to advance it according to the needs.

The jurisdiction, authorities and conduct of all authorities that take part in the fight against organised crime are regulated in a number of laws, most important of which are the following: BiH Criminal Procedure Code, (BiH Official Gazette, nos. 36/03, 26/04, 13/05, 48/05, 46/06, 76/06, 29/07, 2/07, 53/07, 76/07, 15/08, and 58/08); BiH Criminal Code (BiH Official Gazette, nos. 37/03, 61/04, 30/05, 53/06, 55/06, and 32/07); Court of BiH Act (BiH Official Gazette, nos. 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04, 35/04, 61/04, and 32/07); BiH Police Officers Act (BiH Official Gazette, nos. 27/04, 63/04, 5/06, 33/06, 58/06,15/8, 63/08, and 35/09); State Investigation and Protection Agency Act (BiH Official Gazette, no. 27/04); BiH Border Police Act (BiH Official Gazette, nos. 50/04, 27/07, and 59/09); Directorate for Coordination of Police Bodies and Agencies for Support to the Police Structures of BiH Act (BiH Official Gazette, no. 36/08); Anti-Money Laundering and Terrorist Financing Act (BiH Official Gazette, nos. 29/04, 29/04, 17/05, and 53/09); Protection of Witnesses under Threat and Vulnerable Witnesses Act (BiH Official Gazette, nos. 29/04, 61/04, and 55/05); BiH Witness Protection Programme Act (BiH Official Gazette, no. 29/04); BiH Freedom of Access to Information Act (BiH Official Gazette, no. 28/00); BiH Personal Data Protection Act (BiH Official Gazette, no. 49/2006); Secret Data Protection Act (BiH Official Gazette, no. 54/05); BiH Execution of Criminal Sanctions, Detention and Other Measures Act (BiH Official Gazette, nos. 13/05, 53/07, 97/07, and 37/09); Act on Establishing the Institute for the Execution of Criminal Sanctions, Detention and Other Measures (BiH Official Gazette, no. 24/08); International Legal Assistance in Criminal Matters Act (BiH Official Gazette, no. 53/09); BiH Intelligence and Security Agency (BiH Official Gazette, no. 12/04).

The jurisdiction, competencies and operations of all entity authorities and authorities of the District Brčko of BiH in the fight against organised crime are regulated in a number of laws, most important of which are the following: RS Criminal Procedure Code (BiH Official Gazette, no. 50/03), RS Criminal Code (BiH Official Gazette, no. 49/03), RS Internal Affairs Act (BiH Official Gazette, no. 48/03), RS Execution of Penal and Civil Sanctions Act (RS Official Gazette, no. 64/01), RS Enforcement Procedure Code (RS Official Gazette, no. 59/03), RS Act on Combating Organised Crime and Serious Forms of Organised Crime (RS

176

Official Gazette, no. 37/06), Criminal Procedure Code of the Brčko District of BiH, (Brčko District Official Gazette, nos. 10/03, 6/05, 14/07, 19/07, 2/08, and 17/09), Police Force Act of the Brčko District of BiH (Brčko District Official Gazette, nos. 2/00 and 33/05), Police Officers Act of the Brčko District of BiH (Brčko District Official Gazette, nos. 41/07 and 4/08), Criminal Code of the Brčko District of BiH (Brčko District Official Gazette, no. 10/03), Execution of Penal and Civil Sanctions Act (Brčko District Official Gazette“, nos. 8/00, 1/01, 19/07, and 36/07), FBiH Internal Affairs Act (FBiH Official Gazette, no. 49/05), FBiH Criminal Procedure Code (FBiH Official Gazette, nos. 35/03, 53/07, and 9/09), FBiH Criminal Code (FBiH Official Gazette, nos. 36/03, 37/03, 21/04, and 17/05), FBiH Police Officers Act (FBiH Official Gazette, no. 70/08)

The legislation (state and entity) pertaining to organised crime is as follows:

 BiH CC – Chapter XXII (Conspiracy, preparation, associating and organised crime) which includes the following criminal offences: Art. 247 – Conspiracy to perpetrate a criminal offence, Art. 248 – Preparation of a criminal offence, Art. 249 – Associating for the purpose of perpetrating criminal offences, Art. 250 – Organised crime;  FBiH CC – Chapter XXIX (Criminal offences against the judiciary) which includes the following criminal offences: Art. 338 – Conspiracy to perpetrate a criminal offence, Art. 339 – Preparation of a criminal offence, Art. 340 – Associating for the purpose of perpetrating criminal offences, Art. 341 – Participating in a group of people which perpetrates criminal offences, Art.342 – Organised criminal group;  RS CC – Chapter XXX (Criminal offences against public order and peace), which includes the following criminal offences: Art. 383 – Organised criminal group, Art.383a) – Organised crime, Art.384 – Conspiracy to perpetrate a criminal offence  Brčko District CC – Chapter XXIX – Criminal offences against the judiciary: Art. 332 – Conspiracy to perpetrate a criminal offence, Art. 333 – Preparation of a criminal offence, Art. 334 – Associating for the purpose of perpetrating a criminal offence, Art. 335 - Participation in a group of people which perpetrates criminal offences, Art. 336 - Criminal organisation.

The National Anti-Corruption Strategy, which is being developed, will contain and envisages a series of recommendations pertaining to the fight against corruption. This Strategy will, inter alia, include the recommendations pertaining to the consistent application of regulations on the mandatory forfeiture of corruptly acquired gains, as well as the development of an operating manual for seized, frozen and forfeited material gain.

The latest amendments to the BiH Criminal Procedure Code and the harmonisation of the entity CPCs and Brčko District CPC have expanded the possibilities for conducting investigative actions as a substantial prerequisite for an efficient fight against organised crime. These amendments have ensured that a criminal procedure can be conducted for a large number of criminal offences in an efficient manner.

Similarly, the applicable CPC has been accommodated to the needs and requirements of modern times and it has therefore severed some of the important links with previously applicable laws, primarily by emancipating from ideological heritage and by aligning its provisions on the rights of certain parties in the criminal procedure, in particular the accused, his/her defence counsel and the injured party, with international legal standards which, in this area of law, are defined in major international legal documents, especially in the European Convention.

177

The objective of all these changes in the CPC could be briefly represented as: more efficiently fighting against the growing problem of organised crime and corruption, incorporating new methods into the fight against complex forms of contemporary crime, expediting the criminal procedure, simplying the criminal procedure for misdemeanours, protecting rights and freedoms of man and harmonising criminal justice regulations in BiH. For that purpose the criminal procedure acts in BiH have introduced a number of new legal notions into the BiH criminal procedure.

The applicable CPCs in BiH have created the necessary conditions for an effective protection of all values in Bosnia and Herzegovina.

7.2. INSTITUTIONAL FRAMEWORK TO FIGHT ORGANISED CRIME

The BiH Council of Ministers, as the executive authority, steers, coordinates and supervises the work of public administration bodies. The political will of the Council of Ministers and other political entities plays a major role in the fight against organised crime.

The success of the fight depends on the resoluteness and ability of the political factors to confront organised crime. Thus, the existence and stability of political will, adoption and implementation of relevant regulations, as well as the strengthening of government authorities, i.e. of the institutional framework and policy, constitute the conditions for the implementation of the Strategy.

7.3. INSTITUTIONAL CAPACITIES

There are agencies at the Bosnia and Herzegovina level which, among others and as part of the Bosnia and Herzegovina Ministry of Security, address the issue of combating organised crime:

 State Investigation and Protection Agency (SIPA),  BiH Border Police (BiH BP),  Bureau for the Cooperation with the Interpol (NCB Interpol Sarajevo).

The State Investigation and Protection Agency Act provides for the competencies of the State Investigation and Protection Agency (SIPA) and they mostly pertain to organised crime, terrorism, war crimes, people trafficking and other crimes against humanity and values protected by international law, and serious economic crime. The SIPA processes data and maintains records, pursuant to the BiH Police Officers Act, BiH Personal Data Protection Act, and other Bosnia and Herzegovina regulations.

The Financial Intelligence Department (FID) at SIPA headquarters is in charge of anti-money laundering and terrorist financing tasks and duties and, as such, it is the main enforcement authority for this issue in BiH.

The SIPA is capable of conducting most complex investigations of criminal offences of organised crime with its existing financial and human resource potentials.

178

The BiH Border Police Act provides for the competencies of the BiH Border Police and these include as follows: implementation of the Border Control Act and the Movement and Stay of Foreign Nationals and Asylum Act, prevention, detection and investigation of criminal offences provided for under the criminal codes in Bosnia and Herzegovina when these offences are directed against the security of the state borders or against the performance of tasks and duties that fall within the BiH BP competence. Criminal offences pursuant to the provisions concerning the misuse of public documents serving as proof of identity and concerning the obligation to hold visa and the provisions concerning the movement and stay of foreign nationals and asylum in case they are committed when crossing the border or are directly connected with crossing the border, criminal offences pertaining to the transport of goods whose trade is not permitted and goods with no official approval across the state border, or in case of the violation of a ban which is in force fall within this category.

The Central Investigation Office works as part of the BP and they have jurisdiction to prevent and detect criminal offences of trans-border organised crime, especially in the segment of people smuggling, illegal migrations and smuggling of goods.

The Bureau for the Cooperation with the Interpol (NCB Interpol Sarajevo) also functions as part of the Ministry of Security, as an independent service whose rights and responsibilities are regulated in special regulations. Its mission is to provide and advance the cooperation with the police forces and judiciary authorities in the fight against international organised crime and other forms of international crime, in the spirit of the Universal Declaration of Human Rights.

The Court and the Prosecutor‟s Office of Bosnia and Herzegovina function at the state level and their respective competencies are stipulated in the Court of BiH Act and the BiH Prosecutor‟s Office Act.

The Prosecutor‟s Office of Bosnia and Herzegovina is an institution whose jurisdiction is defined in the BiH Prosecutor‟s Office Act. Inter alia, it is responsible for criminal offences of organised crime at the Bosnia and Herzegovina level, and in particular for criminal offences of international drugs trade, human trafficking, criminal offences of corruption where the perpetrators are representatives of Bosnia and Herzegovina institutions, as well as for the criminal offences of economic crime endangering the economic integrity and unity of the Bosnia and Herzegovina market.

A Special Department for Organised Crime, Economic Crime and Corruption is established as part of the Prosecutor‟s Office of Bosnia and Herzegovina, with a view to investigating and prosecuting the said criminal offences as efficiently as possible.

District and Cantonal Prosecutor‟s Offices function at the entity level, while the Prosecutor‟s Office of the Brčko District of BiH functions in the Brčko District of BiH. A Special Prosecutor‟s Office has been established in the Republic of Srpska and it is solely competent to fight organised crime.

The Intelligence and Security Agency (OSA/OBA) functions as an independent agency for gathering security-related intelligence. For their work they are directly responsible to the Parliament of Bosnia and Herzegovina, i.e. to the Parliamentary Commission whose competencies are in turn stipulated in the Bosnia and Herzegovina Intelligence and Security Agency Act. Among other things, the OSA/OBA duties include the gathering, analysis, and dissemination of organised crime information which constitutes a threat to BiH and global security, especially in the areas of drug, weapon, and human trafficking, the unlawful 179

international production of weapons of mass destruction or components, materials and devices required for the production thereof, the unlawful trade in products and technologies under international control.

The Indirect Taxation Authority of Bosnia and Herzegovina, as an independent administration at the level of Bosnia and Herzegovina, enforces legal and other indirect taxation regulations and policy defined by the BiH Council of Ministers at the ITA Governing Board proposal. The ITA is established by the Indirect Taxation System Act and, through its Governing Board, it is directly responsible to the BiH Council of Ministers.

The competence of the Indirect Taxation Authority of Bosnia and Herzegovina is regulated in the Indirect Taxation Authority Act and it, inter alia, reflects in combating, detecting and investigating customs, tax and other offences and, pursuant to the instructions of the competent Prosecutor, in conducting activities pertaining to investigations of indirect taxation criminal offences through its Law Enforcement Sector.

In addition to state-level institutions, there are the FBiH Ministry of Internal Affairs (FBiH MoI), the RS Ministry of Internal Affairs, and the Brčko District Police Force at the entity level.

There are ten cantons in the Federation of Bosnia and Herzegovina. Cantonal Ministries of Internal Affairs function in every canton and they comprise police administrations established on a territorial and functional basis. The police administrations comprise two or more police stations (municipal level). The Federation of Bosnia and Herzegovina Internal Affairs Act90 provides for the competencies of the FBiH Ministry of Internal Affairs (FBiH MoI Police Administration) which, inter alia, refer to combating criminal offences of terrorism, inter- cantonal crime, putting drugs into circulation, organised crime, tracking down and apprehending perpetrators of these criminal offences, pursuant to the above Law. The Cantonal Ministries of Internal Affairs have the competencies stipulated in Cantonal Internal Affairs acts. The police force in the FBiH is decentralised, with no clear coordination and subordination in its operations.

The competencies of the Republic of Srpska Ministry of Internal Affairs are stipulated in the Republic of Srpska Internal Affairs Act.91 The Ministry is organised through the work of five public security centres directly connected with the MoI‟s headquarters. Functionally, the Ministry is comprised of six administrations, one of which is the Crime Police Administration organised in seven departments and the Special Investigations Unit as a special anti-organised crime section. Five departments have been established in the Special Investigations Unit, including the Special Anti-Organised Crime Department and Cyber Crime Department. The establishing of a new Anti-Organised Crime and Corruption Administration is under way.

The Brčko District Police Force has a complete, subject-matter and territorial jurisdiction over the territory of the Brčko District of BIH provided for under the Brčko District Police Force Act92. The Organised Crime and Drugs Department and Economic Crime and Corruption Department have been established as part of the Crime Police Unit.

The difficulties in coordinating such great number of agencies within our security system and the diversity of the legal frameworks defining the competencies of particular institutions have resulted in non-cooperation and rivalry between individual agencies. The non-cooperation and

90 Federation of Bosnia and Herzegovina Official Gazette, no. 49/05 91 RS Official Gazette, no. 48/03 92 Brčko District Official Gazette, nos. 2/00 - 33/05 180

rivalry directly result in an untimely exchange of information, which directly affects the disunity of the security system and makes it vulnerable to offensive actions taken by organised crime figures. The cooperation between the stakeholders in the fight against organised crime must be established more efficiently, with a possibility for advancement through joint investigations, data exchange and establishment of a more efficient information system.

The Council of Ministers‟ task forces are formed with a view to providing opinions and proposals from the jurisdiction of the Council of Ministers and aligning positions of public administration bodies.

The BiH Council of Ministers may form permanent and temporary task forces in order to consider particular issues from their competence and provide proposals, opinions and technical explanations. Other authorities, administration bodies, entities, the Brčko District of BiH, cantons, local self-governance bodies and public services constitute a major factor in the fight against organised crime.

7.4. ESTABLISHING NEW ORGANISATIONAL UNITS

The need for a flexible response to all contemporary forms of organised crime, characterised by complexity, dynamic nature, and changes of manifestations thereof requires that it be possible to establish new organisational units in accordance with the legal framework and budgetary constraints.

7.5. CAPACITIES FOR FIGHTING ORGANISED CRIME

All institutions and bodies competent for fighting organised crime are characterised by the shortage of personnel, both in terms of their numbers and in terms of their quality. On one hand, there is a tendency towards the drain of quality and experienced personnel to other institutions or bodies and the private sector which attracts them with incomparably better working conditions and on the other, there is an influx of young and inexperienced officers who lack the knowledge and skills required to successfully fight organised crime. What is required in order to create good personnel to fight organised crime is long-term direct engagement in this area and continuous training and improvement in different types of specialist skills.

The process of providing personnel with specialist training for fighting organised crime is not permanent for now, nor is there a developed training system which would facilitate continual acquisition of the competencies required. Specialist training is carried out periodically, through seminars, roundtables, practical training courses, study visits, etc. It is particularly needed in order to understand the specific characteristics of organised crime, to improve methods for fighting organised crime, investigation tactics and documenting contemporary forms of crime, to apply special investigative techniques, conduct financial investigations and efficiently forfeit criminal property, to implement international standards and develop legislation in other areas as well.

Investing in the modernisation of the infrastructure and equipment is a constant need, particularly in terms of standardisation and modernity, bearing in mind systems and equipment used by organised criminal groups nowadays. This makes the integration and 181

quick response of all relevant institutions and bodies possible and provides a continuous and efficient fight against organised crime.

The resources required for these activities are provided from the budgets in Bosnia and Herzegovina. The principal Strategy objectives will be implemented through different activities of institutions and bodies in BiH and international agencies. The special activities to be implemented are the establishment of financial planning mechanisms and instruments, both from the budgets in Bosnia and Herzegovina and from international funds and other sources of funding. It has also been observed that there is a need to enhance the coordination between international funds and funding instruments.

The proactive approach in the fight against organised crime carries in itself the prospect of change in our total potential and implies, inter alia, coordination and better utilisation of intelligence and strategic analysis information (e.g. risk and threat assessment), advancement of knowledge, enhanced cooperation between institutions and bodies, more efficient enforcement of applicable laws, application of best practices and connecting information networks and databases, as well as development of regional cooperation at all levels.

Organised crime constitutes a threat and a risk to national security, which in turn requires the intensification of criminal intelligence-related work and data exchange. Even though the cooperation between security services and the intelligence and security service is satisfactory, the possibility should be considered to further improve and develop this cooperation towards an even more efficient system based on the new knowledge and experience of both local and foreign stakeholders in the fight against organised crime. Information is shared but there are many information systems which are not satisfactorily coordinated.

The preventive forms of fighting organised crime include different activities which diminish the possibilities for the commission of criminal offences and improve the social factors which prevent the emergence and development of organised crime. Besides, they contribute to the information and protection of victims of organised crime, which necessitates the cooperation between the stakeholders involved in prevention and their connecting at all levels. Also, the assessment of the potential impact of particular legal solutions on organised crime prevention should play an important role.

The lack of an adequate strategic analysis is one of the major factors rendering the fight against organised crime difficult. The strategic analysis which, inter alia, includes the analysis of existing risks and threat assessment, along with intensified intelligence-related work, is the precondition for a more efficient fight against organised crime.

7.6. CIVIL SOCIETY AND MEDIA IN FIGHT AGAINST ORGANISED CRIME

The complexity of the fight against organised crime as a social phenomenon requires the whole society, primarily the citizenry, to take an active part. The interest of civil society in being protected against organised crime constitutes an important potential for the cooperation with competent authorities. Also, there are many symptoms of organised crime which citizens notice, such as criminal activities, suspicious behaviour, outward manifestations, consequence, etc.

The efforts of the competent authorities made in the fight against organised crime cannot give proper results without the support from citizens. They are one of the main objects of the 182

protection in the Strategy, but they are also its stakeholder. The Strategy will provide a possibility to develop citizens‟ awareness of the far-reaching consequences of organised crime.

Citizen associations, trade and professional associations can too detect problems concerning new manifestations of organised crime. The cooperation between specialised anti-organised crime bodies can be of great importance when new manifestations of organised crime are detected.

The media and the undeniable influence they have on society constitute a significant, practically unavoidable, factor in the fight against organised crime, especially by objectively reporting on manifestations, promoting the results achieved, and by pointing to the harmful effects this phenomenon has on society as a whole, to the extent to which they do not affect the conduct of proceedings against perpetrators of criminal offences of organised crime. At the same time, the nature and financial strength of organised crime imposes the ever-present danger of influencing the media with a view to profiling public opinion and diverting the attention of the public from the activities of particular criminal organisations.

8. MEASURES

On the basis of the projections of further trends and developments in organised crime in Bosnia and Herzegovina, and on the basis of the estimates of the available national capacities and potential for fighting this phenomenon, the following measures are to be taken:

8.1. NORMATIVE AND LEGAL

1. Draft a single legal definition of organised crime which will be in line with European and international criteria and allow more efficiency in fighting this phenomenon; 2. Assess the normative and legal framework in terms of revising the existing laws and adopting new ones and proceed with the process of Bosnia and Herzegovina‟s accession to international conventions while fully and consistently following international anti-organised crime recommendations, initiatives and standards;

8.2. INSTITUTIONAL

1. Develop institutional conditions for efficiently detecting and proving the smuggling of narcotics, people, vehicles, weapons, and other goods, money laundering, corruption offences and cybercrime offences, and for consistently forfeiting criminal property; 2. Advance all forms of cooperation and coordination between the institutions and bodies competent for implementing the Strategy at all levels, both at Bosnia and Herzegovina and regional and international levels; 3. Advance the prevention segment in the fight against organised crime, with the emphasis on researching into the causes and effects, with all institutions and authorities cooperating with institutions of higher learning in the country and abroad;

8.3. CAPACITIES

183

1. Provide and develop good personnel in all institutions and authorities responsible for implementing the Strategy, with the emphasis on objective and high selection and appointment criteria, career development and advancement based on abilities and performance, required specialisation, motivation and rewarding, education and training; and to develop a management and governance system and their organisational competencies; 2. Develop the process of proactive investigations in order to efficiently prove and prosecute criminal offences of organised crime; 3. Ensure the institutional capacities for conducting financial investigations; 4. Provide and develop the material, technical and financial capacities of all institutions and authorities responsible for the Strategy implementation; 5. Participate in joint projects with the media, local community and other Strategy partners; 6. Develop special investigative, operational and tactical, criminal intelligence and analytical and operational methods of fighting organised crime; 7. Organise joint investigation teams and carry out coordinated operations; 8. Establish and develop the system of effective tools for strategic analysis by improving the analytical capacities and cooperate at bilateral and multilateral levels in creating efficient intelligence policing (so-called intelligence-led policing); 9. Establish new and develop existing anti-organised crime organisational units; 10. Ensure the change in effects and the awareness of harmful effects of organised crime in order to stimulate the economic and business climate in the country, all with a view to attracting foreign investments and providing business security;

8.4. PUBLIC AND MEDIA

1. Promote the results achieved in the fight against organised crime and the transparency of the work of all institutions and authorities responsible for implementing the Strategy through objective and unbiased reporting; 2. Develop the capacities of civil society entities to play a role in the fight against organised crime through the mechanisms of better cooperation with the competent anti-organised crime agencies.

9. IMPLEMENTATION

An efficient and rational top management will be established with a view to ensuring that the Strategy is completely implemented and achieving success in fighting organised crime. In the event that the situation envisaged therein changes, the Strategy will undergo a revision process.

The Action Plan for the implementation of the Strategy will be adopted within three months following the adoption thereof and the Plan will elaborate on the measures and it will in particular consider the preventive and repressive forms of the fight against organised crime and the forfeiture of criminal property. The document will be structured so as to comprise the following elements: establishing an efficient organisational structure (creating new organisational units and working groups); division of the responsibilities for the strategic supervision, control, monitoring, evaluation and revision (further development) of the Strategy, management system, system of the measures for implementing the Strategy, success indicators, implementing authorities and authorities directly carrying out the activities, finance, potential risks and deadlines. 184

The BiH Council of Ministers will form a Working Group to develop the Action Plan in order to implement the Strategy in an efficient manner and it will comprise members from the authorities taking part in the Strategy implementation and from other interested parties, with its primary duties being: - development of Action Plans for Strategy implementation, - coordination of activities envisaged in the Strategy and Action Plans, - monitoring and follow-up of the implementation of the Strategy and the objectives thereof, - submission of Strategy implementation reports to the Council of Ministers; - proposals for Strategy revision if necessary.

10. ACTION PLAN

The BiH Council of Ministers will adopt the Action Plan for the implementation of this Strategy within three months following the date of the Strategy publication.

185

ANNEX 4

STRATEGY AND ACTION PLAN FOR THE PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORIST ACTIVITIES IN BOSNIA AND HERZEGOVINA

1...... INTRODUCTION .... 188 2...... METHODOLOGY AND DEFINITIONS .... 190 2.1. Methodology ………………………………………………………………………..190 2.2. Definitions ………………………………………………………………………..191 3...... THREAT ASSESSMENT .... 192 3.1. Nature and scale of money laundering and financing of terrorist activities – predicate criminal offences ………………………………………………………………………..192 3.2. Methods of money laundering and terrorist financing ………………………..193 3.3. Effectiveness of the prevention mechanism on money laundering and financing of terrorist activities ………………………………………………………………………..194 4...... STRATEGY .... 197 4.1. General ………………………………………………………………………..197 4.2. Drafting, revision and adoption of the Strategy and Action Plan ………………..197 4.3. Implementation of the Strategy and Action Plan and monitoring of the implementation process ………………………………………………………………..198 4.4. Objectives of the Strategy 2009-2013 199 5...... ACTION PLAN FOR THE IMPLEMENTATION OF THE STRATEGY ON PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORIST ACTIVITIES ...... 202 5.1. Function of the Action Plan ………………………………………………………..202 5.2. Structure of the Action Plan ………………………………………………………..202 5.3. Content of the Action Plan for the implementation of the Strategy on Prevention of Money Laundering and Financing of Terrorist Activities 2009-2013 ………………..202

186

LIST OF ANNEXES

Annex I Action Plan for the Implementation of the Strategy on Prevention of Money Laundering and Financing of Terrorist Activities

ABBREVIATIONS

AML Anti-Money Laundering

BiH Bosnia and Herzegovina

CFT Countering the Financing of Terrorism

CTR Cash Transaction Report

EBRD European Bank for Reconstruction and Development

EU European Union

EUROPOL European Police Office

FATF Financial Action Task Force

FID Financial Intelligence department of SIPA

IMF International Monetary Fund

MONEYVAL The Council of Europe Committee for the Prevention of Money Laundering

Southeast European Cooperative Initiative Regional Centre SECI for Combating Trans-border Crime SIPA State Investigation and Protection Agency STR Suspicious Transaction Report USAID United States Agency for International Development

187

4 Introduction

The interests of Bosnia and Herzegovina as well as the EU integration process require that the prevention of money laundering and financing of terrorist activities is efficient. These harmful phenomena are linked to a wide sphere of activities related to different areas of society. Therefore the prevention mechanism has to be built on close cooperation and coordination between law enforcement, judicial and other relevant authorities. On the other hand, money laundering and financing of terrorist activities are closely linked to the business activities of a number of private sector actors. Therefore an efficient prevention mechanism requires also confiding cooperation between public and private institutions. The aim of this Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities is to set up joint objectives based on the risk assessment for the relevant public and private institutions to develop the functionality of the prevention mechanisms of these harmful phenomena and to reach the following vision by 2013: “Bosnia and Herzegovina has an efficient and coordinated system for the prevention of money laundering and financing of terrorism based on inter- institution cooperation and international standards.”

Money laundering and terrorism financing jeopardize national economical interests which among other things consist of a reliable financial system, strong enterprise sector, fair labor market and well functioning market economy. These harmful phenomena endanger the development of the core structures of society such as education, health care, public order and security, transportation network and social security. The protection of the interests of Bosnia and Herzegovina therefore requires that the system for the prevention of money laundering and financing of terrorism is efficient. This has also been noted in the Strategy for the Fight against Organized Crime and Corruption 2006-2009 which consists of objectives and actions related to the prevention of money laundering and financing of terrorism. These harmful phenomena need to be addressed. Therefore the Council of Ministers of the Bosnia and Herzegovina has decided to establish this separate strategy and action plan to enhance the prevention of money laundering and financing of terrorism. The EU Integration Strategy of Bosnia and Herzegovina reflects the overall political aims and interests of the country. It defines the entire EU accession process. The EU Integration Strategy also puts the current integration activities into a consistent framework, sets priorities and key elements of the adjustment process and identifies key development challenges. From the money laundering and terrorism financing prevention point of view the EU Integration Strategy of Bosnia and Herzegovina requires that the following measures have to be taken:

• Establish a framework for cooperation aimed at suppressing the use of financial systems for transactions with money acquired through criminal activities;

• Strengthen cooperation between competent institutions and establish the appropriate standards for suppressing money laundering in accordance with standards adopted by international institutions in this field; and

• The participation of Bosnia and Herzegovina in the Council of Europe Committee for the Prevention of Money Laundering (MONEYVAL).

The EU Commission has defined a detailed roadmap setting clear benchmarks to be met by Bosnia and Herzegovina in order to enable visa liberalization. This document consists of several requirements also on Public Order and Security. When considering prevention of money laundering and terrorism financing, the roadmap states that Bosnia and Herzegovina has to: 188

• Adopt and implement a national strategy for the prevention and fighting of money laundering and financing of terrorism, including necessary legislative measures based on an analysis of existing legislation; and • Implement relevant legislation on confiscation of assets of criminals (including the provisions addressing cross-border aspects). Collaboration is an essential component of the strategy against money laundering and terrorism financing in Bosnia and Herzegovina. The Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities are immediate responses to the risk assessment which is included in chapter 3. The strategic objectives and actions of the Action Plan are identified through broad-based inter-institutional cooperation and adopted by the Council of Ministers of Bosnia and Herzegovina. The strategic objectives and actions of the Action Plan focus on the reporting mechanism, information exchange, criminal procedure on money laundering and terrorism financing, legal framework, international cooperation, awareness among public and training of the relevant public and private institutions. Implementation of these objectives and activities defined in the action plan are part of the official duties of the responsible public institutions.

189

5 Methodology and definitions

5.1 Methodology

The establishment and implementation process of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities is based on the following principles: • The Strategy consists of a vision that describes the intended future state of a money laundering and terrorism financing prevention regime in Bosnia and Herzegovina; • Legislation describes the responsibilities of the institutions in money laundering and terrorism financing prevention and therefore it constitutes also their mission in this sphere of authority; • Responsible institutions have established their own values that consist of principles shared among the personnel and supporting efficient implementation of the vision and mission; • The Strategy is based on a risk assessment which is aligned with the FATF model and thus evaluates the operational environment related to money laundering, predicate offences, terrorism financing and most common methods used when committing these crimes. It also evaluates the effectiveness of the prevention mechanism of these crimes; • Objectives are identified based on the risk assessment. They are time bound statements of intended future results that have to be achieved in order to reach the vision; • The Action Plan constitutes a roadmap and a list of actions that have to be implemented in order to reach the vision through the objectives. The Action Plan consists of short-, medium- and long-term actions; and • The Strategy defines the processes that have to be followed when drafting, revising, adapting, implementing and monitoring the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities. This is to ensure that the vision is reached.

The Financial Action Task Force (FATF) has established a model for the national risk assessment on money laundering and terrorism financing93. It is an organized and systematic effort to identify and evaluate: • The sources and methods of money laundering and terrorist financing; and • The weakness in the AML/CFT systems and other vulnerabilities that have an impact, either direct or indirect, on the country conducting the assessment.

The Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities are based on a risk assessment which is a prerequisite for the preparation of strategic objectives and for planning of actions that are required in order to reach the vision. It has been prepared by following the FATF models and by combining retrospective, prospective, quantitative and qualitative methodologies in order to draw a picture about the known operational environment, to estimate as much as possible unknown factors, to predict future phenomena, to determine objective indicators through indirect methods and to determine subjective indicators through direct methods. The indirect methods used for the implementation of the risk assessment consisted of: • Collection and analysis of the statistics related to the suspicious and cash transaction reports; • Collection and analyses of the crime statistics;

93 Money Laundering & Terrorist Financing Risk Assessment Strategies, Financial Action Task Force, 18 June 2008 190

• Collection and analysis of the evaluation reports related to the scope and extent of informal economy; and • Collection and analysis of the evaluation reports related to the scope and extent of crime and especially money laundering, predicate crimes and terrorism financing.

The direct methods used for the implementation of the risk assessment consisted of: • Web-based questionnaires for the relevant institutions from the public and private sector; • Interviews of the relevant public institutions and representatives of the international organizations; • Work shop for the members of the Working Group for the Prevention of Money Laundering and Terrorism Financing; and • Plenary meetings of the Working Group for the Prevention of Money Laundering and Terrorism Financing.

5.2 Definitions

“Working Group on Prevention of Money Laundering and Financing of Terrorist Activities”, hereafter “Working Group” is an inter institutional expert body established by the Council of Ministers of Bosnia and Herzegovina and tasked to assist it with the prevention of money laundering and terrorism financing.94 “Money laundering” means in this Strategy activity defined in Article 2 Paragraphs a-b of the Law on the Prevention of Money Laundering and Financing of Terrorist Activities95. “Predicate criminal offence” means in this Strategy a criminal offence whose commission results with the property which is a subject of a criminal offence of money laundering. “Terrorist act” means in this Strategy activity defined in Article 2 Paragraph d of the Law on the Prevention of Money Laundering and Financing of Terrorist Activities. “Terrorist” means in this Strategy a person defined in Article 2 Paragraph e of the Law on the Prevention of Money Laundering and Financing of Terrorist Activities. “Terrorist organization” means in this Strategy a group of persons defined in Article 2 Paragraph f of the Law on the Prevention of Money Laundering and Financing of Terrorist Activities. “Financing of terrorist activities” means in this Strategy activity defined in Article 2 Paragraph c of the Law on the Prevention of Money Laundering and Financing of Terrorist Activities.

94 Decision on Forming of a Bosnia and Herzegovina Institutions Working Group on Prevention of Money Laundering and Financing of Terrorist Activities 92/08, 2008, Council of Ministers of Bosnia and Herzegovina 95 The Law on the Prevention of Money Laundering and Financing of Terrorist Activities, 59/09 191

6 Threat Assessment

6.1 Nature and scale of money laundering and financing of terrorist activities – predicate criminal offences

The risk assessment concerning the nature and scale of money laundering and financing of terrorist activities indicates that the following crime types constitute threats as predicate criminal offence in Bosnia and Herzegovina: 1. Financial and economical crimes as a single crime type constitute a high threat as predicate offences for money laundering and financing of terrorism. Corruption, abuse of office, customs offences, tax offences and abuse of position of power in economy are therefore main sources for proceeds of crime. This is based on the following arguments:

• The extent of informal economy in Bosnia and Herzegovina is 30-35 % of the official GDP according to the assessments of the USAID96, IMF97 and EBRD98. The situation may improve due to the developing business environment. Nevertheless, the informal economy is still on a high level and therefore constitutes a significant threat; • The increase in lending to the private sector has been rapid (IMF)99. This may develop the business environment. However, the credit boom will also increase the number of economical crimes; • Development and revitalization of the corporate sector in Bosnia and Herzegovina is needed (IMF)100. It has already started. This together with the implementation of the 2003 bankruptcy laws will increase the threat of economical crimes; • The number of CTR and STR reports to the FID101 has been increasing and crimes reported, based on the analysis of the information received through the reporting mechanism, have also increased. The predicate criminal offences identified by FID based on the intelligence process are mostly economical and financial crimes; • Number of economical and financial crimes recorded by the authorities has increased until 2007 according to the Ministry of Security of BiH102. The situation has stabilized in 2008. The number of these types of crimes has even slightly decreased. The extent of economical and financial crimes and their damages recorded by the authorities are still on a high level and therefore constitute an increasing threat; • Financial and economical crimes are indirectly linked to organized crime, although according to the analysis of the Ministry of Security of BiH prepared for the Regional Centre Combating Trans-border Crime (SECI)103 these crime types are not commonly primary fields of activities for the organized crime groups in Bosnia and Herzegovina; and • During the interviews for the preparation of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities, the representatives of the authorities responsible for the prevention of money laundering and terrorism financing in Bosnia and Herzegovina considered that the most important sources for proceeds of crime are economical and financial crimes. They also evaluated that these crime types are mostly hidden and are not known to the

96 Estimate of Non-Observed Economy in Bosnia and Herzegovina, USAID, 2004 97 Bosnia and Herzegovina: Selected Economic Issues, IMF, 2005 98 Mobility, poverty and well-being among the informally employed in Bosnia and Herzegovina, EBRD, 2006 99 Bosnia and Herzegovina: Selected Economic Issues, IMF, 2005 100 Bosnia and Herzegovina: Selected Economic Issues, IMF, 2005 101 Financial Intelligence Report, SIPA, 2006-2008 102 Information on the Security Situation in Bosnia and Herzegovina, Ministry of Security, 2006-2008 103 Reply of the Ministry of Security BiH for the Questionnaire of the Regional Centre Combating Trans- border Crime (SECI) 2008 192

authorities. The direct methods used for the establishment of the risk assessment also indicate that economical and financial crimes constitute an increasing threat as predicate criminal offences.

