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While the experts insist that the proposed amendments to the Constitution of the Republic of Serbia, even after the fourth version of the draft, not only bring no improvements but also represent a “step backward”, the State Secretary at the Ministry of Justice Radomir Ilić, who voiced his idea about assigning the election of judges and prosecutors in the presidential powers, raised concerns that Serbia has been increasingly moving away from the EU acquis while formally striving to align with it

The European Commission’s Strategy for the Western Balkans foresees that Serbia and Montenegro could respectively join the EU by 2025. The best reflection of how unrealistic the idea of Serbia joining the EU in five years is the judiciary system: the end of constitutional reform, which should ensure the independence of the judiciary was supposed to be finalized by the end of 2017.

In 2013, the National Assembly of Serbia adopted the National Judicial Reform Strategy. Based on the strategy, an Action Plan for Chapter 23 – Judiciary and Fundamental Rights was prepared and adopted by the Government of Serbia in October 2015. According to the Plan, by the end of 2016, Serbia should have finished drafting amendments to the Constitution, conduct a public debate and submit the amendments to the Venice Commission – an advisory body to the Council of Europe (official name: European Commission for Democracy through Law), which between the rest deals with the assessment of the quality of constitutional solutions.

By the end of 2017, Serbian citizens should already have voted in a referendum on proposed constitutional changes. However, since the implementation of the plan did not go far, the referendum did not take place. The only national vote held in Serbia that year were the regular presidential elections.

The need to amend the Serbian Constitution was recognized by the Venice Commission in its first Opinion on the Constitution of Serbia in 2007. The Commission made a number of negative comments on the organization of the judiciary system in Serbia, primarily suggesting that the independence of the judiciary from the legislative and executive branches needs to be ensured.

What are the drawbacks of the current Constitution?

According to the Constitution of the Republic of Serbia (adopted in 2006), the election of judges and prosecutors to a probationary term (three years) is carried out by MPs – a legislature that represents no guarantee on the independence of the judiciary. After the probationary period, the judges and prosecutors are elected for a permanent term by two respective varied bodies composed of representatives of professional associations and political parties – the High Judicial Council or the State Prosecutors Council.

Although the High Judicial Council and the State Prosecutorial Council were both founded with the idea that the decision-making center should be set free from purely political circles, experts say this has not helped achieve the desired results.

The reason for this is that in the current decision-making structure (in accordance with Articles 147, 153 and 164 of the Constitution of the Republic of Serbia) the National Assembly not only elects judges and prosecutors who take office for the first time but also directly elects members of the Supreme Judicial Council or the State Prosecutorial Council.

Such a decision-making structure puts the decision to appoint judges and prosecutors directly in the hands of the authorities, which is at the same time one of the biggest objections raised by the Venice Commission in 2007. The fact that the process of constitutional reform has been “on hold” ever since the Serbian Government submitted the amending initiative to the Assembly in November 2018 was also emphasized in the Commission’s latest progress report on Serbia.

“One of the reasons why the reform has been in deadlock is a definite lack of real intent on the part of those leading the process, primarily the Ministry of Justice, to carry out the basic tasks of reform – removing influence from the judiciary or at least minimizing it through legal mechanisms”, assessed the judge of the Appellate court in Belgrade Miodrag Majić in an interview with the European Western Balkans (EWB).

Majić points out that the reform process has gone far but in a completely opposite direction. “There are other intentions bellow the surface,” he said, “and these are the preservation of political influence on the judiciary at the very least and, if possible, to strengthening the control through legal mechanisms.”

“A clever system”

The idea of ​​introducing external control of the judiciary as a possible direction for constitutional changes, which has raised public concern because of the fact that it would strengthen the political influence over the judiciary, was recently announced by State Secretary at the Ministry of Justice Radomir Ilić on TV Prva. Ilić explained his proposal with the perspective that “the Ministry of Justice lost its powers during the European integration process”.

