Judiciary – The Achilles Heel of the State of Serbia

News Articles15.07.2010.

The state is an organisation of people in the same territory, distinguished from other organisations of that kind in that it exclusively has sovereign and supreme power over the people. That supreme, state authority is a specific feature of the state. It has three functions – the legislative, performed by the state by its enacting legislation and legal norms having a general effect; the executive, which it performs by enforcing the legislative enactments; and the judicial, performed by its resolving disputes in reference to the application of laws and any other general enactment. These functions are performed by the relevant government authorities, referred to as the legislative, executive and judicial (court) authorities, respectively, according to their respective prevalent functions. These are the three girders of the legal edifice called the state. The state also has other authorities, however, all of them perform functions that are either closely or remotely related to one of the three typical functions of state authority. If one of the three girders is not positioned properly, the whole edifice of the state starts shaking.

Just like the vast majority of modern states, Serbia, too, has organised the performance of these three functions of the state authority on the principle of the “separation of powers”, by establishing special authorities in charge of performing each one of the powers. The first time Serbia acquired full freedom to organise itself as an independent state in the new century, after 1918, was as late as 2006, the time when the large joint state ceased to exist only to be followed by the termination of the small one. Serbia was larger when it contributed itself to the joint state, than when it was left by itself following the breaking away of the members from that joint state one by one, with some breaking off a part of the Serbian territory, and others declaring their own state in the territory which was originally Serbian.

• All the judges are to leave the courts

After such a shearing, Serbia got down to organising its state authority in accordance with its Constitution of 2006. And while the legislative and the executive branches of power were being built in accordance with the constitutional project, the judicial branch of power dissociated itself from it, starting to organise itself in accordance with its own project (“reform of the judiciary”) already in the Constitutional Law on the Implementation of the Constitution adopted two days after the promulgation of the Constitution,. The constitutional project of the organisation of the legislative and the executive branches of power did not go uncriticised. The Parliament was remarked for being disproportionately oversized in relation to the electorate (even Sl. Jovanovic used to criticise the bulky National Assembly by saying – “The larger a gathering gets, the more it turns into a crowd - that is, it is increasingly less able to deliberate”). The election system was criticised for being a system for the election of parties rather than deputies, and that the suppression of the free deputy mandate had turned the National Assembly into a voting machine. The two-headed (dual) executive branch of power was imputed the tendency of leading towards a marginalisation of the government in the event of a match between the presidential and parliamentary majority, as well as to the personal rule by the President of the Republic, with the responsibility of the President of the Republic ultimately being left to political arbitration rather than the constitutional and judicial arbitration. The Constitution was blamed for an excessively bulky government because it had not restricted the number of its members, thus making it possible to form ministries tailored according to the interests of coalition party members, instead of government members being appointed in accordance with the interests of the ministries. But all of these were criticisms of the Constitution, which is binding irrespective of their harshness, and not criticisms of the unconstitutionality of the implementation of the Constitution, which is impermissible no matter how coy it may be. The judicial branch of power, however, has been established in an unconstitutional manner, to such a degree that it compromises the constitutional definition of Serbia as a state.

In order to suppress any thought of unconstitutionality, the advocates of the whole endeavour of the reconstruction of the hitherto judicial branch of power triumphantly named it “judicial reform”. That reform was to yield a judiciary that would not only be purged of its old sins, but also one that would also be sinless, now and in the future, for eternity. Everything sounded so ideal and divine that late in 2009 (NIN, No. 3067 of October 8, 2009) the President of the Republic himself wondered in amazement: “Where are the critically oriented intellectuals to support the judicial reform. Since “the critically oriented intellectuals” even back then, and especially the professional public, had addressed fierce criticism against that “reform”, the President reprimanded them for such a “hew and cry” that the public was raising against the “reform” and for challenging it with “constant obstruction”, meaning, alike his great predecessor, that “the enemy is driving a wedge in the wheels of our development”.

