An Introduction to the Legal Cultures of Bosnia and Herzegovina, Croatia, and Serbia (Western Balkan)

The Western Balkans is a designation used for a region that includes Albania, Bosnia and Herzegovina, Croatia, North Macedonia, Montenegro, Serbia, and Kosovo. The term Southeast Europe is today more frequently used as a synonym for Western Balkans as the term Balkans has some negative connotations associated with a backward and underdeveloped region. The South Slavs (or YugoSlavs) are all descended from the same ancestors, and all speak similar languages, but they are distinguished by their religious practices and cultural differences. The Croats and Slovenes (in the west) are predominantly Roman Catholics, the Bosniaks (in the south) predominantly Muslims, and the Serbs (in the east) predominantly Orthodox Christians. For more on the ethnography of South Slavs, see Stanoyevich (1919).

Phillips writes: “Legal history shows us that while law is shaped by other forces, it can be at the same time relatively autonomous, not always the handmaiden of dominant interests.” See Philips (2010), p. 295.

The process of the harmonization of the Croatian legal order with the EU, before the country became an EU member state, also started with the signing of the Stabilization and Association Agreement (SAA) in 2003, which entered into force in 2005. SAA between the EU and the Republic of Serbia entered into force in 2013, and the SAA between the EU and B&H entered into force in 2015. Stabilization and Association Process (europa.​eu).

All these agreements contain the same provision which forms the basis for the harmonization of national laws with acquis communautaire. This provision determines that the states shall endeavor to ensure that their existing laws and future legislation will be gradually made compatible with the Community acquis (§ 69 of the Croatian SAA, § 73 (1) of the Serbian SAA, and § 70(1) of the Bosnian SAA).

Besides Serbia, the candidate countries (May 2022) are also Albania, the Republic of North Macedonia, Montenegro, and Turkey.

Enlargement: Candidate countries still far away from joining the EU (brusselstimes.​com).

Candidate Countries - Enlargement - Environment - European Commission (europa.​eu). 

2022 World Population by Country (worldpopulationr​eview.​com).

§ 1 The Constitution of Republic of Croatia.

Ministarstvo pravosuđa i uprave Republike Hrvatske - Popis županija, gradova i općina (gov.​hr).

2022 World Population by Country (worldpopulationr​eview.​com).

§ 1 The Constitution of Republic of Serbia.

2022 World Population by Country (worldpopulationr​eview.​com).

The Constitutional Court of BiH treats solely the English version as the authentic text and thereby, to some extent, corrects misleading translations. Marko (2004), p. 12.

In the words of professor Hanspeter Neuhold of the University of Vienna, “The Bosnian constitution is too complex; it may work as a peace treaty but hardly as a constitution.” According to him, the changes to the country’s Constitution are imperative. Bosnia and Herzegovina’s Political System: It’s Complicated - Polemics (polemics-magazine.​com).

Historians such as Malcom emphasize the multiculturality of the Balkans by claiming that the Balkans do not have one “national homogenous region, none the less a national homogenous state” (author’s translation). See Malcolm (1995), p. 3.

Miraščić and Begić (2009).

The term “balkanization” implies disintegration and splitting processes that Balkan states have undergone through the ages. See Canatan (2014), p. 15.

The word Balkan is Turkish and means “mountain,” Balkans | Definition, Map, Countries, & Facts | Britannica.

When the Roman Empire was divided into the Western and Eastern Empires, the territories of the current Slovenia, Croatia, and Bosnia and Herzegovina became a part of the Western Roman Empire, while present-day Serbia, Kosovo, and Macedonia became a part of the Byzantine Empire.

See Fine (1994).

The Jews in the region are Sephardi Jews, a group that found refuge in the Ottoman Empire after their expulsion from Spain and Portugal in 1492.

This explains why there existed legal institutes that did not fit with Sharia law, such as a tax on pigs or a monopoly on the sale of wine in a square.

Ottoman Empire - The Tanzimat reforms (1839–76) | Britannica.

Kühn contends that the successor states of the Empire inherited from the bureaucratic Habsburg State a deep confidence in written law and overly optimistic expectations that statutory law could regulate social relations and transform society through social engineering. Kühn (2011), p. 3, cited in Komárek (2014), p. 3.

The Kingdom was divided into six legal regions. Slavonia (a region in Croatia) applied Croatian autonomous law, Hungarian law, and Austrian law; Dalmatia and Slovenia used Austrian law, including the Austrian Civil Code; the regions of Vojvodina and Međimurje applied Hungarian law; Serbia, Macedonia, Kosovo, and Montenegro applied the Serbian and Montenegrin Civil Codes, respectively; and Bosnia and Herzegovina applied Ottoman-Islamic law and Austrian law.

“For example, succession law, but also the law of obligations, and to same extent property law of the West were not contrary to the prevailing socialistic ideology in Yugoslavia.” Baretić and Nikšić (2011), p. 231. Therefore, many of the legal solutions were transplanted and used extensively in the Yugoslav legal system.

The pace of legal development is slow, resulting in old rules often coexisting for a period of time with new ones. See Philips (2010), p. 300.

