GOVERNMENT OF THE REPUBLIC OF SERBIA
ANTI-CORRUPTION COUNCIL
72 No: 700-00-3178/2014
Date: 17 April 2014
Bel g r a d e
REPORT ON JUDICIAL REFORM
- INTRODUCTION
The Anti-Corruption Council (hereinafter the Council) has been analyzing the work of the judiciary fromthe moment it was finally established that the judicial reform had failed up until the present day,with the aim offinding out whetherthere has been any improvement during this period in the areas of: the independence of the judiciary, the material situation of the judiciary, competence, responsibility, efficiency, access to justice and publicity of its work.
These are all the areas that will determine whether we shall have in Serbiaaclimateof the rule of law, which is inconceivable without an independent, competent and responsible judiciary.
This report is based on a detailed analysis of the current situation in the judiciary with reference to the legal framework, international community standards, as well as to an analysis of what, if anything has been done with regard to the conclusions and proposals from the previous Council’s 2012 Report on Judicial Reform.
- INDEPENDENCE OF THE JUDICIARY (INDEPENENCE OF COURTS AND PROSECUTORS’ OFFICES)
The independence of courts and prosecutors' offices, according to the standards of the European Court of Human Rights in Strasbourg, are evaluated according to:
1)the method of election of the judicial office holders (judges and prosecutors);
2)the duration of their term;
3)the existence of guarantees for the judicial office holders, preventing external pressures and influences, both from the executive power and from the opposing parties; and
4)the impression the judicial institutions make among the public.
2.1 The method of election of judicial office holders
Two institutions constitute the highest judicial power within the judiciary, specifically: the High Judicial Council (hereinafter referred to as the HJC) and the State Prosecutorial Council (hereinafter referred to as SPC), which means that, first of all,we should analyze their composition, election and previous work, because these bodies are responsible for the election of all judicial office holders.
These bodies have eleven members each. Three members are ex officio members, i.e., the minister responsible for the department of justice (a representative of the executive power), the President of the Supreme Court of Cassation, and the State Public Prosecutor and the President of the Parliamentary Committee on Justice (a representative of the legislative power). Ninemembers (a law professor, a lawyer and six members from the ranks of judges and public prosecutors and deputy public prosecutors) are elective members, elected by the National Assembly on the proposals of the Law Faculties(a representative of professors), the Bar Association of Serbia (a representative of lawyers), and the HJC and SPC (representatives of courts and prosecutors' offices).
All judges and prosecutors elected to permanent office have both active and passive voting right (right to vote and to be elected).
Judges and prosecutors who were elected to a term of three years (trial work) and judges and deputy prosecutors who were not elected in the 2009 Judicial Reform did not participate in the election of the current bodies of the highest judicial power because, at the time of the election, they were still conducting disputes which ended with the restoration of all judges to work. This means that more than 600 judges had neither active nor passive right of vote in the election of the HJC, while over 220 of such prosecutors did not take part in the election of the SPC.
The fact that such a large number of judges and prosecutors did not participate in the elections clearly shows that the HJC and the SPC, as the bodies of highest judicial power, were not elected by all judges and prosecutors, which casts doubt on the legitimacy of both bodies.
The method of the election of the HJC members from the ranks of judges and SPC members from the ranks of prosecutors involves four phases: nomination, voting by judges/prosecutors, submission of proposals to the National Assembly, and election by the National Assembly.
2.1.1 Nominations for election to the HJC and SPC
A judge is nominated if elected to a permanent office and if s/he has the support of the general meeting or support of 20 judges, depending on the type and level of the court. An exception is that judges inhigher instance courts may nominate themselves for election. This exception indicates that judges in higher instance courts have greater rights than other judges, which creates impermissible inequality.
A holder of a prosecutor's office (hereinafter a prosecutor) is nominated if elected to a permanent term office and if s/he has the support of the Prosecutor's OfficeCollegium, or the support of 15 prosecutors, depending on the type and level of the prosecutor's office. Anexception isthe prosecutors of the State Public Prosecutor's Office and the prosecutors of the "special" prosecutors' offices.
In the process of nomination of candidates, although they are not directly elected (one candidate - one or more courts/prosecutors' offices), there is no obligation to disclose information about the candidates, about their work on cases, about their theoretical work, their plan, or their vision of their work in HJC, or SPC, and because of that, when voting, judges and prosecutors have no relevant information on which to decide whether a candidate meets the requirements to be a member of the highest judicial body.
