An opinion on judiciary reform in Serbia

Blog01.10.2009.

The goals of these reforms are to implement an independent, transparent, efficient and accountable judiciary. Certainly, these goals cannot be fulfilled without professional, honest and courageous judges.

 

The principles for these goals to be fulfilled are set by the Constitution, primarily by defining Serbia as a state established on the rule of law and social justice, principles of the civic democracy, human and minority rights and freedoms and affiliation to European principles and values (article 1). They are further stressed also individually – the rule of law (article 3), division of power (article 4), direct application of generally accepted rules of the international law and ratified international treaties (article 16, paragraph 2), that laws must not be in noncompliance with.

 

All goals of this reform are acquired in the right of a citizen to a fair trial, one of the basic human rights.

 

Due to importance of basic human and minority rights, special Constitutional “instructions” exist, focused on their purposes, implementations, interpretation, limitation and protection. The purpose of guarantees of human and minority rights, as well as a right to a fair trial, is to serve to protection of human dignity and realization of full freedom and equality for each individual in fair, open and democratic society, based on the principle of the rule of law (article 19). They are interpreted in order to improve values of a democratic society, in accordance with valid international standards for human and minority rights, as well as the international institutions’ practice which oversee their implementation (article 18). That is why they can be limited only if the limitation is allowed by the Constitution, for purposes that the Constitution allows it, in a specter necessary for the Constitutional purpose of limitation is satisfied in a democratic society without encroaching into the essence of a guaranteed right. In addition, all state institutions are obliged to take care and consider the essence of a right that is being limited, the importance of significance of limitation’s purpose, nature and scope of limitation, relation between the limitation and its purpose, as well as whether there is a way that the purpose of limitation can be reached with lesser limitation of a right, taking into account that once reached level of human and minority rights can not be decreased (article 20).

 

Therefore, these are the basics and frame for further legal regulations of judiciary in Serbia, in accordance with generally accepted rules of the international law and European principles and values, i.e. international standards. Although many often cite them, they neglect the fact that the international standards are nothing but finely crystallized rules of logical and rational behavior, borne through a long-standing democratic practice, applicable in any state that improves its judiciary systems. Also neglected is the fact that these standards are not miraculous examples enough to be copied in paper in order to obtain what a state of law wants. Each of the states that apply them must take into a consideration its tradition and its possibilities and, having all that in mind, to interpret and create its rules of “good behavior,” thus “starting an engine” of these international standards and make them applicable and successful in its own field.

 

The standards, however, must be applied entirely and in synchronicity in order to truly enable an independent, professional and efficient judiciary. If a judge is expected to be independent, impartial, efficient, accountable, dedicated to his job, professional and permanently improving, if a judge is forbidden from performing any other job, if a judge should be a role model in every aspect, then a judge must at the same time be provided with all status, function and material guarantees for his independence – permanence of his function, immunity, clear regulations for evaluation of his/her work and advancement, a salary in accordance with a degree of difficulty of performed job and dignity of function, an amount of pension close to a salary, solved accommodation issue, as well as a clear procedure of disciplinary accountability.

 

Beside the fact that they have to be in accordance with the Constitution and international standards, the judiciary laws must be logical, have clear goals and preview clear rules, be equal for everyone, essentially enable the system to re-question itself and improve. It is the best for applicable and functional judiciary system to have all necessary and possible changes be examined at the same time and entirely. Due to significance, universality and changes of the system, all planned solutions demand a careful consideration of their consequences and applicability, as well as a precise, harmonized and transparent examination. Thus, it is enabled for the laws to be applied in a planned timeline, without later changes and delays and the newly established solutions to really start bringing desired results.

 

The reform is gained when there is a system, which enables judiciary to have real conditions for independent execution of judiciary, which is a precondition for impartiality and fair judging procedures. Such conditions are provided not only when outside political influences from the executive and legislative powers are eliminated, but also when judiciary authorities perform their job in a manner that they are not a transmission, but a barrier from external influences on judiciary.

 

Every “shortcut” and insincerity in this process can make a reform senseless, to present its illusion, façade and to lead, sooner or later, to “decaying” of good intentions and absence of desired goals. Wrong and rushed solutions easily and quickly cause damage that takes decades in future to correct.

CONSTITUTIONAL AND FACTIOUS
OBSTACLES

The 2006 Constitution that calls for judiciary laws in accordance with it to be brought, has itself opened up a large possibility of political influence on judiciary, which was also stated by the Venetian Commission of the Council of Europe in its March 2007 opinion. The Venetian Commission, a body established by the Council of Europe to give its opinion on accordance of legal acts of Council of Europe’s member states with European standards, has stated that the Constitution of Serbia enables large influence of politics into judiciary in three ways.