Invalidity of Legisation Enacted Prior to 6th of April 1941 and During the Enemy Occupation Act.

These conditions were that there existed lacunae and that the “old” rules were not in conflict with the Constitution, the new laws of former Yugoslavia, or the morals of society. The court or other public authorities, before applying these “old” legal rules, therefore need to previously assess their constitutionality and legality. See § 4 Invalidity of Legisation Enacted Prior to 6th of April 1941 and During the Enemy Occupation Act.

On the independence of Kosovo, see Borgen (2008).

Many of the laws from the former Yugoslavia are still in use in Bosnia as a consequence of the ongoing political disagreements. According to Annex II (2) of the Bosnian Constitution, “All laws, regulations, and judicial rules of procedure in effect within the territory of Bosnia and Herzegovina when the Constitution enters into force shall remain in effect to the extent not inconsistent with the Constitution, until otherwise determined by a competent governmental body of Bosnia and Herzegovina.” This is the legal basis for the application of the International Private Law Act and the Law of Obligations Acts of FBIH and RS in the current legal system. The laws of former Yugoslavia were also used as a basis for the reform of the law of obligations and international private law in Bosnia, Croatia, and Serbia. As a result of this, there is only a slight difference in the texts of, for example, the Law of Obligations Act in these three countries.

For Croatia, see, for example, § 29 of The conclusion and execution of international agreements Act. For Bosnia, see § 23 of The procedure for conclusion and execution of international agreements Act.

Karčić (2020), p. 9.

Baretić and Nikšić (2011), p. 240.

Merryman (1985). According to Schönfelder (2016), p. 315, “third legal tradition” equals hyperpositivism and is to be regarded on the same footing as common law and continental law.

Merryman (1985), p. 1.

For example, as a result of the fact that wealth could only be obtained through labor and that personality rights could not be valorized in monetary terms, socialist tort law did not allow for compensation for nonmaterial damages. From 1953 onward, such compensation started to be awarded by the courts, and these rules were finally codified in the Yugoslav Law of Obligations Act in 1978. Still, in order to obtain such compensation, one had to prove psychological pain and suffering by using expert witnesses, which also means that legal persons were not eligible for such compensation. This rule still applies in Bosnia as the country has not made any changes to its Law of Obligations Act.

Uzelac (2010), p. 378.

Uzelac (2010), p. 378.

Ajani (1995), p. 117.

Karčić (2020), Uzelac (2010), Mańko (2013), and Grødeland and Miller (2015).

According to Blockmans, while there are obvious differences in their political, economic, and social constructs, the countries in SEE share, by and large, a common trajectory—one of transformation from authoritarian communist rule and centrally planned economies to liberal democracy and capitalism. See Blockmans (2015), p. 299. After the fall of socialism, all institutions and organizations in these states had to be rebuilt. Besides the reforms, these cultures faced common challenges typical for transitional legal cultures, such as the independence of the judiciary, the reinstitution of private ownership, the digitalization of the judiciary, transitional justice, the occurrence of crimes labeled as “war profiting” or “crimes related to ownership transformation and privatization,” a high level of corruption, and weak rule of law. Most of these problems, according to Kühn, relate to the excessive formalism of postcommunist law and to a specific type of authoritarian legal culture. See Kühn (2011), p. 293.

Karčić (2020), p. 3.

The languages are Croatian, Serbian, and Bosnian. They are variations of the same language, previously called Serbo-Croatian. A common language as a tool for communication is a very important element for the development of a legal tradition as it contributes to creating a common understanding of values, expectations, principles, and rules and strengthens the notion of a regional legal culture.

From the time they joined the Kingdom of Serbs, Croats, and Slovenians in 1918 up until the violent implosion of the SFRJ, these states shared the same body of law, judicial system, and legal culture. Blockmans (2015), p. 299. Mańko, Škop, and Štepanikova suggest that the non-German successors of the former Austria-Hungarian Empire constitute a single legal culture. See Mańko et al. (2018), p. 9. Uzelac speaks of the circle of “Mediterranean systems.” Uzelac (2010), p. 396.

Regional legal culture is defined as a dominant legal culture in a specific geographic area that is created by social groups within the region. See Xia and Chen (2015).

Merryman (1985), p. 2.

§ 18 (1) The Constitution of Republic of Croatia; § 36 The Constitution of Republic of Serbia. There is no particular provision in the Bosnian Constitution or the constitutions of the entities explicitly guaranteeing the right to appeal.

§ 16 and § 27 The Courts of FBiH Act.

§§ 17–28 The Courts Act of Croatia; § 27 The Courts of FBiH Act. In Bosnia, basic courts also have jurisdiction over the registration of legal persons. See § 24 The Courts of FBiH Act.

§ 23 The Organization of the Courts of Republic of Serbia Act; § 29 The Courts of FBiH Act; § 25 The Courts of RS Act.

§ 24 The Organization of the Courts of Republic of Serbia Act.

See, for example, Krivično odjeljenje (oss.​ba).