The approach taken was that propounded by the Jacobian slogan: “All the judges are to leave the courts”. They were all be appointed from the beginning. But, since the Constitution does not put it that way, this had to be ensured in a legal enactment. In order to provide for an even greater legal impeccability, this was taken care of in the Constitutional Law on the Implementation of the Constitution, which was adopted two days after the Constitution itself. The Constitutional Law on the Implementation of the Constitution as a special legal enactment, is a legal trick coming from the store of contributions made to constitutionalism by Kardelj.

Old Serbian Constitutions did have “Final Provisions” or “Transitional Provisions”, however, as their integral part. They included provisions that belonged to the Constitution logically and content-wise, ordaining transition from the then-current Constitution to the new one, as a result of which they are referred to as “transitional” provisions. Laws also have such transitional provisions, but the only difference is in the fact that they refer to the more narrow social field regulated by the respective law. As regards the Constitution, such provisions forming an organic and thematic part of the Constitution, started to be introduced in a special legal enactment starting with the Constitution of the SFRY from 1963, that is in the Constitutional Law on the Implementation of the Constitution, which is not enacted according to the same procedure applied to the adoption of the Constitution, and which, therefore, has a lesser legal power compared to the Constitution. Even though such provisions were an integral part of the Constitution, they were no longer within the Constitution. As a result of this, it has been made possible for an enactment containing such transitional provisions to “transit” the Constitution, and to trick it. Political or other opportunities are the reason why certain provisions of the Constitution have been set aside or even reformulated by way of Pythian formulations of the individual Constitutional provisions, all under the pretence of their genuine enforcement. Furthermore, for the same reasons it is easier to alter the Constitutional Law on the Implementation of the Constitution, because it is much more flexible than the Constitution (and thus, the Constitutional Law on the Implementation of the Constitution of Serbia from 1990 had been changed nine times). These legal tricks have been greatly facilitated after the annulment of the Constitutional provision which specified that the Constitutional Law on the Implementation of the Constitution is to be promulgated and take effect simultaneously with the Constitution. This is exactly the provision that the 2006 Constitution of Serbia no longer includes, the result of this being the possibility for even greater legal manipulations with the Constitution.

• Court independence – just an empty word

Thus, the Constitution of Serbia from 2006 specifies that the Constitutional Court has 15 judges, appointed from the three branches of government. The Constitutional Law on the Implementation of the Constitution specifies that the Constitutional Court exists also (“is… constituted”) when it has ten judges and if one branch of power – the judicial one – has not appointed judges to the Constitutional Court from its quota of five judges it is entitled to on the basis of the Constitution. That authority, which is not a Constitutional Court from the aspect of the Constitution, was constituted two and a half years ago (December 2007), without including any representatives of the judicial branch of government. What kind of transitional solution is this, considering that it has been going on for two and a half years, actually the “term of validity” of certain constitutions in the world?

That Constitutional Law also includes an ambiguous provision which is the source of all the troubles in connection with the judicial branch of power in Serbia. It reads: “The appointment of judges and presidents of the other courts (except for the appointment of the president and the first appointment of judges of the Supreme Court of Cassation, note by R.M.), shall be carried out not later than within one year from the date of the constitution of the Supreme Court Council”. What is the meaning of this provision? Does it mean that the new regulations included in the Constitution will apply to the appointment of the presidents and judges of all the courts specified by the Law on the Organization of the Courts, or only to the appointment of the president and judges of the newly-established courts and judges appointed to that position in higher instance courts? The Law on Judges considered that the above mentioned provision of the Constitutional Law had the first meaning specified. But, since the previous Constitution specified that “judgeship is permanent” (Article 101), repeating the same provision also in the Constitution of 2006 (Article 14-6), this means that the permanence of judgeship applies only during the validity of one Constitution. The promulgation of the new Constitution marked a break with the permanence of judgeship, which was then reintroduced with the adoption of the next Constitution, and that is how it goes incessantly. The above interpretation has also been smuggled through into the transitional provisions of the Law on Judges, as a result of which that law has clashed not only with its previous substantive provisions, but also with certain provisions of other judicial laws. Considering that the Constitution of 2006 makes a distinction between two procedures for the appointment of judges – first appointment, in which case the judge’s term of office is three years (“test appointment”) and appointment for “permanent performance of judgeship”, with that function terminating in the cases and under the conditions provided for by the Law. In order to avoid having judges who have performed that function for one or several decades apply for the first appointment, the Law on Judges has transformed their appointment – which was otherwise permanent pursuant to the Constitution of 1990 – into a first appointment with the following specification, which was embedded in the transitional provisions of the Law on Judges: “The first appointment of a judge shall be appointment to the office of judge in accordance with the valid regulations”. And if they are not reappointed, their office is to terminate on January 1, 2010.