2. Drug crimes as a single crime type remain a threat as predicate criminal offences for money laundering and financing of terrorism. They are considerable sources for proceeds of crime based on the following arguments:

• Bosnia and Herzegovina is along the traditional Balkan route for drugs to Western Europe. It is still a major gateway for heroin, although a considerable amount is trafficked also via the Northern Black Sea route104. Producing, smuggling and trading of drugs are sources for enormous amounts of proceeds of crime. Therefore drug crimes constitute a threat as predicate criminal offences; and • Drug crimes in Bosnia and Herzegovina are an essential part of the organized crime which as such constitutes a threat from the money laundering and terrorism financing viewpoint.

3. Organized crime in general constitutes a threat to the public safety in Bosnia and Herzegovina and neighbouring countries. Professional criminals form structured organizations for financial gain. Organized crime is therefore an increasing threat from the viewpoint of money laundering and terrorism financing. Organised criminal groups in Bosnia and Herzegovina commonly have two or more fields of criminal activities, but the most common crime types on which they focus are105:

• Drug crimes; • Trafficking of weapons; • Trafficking of stolen vehicles; and • Trafficking of human beings and smuggling of human beings.

4. There are no convictions in Bosnia and Herzegovina for the financing of terrorist activities106 so far. During the interviews for the preparation of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities the representatives of the authorities responsible for the prevention of money laundering and terrorism financing in Bosnia and Herzegovina considered that property used for the financing of terrorist activities mostly originates from illegal sources.

6.2 Methods of money laundering and terrorist financing

During the interviews for the preparation of the Strategy and Action Plan on Prevention of Money Laundering and Financing of Terrorist Activities the representatives of the authorities responsible for the prevention of money laundering and terrorism financing in Bosnia and Herzegovina were asked to specify the most common methods used for the laundering of the proceeds of crime in Bosnia and Herzegovina. A similar evaluation was also included in the reply of the Ministry of Security BiH to the questionnaire of the Regional Centre Combating Trans-border Crime (SECI) 2008. The following methods were identified as threats from the viewpoint of the money laundering: 1. Usage of cash;

2. Establishment of dummy companies;

104 EU Organized Crime Threat Assessment, EUROPOL, 2008 105 Reply of the Ministry of Security BiH for the Questionnaire of the Regional Centre Combating Trans- border Crime (SECI) 2008 106 Annual statistics of the Prosecutors Office of Bosnia and Herzegovina, 2005-2008 193

3. Usage of natural persons as ostensible partners when establishing dummy companies, opening bank accounts and purchasing property;

4. Investing in construction industry;

5. Investing in real estates; and

6. Investing in privatization process.

6.3 Effectiveness of the prevention mechanism on money laundering and financing of terrorist activities

The Council of Europe Committee for the Prevention of Money Laundering (MONEYVAL) is tasked to evaluate the performance of those European countries that are not members of the FATF in complying with the international standards for the prevention of money laundering and terrorism financing. MONEYVAL has made evaluation missions to Bosnia and Herzegovina in 2005 and 2009. The report107 based on the assessments on 2005 consists of findings related to the effectiveness of the prevention mechanism on money laundering and financing of terrorist activities in Bosnia and Herzegovina. During the interviews for the preparation of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities the representatives of the authorities responsible for the prevention of money laundering and terrorism financing in Bosnia and Herzegovina were asked to specify the challenges in the prevention mechanisms on money laundering and financing of terrorism. The following threats concerning the effectiveness of the prevention mechanism on money laundering and financing of terrorist activities in Bosnia and Herzegovina were identified based on the MONEYVAL reports, interviews of the relevant local authorities and an analysis of the collected data: 2 Insufficiently functioning reporting mechanism on suspicious and cash transactions is a threat for the prevention mechanism of money laundering and financing of terrorist activities in Bosnia and Herzegovina based on the following arguments:

• The total annual number of reports on suspicious and cash transactions received by the FID is increasing. The existing law covers all those institutions that are vulnerable to money laundering and terrorist financing activities on a local level. According to the FID statistics all suspicious transaction reports and most of the cash transaction reports are made by the banks. It is a threat for the efficient reporting mechanism if all parties under obligation to report are not fully aware of and compliant with their obligations; and • The reporting mechanism in Bosnia and Herzegovina is producing tremendous amounts of information that can be used as intelligence. There is a great multiplicity of law enforcement agencies108 at state and entity level with a mandate to prevent money laundering and terrorism financing. Their competencies overlap. They lack common databases for the processing of intelligence. The legal framework constituting their mandates for the exchange of information is incoherent. In practice this means that there is no systematic linkage between law enforcement intelligence and information produced based on the reporting mechanism on suspicious and cash transactions. This will reduce the quality and quantity of the intelligence of the FID and other law

107 MONEYVAL Assessment Report on Bosnia and Herzegovina, 2005, Council of Europe Committee for the Prevention of Money Laundering 108 In this Strategy the Law Enforcement Agencies are consisting also Ministries of the Internal Affairs of the entities. 194

enforcement agencies. Therefore the lack of the linkage between these two types of intelligence sources constitutes a threat for an efficient money laundering and terrorism financing prevention mechanism.

7. An insufficiently functioning intelligence process is a threat for the prevention mechanism of money laundering and financing of terrorist activities in Bosnia and Herzegovina based on the following arguments:

• In Bosnia and Herzegovina there is a wide range of law enforcement agencies at State and Entity level with a mandate to prevent money laundering and financing of terrorist activities. This can be a potential for an efficient collection of information. However, in Bosnia and Herzegovina there are no common databases for the crime prevention authorities covering both state and entity level. The legal framework for the exchange of information is incoherent. The methods for the collection of information and producing of intelligence therefore vary in Bosnia and Herzegovina. The relevant authorities do not have a common and generally approved intelligence process. This endangers the quality and quantity of the intelligence that is needed for strategic and operational purposes when preventing money laundering and financing of terrorist activities. These weaknesses endanger the intelligence process and therefore they constitute a threat for the AML and mechanism in Bosnia and Herzegovina.

8. Fragmented and insufficient investigation, prosecution and trying are a threat for the functionality of the prevention of money laundering and financing of terrorist activities in Bosnia and Herzegovina based on the following arguments:

• There are many law enforcement agencies at state and entity level responsible for the investigation of money laundering, predicate offences and financing of terrorist activities. Their competencies overlap and the legal framework constituting their mandates for the crime investigations are incoherent. The relevant authorities do not have common databases for the recording of information related to crime investigations. The Council of Europe states in its report in 2005 that cooperation and coordination of the investigation activities of the different authorities are not on an appropriate level. This constitutes a threat for the prevention mechanism; • The legal framework in Bosnia and Herzegovina consists of an all-crime principle when it comes to the scope of the predicate offences for money laundering. The Council of Europe states in its report in 2005 that application of the money laundering criminalization during the criminal cases concerning predicate offences is not on an appropriate level. On the other hand, criminal cases concerning money laundering were mostly based on tax offences as predicate offences. The inappropriate interpretation of the money laundering criminalization in the criminal procedure constitutes a threat for the prevention mechanism; • Efficient tracing of criminal proceeds is a precondition for a functional money laundering and terrorism financing prevention mechanism. The legal framework in Bosnia and Herzegovina is to the most part in order. However, authorities are not using efficiently instruments that are available for freezing and seizing which constitutes a threat for the prevention mechanism; and • Due process of law and efficient tracing of proceeds of crime require that the responsibilities and mechanisms related to the management of seized and confiscated property have to be clear. According to the local relevant authorities this is not the case at the moment. Therefore, these procedures have to be standardized either through instructions or through a revised legal framework. Otherwise the application of the legal instruments related to the tracing of proceeds of crime will remain on a

195

low level which will constitute a threat for the prevention mechanism of money laundering and terrorism financing.

196

7 Strategy

7.1 General

The Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities is linked to a wide sphere of activities related to different areas of society, both in public and private sector. Therefore, the mechanisms for drafting, revision, adoption and implementation and monitoring of the implementation process have to be unambiguous. It is also a necessity that the implementation of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities is an integral part of the official duties of the public institutions. The revision, adoption, implementation and monitoring of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities are continuous functions. These processes will be transparent and they will be based on regular reporting by the responsible institutions. The results will be evaluated based on the objectives and timetables stated in the Action Plan. The Ministry of Security is responsible for the prevention of criminal offences of terrorism, drug trafficking, counterfeiting of domestic and foreign currencies and trafficking in persons, and of other criminal offences with an international or inter-entity element109 and for and tracing perpetrators of such crimes. It is also tasked to collect and use data relevant for the security of Bosnia and Herzegovina. The Minister shall be responsible to the Council of Ministers for his work and the situation in the field falling within the scope of work of the Ministry of Security110. The Working Group on Prevention of Money Laundering and Financing of Terrorist Activities has been established by the Council of Ministers of Bosnia and Herzegovina. It consists of representatives from 17 relevant institutions. The member organizations have a responsibility and mandate to prevent money laundering and financing of terrorist activities. The Working Group is an inter-institutional expert body of the Council of Ministers of Bosnia and Herzegovina111. The Working Group itself has been tasked to increase overall work coordination between relevant institutions regarding money laundering prevention and financing of terrorist activities. It has to create a prevention strategy on these harmful phenomena. The Working Group has also a responsibility to propose changes and amendments to the legal framework and regulations with regard to the prevention of money laundering and financing of terrorist activities. It has to report on its work to the Council of Ministers of Bosnia and Herzegovina at least twice a year.

7.2 Drafting, revision and adoption of the Strategy and Action Plan

The responsibilities related to the drafting, revision and adoption of the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities are as follows: 1. The member organizations of the Working Group have to assess their strategic and operational environment in relation to the prevention of money laundering and financing of terrorist activities. They also have to take into account the needs of the public and private sector counterparts that are under their supervision or operating within their sphere

109 Article 14, Law on Ministries and Other Bodies of Administration of Bosnia and Herzegovina, 5/03, Official Gazette 110 Article 20, Law on Ministries and Other Bodies of Administration of Bosnia and Herzegovina, 5/03, Official Gazette 111 Decision on Forming of a Bosnia and Herzegovina Institutions Working Group on Prevention of Money Laundering and Financing of Terrorist Activities 92/08, 2008, Council of Ministers of Bosnia and Herzegovina 197

of authority and are relevant in this context. The member organizations have to report about their findings related to the drafting and revision of the Strategy and Action Plan to the Working Group at least 3 times within a calendar year and immediately when strategic or operational needs require. The Working Group will decide the exact reporting date and format;

2. The Working Group is responsible for the drafting and revision of the Strategy and Action Plan based on the strategic and operational level assessments related to the interests of Bosnia and Herzegovina, international cooperation, operational environment, legal framework and needs of the relevant public and private institutions. The Working Group has to report about its findings related to the drafting and revision of the strategy and action plan to the Minister of Security of Bosnia and Herzegovina at least 3 times within a calendar year and immediately when strategic or operational needs require. Working Group can engage in its work outside experts, when it is deemed necessary by the Working Group;

3. The Minister of Security will introduce drafts of and amendments to the Strategy and Action Plan to the Council of Ministers of Bosnia and Herzegovina; and

4. The Council of Ministers of Bosnia and Herzegovina will decide about adoption of the Strategy and Action Plan based on the proposal of the Minister of Security.

7.3 Implementation of the Strategy and Action Plan and monitoring of the implementation process

The responsibilities related to the implementation and monitoring of the implementation process for the Strategy and Action Plan on the Prevention of Money Laundering and Financing of Terrorist Activities are as follows: 1. The Council of Ministers of Bosnia and Herzegovina, ministries and relevant public institutions has to ensure that the responsibility to implement the Strategy and Action Plan for the Prevention of Money Laundering and Financing of Terrorist Activities is an integral part of the official duties of the responsible organizations. Therefore, the implementation of the objectives of the Strategy and the actions of the Action Plan have to be integrated in the Annual Strategic Financing Plans of the responsible ministries and institutions;

2. The responsible ministries and public institutions identified in the action plan are responsible for the implementation of the actions of the Action Plan as an integral part of their official duties. The ministries and public institutions responsible for the implementation of the individual actions of the Action Plan have to report 3 times within a calendar year about the results of the implementation process to the Working Group which will decide the exact reporting date and format;

3. The supervisory authorities are responsible for the implementation of the actions of the Action Plan that have to be implemented by those natural and legal persons that are under their supervision. The supervision of the implementation process will be an integral part of the official duties of the supervisory authorities and they have to report 3 times within a calendar year about the results of the private sector implementation process to the Working Group which will decide the exact reporting date and format;

4. The Working Group has to report 3 times within a calendar year about the results of the implementation process of the strategy and action plan to the Ministry of Security of

198

Bosnia and Herzegovina which will decide the exact reporting date. Working Group can engage in its work outside experts, when it is deemed necessary by the Working Group;

5. The Minister of Security will submit a progress report on the implementation of the Strategy and Action Plan to the Council of Ministers of Bosnia and Herzegovina; and

6. The Council of Ministers of Bosnia and Herzegovina has an overall responsibility for the implementation and monitoring of the implementation process for the Strategy and Action Plan for the Prevention of Money Laundering and Financing of Terrorist Activities. The main responsibility of the Council of Ministers of Bosnia and Herzegovina is to assess, based on the progress reports of the Ministry of Security, whether the implementation of the Strategy and Action Plan are taken into account in the Annual Strategic Financing Plans of the responsible ministries and institutions. It also has to evaluate achieved results and define whether the responsible ministries and public institutions need to be supported to guarantee efficient implementation of the Strategy and Action Plan for the Prevention of Money Laundering and Financing of Terrorist Activities.

7.4 Objectives of the Strategy 2009-2013

The Strategy on the Prevention of Money Laundering and Financing of Terrorist Activities consists of the following objectives that will be implemented through the Action Plan:

1. Develop the reporting mechanism and public and the private sector cooperation in order to combat money laundering and the financing of terrorism

The reporting system on suspicious and cash transactions has been established to widen the access of the authorities to financial information to enhance the prevention of money laundering and financing of terrorist activities. It has given new perspectives to crime intelligence. The efficiency of this system relies on the cooperation between the private and public sectors112.

It is also crucial that the FID has functional mechanisms for the collaboration between law enforcement and other public institutions. This would increase the value of the information collected and disseminated by the FID and other authorities responsible for the prevention of money laundering and financing of terrorist activities.

Bosnia and Herzegovina will enhance the quantity and quality of the information produced based on the reporting mechanism by developing cooperation between public and private institutions.

2. Enhance exchange of information among authorities in Bosnia and Herzegovina

There is a wide range of different authorities in Bosnia and Herzegovina whose mandates cover the money laundering and terrorism financing prevention sector. This is especially true for the collection of information and intelligence. In principle, this could ensure an efficient strategic and operational management of crime prevention as a great amount of information and intelligence is available. On the other hand, this can lead to a fragmented situation. If there is no efficient system for the coordination and for the cooperation concerning the exchange of information and intelligence process, none of the authorities will have an overall

112 Dublin Declaration endorsed by EU Council of Ministers on January 2004 and Action Plan of the EU Council and Commission on the implementation of the Hague Program on June 2005 199

situational awareness about the strategic and operational environment as a whole. Furthermore, the usage of the collected information/intelligence is also inefficient.

Bosnia and Herzegovina will enhance the exchange of information between the relevant authorities to ensure efficient prevention of money laundering and financing of terrorist activities.

3. Ensure comprehensive investigation, prosecution and court proceedings of money laundering, predicate offences and financing of terrorist activities

There are many law enforcement agencies at state and entity level responsible for the investigation of money laundering, predicate offences and financing of terrorist activities. Their competencies overlap and the legal framework constituting their mandates for the crime investigations is incoherent. The cooperation and coordination of the investigation activities of the different authorities are not on an appropriate level.

The legal framework in Bosnia and Herzegovina consists of money laundering criminalization fulfilling international standards, an all-crime principle when it comes to the scope of the predicate offences and mandates for the freezing, seizing and confiscation of proceeds of crime. These legal instruments, however, are not interpreted and applied appropriately.

The mechanisms for the management of seized, frozen and confiscated property are not clear at the moment. This has a negative impact on the tracing of criminal proceeds.

Bosnia and Herzegovina will ensure efficient investigation, prosecution and trying of money laundering and financing of terrorist activities.

4. Develop and apply a proactive approach to international cooperation in the prevention of money laundering and the financing of terrorism

The prevention of money laundering and financing of terrorist activities requires efficient international cooperation on strategic and operational levels. Bosnia and Herzegovina is in an EU accession process. It is also in a process of developing its financial systems and market economy. It is therefore important for Bosnia and Herzegovina that it fulfils international standards for the prevention of money laundering and financing of terrorist activities and participates intensively in the work of the Council of Europe Committee for the Prevention of Money Laundering and other relevant strategic level international organizations.

Predicate offences for money laundering in Bosnia and Herzegovina are commonly transnational and cross-border crimes that are linked to organized crime. Therefore, it is important that international cooperation in the analysis of suspicious and cash transaction reports, exchange of information, legal aid on criminal matters and extradition procedures is efficient.

Bosnia and Herzegovina will develop methodically its functions related to the international cooperation on prevention of money laundering and financing of terrorist activities.

5. Develop and harmonize the legal framework in Bosnia and Herzegovina concerning money laundering and the financing of terrorism to comply with international standards

The legal framework within Bosnia and Herzegovina is to the most part in line with international standards on the prevention of money laundering and financing of terrorist activities. However, the legislation has to be amended to ensure due process of law, to fulfil

200

the requirements that are based on the operational environment and guarantee standardised interpretation of the laws.

Bosnia and Herzegovina will evaluate the legal framework on the prevention of money laundering and financing of terrorist activities on a regular basis and ensure further development of the legislation.

6. Enhance public awareness and develop a joint training programme for the public and private sectors.

The most common predicate offences for money laundering are linked to informal economy consisting of tax evasion and other tax offences, abuse of office, customs offences and abuse of position of power in economy. Informal economy increases corruption. Therefore money laundering, the most common predicate offences and terrorism financing weaken the structures of society. Consequently, citizens and the society as a whole should be made aware as to the extent and impact of these phenomena.

Prevention of money laundering and terrorism financing and financial investigations are an area where many public institutions have shared interests. It is a field of activity that requires daily cooperation between law enforcement, judicial and other relevant authorities. Thus it is important for the due process of law and quality of the criminal process as a whole that the collaboration and exchange of information between relevant authorities and coordination related to their activities is organized systematically. On the other hand, the legal framework related to the prevention of money laundering and terrorism financing consists of instruments that are not utilized appropriately at the moment. The responsible authorities should apply more intensively those legal mandates that are available to enhance the efficiency of the crime prevention mechanism.

Prevention of money laundering and financing of terrorist activities is an area where the quality of the functions of the relevant authorities is dependent on the awareness and skills of the personnel working for the private sector. They have to have knowledge about their legal obligations, skills to identify suspicious and cash transactions and ability to report appropriately.

Bosnia and Herzegovina will establish and implement awareness campaigns for the public, a joint training programme for the relevant authorities and training events for the private sector on the prevention of money laundering and financing of terrorist activities based on a systematic needs assessment.

201

ACTION PLAN FOR THE IMPLEMENTATION OF THE STRATEGY ON THE PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORIST ACTIVITIES

Function of the Action Plan

The Action Plan is a list of actions that have to be executed in order to implement the Strategy on the Prevention of Money Laundering and Financing of Terrorist Activities. The function of an individual action is to ensure the implementation of a strategic objective.

Structure of the Action Plan

The Action Plan consists of the following components: • “Strategic objective” defines the number and name of the objective of the Strategy on the Prevention of Money Laundering and Financing of Terrorist Activities 2009-2013 to which the listed action is related;

• “Action” defines the number and name of an individual action;

• “Main authorities in charge” defines the public institutions that are responsible for the implementation of the action in question. The first mentioned authority carries the main responsibility and it is also obligated to report about the results of the implementation process;

• “Specifications and schedule of the action” describes the details of the action and milestones related to the implementation process;

• “Impact on budgets” defines whether the implementation process of the action in question requires a separate budget;

• “Impact on legislation” defines whether the implementation process of the action in question requires amendments to the existing legal framework or establishment of a new legislation;

• “Deadline/Short/Mid/Long” defines the ultimate deadline for the implementation process of the action in question and classification of the action based on the time period of the implementation process. Short Term actions are implemented within 0- 12 months, Medium Term actions within 1-3 years and Long Term actions within 4-5 years; and

• “Monitoring” defines the indicators that are used for measuring the success of the implementation process of the action in question.

Content of the Action Plan for the implementation of the Strategy on Prevention of Money Laundering and Financing of Terrorist Activities 2009-2013

The Action Plan for the implementation of the Strategy on the Prevention of Money Laundering and Financing of Terrorist Activities 2009-2013 consists of altogether 31 individual actions. The detailed Action Plan is attached to this strategy.

202

ACTION PLAN FOR THE IMPLEMENTATION OF THE STRATEGY ON PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORIST ACTIVITIES

1. Strategic objective: Develop the reporting mechanism and public and the private sector cooperation in order to combat money laundering and the financing of terrorist activities Main Impact Impact Specifications and schedule of the Deadline Action authorities on on Monitoring action Short/Mid/Long in charge budgets legislation FID receives altogether over 1.1. Establishing for 280000 Suspicious and Cash FID an efficient and Electronic Transactions reports annually. comprehensive reporting Number is increasing. FID should 31.12.2010 electronic reporting Yes No mechanism SIPA, FID get the data from reporting entities Medium term system available for all established by in electronic format to ensure parties under 31.12.2010 quality and quantity of the obligation to report information. 1.2. Establishing for FID receives altogether over FID an on line, 280000 Suspicious and Cash electronic or another Ministry of Transactions reports annually. efficient connection to Security Number is increasing. FID should Electronic cross the crime report BiH, have a possibility to cross check checks enabled databases of the other SIPA, FID, this data with the crime report 31.12.2010 for FID with the institutions and law Yes No law databases to increase the quality of Medium term crime report enforcement agencies enforcement the information in its own database databases by to allow cross checks agencies in and to ensure efficient usage of its 31.12.2010 between the FID BiH information for the prevention of database and these money laundering and predicate external sources of offences. information. 1.3. Establishing for FID an on line, electronic or another efficient connection to FID receives altogether over population registers, 280000 Suspicious and Cash Electronic cross company registers, Transactions reports annually. checks enabled registers for non-profit SIPA, FID, Number is increasing. FID should 31.12.2010 for FID with the organizations and Yes No IDDEEA have a possibility cross check this Medium term relevant associations, vehicle data with the relevant databases to databases by registers and cadastral increase the quality of the 31.12.2010 registers to allow cross information in its own database. checks between the FID database and these external sources of information. SIPA, FID, Working Parties under obligation to report Group on need feedback concerning the 1.4. Establish Prevention functionality, effectiveness and Standardized standardized process of Money usefulness of the reporting system. 31.12.2009 process for the feedback to the No No Laundering This is together with the training a Short term established by parties under and preconditions for the enhancement 31.12.2009 obligation to report Financing of of the quality and quantity of the Terrorist STR‟s and CTR‟s. Activities Article 4 of the Law on Prevention of Money Laundering and Financing of Terrorist Activities is defines natural and legal persons 1.5. Develop functions under obligation to report. There is of the FID and SIPA, FID, a number of obligors whose Supervision of establish an efficient supervisory supervision related to the legal all persons supervision mechanism authorities, obligations is not unambiguously 31.12.2010 under obligation for all parties under Yes Yes other regulated. These obligors should Medium term to report obligation to report to competent be defined and their supervision regulated by ensure their authorities legally organized related to the 31.12.2010 compliance with the obligations defined in the Law on AML/CFT regulations Prevention of Money Laundering and Financing of Terrorist Activities. This work should be aligned with Article 68 of the Law 203

on the Prevention of Money Laundering and Financing of Terrorist Activities which defines that the FID shall supervise compliance with the Law of those persons under obligation, who are not supervised by a special agency or body.

2. Strategic objective: Enhance exchange of information among authorities in Bosnia and Herzegovina Main Impact Specifications and schedule of the Impact on Deadline Action authorities on Monitoring action legislation Short/Mid/Long in charge budgets 2.1. Establish a Effective allocation of crime Analytical SIPA, FID, strategic analysis of the prevention resources is based on report and Working current situation in risk assessment and strategic conclusions in Group on BiH with regard to planning. It is necessary to prepare terms of future Prevention money laundering, an analytical report that evaluates activities of Money 31.12.2009 financing of terrorist the operational environment related No No prepared and Laundering Short Term activities and to money laundering and financing best European and effectiveness of the of terrorist activities and the practices Financing of prevention effectiveness of the mechanisms introduced by Terrorist mechanisms of these used for the prevention of these 16.10.2009. Activities crime types crime types. Law enforcement agencies and other relevant institutions should prepare a manual on standards 2.2. Establish common SIPA, other concerning collection, evaluation, standards for the law collation, analysis and Standardized intelligence process on enforcement dissemination of information and 30.6.2010 process money laundering, agencies on No No intelligence. Short Term established by predicate offences and state, entity Standards should initially be based 30.6.2010 financing of terrorist and Brčko on the present legislation, activities level Memoranda of Understanding and existing mandates and databases of the relevant authorities

3. Strategic objective: Ensure comprehensive investigation, prosecution and court proceedings of money laundering, predicate offences and financing of terrorist activities

Main Impact Specifications and schedule of the Impact on Deadline Action authorities on Monitoring action legislation Short/Mid/Long in charge budgets 3.1. Establish common Law enforcement agencies, standards for the prosecutors‟ offices and other investigation process relevant institutions should prepare on money laundering, Prosecutors a manual on standards concerning predicate offences and offices, SIPA investigation of money laundering financing of terrorist and other and financing of terrorist activities Standardized activities consisting of law and financial investigation related 30.6.2010 process models for the enforcement to the evaluation of the amount and No No Short Term established by financial investigations agencies on type of proceeds and tracing of 30.6.2010 related to the state, entity proceeds of crime. evaluation of the and Brčko Standards should initially be based amount and type of level on the present legislation, proceeds Memoranda of Understanding and and tracing of existing mandates and databases of proceeds of crime the relevant authorities. Prosecutors offices, SIPA 3.2. Establish and The relevant authorities should and other introduce a create a standardised selection Standardized law Standardised procedure for targets of serious 30.6.2010 process enforcement No No Procedure for the crime. This procedure should be Short Term established by agencies on Selection of Targets of linked to the standardized crime 30.6.2010 state, entity Serious Crimes intelligence process. and Brčko level Prosecutors offices, SIPA The relevant authorities should 3.3. Establish and other create a standardised procedure for Standardised Standardized law establishing multiagency Procedure for the 30.6.2010 process enforcement investigation teams. This procedure No No establishing of Short Term established by agencies on should be linked to the Multiagency 30.6.2010 state, entity standardized intelligence and Investigation Teams and Brčko targeting process. level 3.4. Establish common Ministries of There is no standardised procedure No No 30.6.2010 Standardized 204

standards for the Justice BiH, for the management and realization Short Term process management of seized RS and FBiH of the seized and cosnfiscated established by and confiscated and Judicial property. This is having a negative 30.6.2010 property based on Commission impact on the tracing and existing legislation of Brzcko confiscation of proceeds of crime. Agency for the management of 3.5. The mechanisms for the seized and Establish an Agency management of seized and confiscated for the management of Ministry of confiscated property have to be 31.12.2011 property seized and confiscated Yes Yes Justice BiH clear to enable efficient crime Medium term established and property and adopt prevention and tracing of criminal required required legal proceeds. legislation framework. adopted by 31.12.2010 Prevention of money laundering and financing of terrorist activities are linked to the spheres of activities of several law enforcement, judicial and other competent authorities. Therefore, it is important to ensure the Objectives consistent setting of objectives and related to the coordination of enforcement implementation measures. Strategic and operational of the Strategy 3.6. Ensure that the directing of the activities of and Action Plan Council of responsibility to different authorities is a necessity for the Ministers implement the Strategy to guarantee efficient allocation of Prevention of BiH, and Action Plan for the public funds and resources. Money Ministry of Prevention of Money Laundering and Finance and Laundering and 31.12.2009 Financing of Treasury The activities defined in the No No Financing of Terrorist Short Term Terrorist BiH, Strategy and Action Plan for the Activities is integrated Activities Govern- Prevention of Money Laundering in the Annual Strategic included to the ments of RS, and Financing of Terrorist Financing Plans of the Annual FBiH and Activities should be part of official responsible ministries Strategic Brzcko duties of the responsible ministries and institutions Financing Plans and institutions. Threfore the of the relevant actions which they are responsible ministries and for should be tasked and funded in institutions by their annual plans. This is to ensure 31.12.2009 implementation of the strategy and action plan and to coordinate the activities of the responsible ministries and institutions.

205

4. Strategic objective: Develop and apply a proactive approach to international cooperation in the prevention of money laundering and the financing of terrorist activities Main Impact Deadline Specifications and schedule of the Impact on Action authorities on Short/Mid/Lon Monitoring action legislation in charge budgets g EU Integration Strategy of Bosnia and Herzegovina and EU Commission‟s roadmap for Bosnia and Herzegovina concerning visa liberalisation Council of are requiring measures related to Ministers 4.1. Ensure that the prevention of money laundering BiH, Strategy and requirements related to and financing of terrorist activities. Ministry of Action Plan for the the prevention of Interests of Bosnia and Security of Prevention of money laundering and Herzegovina are requiring that BIH, Money financing of terrorist these conditions are fulfilled. The Ministry of Laundering and activities defined in requirements defined in the strategy Long term Justice BIH, Yes Yes Financing of EU Integration and roadmap consist of activities 31.12.2013 Ministries of Terrorist Activities Strategy and visa falling into the competences of Justice RS prepared by liberalization roadmap several ministries and institutions. and FBiH, 30.9.2009 and all for Bosnia and Therefore a common staretgy and Judicial objectives reached Herzegovina are action plan should be adopted by Commission by 31.12.2013 fulfilled. 1.10.2009 to fulfill these of Brzcko, requirements. The Council of SIPA, FID Ministers should also monitor the implementation process to ensure that defind objectives reached and planned actions taken.

The MONEYVAL evaluation 4.2. Ensure efficient mechanism is agreed between implementation of the Council of Council of Europe, the FATF, the Efficient recommendations Ministers IMF and the World Bank. From the implementation of defined in the BiH, strategic point of view it is the evaluation reports of institutions important to Bosnia and recommendations the Council of Europe responsible Long term Herzegovina to implement Yes Yes defined in the Committee for the for the 31.12.2013 recommendations defined in the evaluation reports Prevention of Money implemen- evaluation reports of this of the Laundering tation of the organization. Therefore it is MONEYVAL (MONEYVAL) on recommen- important to ensure that until 31.12.2013 state and entity level dations requirements are met on state and and in Brčko. entity level and in Brčko. The Council of Europe Committee for the Prevention of Money Laundering (MONEYVAL) is an Associate Member of the FATF. It is tasked to evaluate the performance of those European countries that are not members of the FATF in complying with the international standards relevant to the prevention of money laundering and financing of terrorist activities. 4.3. Ensure efficient The applied evaluation mechanism participation in the is agreed between Council of Efficient Council of Europe Council of Europe, the FATF, the IMF and the participation in the Long term Committee for the Ministers World Bank. From the strategic Yes Yes work of 31.12.2013 Prevention of Money BiH point of view it is important to MONEYVAL Laundering Bosnia and Herzegovina to until 31.12.2013 (MONEYVAL) participate to the work of MONEYVAL and fulfill those requirements defined in the evaluation reports of this organization. Therefore it is important to ensure that all relevant institutions in Bosnia and Herzegovina are given a possibility to contribute to the reporting and on-site visits guarantee that MONEYVAL is basing its findings on strategic and opeational facts.

206

Number Suspicious and Cash Transaction reports received by 4.4. Enhance FID are increasing. Effective international prevention of Money Laundering cooperation and and Financing of Terrorist exchange of Activities requires that information Relevant foreign information related to gained from these sources is 31.12.2010 FIU‟s identified the analysis of the FID appropriately analyzed and utilized. No No Mid term and MOU‟s signed Suspicious and Cash FID should have a possibility to by 31.12.2010 Transaction Reports by cross check this data with the signing MOU‟s relevant international counterparts. between FID and Therefore the FID should identify relevant foreign FIU‟s foreign FIU‟s with whom it should sign MOU‟s to ensure efficient exchange of information. The FID is a member of the 4.5. Ensure appropriate Egmont Group which is the world Ministry of financial resources for leading organisation in operational Attendance to Finance and Short the FID to participate coopeartion between FIUs. Each Yes No annual EG Plenary Treasury 1.1.2010 in the work of the FIU should attend annually the by 31.12.2010 BiH, SIPA Egmont Group Plenary of the EG and 1-2 training events

5. Strategic objective: Develop and harmonize the legal framework in Bosnia and Herzegovina concerning money laundering and the financing of terrorist activities to comply with international standards Main Impact Specifications and schedule of the Impact on Deadline Action authorities on Monitoring action legislation Short/Mid/Long in charge budgets Ministry of Security BiH, Bylaw drafted 5.1. Draft and adopt Working According to article 74 of the Law and passed by bylaws for the Law on Group on on the Prevention of Money Minister of the Prevention of Prevention Laundering and the Financing of Short term No Yes Security within Money Laundering and of Money Terrorist Activities requires to pass 15.10.2009 timeframe the Financing of Laundering bylaws within 3 months from the prescribed by Terrorist Activities and law comes into force. law. Financing of Terrorist Activities Law on 5.2. Ensure that the Prevention of Law on Prevention of Money Money Laundering and Effectiveness of the prevention Laundering and Financing of Terrorist Ministry of Short term mechanism on money laundering Financing of Activities and the legal Finance and 30.6.2010 and financing of terrorist activities Terrorist framework concerning Treasury requires that the legal framework Activities and the indirect taxation BiH, Indirect No Yes consists of clear mandate which the legal are enabling efficient Tax makes it possible to seize framework control of the cross Administra- suspicious cash that has been concerning the boarder cash transfer tion reported to the FID. indirect taxation and seizures of amended and suspicious cash adopted by amounts 30.6.2010 Ministry of 5.3. Execute an Security evaluation on the BiH, Effectiveness of the prevention effectiveness of the Working mechanism on money laundering Enforcement enforcement activities Group on and financing of terrorist activities measures and related to the Law on Prevention requires enforcement of the legal Medium term feasibility of the No Yes the Prevention of of Money framework and evaluation of the 31.12.2010 legal framework Money Laundering and Laundering feasibility of the valid legal evaluated by the Financing of and framework in the existing 31.12.2010 Terrorist Activities and Financing of operational environment. bylaws based on it Terrorist Activities 5.4. Ensure that The unlawful disclosure to a client Criminalization disclosure of or a third person, so called “tipping related to the information (Tipping off”, of information submitted to disclosure of the Ministries of Off) defined in Article the FID, information requested by information Justice BiH, 62 of the Law on the the FID, information concerning defined in RS and FBiH Short term Prevention of Money the FID order to temporarily No Yes Article 62 of the and Judicial 30.6.2010 Laundering and the suspend a transaction or Law on the Commis-sion Financing of Terrorist instructions relating to such order Prevention of of Brzcko Activities should be as prescribed in the Law on the Money criminalized when Prevention of Money Laundering Laundering and committed persons and the Financing of Terrorist the Financing of 207

under obligations to Activities require severe Terrorist report as defined in sanctioning. Activities is Article 4 of the Law on adopted by the Prevention of 30.6.2010 The disclosure of aforementioned Money Laundering and information has been prohibited in the Financing of Article 62 of the Law on the Terrorist Activities. Prevention of Money Laundering and the Financing of Terrorist Activities. The information has in the aforementioned article been designated as an official secret.

