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Judicial reforms after the change of the Serbian Constitution: Potential for both reduction and institutionalization of political influence on the judiciary

National Assebly in Serbia; Photo: FoNet

This article was originally published in Serbian

The set of judicial laws implementing the constitutional reforms adopted on the referendum should be adopted by February 9, the anniversary of the promulgation of the new Constitution in the Serbian Parliament. This should enable greater independence of judges and prosecutors, being one of Serbia’s obligations towards the European Union defined by the Action Plan for Chapter 23.

The Ministry of Justice of Serbia created a working version of judicial laws that the Venice Commission, a body of experts on the constitutional law of the Council of Europe, assessed as having “the potential to bring about significant positive change in the Serbian judiciary and the prosecution service”.

According to Katarina Golubović, president of the Committee of Lawyers for Human Rights (YUCOM), the constitutional changes had the task to remove the wrongly established constitutional foundations of the judicial bodies of Serbia, which gave the key for the selection of judges, prosecutors, furthermore all presidents of courts and public prosecutors to the legislative power.

“The public prosecutor of the Republic was proposed by the Government and elected by the National Assembly. Therefore, the Constitution of 2006 legalized the influence of politics on entering the judiciary and prosecution. With the amendments, that type of legislation no longer exists. The always possible influence of politics in the work of the judiciary will have to find other channels, but will consequently enter an illegal and illegitimate sphere,” Golubović stated.

However, there is still a fear of the possibility of political influence on the judiciary.

“It is almost certain that every ruling majority will make an effort to introduce “their people” into the judicial councils. We already see that for prominent lawyers, who will enter the judicial councils, neither a special external appointment process nor special knowledge is required, which means that many candidates will be eligible for that “new title”. Those who are not selected, no matter how good they are, have no right to appeal,” said Golubović. 

She assessed that the Constitution has given a minimum that cannot be worsened by laws, but the question is whether the laws will improve that minimum and whether the purpose of the constitutional changes will be achieved.

 “The budget is still the main lever of influence. Although the constitutional changes did not completely transfer it to the jurisdiction of the judicial and prosecutorial authorities, the working versions of the prosecutorial laws increased the influence of the profession on its determination. And if you leave judges without assistants and notaries and if you do not pay judges and prosecutors adequately, which will not happen with these changes, the citizens will have neither quality decision-makers, nor a quick judgment, and therefore no justice,” she stated.

Sofija Mandić from the Center for Judicial Research (CEPRIS) pointed out that the public was assured that imperfect constitutional solutions would be corrected by new laws, but now it can be seen that the opposite can happen – that constitutional solutions can only be additionally harmed with laws.

“The law cannot “break through” the limits of the Constitution, and we are left with the bad and half-hearted solutions we adopted in January,” she said.

She added that CEPRIS believes that the proposed solutions are not satisfactory and will not remove the possibility of political influence on the judiciary. 

“When we say judiciary, we mean both the judges and the prosecutor’s office. It is not only about not removing the possibility of political influence – the possibility or potential attempt of political authorities to influence exists even with the best possible solutions. This is about the fact that influence policy is still in the system, but not only in this practical sense, but also that it is supported and encouraged by legal norms, first of all Constitutional, and then legal norms,” she pointed out.

Attempts for politics to influence the judiciary regardless of constitutional solutions and solutions in new judicial laws are always possible and exist in other countries, and the only question is whether such attempts are institutionalized, legalized, and normalized. In democratic countries, this is not the case, but it is still the case in Serbia, Mandić highlights. 

In December, at the request of the Minister of Justice of Serbia Maja Popović, the Venice Commission published an opinion on two draft laws for the implementation of constitutional amendments on the prosecution and a new opinion on three draft laws for the implementation of amendments in the field of judiciary.

From that body of the Council of Europe, they reiterated that the recent constitutional amendments “have the potential to bring about significant positive change in the Serbian judiciary and the prosecution service”.