Reappointments are performed by the High Court Council (HCC). That body also decides on the number of judges and lay judges, which is under its jurisdiction in the original Law, however pursuant to the transitional provisions of the Law on Judges “with the previous approval of the minister competent for the judiciary”. According to the Constitution, that minister is already a member of the HCC by virtue of his function, and so, based on the legislative solution applied, the minister will be deciding on the same matter in two capacities – in one, as the sole government authority, in the cases where he issues previous approval for the number of judges and lay judges, and the other time, when, as a member of the collective authority functioning on the principle of the majority decision, that authority decides on the number of judges and lay judges. This is not only logically untenable but also contrary to the Constitution, where the HCC is defined as “an independent and autonomous body”, that is, as a government body performing its competences independently, without any previous or subsequent conditioning. This provision, too, is among the “transitional” legal provisions.

It suffices to have common sense without professional legal knowledge to be able to realize that the two laws, one of them a constitutional law and the other a regular law, are contrary to the Constitution. The reasons why this is so are constitutional and legal, on the one hand, and theoretical and legal, on the other. The constitutional and legal reasons refer to the constitutional continuity, the theoretical and legal reasons referring to the judicial function. The permanence of judgeship provided for by the Constitution of 1990, was extended by the Constitution of 2006 by an identical formulation, which was adopted based on the observance of constitutional continuity (pursuant to the provisions applying to the adoption of the new Constitution specified in the Constitution of 1990). This means that the feature of the permanence of judgeship has remained unterminated, i.e. that it is valid even after the adoption of the new Constitution, and will continue so until the requirements for the termination of a judgeship have been met (relative permanence of judgeship). The famous Serbian lawyer Zivojin M. Peric, authority on procedural and civil law, has provided a classical aspect of the theoretical and legal reasons in support of the permanence of judgeship at the beginning of the 19th century. According to him, permanence is an inherent aspect of judgeship, because without it “the independence of the courts is only an empty word”. Ever since the inception of courts, judicial power, has always had one same content – establishing the so-called state of facts in a concrete judicial dispute and its subjection to the appropriate substantive legal regulation (law) in order to reach a concrete judicial ruling. That content may spill over into organizational moulds of this or that kind, without this having any impact on its essence. Things are different, however, when it comes to the legislative or the executive branch of power, because, especially where the former is concerned, the law is created in accordance with the policy that has become legitimate on the basis of parliamentary and presidential elections. Hence, as Z.M. Peric considers, the permanence of judgeship is valid also when the constitution does not provide for it, because it has the power of “a moral and political principle” which must not be neglected even if the Constitution is altered”. Also, the reason for “judicial reorganization may not annul - even for an instant” the principle of permanence of judgeship. Particularly where the judicial reorganization has been left to the legislator and where that reorganization may destroy the permanence of judgeship “under the pretence of reorganization, but actually with a view to replacing the judicial staff”. By its distorted interpretation of the law, the High Court Council refused to provide the judges, who had not been appointed, with decisions on the matter, while the Assembly Committee on the Judiciary also issued no statements on the subject.

