Judges' association of Serbia - THE LAW ON HIGH JUDICIAL COUNCIL

THE LAW ON HIGH JUDICIAL COUNCIL - Introduction

Blog12.04.2010.

A body of judiciary administration, the High Judicial Council (HJC) was established in Serbia for the first time with the Law on High Judicial Council. Besides its five permanent members, three of which were members by duty (President of the Supreme Court of Serbia, State public prosecutor and Justice Minister), one was elected by the Parliament choosing within the ranks of prominent legal experts, while the fifth was chosen by the Bar Association of Serbia from the ranks of attorneys, there were also six invited members from the judges' ranks, chosen by the Supreme Court of Serbia and two from the prosecutors' ranks – one of them chosen by the deputies of the State Public Prosecutor, the other by the district public prosecutors in their joint session. Depending of a discussed issue, the HJC worked either in its immediate or wider composition. Permanent and called members – judges or prosecutors – made the immediate composition, while the wider one consisted of all permanent members, besides a minister in charge of judiciary and State Public Prosecutor, all invited members (both judges and prosecutors).

From all numerous functions that the body of judiciary administration can perform, the High Judicial Council was given a jurisdiction, primarily, to propose to the Parliament the courts' presidents, judges, public prosecutors and deputy public prosecutors as well as nomination of juror judges (article 1 of the Law on High Judicial Council). Other laws previewed that HJC would propose to the Parliament a necessary number of judges and deputy public prosecutors and establish general measures for establishing a number of judges, juror judges and court personnel (article 9 of former Law on Judges, article 54 paragraph 3 of the former Law on Organization of Courts and article 56 of former Law on Public Prosecution), decide in which court/prosecution office a judge/public prosecutor would continue his duty if a court/prosecution he/she had worked until then (article 11 of former Law on Judges and article 40 of the former Law on Public Prosecution), about transfer of a judge/prosecutor to another court/prosecution office (article 17 of the Law on Judges and article 45 of the former Law on the Public Prosecution), on objections by a judge/prosecutor against the decision on incompatibleness (article 29 of the Law on Judges and article 50 of the former Law on Public Prosecution), on an increase of the basic salary in certain cases (article 34 of the Law on Judges and articles 52-54 of the former Law on Public Prosecution), on an acting State Public Prosecutor (article 25 of the former Law on Public Prosecution), on objection by a Public Prosecutor or a deputy Public Prosecutor on a decision of recusal (articles 43 and 44 of the former Law on Public Prosecutor), on objection to a Public Prosecutor's decision on determination of end of service and dismissal (article 72 of the former Law on Public Prosecutor), on pronouncing a measure of caution or a measure of suspension from the office, as well as an objection to pronounced measures (article 75 of the former Law on Public Prosecutor) etc.

As a guarantee of judges' independence, the previous Constitution of Serbia (“Official Gazette of the Republic of Serbia” no 1/90 from September 28, 1990) explicitly declared that the Supreme Court of Serbia was to establish the existence of reasons for a cessation of the judges' function. That is why there has been a constitutional obstacle, related to judges and in comparison to prosecutors, that the High Judicial Council deals with issues related to the cessation of a judicial function, that is, with dismissal and related issues – pronunciation of measures of caution or suspension from office. In accordance to that, by the Law on Judges (articles 56–58) these issues were relegated to the jurisdiction of the Supreme Court of Serbia, High Personnel Council, comprising of nine Supreme Court judges.

Administration of the judicial system was not harmonized, divided between several bodies (High Judicial Council, Supreme Court, Public Prosecutor, Justice Minister, Supreme Court President, even presidents of other courts, each of whom has made its own acts), while the accountability for measures which have (not) been taken was confusing and unclear.

The 2006 Constitution has raised the function of the judiciary administration, divided into a judiciary one and prosecutorial one, to the constitutional level, by establishing two new bodies: The High Judicial Council (articles 153–155) and State Prosecutorial Council (articles 164 and 165 of the Constitution).

The article 1 of the Constitution which previews that the Republic of Serbia is founded on the rule of law and social justice, principles of civil democracy, human and minority rights and freedoms, and commitment to European principles and values, related to articles on the principles of the rule of law (article 3) and division of power (article 4), on direct application of generally accepted rules of the international law and ratified international treaties (article 16 paragraph 2) that the laws must not be in noncompliance with (article 194 paragraph 5), presents the basics for further legislative creating of the High Judicial Council, in accordance with the Constitution but also with generally accepted rules of the international law and European principles and values, that is, the international standards.

The international standards on an independent body of judicial administration are a part of, among others, the Recommendation no P (94) 12 by the Committee of Ministers of Council of Europe to the member states on the independence, efficiency and role of judges, European Charter on Law on Judges, Opinions of the Consultative Council of European Judges of the Council of Europe no 1 on independence of judiciary and non-transfer of judges and, particularly, number 10 on judicial councils.

CONSTITUTIONAL REGULATION
OF THE HIGH JUDICIAL COUNCIL

The 2006 Constitution, on the basis of the National Judicial Reform Strategy and general principles from articles 1, 3, 4 and 16, establishes and defines the High Judicial Council, determines its composition, excludes a possibility to court's presidents to be its members, determines a duration of mandate for its members, as well as basis for its jurisdiction and states a possibility for expressing a legal remedy against its decisions before the Constitutional Court, in cases defined by the law, in articles 153, 154 and 155.

The High Judicial Council is defined as an independent and autonomous body that provides and guarantees the independence and autonomy of courts and judges. It consists of 11 members, among them, the president of the Supreme Cassation Court, the minister in charge of justice and the chairman of the authorized board of the Parliament, as well as members by position and eight elective members, elected by the Parliament, in accordance with the law. Elected members are six judges with permanent judicial function, one of them from the territory of autonomous provinces, and two prominent and outstanding law experts with at least 15 years of experience in the professional domain, one of them an attorney, the other a professor of Law Faculty.