§§ 12–15 The Organization of the Courts of Serbia Act. In Croatia, misdemeanor courts have recently been included in the system of ordinary jurisdiction at the municipal level. However, an appellate High Misdemeanor Court was maintained, and among other tasks, it decides on appeals to the decisions of municipal courts in misdemeanor cases. See § 26 The Courts Act of Croatia.

§14 (1) and § 14 (2) The Administrative Disputes Act.

The Constitutional Court of BiH has, in one of its decisions, pointed out that the different legal practice in courts is possibly the consequence of the nonexistence of a supreme court on the state level that could harmonize the case law of all courts in BiH and hence contribute to the full rule of law in BiH (Maktouf case, AP–1785/06).

Kühn (2006), p. 23.

Bosnia: ORIJENTACIONI KRITERIJI i iznosi za utvrđivanje visine pravične novčane naknade nematerijalne štete (advokat-prnjavorac.​com); Croatia: Orijentacijski kriteriji i iznosi za utvrđivanje visine pravične novčane naknade nematerijalne štete.

§ 19 (2) The Rules in internal judicial procedure.

Opinion of the Venice Commission on the need for a judicial institution at the state level in Bosnia and Herzegovina CDL-INF (98) 17.

The Rules of Procedure of Court of BiH.

The Civil Procedure of Court of BiH Act.

The criminal division is divided into sections: a section each for war crimes, organized crime, economic crime and corruption, as well as general crime.

In former SFRY, constitutional courts were established with the Constitution of SFRY of 1963 and retained in the later revised 1974 Constitution.

Rodin (1993), p. 783.

Beširević (2014), p. 963. For a similar view, see Cappelletti (1985).

Barić (2016), p. 7.

Barić (2016), p. 27.

The Constitutional Court of the FBiH resolves disputes between organs of the FBiH and has the power to exercise constitutional control over the laws and regulations of the FBiH and the laws of cantons. It also decides on constitutional questions presented by the Supreme Court or a cantonal court that arise in the course of proceedings. § IV C 1 Art. 10 The Constitution of FBiH.

Interpretations (of constitutionality) by the Constitutional Court are binding upon ordinary courts.

§ VI. 3 a-Vi c The Constitution of BiH.

Barić (2016), p. 10.

Foreign judges play an important role in deciding cases in the appellate courts of a range of countries. Around 30 countries across the world have foreign judges in their constitutional courts. Examples are Leshoto, Lichtenstain, Hong Kong, etc. For more examples, see Dziedžić (2018).

§ VI 1 The Constitution of BiH.

Dixon and Jackson (2019), p. 303.

Schwartz (2017), p. 1.

Dixon and Jackson (2019), p. 330.

Dixon and Jackson (2019), p. 331.

Dixon and Jackson (2019), p. 283.

Dixon and Jackson (2019), p. 332.

Purić and Savić Božić (2016), p. 86.

The length of the proceedings was among the most visible symptoms of residual similarity to the legal systems of the third (i.e., socialist) legal tradition. Uzelac (2010), p. 388. See World Bank Group, Incentivizing Courts to Reduce Backlogs: Serbia’s Court Rewards Program – Case study from global report, 131020-WP-P163620-WorldBankGlobalR​eport-PUBLIC.​pdf; Croatia aims to solve court case backlog – EURACTIV.​com; Evaluation of the Project “Improving Judicial Efficiency” (Bosnia and Herzegovina) - Final Report | Sida.

Uzelac (2010), p. 379.

Cserne (2020), p. 884.

COMBATTING CORRUPTION IN BOSNIA AND HERZEGOVINA | Congress.gov | Library of Congress.

Pavlović and Simentić Popović (2021), p. 10.

The Constitutional Court of BiH, U 15/03 of 28 November 2003 § 44; the Constitutional Court of Croatia, U-IIIA-5428/2021 of 13 April 2022; the Constitutional Court of Serbia, Už-2423/2016.

Savić and others v Serbia (application nos 22080/09, 56465/13, 73656/14, 75791/14, 626/15, 629/15,634/15 i 1906/15); Kirinčić and others v Croatia (application no. 31386/17); Muqishta v Bosnia and Herzegovina (application no. 27994/19).

Arbitration Act of Croatia.

The rules of arbitration of the permanent arbitration court at the Croatian chamber of economy, Microsoft Word - Legislation__Rules-Arbitration-Permanent-Arbitration-CCCE.doc (vsrh.​hr).

§§ 434–453 The Civil Procedure Act of FBiH and §§ 434–453: The Civil Procedure Act of RS.

Available at Pravilnik o arbitrazi - engleski jezik (komorabih.​ba) 21.12.2021.

The Arbitration Act of Serbia.

Permanent Arbitration Rules of the Commercial Chamber of Serbia.

Udruženje za arbitražno pravo | Belgrade Arbitration Center (arbitrationassoc​iation.​org).

International arbitration law and rules in Serbia | CMS Expert Guides.

§ 4 The Mediation Procedure Act.

The Mediation Act of Serbia.

NBS | Pokretanje posredovanja – medijacije.

See The Peaceful Resolution of Labour Disputes Act.

§ 45 The Family Law Act of FBiH § 57 The Family Law Act of RS; Part VII The Family Law Act of Croatia.