• Futile outwitting of the opposition

This is exactly what happened in Serbia after more than one century since the caveat by Zivojin M. Peric. The 2006 Constitution has left it to the law to regulate “the organization and the composition of the courts” (Article 143 Para. 2), however since creator of the Constitution did not waive the Constitutional principle of the permanence of judgeship, the legislator did not have the right to do so by prescribing a new organization of the courts. And this is exactly what the legislator has done under the pretence of reorganization, thereby evidently violating the Constitution. To put it rightly, there has been no reorganization of the courts, after all. Namely, a part of the jurisdictions of the former Municipal, District and Supreme Courts of Serbia has been assumed by the Ordinary, Higher, Appellate and Supreme Court of Cassation in such a manner that they are at the same time Appellate and Administrative Courts. The Supreme Court of Cassation which, by the way, has an awkward name, has retained jurisdiction of the Supreme Court of Serbia in the field of hearing cases, though it is significantly reduced and amounting to deciding on extraordinary legal remedies, and it has acquired certain new competences outside the area of hearing cases. All in all, the old judicial competences have been redistributed among the old courts which now bear different names. The only really new courts are the Misdemeanours Court and the Higher Misdemeanours Court, since misdemeanours proceedings were not under judicial jurisdiction. Hence the Law on Judges specifies that “the appointment of judges for misdemeanours proceedings shall not be considered genuine appointments” (Article 100 Para. 4), meaning that misdemeanours judges who held that office on the basis of the former regulations are to be appointed misdemeanours judges pursuant to the provisions only if they were judges under the formerly applicable regulations, of either general jurisdiction courts or special jurisdiction courts. Despite the fact that the unconstitutionality of the transitional provisions of the Law on Courts was “a prick in the eye” for the authorized movers of the motion for instituting proceedings for the assessment of the constitutionality of that law by the Constitutional Court, there seemed to be a previously agreed silence. Nobody, not even the 25 MPs from the ranks of the opposition, a fact difficult to comprehend, ever instituted any proceedings before the Constitutional Court, with “nobody” implying those who had the respective constitutional authority for that. Our opposition, however, is more prone to futile verbal outwitting exercises with the representatives of the government in front of TV cameras at the National Assembly, than to applying legal remedies for challenging the acts of the government, a fact which is devastating for political democracy in the country.

The Association of Judges and probably certain affected individuals were the only ones to initiate proceedings before the Constitutional Court, which, viewed from the legal aspect, is insufficient for the Constitutional Court to institute proceedings. However, the Constitutional Court adopted a ruling rejecting all those initiatives, whereby it got involved in the merits of the case, quite unexpectedly, just as if the proceedings had been instituted by the authorized petitioner, in which process it actually adopted a decision in the form of a ruling specifying rejection of the initiative to institute proceedings, based on which the challenged provisions of the Law on Judges “are not contrary to the Constitution”.

Even in their pronouncement of the reasons for the above decision the judges have had a slip of the tongue by inserting the phrase “assessing the constitutionality of the specified legal provision”, as though proceedings for the assessment of the constitutionality of a law had been instituted, despite the fact that the premises of the ruling specify “the initiatives for instituting proceedings for the assessment of constitutionality are hereby rejected”, which is followed by a list of the disputable provisions of the Law on Judges. The Constitutional Court therefore carried out a legally impossible thing – it did not institute proceedings, but it started discussing the merits of the case without previously passing a decision on initiating proceedings! However, later on, as ill-luck would have it, genuine movers of the motion for instituting the proceedings before the Constitutional Court, as authorized by the Constitution, appeared on the scene – the District Courts in Prokuplje and Leskovac, extending their request for the assessment of constitutionality to include the formerly mentioned provision of the Constitutional Court regarding the implementation of the Constitution, and several other transitional provisions of the Law on the HCC. Now the Constitutional Court was in a quandary having to pass a decision on the merits of the case, an issue it had already determined before the proceedings had been instituted. Now it had to state its opinion again, however, in a proceeding provided for the assessment of the constitutionality of a law. Being aware of the fact that it is in dire straits, the Constitutional Court is still keeping silent, even though the petition for the assessment of constitutionality was submitted late last year.