The jurisdiction of the High Judicial Council, according to the Constitution, is to elect and dismiss judges, proposes to the Parliament the election of judges on the occasion of the first election to the judicial function, the election of the president of the Supreme Cassation Court and the courts' presidents, to participate in a procedure for cessation of function of a president of the Supreme Cassation court and court's presidents and to execute other activities previewed by the law.

Since there are no constitutional obstacles any more for the High Judicial Council to execute all activities of the judiciary administration, its jurisdiction, with basis cited in article 154 of the Constitution, is significantly widened with article 13 of the Law on High Judicial Council. The Council has taken most of the works within the field of judiciary administration, performed earlier by the Supreme Court of Serbia, on the basis of cited articles of 1990 Constitution. Acting within the constitutional principles and having in mind the goals previewed in the National Judicial Reform Strategy and international standards and possibilities of their implementation into Serbia's legal system, the Law has significantly developed certain solutions, bringing them closer to the international standards.

LAW ON HIGH JUDICIAL COUNCIL
Basic principles

The first chapter of the Law exposes its content and determines the position and tools for the Council's activities, while also determining that a president of the Supreme Cassation Court is, by his position, the president of the Council, while a deputy of the Council's president is elected and dismissed by its members from the ranks of judges – members of the Council. This chapter of the Council also determines a position of its members by proposing immunity as for judges, salaries for judges – elected members and compensation for works to the members by position and elected members from the ranks of professors and attorneys, five-year mandate with a possibility of non-consecutive election and incompatibleness of working activities. After taking the function in the Council, elected members from the ranks of attorneys, that is, professors of Law Faculty, are forbidden to hold functions in bodies charged with introducing regulations, executive power bodies, public services and bodies of the provincial autonomy, as well as local self-management units, while the judges – elected members are exempted from performing judges' function while being members of the Council.

The Council's Jurisdiction

The High Judicial Council's jurisdiction is significantly wider in relation to the earlier jurisdiction by the (former) High Judicial Council. Although many of newly given duties are of extreme importance for the function of the Council itself, as an independent and autonomous body, as well as for a judiciary as a whole, to which the Council is obliged to provide independence and autonomy, its jurisdictions are only noted, without specific explanations.

According to article 13 of the Law on High Judicial Council, the Council has retained functions of the former High Judicial Council to propose to the Parliament its candidates for courts' presidents and judges on the occasion of the first election for the judges' function, to decide on transfer of judges and on incompatibility of performing other services and functions with a judges' one, to nominate juror judges and perform activities of the judiciary administration within its jurisdiction. It has also retained legal authorization in relation to agreeing a program of permanent training for judges and court personnel and supervision of its conduct and in relation with establishing a program for a starting training for judges based on the Law on Training of Judges, Public Prosecutors and Deputy Public Prosecutors Law, which has yet to be applied, despite already being in effect.

New functions given to the High Judicial Council are to elect judges to permanent performance of judges’ function and to decide on cessation of judges’ function, as well as to propose candidates for the Constitutional Court judges and to decide on the issues of judges’ and other Council’s members’ immunity. Besides transfer, the Council now decides on directing judges and on judge's objection on the decision of dismissal, as well as on existing conditions for compensation of damage for illegal and incorrect judge's performance. Its significant new jurisdictions are to formulate Ethic Codex and propose the scope and structure of budget necessary for courts' functioning for current expenditure and supervise their spending, among other things. However, this last mentioned function has been postponed to January 1, 2011 and, until then, left under the jurisdiction of the ministry in charge of judiciary.

Instead of the Supreme Court of Serbia, as the highest court in the state, it is now the High Judicial Council to give its opinion on changes of the existing or bringing of new laws determining judges' position, organization and procedures of courts, as well as other system laws which courts apply or are of significance for performing judges' function.

Due to innovations introduced in the Law on Judges, which establishes systems for regular evaluation of performances of all judges and courts' presidents and their disciplinary accountability, the High Judicial Council was given a jurisdiction a series of activities which are of utmost significance, not only for judges themselves, but for the whole judiciary system.

The Council makes sub-legal acts on criteria, measures and procedures for evaluation of judges' performances, that is, courts' presidents (article 32 paragraph 4 of the Law on Judges), on a composition and working methods for the Commission for Evaluation of a court's president (article 34 paragraph 3 of the Law on judges), on criteria and measures for evaluation of capacities, professional abilities and worthiness of candidates for election of judges (article 45 paragraph 6 of the Law on Judges), decides on objections given by judges on the evaluation of their works by department councils; and evaluate performance of a court's president by its Commission (article 34 paragraph 1 of the Law on Judges) and decides on objections given by court's presidents to the evaluation of their performances (article 34 paragraph 2 of the Law on Judges). In relation to newly-established system of disciplinary accountability, the High Judicial Council is authorized to determine the composition, duration and cessation of mandate for members of disciplinary bodies, nominate members of these bodies and regulate their working methods and decision-making processes, as well as to decide on legal remedies during a disciplinary procedure.

Considering the legal concept which previews such a wide-spread jurisdiction of the Council, also in relation to proposing, distribution and supervision over budget spending, the Council submits an annual report to the Parliament of Serbia and informs public about its activities in an appropriate manner, which can include publishing of its decided general acts in the “Official Gazette of the Republic of Serbia”.

However, certain activities of the judicial (judiciary) administration have remained in the exclusive, or with the High Judicial Council, divided jurisdiction of the Ministry in charge of judiciary. These are the activities related to the judiciary administration, passing of the Judiciary agenda and supervision of its conduct, court's security, proposals of the amount and structure of budgetary funding, their distribution to courts and supervision of their spending. Moreover, some of these activities, like establishing of an estimated number of court personnel, as well as a number of judges after the constitution of the first convocation of the High Judicial Council, have been transferred from the jurisdiction of the (former) High Judicial Council to the Ministry in charge of judiciary, contrary to the National Judicial Reform Strategy.

Procedure for election of Council's members

Proceeding from cited constitutional principles and the National Judicial Reform Strategy, and having in mind the Council of Europe's Venice Commission no 405/2006 from March 18, 2007 and a possibility to build in international standards into Serbia's legal system, with a number of articles in chapter 3, a procedure of election of elected Council's members is worked out, subjects who are authorized nominators for the Council's members from their ranks are determined and elections for judges are regulated as an obligatory phase which precedes the process of proposing candidates for elective members to the Parliament from the ranks of judges, with Council's obligation to propose one or, only in certain case, more candidates who have won approximate number of votes.