It is proposed that an additional paragraph (7) be added to Article 225 of the Criminal Code of BiH concerning the criminal offence of Disclosure of Official Secret to extend the scope of persons that may be the subject of the aforementioned offence to include the persons under obligation as described in Article 4 of the Law on the Prevention of Money Laundering and the Financing of Terrorist Activities.

It is foreseen that the criminal offence of Disclosure of Official Secret would apply also to legal persons as prescribed in Chapter 13 of the Criminal Code of BiH and Criminal Codes of RS, FBiH and Brčko.

208

Money laundering is criminalized on two different levels of Money 5.5. Ensure that money Ministries of legislation, namely on state and laundering laundering Justice BiH, entity level and in Brčko. criminalizations criminalizations are RS and FBiH Medium term Definitions of the criminalizations No Yes harmonized on harmonized on the and Judicial 31.12.2010 on these two levels are overlapping. state, entity and state, entity and Brčko Commis-sion This is endangering due process of Brčko level by level. of Brzcko law and effectiveness of the Anti- 31.12.2010. money Laundering mechanism. Laws on Banks and Micro Credit Effectiveness of the prevention 5.6. Ensure that Laws Organizations mechanism on money laundering on Banks and Micro are in and financing of terrorist activities Short term Credit Organizations Ministries of compliance with requires that Laws on Banks and 30.6.2010 comply with the Finance and the standards of Micro Credit Organizations are standards defined in Treasury on the new Law on harmonized on the state, entity and No Yes the new Law on the state, entity the Prevention Brčko level to comply with the Prevention of Money and Brčko of Money standards of the new Law on the Laundering and level Laundering and Prevention of Money Laundering Financing of Terrorist Financing of and Financing of Terrorist Activities Terrorist Activities Activities and adopted by 31.12.2009 Bylaws based on amended Laws on Banks

5.7. Ensure that bylaws and Micro based on Laws on Credit Effectiveness of the prevention Banks and Micro No Yes Short term Organizations mechanism on money laundering Credit Organizations 30.6.2010 aligned with the and financing of terrorist activities comply with the standards of the Banking requires that Banks and Micro standards defined in new Law on the Agencies Credit Organizations are fully the new Law on the Prevention of aware about their obligations based Prevention of Money Money on the standards defined in the Laundering and Laundering and legislation Financing of Terrorist Financing of Activities Terrorist Activities adopted by 31.12.2009 Laws on Insurance are in Ministries of Effectiveness of the prevention compliance with 5.8. Ensure that Laws Finance and mechanism on money laundering Short term the standards of on Insurance comply Treasury on and financing of terrorist activities 30.6.2010 the new Law on with the standards state, entity requires that Laws on Insurance are the Prevention defined in the new Law and Brčko harmonized on the state, entity and No Yes of Money on the Prevention of level, Brčko level to comply with the Laundering and Money Laundering and Agencies for standards of the new Law on the Financing of Financing of Terrorist Supervision Prevention of Money Laundering Terrorist Activities of Insurance and Financing of Terrorist Activities and Companies Activities adopted by 31.12.2009 Bylaws based on amended Laws on Ministries of 5.9. Ensure that bylaws Insurance that Finance and based on Laws on Effectiveness of the prevention Short term are aligned with Treasury on Insurance comply with mechanism on money laundering No Yes 30.6.2010 the standards of state, entity the standards defined and financing of terrorist activities the new Law on and Brčko in the new Law on the requires that Insurance Companies the Prevention level, Prevention of Money are fully aware about their of Money Agencies for Laundering and obligations based on the standards Laundering and Supervision Financing of Terrorist defined in the legislation Financing of of Insurance Activities Terrorist Companies Activities adopted by 31.12.2009 5.10. Ensure that laws Ministries of Effectiveness of the prevention Short term Laws regulating regulating financial Finance and mechanism on money laundering 30.6.2010 financial transactions comply Treasury on and financing of terrorist activities transactions that

with the standards state, entity requires that persons dealing with are aligned with defined in the new Law and Brčko cash payments are fully aware the standards of on the Prevention of level about their obligations based on the No Yes the new Law on 209

Money Laundering and standards defined in the legislation the Prevention Financing of Terrorist of Money Activities Laundering and Financing of Terrorist Activities adopted by 30.6.2010

6. Strategic objective: Enhance public awareness and develop a joint training programme for the public and private sectors Main Impact Specifications and schedule of the Impact on Deadline Action authorities on Monitoring action legislation Short/Mid/Long in charge budgets The most common predicate offences for money laundering are linked to the informal economy consisting of tax evasion and other tax offences, abuse of office, customs offences and abuse of position of power in economy. Informal economy increases corruption. Therefore money laundering, the most common predicate offences and financing of terrorist activities weaken the structures of society. SIPA, other

law Consequently, citizens and the enforcement 6.1. Implement a society as a whole should be made authorities, public awareness aware as to the extent and impact prosecu-tors campaign against of these phenomena. It is difficult offices, Public money laundering, to change attitudes if there is no supervisory awareness most common knowledge, and without 30.6.2010 authorities, Yes No campaign predicate offences and understanding it is extremely hard Short Term other established by financing of terrorist to enforce the measures that are competent 30.6.2010 activities needed when tackling these social authorities, problems. private

sector Publicity campaigns and representa- educational programs to enhance tives awareness of the harmfulness of money laundering and its links to informal economy, most common predicate offences, financing of terrorist activities and of the importance of preventing these phenomena should be planned and implemented.

The responsible authorities should seek funding for the implementation process from the EU Commission. Prevention of money laundering and financing of terrorist activities require financial investigation skills. They are also commonly classified as financial crimes. Therefore, it would be beneficial to SIPA, other implement training needs law enforce- assessment and establish a common Training Needs 6.2. Implement ment training strategy and programme Assessment Training Needs authorities, for the relevant public institutions implemented, Assessment and prosecu-tors on financial investigations. Common establish a joint offices 30.6.2010 Yes No Training Training Strategy and supervisory Short Term Strategy and Program on financial authorities, Prevention of money laundering Program investigations for the private and financing of terrorist activities established by relevant authorities sector and financial investigations are an 30.6.2010 representativ area where many public institutions es have shared interests. It is a field of activity that requires daily cooperation between law enforcement, judicial authorities and other relevant authorities. The legal framework in BiH is also designed to foster early cooperation 210

between prosecutors and law enforcement when investigating more serious or complex crimes.

This training strategy and programme should recognize the needs of the law enforcement, judicial authorities and other relevant authorities. The objective of the joint training strategy and programme should be to enhance cooperation and coordination among the relevant institutions and quality of their activities.

The training strategy and programme that should be based on the training needs assessment and should consist at least of the following training modules:

 Awareness seminars for the high level authorities;  Introductory module and basic training module on financial investigations;  Strategic and operational analysis modules;  Usage of IT tools for analysis;  Specialised training modules separately on money laundering, financing of terrorist activities and each of the most common predicate offences for money laundering such as corruption, tax offences, abuse of office, customs offences, abuse of position of power in economy, IT crimes and procuring and human trafficking;  Tracing of proceeds of crime; and  Training modules on special training methods such as bookkeeping, auditing, forensic accountancy and IT forensic.

The responsible authorities should seek funding for the implementation process from the EU Commission.

6.3. Implement FID, Training Needs Prevention of money laundering Training Needs Working Assessment and financing of terrorist activities Assessment and Group on 30.6.2010 implemented, is an area where public and private Yes No establish a Training Prevention Short Term Common sectors have shared interests. It is a Strategy and Program of Money Training field of activity that requires daily for the private persons Laundering Strategy and 211

and entities under and their daily cooperation. Program obligation to report Financing of established by about suspicious and Terrorist 30.6.2010 The quality and quantity of the cash transactions. Activities reports received by the FID from the private persons and entities is dependent on the awareness and skills of the personnel working for the parties under obligation to report. They have to have knowledge about their legal obligations, skills to identify suspicious and cash transactions and ability to report appropriately.

The responsible authorities should seek funding for the implementation process from the EU Commission.

212

ANNEX 5

Bosnia and Herzegovina

National Anti-Corruption Strategy (2008 – 2014)

Preamble

Corruption in the public and private sector threatens the stability and prosperity in Bosnia and Herzegovina. It undermines confidence in the institutions of government, hinders economic development and equal market competition, threatening the rule of law, democracy and human rights, undermines good governance, equity and social justice, allows the growth of organized crime and terrorism, and threatening the stability of democratic institutions and the moral basis of society. To suppress corruption and to ensure that it does not jeopardize and destroy the basic social values in BiH, there is a need to apply fconsistent application, effective measures to prevent corruption, all with the aim of affecting change in public and raising public awareness, and that corrupt people are sanctioning by the authorities.

Strategy for the Fight against Corruption aims to reduce opportunities for corruption through the establishment of modern and effective administrative and legislative framework for the public sector. A significant element of this strategy is the management and organizational development and clear regulation of the relationship between government institutions and the private sector and citizens. One of the main objectives of the strategy is to increase the effectiveness of existing institutions, with the task of preventing and combating corruption.

Public Service, economy and society in the BiH in general, require predictability, reliability, honesty and integrity. Confidence in government institutions is directly related to levels of corruption. Therefore a comprehensive strategy is needed, based on sound principles, to combat and prevent corruption in BiH.

213

Vision Bosnia and Herzegovina (hereinafter - BiH) will strengthen its position among the countries of Europe and be a model of good governance, integrity, accountability and transparency, and the BiH society will have no tolerate acts of corruption which will no pass unpunished. BiH citizens will have confidence in the rule of law and government institutions that are efficient, effective and reliable.

The overall objective of the Strategy for Combating Corruption

The overall objective of the Strategy is to reduce the level of corruption, making the strategic framework and common standards to be used in BiH, and the strengthening of trust in government institutions at all levels. Corruption must be eradicated so would not be an obstacle to good governance and free market in the country.

Objectives 1. To put in place an effective system for coordinating the anti-corruption efforts of the BiH authorities to ensure the consistency and the sustainable results of the specific actions taken under this strategy. 2. To put in place a system for corruption prevention in structures of the BiH public administration, in order to minimize the risk of corruption. 3. To strengthen the capacity of the Anti-Corruption Bodies of the BiH on all levels of governance with aim to effectively manage corruption prevention programs; to educate the BiH society on the risks of corruption; to coordinate the fight against corruption; to detect, investigate and prosecute cases of corruption. 4. To raise the awareness of the BiH society as a whole and of the particular professional groups and associations of the risks and dangers of corruption and to ensure that civil society is actively involved in activities to combat corruptions, provided by the public administrations.

214

Guiding Principles  Controlling corruption is first and foremost responsibility of the State; every assistances from foreign donors or non-governmental organizations (here and after NGo) is welcome, but it could not and it will not replace the State actions taken legitimately as provided by this Strategy.  Controlling corruption is only possible through a combine of measures, involving criminal, disciplinary and administrative prosecution and to take preventive measures and public awareness/education campaigns.  Corruption is an organizational problem; therefore to control it within the organizations the anti-corruption activities must become an integral part of the management process.  Effective control over corruption may only be achieved with the coordinated efforts of the politicians, of the civil servants and with the active support of the business; making full use of the opportunities for international cooperation.  To ensure the application of consistent anti-corruption policy through prevention, education and criminal prosecution, the implementation of the Strategy shall be coordinated from a single Centre. Therefore, the overall coordination and the full authority over the implementation of the anti-corruption strategy will lie with the Agency on prevention of corruption and on coordination of the fight against corruption (hereinafter; The Agency).  New challenges and the need to respond to growing expectations of citizens of BiH in the fight against corruption requires the implementation of the new institutional approach to the use of achievements, practices and lessons learned from the past.  The obligation of every citizen is to play an active role in prevention of the corruption. Every citizen has a moral duty to report any form of corruption.  Every civil servant must immediately report every case of corruption or every suspicion to his/her responsible superior, to Agency or to other responsible authority.

Mechanism of Work

 The adoption of a well defined action plan and time frame for implementation.  The adoption of a well defined practical approach to ensure good governance and effective implementation.  Issuing periodical reports (quarterly or annually) to indicate stages of development and accomplishments for each major priority undergoing implementation until it is fully executed.

215

Problems in Implementation

1. Delay in the establishment and inefficient functioning of the Agency and unprepared human and material resources. 2. Interference of political factors in the functioning and operation of the Agency and other competent bodies in combating corruption and implementing this strategy. 3. Failure to comply with the obligations envisaged by the strategy undertaken by the institutions of the holders of activities. 4. Lack of structures and procedures for policy coordination at the central level. 5. Lack of mechanisms for monitoring and evaluating the results of the activities envisaged by the Strategy. 6. Discrepancy in the implementation of policies to combat corruption. 7. Obstacles in terms of achieving coordination and cooperation between agencies and authorities at all levels. 8. Harmonization of the national legislation with international instruments and standards set in timelines.

216

Target Group and Stakeholders:

• The Parliamentary Assembly of BiH; • The Council of Ministers and government institutions; • Parliament of the Federation and the Republic of Serbian National Assembly; • Entity governments and institutions; • Assembly of the Brčko District; • Government and Institutions of Brčko District; • Public enterprises and institutions; • Political parties; • Universities and other educational institutions; • Associations and civil society institutions; • Citizens; • Media; • Private sector.

217

Approaches and Means Building the capacity of the Agency for the prevention of corruption and on coordination of the fight against corruption

By the end of time frame that encompasses the strategy, it is necessary to build the capacity of the Agency to effectively carry out programs for the prevention of corruption, to educate society and raise awareness about the risks of corruption, co-ordinate the fight against corruption, provide necessary assistance to the competent authorities to identify and verify corruption cases and initiate the appropriate procedures.

It is impossible to carry out the necessary reforms in the field of fight against corruption without strong and effective institutions, which led to all relevant activities. The Agency should develop the necessary capacity to become the leading authority in the prevention of corruption and co-ordination the fight against corruption. To achieve this goal, it is necessary to undertake the following:

Short term Objectives– by the end of 2010

1. Develop and adopt the legal framework for the functioning of the Agency, including bylaws orelating to the affairs of the authority of the Agency; on the coordination of the National Anti-Corruption Strategy (here and after (NACS) implementation, on the preventive and educational programs of the Agency. 2. Secure all the material preconditions for the functioning of the Agency, including but not limited to:  Office space/dedicated building for Agency; 1. Dedicated budget, which should be sufficient for the Agency to implement the relevant tasks from the Action plan for the implementation of the Strategy. 3. Appoint the skeleton staff of the Agency in order to allow it to start performing its functions effectively. 4. Put in place effective training programs to raise the competency of the Agency staff to effectively and professionally perform their functions. 5. Adopt a Code of Conduct of the Agency, defining the standards of conduct for the ACB staff and the relevant disciplinary procedures for its violation. 6. Develop and adopt all the relevant Guidelines, Standard Operative Procedures and Manuals for the Agenecy staff; these should become an integral part of the training for the Agency. Mid-term

218

Objectives– by the end of 2012

By the end of this period the Agency should be an established and functioning structure. The Agency will start wit its functioning and has sufficient budget, personnel and capacity to perform its functions. The main task during this period is to establish the analytical capacity within the Agency to start performing its functions proactively.

To achieve those goals the following preconditions have to be fulfilled:

1. Strengthen the training process within the Agency to guarantee that a strong organizational culture is formed around the set of values, stated in the Code of Conduct, adopted by the Agency director. 2. Perform review and monitoring of the NACS implementation; propose necessary changes in consultations with all stakeholders. 3. The Anti-Corruption Action Plans under separate arias of work are implementing.

Long term Objectives – by the end of 2014

1. Establish Agency as the primary, of utmost trusted body to combat corruption. 2. Agency is coordinating the implementation of the Action Plans with aim to prevent and combat corruption as efficiently as possible. 3. Agency is capable of designing and implementing state-of-the-art corruption prevention programs and anti-corruption education and awareness rising programs in regard to combat of the corruption.

Corruption prevention

Prevention is understood as to be under the overall plan designed, organized and undertaken measures and activities which seek to eliminate or reduce the direct and indirect causes of corrupt behavior. Prevention is divided into situational and social. Situational includes efforts to eliminate situations in which corruption takes place, and social forms an integral part of the overall development strategy and include measures of social, economic, legal, educational, and other policies, or the inclusion of the entire society to reduce this phenomenon. The main goal of prevention is aimed at preventing corruption.

Although it is very important, sanctioning of corrupt public servants after they made corruption ( "ex post") is a reactive strategy that is carried out after the damage is made, or when the act of corruption becoming fact. It is therefore important to establish adequate programs for prevention of corruption, which will provide education and training programs for all, to protect society and minimize the effects of corruption.

219

The main goal of prevention is to create conditions that minimize the opportunities for corruption. It could be achieved through  Effective prosecution of perpetrators of corrupt acts;  Removal or reduction of the administrative barriers/regulations that put excessive burden on the businesses;  Simplification of the rules and procedures for the citizens or the businesspeople;  Simplification of the rules and procedures in front of administrative and judicial bodies;  Introduction of strict rules and procedures for how the administrative processes are carried out;  Establishing and strengthening the effectiveness of institutions for the implementation of laws and institutions for prevention;  More transparency and accountability in the work of the administration:  Elimination of the networks of patronage, nepotism and favouritism;

Short-term Objectives – by the end of 2010

Public Sector Reform, Transparency and Accountability 1. Develop and adopt a Public Sector Modernization Program in order to strengthen the capacity of the BiH Public Sector to perform its functions more effectively and reliably. 2. Review the implementation of the Access to Information Legislation on all BiH governmental levels. 3. Establish open communication channels113 in every Ministry, other Governmental Institutions and Local Self Government Institutions to empower their clients or the public servants to report abuse of power, corruption and mobbing (an indicative list of these may include sealed mailboxes; dedicated hotlines; special e-mail address). 4. Develop a whistleblower protection procedures at all public services to guarantee that no public servants or clients of the public administration who in good faith disclose wrongdoings will be victimized. 5. E-Government. Introducing modern technologies may be a powerful tool to counteract corruption. 6. Introduce annually survey among the citizen of BiH to identify the zones where corruption is most likely to occur. 7. Each Ministry and all other public institutions on all level of BiH governance should prepare its own Anti-Corruption Action Plan or Integrity Plan. 8. The short-term measures will focus on developing the background documents to initiate modernization measures that will culminate in introduction of E-Government and E- Governance models to minimize the interaction between the citizens and the administration and to streamline the internal administrative procedures. Elements of this system will include:  E-Transparency – access to government information/acts through the Internet at the all level of BiH governance;  E-Assets and Interests – Electronic database of the declarations of conflicts of interest and the assets declarations;

113 One of the options is to introduce Integrity Liaisons Officers. 220

 E-Decision-Making – modernization of the principles on which the public administration operates to make full use of the modern technology; thus raising the effectiveness of the administration;  E-Recruitment – all positions in the public administration should be advertised to the public; electronic submission of the documents for appointment/selection should be possible;  E-Procurement – Introducing measures that will allow the public procurement bidders to participate in public procurement procedures over the Internet is an important step towards guaranteeing the equal access of all the market actors to the bidding process and will ensure more transparency;  Electronic access to information in regard to the work of the Courts, including publication of the judicial decisions on Internet. 9. To introduce effective legislation on Lobbying, including obligations for the Lobbyists to register, to openly declare who their employers are, who they are lobbying, with what means and to what effect. 10. To strengthen the public trust obligatory declaration of all legal persons that participate in Public Procurement procedures shall be introduced. All legal persons – participants in a process, under threat of debarment should declare their connections in the public institutions that take Public Procurement procedures that may give rise to corruption suspicions. 11. To introduce new, simple to follow rules on receiving and giving gifts at the workplace and/or by public servants. 12. To strengthen the status of the Inspectorates in the line to become one of the focal points for and be in charge for the internal Anti-Corruption Programs. 13. A thorough review will be undertaken to determine the effectiveness of the application of the anti-corruption legislation in Courts; recommendations for corrective action should be given by the Agency if necessary.

221

Anti-corruption / Integrity Plans 1. To develop the capacity within all authority levels in BiH to perform Anti-corruption / Integrity Plans; 2. In order to allocate the scarce resources in the most effective way it is of crucial importance to introduce a system for systematic risk assessment under separate arias of work, thus identifying all the arias where there is substantial corruption risk. Furthermore, every Ministry, other Government Institutions on all levels in BiH should have an Integrity Plan system put in place in order to determine the departments/positions that are most vulnerable to corruption ant to take appropriate measures to reduce/eliminate vulnerabilities. 3. By the end of 2012 relevant systems of Corruption Indicators should be developed to ensure the uniformity of the Risk Assessment / Integrity Plans standards. 4. Specific measures should be undertaken to introduce systemic Integrity testing for all the personnel, working on positions that are defined as high risk in the process of Risk Assessment/Integrity Plans.

Simplification of the Business Environment 1. Organize a series of seminars and workshops with the business associations in order to identify areas of interest and practices in the field of business regulation that need to be eliminated. 2. Introduce a survey among the business people in BiH to identify the zones where corruption is most likely to occur. 3. Introduce a survey in order to identify the rules and procedures that are most difficult for the business people to comply with and to estimate the compliance costs. 4. Every Ministry other Governmental Institutions on all levels in BiH should develop a catalogue of its administrative processes, with emphasis on the processes related to the private business.

Mid-term Objectives – by the end of 2012

Public Sector Reform, Transparency and Accountability 1. Introduce a new Code of Conduct for the Public Service, based on the European best practices to set uniform standards of behaviour throughout the BiH Public Service. 2. Develop Guidelines for the implementation of the Access to Information Legislation in each Ministry and other institutions on all level in BiH and deliver the necessary training to the staff. 3. Develop individual Corruption prevention programs on all levels in BiH to reflect the priorities of the NACS. 4. Establish legal framework for the protection of persons who indicate irregularities (Whistleblowers) of public duties (applicants). 5. Develop and introduce pro-integrity / anti-corruption / ethics training programs for the public servants. Tanning programs should be delivered as a mandatory training by the Agency in cooperation with relevant education institution if necessary.

222

Simplification of the Business Environment

1. Perform a detailed analysis of existing procedures and criteria for certification, licensing and registration documents on all areas of work. Based on the analysis, eliminate unnecessary procedures, to the extent possible, and simplify the existing procedures of registration, publishing, licensing and approval of registration documents in order to eliminate opportunities for corruption. Where possible licensing (ex-ante control) should be replaced with registration and ex-post compliance control. 2. Adopt the necessary legislation to ensure that new regulatory regimes will be introduced only by the Parliament and only after independent regulation impact assessment.

Long-term Objectives – by the end of 2014

1. Perform a full organizational and functional review of the BiH Public Administration 2. Identify weak points within the structure of public administration in BiH on the issue of corruption and to act in connection with it. 3. Perform thorough researches on the corruption in Public Administration and develop a strategy for counteracting corruption there. 4. Perform thorough researches on the corruption in the Private sector and develop a strategy for counteracting corruption in the Private sector. 5. Introduce new and modern system for performance assessment within the Public Service and tie it to the monthly salary of the Public Servants. 6. Introduce effective E-Government and E-Governance mechanisms.

Education, Training and Public Awareness

It is an uncontested paradigm that anti-corruption efforts will be sustainable only where special measures in the area of training and Education are undertaken. Changing the rules is by its self insufficient. The people who are to implement the new rules should be properly trained and united around common positive values. It is of utmost importance to undertake targeted measures in order to communicate to all public servants and all members of the BiH Society the Corruption is not an acceptable way to pursue their own interest; that we disapprove of it and that it will be severely prosecuted. By the end of the Strategy implementation period is to raise the awareness of the BiH society as a whole and of the particular professional groups of the high risk of corruption.

Short-term Objectives– by the end of 2010

1. To assess the training needs in the area of the public service in order to develop the necessary training needs. 2. To create the necessary preconditions – within the framework of the Agency and relevant education institutions to develop curricula, pedagogical materials, tools and to train trainers in order to deliver training on integrity / anti-corruption / ethics for the public service.

223

3. To design interactive, easy to access materials for delivering training to the public servants (online content; interactive videos etc.). 4. To assess the training needs for integrity / ant-corruption / ethics programs in the primary, secondary schools and the universities. 5. To adopt a plan for the implementation of programs in the field of fight against corruption and professional ethics in primary and secondary schools and universities. 6. To start delivering pilot training courses – both as seminars for the high-level officials and for the groups of high risk for corruption and online for the rest of the public service. 7. To improve public communication strategy in order to educate the public about the dangers of corruption and the means for its prevention, as well as the individual responsibility of every citizen. 8. To improve PR strategy in order to ensure that all institutions on all authority levels in BiH will have proactive approach to the media. 9. To develop and introduce training for journalists on investigative journalism.

Mid-term Objectives– by the end of 2012

1. To reassess the training needs in the area of the public service in order to introduce necessary changes in the training infrastructure/programs depending on the outcome of the pilot courses. 2. Start providing with trainings to the BiH Public Service on mass scale in regard to the fight against corruption and establish the professional ethics. 3. To adapt integrity / ant-corruption / ethics programs in the primary, secondary schools and the universities. 4. Implement and evaluate the public communication strategy in order to educate public at large on the dangers of corruption and the means to combat it and on the individual responsibilities of every citizen with this respect. 5. Start providing with trainings to the journalist in cooperation with their professional associations.

Long term Objectives– by the end of 2014

1. By the end of 2014 all BiH public servants have past through at least one training on integrity / anti-corruption / ethics related issues. The training program should be established and a regular evaluation mechanism should be in place. 2. All BiH primary schools, secondary schools, and universities should have included in their curricula uniform programs for integrity/anti-corruption/ethics training. 3. Public education programs should become an integral part of editorial policy and program scheme of public broadcasters.

224

Law Enforcement

Despite the importance of the corruption prevention strategies, we do recognize that corruption is often a crime; and that as such it must be vigorously prosecuted – both in order to deprive the corrupt officials from the opportunity to commit crimes in the future and to demonstrate to the subjects of the BiH that “crime does not pay”. The main goal of prevention is to limit the opportunity for the perpetrators to continue to commit crimes, and to make example of them so that others will not follow their example. It will be achieved through:  Introduction of legislative measures to simplify the investigation and judicial procedures without compromising the right to defence;  Introduction of a system for confiscation of the unlawful property and loss of acquired rights generated corruption;;  Strengthening the capacity of the law-enforcement bodies to apply the law;  Provision of the necessary resources to the law-enforcement bodies to effectively apply the law.

225

Short-term Objectives – by the end of 2010

1. To strengthen autonomous of all Law Enforcement Agencies (here and after LEA) in BiH that will be empowered and equipped to effectively investigate corruption. 2. Introduce of strict vetting procedures for the staff of the LEA to apply the law. 3. Evaluation of the use of special investigative means and techniques in corruption cases to estimate its use and affectivity. 4. Introduction of specialized training courses for LEA‟s employees, involved in investigating of corruption, prosecutors and judges in the field of corruption and confiscation of illegally obtained assets.

Mid-term Objectives – by the end of 2012

1. Achievement of full compliance of the national criminal legislation with the international standards. 2. To introduce of differentiated procedures for the different acts of corruption to perform more effective investigation. 3. To introduce strict provisions regarding procedural regulations in order to prevent their being misused by the LEA staff. 4. To adapt of legislation on forfeiture of proceeds of corruption with a full reversal of the burden of proof (it should be up to the person that has a lifestyle beyond his official income to demonstrate that the money he has is of legitimate origin). 5. To adopt of legislation to allow for debarment (blacklisting) of legal persons involved in corruption. 6. To adopt of legislation on the protection of whistleblowers.

Long-term Objectives – by the end of 2014

1. A full audit of existing legislation related to the organization and powers of law enforcement agencies, prosecutors and courts, conducted. Additional laws and procedures for their effective functioning adopted, if necessary. 2. Introduction of additional vetting selection procedures for candidates applying for positions important to the detection of corruption, as well as positions superior to these.

226

Coordination and strategy implementation

By the mid-2010 to put in place an effective system for coordinating the anti-corruption efforts of the BiH authorities to ensure the consistency and the sustainable results of the specific actions taken under this strategy, including:

1. Individual policy formulation of all public institutions at all levels in BiH; 2. Inter-agency Policy coordination system; i. At central level. ii. At entities level and Brčko District BiH. iii. At local level. 3. Civic Sector and Business associations Outreach Coordination procedures; 4. Strategy Implementation Monitoring and Evaluation of the Results.

Short term Objectives – by the end of 2010

1. A Sample Manual for developing a Policy Formulation System in all institutions on all authorities levels tin BiH; 2. Monitoring and coordination of the implementation of NACS by the Agency in coordination with all other institutions implementing strategy; 3. An outline of a Policy Coordination system will be developed, including a. At State level – representatives of all the relevant institutions b. At Entities Level and Brčko District BiH –representatives of the entities and Government of Brško District BiH; c. At local level, every institution will be requested to develop its own anti- corruption/integrity policy and to design and put in place mechanisms for its monitoring and evaluation. d. All institutions on all level of BiH will be requested to report to the Agency on a annul basis or its request. 4. Special procedures will be developed by the Agency for consulting the NGo and professional business associations on issues related to the NACS implementation. 5. The Agency will organize meeting with all relevant institutions for implementing the strategy at least once per quarterly. Report of meeting is published on the web site of the Agency and institutions.

227

Mid-term Objectives – by the end of 2012

1. The Manual for Developing a Policy Formulation System in the Ministries, other Governmental Institutions and Local Institutions will be introduced as a mandatory tool to be use. 2. The Policy Coordination system will be put in place in all of BiH, tweaked and amended where necessary to reflect the local conditions/ specificity. 3. The procedures developed by the Agency and for consulting the NGo and professional business associations on issues related to the NACS implementation will become operational; the Public Consultations process should become an obligation of the Agency Director, and also the obligations of managers of other listed institutions. 4. Agency shall collect information on the implementation of NACS from all Institutions on daily basis.

Long-term Objectives – by the end of 2014

1. An evaluation will be performed on the NACS implementation and a project for a new strategy will be drafted and presented to Council of Ministers of the BiH and to the Parliamentary Assembly of BiH for adoption. International Cooperation

Short term Objectives – by the end of 2010

Perform a thorough legislation review to achieve highest degree of conformity of the BiH legislation with:  the 2004 United Nations Convention against Corruption;  the 1999 Council of Europe Criminal Law Convention on Corruption and its Additional Protocol (2003);  the 1999 Council of Europe Civil Law Convention on Corruption;  the 2000 United Nations Convention against Transnational Organized Crime,  the 1999 United Nations Convention for the Suppression of the Financing of Terrorism  the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances ,  the establishment of FATF in 1990 and issuance of Recommendations regarding money laundering and terrorist financing,  UN Security Council Resolutions 1267, 1373 and 1377 regarding the financing of terrorist acts,

228

Action plan for implementation of the Strategy for Combating Corruption (2009-2014)

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) 1. Building the capacity of the Agency for the Prevention of Corruption and on Coordination of the Fight against Corruption 1.1 Developing and adopting the Law on Anti-Corruption Body legal framework for the functioning of adopted the Agency for the Prevention of Council of

Corruption and on Coordination of Up to January Ministers (CM), Bylaws and Rule Books of the Fight against Corruption 2010 – adopting of Parliamentary Agency; on the coordination of (hereinafter; Agency); on the Law Assembly of BiH the NACS implementation, on coordination of the National Anti- (PA BiH) the preventive and educational Corruption Strategy (hereinafter June 2010 programs adopted and NACS) implementation, on the Agency published in the Official preventive and educational programs Gazette of the Agency. 1.2 Secure all the material Agency office established; preconditions for the functioning of budget provided under terms the Agency, including but not limited December 2010 CM for the establishment of new to: Office space/dedicated building; institutions. Dedicated budget, Agency The director and his/her deputy 1.3 Appoint the skeleton staff of the PA BiH nominated and confirmed; Agency in order to allow it to start June 2010 Agency for Public other professional staff and performing its functions effectively. Administration support staff hired. (APA) 1.4 Put in place effective training programs to raise the competency Existence of training programs; of the Agency staff to effectively and December 2010 Agency Percentage of the Agency staff professionally perform their successfully passed training; functions. 1.5 Adopt the Code of Conduct of the Code of Conduct of the Agency Agency, defining the standards of December 2010 Agency adopted and published. conduct for the Agency staff. All relevant guidelines, 1.6 Develop and adopt all the manuals and procedures for relevant Guidelines, Standard the Agency developed; December 2010 Agency Operative Procedures and Manuals Policies where appropriate for the Agency staff. should be available on the Agency website. 1.7 Strengthen the training process Training process in place for within the Agency to guarantee that the Agency staff; Existence of a strong organizational culture is December 2011 Agency an organizational culture in the formed around the set of values, Agency, formed. stated in the Code of Conduct. “Report on Review of the NACS Implementation” carried 1.8 Reviewing and monitoring of the out; NACS implementation; propose December 2011 Agency Proposals introduced to the necessary changes in consultations Council of Ministers for with all stakeholders. introducing necessary amendments to the NACS. Relevant Anti-Corruption Action Plans authorities on 1.9 The Anti-Corruption Action Plans are adopted and implemented; state and entities under separate arias of work are June 2011 Agency is getting reports on level, and District implementing. implementation on annual Brčko BiH (DB bases; BiH) 1.10 Agency is the primary, of utmost Number of reports of suspicion trusted body to prevent and to report December 2012 Agency of corruption increased; corruption. Trust in the Agency is high as

229

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) demonstrated by public opinion polls; The quality of complaints received by the Agency becomes higher; There are no serious opponents to the way the Agency operates. Agency 1.11 Agency is coordinating the Relevant Agency is getting reports on implementation of the Action Plans to June 2011 Ministries on implementation on annual prevent corruption under separate State and Entities bases; arias of work. level and BD BiH 1.12 Agency is capable of designing Corruption prevention, and implementing state-of-the-art Agency education and awareness corruption prevention and anti- December 2012 CM raising programs are defined corruption education and awareness and implemented. raising programs.

