Plenary hall of the National Assembly of Serbia; Photo: Wikimedia Commons

Serbia is two years late with the changes of its Constitution in the parts concerning the independence of the judiciary. The original deadline for the amendments was the end of the year 2017. Revision of the Action Plan for the Chapter 23 postponed the reform for the second and third quarter of 2018. However, it is the end of 2019, and Serbia does not have a new Constitution, while the Minister of Justice announced in August that it will be the new parliament, elected in Spring 2020, that will conclude the process.

Reform of the Constitution is one of the obligations of Serbia towards the EU, which was formulated by the Action Plan for the Chapter 23. It is intended to bring more independence to the judges and prosecutors and thereby bring Serbia closer to EU standards.

However, the path of the reforms so far has been marked by numerous problems. In addition to expert associations accusing the executive for wanting to exert more control over the third branch of government through the amendments, the proposed changes were written by the Ministry of Justice, which is not a responsible body in this case.

“The Minister of Justice admitted that the Government is not responsible to draft the amendments at all. The Government does not have a constitutional right to write the amendments of the Constitution and send them to the Venice Commission. Everything it has done in the past two years was done without a legal authority”, says the Vice President of the European Movement in Serbia Vladimir Međak for EWB.

According to the Constitution, it is the National Assembly of Serbia, the country’s parliament, that has the authority to write the amendments. Ministry of Justice has thus for two years lead a process it is not responsible for.

“Somebody should be taken to account over this. Why has the Government, as a branch without authority in this process, spent two years in it? According to the budget of the Action Plan for the Chapter 23, this area will cost the Government half a million Euros. Does this mean that the body without authority has spent half a million Euros? It is an offence at best”, Međak explains.

Milan Antonijević, Executive Director of the Open Society Foundation in Serbia, says for our portal that the civil sector, as well as expert associations, have warned that the Ministry lacked authority to work on the document and send it to Venice Commission from the very beginning.

“There is a procedure for changing the Constitution, authorising the National Assembly to form a working group which discusses on how the new Constitution should look like. It does not matter whether the Government, or some other unauthorised institution worked on it”, Antonijević says, adding that this returns Serbia to the starting point and that this is the reason why 2019 was given up on as the year in which the amendments will be adopted by the National Assembly, and then decided on by the citizens in a referendum.

Changes without removing the problems

Serbia is obliged to change the parts of the Constitution regulating the functioning of the State Prosecutors Council and the High Judicial Council, responsible for, among other things, electing the prosecutors and judges in the country. At the present time, judges constitute the majority of the High Judicial Council (7 out of 11 members), as are the prosecutors in the State Prosecutors Council (6 out of 11).

Vladimir Međak emphasises that the new amendments stipulate that only half of the new members of the High Judicial Council would be judges (5 out of 10, the rest would be jurists elected by the National Assembly), while the prosecutors will become the minority in the State Prosecutors Council (4 out of 11).

“According to the new rules, if the judges in the High Judicial Council do not reach a decision in 60 days, that body will be dissolved. That means that every 60 days a total blockade of the courts could take place”, Međak notes.

He stresses that the new amendments do not solve the problem of the political pressures on the judiciary.

“These amendments ensure a greater party control, if they are adopted as they are. The National Assembly would de facto control the judiciary. There is also a commission responsible for the election of the members of the High Judicial Council and State Prosecutors Council if the parliament cannot find a two-thirds majority for a positive decision”, Međak says.

He emphasises that the proposed commission would be made up from the Speaker of the Assembly, President of the Constitutional Court, President of the High Court, the Supreme Public Prosecutor and Ombudsman, which would ensure the control of 126 MPs on the whole of the judiciary, because of the fact that they elect three out of the five members of the commission by a simple majority.

The proposed amendments introduce a criterium for becoming a member of the judiciary, and that is going through a Judicial Academy, whose members would also be elected by the National Assembly.

“The National Assembly would control the Judicial Academy. And our first demand is the elimination of politics and division of the judiciary from the parliament. In this case, only the place of the control is changed, but the controller remains the same”, Međak stresses.