Although opposing stances have been expressed earlier, such legal solution is not in noncompliance with the constitutional principle which regulates that the Parliament elects members of the High Judicial Council, since the election does not mean only election of one or more candidates, but also a decision-making process whether a proposed candidate will be elected or not. This way, with respecting the Constitution, but also with bringing the international standards closer, an exaggerated influence of politics on judiciary is reduced, as indicated in cited opinion of the Council of Europe's Venice Commission from 2007, which in March 2008, gave a positive opinion for this solution. Such solution, truth to be said, in certain situations and in a certain measure, can lead to a paralysis of the High Judicial Council's functioning, even judiciary itself, but it is worse than that to enable the legislative power to make a political arbitration and to elect a Council's member, from several candidates for one post, the one who has obtained less support from his/her colleagues than other proposed candidate. In current conditions, such solution provides, in the highest possible measure, an authentic will of the judiciary to have certain representatives in a body that is a guarantor for the independence of judiciary and judges. It also makes clear and obvious a possible “dispute” which could appear between the legislative power and judiciary, as well as the accountability for the state which could result from “wrong” proposal, that is, the Parliament's rejection to respect electoral will of judges about candidates who should represent them.

In its basic regulations, the Law has, without stepping over the constitutional frame, become closer to the international standards of the widest representation of judiciary in a smaller measure than it managed on the issue of respecting the will of judges that the Council's members be those individuals who have gained the highest confidence of fellow judges, since it regulated judges' elections which preceded the process of proposing candidates for the Council's elective members from judges' ranks to the Parliament and obliged the Council to propose those candidates from the judges' rank who have been directly elected by judges, in a way and in a procedure regulated by this law (article 20, paragraph 3 and article). The jurisdiction to propose elective members from the ranks of attorneys and professors is given to the Bar Association of Serbia and the joint session of the deans of law faculties in Serbia (article 20, paragraphs 3 and 4), who are entrusted with organization and conduct of the process of proposing candidates from the ranks of professors and attorneys, in accordance with the autonomy of the fields represented by these ranks' members.

This solution was however abandoned in transitional and final regulations of the law that relate to the first election of the Council's members. Article 52, paragraph 2 of the law regulates that the candidates from the elective members of the first convocation of the High Judicial Council are proposed by the sessions of all judges of the courts by type and level of court in which the candidate serves his function, while paragraph 5 of the same article regulates that the High Judicial Council in 30 day-timeline from the date of the law being put into effect proposes to the Parliament one or more candidates for every elective member of the Council from the judges’ ranks, in accordance with the number of judges by type and level of court, set by paragraph 1 of this article. Since paragraph 6 of the same article regulates that, when proposing candidates, the High Judicial Council takes into account proposals from paragraphs 2 and 3 of this article, it is obvious that it is not bind with obtained proposals.

These regulations thus “overstep” elections by courts, while the right for “choosing” candidates who would later be proposed to the Parliament is given to the High Judicial Council. Contrary to the standards, there are neither regulation for criteria which the Council members should fulfill, nor the transparency of procedure to do so is secured. Also disputed is the regulation set by article 56 of the Law which previews “automatic” election, that is, promotion of judges – elected members of the High Judicial Council after their mandate in the Council, on the basis of article 154 of the Constitution and European principles and values since it “disables” the High Judicial Council to elect judges to higher-level courts, binding it to make a decision on election, with only a declaratory character.

Working groups, administrative office and budget jurisdiction of the Council

Except in article 15 of the Law which regulates that the Council's permanent member organs are: the Commission for Evaluation of judges' and courts' presidents performances, which acts as an appellate body in the process of evaluation of judges' performances and of original jurisdiction in the process of evaluation of courts' presidents performances (article 34 of the Law on Judges), the Electoral Commission, whose composition, position, jurisdiction and duties are regulated with articles 25 to 34 of the Law, and disciplinary bodies, precisely defines in the Law on Judges (articles 89 to 98), the Law on High Judicial Council does not preview any other permanent bodies for the Council.

Comparable experiences from the states which have similar bodies of judiciary administration (France, Italy, Spain, Portugal, Romania, Bulgaria etc) indicate that it is rational and justified to have other permanent bodies (for analysis and reports, budget, judiciary trainings, IT commission, international relations, judiciary organization and modernization, for publishing, cooperation with Justice ministry, relations with media etc), especially if having in mind a wide jurisdiction given to the Council, a possibility to transfer judges for a certain time-mandate on functions within the Council's services (article 21 of the Law on Judges) and prospective for taking over the jurisdiction from the ministry in charge of judiciary, as previewed by the National Judicial Reform Strategy.

The law regulates only briefly the Council's administrative office (article 47 to 49), whose activities will be performed by the ministry in charge of judiciary, in a way and in timelines set by article 58 of the law.

National Judicial Reform Strategy underlines that achieving the independence of judiciary understands the judiciary to take over independent budgetary jurisdiction. It previews the Council to be authorized to approve and distribute the budget for judiciary system, together with the republic's Treasury and Finance Ministry, while final approval of the budget is to be given by the Parliament. Jurisdiction for formulating, approval and accounting of the budget will gradually be transferred from the Justice Ministry to the High Judicial Council in order to secure undisrupted transfer of budgetary jurisdiction. Mid-term changes mean that the Council will take over jurisdiction for judges' salaries and material expenses by 2010, while by 2013, jurisdiction for judiciary budget.