2. Corruption prevention

2.1 Develop and adopt a Public CM Sector Modernization Program in Agency order to strengthen the capacity of Office for the A Public Sector Modernization the BiH Public Sector to perform its November 2010 coordination of program adopted by the functions more effectively, the Public Council of Ministers predictably and reliably. Administration reforms (OCPAR) Every public authority at all Agency levels has reviewed its access 2.2 Review the implementation of the All Ministries to information policy and has Access to Information Legislation in August 2010 Other authorities one. all institutions on all levels in BiH. on all levels in Reports are sent to the Agency BiH and Council of Ministers 2.3 Establish open communication Sealed mailboxes; dedicated channels in every institution at all hotlines; special phone levels of authority in BiH to empower Agency numbers, special e-mail their clients or the public servants to All the Ministers address available for report abuse of power, corruption July 2010 Other institution whistleblower complaints – and mobbing (an indicative list of at all levels in BiH including opportunity for these may include sealed mailboxes; submitting anonymous dedicated hotlines; special e-mail complaints. address). 2.4 Develop whistleblower protection regulations/procedures to guarantee Whistleblower protection that no public servants or clients of Agency December 2010 regulations/procedures on the public administration who in good CM place. faith disclose wrongdoings will be victimized. Thorough analysis of all the 2.5 Introduce a survey among the regulatory regimes in the citizen of BiH to identify the zones Agency July 2011 country prepared in where corruption is most likely to CM cooperation with all the occur. stakeholders Plans developed 2.6 All institutions at all levels in BiH Agency Agency is getting reports on should prepare its own Anti- July 2010 All institutions at implementation on annual Corruption Action Plan. all levels in BiH bases; 2.7 Modernization of administration through introduction of E- Government and E-Governance CM by the Initiation document developed; models to minimize the interaction December 2012 competent Recommendations are agreed; between the citizens and the ministries Document is published; administration and to streamline the internal administrative procedures. 230

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) 2.8 To introduce effective legislation on Lobbying, including obligations Draft Law on Lobbying is for the Lobbyists to register, to Agency prepared, adopted by the December 2012 openly declare who their employers CM Council of Ministers and sent to are, whom they are lobbying, with the Parliament; what means and to what effect.

2.9 The introduction of compulsory Agency List of the legal person is declaration of all legal entities Public adopted and published in October 2011 involved in public procurement Procurement official gazette and Agency’ procedures Agency web side. Contact within government 2.10 The inspectorates should Agency institutions are defined, contact become one of the focal points for January 2011 CM persons are cooperating with cooperation with the Agency Inspectorates Agency on dally bases. Agency Relevant 2.11 Reviewing of the effectiveness Ministries of Report on effectiveness with of the application of the anti- December 2012 Justice recommendation for corruption legislation on Courts Supreme Court improvement is prepared. and Prosecution Council (SCPC) 2.12 Developing the capacity within Agency authorities at all levels in BiH to Ministries, Capacities are in place and December 2011 perform Anti-Corruption / Integrity Institutions at all fully used. Plans; levels in BiH 2.13 Introducing a system for Methodology is developed - systematic risk assessment under Agency Corruption Risk Management / Ministries, Integrity Plan; separate arias of work , thus December 2011 identifying all the arias where there Institutions at all System of the evaluation of the is substantial corruption risk levels in BiH corruption risks has been tested; 2.14 Authorities at all levels in BiH should have Corruption Risk All Public Administration Management / Integrity Plan system Agency Institutions start to elaborate put in place in order to determine Ministries, May 2012 and implement Corruption Risk the departments/positions that are Institutions at all Management / Integrity Plan most vulnerable to corruption ant to levels in BiH take appropriate measures to Reports reduce/eliminate vulnerabilities. Under Corruption Risk 2.15 Relevant systems of Corruption Agency Management / Integrity Plan Indicators should be developed to Ministries, reports the corruptions ensure the uniformity of the Risk December 2012 Institutions at all indicators are developed; Assessment / Integrity Plans levels in BiH Indicators are published in standards. Agency web side; 2.16 Introducing the systemic Integrity testing for all the personnel, Integrity Testing Methodology working on positions that are December 2013 Agency defined as high risk in the process is adopted and tested; of Risk Assessment/Integrity Plans. 2.17 Organize a series of seminars Up to 10 seminars organized Agency in and workshops with the business ion various location of BiH to cooperation with associations in order to identify areas identify areas of interest and December 2010 relevant of interest and practices in the field of practices in the field of Institutions at all business regulation that need to be business regulation that should levels in BiH eliminated. be eliminated A survey among the business 2.18 Introduce a survey among the people in BiH to identify the Agency business people in BiH to identify the zones where corruption is most December 2010 Relevant zones where corruption is most likely likely to occur is carried out; ministries to occur. the results of the survey are widely disseminated 2.19 Introduce a survey in order to June 2011 Agency A survey is carried out; the 231

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) identify the rules and procedures that Relevant results of the survey are widely are most difficult for the business ministries disseminated people to comply with and to estimate the compliance costs. A catalogue of its 2.20 Each authority at all levels in administrative processes, with BiH should develop a catalogue of its All the Ministers emphasis on the processes administrative processes, with December 2010 Other institutions related to the business for emphasis on the processes related at al levels in BiH every Ministry and other to the private business. institutions at all levels in BiH are available. 2.21 Introduce a Code of Conduct for Code of Conduct for Public the Public Service, based on the BiH Agency Service adopted. It's traditions and the European best January 2011 Authorities at all mandatory for all employees in practices to set uniform standards of levels in BiH public services at all levels in behavior throughout the BiH Public BiH. Service. Guidelines developed and 2.22 Develop Guidelines for the published, made available to implementation of the Access to the public at large. Access to Agency Information Legislation in each information officers are March 2011 each authority at authority at all levels in BiH, and available in each institution; all levels in BiH deliver the necessary training to the number of information refusals staff. is declining and the demand is rising Each authority at all levels in BiH has developed a 2.23 Develop individual Corruption Corruption Prevention program; Agency prevention programs in each Each authority at all levels in October 2011 each authority at authority at all levels in BiH to reflect BiH nominated responsible all levels in BiH the priorities of the NACS. person for the implementation, monitoring and review of the Program. 2.24 Develop and introduce CM Whistleblower Protection Act December 2011 Whistleblower protection legislation. PA BiH adopted. Training programs for the 2.25 Develop and introduce pro- public servants made integrity / anti-corruption / ethics Agency mandatory by either Council of February 2011 training programs for the public CM Ministers bylaws or by every administration. individual Ministry or other public institution. . 2.26 Perform a detailed analysis of existing procedures and criteria for certification, licensing and registration documents on all areas of work. Based on the analysis, eliminate unnecessary procedures, to the extent possible, and simplify CM Number of regulatory regimes the existing procedures of December 2012 Relevant is reduced. The business registration, publishing, licensing and Ministries environment is liberalized. approval of registration documents in order to eliminate opportunities for corruption. Where possible licensing (ex-ante control) should be replaced with registration and ex-post compliance control. A Draft Law is introduced to the PA BiH to ensure that new 2.27 Adopt the necessary legislation regulatory regimes will be to ensure that new regulatory introduced only by the PA BiH Council of regimes will be introduced by the PA December 2011 and only after independent Ministers BiH, only after independent regulation impact assessment regulation impact assessment. and in consultation with the stakeholders. The same Draft law may be used to repeal all 232

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) the acts that contradict it. CM Office for the 2.28 Perform a full organizational The number of administrative January 2014– Coordination of and functional review of the BiH structures and Public servants July 2014 the Public Public Administration decreasing Administration reform Agency Relevant Ministries 2.29 Identify weak points within the Office for the structure of public administration in January 2013 Weak points identified. Coordination of BiH on the issue of corruption. the Public Administration reform 2.30 Perform thorough researches A research is carried out; on the corruption in Public The relevant institutions are Administration and develop a January 2014 Agency known with the results of strategy for counteracting corruption research. there. CM A new and modern system for 2.31 Introduce new and modern Agency performance assessment of system for performance assessment APA the public servants is within the Public Service and tie it to January 2013 Relevant introduced and tied to the the monthly salary of the Public ministries of monthly salary of the Public Servants. financing Servants. 2.32 Introduce effective E- E-Government and E- CM Government and E-Governance January 2014 Governance is introduced at Agency mechanisms. all levels of BiH authorities.

Education, Training and Public Awareness

Assessment of the training needs in the area of the public service carried out; 3.1 To assess the training needs in Outlines of the legal the area of the public service in November 2010 Agency documents necessary to order to develop the necessary create the training training needs. infrastructure are drafted and submitted to the Council of Ministers 3.2 To create the necessary All the necessary legal acts preconditions – within the framework adopted; funds secured for of the Agency and relevant education developing curricula, institutions to develop curricula, pedagogical materials and September 2010 Agency pedagogical materials, tools and to tools and to train trainers in train trainers in order to deliver order to deliver training on training on integrity / anti-corruption / integrity / ethics for the public ethics for the public service. service Interactive, easy to access competency building materials 3.3 To design interactive, easy to for delivering training to the access materials for delivering January 2011 Agency public servants (online training to the public servants (online content; interactive CD/DVD, content; interactive videos etc.). videos etc.) designed and circulated Assessment of the training needs in the 3.4 To assess the training needs for Agency, Ministry primary/secondary schools fight against corruption in the of Education, and the universities carried December 2011 primary, secondary schools and the relevant out. Outlines of the legal universities. Universities documents necessary to create the training infrastructure are drafted and 233

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) submitted to the Council of Ministers 3.5 Delivering of the pilot training 3 pilot courses organized as 5- courses – both as seminars for the day seminars for high-level high-level officials and for the groups December 2011 Agency officials and for public servants of high risk for corruption and online working in high-risk for the rest of the public service. environment 3.6 To develop a public communication strategy in order to educate public at large on the Agency, Office Public Communication strategy dangers of corruption and the means July 2011 for public developed, adopted and tested. to combat it and on the individual relations responsibilities of every citizen with this respect. 3.7 To develop PR strategy in order Agency, Office to ensure that each authority at all Model of the PR Strategy December 2011 for public will have proactive approach to the developed, adopted and tested. relations media. 3.8 To develop periodically training Agency, Training curriculum developed, for journalists on investigative January 2011 Journalist adopted and tested; journalism. Association 3.9 Reassessing the training needs in the area of the public service in Training needs assessments order to introduce necessary carried out – one for the whole July 2011 Agency changes in the training PA as well as spectral needs infrastructure/programs depending assessments on the outcome of the pilot courses. Training system available for all the BiH Public Service, including training programs, 3.10 Start providing with trainings to training tools; trainers and the BiH Public Service on mass December 2011 Agency training infrastructure. scale. Actual trainings are provided to all the level of public servants in the BiH Public Administration At least one mandatory integrity/ant-corruption/ethics 3.11 Introduce mandatory integrity / Agency, program per the primary, ant-corruption / ethics programs in ministries of February 2011 secondary schools and the the primary, secondary schools and education, universities introduced at pilot the universities Universities stage for each level of the educational system 3.12 Implement and evaluate the public communication strategy in Public Communication strategy order to educate public at large on Agency, Office designed, tested and the dangers of corruption and the January 2011 for public implementation started; means to combat it and on the relations Monitoring and evaluation individual responsibilities of every mechanisms put in place. citizen with this respect. At least 6 trainings has been 3.13 Starting of the trainings to the Agency, Office provided; journalist in cooperation with their January 2011 for public Monitoring and evaluation professional associations. relations mechanisms put in place; Training system provided for all 3.14 All BiH public servants have the BiH Public Service, past through at least one training on including training programs, ethics related issues I and fight End of 2014 Agency training tools; trainers and against corruption. The training training infrastructure; regular evaluation mechanism should Evaluation mechanism in place be in place. and in use; 3.15 All BiH primary, secondary All BiH primary/secondary schools and universities should have Agency, schools and Universities have included in their curricula uniform ministries of By the end of 2014 in their curricula courses on programs for training on ethics education, integrity/anti-corruption/ethics related issues and fight against Universities training. corruption. 234

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) Public Communication strategy 3.16 Public education programs Agency, public implemented full scale; should become an integral part of By the beginning broadcasters, Regular monitoring and editorial policy and program scheme of 2015 Office for public evaluation carried out, of public broadcasters. relations including fine tuning of the

program.

Law Enforcement

4.1 To strengthen autonomous of all Budget , equipment and Law Enforcement Agencies (here Agency, CM, training needs introduced. All and after LEA) in BiH that will be December 2010 ministries of necessary procedures have empowered and equipped to interior been taken. effectively investigate corruption. 4.2 Evaluation of the use of special Agency, CM, investigative means techniques in Noticeable increase in the use December 2010 ministries of corruption cases to estimate its use if SIMT in corruption cases. interior and affectivity. Agency, ministries of Differentiated LEAs justice, ministries investigation procedures 4.3 Introduction of specialized of interior, CM, introduced that will allow for a training courses for LEA’s High Judicial and more effective criminal employees, prosecutors and judges, Prosecution investigation; involved in investigating of December 2010 Council (HJPC), Differentiated Court procedures corruption, in the field of corruption Judges and introduced that will allow for a and confiscation of illegally obtained Prosecutors more effective criminal assets. Education procedure (no appellation in Centre, Judicial minor cases, plea bargain etc.) Commission of the BD BiH Criminal legislation is in Agency, 4.4 Achievement of full compliance of compliance with international ministries of the national criminal legislation with December 2011 standards and ratified justice, ministries the international standards. international of interior, CM, agreements/conventions; Agency, ministries of Analyzes has been carried out; 4.5 Introduction of differentiated justice, ministries LEAs has been informed abut procedures for the different acts of December 2011 of interior, CM, result; corruption to perform more effective relevant public State Prosecution office investigation. prosecutions’ granted mandatory instructions; offices Agency, ministries of Analyzes has been carried out; 4.6 Introduce strict provisions justice, ministries LEAs has been informed abut regarding procedural regulations in December 2011 of interior, CM, result; order to prevent their being misused relevant public State Prosecution office by the LEA staff. prosecutions’ granted mandatory instructions; offices 4.7 To adapt of legislation and Agency, implementation of the legal September 2012 ministries of Legislation adapted. regulations on forfeiture of proceeds justice, HJPC of corruption and rights. Agency, 4.8 To adopt of legislation to allow for ministries of debarment (blacklisting) of legal March 2011 justice, MC, Legislation adopted persons and responsible persons of ministries of legal persons involved in corruption. economy Agency, MC, Regulations on the protection 4.9 To adopt of regulations on the December 2011 relevant of witnesses and protection of whistleblowers. ministries whistleblowers adopted 4.10 A full review of, adoption and/or Agency, A full review of, adoption and/or further development of a clear ministries of further development of a clear December 2014 legislation relating to organisation justice, ministries legislation relating to and powers of the LEA , judiciary and of interior, CM, organisation and powers of the 235

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) prosecution. prosecution Agency, LEAs, the prosecution offices and court service and the judiciary in BiH carried out to outline the further steps to be taken. 4.11 Introduction of additional vetting Agency, selection procedures for candidates ministries of Additional procedures adopted applying for positions important to December 2014 interior, CM, and implemented. the detection of corruption, as well as Police Academy positions superior to these.

Coordination and strategy implementation

A Sample Manual for developing a Availability of an agreed upon Policy Formulation System in all Sample Manual for developing August 2010 Agency Ministries and authorities at all a Policy formulation System by levels in BiH. all involved institutions. CM, Agency, Success of the NACS institutions implementation; At the end of the A Monitoring and Coordination on the responsible for On-time reaction on problems implementation of implementation of NACS. the during the implementation and the NACS - 2014 implementation of introducing necessary the NACS amendments. An outline of a Policy Coordination system will be developed, including;  At State level – representatives of all the relevant institutions  At Entities Level and Brčko District BiH –representatives of the entities and Government of Brško District BiH; A document adopted,  At local level, every institution will consulted and approved by all be requested to develop its own December 2010 Agency the stakeholders containing the outline of a Policy Coordination anti-corruption/integrity policy and system. to design and put in place mechanisms for its monitoring and evaluation.  All institutions on all level of BiH will be requested to report to the Agency on a annul basis or its request. Procedures available, Special procedures will be developed consulted with and agreed by the Agency for consulting the NGo upon by the stakeholders for and professional business December 2010 Agency consulting the NGo on issues associations on issues related to the related to the NACS NACS implementation. implementation

7.4.1 At the end of The Agency will organize meeting the with all relevant institutions for Meeting with relevant implem Agency implementing the strategy at least institutions realised. . entation once per quarterly of the NACS - 2014 The Manual for Developing a Policy Manual (developed in 2010) Agency, CM Formulation System in the 7.4.2 January following a pilot and test stage 236

Indicative Responsible Objectively verifiable Specific Measure Deadline budget Agency indicators (EUR) Ministries, other Governmental 2011 is introduced as a mandatory Institutions and Local Self tool to use by all relevant Government Institutions will be institutions at all levels in BiH. introduced as a mandatory tool to be use. The coordinating system for the implementation will be introduced in All elements of the coordination all public institutions in BIH. January 2012 Agency, CM are established. Amendments and changes will be adopted if necessary. The procedures developed by the Agency and for consulting the NGo and professional business All the procedures that are associations on issues related to the March 2012 Agency, CM developed and tested are put in NACS implementation will become place and become operational. operational; the Public Consultations process should become an integral part of the management process. Agency shall collect information on At the end of the Departments staffed, equipped the implementation of NACS from all implementation of Agency and operational. Institutions on daily basis. the NACS - 2014 An evaluation will be performed on End of the Evaluation of the Strategy the NACS implementation and a Strategy carried out. New strategy is project for a new strategy will be Agency Implementation drafted and presented to drafted and presented to Council of period - 2014 decision makers. Ministers of the BiH and PA of BiH.

General indicators for monitoring progress: • Progress Report of European Commission • GRECO evaluation • Corruption Perceptions Index of Transparency International (Corruption Perception Index) • Index of Nations in Transition reports Freedom House (Nations in Transition) • World Bank governance indicators • Second international indicators. • Degree of implementation of measures from the Action Plan

237

ANNEX 6

D r a f t

Pursuant to Article IV.4a of the Constitution of Bosnia and Herzegovina, the Parliamentary Assembly of Bosnia and Herzegovina at the ...... session of the House of Representatives held on...... 2009 and the ...... session of the House of Peoples held on ...... 2009, enacted the following

LAW ON AMENDMENTS TO THE CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

Article 1

Article 1 of the Criminal Code of BiH (Official Gazette of BiH number 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06 and 32/07) shall be amended and read as follows:

„Article 1

(1) The criminal legislation of Bosnia and Herzegovina comprises the provisions set forth in this Code and criminal justice provisions in other laws of Bosnia and Herzegovina. (2) The territory of Bosnia and Herzegovina means the land, coastal seas and water surfaces within its borders, as well as the air space above them. (3) An official person means: a person elected or appointed to legislative, executive and judicial office within Bosnia and Herzegovina and other governmental and administrative institutions or services which perform particular administrative, expert and other duties, within the rights and responsibilities of the authority who has founded them; a person who continuously or occasionally executes official duty in the mentioned administrative bodies or institutions, an authorised person in a business enterprise or another legal person who has been legally entrusted with the execution of public authorities, who performs certain duties within the scope of the relevant authority; and other persons who are performing official duties stipulated by law or other regulations based on the law with or without remuneration. (4) When an official person has been indicated as the perpetrator of a particular criminal offence, persons referred to in paragraph 3 of this Article may be considered the perpetrators of such offences provided that it does not follow from the characteristics of a particular criminal offence or particular prescript that their perpetrator may only be one of the specified persons.A responsible person means a person in a business enterprise or other legal person who, in the line of duty or on the basis of specific authorisation, has been entrusted with a portfolio related to the implementation of law or regulations based on law or general act of a business enterprise or other legal person in managing and administrating the property, or is related to managing a productive or other economic process or supervision of such process. Official persons as defined in paragraph 3 of this Article are also considered responsible persons when the actions as whose perpetrator the responsible person has been indicated are at issue, and at the same time are not stipulated as criminal offence by provision of the chapter dealing with criminal offences against official and other responsible duty, or as criminal offences of an official person stipulated under some other chapter of this Code or other laws of Bosnia and Herzegovina. (5) In cases when an official or responsible person has been indicated as the perpetrator of a criminal offence, all persons mentioned in paragraphs 3 and 5 of this Article may be the

238

perpetrators of such offence provided that it does not follow from the characteristics of a particular criminal offence that their perpetrator may only be one of the specified persons. (6) A foreign official person means a member of a legislative, executive, administrative or judicial body of a foreign state, a public official person of an international organisation or of its bodies, judge or other official person of an international court, serving in Bosnia and Herzegovina with or without remuneration. (7) International official person means a civilian employee of an international organisation or agency. (8) A military person, for the purpose of this Code, means a member of professional military personnel, a cadet at a military school and a member of reserve personnel as referred to in the Law on Service in the Armed Forces of Bosnia and Herzegovina, as well as a civil servant or an employee exercising official duty within the chain of command and control over the Armed Forces of Bosnia and Herzegovina, including the Deputy Ministers of Defence. (9) When an official person is designated as the person against whom a criminal offence has been perpetrated, an official person within the meaning of this Code shall, in addition to persons specified in paragraph (3) of this Article, also be a military person referred to in paragraph (9) of this Article. (10) A child, as referred to in this Code, is a person who has not reached fourteen years of age. (11) A juvenile, as referred to in this Code, is a person who has not reached eighteen years of age. (12) A legal person, as referred to in this Code, stands for Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, the Republika Srpska, the Brčko District of Bosnia and Herzegovina, canton, city, municipality, local community, any organisational form of a business enterprise and all forms of co-operating enterprises, institutions, crediting and other banking institutions or insurance of property and persons institutions, as well as other financial institutions, funds, political organisations and associations of citizens or other associations that may acquire funds and use them in the same way as other institutions or bodies that acquire and use funds and that are legally recognised as legal persons. (13) A business enterprise, for the purpose of this Code, means corporations, companies, firms, partnerships and any other organizational form registered for performing economic activities. (14) An association means any kind of associating three or more people. (15) Several persons mean at least two persons. (16) A body of people constitutes at least five persons. (17) A group of people is an assemblage of at least three individuals that are associated for the purpose of perpetration of criminal offences, in which each of the individuals gives his contribution to the perpetration of the criminal offence. (18) An organized group is a group that is formed for the purpose of direct perpetration of an offence and that does not need to have formally defined roles of its members, the continuity of its membership, or a developed structure. (19) An organised crime group is a group of three or more persons, existing over a certain period of time and acting in concert with the aim of perpetrating one or more criminal offences which carry a punishment of imprisonment of more than three years, for the purpose of acquiring financial or some other type of material gain. (20) A terrorist group is an organised group of at least three persons that is formed and operates over a certain period of time with the aim of perpetrating a criminal act of terrorism. (21) A state secret means a piece of information or a document designated as a state secret by virtue of a law, other regulation or general enactment of the competent body made on the basis of the law, whose disclosure would produce detrimental consequences for the national security or national interest of Bosnia and Herzegovina. 239

(22) A military secret means a piece of information or a document designated as military secret by the virtue of the law of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina or Republika Srpska, other regulation of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina or Republika Srpska or a general enactment of the competent body of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina or Republika Srpska made on the basis of the law. (23) Secret data means a fact or instrument which contains information pertaining to the areas of public security, defence, foreign affairs and interests, intelligence and security activities or interests of Bosnia and Herzegovina, communication and other systems important for state interests, judiciary, projects and plans significant for defence and intelligence- security activities, scientific, research, technological, economic and financial business significant for the safe functioning of the institutions of Bosnia and Herzegovina or security structures at all levels of the state organisation of Bosnia and Herzegovina which is designated as secret by virtue of a law, other regulation or general enactment of the competent body made on the basis of the law, or which is classified pursuant to the provisions of the law and regulations on protection of secret data. The term also includes secret data of another state, international or regional organisation. (24) A document denotes any object that is suitable or designed to serve as evidence of some fact relevant to legal relations. (25) Money denotes coins and paper bank notes, which are legal tender in Bosnia and Herzegovina or in a foreign country. (26) Instruments of value also include foreign instruments of value. (27) A movable object also includes any manufactured or accumulated energy used for producing light, heat or movement, and telephone and other impulses. (28) A motor vehicle is construed as to include every engine-run means for land, water and air traffic. (29) Force also includes the use of hypnotic suggestion or the use of intoxicating substances for the purpose of bringing a person against his will into a state of unconsciousness, or incapacity for resistance. (30) Narcotic drug means any medical drug or hazardous substance with addictive and psychotropic characteristics, or any substance that can easily be converted into such substances, provided that it is subject to control under the international convention ratified by Bosnia and Herzegovina, or any substances declared as narcotic drugs by a competent institution of Bosnia and Herzegovina or by a competent institution of the entities. (31) Arms and military equipment mean items listed in the most recent “common list of military equipment” as referred to in the laws on manufacture, import and export of arms and military equipment. (32) Radioactive material means nuclear material and other radioactive substances with spontaneous decomposing nuclides (a process which releases one or several types of ionizing emissions such as alpha and beta emissions, neutron particles and gamma rays) which due to their radiological and fissile features can cause death, serious injuries or extensive property and environmental damage. (33) Nuclear material means plutonium, save for the one with isotope concentration of more than 80 % in plutonium 238 or uranium 233; uranium enriched with isotope 235 or 233; uranium which contains a mixture of isotopes as found in nature, save in the form of ore or ore residue; or any other material which contains one or several of the aforementioned. “Uranium enriched with isotopes 235 or 233” means uranium which contains isotope 235 or 233 or both in such amount that the ratio between the sum of these isotopes and isotope 238 is greater than the ratio between isotope 235 and 238 found in nature. (34) A device means every nuclear explosive device or any device that disseminates radioactive material or produces emissions which can, due to their radiological qualities, 240

cause death, serious injuries or damage to property and environment of significant proportions. (35) A nuclear facility means every nuclear reactor, including reactors mounted on vessels, vehicles, aircrafts or space facilities used as energy source for those vessels, vehicles, aircrafts or space facilities or for any other purposes and every plant or instrument used for production, storing, processing or transport of radioactive material. (36) Fixed platform is an artificial island, instrument or device which is fixed to the ocean floor for the purposes of research or exploitation of natural resources or other commercial purposes. (37) An explosive device means: a) explosive or incendiary weapon or device which has been assembled or can cause death, serious injuries or extensive property damage; weapon or device which has been assembled or can cause death, serious injuries or significant damage by releasing and disseminating poisonous chemicals, biological agents or poisons or similar substances or radiation or radioactive material. (38) Holocaust means a crime of genocide or crimes against humanity committed by the German Nazi Regime during the World War II recognized as such by final and binding decisions or judgments of the International Military Tribunal established under the London Treaty of 8 August 1945. (39) A mass grave means an unmarked spot where two or more bodies or human remains are buried or a spot where such bodies or human remains have been subsequently relocated as a result of the perpetration of the criminal offences specified in Article 171 through 180 of this Code. (40) Grammatical gender terminology, male or female, is to be understood as including both genders of natural persons.

Article 2

New article 3a shall be added after Article 3 so as to read:

“Principle of Guilt Article 3a

No one can be punished or subjected to other criminal sanctions if he is not guilty of the committed criminal offence.”

Article 3

In Article 5 after the word “punishments” new words shall be added so as to read “community service”.

Article 4

In Article 7 after the words “in compliance with” new words shall be added so as to read “the law and”.

Article 5

Article 8 shall be amended so as to read:

241

7.4.2.1 “Applicability of criminal legislation of Bosnia and Herzegovina to those perpetrating a criminal offence within the territory of Bosnia and Herzegovina

Article 8

(1) The criminal legislation of Bosnia and Herzegovina shall apply to anyone who perpetrates a criminal offence within its territory. (2) The criminal legislation of Bosnia and Herzegovina shall apply to anyone who perpetrates a criminal offence aboard a domestic vessel, regardless of its location at the time of perpetration of the offence. (3) The criminal legislation of Bosnia and Herzegovina shall apply to anyone who perpetrates a criminal offence aboard a domestic civil aircraft while in flight, or aboard a domestic military aircraft, regardless of its location at the time of perpetration of the offence.“ Article 6

Article 9 shall be amended so as to read:

7.4.2.2 “Applicability of the criminal legislation of Bosnia and Herzegovina to offences perpetrated outside the territory of Bosnia and Herzegovina

Article 9

(1) The criminal legislation of Bosnia and Herzegovina shall apply to anyone who, outside of its territory, perpetrates: a) Any criminal offence against the integrity of Bosnia and Herzegovina prescribed in Chapter Sixteen of this Code (Criminal Offences against the Integrity of Bosnia and Herzegovina); b) The criminal offence of Counterfeiting of Money or of Counterfeiting of Securities of Bosnia and Herzegovina, the criminal offence of Counterfeiting of Instruments of Value or Forgery of Trademarks, Measures and Weights issued on the basis of regulations enacted by the institutions of Bosnia and Herzegovina, set forth in Articles 205 through 208 of this Code; c) A criminal offence which Bosnia and Herzegovina is bound to punish according to the provisions of international law and international treaties or intergovernmental agreements; d) A criminal offence against an official or responsible person in the institutions of Bosnia and Herzegovina, related to his duty. (2) The criminal legislation of Bosnia and Herzegovina shall apply to a citizen of Bosnia and Herzegovina who, outside the territory of Bosnia and Herzegovina, perpetrates any criminal offence. (3) The criminal legislation of Bosnia and Herzegovina shall apply to a non-citizen of Bosnia and Herzegovina who, outside the territory of Bosnia and Herzegovina, perpetrates against Bosnia and Herzegovina or its citizen any criminal offence not included in paragraph 1 of this Article. (4) The criminal legislation of Bosnia and Herzegovina shall apply to a non-citizen of Bosnia and Herzegovina who, outside the territory of Bosnia and Herzegovina, perpetrates against a foreign state or a non-citizen of Bosnia and Herzegovina a criminal offence which, under the law in force in the place of perpetration of the criminal offence, carries a punishment of imprisonment for a term of five years or a more severe punishment. (5) In the cases referred to in paragraphs 2 and 3 of this Article, the criminal legislation of Bosnia and Herzegovina shall apply only if the perpetrator of the criminal offence is found within the territory of Bosnia and Herzegovina, or has been extradited to it, while in the case 242

referred to in paragraph 4 of this Article, only if the perpetrator is found within the territory of Bosnia and Herzegovina and is not extradited to another country.”

Article 7

Article 10 shall be amended so as to read:

7.4.2.3 “Applicability of criminal legislation of Bosnia and Herzegovina to juveniles

7.4.2.4 Article 10 7.4.2.5 The criminal legislation of Bosnia and Herzegovina shall apply to juveniles pursuant to Chapter X of this Code (Rules Relating to Educational Recommendations, Educational Measures and Punishment of Juveniles) and other laws of Bosnia and Herzegovina.”

Article 8

Article 11 shall be amended so as to read.

7.4.2.6 “Applicability of criminal legislation of Bosnia and Herzegovina to legal persons Article 11 The criminal legislation of Bosnia and Herzegovina shall apply to legal persons pursuant to Chapter XIV of this Code (Liability of Legal Persons for Criminal Offences) and other laws of Bosnia and Herzegovina.”

Article 9

Article 12 shall be amended so as to read:

7.4.2.7 “Exclusion of applicability of the criminal legislation of Bosnia and Herzegovina to children Article 12 The criminal legislation of Bosnia and Herzegovina shall not be applied to a child who, at the time of perpetrating a criminal offence, has not reached fourteen years of age.”

Article 10

In the title of Article 17 after the word “punishment” a coma shall be inserted and the wording “community service” added. A new paragraph shall be added after paragraph 1 so as to read:

“(2) Community service shall be barred by the statute of limitations upon the expiry of three years as of the day the verdict imposing this sanction became final”.

Paragraphs 2 and 3 shall become paragraphs 3 and 4.

Article 11

243

In Article 18, paragraph 6, after the words “the execution of” new wording “community service and” shall be added.

Article 12

New article 23a shall be added after Article 23 so as to read:

“Insignificant act Article 23a

An act shall not be a criminal offense although it has elements of a criminal offence defined under the law if, due to its nature and gravity or the manner of its perpetration or the insignificance or non-existence of detrimental consequences and a low degree of culpability of the perpetrator, it constitutes an insignificant act.”

Article 13

After Article 25 new article 25a shall be added so as to read:

“Force and threat Article 25a

(1) A criminal offence perpetrated under irresistible force shall not constitute a criminal offence. (2) A perpetrator who has perpetrated a criminal offence under resistible force or threat may be sentenced to a more lenient punishment. (3) In the case specified in paragraph 1 herein, the person who has applied irresistible force shall be considered a perpetrator of the criminal offence.”

Article 14

The title of Article 29 shall be amended so as to read “Co-perpetration”.

Article 15

New paragraph 3 shall be added in Article 30 so as to read:

“(3) Incitement to commit a criminal offence shall be construed to mean, in particular: pleading, persuading or prompting, portraying benefits of the perpetration of the criminal offence, giving or promising gifts, abusing the state of subordination or dependency, making a person believe in and keeping a person under a mistake of fact or law, deceiving.”

Article 16

In the title of Article 32 the word “responsibility” shall be replaced by the word “culpability”. In paragraph 1 the words “criminally responsible” shall be replaced by the word “culpable”. In paragraph 3 the words “criminal responsibility” shall be replaced by the word “culpability”.

Article 17

The title of chapter six shall be amended so as to read “Chapter Six – Guilt”. 244

Article 18

Article 33 shall be amended so as to read:

“Elements of culpability Article 33

(1) Culpability exists if at the time of the perpetration of the criminal offence the perpetrator was mentally accountable and acted with intent and knew or had a duty and reason to know that his conduct was prohibited. (2) Culpability for the criminal offence exists even if the perpetrator acted out of negligence only if the law explicitly prescribes so.”

Article 19

In Article 34, paragraph 2, after the word “diminished” in the middle of the sentence and at the end of the sentence in brackets, new words shall be added so as to read “or diminished”. In paragraph 3 the words “criminally responsible” shall be replaced by the words “culpable”, the words “criminal responsibility” shall be replaced by the word “culpability”, while the words in brackets “(voluntary intoxication)” shall be deleted. In paragraph 4 after the word “diminished” new words shall be added so as to read “or diminished”.

Article 20

Article 37 shall be amended so as to read:

“Mistake of Fact Article 37

(1) A person shall not be guilty if he perpetrates an offence while under an irreparable mistake of fact. (2) The mistake of fact shall be considered irreparable if the perpetrator, at the time of the perpetration of the criminal offence, was not aware of a legally prescribed element of the criminal offence or wrongly believed that there existed circumstances which, if they truly existed, would have made his conduct permissible. (3) If the perpetrator was under a mistake of fact due to negligence, that shall be considered a criminal offence perpetrated out of negligence only if the law prescribes punishment for that criminal offence committed out of negligence.

Article 21

Article 38 shall be amended so as to read:

“Mistake of Law Article 38

(1) A perpetrator shall not be guilty if he perpetrated an offence while under irreparable mistake of law. (2) The mistake of law shall be considered irreparable if the perpetrator was not under the obligation to know and could not have known that his conduct was prohibited.

245

(3) A perpetrator who did not know that his conduct was prohibited, but had reason and duty to know, may be punished more leniently.”

Article 22

In Article 39, sub-paragraph b), after the word “offences” new wording shall be added so as to read “and to encourage his reformation”.

Article 23

Article 40 shall be amended so as to read:

“Types of Punishments Article 40

A perpetrator of the criminal offence who has been found guilty may be sentenced to: a) imprisonment b) long-term imprisonment c) fine.”

Article 24

Article 42 shall be amended so as to read:

“Imprisonment Article 42

(1) Imprisonment may not be shorter than thirty days or longer than twenty years. (2) Juvenile imprisonment may be imposed under the conditions prescribed by Chapter X of this Code (Rules Relating to Educational Recommendations, Educational Measures and Punishment of Juveniles). By its purpose, nature, duration and manner of execution, juvenile imprisonment constitutes a special punishment of deprivation of liberty.”

Article 25

New articles 42a and 42b shall be added after Article 42 so as to read:

“Imprisonment Article 42a

(1) The punishment of imprisonment shall be imposed in full years and months; however, the punishment of imprisonment for a term not exceeding six months may also be meted out in full days. (2) The punishment of imprisonment of up to six months may be replaced by a fine upon convict‟s request, pursuant to Article 47, paragraph 3, of this Code (replacement of fine), and shall be effected as a one-off payment within 30 days.