§ 229 and § 230 The Family Law Act of Serbia.

Petrušić (2004), p. 42.

See Strengthening Commercial Courts and Departments in Bosnia and Herzegovina: Caseload Distribution, Backlog, and Other Organizational Issues Affecting Performance, 2019, World Bank Document, p. 54. According to Beširević “a significant backlog of cases has prevented the (Constitutional op.a.) Court from becoming an active rights promoter in Serbia.” Beširević (2014), p. 965.

The Amendments and Supplements to the Law on Court Fees Act.

§ 1 (2) of the Constitution of Bosnia, § 3 of the Constitution of Croatia, and § 3 of the Constitution of Serbia. Čepulo has detected certain disharmony between the fact that the Croatian (just as the Serbian and Bosnian op.a.) legal cultures were shaped in the nineteenth century under the influence of the German and Austrian legal cultures, which both preferred the concept of the legal state (Rechtsstaatprinzip) and the fact the postsocialist constitutions were based on the Anglo-Saxon concept of the rule of law. The constitution makers were aware of their choice of terminology. The term “’legal state” implies negative connotations among the people since it is often connected with “repressive use of force” for the purpose of the implementation of legal regulations. See Čepulo (2001), pp. 1340 and 1338.

§§ 4–6 of the Constitution of Bosnia, Chapter IV of the Constitution of Croatia, and § 4 of the Constitution of Serbia.

Trnka (2009), fn. 8.

Marko (2004), p. 5.

The enforcement of ECHR decisions in the cases Sejdić Finci v Bosnia and Herzegovina, (Applications nos. 27996/06 and 34836/06 of 22 December 2009); Pilav v Bosnia and Herzegovina (Application no. 41939/07 of 9 June 2016); Zornić v Bosnia and Herzegovina (Application no. 3681/06 of 15 July 2014) is a condition sine qua non required by EU for Bosnia's EU membership EU will not ratify SAA until BiH implements Sejdić-Finci judgment, as BiH through its electoral laws violates Art. 1 of the interim agreement.

Ustav RH | Ustavni sud RH (usud.​hr).

Serbia Votes on ‘Positive’ Judicial Reform, but Doubts Linger | Balkan Insight.

One–fifth of the representatives in Croatian Parliament (Sabor) may propose amendments to the Constitution, as compared to one-third in Serbia.

§§ 147–150 The Constitution of Republic of Croatia.

§203 The Constitution of Republic of Serbia.

§203 para 6 The Constitution of Republic of Serbia; 87 para 1 The Constitution of Republic of Croatia.

Böckenförde (2017), p. 13.

Uniform Rules on the Methodology and Legislative Technique for the Drafting of Acts Enacted by the Croatian Parliament; Unique methodological rules for drafting of regulations of Republic of Serbia; Unique rules on drafting regulations in institutions of Bosnia and Herzegovina.

Art. 3(1) of the Constitution of Bosnia and Herzegovina.

Marko (2004), p. 6.

Balázs (2008), p. 32.

High Representative Valentin Inzko introduced today amendment to the BH Criminal Code | Office of the High Representative (ohr.​int). See Art. 145a Criminal Code of Bosnia and Herzegovina.

§21 Law of Obligations Act of Bosnia and Serbia.

§ 12 (4) Zakona o obligacionim odnosima FBiH (The Law of Obligations Act of FBiH), § 12 Zakona o obveznim odnisima RH (The Law of Obligations Act of Croatia), and § 21 Zakona o obligacionim odnosima Srbije (The Law of Obligations Act if Serbia) refer to the use of customs. Customs are also mentioned in Zakon o vlasništvu i drugim stvarnim pravima R Hrvatske (the Act on ownership and other real rights of Croatia), § 144 (2): “A person whose animal impregnates the animal of another does not have the right to such offspring or to an award unless provided otherwise by law or custom.” A similar provision is contained in § 13 (2) of the Zakon o arbitraži Hrvatske (The Arbitration Act of Croatia). In § 27 (4) following is stated: “In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the applicable usages.” However, there is no legal basis for the application of Gestattungstheorie neither in Bosnia nor Croatia nor Serbia. Radolović finds that the reasons why this theory is applied are more pragmatic or that the application of this theory has become so commonplace that there is a general belief in the obligation to act on it. Radolović (2020), p. 2.

§ 12 paras. 2 and 3 of the Law of Obligations Act of Croatia.

“The term legal formalism possesses different meanings including characteristics of the conception of law, legal science and the way of interpreting law.” Karčić (2020), p. 4. Synonyms used for formalism are passivism, hyperpositivism, extreme formalism, mechanical jurisprudence, and textualization. Cserne (2015), p. 33.

Uzelac (2010), p. 381.

Formalistic understanding lies at the root of a positivist conception of nature and the function of law, yet the positivists often distinguish their work and strongly criticize formalism. See Eckes (2021), pp. 5–6.

Kühn (2011), p. 76.

Leiter (1999), pp. 1145–1146.

Eckes (2021), p. 24.

Merryman (1985), p. 19.

Visegrády and Tucak (2012), p. 14.