However, except in article 13 on the Council's jurisdiction which, among else, regulates that the Council proposes the amount and structure of budgetary funds necessary for courts' works for current expenses and supervises their spending, the Law on High Judicial Council does not work out further jurisdiction of the Council. The Law on Organization of Courts, in articles 82 to 86, deals with courts' works funds. The High Judicial Council proposes the amount and structure of budgetary funds necessary for current expenses, with previously obtained opinion from the ministry in charge of judiciary and distributes these funds to the courts (article 83). Supervision of the budgetary funds spending determined for the courts' activities is conducted by the High Judicial Council, the ministry in charge of judiciary and the ministry in charge of finances (article 83 paragraph 1). Contrary to the National Judicial Reform Strategy and international standards, a supervision of the financial and material activities of the High Judicial Council, in a part it relates to the budgetary funds cited in article 83 of this law, is conducted by the ministry in charge of judiciary and the ministry in charge of finances (article 84). However, article 95 of the Law on Organization of Courts, and cited narrow Council’s jurisdiction are delayed to January 1, 2011 and entrusted still to the ministry in charge of judiciary.

TIMELINE OF ACTIVITIES IN ACCORDANCE
WITH JUDICIARY LAWS

Having in mind transitional and final regulations of the Law on High Judicial Council and the Law on Organization of Courts, Law on Judges and the Law on the Seats and Territorial Jurisdiction of Courts and Public Prosecutor’s Office, the process of establishing judiciary system in accordance with these laws should develop along the following timeline:

By mid-January 2009 (article 52 paragraph 4 in relation to paragraphs 2 and 3 of the Law on High Judicial Council)

- Submitting the names of candidates for members of the High Judicial Council by the courts to the Council

By the end of January 2009 (article 52 paragraph 5, in relation to paragraph 6 and article 53 of the Law on High Judicial Council)

- Proposing candidates for elective members of the High Judicial Council

By the end of March 2009, i.e. in 90 days the latest from the date when The Law on High Judicial Council takes effect (article 50 of the Law on High Judicial Council)

- Election of the High Judicial Council members

By April 7 2009. i.e. in seven days from the date of election of elective members (article 54 of The Law on High Judicial Council)

- Constitution of the High Judicial Council

By the end of April, i.e. in 30 days from the date of election of the first convocation of the High Judicial Council (article 100, paragraph 1 of the Law on Judges)

- Establishing of necessary number of judges and jurors

By the end of May 2009, i.e. in 60 days the latest from the date of constitution of the first convocation of the High Judicial Council

- Making of the sub-laws regulations on:

- Criteria, measures and proceedings for evaluation of activities by the judges, i.e. courts’ presidents (article 32, paragraph 4 of the Law on Judges),

- Composition and working methods of the Commission for Evaluation of works of courts’ presidents (article 34, paragraph 3 of the Law on Judges)

- Criteria and measures for evaluation of competency, professional qualifications and worthiness of a candidate for election of a judge (article 45 paragraph 6 of the Law on Judges) and, possibly, other sub-legal regulations.

By the end of the first week of July 2009, i.e. in 90 days from the date of constitution of the High Judicial Council

- Election of the president of the Supreme Cassation court (article 102, paragraph 5 of the Law on Judges) judges of the Supreme Cassation court (article 100, paragraph 2 of the Law on Judges)

- Making of the sub-law acts previewed by the Law on High Judicial Council (article 59 of the Law on High Judicial Council)

- Rules of procedure (article 18 of the Law on High Judicial Council)

- Regulations of working methods and decision-making procedures in disciplinary bodies

- Establishing of programs for starting training for judges

- Passing of the Ethics codex (article 13 of the Law on High Judicial Council)

- Setting up of composition and activities of the permanent working groups (article 15 of the same Law)

- Establishing of the organization, activities and working methods of the Administrative office (article 48) and conditions for nomination of the Council’s Secretary (article 48).

- Transfer of clerks and administrative officials, rights, obligations, cases and archives necessary for the conduct of executing transferred activities from the Ministry authorized for judicial activities, in accordance with the jurisdiction established by the Law on High Judicial Council (article 58 of the Law on High Judicial Council)

By December 1, 2009

- Election of all judges (article 100, paragraph 2 of the Law on Judges)

By the end of 2009

- Nomination of acting court presidents (article 102, paragraph 1 of the Law on Judges)

From January 1, 2010

- Beginning of works of the courts set by the Law on Organization of Courts (article 89 of the Law on Organization of Courts and article 19 of the Law on the Seats and Territorial Jurisdiction of Courts and Public Prosecutor’s Office)

By the end of June 2010, i.e. in six months from the date of beginning of works of Courts set by the Law on Organization of Courts

- Putting into effect and finishing of the electoral procedure for permanent composition of the High Judicial Council (article 57 of the Law on High Judicial Council, in relation with article 89 of the Law on Organization of Courts and article 19 of the Law on the Seats and Territorial Jurisdiction of Courts and Public Prosecutor’s Office)

Dragana Boljević

President of the Judges’ Association of Serbia

[1] The Law on High Judiciary Council was published in the Official Gazette of the Republic of Serbia no 63/01, 42/02, 39/03, 41/04 – correction, 44/04 and 61/05

[2] The Law on Judges („Official Gazette of republic of Serbia “ no 63/01, 42/02, 1/03, 27/03, 29/04, 35/04, 44/04, 61/05, 101/05 and 46/06), the Law on Organization of Courts („Official Gazette of Republic of Serbia“ no 63/01, 42/02, 27/03, 29/04, 101/05 and 46/06) and Law on Public Prosecution („Official Gazette of Republic of Serbia“ no 63/01, 42/02, 39/03, 44/04, 51/04, 61/05, 46/06 and 106/06)

[3] The Recommendation was adopted by the Committee of Ministers of Council of Europe on October 13, 1994

[4] The Charter was adopted at the multilateral session organized by the Council of Europe, held from July 8-10, 1998

[5] The Opinion no 1 was adopted on November 21, 2001

[6] The Opinion no 10 was adopted on November 23, 2007. Considering the variety of social and historic circumstances in the Council of Europe member states, more frequent establishment of judicial councils and joint intention for strengthening democracy and protection of independence of judiciary, the Opinion 10 by the Consultative Council of the European judges is the smallest common denominator for composition and function of the judicial councils.