• The free masons’ principle of action

Meanwhile, the HCC committed a whole series of breaches of the Constitution. It has proclaimed itself constituted without any legal grounds for that and with a defective composition of members. The HCC can exist only when its election and composition are in accordance with the Constitution. Without this it is not a government body, let alone a “High” body. Even the Law on HCC states (Article 17, Para. 1) that the said government body is to pass decisions “by a majority vote of its members”. Therefore, both the Constitution and the Law require that the HCC have all of its members.

The Constitution of Serbia from 1990 included a provision specifying that: “The functioning of government bodies shall be transparent” (Article 10, Para. 1). That provision has been removed from the democratic Constitution of Serbia adopted in 2006. However, if the Republic of Serbia, in accordance with that Constitution, is a state founded also on the “principles of civil democracy”, among the rest, that principle does not go hand in hand with a general exclusion of the public from the functioning of a government authority that has been vested by the Constitution with administrative governance of the court authority. The HCC functioned according to the principles of the free masons lodge. Article 5 of its Rules of Procedure specifies the following: “Meetings of the Council shall be closed for the public”. In other words, they are secret in relation to the public. Article 12 of the Rules of Procedure specifies that HCC members are obliged “to keep the secrecy of the data designated as secret by the Council” and “not to disclose any information referring to the decision-taking process of the Council”. After studying the competences of the HCC (Article 13 of the Law on the HCC), one still remains unable to figure out a single reason for hiding from the public in the process of performing roughly thirty listed competences of the HCC. Things became clear only after the HCC appointed the judges “for permanent judgeships”. That appointment really had to be concealed from the public to protect public morality. Rewards for the HCC members from the ranks of judges (who make an absolute majority of the HCC members) for their “hard” work in the HCC, was taken care of by the Law on the HCC itself. What this Law has provided for is that after the termination of their term of office in the first HCC, which is to perform the most important part of the job, they will be able to continue to perform their judgeships in the immediately higher court in relation to the one where they worked as judges before their appointment to the HCC – without election – provided they meet the requirements for appointment as judges in that court. If this should not be the case, they will continue performing their judge’s functions in the court that has assumed the jurisdiction of the court where they used to perform their judge’s functions. Therefore, the principle applied to these judges is that of continuity of judgeship, because only these six judges will be able to retain their judgeships - by virtue of the law - to which they were appointed on the basis of the previously applicable laws, either in the higher court, or in the court where they formerly performed their judge’s functions. There is no need to spend words discussing the unconstitutionality of such a provision on several grounds. That provision is a tip of its own kind provided to the HCC members for a well-done job sub rosa (away from the eyes of the public). In addition to these rewards, they were also entitled to a salary until January 1, 2010, equal to the basic salary of the president of the then Supreme Court of Serbia.

• A fountain of illegality in the functioning of the HCC

If one moves from the area of conflicts of legal norms with different legal magnitudes involving the HCC, to the area of the activities of the HCC, one encounters a real fountain of unconstitutionality and illegality. First of all, the HCC that has been constituted (April 6, 2009) has nothing to do with the HCC specified by the Constitution. At the time when it was constituted, it lacked three appointive members (out of a total of 11 members). The missing judge was appointed in May, the lawyer was appointed at the end of October by bypassing a legal norm, and a professor of the Faculty of Law has not been appointed to it unto this very day. All this has been taking place in spite of the explicit and identical provision of the Constitutional Law on the Implementation of the Constitution and the Law on the HCC, reading as follows: “The constituent meeting of the High Court Council… shall be held within a term of seven days from the date of the appointment of its members” (Article b. Para. 5 of the Constitutional Law and Article 54 Para. 1 of the Law on the HCC).

