Bosnia and Herzegovina
Contributor: Attorneys at Law in cooperation with Karanovic & Partners
Author: Amina Đugum
1. Is there specific legislation in Bosnia and Herzegovina ruling the using of documents (such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs) executed with the use of digital platforms or any electronic signatures by the local Aviation Authority?
There is no specific legislation in Bosnia and Herzegovina (“BH”) governing the use of documents executed with the use of digital platforms/electronic signatures by the BH Directorate for Civil Aviation (“BHDCA”) specifically.
However, electronic signing is generally governed by the BH Law on Electronic Signature (“BH E-Signature Law”), while there is no law that specifically regulates the use of digital platforms. In accordance with the BH E-Signature Law, all qualified electronic signatures have the equivalent legal effect of handwritten signatures.
We emphasize that although the BH E-Signature Law was adopted in 2006, the issuance of e-signatures in practice only started a few years ago. Although qualified electronic signatures have the equivalent legal effect of handwritten signatures, in practice, and to the best of our knowledge, local authorities (including the BHDCA) are reluctant to accept electronically signed documents.
All applications, along with the supporting documentation filed to the Directorate, must be in printed paper documents, in the original or certified copy version for some documents, and executed with a handwritten signature, according to the information we received from the BHDCA (on a no-name basis).
2. If your answer to (1) is yes, is there any specific requirement for the validity of such signatures, such as completion with a specific cryptographic platform developed by any local institute of technology?
The BH E-Signature Law regulates only the qualified e-signature. It clearly provides that the qualified e-signatures are of the same legal force as handwritten signatures.
A qualified e-signature is a special type of advanced electronic signature that is linked to an electronic certificate issued by the competent authority. The only authorized provider of qualified e-signatures in BH is Halcom Ltd., with its headquarters in Sarajevo.
Nevertheless, the above does not mean that any e-signing in BH requires the existence of such qualified e-signatures. Such a requirement exists only for those types of documents, i.e., contracts, for which a written form is explicitly required by BH laws. In all other situations where the local laws do not require a written form, a qualified e-signature as such is not required.
3. Does the Aviation Authority in Bosnia and Herzegovina use an electronic register for Aircraft Documents or Aircraft Lease Documents (including Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs)?
The BHDCA does not use an electronic register for Aircraft Documents or Aircraft Lease Documents. It only uses a physical Register/Book of civil aircraft and other airborne subjects in BH.
However, there is an electronic register of pledges over movables, which includes pledges on aircraft. The register is an online database available on the BH Ministry of Justice’s official website. Pledges on aircraft can be registered and searched via the online register. It is possible to upload electronic files for registration in the register.
4. If your reply to question 3 is yes, is it possible to upload electronic files for registration, such as Leases, Security Agreements, Mortgages, Lease Assignments, Novation and IDERAs with the Aviation Authority in Bosnia and Herzegovina?
5. Do the courts of Bosnia and Herzegovina consider valid and enforceable documents executed by the use of some type of digital signature or certification even if not registered (or registrable) with the local Aviation Authority?
Generally, when there are no regulations prescribing other legal requirements pertaining to the execution of documents (e.g., a requirement of handwritten signature certified by a notary public, a form of notarial deed, etc.), all documents may be signed by a qualified electronic signature, with legal effect equal to that of a handwritten signature (in accordance with the BH E-Signature Law). However, as noted in response to Q1, the use of e-signature is not developed in practice, and authorities in BH are generally reluctant to accept electronically signed documents.
6. Is it possible to upload lawsuits, pleadings, and procedural documents electronically in Bosnia and Herzegovina?
It is not possible to upload any type of procedural documents in a court proceeding in Bosnia and Herzegovina. All documents must be submitted in written form (via mail or submitted directly to the court).
However, once submitted, those documents will, in general, be uploaded to a digital database used by the judiciary system in BH. Although access to the database is limited and shall be granted only upon a request of a party to the proceeding (or its attorney), once the access is granted, most of the documents submitted in the proceeding will be accessible for viewing and downloading (of a copy) by the subject to which the access is granted to.
Access to the database is granted via a code or to a user registered on the official website through which the database is accessed. The access can be obtained only to a particular proceeding for which the request for access has been filed earlier upon.
7. Do the courts of Bosnia and Herzegovina accept procedural documents executed digitally? Is there any specific certification required? Does Bosnia and Herzegovina make any distinction between official digital signatures and private digital signatures?
Courts in BH generally do not accept procedural documents executed digitally.
8. Are there any formal requirements for the validity of documents executed by digital signatures? Ex.: Does the consent of the parties to digital signatures have to be expressly referred to in the agreement?
According to the BH E-Signature Law, only qualified e-signatures are accepted in BH, but having in mind the situation described under Q1, the use of e-signatures is not developed in practice, and authorities in BH are generally reluctant to accept electronically signed documents.
9. Can foreign entities not located in Bosnia and Herzegovina execute Lease Agreements or any Finance Documents with digital signatures to be filed for registration with the Aviation Authority in Bosnia and Herzegovina? Are there any other formalities required?
No, they can’t. All of the documents that are to be filed for registration with the Aviation Authority in BH must be filed in written form with an ink signature, according to the information we obtained from the BHDCA (on a no-name basis). For further information, please see the answer to question three about digital signatures and the answer to question one of this questionnaire.
10. Does the Aviation Industry in Bosnia and Herzegovina usually use digital tools such as blockchain technology for the purpose of control of Aircraft Documents in substitution of printed paper Aircraft Documents?
The aviation industry in BH is still using printed paper aircraft documents, but it is also possible that there may be some organizations (which are operating on a multinational level) within the industry that are exploring and practicing the use of digital tools such as blockchain technology for the control of aircraft documents.
11. Are there any Notary or Apostille requirements in Bosnia and Herzegovina? If so, do they apply to electronically executed documents, and how does this affect the possibility of electronic execution and delivery of aviation documents?
There are Notary and Apostille requirements in BH for some types of documents. With the Apostille Convention in force in BH, public documents must be certified with an apostille by a court in BH to be recognized in other countries/parties to the convention and vice versa.
Once a document certified with an apostille abroad is to be used in BH, it must be translated into one of the official languages in BH by a court interpreter, and then, the identity of the translated and the original version of the document must be certified by a court in BH.
However, there are countries for which public documents the Apostille is not required in BH. Those documents only need to be certified or issued by the local authorities of the country, and if the document is in a foreign language, it must be translated by a BH court interpreter. The list of those countries includes 21 countries, most of them from the region and EU.
If the country in question is not a signatory of the Apostille Convention, public documents from that country must pass a full legalization procedure to be used before the authorities in BH. That implies a procedure that is a lot more complicated and time-consuming, but once legalized, those documents can be used in BH.
a. Has BH implemented the e-Apostille program?
No, BH has not implemented the e-Apostille program.