The opinion stresses the importance of having an appropriate body charged with protection of judges' independence, in a context of principles for division of power and gives directions and standards for members states which are constituting or reforming their judicial councils. Beside its goal to protect the independence of the judiciary system and individual judges, the judicial council is also tasked with establishing mechanisms for evaluation of the judiciary systems, to report on the state of judiciary services and to request the authorized bodies to make necessary steps to improve the works of the judiciary.

Every member state would have to establish a judiciary council on the constitutional or the highest legal level, define its jurisdiction, composition, methods of election, as well as criteria for membership, always having in mind that the judicial council is not a part of the judiciary system's hierarchy, and that it is not acceptable for it to be limited by other bodies in its autonomy to decide on its own working methods and issues to be considered. That is why it is important to carefully and clearly establish its relation with, on one side, a Justice Minister, President of the State and the Parliament, and courts and individual judges on the other side.

The opinion recommends that members from the rank of judges should be elected by fellow judges on judges' elections, in order for a composition of judicial council to ensure the widest representation of the judiciary, and its members – judges to fulfill criteria of expertise and experience, proper recognition of the judiciary system, while being clearly engaged in support of independence judiciary, enjoying trust of colleagues they represent that they will consistently and fearlessly decide on their destiny. The opinion does not support a possibility for judicial council's members to be actively engaged in politics, nor the political institutions or executive power to participate in any stage of the council's members election. The importance of providing appropriate tools for autonomous and independent works of the council is stressed, as well as its jurisdiction to establish and efficiently organizes its budget.

[7] The decision to establish the National Judicial Reform Strategy on May 25, 2006, was published in the „Official Gazette of the Republic of Serbia“ no 44/2006, on May 26, 2006. It was made upon the goal to, with establishing the rule of law and legal security, regain the citizens' trust into the judiciary system of the Republic of Serbia and the fact that there is no rule of law and legal security without strong democratic institutions of the judiciary system, as well as the expressed need to conduct strategic reforms in all levels of the judiciary system, with respecting the determination expressed in the "Resolution for the Integration into the European Union" adopted by the Parliament of Serbia and readiness to fulfill all necessary preconditions and international obligations of the Republic of Serbia

[8] Law on Training of Judges, Public Prosecutors and Deputy Public Prosecutors was published in the Official Gazette of the Republic of Serbia, no 46/2006 on June 2, 2006, and came into an effect on June 10, 2006. Article 18 determines the start of its application on March 1, 2007. Although the High Judicial Council named the Commission previewed by article 11 of the Law and determined a training program submitted by the Commission (article 16), the application of this Law has yet to start. Until now, the Supreme Court has decided on judges' training, based on the article 8 paragraph 1 of the former Law on Judges.

[9] Article 95 of the Law on Organization of Courts.

[10] Article 18 of the Law on High Judicial Council.

[11] Articles 70, 74 paragraph 2 and 75 of the Law on Organization of Courts

[12] Article 79 of the Law on Organization of Courts

[13] Articles 83, 84, 86, 92, 93 paragraphs 2 and 5 and 95 of the Law on Organization of Courts

[14] Thus article 9 of the former Law on Judges and article 54 paragraph 3 of the former Law on Organization of Courts regulated that the High Judicial Council establishes general measures to determine a number of judges, juror judges and court personnel. Contrary to that, the current Law on Organization of Courts, with its article 57, paragraph 3, regulates that measures to determine the minister in charge of justice determines a number of court personnel. Also, although the current Law on Judges (article 10, paragraph 2) transfers the decision on number of judges and juror judges from the Parliament (article 9 of the former Law on Judges) to the High Judicial Council, with transitional and final regulations set by the Law on Judges (article 100 paragraph 1), the High Judicial Council's duty and authorization to make a decision on a number of judges and juror judges 30 days from the date of the election of the first convocation of the High Judicial Council is limited with previously obtained agreement by a minister in charge of judiciary.

[15] Council of Europe's Venice Commission's opinion no 405/2006 from March 18, 2007:

„70. Contrary to that, it seems that the composition of the High Judicial Council is deficient. At the first glance, it seems that the composition is pluralistic. It has 11 members: president of the Supreme Cassation Court, justice minister, chairman of the authorized parliamentary are members by position, while six judges (one from the autonomous province), one attorney and one Law Faculty's professor are elected members. However, this is just an illusion of pluralism. All these members are elected, directly or indirectly, the Parliament. Six judges are not elected by their colleagues, but the Parliament; the attorney is not elected by the Bar Association, but the Parliament; the professor is not elected by the Law Faculty, but the Parliament. In this manner, the procedure of nomination in judiciary is under double control of the Parliament itself: proposals are given by the High Judicial Council which was elected by the Parliament, while the decisions on this proposal are again brought by the Parliament. This is a recipe for politicization of judiciary so this principle should be essentially changed.”

[16] Article 20 of the Law on High Judicial Council – authorized nominators are: HJC – for candidates from judges' ranks, Bar Association of Serbia – for a candidate from attorneys' rank and joint session of deans of Law Faculties – for a candidate from professors' rank.

[17] Article 35 paragraph 1 of the law regulates that the Council decides on one candidate proposal, who has won most of the votes, or more candidates from each electoral list. Paragraph 2 of the same article regulates that the Council proposes several candidates in case when more judges on one electoral list gain approximately equal highest number of votes.

[18] Opinion by Venice Commission of Council of Europe no 464/2007 from March 19, 2008, on the draft Law on High Judicial Council:

„47. The rules provided for in this draft Law for the election of the Council members seem, at first sight, to be very complicated. However, this may be the only means by which to entrust the judiciary with direct power to elect its representatives to the Council (despite the wording of Article 153 of the Constitution).

48. The National Assembly should not be given a real choice of candidates and the “authorized nominators” should only propose one candidate per vacant position. In this way, the National Assembly will have a right of veto. This seems to be the only solution that would avoid political considerations being taken into account in the nomination of the Council members.

49. It was clarified at the meeting in Belgrade that the intention is to allow the Council to nominate only one candidate for each vacancy, being the candidate with the most votes, although this does not seem to be very clearly expressed in the text. This represents an ingenious attempt to get around the risk of politicization as a result of an election by the National Assembly which was criticized by the Venice Commission in its Opinion 405/2006.”