Long-Term Imprisonment Article 42b

(1) For the gravest forms of serious criminal offences perpetrated with intent, a long-term imprisonment for a term between twenty-one and forty-five years may be imposed. 246

(2) Long-term imprisonment may not be imposed as the sole principal punishment for a particular criminal offence. (3) Long-term imprisonment cannot be imposed on a perpetrator who has not reached twenty- one years of age at the time of perpetrating the criminal offence. (4) Long-term imprisonment shall be meted out in full years only. (5) If long-term imprisonment has been imposed, amnesty or pardon may be granted only after three-fifths of the punishment has been served.”

Article 26

Article 43 shall be deleted.

Article 27

In Article 45, paragraph 1 the words “of one year or more severe punishment” shall be replaced by the words “exceeding one year”.

Article 28

In Article 46, paragraph 3 number “150” shall be replaced with number “500” and number “50,000” with number “100,000”. In paragraph 8 number “2” shall be replaced by the word “one”.

Article 29

In Article 47, paragraph 2, the words “paid in full or in part” shall be replaced by word “paid”. In paragraph 3 the word “fifty” shall be replaced with number “100” and the words “whereby the imprisonment may not exceed one year” shall be replaced with words “whereby it may not exceed the prescribed punishment for that offence”.

Article 30

In Article 48, paragraph 1, the words “criminal liability” shall be replaced with the word “culpability”.

Article 31

In Article 50, paragraph 1, sub-paragraph g) number “150” shall be replaced with number “500”.

Article 32

In Article 53, paragraph 1, the words “a compound punishment of imprisonment” shall be replaced with the words “a compound punishment of long-term imprisonment” and after the words “long-term imprisonment” a comma shall be added and words “a compound punishment of imprisonment”. In paragraph 2, sub-paragraph a) shall be amended so as to read: “a) If the court has meted out a punishment of long-term imprisonment or long-term imprisonment and imprisonment for criminal offences in concurrence, the compound sentence of long-term imprisonment shall be higher than each individual punishment, but shall not exceed 45 years.” 247

After sub-paragraph b) new sub-paragraph c) shall be added so as to read: “c) If for two or several concurrent criminal offences the court meted out punishments of imprisonment exceeding ten years, the court may pronounce a compound punishment of long- term imprisonment which shall not reach the sum of individual punishments of imprisonment.” Sub-paragraphs c) and d) shall become sub-paragraphs d) and e).

Article 33

In Article 56, paragraph 2, number “50” shall be replaced with number “100”.

Article 34

New chapter VII-A and new articles 57a and 57b shall be added after Article 57 so as to read:

“VII-A CHAPTER SEVEN A – COMMUNITY SERVICE

Purpose of Community Service Article 57a

The purpose of community service is to caution perpetrators of criminal offences and thus help achieve the purpose of criminal sanctions without having to impose a punishment where it is not necessary to ensure protection under criminal law.”

Community Service Article 57b

(1) Community service may be imposed for the criminal offence which carries a sentence of imprisonment for a term of up to three years or a fine. Community service may be imposed for a term between 15 and 90 days of service. (2) Community service shall include every type of socially useful service which does not violate human dignity and is unprofitable. (3) The court shall pass a decision on community service after it has found that imprisonment is not necessary to achieve the purpose of punishment, taking into account the type of the criminal offence and the perpetrator‟s character. (4) The deadline for the execution of community service shall be determined in the verdict and shall not be less than one month or exceed six months. (5) When deciding on the duration of community service and the deadline for its execution, the court shall take into account the prescribed punishment for that criminal offence and the perpetrator‟s situation, being mindful of his personal circumstances and employment. (6) Should the accused fail to complete his community service or only partially completes his community service upon the expiration of a time-limit, the court shall replace this sanction with a fine in the amount proportionate to the time of the uncompleted community service in the manner that one day of community service shall be replaced with 100 KM of a fine. (7) The Ministry of Justice of Bosnia and Herzegovina shall be responsible for assigning persons to community service, in terms of the type of community service and the working post, taking into account the abilities and skills of the convict.”

Article 35

In Article 59, paragraph 2 the words “criminal responsibility” shall be replaced by the word “culpability”. 248

Paragraph 4 shall be deleted. Paragraphs 5, 6 and 7 shall become paragraphs 4, 5 and 6.

Article 36

In Article 95 the words “criminally liable” shall be deleted and the words “the high degree of criminal responsibility” replaced with the words “the degree of culpability”.

Article 37

In Article 110 paragraph 3 shall be deleted.

Article 38

New article 110a shall be added after Article 110 so as to read:

“Expanded Confiscation of Material Gain Article 110a

(1) The court may during the criminal proceedings confiscate material gain if there are justified reasons to believe that it has been obtained through the commission of a criminal offence. (2) The suspect or the accused, owner or user of the confiscated property may instigate separate proceedings with the aim to prove that the confiscated property has been obtained legally.”

Article 39

In Article 119, paragraph 2 the words “determined under the criminal legislation” shall be replaced with the words “prescribed under the criminal legislation”.

Article 40

Article 121 shall be amended so as to read:

“Deleting Conviction Article 121

(1) Provided that the perpetrator is not convicted again of a new criminal offence, there shall be a mandatory deletion of the sentence upon the expiry of the following deadlines: a) A sentence by which a person who has perpetrated a criminal offence has been relieved of punishment shall be deleted from the criminal records, provided he does not perpetrate a new criminal offence within the period of one year from the date of entry into force of the verdict. b) A suspended sentence shall be deleted from the criminal record after the period of one year from the expiration of the probation period has elapsed, unless the person convicted has perpetrated another criminal offence within that period. c) A fine and imprisonment for a term not exceeding one year shall be deleted from the criminal records after the lapse of the period of three years from the day on which the punishment has been executed, pardoned or amnestied, or barred by the statute of limitations, provided the convicted person does not perpetrate a new criminal offence within that period.

249

d) A sentence of imprisonment for a term between a year and three years shall be deleted from the criminal records after the lapse of the period of five years from the day on which the punishment has been executed, pardoned or amnestied, or barred by the statute of limitations, provided the convicted person does not perpetrate a new criminal offence within that period. e) A sentence of imprisonment for a term between three years and five years shall be deleted from the criminal records after the lapse of the period of ten years from the day on which the punishment has been executed, pardoned or amnestied, or barred by the statute of limitation, provided the convicted person does not perpetrate a new criminal offence within that period. f) A sentence of imprisonment for a term between five years and ten years shall be deleted from the criminal records after the lapse of the period of fifteen years from the day on which the punishment has been executed, pardoned or amnestied, or barred by the statute of limitation, provided the convicted person does not perpetrate a new criminal offence within that period.

(2) Upon appeal by a convicted person, the court may decide to delete a sentence of imprisonment for a term exceeding ten years, if a period of twenty years has expired from the day on which the punishment has been served, pardoned or amnestied, or barred by the statute of limitations, provided that the convicted person has not perpetrated a new criminal offence within that period.

(3) In deciding on deleting the sentence, the court shall take into account the conduct of the convicted person after serving his sentence, the nature of the criminal offence, and other circumstances that might be relevant to the evaluation of the justifiability of the deletion.

(4) A sentence of long-term imprisonment may not be deleted from the criminal records.

(5) A sentence may not be deleted from the criminal records for as long as security measures are in force.

(6) Several sentences which have been imposed on the same person may be deleted from the criminal records only simultaneously, and only if conditions exist for each of the sentences to be deleted.

(7) Upon the deletion of the sentence from the criminal records under the conditions referred to in paragraphs 1 through 3, it shall be considered that the perpetrator of the criminal offence has no prior convictions.”

Article 41

New article 121a shall be added after Article 121 so as to read:

“Criminal Records Data Article 121a

(1) Criminal records data may be disclosed only to courts and prosecutor‟s offices where criminal proceedings or pardon proceedings are pending against a person for whom the data are being requested.

(2) Criminal records data may be disclosed to the state authorities exceptionally upon a reasoned request where certain duties and assignments in the state service are to be conferred to a person for whom the data are being requested.

250

(3) Internal affairs agencies may use data from the criminal records within the scope of their legal powers to identify perpetrators of criminal offences. Such data shall be considered a professional secret.

(4) No one shall be entitled to request from citizens to submit proof of their prior convictions or clean record”.

Article 42

In the title of Article 123 the word “criminal” shall be deleted.

Article 43

Paragraph 1 of Article 125 shall be amended so as to read:

“(1) The liability of the legal person shall be based on the culpability of the responsible person”. In paragraph 2 the words “criminal liability” shall be replaced with the word “culpability”.

Article 44

In Article 126, paragraph 1, the word “criminally” before the word “liable” shall be deleted. In paragraphs 2 and 3 the word “criminal” before the word “liability” shall be deleted.

Article 45

In the title of Article 128 and in the text of the Article before the word “liable” the word “criminal” shall be deleted.

Article 46

In Article 129, paragraph 2 the word “criminally” before the word “liable” shall be deleted. Article 47

New paragraph 3 shall be added in Article 132 so as to read:

“(3) If a fine is not paid within the deadline set forth in the verdict, the procedure for forcible collection shall be implemented immediately”.

Article 48

In Article 137, sub-paragraph b) the word “economic” shall be deleted.

Article 49

In the title of Article 142 and in paragraph 1 therein the word “criminal” shall be deleted.

Article 50

In Article 143 the word “criminally” shall be deleted. (Interpreter‟s note: the word “criminally” does not appear in the English version of the text)

251

Article 51

New articles 145a and 145b shall be added after Article 145 so as to read:

“Spurring ethnic, racial and religious hatred, division and intolerance Article 145a

(1) Whoever publically spurs or flares ethnic, racial or religious hatred, division or intolerance among the constituent peoples and others who live in Bosnia and Herzegovina shall be punished by imprisonment for a term between one and five years.

(2) Whoever perpetrates the criminal offence referred to in paragraph 1 by abuse of office or authority shall be punished by imprisonment for a term between one and ten years.

(3) In case that the perpetration of the offence referred to in paragraphs 1 and 2 has caused riots, violence and other serious consequences for the coexistence of constituent peoples and others living in Bosnia and Herzegovina, the perpetrator shall be punished by a term of imprisonment for a minimum of three years.”

“Damaging or Destroying Religious Facilities Article 145b

Whoever damages or renders useless or destroys a religious facility shall be punished by imprisonment for a term between six months and five years.”

Article 52

After Article 147, a new Article 147a shall be added so as to read:

"Unauthorized Wiretapping and Audio or Video Recording Article 147a (1) An official or responsible person in the institutions of Bosnia and Herzegovina who, using special devices, without authorization wiretaps or audio records a conversation or a statement which was not intended for him, or enables an unauthorized person to become familiar with a conversation or a statement that was wiretapped or audio recorded without authorization, or who, without authorization, wiretaps or records another person's messages in a computer system, shall be punished by imprisonment for a term between six months and five years. (2) The punishment referred to in Paragraph (1) of this Article shall be imposed on the official or responsible person in the institutions of Bosnia and Herzegovina who takes a photograph, makes a video recording or any other recording of another person without his consent on his premises or who communicates such recording directly to a third party or shows it to the third party, or enables the third party in another way to be directly acquainted with the record."

Article 53

In Article 148 the words "who abuses his position or authority and" shall be replaced by the words "by abusing his position or authority", and the word "one" shall be replaced by the word "three".

Article 54 252

After Article 149, a new Article 149a shall be added so as to read:

"Unlawful Withholding of Identity Papers Article 149a

Whoever, with the aim of limiting the freedom of movement or exercising power over a person unlawfully withholds another person's identification or travel documents, shall be punished by imprisonment for a term between six months and five years."

Article 55

In Article 151 Paragraph (1), the words "or imprisonment for a term not exceeding one year" shall be replaced by the words "and imprisonment for a term not exceeding three years".

Article 56

In Article 152, after the words "within Bosnia and Herzegovina" and a comma, the words "votes again" shall be added; after the words "under the name" a comma shall be added, and the words "or tries to vote again after having voted once, shall be punished by a fine or imprisonment for a term not exceeding three years", shall be replaced by the words "shall be punished by imprisonment for a term between three months and five years."

Article 57

In Article 154, after the word "discloses" the words "as the final" shall be added.

Article 58

In Article 162a Paragraph (2), the words "at any level" shall be replaced by "in any way".

Article 59

In Article 170, the words "between one and ten years" shall be replaced by the words "not less than three years".

Article 60

In Article 172 Paragraph (2) Sub-paragraph e), the word "accused" shall be replaced by the word "perpetrator".

Article 61

After Article 172, a new Article 172a shall be added so as to read:

"Denying, Trivializing or Condoning Crimes of Holocaust, Genocide and Crimes Against Humanity Article 172a

(1) Whoever publicly denies, trivializes or condones the crimes of Holocaust, Genocide and Crimes Against Humanity, recognized by a national, foreign or international tribunal,

253

shall be punished by imprisonment for a term between six months and five years.

(2) The punishment referred to in Paragraph (1) of this Article shall also be imposed on whoever disseminates or in any other way discloses to the public information or written material denying, trivializing or condoning the crimes of Holocaust, Genocide or Crimes Against Humanity, recognized by a national, foreign or international tribunal."

Article 62

The title of Article 180 shall be amended so as to read "Individual and Command Responsibility". In Paragraph (1), in the first sentence, the word "instigated" shall be deleted, and the words "shall be personally responsible" shall be replaced by the words "shall be guilty"; the words "of any accused person" and comma shall be deleted, and the words "criminal responsibility" shall be replaced by the word "guilt". In Paragraph (2) and (3) the words "criminal responsibility" shall be replaced by the word "guilt".

Article 63

In Article 185, Paragraph (2) shall be amended so as to read: "(2) Whoever, in violation of the rules of international law, buys, sells, hands over to another person or mediates in the purchase, sale or handing over of an individual younger than 18 years of age, for the purpose of adoption, removal of organs or, exploitation by labor or for other illicit purposes, shall be punished by imprisonment for a term of not less than five years."

Article 64

Article 186 shall be amended so as to read:

"Human Trafficking Article 186

(1) Whoever, by use of force or threat of use of force or other forms of coercion, abduction, fraud or deception, abuse of power or influence or a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, recruits, transports, transfers, harbors or receives a person for the purpose of the prostitution of that person or other forms of sexual exploitation, forced labor or services, slavery or a similar status, servitude or the removal of organs or of some other type of exploitation, shall be punished by imprisonment for a term of not less than three years. (2) Whoever recruits, solicits, transports, transfers, harbors or receives a person younger than 18 years of age with the purpose of exploitation referred to in Paragraph 1 of this Article, shall be punished by imprisonment for a term of not less than five years.

(3) If the criminal offense referred to in Paragraphs (1) and (2) of this Article is committed by an official person while executing official duty,

254

the perpetrator shall be punished by imprisonment for a term of not less than five years.

(4) Whoever counterfeits, procures or issues travel or identification documents, or uses, holds, seizes, alters, damages or destroys travel or identification documents of another person with the purpose of facilitating human trafficking, shall be punished by imprisonment for a term between one and five years.

(5) Whoever organizes or directs at any level the group of people for the purpose of perpetration of the criminal offenses referred to in Paragraphs (1) and (2) of this Article, shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. (6) Whoever uses the services of the victims of human trafficking, shall be punished by imprisonment for a term of between six months and five years.

(7) If the perpetration of the criminal offense referred to in Paragraphs (1) and (2) caused serious health damage, grievous bodily harm or the death of the persons referred to in Paragraphs (1) and (2), the perpetrator shall be punished by imprisonment for a term of not less than five years or long-term imprisonment.

(8) Items and conveyances used for the perpetration of the offense shall be seized, while the facilities and premises used for human trafficking, without prejudice to the rights of the third parties, may be closed temporarily or permanently.

(9) Whether the person who is a victim of human trafficking consented to the exploitation bears no relevance to the existence of the criminal offense of human trafficking.

Article 65

In Article 187 Paragraph (2), the words "six months and five years" shall be replaced by the words "one and ten years". Paragraph (3) shall be deleted. The current Paragraph (4) shall become Paragraph (3).

Article 66

Article 188 shall be deleted.

Article 67

Article 189 shall be amended so as to read:

"Smuggling of Persons Article 189

(1) Whoever, with the aim of gaining profit for themselves or another, illicitly transports or enables the transport of one or more migrants or other persons across the state border, or

255

whoever creates, procures or possesses counterfeit travel or identity documents for that purpose, shall be punished by imprisonment for a term of between one and ten years. (2) Whoever recruits, transports, hides, harbors or in any other way enables the stay of the smuggled persons in Bosnia and Herzegovina, shall be punished by imprisonment for a term of between six months and five years.

(3) If the criminal offense referred to in Paragraphs (1) and (2) of this Article is committed by an organized group or an organized criminal group, by the abuse of official authority or in such a manner which poses a threat to the life, health or safety of the persons smuggled, or if the smuggled persons were intended for exploitation or treated in another inhuman or degrading manner, the perpetrator shall be punished by imprisonment for a term of between three and fifteen years.

(4) The punishment referred to in Paragraph (3) of this Article shall also be imposed on whoever subjects an individual younger than 18 years of age to the offense referred to in Paragraphs (1) and (2). (5) If the offense referred to in Paragraphs (1) and (2) of this Articles have caused the death of one or more smuggled persons, the perpetrator shall be punished by imprisonment for a term of not less than five years. (6) Items and conveyances used for the perpetration of the offense shall be seized.

Article 68

After Article 189, a new Article 189a shall be added so as to read:

"Organizing a Group or an Association for the Purpose of Perpetrating the Criminal Offenses of Human Trafficking and Smuggling of Migrants

Article 189a

(1) Whoever organizes a group or another association for the purpose of perpetrating the criminal offenses referred to in Articles 186 and 189 of this Code, shall be punished by imprisonment for a term of not less than three years.

(2) Whoever becomes a member of the group or another association referred to in Paragraph (1) of this Article or in any other way assists the group or the association, shall be punished by imprisonment for a term of not less than one year.

(3) The provisions set forth in Article 250 of this Code shall apply to organizers or leaders and members of the organized group or another association that have perpetrated the criminal offenses referred to in Paragraph (1) of this Article."

Article 69

256

N/A to English text.

Article 70

In Article 191 Paragraph (1), after the word "compel" the words "Bosnia and Herzegovina" and a comma shall be added, the word "a" shall be replaced by the word "another" and the words "between one and ten years" shall be replaced by the words "not less than three years".

Article 71

In Article 192 Paragraph (1), the words "between one and ten years" shall be replaced by the words "not less than three years".

Article 72

In Article 193 Paragraph (1), the words "between one and ten years" shall be replaced by the words "not less than three years". After Paragraph (5), a new Paragraph (6) shall be added so as to read: "(6) Items referred to in the previous Paragraphs, as well as the instruments used for their transit and trade/distribution shall be seized."

Article 73

In Article 193b Paragraph (1), the abbreviation "CWC", used twice in the vernacular text, shall be replaced by the word "Convention".

Article 74 The title of Article 193c shall be amended so as to read: "Activities Contrary to the Regimes Prescribed by the Law on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction". In Paragraphs (1), (2) and (3), the abbreviation "CWC" shall be replaced by the word "Convention".

Article 75

Article 194 shall be amended so as to read:

"Illicit Procurement and Disposal of Nuclear Material Article 194

(1) Whoever, without authorization, procures, receives, hands over to another or enables another to get in possession of or possess, use, transport, process, store, dispose of or proliferate nuclear or other radioactive material or device, shall be punished by imprisonment for a term not exceeding five years.

(2) Whoever appropriates nuclear or other radioactive material or device by theft, fraud, use of force, threat or any other form of intimidation, shall be punished by imprisonment for a term between one and ten years.

257

(3) Whoever, by perpetrating the acts referred to in Paragraphs (1) and (2) of this Article, causes risk to human lives or people's health or property or environment on a large scale, shall be punished by imprisonment for a term of not less than three years. (4) If the perpetration of the criminal offense referred to in Paragraphs (1) through (3) of this Article has resulted in the death of one or more persons, or damage to property or environment on a large scale, the perpetrator shall be punished by imprisonment for a term of not less than five years. (5) If the criminal offense referred to in Paragraphs (1) and (3) of this Article is perpetrated by negligence, the perpetrator shall be punished by imprisonment for a term not exceeding three years. (6) If the criminal offense referred to in Paragraph (4) of this Article is perpetrated by negligence, the perpetrator shall be punished by imprisonment for a term not exceeding ten years. (7) Whoever, in order to compel a state, international organization or a natural or legal person to perform or refrain from performing an act, threatens to endanger the lives of people or property on a large scale through the use of nuclear material, shall be punished by imprisonment for a term of not less than three years."

Article 76

After Article 194, a new Article 194a shall be added so as to read:

"Endangering a Nuclear Facility Article 194a

(1) Whoever perpetrates an act aimed at obstructing the operation of a nuclear facility, or uses or damages a nuclear facility in the manner causing a risk of leakage of nuclear or other radioactive material, shall be punished by imprisonment for a term between one and five years. (2) Whoever, by perpetrating the act referred to in Paragraph (1) of this Article, causes threat to human life or health or property or environment on a large scale, shall be punished by imprisonment for a term of not less than one year. (3) Whoever perpetrates the criminal offense referred to in Paragraphs (1) and (2) of this Article by negligence, shall be punished by a fine or imprisonment for a term not exceeding three years. (4) If the perpetration of the criminal offense referred to in Paragraphs (1) and (2) of this Article has resulted in the death of one or more persons, or damage to property or environment on a large scale, the perpetrator shall be punished by imprisonment for a term of not less than five years. (5) Whoever perpetrates the criminal offense referred to in Paragraph (4) of this Article by negligence, shall be punished by imprisonment for a term between one and ten years. (6) Whoever threatens to perpetrate the act referred to in Paragraphs (1) and (2) of this Article, shall be punished by imprisonment for a term not exceeding three years."

Article 77

258

In Article 195 Paragraph (1), the words "between one and ten years" shall be replaced by the words "not less than three years". In Paragraph (2), the words "three years" shall be replaced by the words "five years". In Paragraph (3), the words "six months and five years" shall be replaced by the words "one and ten years".

Article 78

The title of Article 197 shall be amended so as to read "Hijacking an Aircraft or a Ship or Occupying a Fixed Platform". In Paragraph (1), after the word "type" the words "or a fixed platform" shall be added. In Paragraph (2), after the word "vessel" the words "or the fixed platform" shall be added.

Article 79

In the title of Article 198, after the word "navigation" the words "or fixed platforms" shall be added. In Paragraph (1), the words "communicates false information regarding the flight of the aircraft" shall be replaced by the words "communicates the information he knows is false". In Paragraph (2), the word "employed" shall be deleted. Paragraph (3) shall be amended so as to read: "(3) The punishment referred to in Paragraph (1) of this Article shall be imposed on whoever performs violence against a person aboard a ship or a vessel or a fixed platform, destroys a ship or a vessel or a fixed platform, causes damage to a ship, a vessel or to its cargo or a fixed platform, places or causes to be placed on a ship or a vessel or a fixed platform, by any means whatsoever, an explosive or other device or substance capable of destroying or damaging the ship, the vessel or its cargo or the fixed platform, destroys or damages maritime navigational facilities or interferes with their operation, communicates the information he knows is false or perpetrates another act of violence, endangering thereby the safe navigation or the safety of the voyage of the ship or the safety of the vessel or the fixed platform." In Paragraphs (5) and (7) after the word "vessel" the words "or fixed platform" shall be added.

Article 80

In Article 201 Paragraph (1), the words "three years" shall be replaced by the words "five years". In Paragraph (2), the word "five" shall be replaced by the word "eight". After Paragraph (3), a new Paragraph (4) shall be added, which shall read: "(4) Whoever procures or prepares the instruments or removes the obstacles or undertakes some other action thereby creating conditions for the perpetration of the criminal offense referred to in Paragraph (1) of this Article, shall be punished by imprisonment for a term between one and ten years." In the current Paragraph (4), which shall become Paragraph (5), the word "intentional" shall be deleted.

Article 81

Article 202 shall be amended so as to read:

259

"Funding of Terrorist Activities Article 202

(1) Whoever by any means, directly or indirectly, provides or collects funds aiming to use them or knowing that they are to be used, in full or in part, in order to perpetrate: a) A criminal offense referred to in Article 191 (Taking Hostages), 192 (Endangering Internationally Protected Persons), 194 (Illicit Procurement and Disposal of Nuclear Material), 194a (Endangering a Nuclear Facility), 196 (Piracy), 197 (Hijacking an Aircraft or a Ship or Occupying a Fixed Platform), 198 (Endangering the Safety of Air Traffic and Maritime Navigation or Fixed Platforms), 199 (Destruction and Removal of Signal Devices Utilized for Safety of the Air Traffic), 200 (Misuse of Telecommunication Signals), 201 (Terrorism), 202a (Public Inciting to Terrorist Activities), 202b (Recruiting for Terrorist Activities), and 202c (Training for Terrorist Activities) of this Code; b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking active part in the hostilities in an armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or compel the authorities of Bosnia and Herzegovina or any other government or an international organization to perform or to refrain from performing any act, shall be punished by imprisonment for a term of not less than three years.

(2) The collected funds designated for the perpetration of or generated through the perpetration of the criminal offense referred to in Paragraph (1) of this Article, shall be seized."

Article 82

After Article 202, new Articles 202a, 202b, 202c and 202d shall be added, which shall read: "Public Incitement to Terrorist Activities Article 202a

Whoever, on the mass media, disseminates or in any other way communicates a message to the public whose aim is to incite another to perpetrate any of the criminal offenses referred to in Article 191 (Taking Hostages), 192 (Endangering Internationally Protected Persons), 194 (Illicit Procurement and Disposal of Nuclear Material), 194a (Endangering a Nuclear Facility), 196 (Piracy), 197 (Hijacking an Aircraft or a Ship or Occupying a Fixed Platform), 198 (Endangering the Safety of Air Traffic and Maritime Navigation or Fixed Platforms), 199 (Destruction and Removal of Signal Devices Utilized for Safety of the Air Traffic), 200 (Misuse of Telecommunication Signals), 201 (Terrorism), 202 (Funding of Terrorist Activities), 202b (Recruiting for Terrorist Activities), 202c (Training for Terrorist Activities), and 202d (Organizing a Terrorist Group) of this Code, shall be punished by imprisonment for a term of not less than three years.

Recruitment for Terrorist Activities Article 202b

Whoever recruits or incites another to perpetrate or participate or aide in the perpetration of or to join a terrorist group with the aim of perpetrating any of the criminal offenses referred to in Article 191 (Taking Hostages), 192 (Endangering Internationally Protected Persons), 194 (Illicit Procurement and Disposal of Nuclear Material), 194a (Endangering a Nuclear Facility), 196 (Piracy), 197 (Hijacking an Aircraft or a Ship or Occupying a Fixed Platform),

260

198 (Endangering the Safety of Air Traffic and Maritime Navigation or Fixed Platforms), 199 (Destruction and Removal of Signal Devices Utilized for Safety of the Air Traffic), 200 (Misuse of Telecommunication Signals), 201 (Terrorism), 202 (Funding of Terrorist Activities), 202a (Public Inciting to Terrorist Activities), and 202c (Training for Terrorist Activities) of this Code, shall be punished by imprisonment for a term of not less than three years.

Training for Terrorist Activities Article 202c

(1) Whoever trains another person to make or use explosives, firearms or other weapons or harmful or hazardous substances or explosive devices or trains them to apply other specific methods, techniques or skills with the aim of perpetrating any of the criminal offenses referred to in Article 191 (Taking Hostages), 192 (Endangering Internationally Protected Persons), 194 (Illicit Procurement and Disposal of Nuclear Material), 194a (Endangering a Nuclear Facility), 196 (Piracy), 197 (Hijacking an Aircraft or a Ship or Occupying a Fixed Platform), 198 (Endangering the Safety of Air Traffic and Maritime Navigation or Fixed Platforms), 199 (Destruction and Removal of Signal Devices Utilized for Safety of the Air Traffic), 200 (Misuse of Telecommunication Signals), 201 (Terrorism), 202 (Funding of Terrorist Activities), 202a (Public Inciting to Terrorist Activities), and 202b (Recruiting for Terrorist Activities) of this Code, shall be punished by imprisonment for a term of not less than three years.

(2) The punishment referred to in Paragraph (1) of this Article shall also be imposed on whoever provides resources for the training, or in any way renders available premises or other space with the knowledge that they would be used for the perpetration of the criminal offense referred to in Paragraph (1) of this Article.

Organizing a Terrorist Group Article 202d

(1) Whoever organizes a terrorist group or in another way brings together not less than three persons for the purpose of perpetration of any of the criminal offenses referred to in Article 191 (Taking Hostages), 192 (Endangering Internationally Protected Persons), 194 (Illicit Procurement and Disposal of Nuclear Material), 194a (Endangering a Nuclear Facility), 196 (Piracy), 197 (Hijacking an Aircraft or a Ship or Occupying a Fixed Platform), 198 (Endangering the Safety of Air Traffic and Maritime Navigation or Fixed Platforms), 199 (Destruction and Removal of Signal Devices Utilized for Safety of the Air Traffic), 200 (Misuse of Telecommunication Signals), 201 (Terrorism), 202 (Funding of Terrorist Activities), 202a (Public Inciting to Terrorist Activities), 202b (Recruiting for Terrorist Activities), and 202c (Training for Terrorist Activities) of this Code,

shall be punished by imprisonment for a term of not less than five years.

(2) Whoever becomes a member of the group referred to in Paragraph (1) of this Article or in any other way participates in the activities of a terrorist group, including providing financial or any other assistance, shall be punished by imprisonment for a term of not less than three years.

261

(3) A member of the group referred to in Paragraph (1) of this Article who informs on the group before perpetrating a criminal offense as a member of the group or for the group, shall be punished by a fine or imprisonment for a term not exceeding three years, but may also be relieved from punishment."

Article 83

In Article 209 Paragraph (1), the words "six months and five years" shall be replaced by the words "one and eight years". After Paragraph (1), a new Paragraph (2) shall be added so as to read: "(2) If the perpetrator of the act referred to in Paragraph (1) is also a perpetrator of or an accomplice to the criminal offense whose perpetration resulted in the money or property gain referred to in the previous Paragraph, the perpetrator shall be punished by imprisonment for a term between one and ten years."

In the current Paragraph (2), which shall become Paragraph (3), the number "50,000" shall be replaced by the number "200,000", and the words "between one and ten years" shall be replaced by the words "not less than three years". The current Paragraphs (3) and (4) shall become Paragraphs (4) and (5).

Article 84

Article 210 shall be amended so as to read:

"Tax Evasion or Fraud Article 210

(1) Whoever evades the payment of duties required under the tax legislation of Bosnia and Herzegovina by failing to submit the required information, or by providing false information on the taxable income earned or on the other facts relevant to the determination of the amount of the tax liabilities, provided that the obligation that is evaded exceeds the amount of 10,000 KM, shall be punished by imprisonment for a term of between six months and five years. (2) The punishment referred to in Paragraph (1) of this Article shall also be imposed on whoever, with the aim of exercising the right to a refund or indirect tax credit required under the tax legislation of Bosnia and Herzegovina, files a tax return with false information on the amount of refund or indirect tax credit that exceeds 10,000 KM.

(3) Whoever perpetrates the offense referred to in Paragraph (1) of this Article provided that the evaded obligation exceeds the amount of 50,000 KM, or whoever perpetrates the offense referred to in Paragraph (2) of this Article provided that the requested refund or indirect tax credit exceeds the amount of 50,000 KM, shall be punished by imprisonment for a term between one and ten years. (4) Whoever perpetrates the offense referred to in Paragraph (1) of this Article provided that the evaded obligation exceeds the amount of 200,000 KM, or whoever perpetrates the offense referred to in Paragraph (2) of this Article provided that the requested refund or indirect tax credit exceeds the amount of 200,000 KM, shall be punished by imprisonment for a term of not less than three years." 262

Article 85

After Article 210, new Articles 210a and 210b shall be added, which shall read:

"Illicit Trade in Excise Goods Article 210a

(1) Whoever unlawfully manufactures, trades in, or sells products not marked with control and tax stamps in the manner required by the tax legislation of Bosnia and Herzegovina, shall be punished by imprisonment for a term between six months and five years.

(2) The products referred to in Paragraph (1) of this Article shall be seized.

Unlawful Storage of Goods Article 210b

(1) Whoever stores the goods taxable under the tax legislation of Bosnia and Herzegovina on the premises not registered for that purpose in accordance with the law, or whoever allows for goods to be stored on his premises that are not registered for that purpose, shall be punished by a fine or imprisonment for a term not exceeding three years.

(2) The punishment referred to in Paragraph (1) of this Article shall also be imposed on whoever, on the premises registered for storing goods in accordance with the law, stores the goods taxable under the tax legislation of Bosnia and Herzegovina which are not accompanied by the required documentation on the origin and the taxes paid."

Article 86

Article 211 shall be amended so as to read:

"Failure to Pay Taxes Article 211

(1) Whoever, by transfer or misappropriation of property, closure of an enterprise or in another way, prevents collection of the declared tax required by tax legislation of Bosnia and Herzegovina, provided that the obligation that is evaded exceeds the amount of 50,000 KM, shall be punished by a fine or imprisonment for a term not exceeding three years.

(2) Whoever perpetrates the offense referred to in Paragraph (1) of this Article provided that the evaded tax exceeds the amount of 100,000 KM, shall be punished by imprisonment for a term between one and ten years.

(3) Whoever perpetrates the offense referred to in Paragraph (1) of this Article provided that the evaded tax exceeds the amount of 200,000 KM, shall be punished by imprisonment for a term of not less than three years.

263

(4) If the perpetrator pays the liabilities referred to in Paragraphs (1), (2) and (3) of this Article, he may be relieved from punishment."

Article 87

In Article 217 Paragraphs (1), (2) and (3), after the words "a foreign official person" the words "or an international official" shall be added, and after the word "benefit", appearing twice, the words "for himself or another person" shall be added.

Article 88

In Article 218 Paragraphs (1), (2) and (3), after the words "a foreign official person" the words "or an international official" shall be added.

Article 89

In Article 224 Paragraph (1), the words "a fine or imprisonment for a term not exceeding three years" shall be replaced by the words "imprisonment for a term between three months and five years". In Paragraph (2), the words "six months and five years" shall be replaced by the words "one and ten years".

Article 90

In Article 228, the words "six months and five years" shall be replaced by the words "one and ten years".

Article 91

The title shall be added to Article 231a which shall read "Failure to Inform of the Location of a Mass Grave", and in the text of the Article the words "mass grave" shall be replaced by the words "location of a mass grave".

Article 92

In Article 237 Paragraph (1), the words "a fine or imprisonment for a term not exceeding one year" shall be replaced by the words "imprisonment for a term not exceeding three years". In Paragraph (2), the words "a fine or imprisonment for a term not exceeding three years" shall be replaced by the words "imprisonment for a term between six months and five years".

Article 93

In Article 238, after the words "Constitutional Court of Bosnia and Herzegovina" the comma shall be replaced by the word "or", and the words "or the Human Rights Chamber" shall be deleted.

Article 94

The title of Article 239 shall be amended so as to read "Failure to Enforce Decisions of the Constitutional Court of Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Human Rights Chamber and European Court of Human Rights". 264

In the text of the Article, after the words "Court of Bosnia and Herzegovina" a comma shall be added, the word "or" shall be deleted, and after the words "Human Rights Chamber of Bosnia and Herzegovina" the words "or European Court of Human Rights" shall be added.

Article 95

In Article 241 Paragraph (2), the words "between one and ten years" shall be replaced by the words "not less than three years".