The process of nomination is not transparent because information on candidates is not published, so public experts and professional associations do not have anyinformation, and the Council deems that they should be allowed to give their advisory opinions.
The Council deems that the procedure should be made fully public, so that full publicity of the nomination would help the best candidates be elected, and not the most obedient, as it is now.
2.1.2 Voting
The problem with voting for candidates from the ranks of judges and prosecutors is that there is no direct voting, because it is possible to vote only for one representative per type, level and rank of courts or prosecutors’ offices, and the voters vote for candidates from other courts and prosecutors' offices whose quality all voters need not know.
As judges choose a total of only six representatives from among the rank of judges, and predominantly one representative per type, level and rank of the courts, it is clear that every court cannot have its own representative, and that there are no conditions for direct voting in each court for a candidate of that court;however, this is precisely the reason why nomination must be transparent and efficacious, for the fact is that both the first convocation of the HJC andthe permanent convocation VSS failed to respond to their tasks, and their work was not in accordance with the law and the expectations that the judiciary would finally become independent.
The situation is identical with the election of six representatives from the ranks of prosecutors.
2.1.3. Proposal and election of HJC and SPC
After the voting, the HJC and SPC, depending on the voting results, propose members of the HJC and SPC to the National Assembly, judges and prosecutors. As the HJC and the SPC elect all the holders of judicial offices, the Council deems that the election of these bodies must be fully independent of the executive and legislative powers and, according to the recommendations of the Committee of Ministers of the Council of Europe No. R (94) 12 and R (2010) 12, the HJC members from the ranks of judges should not be elected by the National Assembly, but,rather, rules should be adopted that would ensure that the members of this body be elected by judges.
A big problem with the present election is that the National Assembly is not obliged to elect the nominated candidates, or to make the election within a given period of time. So far, the Assembly has not publicly refused to elect any of the proposed candidates for the HJC and SPC; however, in delaying to make a decision in due time, it caused the first convocation of the HJC to work as an incomplete assembly (without representatives of professors and lawyers).
The biggest problem with the election is that the Minister of Justice (a member of the executive power) and the chairman of the Assembly Judiciary Committee (a member of the legislative power) take part in the work of the HJC and SPC.
In accordance with the standards of the European Court of Human Rights, the participation of members of the executive and legislative powers in the election of judges and prosecutorsdoes not in itself mean that courts are dependent and prosecutors subservient;however,when one takes into account that Serbia does not have a developed democratic society, then their participation in the work of the HJC and SPC should be viewed with criticism,because it has been proven that these members influence the making of political decisions which are not within the jurisdiction of these bodies (Decision on the Courts and Prosecutors’Offices in the territory of the Autonomous Province of Kosovo and Metohija), as well as decisions that are not in the interest of the judiciary (assigning judges to work at the Ministry of Justice and Public Administration).
We have seen our level of the development of the rule of law and the independence of the judiciary through the failure of the non-transparent judicial reform, in which politicians of the ruling parties made lists of judges and prosecutors; in which affiliation and pertinence, rather than expertise, conscientiousness and dignity were valued; in which unelected judges were denied all rights, and even the right to appeal to the Constitutional Court.
Four years after the start of the judicial reform,no by-laws have been passed,nor have standards and criteria for the election of judges been established, which means that the judicial power continues the election according to pre-defined political lists, without any standards or criteria.
The HJC failed to elect court presidents in a timely manner according to predetermined objective criteria, accepting the situation withacting court presidents (hereinafter acting positions). It is generally known that people who do not have a safe position, such as acting court presidents, depend on the executive power and that, because of their insecure position, they become an obedient arm of the executive power.
When analyzing the composition and election of the body of highest judicial power, it is clear that the executive and legislative power branches are incorporated in the election of judicial power holders.
However, not only in this way is there the possibility of influence by the executive and the legislative powers: there is also another way of mixing the executive and judicial powers at the expense of the latter.
According to the law, prior to the adoption of the set of laws on the judicial reform, a judge could be assigned to work only inanother court if necessary and with his/her agreement. The law expressly provided that a judge may not perform work in bodies which adopt or enforce laws, which prohibited the mixing of the tasks of the legislative and executive powerswith the tasks of the judiciary, which means that, according to the law,the jobs of the executive power are incompatible with the judicial function.