[19] Although the European standard regulates that the Council's composition should provide the widest representation of judiciary, that is, judges, with article 22 of the law, addressed as „representation of courts“, the representation of certain type of courts is primarily provided. This regulation previews that one of each elective members of the Council from the ranks of judges are elected from the following courts: the Supreme Cassation court, the Commercial Appellant Court and the Administrative; the appellant courts; from higher and commercial courts; from central courts; from magistrate courts and higher magistrate court and the courts based on the territory of autonomous provinces.

[20] Recommendation no. Р (94) by 12 of the Committee of Ministers to member states on independence, efficiency and role of judges:

„Principle Ic. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.“

European Charter on the Statute for judges:

„1.3.In respect of every decision affecting the selection, recruitment, appointment, career

progress or termination of office of a judge, the statute envisages the intervention of an authority

independent of the executive and legislative powers within which at least one half of those who

sit are judges elected by their peers following methods guaranteeing the widest representation

of the judiciary.“

Opinion no. 10 by the Consultative Council of European Judges:

III.C. Selection methods

III. C. 1. Selection of judge members

25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary.

26. The selection can be done through election or, for a limited number of members (such as the presidents of Supreme Court or Courts of appeal), ex officio.

27. Without imposing a specific election method, the CCJE considers that judges sitting on the Council for the Judiciary should be elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels.

28. Although the roles and tasks of professional associations of judges and of the Council for the Judiciary differ, it is independence of the judiciary that underpins the interests of both. Sometimes professional organizations are in the best position to contribute to discussions about judicial policy. In many states, however, the great majority of judges are not members of associations. The participation of both categories of judges (members and non members of associations) in a pluralist formation of the Council for the Judiciary would be more representative of the courts. Therefore, judges' associations must be allowed to put forward judge candidates (or a list of candidates) for election, and the same arrangement should be available to judges who are not members of such associations. It is for states to design an appropriate electoral system including these arrangements.

29. In order to meet citizens’ expectations that the Council for the Judiciary should be “depoliticized”, the CCJE shares the view that competition for elections should comply with the rules set out by the Council for the Judiciary itself so as to minimize any jeopardy to public confidence in the judicial system.

30. The CCJE would have no objection to the development by states of methods, other than direct elections, guaranteeing the widest representation of the judiciary in the Council for the Judiciary. A method guaranteeing diverse and territorial representation could be adopted from some countries’ experiences in forming court panels, i.e. drawing by lot members on the basis of one or more territorial lists including eligible candidates upon nominations by a sufficient number of peers.

31. The CCJE does not advocate systems that involve political authorities such as the Parliament or the executive at any stage of the selection process. All interference of the judicial hierarchies in the process should be avoided. All forms of appointment by authorities internal or external to the judiciary should be excluded.

III. C. 2. Selection of non-judge members

32. Non-judge members should not be appointed by the executive. Although it is for each state to strike a balance between conflicting needs, the CCJE would commend a system that entrusts appointments of non-judges to non-political authorities. If in any state any non judge members are elected by the Parliament, they should not be members of the Parliament, should be elected by a qualified majority necessitating significant opposition support, and should be persons affording, in the overall composition of the Council for the Judiciary, a diverse representation of society.

III. C. 3. Selection of the Chair

33. It is necessary to ensure that the Chair of the Council for the Judiciary is held by an impartial person who is not close to political parties. Therefore, in parliamentary systems where the President / Head of State only has formal powers, there is no objection to appointing the Head of State as the chair of the Council for the Judiciary, whereas in other systems the chair should be elected by the Council itself and should be a judge.“

[21] Article 56 of the Law:

„Elected member from the ranks of judges, after the expiration of mandate in the first convocation of the Council, continues to perform judicial function in immediately higher court from the one in which he has performed judicial function before, under condition that he fulfills conditions for the election of judge in that court.

The judge continues to perform judicial function in the court which has taken over the jurisdiction of the court he has performed judicial function if he/she does not fulfill conditions for the election of judge in immediately higher court.

Decisions from paragraphs 1 and 2 of this article are brought by the Council in its permanent composition.“

[22] European Charter on the Statute for judges:

„1.3.In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.

4.1. When it is not based on seniority, a system of promotion is based exclusively on the qualities and merits observed in the performance of duties entrusted to the judge, by means of objective appraisals performed by one or several judges and discussed with the judge concerned. Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement. Judges who are not proposed with a view to promotion must be entitled to lodge a complaint before this authority.“

Opinion no. 10 by the Consultative Council of European Judges:

V. A. Selection, appointment and promotion of judges

48. It is essential for the maintenance of the independence of the judiciary that the appointment and promotion of judges are independent and are not made by the legislature or the executive but are preferably made by the Council for the Judiciary.

49. While it is widely accepted that appointment or promotion can be made by an official act of the Head of State, yet given the importance of judges in society and in order to emphasize the fundamental nature of their function, Heads of States must be bound by the proposal from the Council for the Judiciary. This body cannot just be consulted for an opinion on an appointment proposal prepared in advance by the executive, since the very fact that the proposal stems from a political authority may have a negative impact on the judge’s image of independence, irrespective of the personal qualities of the candidate proposed.

50. Although this appointment and promotion system is essential, it is not sufficient. There must be total transparency in the conditions for the selection of candidates, so that judges and society itself are able to ascertain that an appointment is made exclusively on a candidate’s merit and based on his/her qualifications, abilities, integrity, sense of independence, impartiality and efficiency. Therefore, it is essential that, in conformity with the practice in certain States, the appointment and selection criteria be made accessible to the general public by every Council for the Judiciary. The Council for the Judiciary shall also ensure, in fulfilling its role in relation to the court administration and training in particular, that procedures for judicial appointment and promotion based on merit are opened to a pool of candidates as diverse and reflective of society as a whole as possible.

51. In addition, where more senior posts are concerned, particularly that of a head of jurisdiction, general profiles containing the specificities of the posts concerned and the qualities required from candidates should be officially disseminated by the Council for the Judiciary in order to provide transparency and accountability over the choice made by the appointing authority. This choice should be based exclusively on a candidate’s merits rather than on more subjective reasons, such as personal, political or an association/trade union interests.”