Article 96

After Article 241, new Articles 241a and 241b shall be added, which shall read:

"Obstructing an Official Person in Execution of Official Duty Article 241a

(1) Whoever, by force or threat of immediate use of force, prevents an official person in the institutions of Bosnia and Herzegovina from performing an official act falling within the scope of his authority or, by using the same means, coerces him to perform an official act, shall be punished by imprisonment for a term between three months and three years.

(2) If, by the criminal offense referred to in Paragraph (1) of this Article, the official person is maltreated or a minor bodily injury is inflicted upon him, or the criminal offense has been perpetrated by threatening to use weapons, the perpetrator shall be punished by imprisonment for a term between six months and five years.

(3) Whoever perpetrates the criminal offense referred to in Paragraphs (1) and (2) of this Article against an official person carrying out the work related to the security of Bosnia and Herzegovina, to the apprehension of perpetrators of criminal offenses or to the guarding of confined persons, shall be punished by imprisonment for a term between one and ten years.

(4) If the perpetrator of the criminal offense referred to in Paragraphs (1) through (3) of this Article has been provoked by illegal or rude treatment on the part of the official person, he may be relieved of punishment.

Attack against an Official Person while Carrying out Security Work, Discovering or Apprehending Perpetrators of Criminal Offenses Article 241b

(1) Whoever attacks or seriously threatens to attack an official person of the institutions of Bosnia and Herzegovina or a person who assists an official person in carrying out work related to the security of Bosnia and Herzegovina, discovering or apprehending perpetrators of criminal offenses or to the guarding of confined persons,

265

shall be punished by imprisonment for a term of between three months and three years.

(2) If, by the criminal offense referred to in Paragraph (1) of this Article, a minor bodily injury is inflicted upon the official person or upon the person who assists him, or if the criminal offense referred to in Paragraph (1) of this Article is perpetrated with the threat to use weapons, the perpetrator shall be punished by imprisonment for a term between six months and five years.

(3) If, by the criminal offense referred to in Paragraph (1) of this Article, a serious bodily injury is inflicted upon the official person or upon the person who assists him, the perpetrator shall be punished by imprisonment for a term between one and ten years.

Article 97

In Article 249 Paragraph (1), the words "for which a punishment of imprisonment of three years or a more severe punishment may be imposed" and a comma shall be deleted, and the words "six months and five years" shall be replaced by the words "one and ten years". In Paragraph (2), the word "one" shall be replaced by the word "three".

Article 98

In Article 250 Paragraph (1), (2), (3), (4) and (5), the words "criminal group" in appropriate cases in the vernacular text shall be replaced by the words "organized criminal group" in the appropriate case. In Paragraph (2), the words "three years" shall be replaced by the words "five years". In Paragraph (5), the words "criminal group" at the end of the Paragraph shall be replaced by the words "that group".

Article 99

The Constitutional and Legal Committee of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina and the Constitutional and Legal Committee of the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina shall present the consolidated text of the Criminal Code of Bosnia and Herzegovina within 60 days of the date of publication of this Code in the Official Gazette of Bosnia and Herzegovina.

Article 100

Authorized bodies of the Federation of Bosnia and Herzegovina, Republika Srpska and Brčko District of Bosnia and Herzegovina shall harmonize their respective Criminal Codes with this Code within 90 days of the date of entry into force of this Code.

Article 101

266

This Code shall enter into force within 90 days of the date of its publication in the Official Gazette of Bosnia and Herzegovina.

Parliamentary Assembly of B-H No.:______2009 Sarajevo

STATEMENT OF THE REASONS FOR THE LAW ON AMENDMENTS TO THE CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

I – CONSTITUTIONAL-LEGAL BASIS OF PASSING THE CODE

The constitutional-legal basis for passing this Law is laid down in Article III (1)(g) of the Constitution of Bosnia and Herzegovina which provides that the BiH institutions are responsible for the enforcement of the international and inter-Entity criminal justice provisions, including relations with Interpol, and in Article IV(4)(a) of the Constitution of Bosnia and Herzegovina providing that the Parliamentary Assembly shall pass the laws needed for executing the decisions made by the Presidency or for exercising the functions of the BiH Assembly under the Constitution. The constitutional-legal basis for passing this Code is established on its first adoption and it has been amended several times so far.

II – REASONS FOR PASSING THE CODE

In most countries, and so in BiH, the substantive criminal legislation is governed by the criminal code constituting a systematic and the most important legislative act which basically covers and governs, entirely and systematically, a whole department of law. The principle that the criminal offences and sanctions thereof can be defined only by law has entered the catalogue of the fundamental human rights and constitutes the guarantee against the arbitrariness of the political power-holders, courts and other judicial authorities. The Criminal Code of Bosnia and Herzegovina came into force on 1 March 2003. After this Code and the Criminal Procedure Code have become effective, a new stage emerged in the development of the criminal law and criminal legislation in Bosnia and Herzegovina, not only owing to a new and specific conception of the legislative system governing the criminal matters, but also because of some very important amendments in relation to the previous criminal legislation.

By adopting the 2003 Criminal Code, Bosnia and Herzegovina obtained a modern legislation attempting to bring together the best from the tradition of the domestic legal system and the analyses made by the experts in the domain of criminal law. However, although it concerns a relatively new statutory provision, some solutions in this Code are not harmonized with the international standards.

The development of successful and efficient criminal justice system conceived so as to fight the serious crime, and at the same time to ensure the compliance with the rule of law and human rights protection, poses a continued challenge we are facing. It is for this very reason that several more significant factors made an impact on making these amendments to the Criminal Code of BiH. In this context, major social changes should be underlined. Furthermore, the changes and modeling of the criminal legislation is considerably influenced also by the need of harmonizing it with the tendencies prevailing in the modern criminal theory and legislation. 267

Of course, Bosnia and Herzegovina independently drafts its criminal legislation, but it should be noted thereby that it must observe some principles of the international criminal law, especially because in its criminal legislation Bosnia and Herzegovina has incorporated the norms prescribing that also the international law is the source of the rights to punishment; Article II/2 of its Constitution specially underlines the priority of those norms over all other law. Accordingly, these amendments constitute the expression of the general harmonization process and they reflect the general tendencies characterizing the criminal justice reforms.

In addition, it should be noted that we live at the time when the social and economic changes and the free flow of capital and labor remove (criminal) boundaries between the countries.

The organized and sophisticated crime, which is frequently masterminded by extremely powerful and organized international crime syndicates, great mobility of many and very dangerous forms of crime, its modernization and highly developed organization and sophisticated crime commission techniques as well as its penetration into all social structures, constitute the emergences requiring the countries and Bosnia and Herzegovina as well to respond to them jointly and in a coordinated manner, and without any national or any other restrictions and conditioning. It concerns the international law standards in this legal domain provided for in the most important international legal acts.

Consequently, these amendments are aimed at tailoring the Criminal Code of Bosnia and Herzegovina to the needs and requirements of the new times by way of incorporating some new solutions constituting its harmonization with the legal standards which are, as already stated above, laid down in the main international legal acts.

Since 2003 the Team in charge of monitoring and evaluating the application of the criminal codes, as an organ of the BiH Ministry of Justice, has gathered the particulars from the practice, monitored and analyzed the application of the Criminal Code of BiH, and by these amendments it attempted to remove its defects or failures and incorporate into it the solutions obligated by the international legal acts.

As the proposed amendments introduce some novelties, it is deemed necessary to explain them theoretically, or to highlight their criminal and political purpose, while a great number of those amendments deal only with a logic manner of précising the provisions wherein a defect was noticed and, therefore, they do not require any explanation or statement of the reasons for them.

Thus, as already pointed out, special attention shall be devoted to the explanations of those institutions or solutions which are quite new, or are the altered or modified former solutions.

Article 1 of the Draft – it amends the paragraphs 3, 7 and 8 by bringing them into accord with the United Nations Convention against Transnational Organized Crime. Paragraphs 18, 19 and 20 now provide clearer and more adequate explanation. Paragraphs 21, 22, 34, 35, 36, 37, 38 and 39 explain in detail the terms in Articles 194, 194a, 197, 201a, 202a, 202b, 202c and 202d. These so-called legal definitions are aimed at facilitating the construction and application of the Code by defining the terms used in its provisions. However, it should be noted that the ultimate and basic purpose of these provisions is to ensure proper application of the Code in the cases where the terms used might cause a dilemma in respect of their meaning, to wit, it might entail a different construction and arbitrariness in the application of that Code. Being as such, these provisions are of an interpretative character and are used in this Code for interpreting particular terms used in the provisions of its general or special part, having a binding character and their definitions are applicable only in the Criminal Code of Bosnia and Herzegovina. 268

Article 2 of the Draft – it introduces the Principle of Guilt which makes adjustment to the changes in the European countries having the knowledge of the concept of guilt in the substantive criminal legislation and its compliance with the procedural legislation.

Article 3 of the Draft – in the existing Criminal Code of BiH the community service is laid down in Article 43; this amendment harmonizes the provisions governing the criminal sanctions, namely: imprisonment, community service, parole sentence, security measures and educational measures. Thus, only the internal harmonization of the Code has been made under this amendment.

Articles 4 through 9 of the Draft – the proposed amendments precise, only logically, the existing provisions because some defects have been noticed in their wording.

Article 10 and 11 of the Draft – they provide the statute of limitation as well as the course and interruption of the period of limitation of community service because it was not previously defined by the law and that situation is hereby rectified.

Article 12 of the Draft – it introduces the Petty Offence as a need proved in practice.

Articles 13 of the Draft – the provisions in force contained in this Code do not explicitly define what can be meant by the effect of force or threat caused by another and which could be subsumed under the appropriate statutory provision. To date, the judicial practice and the comments have developed the construction of Article 25 of the Criminal Code of BiH (Extreme Necessity) with regard to the concept of an immediate or direct and imminent and unprovoked danger so that it covers also the situation emerged through natural causes as well as the situation caused by human actions. It is clear, however, that this concept cannot function independently from the extreme necessity term. Also, the application of this concept in the applicable law may, in some cases, become complicated as a consequence of a dependent nature of the present terms of the force and threat. For these reasons, the proposed Article 25(a) would better define the individual frameworks of these two terms, as a basis, which preclude the criminal responsibility by way of creating two separate provisions. It should be also stated that some countries in the region have adopted the same legal solutions because it was deemed that the relevant legal theory and practice have made sufficient progress to the end of accepting such a solution (for instance, new criminal legislation of Serbia).

Article 14 of the Draft – it only makes the terms more precise.

Article 15 of the Draft – A new paragraph (3) is added to „Incitement‟, Article 30. Although the legal theory and practice are harmonized with respect to the interpretation as to which actions can be subsumed under the incitement actions, it can be still deemed necessary to define the actions that may be implied in the incitement term for the sake of legal clarity and certainty. A similar manner of wording the provisions is not a novelty in this Code; the example to this effect is the provision contained in Accessory, Article 31(2) of the Code. It is worth mentioning that the hitherto practice has produced and defined the examples of the incitement, as proposed in the amendments to this Article.

Articles 16, 17, 18 and 19 of the Draft – they harmonize the relevant matter with the changes occurring in the European countries that have the knowledge of the concept of guilt in substantive criminal legislation and with the procedural legislation under the understanding that, for the purpose of amplifying the provision concerned, Article 19 of the Draft proposes that the missing degree of mental capacity (accountability) be added to Article 34 of the Code.

269

Article 20 of the Draft - the amendment under this Article is justified because an irremovable real mistake in law is a ground for excluding any guilt; therefore, this should be specially underlined in paragraph (a). Also, this harmonizes the relevant matter with the changes occurring in the European countries having the knowledge of the concept of guilt in substantive criminal legislation and with the procedural legislation.

Article 21 of the Draft – it amends Article 31 because: the legal mistake is a basis for exclusion of guilt and it is for this reason that paragraph (1) must be redefined. The present wording of Article 38 allows the Court to release the offender from punishment if and when the offence has been committed due to an irremovable legal mistake. The proposed wording would define more plainly this basis for exclusion of criminal responsibility by, first of all, restricting the domain of the application of relevant legal mistake under the circumstances of the existence of irremovable mistake. Once a higher threshold level for release from punishment has been established, the legislator should afford the possibility of granting the compulsory release from punishment after the requirements set out in paragraph 2 of this Article have been fulfilled. Furthermore, this Draft resulted from consulting the recent legal solutions adopted in this domain in some countries in the region.

Article 22 of the Draft – it introduces the internationally accepted standard and the harmonization with Article 6 of the Criminal Code of BiH because the special prevention implied in the sentence imposed must contain also the basis for reformation of the offender in the subsequent process of his/her resocialization and as well for achieving the purpose of sentence execution.

Article 23 of the Draft – it is aimed at the harmonization with the changes in the European countries that have knowledge of the concept of guilt in the substantive criminal legislation and with the procedural legislation. Also, it introduces subparagraph (b) due to its specific feature, legal consequences and different regime; on the other hand, the practice proved the need for this solution.

Article 24 of the Draft – some provisions have been deleted from Article 42 of the Code and now they are covered by new Article 42b.

Article 25 of the Draft – Article numbered as 42a, paragraph 2, was inserted on the basis of the needs proved in the practice of the execution of criminal sanctions; therefore, this matter is governed under the separate article as a whole of logic. Regarding the proposal made under Article 42b, refer to Articles 40 and 42. The change of the range of years of imprisonment from 20 to 25 years is aimed at avoiding any confusion between the prison sentence and the long-term imprisonment. The solution set forth under paragraph (1) is needed because the period between 20 and 25 years is not covered by the Code; this might cause the problems when meting out the compound punishment for an offense perpetrated in concurrence as provided for in Article 53(2)(c). For instance, if the prison sentences of 12 and 13 years are prescribed, then the compound punishment cannot be of 25 years because it reaches the total sum, but it can be of 23 years because the 23-year prison sentence is not a long-term imprisonment. The proposal for the imprisonment ranging from 21 to 45 years makes the difference between the prison sentence and the long-term imprisonment, but it covers all those years.

Article 26 of the Draft – it concerns the itemization (to be checked, translator‟s note) as Article 57b.

270

Article 27 of the Draft – it harmonizes the paragraphs (1) and (2) of this Article in order to avoid misinterpretation (from and to).

Article 28 of the Draft – the reason for the solution under paragraph (3) is the seriousness of criminal offences and the average personal income as well as the general prevention, while paragraph (8) reduces the time-limit, which is too long, for achieving the efficiency of the proceedings and the purpose of punishment.

Article 29 of the Draft – an effort was made through paragraph (2) to avoid the wording which presumes the activity on the part of the Court in forced collection being in conflict with paragraph (1), while the purpose of paragraph (3) is to prevent the avoidance of an unjustified cancellation of punishment and state the provision more precisely so as to avoid any misinterpretation.

Article 30 of the Draft - it introduces the harmonization with the changes in the European countries that have knowledge of the concept of guilt in the substantive criminal legislation and with the procedural legislation.

Article 31 of Draft – it conforms with the amendment made to Article 46.

Article 32 of the Draft - paragraph (1) is harmonized by adding new subparagraph (a) which fills the legal gap existing in the cases of meting out the compound long-term imprisonment where the single long-term imprisonments were previously established for the criminal offences perpetrated in concurrence. The amended sub-paragraph c) settles the matter that, when imposing the most severe punishment for several individual criminal offenses committed in concurrence, the imposition of a compound sentence does not relieve the defendant from being liable to more than one sentence (for example, three sentences of twenty years each, compound sentence of twenty years). (as written, not quite clear, translator‟s note)

Article 33 of the Draft – it makes the harmonization with the amendment to Article 47.

Article 34 of the Draft – it provides the insertion of a new chapter to govern the purpose of the community service and precise wording of the provisions and a more adequate itemization.

Article 35 of the Draft – it proved to be a problem in practice to pronounce the suspended sentence for the criminal offences for which the prison term of one up to ten years is prescribed for the reason that, according the paragraph (4), the suspended sentence could be imposed only by applying the mitigation rules, which means that the prison sentence of less than one year had to be imposed. The proposed amendment is aimed also at the harmonization of the provisions with the changes occurring in the European countries that have knowledge of the concept of guilt in the substantive criminal legislation and at the harmonization with the procedural legislature.

Article 36 of the Draft – the word „high‟ is deleted because that degree of guilt is unknown.

Article 37 of the Draft – paragraph (3) is moved under new Article 110a - extended confiscation.

Article 38 of the Draft – it enables a more efficient fight against organized crime in accordance with the requirements laid down in the United Nations Convention against 271

Transnational Organized Crime and the Protocols thereto, as well as in some Council of Europe Conventions on fighting organized crimes.

Article 39 of the Draft – it improves the wording by using a more adequate terminology.

Articles 40 and 41 of the Draft – they make harmonization with the modern tendencies in the European criminal legislation characterized, first of all, by the care for individuals wishing to remove the stigma of conviction from him/her in order to become a full member of the society.

Article 42 through 46 of the Draft – they make harmonization with the changes in the European countries that have knowledge of the concept of guilt in the substantive criminal legislature and with the procedural legislature.

Article 47 of the Draft – it states more precisely the provisions for resolving the problem of collection which is present in the practice.

Article 48 of the Draft – it specifies that the activities may be of the other kind as well, but not only the economic ones.

Article 49 and 50 of the Draft - they make harmonization with the changes in the European countries that have knowledge of the concept of guilt in the substantive criminal legislature and with the procedural legislature.

Article 51 of the Draft – it harmonizes the provisions with the Agreement concluded with the Holy Chair.

Article 52 of the Draft – The Criminal Code of BiH does not provide this criminal offence, while other Criminal Codes do. If the official persons employed in the BiH Institutions such as OSA, SIPA would appear as the perpetrators of this offence, then the Court of BiH shall be competent for prosecuting such persons.

Article 53 and 54 of the Draft – they improve the provision wording by using the more adequate terminology and tighten up the penalties by virtue of the gravity of the criminal offence.

Article 55 of the Draft - it tightens up the penalty by virtue of the gravity of the criminal offence.

Article 56 to 60 of the Draft – Article 56 tightens up penalties by virtue of the gravity of the offence; Article 57 makes the provision more precise because the preliminary results which need not correspond to voting may be announced; Article 58 improves the terminology; Article 59 tightens up the penalty by virtue of the gravity of the criminal offence, and Article 60 harmonizes the terminology. Article 61 of the Draft – it makes harmonization with the UN Resolution on Holocaust Denial and Additional Protocol to the Convention on Cyber Crime, Concerning the Criminalization of Acts of a Racist and Xenophobic Nature, which are binding on Bosnia and Herzegovina as well.

Article 62 of the Draft – it harmonizes the relevant matter with the changes in the European countries which have knowledge of the concept of guilt in the substantive criminal legislation and with the procedural legislation. 272

Articles 63 to 68 of the Draft – the amendments make the harmonization with the EU Council Convention against Human Trafficking, its Protocol on Prevention of Human Trafficking and the UN Convention against Transnational Organized Crime; also, it tightens up the penalty by virtue of the manner of crime perpetration.

Article 69 of the Draft – it linguistically improves the provision.

Article 70 of the Draft – it makes the provision more precise and tightens up the penalty by virtue of the criminal offence.

Article 71 and 74 of the Draft – it tightens up the penalty by virtue of the gravity of the criminal offence, makes the provision more precise and linguistic adjustments.

Article 75 of the Draft – it amends Article 194 (Illicit Procurement and Disposal of Nuclear Material) in accordance with Article 2 of the International Convention for the Suppression of Acts of Nuclear Terrorism.

Article 76 of the Draft – it inserts new Article 194a into the Criminal Code of BiH (Endangering a Nuclear Facility) in accordance with Article 2 of the International Convention for the Suppression of Acts of Nuclear Terrorism in the part relating to the nuclear facilities.

Article 77 of the Draft – it regulates the matter of the illicit trafficking in narcotic drugs and is amended in terms of tightening up the penalty for the crime offender, in accordance with the Conclusion made by the Parliamentary Assembly on 31 January 2008.

Article 78 of the Draft – it amends Article 197 (Hijacking an Aircraft or a Ship) in accordance with Article 2 of the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located outside Epicontinental Shelf (2005).

Article 79 of the Draft – it makes amendments to Article 198 (Endangering the Safety of Air Traffic and Maritime Navigation), paragraphs (1) and (3), in terms of Article 1, subparagraph 1e of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. The amendments to paragraph 2 of this Article have been made pursuant to Article 1, subparagraph 1a of the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplement to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal 1971).

Article 80 of the Draft – these amendments make the harmonization with the proposal put forward by UNODC and BiH Ministry of Security which concerns the harmonization with the Universal Instruments against Terrorism and with the Proposal of the Prosecutor‟s Office of BiH for the reason of practical needs and significance of prescribing the accessoryship for this criminal offence. The word intentional is deleted because direct premeditation is required for this offence; therefore, this word is unnecessary. The amendments to Article 2001, paragraphs (1) and (2) (Terrorism) in terms changing the length of lower minimum of imprisonment have been made in accordance with Article 5 of the EU Council Framework Decision on combating terrorism (of 13 June 2002).

Article 81 of the Draft – the amendments to Article 202 (Funding of Terrorist Activities), paragraph (1), subparagraph a) were made for inserting newly incriminated criminal offences relating to the terrorism and terrorist activities. 273

The amendments to paragraph 2 of this Article were provided in accordance with Article 7 of the the Criminal Code of BiH (of 13 June 2002). The amendments to paragraph (3) of this Article were made in accordance with the 3rd FATF Recommendation relating to the suppression of terrorist financing.

Article 82 of the Draft – it inserts new Article 202a into the Criminal Code of BiH (Open Instigation of Terrorist Activities) in accordance with Article 5 of the EU Council Convention on the Prevention of Terrorism (Warsaw, 2005). The insertion of new Article 202b into the Criminal Code of BiH (Soliciting for Terrorist Activities) and Article 202c (Training for Carrying Out of Terrorist Activities) was made in accordance with Article 6 of the EU Council Convention on the Prevention of Terrorism. The insertion of new Article 202d into the Criminal Code of BiH (Organizing of Terrorist Group) was made in accordance with the EU Council Framework Decision on combating terrorism.

Article 83 of the Draft – the amendments were made for the purpose of harmonization with the UN Convention the United Nations Convention against Transnational Organized Crime and with the provision contained in Article 210, paragraph (3).

Article 84 and 85 of the Draft – they make the relevant provisions more precise, adjust them to the new taxation system and make the elements of an offence more concrete so as to cover the manifestional forms of this criminal offence and the sanctions against the perpetrator.

Article 86 of the Draft – the arguments for these amendments arise from the statements made in the letter of the Indirect Taxation Authority and also from the proposal by the Prosecutor‟s Office of BiH. Furthermore, now the proposed amendment to paragraph (1) of Article 211 includes the concretization of an action by which the payment of reported obligations is avoided (property transfer to another or otherwise). Also, it should be noted that the prescribed amount in respect of evading the tax payment exceeding KM 50,000.00 ensures that the criminal proceedings are not conducted for evaded tax payment in the amount being less than the one mentioned above. It is the fact that the deletion of Article 211 of the Criminal Code of BiH would cause unforeseeable consequences for the national budget and for the budgets of the Entities, Cantons and Municipalities as well. It would further cause the chain reaction damage to the total economic and social system of the country because most taxpayers would decide to keep the accurate tax records but would never pay it. Thus, it would be impossible to establish not only the criminal offence of failure to pay tax (which would be deleted), but also the criminal offence of tax evasion (in which case a taxpayer would always give the exact data about his/her taxable income earnings – there would be no need for false data). As a matter of fact, in practice one could seldom establish the criminal offence of tax evasion in which case Article 210 of the Criminal Code of BiH would theoretically exist.

Article 87 and 88 of the Draft – the amendments have been made for the purpose of harmonizing the relevant provisions with the United Nations Convention against Transnational Organized Crime.

Article 89 of the Draft – the amendments have been made for harmonizing the length of the prescribed penalties with those prescribed for abuse of office and amounts of the acquired financial gain.

274

Article 90 of the Draft – given that Article 229 (Unlawful Appropriation of Objects while Searching) prescribes the punishment which is more severe than that prescribed for enabling escape of a person lawfully deprived of freedom, this Article is harmonized with the provision contained in Article 229.

Article 91 of the Draft – it gives the headline to Article 231a and makes the provision more precise.

Article 92 of the Draft – it provides the tightening up of the penalty because of the gravity of criminal offence and failure to comply with the provisions governing the secrecy.

Article 93 and 94 of the Draft – Article 93 harmonizes the state with the real situation because the Human Rights Chamber does not exist any more; Article 94 is aimed at encouraging the responsibility on the part of the official persons in the BiH institutions in enforcing the judgments made by the European Court of Human Rights (ECHR), to wit, the rights guaranteed by the European Convention on Human Rights and Fundamental Freedoms (ECHRFF).

Article 95 of the Draft – it provides the tightening up of the punishment by virtue of the gravity of criminal offence of Obstruction of Justice.

Article 96 of the Draft – it introduces new criminal offences, namely: Obstructing an official in discharging the official duties, and Attack on an official while carrying out security work, discovering or apprehending a crime perpetrator. Due to the absence of these two offences in the Criminal Code of BiH, the question is posed in the practice as to the matter of jurisdiction for prosecuting the perpetrators of the criminal offences when those offences are directed towards the members of the BiH Intelligence and Security Agency (OSA), State Investigation and Protection Agency (SIPA), Border Police (BP) and other authorized officials who are vested with authority under the Criminal Code of BiH, but not under the Criminal Codes of the Entities and of the Brčko District.

Article 97 of the Draft – it provides a more severe punishment for the criminal offence of Associating for the Purpose of Perpetrating Criminal Offences under Article 249, as recommended by the BiH Parliamentary Assembly.

Article 98 of the Draft – it harmonizes the provision governing the criminal offence of Organized Crime with the new definition in the sense of the term, while the tightened punishment is in accordance with the recommendation of the BiH Parliamentary Assembly.

Article 99 of the Draft – it indicates the need for the consolidated version of the Code because the former amendments and in particular the amendments contained herein, make the application of the Code more difficult.

Article 100 of the Draft – it reminds of the existing obligation to harmonize the criminal legislation in BiH and gives a reasonable time for fulfilling this obligation which is underlined again in the Road Map for Liberalization of Visa Regime.

Article 201 of the Draft – This Code shall enter into force ninety (90) days following the date of its publication in the BiH Official Gazette, that is, it shall coincide with the harmonization of the Criminal Codes of the Entities and of the Brčko District.

275

III – ENFORCEMENT MECHANISMS

The enforcement of the Code is ensured through the existence of the BiH government bodies, namely: the Court of BiH and the Prosecutor‟s Office of BiH that are responsible to take actions under the Criminal Code and Criminal Procedure Code of Bosnia and Herzegovina as well as through other law enforcement agencies at the BiH Government level.

IV – CONSULTATIONS

In their legal system all the countries have the so-called enforcement legislation, to wit, the statutory regulations which should be in accordance with the ratified Conventions and other binding international acts and recommendations. The Team in charge of monitoring and evaluating the application of the criminal codes considered all this at the time of preparing the amendments to the Criminal Code of BiH. Also, the Team used the suggestions from the practice and various analyses ever since 2003, to wit, as from the day of coming into force of this Code. OSCE, OHR, EUPM and the Council of Europe made their contribution to this end by giving their written suggestions or through direct attendance of their representatives at the meetings arranged by the Team. Those consultations resulted in legal solutions adopted in this domain by some countries in this region. Also, pursuant to the Consultation Rules, the Draft of this Code is available to the public on the web page of the Ministry of Justice.

V – FINANCIAL RESOURCES

There shall be no need for providing the additional funds in the BiH budget for enforcing this Code.

******

276

ANNEX 7

D r a f t

Pursuant to article IV 4a of the Constitution of Bosnia and Herzegovina, Parliamentary Assembly of Bosnia and Herzegovina at the session of the House of Representatives held on ______2009 and the session of the House of Peoples of the Parliamentary Assembly BiH held on______2009, passed

LAW ON AGENCY FOR PREVENTION OF CORRUPTION AND ON COOPERATION IN FIGHT OF CORRUPTION

PART ONE – GENERAL PROVISIONS

Article 1 (Subject of the Law)

This Law regulates: the term of corruption, establishment and legal status of the Agency for prevention of corruption and on coordination in fight of corruption (hereinafter: the Agency), method and forms of prevention of corruption, principles and fundamentals of the laws and work of the Agency, scope of work and competencies of the Agency, tasks and duties, management methods, cooperation and public relations.

Article 2 (Definition of the Corruption)

In terms of this Law, the corruption means any misuse of entrusted power of a public servant or a person on a political position at the state, entity, Brcko District or local level that may result with private benefit. Corruption may especially include direct or indirect request, offer, giving or accepting bribe or some other illicit advantage or a possibility of the same by which one violates the very performance of the duty or behaviour expected of the one receiving the bribe.

Article 3 (Meaning of the Expression)

Some expressions that are used in this Law have the following meaning; a) ”Civil servant” is: 1) any person holding a legislative, executive, administrative, prosecutorial and judicial office of a state party, whether appointed or elected, whether the function is permanent or temporary, whether paid or unpaid irrespective of that persons seniority; 2) any person who performs a public function, including the function in a public agency or public enterprise or providing a public service; 3) any other person defined in the BiH legal system as a public function person, public official or civil servant. b) “Conflict of interests” in terms of this Law is a phenomenon in which elected officials, executive officials, advisers and/or other officials with public authorizations, have a private

277

interest that influences or may influence the legality, transparency, objectivity and impartiality in performing the official duties, or in which the private interest damages or may damage public interest. c) “Public goods” in terms of this Law are movable and immovable assets, as well as public means assigned to the political parties by the state, entity, Brčko District BiH or local self- management. d) “Budget” is the budget of the institutions of BiH and BiH international commitments;

Article 4 (International Commitments)

Provisions of this Law are harmonized with the international-legal instruments signed and ratified by Bosnia and Herzegovina.

PART TWO – ESTABLISHMENT OF THE AGENCY

CHAPTER I. COMPETENCES AND WORKING PRINCIPLES OF THE AGENCY

Article 5 (Establishment of the Agency)

With this Law one is establishing the Agency with the aim to prevent the influence of the corruption at the development of democracy and respect of basic human rights and freedoms as well as the influence at undermining the economy and economic development of Bosnia and Herzegovina, and all other forms of influence at the social values as well as for the coordination of the fight against the corruption.

Article 6 (Aims of Establishment of the Agency)

The aims of the establishment of the Agency are: a) creation of the Strategy and the Action Plans for prevention of corruption; b) coordination and oversight over the implementation of the Strategy; c) identification and elimination of the causes of the corruption; d) deterrence of persons from committing crime acts pertaining the corruption; e) insurance and promotion of a legal framework for the prevention of corruption; f) stimulation of civil society to participate prevention of corruption; g) raising awareness of the public and creation of relations of non-tolerance in relation to the corruption; h) education and improvements of society on causes and consequences of the corruption influence and the active participation in its prevention; i) promotion of transparent and responsible work of the bodies and institutions in Bosnia and Herzegovina.

Article 7 (Status of the Agency)

(1) The Agency is an independent and autonomous administrative organization that is accountable for its work to the BiH Parliamentary Assembly; (2) The means of work of the Agency are provided in the budget of Bosnia and Herzegovina; 278

(3) The seat of the Agency is in ______.

Article 8 (Anti-Corruption Principles)

All public service institutions in Bosnia and Herzegovina shall act on following anti- corruption principals: 1) Equal treatment and non-discrimination. Everyone is entitled to the same approach while performing the activity of public interest as well as to an equal treatment by the public servants, without corruption. 2) Prohibition of corruption behaviour. Public officials, in carrying out their duties, cannot seek or accept illicit profit to perform their duties. 3) Transparency and public control. Performance of all public functions will be transparent and subject to public control. 4) Protection of "reporting of corruption." No one should be punished, or in any way suffer any consequences because of reporting, in good faith, what is considered a corruptive offence or irregularities in the prescribed procedures. In case a person that reports possible corrupt conduct or improper behaviour in performing public services, suffers the consequences, is entitled to compensation as determined by a special procedure with the competent authority, which the Agency will bring a special regulation on. 5) Individual administrative or legal documents that are adopted as a result of corruption are null and void. A person that has a legal interest may request the court to declare them null and void. 6) A person that is actively involved in a corruption act is not a victim.

Article 9 (Work Principles of the Agency)

The Agency shall perform its work on following anticorruption principles: 1) Legalities – measures for prevention of corruption will be implemented in accordance with the Constitution and laws of BiH, in a manner that ensures respect of human rights and fundamental freedoms. 2) Transparency and public control - performing the work will be transparent and will be subject to public control. 3) Equal treatment and non-discrimination - Everyone is entitled to equal access to the performing activities of public interest and equal treatment by the officials, without corruption. 4) Interaction - the effectiveness of measures for the prevention of corruption will be provided through the coordination of activities of all bodies, including the exchange of information and mutual cooperation. 5) Continuity - establishment and implementation of efficient measures for the prevention of corruption through continuous oversight and review of the same. 6) In addition to these principles, the Agency will apply in its work the principles of: efficiency, economy, accountability and consistency.

Article 10 (Scope of the Work of the Agency)

The Agency is responsible for preventing corruption as well as for coordination in the fight against corruption in the institutions of public and private sector with: 279

a) holders of the functions in the legislative, executive and judicial authorities at all levels; b) public officials and employees and police officers in government institutions at all levels; c) administration members, authorized and other persons in economic societies, public enterprises, public institutions and private businesses; d) members of bodies and other authorized persons in political parties; e) authorized persons in cultural and sports institutions, foundations and associations and NGOs;

Article 11 (Competencies of the Agency)

Competences of the Agency shall be: a) Development of strategies for combating corruption and development of the Action Plan for the prevention of corruption; b) Coordination and oversight of implementation of the Strategy and Action Plan, and providing opinions and instructions regarding the implementation of the Strategy and Action Plan; c) Coordination of the work of public institutions in preventing corruption and the protection of a conflict of interest, and analysis of legally binding decisions of the competent authorities for processing conflict of interest in order to perceive the appearance of corruptive action, informing the competent institutions of the factual situation and taking other necessary actions in accordance with the law; d) To monitor conflicts of interests, make recommendations for conflict of interest management strategies in individual cases and to issue policy guidelines for the policy management of conflict of interest in the government institutions; e) Regulates a unique methodology for collecting data on the assets of public officials; f) In coordination with the competent bodies analyzes delivered data to determine the appearance of corruptive action, and take necessary action in accordance with the law; g) Collect and analyse statistic and other data, and informing all relevant subjects in Bosnia and Herzegovina on the results of the research; h) Acting on the submissions received with indications of a corruptive conduct pursuant to the applicable regulations; i) Coordination of the work of the institutions with public authorities in combating corruption; j) Monitoring the effects of laws and by-laws aimed at prevention of corruption and giving opinions and instructions regarding the implementation of the same, initiating activities in relations with changes and amendments of the existing legal solutions and their harmonization; k) Cooperation with national scientific and professional organizations, media and NGOs on the issue of prevention of corruption; l) Cooperation with international organizations, institutions, initiatives and bodies; m) Establishing and keeping data base gathered in accordance with this Law; n) Development of educational programs in terms of the prevention of the corruption and fight against corruption as well as the oversight on their implementation; o) Publication of the information on corruption; p) Informing relevant institutions and public about the obligations arising from international legal acts, and make recommendations for the implementation thereof in connection with the prevention of corruption; q) Regulates a unique methodology and directions for the integrity plans and provides assistance to all public institutions in implementing these plans; 280

r) And other duties in relation to the prevention of corruption.

Article 12 (Forms of Action)

In the performance of its responsibilities, the Agency passes anti-corruptive measures, recommendations and instructions, and gives opinions as well as the initiatives.