“The Serbian Constitution,” Ilić explained, “must change in order for the judiciary to gain external control, as the judiciary and prosecution”, he said, have become an “irresponsible branch of government” and “a closed system that takes care only of itself”. The State Secretary at the Ministry of Justice stated at that moment the example of France, as an example of good practice that Serbia should strive for.

“We have, therefore, in France, where their constitution the judiciary is not a branch of government but an authority, and judges and prosecutors are appointed by the president of the state. So, in our country, instead of the president, instead of, to say, the president Vučić to appoint judges”, Ilić suggested.

Asked if the independence of the judiciary would be called into question by doing that, Ilić said that out of political pressure, unlike other pressures, was made a story “bigger than it is” and reiterated that in the frameworks of constitutional reform the introduction of “external control” is needed, so that, according to him, a closed circle of judges and prosecutors would open up.

This statement by the State Secretary at the Ministry of Justice came between two statements by Serbian President Aleksandar Vučić on the same subject. Namely, just days before Ilić made his proposal, Vučić made a guest appearance on the morning program on TV Prva, assessing that in France “they have a clever system – in France the executive power selects prosecutors and judges, and then the president is responsible for prosecutors and judges”.

When asked why he does not change the system that is wrong, Vučić replied that “he cannot because the European Union does not allow, as well as any of you, because all of you will say that I am interfering with the independence of the judiciary and the independent prosecution”. Vučić dissociated himself from Ilić’s statement, stating for Tanjug that he was “not interested in having control over judges and prosecutors”.

A step backward

On October 15, after the Ministry of Justice announced the fourth version of the Draft Amendments to the Constitution of the Republic of Serbia, the Association of Public Prosecutors and Deputy Public Prosecutors of Serbia, the Judges’ Association of Serbia, the Lawyers’ Committee for Human Rights, the Judicial Research Center and the Belgrade Center for Human Rights announced in a statement that “the proposed amendments strengthen political influence on the judiciary.”

The fourth draft envisages a reduction in the number of representatives of the profession at the expense of an increase in the number of political representatives who would make up the High Judicial Council and the High Prosecutorial Council (mixed bodies with the idea, but not currently, to decide on the election of judges and prosecutors).

“Instead of the High Judicial Council and the High Prosecutorial Council independently deciding on the election of judges and prosecutors, with the composition of these bodies the influence of the legislative and executive power on the election process maintains”, experts assessed in a statement.

It is said in the statement that the draft amendment “also calls into question the fulfillment of the obligations of the Republic of Serbia undertaken within the framework of European integration, that is, the Action Plan for Chapter 23, which insists on removing political influence over the judicial authorities”.

The announcement of the Fourth Draft was accompanied by a notice from the Ministry of Justice on its website that the Venice Commission “concluded that the latest version of the amendment, which came after compliance with the comments of the expert public, was in line with the Commission’s recommendations”.

This announcement was soon denied by a group of lawyers’ associations. They stated “that the information provided by the Ministry of Justice was inaccurate” because “the Venice Commission did not decide at all whether the latest version of the constitutional amendments was in line with its recommendations”.

While the Venice Commission’s opinion on the Fourth Draft Amendment is still pending, judge Majić notes that the reform is also slowed down by a “markedly favorable” view of the EU institutions on all delays in the reform process.

“My impression is that their reports are prepared with the primary objective of not making the rulers angry and not to overly disturb them, instead of objectively and clearly indicating how things have been working out in Serbia in the area of ​​the rule of law over all these years we have been speaking about the reform”, said Majić.

He reminded the political pressures that followed the re-election of judges and prosecutors in 2010, when the process was undertaken “with the support of international representatives”, to later turn out what many were pointing to, so it quickly moved on to condemnation of the way the process was carried out.

In October, Minister of Justice Nela Kuburović said in a statement to the daily Kurir that “given the complexity of the process”, constitutional reform should end after the election.

Parliamentary and local elections in Serbia will take place on 26 April. Following them, in due time, Serbia is also awaiting a referendum on constitutional changes. The last word on both votes belongs to the citizens of Serbia.