Eckes (2021) p. 6.

Eckes (2021), p. 26.

Cserne (2015), p. 39.

Rodin (n.d.), p. 7.

Uzelac (2010), p. 382.

Nurkić (2021), p. 96.

“Old philosophies of the bound application of law and textual positivism continue to govern the post-communist legal and judicial discourse and, in some ways their features have even worsened.” Kühn (2011), p. 204. According to Blockmans (2015), p. 305, “(…) Most post-communist judges still adopt a formalist understanding of law, although their discourses are often clothed in a new legal vocabulary.” See also Visegrády and Tucak (2012), p. 33: “Strictly linguistic interpretation of legal provisions is a wide-spread occurrence in the Croatian legal practice.” Frane Staničić finds that legal formalism is evidently present in the legal system of Croatia: in all branches of the judiciary and in public administration. Staničić (2017), p. 563. Karčić writes: “Legal formalism is seen as a central element in the struggle to transform the legal cultures in the former Yugoslav countries…”. Karčić (2020), p. 3. “After World War II, when Yugoslavia entered the Socialist legal culture, legal formalism was retained as a part of a new culture. Even after the fall of Socialism in the 1990s, formalism survived,” Karčić (2020), p. 20.

Uzelac (2010), p. 378.

According to the path dependence theory, “history matters” and institutions do not change as much as might be expected. Changes in institutions are subject to considerable inertia. See Karčić (2020), p. 8.

Kühn (2012), p. 224; Cserne (2020), p. 880.

Karčić (2020), pp. 9–10.

Art. VI (3)(c) of the Constitution of Bosnia and Herzegovina; Art. 168 of the Constitution of Serbia; Art. 35 of the Constitutional Act on the Constitutional Court of Croatia.

Ustavni sud Bosne i Hercegovine – 1964–2014 – Constitutional Court of Bosnia and Herzegovina, p. 124: https://​www.​otvorenavratapra​vosudja.​rs/​teme/​ustavno-pravo/​paradoksi-prakse-ustavnog-suda; for Croatia, see https://​www.​usud.​hr/​sites/​default/​files/​dokumenti/​Pregled_​primljenih_​predmeta_​u_​razdoblju_​od_​1990.​_​do_​31.​_​prosinca_​2021.​pdf.

Baretić and Nikšić (2011), p. 240.

§ 118 (3) The Constitution of Croatia.

www.​usud.​hr/​en/​legal-basis.

Legislative procedure | Croatian Parliament (sabor.​hr).

http://​www.​digured.​hr/​.

§ 142(1) and § 142 (2) The Constitution of Serbia.

The ECHR and its related protocol enjoy a special position over and above that of the Constitution. See Marko (2004), p. 11.

See, for instance, Borković (1997), cited in Rodin (2005), n 37.

Šurlan (2019), p. 1.

Baretić and Nikšić (2011), p. 236.

The Draft Serbian Civil Code contains the following parts: General part, Obligations, Property law, Family law, and Inheritance law. Available at Nacrt Građanskog zakonika (paragraf.​rs).

Baretić and Nikšić (2011), p. 236.

§ 73 (4) The Act on Notaries of FBiH.

§ 455 The Law of Obligations Act of FBiH.

According to the Priebe report—experts’ report on the rule of law in Bosnia for 2020—in many areas, the legislation of BiH is in line with European and other international standards, but there is a considerable gap between legislation and practice. See Priebe report, p. 2.

Examples of such laws are the Bankruptcy Act and the Act on Consumer Protection in BiH.

Some articles in the Serbian Constitution even go beyond the ECHR, like the right to legal assistance in § 67.

Jutarnji list - Naši dobri zakoni ne smanjuju nasilje jer se slabo provode. Barometar vibrantnih informacija (2021), p. 6; Državni organi deset godina nemi na nesprovođenje zakona (transparentnost.​org.​rs).

Venice Commission (2018) Opinion on the draft amendments to the constitutional provisions on the judiciary, paras 25–36.

Serbia: § 60 The Rules of the Constitutional Court; Bosnia: § 41 The Rules of the Constitutional Court; and Croatia: § 50 The Rules of the Constitutional Court. The practice of the Constitutional Court in Croatia shows that constitutional judges do not use this possibility very extensively. See Antić (2016).

European Commission for democracy through law (Venice Commission), Report on separate opinions of constitutional courts, Opinion No. 932/2018, p. 10.

§ 69 of the Croatian SAA, § 73 (1) of the Serbian SAA, and § 70(1) of Bosnian SAA.

For instance, in the case U-I 763/2009, the Croatian Constitutional Court invokes German case law, arguing that its argumentation is universally valid for the concrete case. This is explained by the similarities of § 48 of the Croatian Constitution and § 14 of the German Basic Law. In the case U-III-3304/2011 of 23 January 2013, a decision of the German Constitutional Court (BVGH) was quoted in order to increase the legitimacy of the decision, but without an explanation as to what extent the decision was influenced by the practice of foreign courts.