CHAPTER II. APPOINTMENT AND DISMISSAL OF THE AGENCY DIRECTOR

Article 13 (Agency management)

1) The Director manages the Agency. 2) The Director has a Deputy. 3) The Director represents the Agency, makes the annual work plan of the Agency as well as the budget proposal and addresses them to the regulated procedure. 4) The Director of the Agency manages and directs the job performance from the competency of the Agency, ensures legal functioning and expenditure of the means of the Agency. 5) Decides on rights, commitments and duties employed in the Agency in accordance with the Law. 6) Performs other duties and tasks in accordance with the Law.

Article 14 (Appointment of the Director and Deputy)

1) Parliamentary Assembly of Bosnia and Herzegovina appoints the Director upon the proposal of the Special Commission for appointment and oversight through a public vacancy notice in accordance with the Law on Ministerial Appointments, Appointments of the Council of Ministers and other Appointments of Bosnia and Herzegovina (Official Gazette of BiH ", no. 7 / 03). 2) The Director will be appointed for the period of five years with possibility of another mandate. 3) The Director will be selected out of a group of recognized experts in a certain field. 4) The Director of the Agency may be appointed person who, in addition to the general requirements for working in state institutions of BiH, has a university degree, minimum of five years of experience in managerial businesses in the appropriate field and high professional moral character. 5) Election of new director starts 6 months before the expiry of the mandate of the existing director 6) Provisions of the Law that pertain to the Director will be applicable to the Deputy Director as well.

Article 15 (Incompatibility with the position of Director)

1) The Director shall not perform any other functions - paid or unpaid - in economic societies, political party or NGO; should not be a shareholder or a stockholder in a

281

company under the oversight or be a member of a governing body, or control the company, directly or indirectly. 2) The Director of the Agency shall not be in any position in other public and private agencies, political parties, or perform any work in public domestic, international or local authorities. 3) The Director shall have a period of two months after his / her appointment to alleviate the reasons for that incompatibility there might be.

Article 16 (Dismissal of the Director)

1) Procedure for dismissal of the director will be initiated in these cases, if the same: a) resigns; b) be a subject of a confirmed indictment; c) performs the duty or functions that are not compatible with the position of the Director or if in any other way violates the provisions of incompatibility regulated in article 15 of this Law; d) Permanently looses the ability to perform his duty due to sickness or death; e) Violates the Code of Conduct of the Agency during the implementation of his duties. 2) Proposal to dismiss the Director in accordance with the Law will be submitted by the Commission for appointment and oversight

CHAPTER III. COMMISSION FOR APPOINTMENT AND OVERSIGHT OF THE AGENCY

Article 17 (Commission for appointment and oversight)

1) The Commission for appointment and oversight (here and after: Commission) consists of seven members, of whom three are appointed by the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina, two from the academic community, one representative of the NGO sector and one representative from the order of the distinguished citizens. 2) The Commission is to be appointed by the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina. 3) The Commission passes the Book of Rules on the work of the Commission. 4) Mandate of the members lasts four years. 5) Three months before the expiry of the term of appointed members of the Commission, one will initiate the process of appointment of new members by the competent institutions.

Article 18 (Competencies of the Commission)

(1) Commission has the following competencies:

a) Starts the procedure for appointment of the Director of the Agency b) Receives the report on work of the Agency minimum twice a year

(2) The Commission cannot involve in the every day work of the Agency or request information on individual case. (3) Meetings of the oversight council are open for the public.

282

Article 19 (Technical assistance to the Commission)

The professional administrative duties for the Commission from article 17 of this Law will be performed by the Agency.

CHAPTER IV. INTERNAL ORGANIZATION OF THE AGENCY

Article 20 (Book of Rules on the internal organization of the Agency)

(1) The Director with obtained agreement of the Council of Ministers of Bosnia and Herzegovina will pass book of Rules on the internal organization of the Agency.

(2) Code of Conduct of the employees in the Agency will be passed by the Director with the consent of the Council of Ministers

Article 21 (Labour-legal status of the employees)

(1) The incomes of the employees of the Agency are defined by the Law on Salaries and compensations in the institutions of BiH (“Official Gazette”No. 50/08 and 35/09). (2) The employees in the Agency at the professional jobs have the status of civil servants that the Law on Civil Service in the Institutions of Bosnia and Herzegovina applies to. ("Official Gazette", No. 12/02, 19/02, 8/03, 35/03, 4/04, 17/04, 26/04, 37/04, 48/05, 2/06, 32/07 and 43/09). Other employees in technical and support jobs are employees, to which the Labour Law of the institutions of Bosnia and Herzegovina applies ("Official Gazette", No. 26/04, 7/05 and 48/05).

CHAPTER V. COORDINATION OF THE POLICIES OF CORRUPTION PREVENTION

Article 22 (Obligation for policy development)

Entities and Brčko District in BiH will adopt and develop strategy for fight the corruption as well as the action plan in accordance with general principles that are laid out in the state strategy to fight the corruption.

Article 23 (Obligation to determine a body for prevention of corruption)

1) Entities and Brčko District in BiH may determine new or existing managerial structure that will be in charge of prevention of corruption, creation and implementation of the strategies for combating the corruption and the plans in that very entity. 2) These structures will closely cooperate with the Agency in order to timely ensure efficient implementation of coordinated policies for combating corruption.

CHAPTER VI: COOPERATION WITH OTHER BODIES AND ORGANIZATIONS

Article 24 (Mandatory Cooperation with Agency) 283

1) In carrying out tasks within its competence, the Agency cooperates with other institutions and agencies at all levels, public services and other bodies with public authorizations. 2) Institutions and agencies at all levels, public services and other bodies with public authority are required to cooperate with the Agency, and submit all the necessary data and information at the request of the Agency.

Article 25 (Public Relations)

1) In performing the duties and tasks, the Agency will continuously inform the public about all aspects of corruption. 2) The Agency shall publish report, analysis and other documents on the Agency's website or through other means of informing the public.

PART THREE – FINAL PROVISIONS

Article 26 (Sub-laws)

1) Within 90 days, the competent institutions will carry our necessary appointments and the establishment of bodies foreseen in this Law. 2) Within 90 days of the appointment, the Director of the Agency will pass the Book of Rules on internal organization as well as other by-laws.

Article 27

7.4.2.7.1 (Entry into the force)

This law shall come into force eight days after its publication in the Official Gazette of BiH, official gazettes of entities and Brcko District BiH, and will be published in the official gazettes.

************

284

ANNEX 7

285

ANNEX 8

Pursuant to the Article IV 4 a) of the Constitution of Bosnia and Herzegovina, the Parliamentary Assembly of Bosnia and Herzegovina- House of Representatives, at the 57th session on 8 July 2009 and at the 33rd session of House of Peoples on 23 July 2009 adopts

LAW ON PROHIBITION OF DISCRIMINATION

CHAPTER I: GENERAL PROVISIONS

Article 1 (Subject of the Law)

(1) This Law shall provide a framework for implementation of equal rights and opportunities to all persons in BiH and shall define a system of protection from discrimination.

(2) In compliance with the BiH Constitution and international standards related to human rights and fundamental freedoms, this Law defines responsibilities and obligations of legislative, judicial, executive authorities in BiH and legal persons and individuals with public authorities in BiH, (hereinafter “competent authorities in BiH”) shall ensure protection, promotion and creation of conditions for equal treatment.

Article 2 (Discrimination)

(1) Discrimination, in terms of this Law, shall be every different treatment including every exclusion, limitation or preference based on real or assumed features towards any person or group of persons on grounds of their race, skin colour, language, religion, ethnic affiliation, national or social origin, connection to a national minority, political or any other persuasion, property, membership in trade union or any other association, education, social status and sex, sexual expression or sexual orientation, and every other circumstance with a purpose or a consequence to disable or endanger recognition, enjoyment or realization, of rights and freedoms in all areas of public life.

(2) Prohibition of discrimination shall be applied to all public bodies, all natural and legal persons, in public and private sector, in all spheres, especially: employment, membership in professional organisations, education, training, housing, health, social protection, goods and services designated for public and public places together with performing economic activities and public services.

CHAPTER II: FORMS OF DISCRIMINATION

Article 3 (Forms of Discrimination)

286

(1) Every different treatment on grounds defined in Article 2, i.e. every action or failure to act when a person or a group of persons is put, has been or could be put into a less favourable position unlike some other person or group of persons in similar situations shall be considered to be direct discrimination.

(2) Every situation, in which, an apparently neutral provision, criteria or practice has or would have the effect of putting a person or group of persons into an unfavourable or less favourable position comparing to other persons shall be considered to be indirect discrimination.

Article 4 (Other Forms of Discrimination)

(1) Harassment shall be considered discrimination in every situation when behaviour is related to one of mentioned grounds from Article 2 that aims for or has an effect of harming person‟s dignity and creating intimidating, hostile, degrading, humiliating or offensive atmosphere.

(2) Sexual harassment shall be considered every form of unwanted verbal, non- verbal or physical behaviour of sexual nature which aims for or has effect of harming dignity of a person, especially when it creates fearful, hostile, degrading, humiliating or offensive environment.

(3) Mobbing shall be considered every form of non- physical harassment at working place with repetitive actions that have humiliating effect on a victim and aim for or has degradation of employee‟s working conditions or professional status as a consequence.

(4) Segregation shall be an act by which (natural or legal) person separates other persons on basis of one of the grounds given in Article 2 of this Law, in compliance with the definition of discrimination from the Article 2 of this Law

(5) Discrimination shall also be considered instruction to discriminate and assistance to others in discrimination.

(6) Incitement to discriminate. Every advocacy for national, racial or religious hatred shall represent an incitement to discriminate and shall be forbidden.

Article 5 (Exceptions from Principle of Equal Treatment)

Legal measures and actions shall not be considered discriminatory when reduced to unfavourable distinction or different treatment if based on objective and reasonable justification. Following measures shall not be considered discriminatory if they realize a legitimate goal and if there is a reasonable relation ratio of proportionality between means used and goals to be achieved and when:

a) They come out of implementation or adoption of temporary special measures designed to prevent or compensate damages that persons suffer and on grounds given in Article 2, especially members of vulnerable groups, like persons with disabilities, members of national minorities, women, pregnant women, children, youth, elders and other socially excluded persons, civilian victims of war, victims

287

in criminal proceedings, displaced persons, refugees and asylum seekers; i.e. to enable their full participation in all spheres of life;

b) They are based on features related to grounds given in Article 2 of this Law, when in limited circumstances, due to nature of concrete professional activities or context in which these are implemented, such feature represents real and defining condition in terms of choice of occupation. This exception shall be a subject to occasional examinations;

c) They are based on distinction, exclusion or giving advance in relation to employment as a staff member of an institution that is done in compliance with doctrines, basic presumptions, dogmas, beliefs or learning of actual confession or religious,, having in mind that every distinction, exclusion or giving advance is done consciously in order not to hurt religious feelings of members of that confession or religion;

d) They define maximum age as the most appropriate for terminating working relation and determine age as a condition for retirement;

e) They are based on citizenship in a way prescribed by the Law;

f) They are based on realization of reasonable accommodation aiming to ensure the principle of equal treatment in relation to persons with disabilities. Employers shall, based on needs in a concrete case, take appropriate measures, in order to enable a person with disability to access, participate or to be promoted, i.e. to participate in training, if such measure do not represent an unreasonable burden for the employer;

g) Putting into a less favourable position while defining rights and obligations from the family relation when defined with the Law, and especially in order to protect rights and interests of children, which has to be justified with la egitimate purpose, protection of public moral, along with favouring marriage in accordance with provisions of the family laws.

h) When establishing an employment relation, membership, and taking actions that are in compliance with preaching and operating of registered churches and religious communities in BiH, and other public or private organisations working in accordance with the Constitution and laws, if demanded by religious doctrines, beliefs or goals.

CHAPTER III: PROTECTED RIGHTS

Article 6 (Scope of Application)

(1) This Law shall apply to actions of all public bodies at the level of the state, entity, canton and Brcko District of BiH, municipal institutions and bodies, and legal persons with public authorities, as well as to the action of all legal and natural persons, in all spheres of life, but especially in the following fields:

288

a) Employment, work and working conditions, including access to employment, occupation and self-employment, working conditions, remuneration, promotions and dismissals; b) Education, science and sports. Access to education should not depend on imigration status of children or their parents; c) Social protection, including social insurance, social benefits, social assistance (housing allowances, allowances for youth, etc.) and ways of treating social protection beneficiaries; d) Health protection including access to care and treatments, in relation to ways of providing care and treatment of patients; e) Trainings, including initial trainings and continuous professional training, all sorts and all levels of professional trainings, advanced professional trainings, additional qualifications and requalification, including gaining practical working experience; f) Judiciary and administration, including activities of police and other law enforcement officers, border control officers, military and prison staff. Concretely, all persons shall be equal before courts and tribunals; g) Housing, including access to housing, housing conditions and termination of a lease contract; h) Public information and the media; i) Membership in professional organizations, including membership in organizations of employers or employees or any other organization whose members perform certain vocation; involvement in such organizations and benefits given by these organizations; j) Goods and services designated to public and public places, including, e.g. when purchasing goods in a shop, submitting an application for a loan in a bank and in relation to access to discotheques, coffee shops and restaurants; k) Performing entrepreneurship, including law on market competition, relations between companies, and relations between companies and the state; l) Participation in cultural and art creations;

(m) Equal participation of all citizens in public life;

(n) Families, while marital partners shall enjoy full equality of rights and responsibilities in relation to marital community, during marital community and divorce, including rights and responsibilities in raising children, in accordance with provisions of the Family Law;

(o) Rights of a child, including measures of protection needed according to their status of minors, by their families, society and the state.

289

CHAPTER IV: COMPETENT INSTITUTIONS FOR PROTECTION FROM DISCRIMINATION

Article 7

(Central Institution for Prevention of Discrimination)

(1) Central institution competent for protection from discrimination is the Ombudsman for Human Rights of Bosnia and Herzegovina (hereinafter: BiH Ombudsman).

(2) Within its competences, the BiH Ombudsman shall have the competence to:

a) Receive individual and group complaints related to discrimination;

b) Provide needed information to natural and legal persons who filed a complaint for discrimination about their rights and obligations, and possibilities of judicial and other forms of protection;

c) The BiH Ombudsman may decide not to accept a complaint or to initiate an investigative procedure;

d) Propose initiation of process of mediation in compliance with provisions of the Law on Mediation;

e) Collect and analyze statistical data on discrimination cases;

f) Deliver annual and if necessary extraordinary reports on discrimination to the Parliamentary Assembly of BiH, FBiH Parliament, RS National Assembly and Brcko District Assembly;

g) Inform public on discrimination manifestations;

h) Conduct surveys in the field of discrimination on its own initiative;

i) Give opinions and recommendations aiming to prevent and combat discrimination, and suggest appropriate legal and other solutions to the competent Institutions in BiH;

j) Have the right to initiate and participate in a proceedings for protection from discrimination for misdemeanours prescribed by this Law;

k) Monitor legislations and provide advices to legislative and executive bodies;

l) Raise awareness on issues related to racism and racial discrimination in society;

m) Improve policy and practices aiming to ensure equal treatment.

(3) When developing regular reports, opinions and recommendations on discrimination manifestations, the BiH Ombudsman shall cooperate with civil society organizations dealing with protection and promotion of human rights and organizations dealing with protection of groups at high risk of discrimination. 290

(4) The Ombudsman of BiH shall provide assistance to persons or groups of persons addressing international bodies for protection from discrimination providing them with guidelines, advices, consultations during a procedure, proposals and recommendations. (5) In order to exercise its competences, BiH Ombudsman shall establish a special department that would exclusively consider cases of alleged discrimination related to actions of public bodies at the state level, entities, cantons and Brcko District of BiH, municipal institutions and bodies, and legal persons with public authorities, as well as actions of all legal and natural persons, in all spheres of life. The budget of the BiH Ombudsman shall have a special budget line necessary for functioning of a special department/ special departments for combating discrimination. (6) All state, entity and cantonal institutions, and Brcko District of BiH bodies, municipal institutions and legal persons, with public authorities, and all other legal and natural persons shall be obliged to deliver, upon a request from the BiH Ombudsman, requested data and documents within 30 days as of the day when a request is received. (7) Competent institutions in BiH shall be obliged to cooperate with the BiH Ombudsman and deliver their responds and notifications in written within the deadline defined by the BiH Ombudsman and report on efficiency of recommendations given in order to end discrimination.

Article 8 (Records Keeping and Coordination of Competent Bodies)

(1) Competent institutions in BiH shall be obliged to regularly keep records of all reported cases of discrimination and to deliver collected data to the Ministry for Human Rights and Refugees.

(2) In accordance with its competences defined by the law, Ministry for Human Rights and Refugees shall be obliged to, based on collected data on manifestations and scope of discrimination, to produce a report for the Council of Ministers of BiH at least once a year, and special reports containing proposal of measures for prevention and suppression of manifestations of discrimination in Bosnia and Herzegovina.

(3) The Ministry for Human Rights and Refugees shall be obliged to report, through the Council of Ministers, to the BiH Parliamentary Assembly about manifestations of discrimination and with regards to that, propose concrete legislative or other measures.

(4) In line with provisions of this Article, special records shall be established in legislative, executive and judicial bodies for the purpose of registering cases of discrimination determined in criminal, civil, non-litigation and enforcement proceedings.

(5) Central database for committed acts of discrimination shall be established in the Ministry for Human Rights and Refugees.

(6) The Ministry for Human Rights and Refugees shall issue a Rulebook on methods for collection of data on cases of discrimination in Bosnia and Herzegovina within 90 days after the Law enters into force, that shall define content and form of a questionnaire for

291

collecting data on cases of discrimination and other issues related to procedure for collecting necessary data.

Article 9 (Monitoring)

Ministry for Human Rights and Refugees shall monitor the implementation of the Law.

Article 10 (Cooperation with Civil Society Organizations)

While developing reports, preparing laws, strategies and other plans related to situation in human rights and discrimination issues, all competent authorities shall be obliged to cooperate with civil society organizations dealing with protection and promotion of human rights, and protection of rights of persons and groups of persons exposed to a high risk of discrimination.

CHAPTER V: PROCEEDINGS FOR PROTECTION FROM DISCRIMINATION

Article 11 (Protection in Existing Proceedings)

(1) Every person or group of persons who consider to be discriminated shall be able to seek protection of his/ her rights through existing judicial and administrative proceedings.

(2) In cases when a violation of a right to the equal treatment comes out of an administrative decision, appeal in administration proceeding and eventual initiation of an administrative dispute based on protection from discrimination, requesting annulment of such administrative decision, shall not prevent a person from paragraph 1 of this Article to initiate a judicial proceeding for protection from discrimination.

(3) All concrete claims given in Article 12 of this Law, as individual or joint, can be requested in order to submit a lawsuit in civil proceeding.

Article 12 (Special Lawsuits for Protection from Discrimination)

(1) A person or group of persons exposed to any form of discrimination in accordance with provisions of this Law, shall be authorized to submit a lawsuit and claim: a) To determine that a respondent violated a plaintiff‟s right to equal treatment i.e. that the action s/he undertaken or failed to undertake can directly lead to violation of a right to equal treatment (lawsuit for determining discrimination); b) To prohibit undertaking actions that violate or can violate plaintiff‟s right to equal treatment, i.e. to perform actions to remove discrimination or its consequences (lawsuit for prohibiting or ending discrimination);

292

c) To compensate material and non-material damage caused by violation of rights protected by this Law (lawsuit for compensation); d) To publish a verdict which finds a violation of the right to equal treatment on the expense of the respondent, in case when discrimination is committed through media (printed and electronic), i.e. any form.

(2) Court and other bodies conducting proceedings are obliged to take urgent actions in proceedings, ensuring that all claims about discrimination are investigated as soon as possible.

(3) When all claims are based on the same factual and legal ground, claims can be submitted cumulatively in a single lawsuit which shall be decided in a civil law proceedings, if these claims are mutually connected and if the same court has subject matter jurisdiction for every of these claims.

(4) Claims, referred to in paragraph 1 of this Article shall be decided by a competent court through application of provisions of the laws on civil proceedings being applied in BiH, unless stipulated otherwise by this Law.

Article 13 (Competences, Deadlines and Execution)

(1) If not prescribed differently with this Law, and in compliance with the laws on courts in both Entities and BiH Brcko District, courts having general territorial jurisdiction are competent for disputes upon a lawsuit from Article 12 of this Law in first and second instance.

(2) Revision shall be always allowed in proceedings prescribed by Article 12 of this Law.

(3) Competent court may decide, on grounds of the lawsuits from Article 12, paragraphs b) and d), that appeal does not stay the enforcement or determine shorter deadline for taking action ordered to a respondent.

(4) Deadline for submitting the lawsuit referred to in Article 12 of this Law is 3 months after finding about violation of a right and latest one year as of the day a violation was committed. Deadline for submitting a request for revision is 3 months as of the day when second-instance judgement was delivered.

Article 14 (Temporary Safety Measures)

A court may determine a temporary measure in proceedings from Articles 11 and 12, according to provisions of the laws on civil proceedings that are applied in Bosnia and Herzegovina.

Article 15 (Burden of Proof)

293

(1) In cases when a person or group of persons provide facts in proceedings from Article 12 of this Law, corroborating allegations that prohibition of discrimination is violated; alleged offender shall have a duty to prove that the principle of equal treatment or prohibition of discrimination has not been breached.

(2) In cases when a person considers that s/he suffered consequences of discrimination, as an evidence for realization of the right from paragraph 1 of this Article, statistical data or database can be used.

(3) In cases when a person considers that s/he suffered consequences of discrimination due failure of reasonable accommodation, burden of proof lies with the respondent.

Article 16 (Participation of Third Persons)

(1) During proceedings, in accordance with the claims referred to in Article 12 of this Law, a third party can join a person or group of persons claiming to be victims of discrimination in the capacity of a body, organization, institution, association or other person whose scope of activities includes protection from discrimination of persons or group of persons whose rights are being decided upon within the proceeding.

(2) The court shall allow participation of a third party only with consent of a person in whose case the third party wants to intervene.

(3) Regardless of the outcome of the proceedings, the third party shall cover its expenses for participation in the civil proceedings.

Article 17 (Collective Lawsuit for Protection from Discrimination)

Associations, bodies, institutions and other organizations established in compliance with appropriate regulations, and have a justified interest for protection of interest of a certain group, or they deal with protection from discrimination of a certain group of persons in scope of their activities, can file a lawsuit against a person who violates the right to equal treatment, if it is probable that acting of respondent violates the right to equal treatment of a larger number of persons largely belonging to a group whose rights are protected by a plaintiff.

Article 18 (Protection of Persons who Report Discrimination or Participate in Proceedings)

A person who reported discrimination or participated in legal proceedings for protection from discrimination shall suffer the consequences of such report or participation.

CHAPTER VI: PENAL PROVISIONS (MINOR OFFENCE PROVISIONS)

Article 19 (Violation of Article 2, paragraph 2 of the Law)

294

(1) A legal person who puts a person or a group of persons into a less favourable position on grounds given in Article 2 (Discrimination), paragraph (1), in a way described in Article 3 (Forms of Discrimination) and Article 4 (Other Forms of Discrimination) of this Law, shall be fined for minor offence with 1,500 to 5,000 KM. (2) A responsible person in state, entity and cantonal institution, Brcko District body, municipal institutions, legal person with public authorities and other legal person shall be also fined for minor offence from paragraph (1) of this Article in the amount of 7,000 to 1,500 KM. (3) A natural person shall be fined with 550 to 1,500 KM for a minor offence paragraph (1) of this Article. (4) If a minor offence from paragraph (1) of this Article is conducted by failure to act upon Ombudsman‟s recommendation, a legal person shall be fined with 2,500 to 6,500 KM, and a responsible person in the legal person or a natural person shall be fined with 1,000 to 3,000 KM. (5) If a minor offence from paragraph (1) of this Article is conducted by failure to act upon a warrant of a court, a legal person shall be fined with 3,500 to 10,000 KM and a responsible person in a legal person or a natural person shall be fined with 2,000 to 5,000 KM. Article 20 (Violations of Article 7, paragraphs 6 and 7 of the Law)

(1) A legal person shall be fined with 1,000 to 5, 000 KM for a minor offence, if: a) it does not deliver data or documents upon the Ombudsman‟s request, i.e. if it does not deliver them within prescribed deadline, and does not allow access, contrary to Article 7 (Central Body for Protection from Discrimination), paragraph (6) of this Law; b) It does not cooperate with the Ombudsman and does not provide responds or notifications in written, i.e. does not inform about effect of recommendations given in order to end discrimination, contrary to Article 7, paragraph (7) of this Law.

(2) For minor offence from paragraph (1) of this Article, a responsible person in a state, entities‟ and cantonal institution, Brcko District body, municipal institution, legal person with public authorities and in another legal person, shall be fined with 500 to 1,500 KM.

(3) For minor offence from paragraph (1) of this Article a natural person shall also be fined with 450 to 1,000 KM.

Article 21 (Violation of Article 18)

(1) A legal person that puts into a less favourable position a person who has reported discrimination in good faith or a person who has participated in a proceeding for protection from discrimination in every way, based on reporting discrimination or participation in a proceeding, contrary to Article 18 (Protection of persons who report discrimination or participate in proceedings) of this Law, shall be fined for minor offence with 1,000 to 10,000 KM.

(2) A responsible person in state, entity and cantonal institution, Brcko District body, municipal institution, legal person with public authority and other legal person, shall be fined for minor offence from paragraph (1) with 1,000 to 3,500 KM.

295

(3) A natural person shall also be fined for minor offence with 700 to 2,000 KM for a misdemeanour from paragraph (1) of this Article.

(4) A responsible person in a legal person, intentionally commits minor offence from paragraph (1) of this Article, shall be fined with 2,000 to 7,000 KM, and if a natural person intentionally commits misdemeanour, a natural person shall be fined with 1,500 to 4,000 KM.

Article 22 (Measures of Protection)

(1) For minor offences prescribed by the Law, measures of protection of seizure of goods and prohibition of a certain professional activity, business activity or duty, may be declared.

(2) Protective measures of seizure of goods shall be obligatory every time when a minor offence is committed through use of these objects, i.e. if use of objects has been designated to commit minor offence or objects have been created for committing minor offences.

Article 23 (Publishing Minor Offence Decision)

Decision on a minor offence prescribed by this Law shall be published in all media available at the whole territory of Bosnia and Herzegovina.

CHAPTER VII: TRANSITIONAL AND FINAL PROVISIONS

Article 24 (Harmonization of other Regulations with this Law)

This Law shall be applied in cases of incompliance of other laws with this Law within the proceedings based on this Law.

All laws and general regulations shall be harmonized with provisions of this Law within a year after this law enters into force.

This Law does not prejudice provisions and conditions determined in international treaties and agreements with religious communities, which do not interfere with their working, normative and organizational autonomy and the principle to fully exercise the right to religious freedoms and expression. Article 25 (Entering into Force)

This Law shall enter into force on the eight day from the day of its publication in the “Official Gazette of Bosnia and Herzegovina”.

PA BiH, No. 405/09 23 July 2009 Sarajevo 296

ANNEX 9 Bosnia and Herzegovina Chief Prosecutor Report

No.: A- 137/09 Sarajevo, 18.09.2009

BOSNIA AND HERZEGOVINA COUNCIL OF MINISTERS INTERGOVERNMENTAL WORKING GROUP OF THE COUNCIL OF MINISTERS TASKED WITH NEGOTIATIONS WITH EUROPEAN COMMISSION ON LIBERALIZATION OF VISA REGIME

SARAJEVO Trg BiH NO.1

Subject: Plan of remaining activities required for the Road map for liberalization of visa regime for BiH nationals pursuant to the European Commission report dated June 8, 2009 and the Annex EC letter dated July 15, 2009 – BiH Prosecutor's Office Report

In accordance with the meeting held, the BiH Prosecutor's Office commenced with the analysis of the results achieved in undertaking continuous activities of the Prosecutor's Office on ensuring efficient combat against organized crime, prosecution of corruption among high level officials, police and judicial cooperation as well as cooperation of all levels of authorities in terms of combating crime and professional training of Prosecutors and other Prosecutor's Office employees working on criminal cases out of the BiH Prosecutor's Office jurisdiction.

Within the framework of the Plan of remaining activities required for the Road map for liberalization of visa regime for BiH nationals pursuant to the European Commission report dated June 8, 2009 and the Annex EC letter dated July 15,2009 the BiH Prosecutor's Office delivers the following data:

1.Efficient investigations, indictments and criminal convictions for organized crime with a review of cooperation of various levels of authorities in combating organized crime in Bosnia and Herzegovina as well as international cooperation in combating organized crime.

Table 1 - Statistics on criminal offenses of organized crime for the time period from January 1 to September 15, 2009.

297

REPORT ING PERIOD 01.01.2009.-15.9.2009 2. Orders to 1.Received reports conduct an 3.Indictments issued 4. Convictions Criminal Code of investigation BiH, Articles Persons Persons Persons Persons Report involved Report involved Report involved Report involved

250-189 2 39 3 26 1 7 4 20 249-189 0 0 0 0 0 0 2 1 250-195 4 21 2 13 2 17 1 2 250-195-209 1 22 1 27 0 0 0 0 250-205 1 3 2 6 1 3 0 0 250-220 2 45 2 40 0 0 0 0 249-226-217 0 0 1 4 0 0 0 0

250-209 0 0 1 10 0 0 0 0

249-209 0 0 0 0 0 0 1 3

249-214 1 5 0 0 0 0 0 0

250-207 1 1 0 0 0 0 0 0

TOTAL 12 136 12 126 4 27 8 26

In order to ensure efficient investigations resulting with indictments the Prosecutor's Office of Bosnia and Herzegovina as the institution conducting investigations pursuant to the Laws of Bosnia and Herzegovina i.e. Its Special Department for Organized Crime, Economic Crime and Corruption has formed Prosecutorial teams which involve Prosecutors who lead the investigation, their associates and Investigators. These teams then connect with teams of a specific Law Enforcement Agency depending on the type of the case in progress. When dealing with cases which, during the course of investigation, result in a number of apprehensions (organized criminal group members deprived of liberty) a number of Prosecutorial teams invests joint efforts aiming to ensure efficient, timely and lawful completion of the investigation in compliance with all international conventions relative to persons deprived of liberty.

In the first nine months of this year we may emphasize the joint investigation conducted with Special Prosecutor's Office for Organized Crime of the Republic of Serbia. The investigation was aiming to uncover an organized criminal group operating in the territory of several countries, which dealt with illicit drug trafficking, extortion, organization and preparation of assassinations and violent robberies. This investigation has clearly indicated progress in cooperation of the two states and thus indisputable trust and capacity building in detection and criminal prosecution of the most complex forms of organized crime in this part of Europe. One of the most significant results of this investigation is certainly the uncovery of a certain number of police officers, who were actively involved in the activities of this criminal organization and who abused their office, functions and authorities by contributing to perpetration of criminal offenses that this criminal group was suspected of. This has clearly demonstrated the willingness of the judicial institutions of Bosnia and Herzegovina to deal with such forms of organized crime and corruption of police officials, as well as the 298

willingness of police agencies to cooperate in such cases thus contributing to strengthening of public trust in performance of judicial and police institutions of Bosnia and Herzegovina

It is important to point out that in 4 cases where the indictments were issued for criminal offense of Organized Crime under Article 250 in conjunction with criminal offenses of Illicit Drug Trafficking under Article 189 of the BiH Criminal Code the progress in cooperation of the BiH Prosecutor's Office with the Prosecutor's Offices from the neighboring countries as well as EU countries can clearly be noted. With these four indictments four international chains of drug trafficking, which were mainly following the route from Turkey through Albania, Serbia, Bosnia and Herzegovina and Croatia and from thereon towards the Western Europe, were broken. A small amount of narcotics would remain in Bosnia and Herzegovina while the majority would be forwarded further towards the Western Europe.

These four indictments were issued against 23 persons; some were indicted as organizers and some as members of a criminal enterprise. A total of 300 kg of intoxicating drug “marijuana” and 4,5 kg of „heroin“ were seized.

Apart from these indictments another indictment was issued against an organized group which smuggled counterfeited Euro bills in denominations of 100 Euro from Serbia. The total amount seized was 100.000,00 Euro. This operation was undertaken in cooperation with the criminal prosecution institutions of Republic of Serbia which continued its work based on initial findings and uncovered the members of this criminal group who were residing in the territory of Serbia. Europol participated in this operation as well.

As far as the illegal property gain is concerned the BiH Prosecutor's Office proposed that the illegally acquired property (proceeds of crime) be forfeited in all of the indictments totaling to 150.000,00 KM.

2. Effective results in high level corruption cases.

Table 2- Statistics on criminal offenses of corruption and abuse of office and authority for the time period from January 1, to September 15, 2009.

217-BIH 1 1 0 0 0 0 1 1

218-BIH 1 1 1 1 1 1 0 0

219- BIH 0 0 1 1 1 1 0 0

220 -BIH 17 30 4 7 1 2 1 2

224-BIH 1 11 0 0 0 0 0 0

299

358-FBIH 0 0 1 1 1 2 0 0

347- RS 1 15 1 9 0 0 0 0

TOTAL 21 58 8 19 4 6 2 3

3. Police – Prosecutor cooperation and training aiming to improve knowledge on property confiscation, financial investigation, economic crime and police-prosecutor cooperation.

The establishment of the new system of criminal prosecution has created the need for training of the Prosecutors and Judges, as well as police agency officials about the methods of work and cooperation within the new, reformed judicial system.

BiH Prosecutor's Office, the High Judicial and Prosecutorial Council, Police agencies and EU Police Mission in BiH have recognized that need, therefore the HJPC BiH and EUPM, supported by other donors, have organized the activities aiming to improve the cooperation between the police and prosecutors.

When it comes to activities on improvement of cooperation between the police and prosecutors it is important to emphasize that the activities developed in two directions. One through the „Establishment of the enhanced mechanisms of cooperation between the police and prosecutor's offices in BiH” project and the other through continuous coordination meetings of BiH Police Agency Directors, Chief Prosecutor of the BiH Prosecutor's Office and the representatives of BiH Ministry of Security.

During these activities a number of working meetings, workshops and conferences were held that related to certain segments of police and prosecutor's offices work. A good part of those commenced or lasted throughout 2009.

The aim of the „Establishment of the enhanced mechanisms of cooperation between the police and prosecutor's offices in BiH“ was to ensure better cooperation between police and prosecutor‟s offices by drafting new and harmonizing the existing bylaws, establishment of continuous joint training programs for the police and prosecutors, harmonizing statistics and

300

records and by drafting a feasibility study for the development of a system of criminal and other records that would be available to the police and prosecutors.

The result of this project achieved in the above mentioned period in 2009 is the Adoption of the Instruction regulating the procedures of and cooperation between the police officials and prosecutors in conducting actions aimed at obtaining evidence during the course of investigation as well as the supporting forms facilitating the communication between the police and prosecutors, drafted proposal of the Agreement on joint training of police and prosecutors, Book of Rules governing the performance of the working body tasked with implementation of the agreement in question, drafted training curriculum and planned seminar programs for trainers from the police and prosecutor's offices, drafted forms for harmonization of records and statistics and the process of drafting feasibility study-overview- analysis of the current legal, institutional, organizational and technical capacities of BiH to ensure quick access to criminal and other records for the police and prosecutor's offices. As it was previously mentioned the other aspect in terms of improvement of cooperation between the police and the prosecutor's offices was aimed to improve direct cooperation in everyday performance, as well as to assist resolve issues related to lack of forms, data exchange etc.. This other aspect understood a number of coordination meetings of BiH Police Agency Directors with the Chief Prosecutor of the BiH Prosecutor's Office as well as representatives of BiH Ministry of Security. These meetings were/are organized with the assistance and support of ICITAP and the Embassy of the United States of America in BiH. At the aforementioned meetings the management of the prosecutor's offices and the police, along with other relevant experts in the area, attempted to overcome the existing problems and to find solutions for them.