 

The election of judges for the first, so-called test three-year mandate, election of all court presidents (who are now elected by a different method than the judges) and, most important, the election of all members of the High Judicial Council who then elect all judges, has been left to the authority of the Parliament, that is, political parties, which enables extremely large political influence on the judiciary.

 

There are obstacles in the judiciary itself for a reform. Corruption, however, although inadmissible and dangerous even in the slightest measure, is not even the most important problem within the judiciary. It primarily bothers the judiciary, which fights against it with its own means, with stricter verdicts than issued to other executors of this deed, proving its functionality.

 

The main problems in judiciary in the past decade have been reflected in an insufficient training for judges, the authorities’ expectances and permanent efforts by judges, for years, to realize and overcome the “norm” of solved cases, in an increased number of newly accepted cases, their growing complexity, failure to define “complex” and “solved” case, different organization and documentation of works by judges from different courts, absence of unique criteria for evaluation of judges’ performances and reliable and comparative standards for them. If these problems had not existed, the judges would have been equally burdened, while their performances would have been evaluated correctly and regularly, without a possibility that a judge with better results to be dismissed, or the judge with worse results than the other to be promoted. Besides significant increase of a number of solved cases, due to a large influx of new cases, tardiness has increased. Such absence of unique and harmonized system of judiciary administration has led further to processing easier cases out of order, remnants of complex cases, lack of time for judges to dedicate to their professional advanced training, comprehending of complicated transitional events, deeper consideration of numerous changes in laws and their systematic interpretation in order to gain proper and fair application. The speed and number of “solved” cases have overcome essential and lasting solution of disputed relations and increase of judges’ capacity.

 

Besides that, long-standing postponement of implementation of reform, followed by permanent attacks, threats, scorns and easy accusations of judges for all weaknesses of the judicial system (although it is influenced, beside judges, by other different and numerous factors), have caused a long-lasting state of stress, fright and faintheartedness both among more experienced and younger judges.

 

Finally, in Serbia, like sometimes also in societies of so-called “old democracies”, the obstacle to real reform of judiciary presents also an insufficient readiness of two other pillars of power to set up and sincerely support a system of independent justice. This challenge here is supplemented with insufficient functional capacities of subjects who should conduct the reform, which cause insufficient comprehension of the entirety of the system, its mutual connection and absence of awareness that there are no miraculous, easy and fast solutions.

STEPS FORWARD

One of the most important legal news in judiciary is “strengthening” of judiciary administration body – the High Judicial Council, charged with providing and guaranteeing the autonomy and independence of judges and courts, as well as efficient administration of the judiciary. In another meaning, with much lower ambitions, a similar institution was established in 2001 (The High Judiciary Council) with primary authority to propose the election of judges and prosecutors to the Parliament. In this new system, The High Judicial Council for the first time gains its Constitutional position and the most important function in managing the judiciary system in Serbia. For it, the Constitution orders to be independent and autonomous since it gives the Council a task to provide and guarantee independence and autonomy of judges and courts. From the way this body will be elected and function, and in which conditions, the quality of judiciary in Serbia will depend on.

 

Besides, a system of regular evaluation of judges’ performances is established, as well as a link of the evaluating system with training, and system of disciplinary accountability of judges. These systems finally provide reliable tools for administering a judiciary system through establishing of necessary number of judges, follow-up of efficiency and equal burdening of judges and courts, improvement of judges’ capacities by evaluating their performances and removing of observed defects through a training, increasing the quality of judiciary personnel as a whole, by professional advancement of judges whose performances were evaluated with the highest grades, optimal use of judges’ capacities within the court, in relation to their affinities, results, specialization etc. With these tools, a system of personal accountability of judges for performing judicial duties is precisely worked out, with a simultaneous protection of their independence in a process of examining personal accountability (dismissals and disciplinary accountability due to insufficiently successful – incompetent and unscrupulous performance of judge’s duty).

 

An evaluation system for judges’ performances, functionality of linking judges’ performance evaluation and their permanent professional training and disciplinary accountability represent by themselves an important progress. Their value is higher and their acceptance and regular applicability more certain if we have in mind that they are put into laws following years-long devotion of the professional association of judges.

 

Since the systems of continuous evaluation of judges’ performances and their disciplinary accountability are being established only with these new laws, it is clear that, only now, the conditions are created for proper and reasonably fast reform moves. Legally and legitimately, in a short time-line of two to three years, these systems can enable dismissal of incompetent and unscrupulous judges and rationally overcome time needed for training of new generation of judges, in accordance with the Law on Judiciary Academy, for which the preparations have progressed.