In the words of Jasna Omajec, the former president of the Croatian Constitutional Court, “BVGH is the largest, and according to many, the most powerful Court in the world…(its) jurisprudence is a constant source of principles, general rules and methods of constitutional interpretation for constitutional courts all around the world (…) and especially for Croatia as it belongs to the same legal tradition.” See Omajec (2015), p. 26.

Barić (2016), p. 28.

Šarčević (2009).

Zern and Bauch (2015).

This is a common stand in the literature of ex-Yugoslavia: Stojanović (1984), p. 31; Gams (1963), p. 87; Klarić and Vedriš (2006), p. 23; Vodinelić (2012), p. 121.

Radolović (2020), p. 179.

Triva and Dika (2004), p. 412.

§ 137 of the Rulebook of the Bosnian Parliamentary Assembly, §§ 171–173 of the Croatian Rulebook of the Parliament, and §§ 158–159 of the Rulebook of Parliamentary Assembly of Serbia.

see: Bukovac Puvača (2010).

According to Karčić (2020), p. 5, ideas of Hans Kelsen and his Pure Theory of Law contributed to strengthening the formalism in socialist legal systems. Kelsen relied on Herman Cohen who stated that: “Only the formal is objective; the more formal a methodology, the more objective it can become.”

Tropp (2018), p. 429.

Schönfelder (2016), p, 305.

Karčić (2020) p. 12.

Rodin (2005), p. 11.

§ 3 The Constitution of Croatia; § 1 (2) and § 2(4) The Constitution of BiH.

U-I-295/2006 and U-4561/2007; Constitutional Court of BIH, P 1513/20 § 51, AP-1289/20 § 35.

Rodin (2008).

U 102/03 28 April 2004. § 44; AP 160/03 of 28 April 2004 § 28.

Už-1477/2009 § 7; Už-24/2008.

Based on the empirical study of 175 countries, recent research shows a correlation between fast judiciaries and high levels of quality of justice. See Melcarne et al. (2021), p. 1.

Of all the members of the EU, the citizens of the youngest, Croatia, have the most negative perceptions on the independence of its judiciary. The results of Eurobarometer for 2021 show that main reasons among the general public for the perceived lack of independence of courts and judges is the interference or pressure from government or politicians (68%) and interference or pressure from economic or other specific interests economic pressures (51%). Perceived independence of the national justice systems in the EU among the general public - juli 2021 - Eurobarometer survey (europa.​eu).

Most of the courts in Bosnia do not publish their decisions on their websites, and only a few publish informative content concerning decisions of public interest. See Izvjestaj o monitoringu pravosudnog odgovora - Final WEB.pdf (analitika.​bas), Sarajevo, 2017, p. 19. According to Ćapeta, there is no tradition of publishing judicial decisions in full text and on a regular basis in Croatia either. Commenting on judicial decisions before they are final is a criminal offense. See § 309 Criminal Act of Croatia and Ćapeta, cited in Rodin (2005), p. 12, n 63. In Serbia, this used to be, but is no longer, a criminal offense. Compare Law on Amendments of the Criminal Act. This criminal offense does not exist in Bosnia and Herzegovina. All legal systems have rules on the presumption of innocence.

Duga historija ignorisanja presuda Ustavnog suda BiH (voanews.​com).

Cero and Omerović (2021).

Zašto Tužilaštvo BiH propušta kazniti nesprovođenje odluka Ustavnog suda BiH - Detektor.

Zweigert and Kötz (1998), p. 166.

“During the Socialist era, despite declamations of the ‘originality of socialist law’ Western models were borrowed, even if a careful scholarship disguised them, or judges were unaware or their origin.” Ajani (1995), p. 94.

Baretić and Nikšić (2011), p. 231.

Kanda and Milhaupt (2003), p. 889.

Berkowitz et al. (2003), p. 164.

Baretić and Nikšić (2011), p. 230.

There were some minor influences of English law in the Law of Obligations Act, such as the frustration of contract; see § 133 para 1 The Law of Obligations Act of FBiH.

Baretić and Nikšić (2011), p. 228.

§ 53 Law of Obligations Act of FBiH, § 53 Law of Obligations Act of Serbia, and § 273 of Law of Obligations Act of Croatia.

§ 63 The Law of Obligations Act of FBiH.

“Whoever causes injury or loss to another shall be liable to redress it, unless he proves that the damage was caused without his fault.” § 154 (1) Law of Obligations Act of FBiH, § 154 (1) Law of Obligations Act of Serbia, and § 1054 (1) Law of Obligations Act of Croatia.

Baretić and Nikšić (2011), p. 229.

Croatia, as a member of the EU, has adopted constitutional amendments to secure the supremacy of EU law. See § 141c of the Constitutional Amendment.

When it came to reforming the Law of Obligations Act in Bosnia and Herzegovina, the task was entrusted to a German professor, Helmut Rüßmann, from the Universität des Saarlandes. This draft never became a law due to political disagreements over the level at which this law was to be enacted (state or federal). Another example is the American lawyer who took part in drafting the company law of Serbia, which resulted in several legal transplants.

Schönfelder (2016), p. 390.

Baretić and Nikšić (2011), p. 230.

The public notaries existed in this region already in the 1930s but were abandoned and then reestablished again in modern BCS.