Although having an incomplete membership, the HCC has passed the key decision regarding the judicial “reform” – the number of judges required, proceeding with their appointment. Thus, in June 2009, it reduced the then number of judges by more than 25%, namely, it reduced the number of slightly less than 2.400 judges to 1.838 judges. The Association of Judges claims that two of the three prescribed criteria for determining the necessary number of judges had not been taken into account at all (Framework Criteria for Determining the Number of Judges Required, published in the Official Gazette of the RS).

The HCC published the announcement for the appointment of judges in mid-July 2009, starting to process more than 5.000 applications in September. Everything after that unfolded “like in a movie”. The rump HCC processed 5.020 applications in three months, as its President states “in a conscientious and thorough manner”, which would have been a feat much greater than Munchauzen’s rescue from quick sand by pulling himself up by his own tress. Those who have good nerves have calculated that each of the candidates received five minutes of attention. Thus, the fates of many have been resolved in as many as five minutes. In order to exclude arbitrariness in the appointment of judges, late in June 2009, the HCC passed its Decision on Establishing the Criteria and Norms for the Assessment of Qualifications, Competences and Eligibility. It is incontestable that those are the real parameters for the appointment of judges, however, except for the first one, the other two, and especially the third one, leave a lot of room for bias and, hence, also arbitrariness, something that has been proved in practice. The HCC passed its decision on the appointment of judges to permanent functions in general and special jurisdiction courts on December 16, 2009, publishing it in the Official Gazette of the RS on December 17, 2009. That decision was a list of the judges elected. Those who were not elected received the respective “notification” about that, by not finding their names on the list of the judges appointed. None of them were invited by the HCC to state their opinions regarding the suspicions that had been expressed about their qualifications, skills and eligibility (in view of the assumption that “a judge who has been elected pursuant to the former regulations, and who performs his judgeship at the time of the election, as well as who has applied for appointment to a court of the same type, i.e. the same instance, meets the criteria and norms” as specified by the Decision on Establishing the Criteria and Norms for the Assessment of Qualifications, Competences and Eligibility for appointment to the position of a judge and court president – Article 13 Para. 1 of the Decision). There is no legal proceeding where a breach of that principle is not sanctioned by the right of the party to request a review of the proceeding. The principle concerned is that of hearing the party (in the Law on General Administrative Proceedings that principle reads as follows: “Prior to adopting a ruling, the party has to be provided the possibility of stating his/her opinion about the facts and circumstances of importance for the adoption of the ruling”). That principle was not to be violated, particularly, in view of the radical cut that was the option chosen, where as many as 837 judges , i.e. 35% which accounts for more than a third, were not elected.

• Judges to the Judges

One breach of the Constitution and legislation led to another. By a distorted interpretation of the Law, the HCC refused to issue a decision on the matter to the judges who had not been appointed. Since reference to own Constitution, has greater weight among the official legal circles than reference to the opinions of the Venice Commission, here is what that Commission wrote in its Opinion about the Draft of the Criteria and Norms for the Appointment of Judges and Court Presidents in Serbia, dated June 12-13, 2009 (No. 528/09): “Each present judge having a permanent function (whether the judge has applied for reappointment or not) should be relieved of his/her function solely on the basis of a reasoned decision, that may be appealed with the court”. Since the HCC failed to issue such a decision, and the statutory 30-day deadline (Article 84 Para. 1 of the Law on the Constitutional Court) for filing a constitutional appeal with the Constitutional Court for violation and denial of the human right warranted by the Constitution was getting nearer, and in order to avoid forfeiting the relevant legal remedy, several hundred judges who had not been appointed, filed a constitutional appeal with the Constitutional Court against the purported enactment on denial of appointment to the position of judge. Pressed from many sides, but most of all by the professional public, the HCC kept sinking ever deeper into the mire of arbitrariness. It was compelled to realise that its non-delivery of the decision on the termination of judgeships to the judges who had been denied appointment had opened a realistic perspective for the constitutional appeal to succeed, because there was an evident infringement of Art. 32 Para.1, 36 and 60 Para. 4 of the Constitution, and so it delivered the decision concerned to 837 addresses, to all the judges who had not been appointed. However, the decision does not even include the addressee of the decision (the name of the person the decision refers to), or an instruction about the legal remedy. The Decision has even been registered under the same case number for all of the 837 judges who had not been appointed, as if all of them had applied for the election on the basis of a joint application, rather than separate ones. And that was the decision delivered by a body composed of prevalently judges, to their colleagues – judges! In that decision which is 16.5 pages long, the first 15 pages list the names of the 837 judges who have not been appointed, followed by a “statement of reasons” which was identical for all the rejected judges (despite the fact that each one of them was an individual case). That was no longer only arbitrariness, rather, it had turned into petulance. The members of the HCC know very well what they have done, because all of them (except for, perhaps, the minister) have graduated from the school of law and have passed their bar examinations, but they wanted to show their colleagues how much power they had, that they were not just ordinary judges, but judges judging the judges.