Nebojša Vladisavljević, Professor at the Faculty of Political Science in Belgrade, points out for EWB that the current proposal of the amendments does not change anything when it comes to political pressures on the judiciary.

“Some of the mechanisms of pressure are removed by the proposals, but the new ones are simultaneously introduced. It is clearly an attempt of manipulation by the government, so that the changes occasionally demanded by the influential foreign and domestic political players are implemented”, says Vladisavljević.

He emphasises that these changes are just a part of the “package” of authoritarian manipulation, which could have been seen in the past several years, in which the government selectively implements the rules, according to its party and personal interests.

“In this context, reform of the Constitution, laws and other documents – including electoral legislation – do not influence the political and social life significantly – their purpose is to set up a democratic facade of the authoritarian government”, Vladisavljević concludes.

Milan Antonijević believes that these amendments show that the Government can wrongly produce a text and submit it to the National Assembly.

“Civil society has been pointing out from the very beginning that the process was wrong, the Government used the wrong pathway to submitting the draft amendments to the Constitution to the Assembly, which regards the paper as the only option before it. We had numerous complaints about the text that is currently in the Assembly”, Antonijević says, adding that he hopes that the arguments against these amendments would find their way into media, Brussels and the parliament.

Postponement of the reform of the Constitution has slowed down the European integration process of Serbia

Reaction of the European Union to the serious delay of Serbia in the most significant areas of accession process came in a form on “non-paper” report on the state of Chapters 23 and 24. The report notes on 21 separate occasions that Serbia is seriously late in implementing necessary reforms.

The report also assesses that the process of constitutional reform has ceased. The Commission emphasised that the importance of the continuation of this process “as soon as possible, in a transparent and inclusive manner”.

Vladimir Međak says that Serbia risks the activation of the imbalance clause by the EU.

“We are one step away from the activation of the imbalance clause, which was introduced in the negotiating framework and ensures that the lack of progress in the Chapters 23 and 24 also means the lack of progress in further negotiations. We have opened only one chapter in December, and it is unknown when we will open the next one and what will happen in the near future”, he notes.

He explains that the EU does not have to reach a formal decision on freezing the negotiations by activating the clause – it is enough to send a political message by not opening more chapters.

Milan Antonijević emphasises that the delay of the reform of the Constitution has indeed slowed down the European integration process of Serbia.

“This delay has shown that we have completely skipped the year 2019 when it comes to Chapter 23. The big part of what Serbia has taken up as an obligation through these action plans is the change of the Constitution and bringing back the independence to the judiciary. This cannot be implemented fully without the changes, and giving up on them is the first sign that the process is slowing down”, Antonijević said.

Venice Commission has accepted minimal standards

The Venice Commission of the Council of Europe, whose opinion the European Commission also accepted as the key banchmark for the assessment of the progress of judicial reform in Serbia, originally took a critical stance towards the proposed amendments.

In its conclusions, the Venice Commission noted that there are numerous open question that need to be solved, which concern the political pressure on the judiciary. Secretariat of this body endorsed the amendments in October after all, even though they have not been changed in the previously criticised parts.

According to Vladimir Međak, all Council of Europe member states have certain standards when it comes to the independence of the judiciary.

“There is a rule in the Venice Commission that emerging democracies must have higher standards than the minimal ones. And what we are targeting with these amendments are bare minimums”, says Međak.

He emphasizes that, while Serbia has met the Council of Europe’s minimum standards, the minimum standards of the Action Plan for the Chapter 23 have not been met.

“This is a strange situation, in which the European Commission has said it will rely on the opinion of the Venice Commission, and the Venice Commission does not have to follow our Action Plan for Chapter 23. These are two completely separate organizations. We may be fulfilling some minimum Council of Europe standards, but this does not satisfy EU standards”, said Međak, adding that Serbia would not be able to enter the EU if the amendments are adopted in this form.

Međak notes that the opinion of the Venice Commission must be ignored because the Government was doing something for which it was not authorised, below the standards set out in the Action Plan for the Chapter 23.

“What we have received from the Venice Commission must be ignored. We have to send a new text because, for two years, we have been doing everything outside the framework of the Action Plan for Chapter 23”, concludes Međak.