Bakšić and Oruč (2012).

Radović (2019), p. 34.

This is explained by the fact that company law is a branch of law suitable for legal transplants, and many concepts and institutions from American law could easily be introduced. See Radović (2019), p. 33.

The main fiduciary duties are loyalty and diligence. Directors are under obligation to lead the company in its best interest, avoiding conflicts between personal interests and the interests of the company. See § 63 (1) in relation to § 61 (1) of the Companies Act.

A derivative claim (or derivative action) is a claim brought or continued by a shareholder on behalf of the company in relation to a breach of duty by a director. See § 79 (1) (The Companies Act). The derivative claim is opposite to the rules of the Serbian Civil Procedure. The main rule here is that active legitimacy belongs to the person that claims that their rights have been violated. In other words, active legitimation belongs to the company, not the shareholders. Radović (2019), p. 39.

Radović (2019), p. 35.

Radović (2019), p. 37.

§ 246 The Criminal procedure Act of FBiH.

For the case of Serbia, see Radolović (2020), p. 37.

Radović (2019), p. 33.

Karčić (2020), p. 10.

The monist approach of the Croatian legal system can be derived from § 118 (3) of the Constitution, according to which “Courts shall administer justice according to Constitution, laws, international agreements and other valid sources of law.” Further, § 141 of the Constitution creates a hierarchy of legal rules: international treaties that were signed and ratified in accordance with the Constitution, those that were made public and are in force, those that are part of the internal legal order of the Republic of Croatia, and those that are above the law in terms of legal effects. The courts in Croatia, however, rarely directly refer to international treaties in the case of lacunae. The Serbian Constitution explicitly confirms that international agreements that have been properly ratified and published in the official journal are an integral part of the country’s legal order and enjoy primacy over other laws (§ 16 and § 194 The Constitution of Serbia). Although the Constitution of BiH is silent on the legal status of international agreements in general, the Constitution itself is based on a treaty (the Dayton Peace Treaty). Furthermore, Annex 1 of the Constitution lists other human rights agreements that also appear to be self-executing. The monistic approach in Bosnia can also be interpreted from § 28 of the Procedure for the Conclusion and Execution of International Treaties Act, which provides that “international agreements which establish direct obligations for Bosnia and Herzegovina are executed by the competent institutions of the state administration whose competence covers areas regulated by those agreements.” According to §29 of the same Act, “International agreements which are concluded by Bosnia and Herzegovina, and which establish obligations for domestic legal persons, are directly executed by those legal persons.” It is apperent that the legal system of BiH recognizes the direct effect of international agreements (outside of the system of protection of human rights and general principles of international law) that establish obligations which nationals of BiH may directly refer to domestic institutions. Monism has also been confirmed in BiH in constitutional court practice. In the case U-5/09 § 30, it is stated: “...the Constitution does not prescribe to ‘transform’ international rules in domestic law […] On the contrary, according to art III/3b which establishes the priority of the constitution, the general principles of international law are an integral part of the legal system of BiH and its entities.”

Drenovak Ivanović and Lukić (2015), p. 249.

The UN Convention on the Sale of Goods was applied directly in several judgments of the High Commercial Court of Croatia (Pz 5827/06, PZ 907/06 etc.). In the Constitutional Court’s decision U-III-388/2021, it was found that the Convention on the Right of a Child was breached, and in the case U-III-2887/2018, the Civil Aspects of International Child Abduction was applied. The Constitutional Court of Serbia, too, has applied international conventions in the case Už-4813/2010, as well as the Bosnian Constitutional Court in case AP 2784/15.

Blockmans (2015), p. 312.

Case U 5/04, 27 January 2006.

AP 3464/18 of 17 July 2018.

This question is more important as the Bosnian Dayton Constitution contains several discriminatory provisions that can be said to represent a systematic discrimination of its citizens, as confirmed by the ECHR in the cases Sejdić-Finci (application nos. 27996/06 and 34836/06 of 22 December 2009), Pilav (application no. 41939/07 of 9 June 2016), and Zornić (application no. 3681/06 of 15 July 2014). The enforcement of the ECHR decisions requires amendments to the Constitution of BiH which are difficult to achieve in practice.

Art. 141 The Constitution of Croatia.

Case U-I-745/1999.

In the past two decades, practically all the countries in Central and Eastern Europe have joined the Council of Europe, which implies membership in the European Convention on Human Rights and submission to the jurisdiction of the European Court. Croatia became a party in 1997, Bosnia 2002 Serbia in 2003.

Bogojević (2015), p. 74.

Appellate court in Belgrade, Kž2 Po1 286/12 of 02 July 2012. and Kžm1. 86/2011 of 22 December 2011. cited in: Krstić (2016), p. 99.

Law faculties in Sarajevo, Eastern Sarajevo, and Banja Luka, two in Mostar, Bihać, Zenica, and Tuzla.

Law faculties in Zagreb, Spilt, Osijek, and Rijeka.

Law faculties in Belgrade, Novi Sad, Niš, Kragujevac, and Novi Pazar.