* Last modified: 2009-10-02

THE HIGH JUDICIAL COUNCIL - Constitution, tasks, activity plan and problems

1. What are the concrete tasks given to the High Judicial Council and time limits in which they should be fulfilled;
2. Transparency;
3. Possibility of a “rump” constituting;
4. Possibility of constituting in full composition;
5. Constitutionality of activities in incomplete composition;
6. Constitutionality and legitimacy of decisions made by such “rump institution”.

1. What are the concrete tasks given to
the High Judicial Council and time limits in which they should be
fulfille

In only several months, the first convocation of the High Judicial Council, the highest institution of judicial administration, should fulfill a series of the most important tasks, thus setting up the foundations of a new judicial system:

* By the end of March 2009, i.e. in 90 days the latest from the date when The Law on High Judicial Council takes effect (article 50 of the Law on High Judicial Council)

- Election of members of the High Judicial Council

* By April 7, 2009, i.e. in seven days from the date of election of elective members (article 54 of The Law on High Judicial Council)

- Constitution of The High Judicial Council

* By the end of April 2009, i.e. in 30 days from the date of election of the first convocation of the High Judicial Council (article 100, paragraph 1 of the Law on Judges)

- Establishing of necessary number of judges and jurors

* By the end of May 2009, i.e. in 60 days the latest from the date of constitution of the first convocation of the High Judicial Council

- Making of the sub-laws regulations on:

- Criteria, measures and proceedings for evaluation of activities by the judges, i.e. courts’ presidents (article 32, paragraph 4 of the Law on Judges),

- Composition and working methods of the Commission for Evaluation of works of courts’ presidents (article 34, paragraph 3 of the Law on Judges)

* By the end of the first week of July 2009, i.e. in 90 days from the date of constitution of the High Judicial Council

- Proposals for election of the president of the Supreme Cassation court (article 102, paragraph 5 of the Law on Judges) and election of judges for the Supreme Cassation court (article 100, paragraph 2 of the Law on Judges)

- Making of the sub-law acts previewed by the Law on High Judicial Council (article 59 of the Law on High Judicial Council)

§ Rules of procedure (article 18 of the Law on High Judicial Council),

§ Regulations of working methods and decision-making procedures in disciplinary bodies,

§ Establishing of programs for starting training for judges,

§ Passing of the Ethics codex (article 13 of the Law on High Judicial Council),

§ Setting up of composition and activities of the permanent working groups (article 15 of the same Law),

§ Establishing of the organization, activities and working methods of the Administrative office (article 48) and conditions for nomination of the Council’s Secretary (article 48).

* By December 1 2009

- Election of all judges (article 100, paragraph 2 of the Law on Judges)

* By the end of 2009

- Nomination of acting court presidents (article 102, paragraph 1 of the Law on Judges)

* From January 1, 2010

* By the end of June 2010, i.e. in six months from the date of beginning of works of Courts set by the Law on Organization of Courts

2. Transparency

The decision on National Strategy of Judicial Reforms, adopted by the Parliament of Serbia (the Official Gazette of the Republic of Serbia, no 44/2006, on May 26, 2006), has set up four key reform principles – independence, transparency, accountability and efficiency of the judicial, thus also judiciary, system. Independence, responsibility and efficiency are complex standards, systems that demand implementing of a series of accordant and appropriate measures in order to be fulfilled. Transparency of the judiciary system, however, is easy and immediately fulfilling principle. If there is a good will for it. These four strategic principles have not been given up after 2006, thus this is one of rare and commendable examples of continuity in functioning of state institutions in Serbia.

Those who make decisions on judiciary always call on transparency. Also, transparency is always being “forgotten.”

So, the real reasons for a general election of judges, even those who have already been elected for permanent judicial function are not known. It is unknown why the criteria for election of all judges, instead of the High Judicial Council, whose task this is, has been made by an informal working group of the Justice Ministry, otherwise not authorized to do so, nor the public is informed of full composition of that working group and methods and criteria it has been composed of. The public has not been informed also of the results of activities by this informal working group, which are of essential importance for the future of judiciary in Serbia, since these criteria it has proposed will be a basis for general election, so-called re-election of all judges (under the condition that the Constitutional Court declares that the re-election is constitutional and in accordance with international standards). The public has not been informed also that the text of criteria made by this working group was delivered to the Venetian commission of the Council of Europe in order to obtain its opinion whether these proposed criteria were in accordance with the European standards.

Finally, the public has also not been informed what will be the solution of the problem that has occurred following non-election of three out of 11 members of the High Judicial Council (a judge, an attorney and a professor). Although available to public on the Government’s website, the information that, on April 7, 2009, the High Judicial Council was constituted, has not been made available to a wider public. It is obvious from that information that three out of total of 11 members, i.e. three out of eight elective members of the High Judicial Council, are missing.

So much on transparency, as one of the four principles of the new judiciary.

3. Is it possible to constitute the High
Judicial Council in incomplete composition?

Let us remind, the High Judicial Council is defined by the Constitution as an independent and self-managed body that provides and guarantees independence and non-dependence of courts and judges. It is clear that the Constitution regulates those institutes which it considers as the most important for proper functioning of the state of Serbia, based on the rule of law and social justice, principles of the civic democracy, human and minority rights and freedoms, as well as affiliation to European principles and values, as it is written in the first article of the Constitution.

The Constitution regulates that the Council consists of 11 members. Considering this body as of vital importance for functioning of Serbia, the Constitution further regulates its composition. It consists of a president of the Supreme Cassation court, a minister in charge of judiciary and a chairman of the Republic’s parliamentary authorized board, as members by position, and eight elective members, elected by the Parliament, in accordance with the law. Out of eight elective members, six are judges with permanent judicial function, one of them from the territory of autonomous provinces, while two are respected and prominent legal experts with at least 15 years of professional experience, one of them an attorney, the other a professor of Law faculty.