“However, the Commission emphasises that a truly successful reform of the prosecution service requires non-legislative measures to be taken following the adoption of these legislative amendments. In that sense, the adoption of these legislative amendments marks an essential but not the last step in the process,” the announcement states.

When it comes to the prosecution, the Commission stated that it is necessary to avoid all members of the High Council of the Prosecution elected by the National Assembly (prominent lawyers) being connected to the political majority.

The rapporteurs of the Venice Commission, Regina Keener, and Martin Kuijer, stated that they had “excellent and constructive” cooperation with the Minister of Justice Maja Popović and her ministry in the work on this legal package and that numerous amendments were made to the draft laws in order to respond to “certain concerns” which the commission had.

They added that they expect the same approach to continue in the future: during the parliamentary discussion, but also after the adoption of five bills with the necessary non-legislative measures to strengthen the judiciary and prosecution.

“True independence is achieved as a result of a combination of various factors, including the behavior of the various stakeholders and the legal culture in which they operate. With that being said, an appropriate constitutional and legislative framework is a conditio sine qua non in this context. Such a framework should create a fair balance: effectively guaranteeing the independence of the judiciary and the autonomy of prosecutors on the one hand and avoiding corporatism in the judiciary and the prosecution on the other. Accountability is as important as independence. This is why the design of judicial and prosecutorial administration bodies is so important,” stated Keener and Kuijer.

They further assessed that the constitutional amendments “significantly reduced the risk of political influence”.

Keener and Kuijer state that the prosecution in Serbia is organized according to the hierarchical principle, and in this regard, the Supreme Public Prosecutor has significant weight in the prosecution system.

“Therefore, it is necessary to ensure that the Supreme Public Prosecutor himself is protected from political pressures. The draft laws contain some safeguards that protect the Supreme Prosecutor from such pressure and introduce a mechanism that allows junior prosecutors to complain about illegal instructions given by senior prosecutors. This also reduces the risk that the system would be misused for hidden purposes,” stated the rapporteurs of the Venice Commission.

Katarina Golubović explains that while the working versions of judicial laws demand greater transparency of the work of judicial councils, decisions on the fate of public prosecutors will be under the public eye, and she also explains that “the Republic Prosecutor will no longer be able to lightly remove someone from the case or send him to another prosecutor’s office without explanations”. 

“On the other hand, the question is how public prosecutors will deal with the fact that they, and not their superiors, are responsible for every procedure,” Golubović said.

Mandić pointed out that the prosecution is in a particularly unfavorable position due to the election of the highest prosecutor in the political body, the strict internal hierarchy, and the minority voice in the prosecutors’ council.

She pointed out that the positive side of the constitutional changes is the abolition of the so-called trial mandate of judges – according to the previous constitutional decision, judges were elected in the National Assembly for a three-year period, and after its expiration, they were elected to permanent positions by the High Council of the Judiciary. 

“It is also positive that the selection of judges, presidents of courts, and prosecutors have been moved from the National Assembly to two judicial bodies – the High Council of the Judiciary and the High Council of the Prosecution. However, even these positive changes are not without residue, and this is what we persistently warn about,” Mandic said.

Among the solutions that, as she stated, were “obviously wrong”, she highlighted the retention of the election of the highest prosecutor in the National Assembly, the retention of the strict hierarchical relationship between the higher and the lower public prosecutor, even with the constitutional institutionalization of the mandatory instruction of the higher prosecutor, which was not the case until now.

“Constitutional solutions are designed so that they pulsate to the rhythm of the needs of the current or the next ruling majority, and that is exactly what we wanted to avoid,” she said. 

When it comes to constitutional changes in the context of European integration, Mandić points out that Serbia will get positive points, but in the short term. 

“In the short term, we will get and have already gotten some positive points for doing anything on this front. In the long term, I think we will be sent back to the remedial exam when it becomes clear that these solutions were not enough to bring us a fundamental change – to the change where political power obeys the Constitution and the law,” she said.

 

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