SHORTCOMINGS

During the last compilation phase for a set of judiciary laws, a transparency and careful consideration of all consequences of newly implemented solution have been absent. That phase is

(This phase) has coincided with the solutions, which are essentially deviate from those available earlier, analyzed by the local and international professional public.

A break of permanence of the function for judges is previewed, a disputable method of election for the first convocation of the High Judicial Council is introduced (different from otherwise good procedure previewed by the law for every next convocation), a veto right for a justice minister on the Council's decision on necessary number of judges is introduced, the authority of a justice minister to determine a necessary number of a court personnel is "taken over" from the former High Judiciary Council. The law "orders" the High Judicial Council to promote judges-members of the Council when their mandate expires; the Council's budget authorities are put aside and kept under the auspices of the Justice Ministry. It is determined that the Council takes over employees and clerks currently working in the Justice Ministry, using methods decided by a Justice Minister, while the Justice Ministry is enabled, without a time limit, to keep under its authority, expert and administrative tasks which should be executed by the High Judicial Council.

 

The Law on the Seats and Territorial Jurisdiction of Courts and Public Prosecutor’s Office has introduced in a rush enormous changes in judiciary, without preceding analysis of a current state, all desired and side effects. The law has never, not in a single moment, not in any draft, been available to public. Criteria for revoking certain courts, that is, for a change of entire courts' network, have not been published, nor was a detailed analysis of necessary measures and activities and tools necessary for planned changes, sequence of putting into effect all activities and realistic timeline for that. It has not been estimated whether the benefit (rationalization) considered to be gained with such changes justifies such a grand and expensive move in the whole of Serbia. Moreover, during the process of passing this law, a legal procedure to obtain the Supreme Court's opinion was not respected. Combined with the changed authority of courts and transfer of significant number of cases from municipal courts to future higher (until now, district courts), less available to citizens, that law can cause more bad then good consequences, especially to make the system more expensive and prolong court procedures.

 

The Law on Organization of Courts, besides change of authority, has missed an opportunity to introduce real reformist innovations, such as judiciary police or a separate judicial body (Rechtspfleger, which exists in sixteen states, members of the Council of Europe) which would be entrusted with activities performed in our country by judges, whose decisions could be appealed to a judge. That body could have unburden judges from a series of less complex works in family, trusteeship and inheritance laws, court protection of claims up to certain amounts (so-called disputes of small value), in the domain of annulations of documents, executive procedures (issuing of money orders, confiscation of movable property), keeping of deed books and economic registers, approving citizenships, issuing of warrants, exchange and execution of criminal sanctions, legal aid etc. Thus it would also be able to speed up and make court procedures cheaper, and in a that way, the judiciary itself.

 

All these have further been hindered with unrealistically short timeline, which disables the High Judicial Council to perform a series of the most important, strategic activities within Serbia's judiciary independently, autonomously, carefully and reliably.

 

This is particularly related to making a decision on necessary number of judges in Serbia, for which the law has previewed one-month long deadline from the date of establishing he Council (by the second week in may 2009), on establishing reliable, comparable, testable and generally applicable criteria and measures for working performances' evaluation and re-election of judges (by June 2009), on the election of the Supreme Cassation Court's president and judges by the end of the first week of July 2009, which is a deadline to pass a series of other, extremely important sub-legal acts and decisions (operating procedure of the Council's work, structure of working methods and decision-making procedures in disciplinary bodies, establishing of program for starting training for judges, passing of the Ethical codex, establishing of the composition and works of the Council's permanent working bodies. establishing of organization, works and working methods of the Administrative Office and conditions set for nomination of the Council's secretary), as well as to take over clerks and officials from the Ministry of Justice, rights and obligations, cases and archives necessary for performing activities that have been taken over in accordance with the authority set by the Law on High Judicial Council.

 

In addition to all issues mentioned, a procedure of election of all judges, which should be finalized by December 1, 2009 and nomination of all acting presidents of courts by the end of 2009, is also imminent.

HOW TO PROCEED

Serbia is now faced with the task to debate and set new foundations of the entire judiciary system. Enabling of works by the High Judicial Council, with all of its decisive and extensive functions is by itself a procedure of huge importance for the future of the judiciary. Besides laws and sub-legal acts, it is also necessary to increase awareness among everyone, primarily judges, of importance of the election of judges' right representatives in the High Judicial Council, of the necessity that its members should be judges who enjoy the highest level of confidence of their colleagues, which means, judges who are honest, who have principles, courageous, who enjoy professional integrity, who are aware of what is the Council's task and how it should be organized and performed. Another strategically important and completely new task is the establishment and conduction of regular evaluation of judges' performances, and connected to it, training of judges. The judges' training itself -- initial and permanent, should also be put onto new foundations. A significant innovation is also the introduction and working out of the system for disciplinary accountability. In addition, it is necessary to establish a system of administrative judiciary and attach the system of magistrates to the judiciary because of reserves put during the ratification of the European Convention. Of course, it is also indispensable to unburden the highest court in the state from its appellate jurisdiction on deciding in a procedure of regular legal remedy.

