Legal (in)Security

The question of legal security is the question that can be posed to each country when it comes to its regularity, democracy, and relationship towards its citizens. The goal of every well-organized human society should be the existence of absolute legal security, which makes an integral part of what we call the rule of law. The concept of legal security may include, inter alias, the right of every individual to be familiar with the applicable legal norm and that this legal norm applies to the same in the equal way as to other individuals if they are in the same legal situation. Of course, this is, in essence, related to the harmonization of court practice and practice of administrative bodies applying legal norms to individual cases.

 The issue of legal security is, at the same time, an issue of assessment of success in a court case and the same has been more and more frequently raised in front of proxies or legal representatives in the last few years, especially when representing legal entities. It is particularly important for legal entities that are under certain regulatory regimes (insurance companies, banks, etc.), where there is an obligation to reserve funds to cover losses that may arise if a court case is lost. The amount and the dynamics of the reservation are often linked to the assessment of the company’s success in a dispute, especially in disputes in which they are sued party.

The assessment of a party’s success in a dispute contains, first of all, an assessment of how the dispute will be terminated, and after all when it will take place (hence the length of the proceedings). Both of these may be of crucial importance for a legal entity participating in court proceedings, especially when the subject of the dispute is related to a particular financial claim. There are many factors influencing the assessment of success, for example the quality of evidence of litigants, the manner of conducting proceedings by the legal representatives, the established jurisprudence on a particular legal issue, etc. However, what constitutes to be an additional problem in assessing the success of a dispute in the Republic of Srpska (as well as in Bosnia and Herzegovina) is that those who make an assessment need to take care of the court in which the proceedings are being conducted and recently, unfortunately, who is the judge who was assigned the case.

Namely, there is increased number of cases that the courts in the Republic of Srpska, on the same or almost identical legal basis, adopt diametrically opposed decisions and take completely different positions. This is happening not only with the first instance decisions, but also with the second instance and what is particularly dangerous for legal security even in the decisions of the Supreme Court of the Republic of Srpska. The term ” jurisprudence” in the Republic of Srpska almost means nothing, even when it comes to relatively old legal institutes such as the transfer of the pledge to a new creditor, the principle of trust in land registers, the common property of spouses, etc. Then, how can we expect to harmonize jurisprudence in copyright, the right to intellectual property, environmental law, and other branches of law that have emerged in the modern times?

Of course, this situation is untenable for a long time. Our society needs legal security, a stable and trustworthy judicial system and a uniform court practice. Finding solutions to get out of this situation will not be so easy. Reforms are needed, especially in the area of education of future candidates for judges, the selection of judges, their training, specialization wherever possible, and certainly the strongest possible sanctions on corruption in the judiciary, which is already “so visible” to everyone except maybe those who have to deal with it.

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Aleksandar Sajic's picture

Aleksandar Sajic is a Founder and Director of the Law Firm SAJIC. Aleksandar graduated from the University of Banja Luka School of Law in 1997, and independent law practice started in 2000 in the joint office "Sajic Stojanka i Sajic Aleksandar" which in 2003 changed its form to the partnership.

Aleksandar is a member of the European Association of Attorneys (AEA), Union Internationale des Avocats (UIA), International bar association (IBA), International Law Association (ILO) and in professional legal guides he is recognized as a leading expert in these areas of law.

In addition to commercial law, M&A, stock exchange law and insurance law, Aleksandar also deals with issues of minority shareholders, PPP and legal risk assessment. In these areas of law, he advises and represents clients before courts and other competent authorities.