The core topics of these meetings were as follows:

 improvement of cooperation in undertaking of special investigative actions,  establishment of uniform criminal records available to police and prosecutor's offices.  strengthening the capacities and professional training in the area of corruption and money laundering,  efficient prevention and detection of criminal offenses of illegal migration and human trafficking.

During these joint meetings and conferences some practical workshops were held where the prosecutors and police officers analyzed various possibilities of action on concrete case studies.

In 2009, a number of conferences devoted to data exchange between the police agencies, better everyday cooperation and exchange of documents, establishment of uniform forms for reporting on specific police actions, better and more efficient performance on detection of criminal offenses of money laundering, prevention of human trafficking, illegal migration and corruption were held.

It is important to mention the conference that was held in Banja Luka in June 2009, where the issue of finalization of the missing legal documents related to communication between police and prosecutor's offices as well as possibilities of establishment of joint criminal 301

records that would allow access to both the police agencies and prosecutor's offices, were discussed. By recognizing the problem in the fact that some relevant state bodies are missing as well as the Strategy to combat corruption at a coordination meeting held in Neum on September 2/3, 2009, the participants begun analyzing the possible models of documents to help establish the required state level bodies to combat corruption in the territory of Bosnia and Herzegovina. It is important to emphasize that the Draft Law on Agency for prevention of corruption was considered at the coordination meeting held on September 14, 2009 in Sarajevo in the premises of the meeting organizer - the BiH Prosecutor's Office. These meetings have also resulted with significant progress in terms of establishment of a mechanism for direct cooperation of police agencies, ways to draft the required bylaws for the improvement of cooperation as well as uniform forms for the evaluation of police officials. Apart from the aforementioned activities aiming to improve cooperation between the police and prosecutors, the Prosecutors of the BiH Prosecutor's Office have often attended other working meetings, conferences and professional trainings organized by both the relevant BiH institutions and the competent institutions of other countries. The Prosecutors of the BiH Prosecutor's Office have often (an in the time period listed bellow) participated in various training on property confiscation, financial investigation, economic crime and other related areas organized by competent domestic and international institutions.

The following list provides an example of some of meetings, conferences and trainings attended:  “Establishment of better mechanisms of cooperation between the police and prosecutor‟s offices in BiH”, March 30-31, 2009 and May 26-27, 2009 in Sarajevo,  “Economic crime and criminal offenses against businesses and security of payment transactions”, May 20, 2009. in Sarajevo,  “Criminal offences of Bribery and Abuse of Office and Authority (criminal offenses of corruption and organized crime)” September 1, 2009 in Sarajevo,  “Managing forfeited property”, February 19-20, 2009 in Sarajevo,  “Brokerage and stock market trading”, March 11, 2009 in Sarajevo,  “Criminal offenses of terrorism – terrorism financing”, January 28 – 29, 2009 in Sarajevo  Conference – meeting at SECI Center – Organized Crime - combating OC through specialized units ( Bucharest September 22– 23, 2009)  Conference – Creating Conditions for Sustainable Economic and Social Development in Eastern Europe and Central Asia: Fighting Corruption and Promoting Good Governance (Kazakhstan September 16, 2009),  Conference – Combating human trafficking in Western Balkans (Tirana September 10- 11, 2009),  Forum for Prosecutors on the fight against organized trans-border Crime (Salzburg August 30 – September 2, 2009),  Joint training of police and prosecutors (May 08-09, 2009),  Conference – Building integrity and reducing corruption in the security sector ( Zagreb May 18-20, 2009),

302

 Meeting of the Prosecutor's Network in South-Eastern Europe (Zagreb April 28-29, 2009).

Planned for:

 Conference – Facing the Challenges of Organized and Serious Crimes in the Western Balkans – Strengthening Regional and Transnational Co-operation as a Prerequisite for Successful Criminal Proceedings (Belgrade September 28-29, 2009),  Conference – Regional Conference on the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters (Tirana September 21 – 23, 2009),

To conclude we would like to again express our willingness to participate in the implementation of the activities required to meet the conditions of the Road map aiming to accelerate inclusion of Bosnia and Herzegovina in the European integration process.

CHIEF PROSECUTOR PROSECUTOR'S OFFICE OF BIH

Milorad Barašin

303

ANNEX 10

I N F O R M A T I O N On the situation in the Institution of Human Rights Ombudsman for Bosnia and Herzegovina

I. Introduction

The Institution of Human Rights Ombudsman for Bosnia and Herzegovina (BiH) is established by Agreement on Human Rights (Annex 6 of General Framework Agreement for Peace in BiH) as a part of BiH Human Rights Commission consisted of Human Rights Ombudsman and Human Rights Chamber. The Law on Human Rights Ombudsman for BiH, which was imposed by the High Representative for BiH in 2000 and adopted by the Parliamentary Assembly as legislative body of BiH in 2002, defines issue of jurisdiction and functioning of BiH Ombudsman Institution with a view to ensure effective functioning of human rights and fundamental freedoms protection mechanism as guarantied by the Constitution of BiH and international treaties appended to it.

For the purpose of following up of the situation of human rights in BiH and in accordance with articles 34 and 35 of the Law on Human Rights Ombudsman for BiH (“Official Gazette of BiH”, no.: 32/00, 19/02 and 32/06), on annual basis BiH Ombudsmen are to report on achieved results of their activities in the reporting period and to submit the report to the Presidency of BiH, the House of Representatives and the House of Peoples of the Parliamentary Assembly of BiH, the Parliament of the Federation of BiH and the Peoples Assembly of the Republic of Srpska, indicating number and nature of received complaints, non-admissible complaints and also indicating reasons for non-admissibility, and indicating those that were subject to investigation and findings reached following investigations conducted. In its report Ombudsmen Institution may highlight those proposals and recommendations that are accepted by the Government.

Having in mind above mentioned legal obligations and also having in mind the situation happened to exist in BiH Ombudsman Institution (the Institution), and due to lack of relevant information on the situation in the area of human rights protection in 2008, instead of the Report newly appointed BiH Ombudsmen114 prepared Information on the Situation in the Institution (the Information). Methodologically, the Information is designed to present:

a) situation happened to exist in the Institution on the date of taking over of the office (23 December 2008),

114 By decision of the Parliamentary Assembly of Bosnia and Herzegovina, no. PSBIH 275/08 of 4 December 2008, Mr. Ivo Bradvica, Mrs. Jasminka Džumhur and Mr. Ljubomir Sandić are appointed for BiH Ombudsmen. 304

b) measures undertaken with a view to eliminate determined obstacles for effective functioning of the Institution,

c) situation in the Institution at the time of preparation of the Information.

II. Situation Happened to Exist in the Institution

2.1. Ombudsmen Constitutive Session

By decision of the Parliamentary Assembly of Bosnia and Herzegovina, no. PSBIH 275/08 of 4 December 2008, Mr. Ivo Bradvica, Mrs. Jasminka Džumhur and Mr. Ljubomir Sandić are appointed for BiH Ombudsmen. They held their Constitutive Session on 15 December 2008 and took Decision on Creation of the Commission for Handover of the Duties. At that moment the status of former Ombudsmen was as follows: Mr. Vitomir Popović resigned on 31.08.2008, Mr. Mariofil Ljubić was on his complete annual leave for 2008 according to paper issued on 3 December 2008, while Mr. Safet Pasić happened to be in the Institution.

2.2. Handover of the Duties

Since the existing situation at that time did not enable direct handover of the duties from former Ombudsmen to newly appointed ones, newly appointed Ombudsmen took over the duties on the basis of the situation determined by the Commission which was appointed at the Constitutive Session of 15 December 2008.

Through Decision on Creation of the Commission for Handover of the Duties, BiH Ombudsmen decided that the Commission should prepare information containing the following: staffing, accommodation, technical equipment, legal provisions, financial situation, current reserves, list of seals and stamps and other relevant issues related to the work and actions of the Institution.

2.2.1. Staffing

Since the Institution, following transformation from the international to domestic human rights institution at the end of 2003, never adopted the Rules on Internal Organization and Systematization it was difficult to have real picture regarding staffing. At the moment of handover the Institution happened to have 26 employees out of which there were:  7 bachelors of law-trainees and 1 trainee-translator employed for some time (3 in Banja Luka office, 4 in Sarajevo office and 1 in Brčko office);  2 bachelors of law employed for some time in Banja Luka office;  1 bachelor of law in Sarajevo office;  rest of employees were mainly responsible for administrative and professional issues out of which only two were of higher education. Out of these 14 employees 2 happened to work in District Brčko office, 5 in Sarajevo office, and 7 in Banja Luka office (one of them employed for some time). Mostar office was never established, although it was a legal obligation stipulated by article 1, paragraph 2, of the Law.

305

Personal files of the employees were not established in conformity with the Law, accountant and financial operations were performed by persons employed on the basis of contracts of work and the employees were assigned and posted on working posts without existence of the Rules on Internal Organization and Systematization, which impacted process of determination of coefficients and salary grades, that is, scheduling of the employees in salary grades in accordance with the Law on Wages and Salaries in the Institutions of Bosnia and Herzegovina (“Official Gazette of BiH”, no. 50/80). Long-term confusing situation in the Institution led to rapid erosion of qualified personnel, which resulted in the fact that District Brčko office was ran by a bachelor of law.

2.2.2. Location of the Institution

BiH Ombudsmen Institution is located in three offices:

 Sarajevo office at the address Marsala Tita 7/II;  Banja Luka office at the address Slobodana Kokanovića 7;  Brčko office at the address Trg mladih 8/1;  Mostar office has never been opened and is not planned in the budget of the Institution for 2009.

2.2.3. Technical equipment of the Institution

Based on insight of inventory lists of 31.12.2008, including visual assessment of technical equipment of the Institution, it may be concluded that the situation is far below minimal requirements necessary to ensure functioning of the Institution. This statement is supported by the fact that since 2005, when two cars were bought, there were no significant investments in basic means of work, which particularly applies to technical equipment. The employees mainly work on old and depreciated computers, which requires almost day-to-day repair, and which is a heavy financial burden for budgetary item related to contractual services. The budget for 2009 envisages minimal resources for procurement of basic means of work in amount of 6,000.00 KM. Having recognized this segment as one of crucial issues for organization and functioning of BiH Ombudsmen Institution as an effective and independent human rights institution, the European Commission, through its IPA funds fore 2007, approved resources in amount of EUR 250,000.00 for procurement of equipment necessary for functioning of the Institution. Unfortunately, slow and complicated procedures applied by the European Commission, related to procurement of the equipment, resulted in quite unfavorable position of the Institution since it can not seek for resources from other sources for procurement of the equipment because European Commission has already approved resources for this purpose. However, the procedure of making approved resources operational is very lengthy and complicated. To illustrate the state of the equipment of the Institution, allege that the current value is: (a) furniture 7,36% of its cost; (b) computer equipment 16,85%; (c) communication equipment (telephones, etc.) 20%. If the vehicles are excluded from total (two cars are bought in 2005), current value of the equipment is 12,65% of its procurement cost.

306

2.2.4. Legal and other regulations

2.2.4.1. Legislation a) the Law on the Ombudsmen

The basic act establishing the issue of functioning and work of the Instituion is the Law on BiH Ombudsmen (“Official Gazette of BiH”, no. 32/00, 19/02, 34/05 and 32/06), which was for times amended since its adoption, however, clarified text has never been produced and which aggravates and makes complicated its application. In principle, this Law should be treated by competent organs as lex specialis but the practice of disrespect of this principle is actually noted, so that certain issues are covered by other peaces of legislation, issues already stipulated by the Law on BiH Ombudsmen. This is very important fact, if one has in mind that the independence of the Institution, according to the provisions of Paris Principles that defines issues related to functioning of the work of national human rights intuitions, is assessed exactly by the fact how much is independence of institution based on legal framework. BiH Ombudsmen Institution is conditionally positioned in category “A”, where the other states fulfilling Paris Principles are placed. Yet, accreditation of the Institution was done in 2004 and it was obligation of the Institution to go through the process of re- accreditation in 2008, which is important process for overall evaluation of human rights situation in BiH.115 Unfortunately, due to all problems faced by BiH Ombudsmen Institution, which particularly applies to problem of merger of Entity-level and State-level Ombudsmen Institutions, the process of re-accreditation is delayed and should be completed by October of 2009. BiH Ombudsmen express deep concerns related exactly to inadequate legal solution regarding ensuring functioning and work of the Institution, which could impact the process of accreditation.

2.2.4.2 Other acts a. Rules on Functioning of BiH Ombudsmen Institution

Rules on Functioning of BiH Ombudsmen Institution (“Official Gazette of BiH”, no. 45/04) establish rules of procedure for functioning of the Institution and other issues necessary for its work. The Rules on Functioning are adopted on 02.04.2004 by Human Rights Ombudsmen Mr. Vitomir Popovi, Mr. Mariofil Ljubic and Mr. Safet Pasic. b. By-laws of the Institution

At the time of the handover there happened to be very few by-laws, which directly reflected in its business operations, particularly financial operations. There were not any rules, and certain issues such as: allowances and other benefits, annual leaves or absence from work, working hours, etc. were regulated by decisions.

There were not acts that would define internal organization of the Institution or case register.

115 National Human Rights Institutions Forum Information on and from national human rights institutions, www.nhri.net, Bosnia and Herzegovina: Human Rights Ombudsman of Bosnia and Herzegovina, 2001 – A(R); 2002 –A(R); 2003 –A(R); 2004 307

2.2.5. Financial situation of the Institution

2.2.5.1. Findings of the Auditor‟s Office

In its report the Commission for Handover provided review of financial situation, however, the real picture of this situation could be found in Auditor‟s Report for 2008, which mainly confirmed findings from previous years and which indicates numerous irregularities in financial operations of the Institution. Among other things, the findings of the Auditor‟s Office stressed that previous recommendations were not complied with. These are:  System of Institution‟s management and administration was not adequately established during 2008;  The Rules on Internal Organization and Systematization was not adopted between 2002 and the end of 2008;  Division of obligations and responsibilities in segment of financial operations and accountancy was not defined;  Planning, budgetary reports and reports on activities and aims of the Institution were not effectively executed and supervised. So, for instance, financial department of the Institution was never established and its duties were performed by persons who, in addition to their regular work, were engaged in such operations based on contract of work;  Activities related to transformation of Ombudsmen Institution, that is, taking over of entity ombudsmen institutions were not completed in 2008.

In relation to afore mentioned recommendations contained in Audit Report for 2007, the persons who held the office in 2008, too, did not take any measures or activities that would eliminate determined irregularities.

2.2.5.2. Budgetary Situation

At the moment of handover of duties proposal of the budget was already in parliamentary procedure, so that the newly appointed Ombudsmen were not in possibility significantly to impact to budgetary issue. Planned budget does not cover functional activities of the Institution, which before all applies to lack of resources for envisaged opening of Mostar office, and which is obligation stipulated by article 1, paragraph 2, of the Law on BiH Ombudsmen and in conjunction with article 1, paragraph 3, of the Law on Amendments of the Law on Human Rights Ombudsman for BiH, which should have been done back in 2006. Additionally, there are not resources planed for functional establishment of the structures of the Institution, which would create preconditions for establishment of three departments, as stipulated by article 1, paragraph 2, of the Law. Poor planning of the budget came from the fact that in 2007 implementation of the budget was 61% of what was planed, and the fact that unification of three ombudsmen institutions actually means creation of new Institution based on completely different principles of activities and work methodology. Due to such budgetary situation the Institution is faced with lack of resources for implementation of basic

308

legal obligations, such as opening of Mostar office, transformation of Banja Luka office in Head Office, including strengthening of field offices, because of which the Institution requested intervention from current reserves of the Ministry of Finances and Treasure, since the Institution does not have such reserves.

2.2.6. Cases Status

In the Institution there existed no uniform human rights complaints register system neither electronic data basis was maintained, although there existed data basis program from the time when the Institution acted as an international institution. Permanent drain of the employees of the Institution, particularly those of higher qualifications, resulted in abandoning of systematic dealing with the cases, which mainly led to ad hoc principle dealing with cases without determined selective criteria. The Handover Commission in its report presented the following case status:

There happened to be total of 1103 cases, out of which:  81 cases from 2003 (64 in Sarajevo and 17 in Banja Luka office)  303 cases from 2004 (297 in Sarajevo and 6 in Banja Luka office)  142 cases from 2005 (129 in Sarajevo and 13 in Banja Luka office)  136 cases from 2006 (119 in Sarajevo and 35 in Banja Luka office)  195 cases from 2007 (119 in Sarajevo and 76 in Banja Luka office)  246 cases from 2008 (135 in Sarajevo and 111 in Banja Luka office)

I addition to complaints, the Commission presented situation on special reports and stated that in the period 2004-2008 total of 23 special reports was issued, out of which:  1 (one) in 2008  9 (nine) in 2007  3 (three) in 2006  3 (three) in 2005  7 (seven) in 2004

In the period 2004-2008 BiH Ombudsmen made 86 recommendations. Unfortunately, case register happened to exist did not enable review as to what areas and spheres of life mainly suffered from human rights violations, which is direct result of not established case registering systematic process.

2.2.6. Merger of BIH Ombudsmen Institution with Entity Ombudsmen Institutions

One of the obligations that BiH, inter alia, accepted on its way towards conclusion of Stabilization and Accession Agreement is more effective role in the area of human rights protection, which includes merger of Entity-level Ombudsmen Institutions with State-level Ombudsmen Institution. For the purpose of merger the Law on Amendments of the Law on Human Rights Ombudsman for BiH has been adopted, envisaging that appointment of new Ombudsmen and merger of three ombudsmen intuitions in BiH should be completed by 31.12.2006, also including adoption of corresponding entities‟ legislation on cessation of

309

functioning of entity ombudsmen institutions before above mentioned legal deadline.116 Unification of three ombudsmen institutions in BiH is primarily targeted to balanced dealing with complaints in entire BiH, ensuring equal level of human rights protection, as well as more economic and functional work of such unified institution. Accordingly, one of significant segments in duties handover is by all means related to merger of three ombudsmen institutions in BiH. Delay of this process and actions performed by certain institutions and organs, contrary to the provisions of the Law on BiH Ombudsmen, resulted in the fact that the process, instead to be completed by 31.12.2006, at the moment of handover turned to be one of the burning problems.

Additionally, an integral part of the problem is different and arbitrary interpretation of the provisions of the Law on BiH Ombudsmen, particularly in its part regulating transitional period. It resulted in the fact that competent organs of the Federation of BiH, acting in sense of article 41, adopted the Law on the Way of Cessation of Functioning of the Institution of the Ombudsmen of the Federation of BiH in Transitional Period and Transfer of Competencies on the Institution of BiH Ombudsmen (“Official Gazette of FBiH”, no. 51/07), yet it created confusion related to the date of cessation of functioning of Federation Ombudsmen Institution, introducing the term “final and simultaneous” in article 3 of mentioned Law, since the Law on BiH Ombudsmen, which was the basis for adoption of this entity legislation, does not contained this term and it is unclear what is final and simultaneous merger related to.

With a view to achieve clarification of mentioned issues, on 7 January 2009 BiH Ombudsmen addressed the Ministry of Justice of FBiH, since it proposed adoption of the Law on the Way of Cessation of Functioning of the Institution of the Ombudsmen of the Federation of BiH in Transitional Period and Transfer of Competencies on the Institution of BiH Ombudsmen. The Ministry of Justice of FBiH was also requested to ensure that the Main Federation Administrative Inspector determine situation related to legal and work status of the employees of the Institution of the Ombudsmen of FBiH, since the list of employees provided by the Federation Ombudsmen Institution contains certain number of employees who fulfill conditions for retirement, and, consequently, before preparation of the list of the employees of the Federation Ombudsmen Institution to be taken over, it is necessary to determine facts related to legal and work status of the employees of the Institution of the Ombudsmen of the Federation of BiH.

Existing situation in the Republic of Srpska, related to merger of the ombudsmen institutions, is directly connected to the activities of the Peoples Assembly of the Republic of Srpska (NS RS). So, the Law on Cessation of Functioning of the Ombudsmen of the RS was on the agenda of the Assembly for three times now, and all three times it was withdrawn from the procedure (last time it happened at the Session of the NS RS of 9 March 2009).

116 Article 44 of the Law on BiH Ombudsmen, in conjunction with the Law on Amendments of the Law on BiH Ombudsmen says: “Until expiring of deadline defined in article 16, paragraph (2), the entities shall adopt appropriate legislation on cessation of functioning of entities‟ ombudsmen by which their competencies shall be transferred to the BiH Ombudsmen Institution”. Article 16, paragraph 2, of the Law on Amendments of the Law on Human Rights Ombudsman for BiH says: “Status of the Ombudsmen and Deputy Ombudsmen shall in transitional period exist until 31.12.2006”. 310

III Measures taken with the aim of eliminating identified inadequacies in the Institution

Newly appointed ombudsmen of B&H had to react with the aim of eliminating all inadequacies in the functioning of the Institution within a very short time period and in accordance with deadlines determined by The Law on The Human Rights Ombudsman of B&H. At the same time, it is necessary to define priorities, taking into account limited human and material resources.

3.1. Creating a normative environment for the functioning of the Institution

Ombudsmen of B&H developed a normative environment for the functioning of the Institution in two directions: a) Adoption of normative documents which ensures its uninterrupted functioning (Working Rules, Rules of Procedure and Decision-making of Ombudsman, Wage-payment plan, Rules on Office Management, The Rules on Internal Organization and Systematization of Posts, Rules on Disciplinary Accountability etc)

b) Adoption of documents by which cessation of work of entity Institution is created (The Rules on Internal Organization and Job Systematization and a Decision on Taking over the Staff, Resources and Equipment of Entity Institutions)

All necessary normative documents are adopted by ombudsmen of B&H, which creates preconditions for taking over the staff, resources and equipment of entity Institutions. With the aim of ensuring a transparent and coordinated process and defining dynamics of taking over the competences of entity Institutions, ombudsmen of B&H in the same time, while creating a normative environment, made also consultations with entity ombudsmen.

Unfortunately, due to failure of entities to act in accordance with provisions of The Law on Changes and Amendments of The Law on The Human Rights Ombudsman of B&H (“Official Gazette of B&H”, No. 34/05 and 32/06), a situation with regard to transfer of competences from entity institutions is different and has a considerably negative indirect impact on activities of Ombudsman of B&H which is primarily manifested by creating a confusion among citizens which further results in loss of confidence in effectiveness of the national mechanism for human rights protection. Considering Changes and Amendments to The Law on Human Rights Ombudsman of B&H, existence of legal base for further acting of entity ombudsmen is raised as a special question.

3.2. Structure of the Institution of B&H

The Rules on Internal Organization and Systematization of Posts defines that the structure of the Institution which is based on a territorial principle and a principle of law.

● Territorial approach

311

By The Law on the Human Rights Ombudsman of B&H, a Headquarter of the Institution is placed in Banjaluka, and field offices are in Sarajevo, Mostar and Brčko. While creating The Rules on Internal Organization and Systematization of Posts, ombudsmen of B&H took a view that it is important to ensure availability of human rights protection to citizens, so that ombudsmen of B&H decided to establish field offices defined by the Law as regional offices, in which field offices currently being within the structure of Ombudsman institutions on entity level would be incorporated after merging with entity Institutions.

● A principle of law

The Law on The Human Rights Ombudsman of B&H determined that the Institution should have: 1) Department for Monitoring the Rights of Children; 2) Department for Monitoring the Rights of Persons with Disabilities and 3) Department for Monitoring the Rights of National, Religious and other Minorities. Considering situation on the field, especially the most common human rights violations, beside three already mentioned, Ombudsmen of B&H also decided to establish the following departments: 4) Depatment for Economic, Social and Cultural Rights; 5) Department for Monitoring Political and Civil Rights; 6) Depatment for Elimination of All Forms of Discrimination; 7) Department for Monitoring the Rights of Detainees/Prisoners.

3.2.1. Staff recruitment in the Institution

Adoption of The Rules on Internal Organization and Job Systematization and Decision on Taking over the Staff, Resources and Equipment of Entity Institutions created conditions for staff recruitment in the Institution of Ombudsman of B&H. An approach to the realization of this activity should be carried out in the way to fill in posts by taking over staff from entity Ombudsman Institutions. Unfortunately, failure to adopt The Law on Cessation of Functioning of the Institution of Ombudsman of RS, obstructed ombudsmen of B&H to take over staff from this Institution. That is the reason why a procedure for staff recruitment in Head Office in Banjaluka was initiated by announcing vacancies. Serving the needs of the Office in Sarajevo, staff from the Institution of the Ombudsman of FB&H was taken over, since Parliament of FB&H adopted the Law in accordance with Article 16 paragraph 2 of The Law on Changes and Amendments of The Law on The Human Rights Ombudsman of B&H.117 For systematized posts in the office in Mostar, vacancies are announced. However, due to absence of financial resources for the establishment of the Office in Mostar, the procedure stopped. As ombudsmen found employees appointed for limited time duration, they brought a decision to extend their limited duration employment contracts for three-month period, which made it possible for them to apply for systematized posts. Unfortunately, most of employees appointed for limited time duration did not have bar exam which was prescribed as one of conditions determined by The Rules on Internal Organization and Job Systematization. Filling in systematized posts certainly creates precondition to improve quality of human rights protection and ensure systematic approach to this field via strengthening in human resources.

117 Only 9 employees were taken over, namely from Office in Sarajevo: 2 lawyers with bar exam, financial officer, three administrative officers, one expert advisor, interpreter, driver 312

3.3. Creating conditions for the Institution‟s activities

3.3.1. Creating a spatial environment for the functioning of the Institution

With the aim of solving a problem of location of the institution, ombudsmen of B&H undertook a range of activities including:

● Meeting with the Chief of Novo Sarajevo Municipality ● Meeting with the Prime Minister of the Federation of Bosnia and Herzegovina ● Meeting with the Mayor of Banjaluka ● Meeting with the Coordinator for Brčko District Government and Deputy Supervisor for Brčko District

Meetings resulted in certain conclusions. Ombudsmen of B&H filed a request to use business premises to: Government of the Federation of B&H for the building Sarajevo and to the mayor of Banjaluka for business premises in Banjaluka. Unfortunately, beside verbal support gained during contacting the Prime Minister and the Secretary of Government of FB&H, every form of real and concrete support failed to occur, even in the Federation of B&H when ombudsmen requested to use premises devastated in war. In the same time, the Mayor sent a verbal note stating that there is no possibility to find a solution according to needs expressed by ombudsmen. Time lost in searching for systematic solution for a location of the Institution along with the use of available resources is reflected in such a way that a process of consolidation of the Institution is made slower. In the same time, this is a very significant indicator of attitude of competent bodies towards the Institution of Ombudsman. In order to create minimal conditions for the normal functioning of the Institution, ombudsmen of B&H adopted a Decision on Announcing a Public Call for Lease of Business Premises for the Offices in Banjaluka, Sarajevo and Mostar. Opening the Office in Mostar directly depends on a decision of Ministry of Finance and Treasury to meet requirement of ombudsmen of B&H to use financial resources from permanent reserve, since resources for the Office in Mostar are not planned in the budget of the Institution. Lease Contract for the Office in Sarajevo is signed, so that from June 1, 2009 the Office in Sarajevo will be located at the new address at Grbavička Street No. 4. A process of selection of premises for the Office in Banjaluka is ongoing and it is expected to be finished within the next month.

3.3.2. Creating material and technical preconditions for the functioning of the institution

Material and technical equipping of the Institution of Ombudsman of B&H (including field offices), networking and electronic case tracking is provided through financial means approved by European Commission (IPA funds) amounting approximately to 250.000 EUR. However, a process of realization of this activity is being carried out very slowly due to tender procedures of European Commission. In the meantime, ombudsmen are committed in making efforts in order to ensure a minimum of information and system functioning of the Institution within own capacities and by borrowing equipment of other institutions (Missing Persons Institute of B&H), and by donation of Norwegian non-governmental organization Save the Children consisting of three laptops. This functioning should provide controlling of

313

Complaints Registry and access to information via web site of the Institution, which requires domain modification and creation of web site. It is planned for these activities to be finished by the end of May when the Office in Sarajevo will be located in new premises.

3.4. International and institutional cooperation

Considering the fact that BIH is running behind schedule with regard to accreditation of The Institution of The Human Rights Ombudsman of B&H as a national human rights institution within International Coordinating Committee and in relation to European Group of National Human Rights Institutions (EG), Ombudsmen of B&H informed ICC of changes occurred in the Institution, and measures in order for a process of accreditation to be carried out are also taken. A coordinator for cooperation behalf of The Institution of The Human Rights Ombudsman of B&H with EG is also appointed. Further directions for activities of The Institution of The Human Rights Ombudsman of B&H in the field of international cooperation are directed to establishment and strengthening of regional cooperation between human rights institutions.

With the aim of perceiving possibilities for reducing a number of complaints towards European Court of Human Rights, ombudsmen of B&H held a meeting with B&H agent representing B&H before this Court and her deputy. A special subject matter during this dialogue was increasing of court protection in B&H as a mechanism which could contribute to reduction in cases against B&H before European Court.

Ombudsmen intend to act upon establishing cooperation with Constitutional Court of B&H and High Judicial and Prosecutorial Council. An issue of special importance is an ensuring prevention of human rights violations which implies a stronger cooperation with legislative bodies, primarily with Parliamentary Assembly of B&H, National Assembly of RS and with The Parliament of Federation of B&H.

3.4.1. Cooperation with non-governmental organizations

Consultation process in the field of human rights represents one of priorities for ombudsmen of B&H. This is the reason why a meeting with non-governmental organizations (NGOs) dealing with promotion and protection of human rights was held in Banjaluka. During the meeting possible directs for cooperation of the Institution of B&H Ombudsman and NGO sector were defined and it was concluded:

1. To hold consultative meetings between the Institution of The Human Rights Ombudsman of B&H and NGOs periodically and if possible quarterly, and that these meetings should be made topically oriented as much as possible. Topics of meetings will be agreed mutually or on the proposal of ombudsmen or NGOs;

2. To start initiative for signing of Memorandum on cooperation between the Institution of B&H Ombudsman and NGOs which deal with providing free legal aid with a view to reaching a more effective human rights protection of citizens,

314

3. To support activities taken up by Helsinki Committee of Bosnia and Herzegovina to start consultations in relation to UPR (Universal Periodic Review). UPR is a new mechanism for United Nations member states, and Bosnia and Herzegovina is obliged to submit the report in September 2009. During the meeting, it was concluded that Helsinki Committee would continue to distribute information relating to UPR in order to include as much relevant entities as possible in this process, and to ensure consultations with Ministry for Human Rights and Refugees of B&H;

4. To ensure strengthening of cooperation between NGOs with the Institution of B&H Ombudsman, to establish new forms of cooperation based on principles of full partnership and mutual respect;

5. To make sure, while making web site of the Institution of B&H Ombudsman, that all relevant material which is also useful for NGOs is uploaded, such as judgments of European Court of Human Rights, recommendations of UN Committee, instructions for implementation of UPR and etc.

IV Current situation regarding cases and assessment of human rights situation in B&H

A lack of quality indicators as a consequence of age-long stagnation relating to status of the Institution of Ombudsman unable ombudsmen of B&H to give a full estimation of human rights situation. However, some indicators indicate that the action in the following areas should be given priority: a) Social protection; b) Elimination of all forms of discrimination; c) Timely and fair trial; d) Appointment; e) Protection of media freedoms; f) Rights of detainees/ prisoners, with a special overview on situation in penal and correctional institutions; g) Status issue concerning citizens (nationality, registration in birth registers etc)

4.1. Situation regarding cases inclusive April 30, 2009

A significant increase of complaint receiving relating to human rights violation occurred in the Institution of B&H Ombudsman which can be indicator not only of the level of jeopardizing of rights, but even of regaining confidence of citizens in this Institution. By the April 30, 2009, the institution of B&H Ombudsman lodged 434 in total, of which: a) Office Banjaluka 185 b) Office Sarajevo 231 c) Office Brčko 18

In the same time, in the mentioned period ombudsmen made 8 reccommendation. Cases lodged according to type of violations are allocated in Depatmets as follows:

315

01-Department for Monitoring the Rights of Children: 5 cases 02-Department for Monitoring the Rights of Persons with Disabilities: 40 cases 03-Department for Monitoring the Rights of National, Religious and other Minorities: 1 case 04-Depatment for Economic, Social and Cultural Rights 182 05-Department for Monitoring Political and Civil Rights :88 cases 06-Depatment for Elimination of All Forms of Discrimination: 24 cases 07-Department for Monitoring the Rights of Detainees/Prisoners 39 cases

Other cases are related to other violations of rights which primarily includes a rights to property and violations of rights related to appointment.

With regard to a number of complaints lodged by prisoners and detainees, ombudsmen started activities in order to visit all penal and correctional institutions in B&H, which are planned to be finished until June 30, 2009, after which, a Special Report on Situation regarding Execution of Criminal Sanctions will be made, including situation in institutions being in charge of this process.

Ombudsmen of B&H referred a Special Report on Issue of Right to Remuneration while Using Parental Leave, taking into account the fact that in this area, violations of rights of perturient women occur.

V Future activities and risks

Ombudsmen will make an Action Strategy with a concrete plan of activities after finishing a first phase of consolidation of institution, which is planned to be finished by June 1, 2009 when a procedure of staff election in Departments will be completed, which will create a minimum of preconditions for the Institution to be able to respond to its primary task defined in The Law.

The biggest risk for effective functioning of the Institution represents furher delay of merging process of Institution of B&H Ombudsman with ombudsman institutions on entity level, but also often incorporation of different mehanisms of protection being given a term Ombudsman within laws regulating special rights and issues. In such a manner, The Law on Protection of Consumers in B&H is adopted. This law prescribes establising Ombudsman for Consumers as a mechanism of protection, The Law on Parliamentary Military Commissioner of B&H is also under preparation, and advocating to establish Ombudsman for Media is also present. This way of approach to human rights protection fragments national mechanism for human rights protection and weakens it in the same time, but also raises a question of existance of the vision regarding human rights protection and development of mechanisams in B&H. On the other hand, it raises a question of economy of this way of approach in creating human rights protection mechanisms, and also represents an opposition in relation to obligation of B&H towards Council of Europe and European Union.

Also, certain limitations which are imposed to Institution represent a risk, specially those imposed by Ministry of Finance and Traesury of B&H by treating The Institution of B&H Ombudsman as a segment of executive power. This kind of attitude is directly contrary to Paris Principles which define functioning of national mechanisms for human rights

316

protection. Namely, it is necessary for the Institution of B&H Ombudsman to be treated in the same way as the Constitutional Court of B&H. This kind of approach also limits Institution in making Strategy and establishing main strategic goals.

Furhermore, the fact that one of ombudsmen of B&H resigned and was relieved of his duty by a Decision of Parliamentary Assembly of B&H does not have a direct impact on functioning of the Institution, since other two ombudsmen took over all duties and obligations, in accordance with provisions of the Law. However, delaying in process of appointment of third ombudsman can raise a question of attitude of competent bodies toward this Institution.

Ombudsmen of B&H stay determined to elevate the dignity of the Institution by their further actions and strengthening of capacities, and also to regain a confidence of citizens in the Institution, and also in human rights as a basis of development of every democratic society. Nevertheless, this goal is impossible to reach without support of all authority institutions in B&H, specially those of legislative bodies.

317