 

With all these numerous and tectonic changes, with insufficient resources in every sense of its meaning, a conclusion is being imposed all the time that it is not realistic to perform all changes simultaneously. Especially when having in mind that a judge is being formed for years, that a formation begins during the studies, at the faculty which should provide a higher level of knowledge than the existing one. In relation to that, a conclusion is being imposed that it would be sensible to conduct the reform in stages that was, after all, previewed by the Strategy of Judiciary reform. If such possibility had been planned from 2001, if we had not succumbed to unrealistic desires to do everything at the same time, we would have passed a longer way by now. Step by step.

 

A definitive regulation of appellate jurisdiction of appellate courts should have been "left" for the second stage. It would have been more useful that these courts, during the first phase, only "take over" an appellate jurisdiction belonging to the Supreme Court, thus unloading it. In order to accomplish reformist solutions, it is not enough just to change the law. Its application in practice requests a series of preconditions, material, accommodative, housing, financial, technical, human and timely ones. Although the Judges' Association is convinced in regularity and better and realistic application of such procedure, besides political opinions that it is necessary to finally implement changes, the public has not been presented with a clear and convincing reasons why it is a "must" and why is it "better" to do everything at the same time, which would make realistic those numerous, extensive and simultaneous changes.

 

It seems that the explanation for such "persistence" is found in, otherwise incorrect, opinion that the establishing of new courts and changes of the courts' network and titles and territories of courts demands a re-election of judges, which covers up the intention that certain judges with permanent judicial function are to be pushed out of their jobs in judiciary. However, the international standard, built in the Serbian Constitution also (article 150), stipulates that a judge's function does not cease in case of court's revocation or predominant part of a jurisdiction of a court the judge was elected for, so the judge is permanently transferred or directed to another court, in accordance with the law, has originated exactly in order to prevent such evasion of the Constitutional guarantee of a judicial function's permanence.

 

That is why it is indefensible, both from the constitutionally-legal and factious aspect, to "coerce" judges with permanent function to apply for a position for (re) election since both to them and those who apply for a position and are not elected, a judge's function will cease on January 1, 2010 -- without constitutional discontinuity and any foundations, based on the law passed after the law that gave a permanent mandate to judges, without any legally-set reason for dismissal, and without any guilt on their side. Since the law does not preview any particular legal remedy for this case, and the High Judicial Council does not make any special decision on cessation of function, the judges will not be able to express an effectual legal remedy, since they will not know the reasons for their failure to be re-elected, nor their protection (of endangered right), even if a formal legal remedy is anticipated, could really be accomplished without a decision of cessation of judge's function and clear reasons on which it is based upon.

 

Disputed legal regulations, particularly transitional and final regulations of the Law on High Judicial Council and Law on Judges, as well as changed jurisdiction of courts and so-called courts' network are endangering all those good solutions that have otherwise been built into the laws.

 

Both local professional public (the Supreme Court of Serbia, prominent University professors of the Constitutional law and Theory of State and Law, Kopaonik School of Natural Law, the Judges’ Association of Serbia) and international professional public (Consultative Council of the European Judges, UN Special Rapporteur for Judiciary in Member States, MEDEL – International Association of Judges and Prosecutors for Democracy and Freedom) have exposed a series of legal and factious comments and opinions of certain controversial solutions. Their unconstitutionality and discordance with the international standards, which are, according to the Constitution, a part of Serbia’s internal legal order, as well as a serious politicizing they enable, have been indicated.

 

If there were no cited solutions, disputed either from a legal or from a factual aspects, an assertion would be appropriate that judiciary laws are applicable and reformist. But such solutions are, however, built in laws. If they are not removed, by the Constitutional court's decision or by legislators, they will make far-reaching consequences on a future judiciary system in Serbia. Even if their disputed constitutionality, disaccord with international standards and uncertain applicability are set aside, an ascertainment remains of their non-necessity and inability to, together with existing capacities and in previewed timelines, without any influence from politics, to execute real reformist changes.

 

Dragana Boljević

President of the Judges’ Association of Serbia,

March, 2009