See the curriculums of the law faculties of Zagreb (see Prva godina - Integrirani preddiplomski i diplomski sveučilišni pravni studij (unizg.​hr), Belgrade (NASTAVNI-PLAN-STATUT-2011.​pdf (bg.​ac.​rs)), and Sarajevo Prva godina | (unsa.​ba).

This discipline has not changed for decades and derives from the “theory of state and law” developed and established by Andrei Vyshynskiy of the Institute of State and Law (ISL) of the Russian Academy of Sciences (RAS).

Karčić (2020), p. 8.

The contradiction is that, for example, in Bosnia, future judicial officials are not trained to implement an international mechanism for the protection of human rights despite BiH offering the widest protection for human rights in the world. Nurkić (2021), p. 102. There is hence a need for training and more focus on the use of international instruments during the decision-making process. Nurkić (2021), p. 94.

Nurkić (2021), p. 102.

Rodin (2005), p. 6.

Uzelac (2010), p. 395.

POZIV-ZA-UČEŠĆE-U-XV-REGIONALNOM-MOOT-COURT-TAKMIČENJU-PRED-EVROPSKIM-SUDOM-ZA-LJUDSKA-PRAVA.pdf (unsa.​ba).

Pravne klinike Pravnog fakulteta univerziteta u Beogradu – Pravni fakultet Univerziteta u Beogradu (bg.​ac.​rs). Otvorena pravna klinika za ljudska prava za studente pravnog fakulteta u Sarajevu - Vijesti (coe.​int), Pravna klinika - Pravni fakultet (unizg.​hr).

SEELS Network (seelawschool.​org).

In order to become a member of the Bar, candidates have to complete 3 years of apprenticeship as a paralegal in an attorney’s office, 4 years of practice working under the court system, or 5 years as a company lawyer, in addition to passing the bar exam.

Nurkić (2021), p. 101; Karčić (2020), p. 17.

Advokatska/Odvjetnička komora FBiH | Advokatska/Odvjetnička komora Federacije Bosne i Hercegovine (advokomfbih.​ba).

Advokatska komora Srbije – Istorijat advokature u Srbiji (aks.​org.​rs).

Povijest odvjetništva | Hrvatska odvjetnička komora (hok-cba.​hr).

§ 27 The Constitution of Croatia; § 67 (2) The Constitution of Serbia).

The Advocacy Act of FBiH (Zakon o advokaturi FBiH); (), The Advocacy Act of Serbia (Zakon o advokaturi Srbije); The Advocacy Act of Croatia (Zakon o odvjetništvu).

Advokatska komora Srbije (aks.​org.​rs).

The relevant work experience is work as a judge, lawyer, notary public, university professor of law.

For example, in Croatia, only a person who has worked as a judicial official for at least 10 years may be appointed as a judge of a county court. A person with 12 years’ experience may be appointed as a judge of a higher court (High Commercial Court, High Criminal Court, High Administrative Court, or high police courts), and for Supreme Court judges, the required work experience is 15 years. Besides, a distinguished lawyer with a proven scientific and professional record who has passed the bar exam and has 20 years of work experience may, too, be appointed as a judge of the Supreme Court of Croatia. See § 51 of the State Judicial Council Act. In Serbia, basic court judges must have 2 years of experience in the legal profession following the bar exam, while judges on higher-instance courts are required to have between 4 and 12 years of experience to qualify for appointment (§ 44 of the Judges Act of Serbia). In Bosnia, judges at the municipal/basic court level must have 3 years’ work experience after the bar exam; at the cantonal/county level, 5 years’ experience; for the supreme courts in the FBiH and RS, the Appellate Court in BD, and the Court of BiH, 8 years; and 10 years’ experience for the constitutional courts (§§ 21–28 of the High Judicial and Prosecutional Council of BiH Act).

§ 43 The Judges Act of Serbia; §§ 21 and 22 The High Judicial and Prosecutional Council of BiH Act; § 51 (1) The State Judicial Council of Croatia Act.

§ 43 The Judges Act of Serbia; §§ 21 and 22 The High Judicial and Prosecutional Council of BiH Act.

§ 30 The Judges Act of Serbia; § 56 The Judicial and Prosecution Function of FBiH Act; § 90 (1) The Courts Act of Croatia.

§ 17 The High Judicial and Prosecutional Council of BiH Act; The State Judicial Council of Croatia Act.

§ 51 The Judges Act of Serbia.

Venice Commission, Opinion on the Constitution of Serbia, Opinion No. 405/2006, pp. 14–16.

Serbia sets referendum on depoliticising judicial appointments | Reuters.

§ 146 The Constitution of Serbia, § (4) The Constitution of FBiH, and § 120 The Constitution of Croatia.

§ 77 The State Judicial Council of Croatia Act.

§ 8 The Courts Act; § 5 The Constitution of FBiH.

This is the task of the judicial academy in Croatia and Serbia. In Bosnia, there is a Judicial and Prosecutorial Training of the Republic of Srpska and Centre for Judicial and Prosecutorial Training of the Federation of Bosnia and Herzegovina (JPTC/JPTCs) working harmoniously.

Ballinger (1999), p. 1.