The Law on Judges from the set of the judicial reform laws (Article 21) provides that a judge may be assigned to carry out professional activities in the ministry in charge of the judiciary (hereinafter referred to as the Ministry of Justice), even though this law also prevents performing tasks in bodies which adopt or enforce laws. The Ministry of Justice proposes and enforces laws, therefore these jobs are incompatible.
It has been noticed that judicial office holders work at the Ministry, which is by its very nature incompatible with the judicial function, because the position of judges and prosecutors and their commitments to justice are in stark contrast with the activities and duties of the Ministry’s staff.
For these reasons it is necessary to delete the provisions of the Law that allow the assignment of judges and prosecutors to work at the Ministry of Justice.
2.2 Term of office
The term of office of judges is specified by the Constitution, which says that the term of office of judges is permanent, which is a full guarantee of the independence and security of judges in anordered society. The mandate of a deputy public prosecutor is specified by the Constitution as permanent, too. But in Serbia, as according to the interpretation of the 2006 Constitution, the judges and the prosecutors have been denied permanence of office, the said provision does not mean that the executive and legislative power branches in a party-runstate cannot amend the Constitution and judicial regulations and, based on the interpretation of that amendment, violate the permanence of the judicial officeagain, as it was done in the alleged "2009 Judicial Reform".
2.3 The existence of guarantees for judicial office holders
The Council deems that judicial officials have no guarantee against outside pressures from the executive and legislative power branches, as well as against the internal pressure fromcourtpresidents, public prosecutors and political parties.
Representatives of the government interfere in the work of courts with a very serious violation of the presumption of innocence. It has become common for government officials to comment on trials in concrete cases. Representatives of the executive power announce arrests and detentions even though the court has not issued such a decision. How it affects the work of judgesshows the fact that always after such announcements arrests and detentions follow indeed. In such cases, the detention is very often prolonged so that in some cases theConstitutional Courthas had to react by annulling detentions that were longer than allowed. The problem is that with the announcement of arrests and detentions it is never clear whether the court has done it because of the pressure of politicians, or whether it has been done because it is necessary for conducting criminal proceedings.
Judges have no guarantee whatsoever that they will perform their function peacefully and without any pressure. On the contrary, politicians threaten judges if they do not like their trials and decisions. Threats are related to the alleged demands of the Minister of Justice to carry out supervision of the work of judges in certain cases (Kertes, Kontrast, Červenjeko).Politicians participate in citizens'protestsagainst court decisions in front of court buildings and intimidate judges.
Very often, voices can be heard from the Ministry of Justice that the trend of judicial independence which is forced in Serbiais completely wrong. We shall comment only on one such statement, and note that is thediscussion of anassistant minister of justice at ameeting of the Working Group for Preparation of the Strategy of 27.02.2013 (a written memoof the discussions at the meeting).
The Assistant Minister stated that there was a "pernicious trend of judicial independence" and that it is necessary to establish "checks and balances" between the judicial and executive powers, as otherwise an "irresponsible group of 2,000 people (referring to judges) would become outlaws", and that such a model of independence cannot be imposed when systems with all the "rightsvested in the hands of the Ministry of Justice" work well in the world, as it is in Germany.
It is true that there are systems in Europe in which the ministriesnominate and electjudges, but these are countries that have a years-longdeveloped democracy with a responsible government in which belonging to the ruling political party is not a privilege of accessing an office, but only increased responsibility (all officials in the Ministry of Justice are politically committed).
How to compare Serbia with countries that have a system of values and thinking, especially regarding the independence of the judiciary, with countries that have developed institutions, developed media which create an objective public opinion that has great influence on the political life and politicians, with countries where the rule of law was established long ago, together with free and independent institutions? It is quite impossible, because none of the above has been developed in Serbia.
There are many examples of the underdevelopment of our institutions and discretionary provisions which give the Minister of Justice unlimited power, such as the discretionary provision that the Minister of Justice decides on the recourse claims against judges (it must be an imperative norm). In fact, it is the case with judges who decided on cases in which a higher instance court found that the right to a trial within a reasonable time was violated.
According to the Constitution, prosecutors are autonomous but not independent.