So, out of eight elective members, three have not been elected – a judge, a professor and an attorney. However, the Council has nevertheless been constituted.

Constituting an incomplete body that is previewed by the Constitution can be done only if the law, previews such a possibility in a clear, explicit way, without any doubts. That is the case, for example, with the Constitutional Law on implementing the Constitution, which previews a possibility of establishing the Constitutional court with 10 judges (two thirds of the total number), since it was clear even at the time of passing the Constitutional law that five judges who should together propose the High Judicial Council and the State Prosecutorial Council would be able to be proposed only after these bodies were established.

During the process of drafting the Law on High Judicial Council, there were discussions on regulating the possibility of establishing the works of the Council in incomplete composition, considering the possibility, which has been realized now, that the Parliament might not accept some of proposals for members of the High Judicial Council, no matter whether they are from the ranks of judges, professors or attorneys. Moreover, as the autonomy of the University and independence of law practice do not even allow that the Law on High Judicial Council deals too much with the methods used for drafting their domains’ proposals, a possibility has appeared that these domains do not recognize the importance of timely proposal of candidates for members of the High Judicial Council or not to prepare in time for that. Despite lengthy debates, a prevailing position has occurred that the High Judicial Council is too an important institution for it to be allowed to be constituted and begin works when incomplete.

That is why the Law on High Judicial Council does not include an article that would allow a constitution of the Council as incomplete. Neither this article appears in transitional and final regulations of that Law, nor they indicate to some other regulations of the same Law that could be implemented by analogy, nor the Law itself regulates procedures in the situation which could appear if a member is not elected, which has, obviously, been real. The Law, in the article 38, regulates only a situation in which a member of the Council, who has been elected, does not take function, but not the situation when some of its members have not been elected.

4. Possibility of constituting in full
composition

Why are we discussing this issue? Besides numerous warnings that the timelines are not possible to be respected, the deadlines for performing numerous, extremely important and difficult tasks of the High Judicial Council are short and strict. It could even be said, arrogantly short. At the first glance, it can be said – legal timelines are strict and precisely determined, they should be respected and that is why it is better for the Council to start its works even in incomplete composition, while the other members will be elected “working along”.

However, it has been forgotten that the transitional and final regulations of the High Judicial Council rule that the previous High Judiciary Council proposes to the Parliament of Serbia a candidate for members of the High Judicial Council from the ranks of judges (article 52, paragraph 6 in relation to paragraph 5 of the Law on High Judicial Council), while regulations given by the articles 61 and 60 of the same Law also rule that, by the constituting of the High Judicial Council, the Law on High Judiciary Council ceases to exist, in its part related to the judges. By that, the High Judiciary Council also ceases to exist.

Even if, before the constituting of the High Judicial council, the High Judiciary Council has proposed to the Parliament of Serbia its candidate for non-elected member of the High Judicial Council from the judges’ ranks, and we do not know that, again, (and thus we go back again to the principle of transparency which has persistently been stepped away from), what will happen if that candidate is not elected again? The very moment the High Judicial Council is constituted, the High Judiciary Council ceases to exist, and who is then authorized to propose them? This means that the whole, enormous and the most important work in casting the foundations of the new judiciary in Serbia will be performed by a rump body, with one judge representative less, without a constitutional and legal basis for it. After all, what will happen if the attorneys or professors do not propose their candidates, or if they are not elected again? I do not doubt that a factious, quasi-legal solution for this situation will be sought for.

But, what is born rump, time cannot change!

5. Constitutionality
of activities in incomplete composition

Enormous changes planned for judiciary in Serbia, which are controversial in basis, can not be conducted in such manner that, at every step, every new disputed situation, be “solved” without consulting the profession, in secret, in accordance with requests for speed and factual opportunism, and not in accordance with respect of the Constitution and laws. Is the request for respect of the Constitution and laws so inappropriate and improper? And especially when the judiciary is considered?

How will the judiciary in Serbia function if all fundamental solutions come under the eye of the Constitutional Court’s rule? How many years of uncertainty, lack of organization and weak performances will it bring?

6. Legitimacy
of decisions made by the incompletely composed High Judicial

Always in rush towards final reforms, with an aim to join the EU, we keep forgetting that the membership in the European Union is only an index of the status, but not of the society’s reality. It is necessary for Serbia to start implementing international standards that are nothing more than crystal clear rules of logical and rational behavior, made through a long-lasting democratic practice, applicable in any of the states that are improving its judiciary system. Of course, these standards are not miraculous examples, enough just to be copied in laws in order to get what is wanted – a state of law. Every country that applies them, must also take into a consideration its tradition and its possibilities, and, having all these in mind, must interpret and create its own rules and regulations for a “good behavior”, thus putting into effect international standards, efficiently and making them applicable and successful at home. Serbia is also obliged to do so, for the benefit of its citizens, without calculations whether that would lead it to the European Union.

It is of utmost significance that such important, tectonic changes intended to be used in judiciary reforms, which are already disputed from the legal aspect, be logical, have clear goals and preview clear rules. That the laws are equal for anyone and that they essentially enable the system to be re-questioned and improved. They have to be taken with a wide understanding and acceptance from all working in the judiciary system, since that is the only way to make successes of reforms more certain.

Serbia deserves a reform without legally controversial solutions, in accordance with the European standards, since without legal security, transparency and real conditions for independent, impartial, professional, accountable, efficient and predictable functioning of the judiciary, there will be neither a development, nor stability. There is no goal, neither it is socially useful and acceptable, which would justify disrespect of the Constitution and the European standards.

Every “shortcut” and insincerity in this procedure can take a sense out of reforms, represent its illusion, façade and to lead, sooner or later, to “damaging” of good intentions and failure to reach all wanted goals. Wrong and rushed solutions easily and quickly cause damage that needs decades to be corrected.

It is not a shame to realize later unrealistically short legal timelines that disable implementation of planned solutions or a need for gradual conduct of reformist changes. It is a shame to pretend that everything can be fulfilled in these deadlines. And it is pity if we only simulate reforms, without conducting it really.

Dragana Boljević

President of the Judges' Assocuation of Serbia