The service of these “decisions” to the judges who had been denied appointment, provided them with the legal grounds for applying the legal instrument that was available only to them, and that was – an appeal against the HCC decision terminating their judgeships, which was filed within 20 days from the service of the “decision”, with the constitutional Court (Article 148 Para. 2 of the Constitution). In the given circumstances, that appeal is like “hide-and-seek”, because none of the appellants know the reasons why their judgeships were terminated. Furthermore, “filing an appeal excludes the right to filing a constitutional appeal”. In one of her interviews, the HCC President said that “the judges who have not been appointed are not entitled to an appeal with the Constitutional Court, because the Law on Judges prescribes that a judge has the right to appeal a decision of the High Court Council, however, this legal remedy referred only to the judges who have been elected pursuant to this Law, and who have taken office as of January 1, 2010”) (Politika, February 5, 2010). The President had forgotten that the rejected judges have the right to appeal on the basis of the Constitution, and not the Law on Judges, and that the rejected judges have that right directly on the basis of this Constitution. The question is, on what grounds has Ms. Nata Mesarovic been President of the HCC since its constitution on April 6, 2009 till November 30, 2009, having been appointed to that function without any election, and actually, on the basis of another position she had been appointed to.

• Constitutional solutions

How it came to pass that the President of the HCC since the constitution of the HCC until the appointment of Ms. Nata Mesarovic as the President of the Supreme Court of Cassation, was Ms. Nata Mesarovic, will certainly remain a secret for the public (because that is the principle of work of the HCC), and for the law, it will just be another among the many legal adventures of the HCC. According to the “transitional” provision of the Law on the HCC, the President of the Supreme Court of Serbia is a member of that body by virtue of his/her position, until the appointment of the President of the Supreme Court of Cassation (Article 51). Since Ms. Mesarovic was the Acting President of the Supreme Court of Serbia at the time the HCC was formed, she became a member of the HCC on that ground, however, there is no provision in the Law entitling her to become the chairperson of the HCC, and even less so, its President. The Law on the HCC, which had long been in effect then, specifies: “The President of the Supreme Court of Cassation shall be the President of the Council by virtue of his/her function” (Article 6 Par. 1). The HCC Rules of Procedure, adopted on June 1 2009, specify in Art. 9 Para. 1 that “The Council is composed of the President and members, pursuant to the Constitution”. However, the Constitution includes no provisions regarding who should hold the office of the HCC President, only having a provision about who it is composed of. The provision which is not included in the Constitution, is included in the Law on the HCC, and it has already been stated. It is true that the Law on Judges in Article 102 Para. 6 specifies that: “The President of the Supreme Court of Cassation shall become a member of the High Court Council as of the date of his/her appointment as President of the High Court of Cassation.” The two Laws adopted at the same time include different provisions regarding the same issue! This amply speaks about the quality of our legislation.

Ms. Mesarovic has become the President of the Supreme Court of Cassation after being elected by the National Assembly on November 30, 2009, but she took office as of January 1, 2010. The question should be raised, therefore, as to the ground upon which Ms. Mesarovic was the HCC President since its constitution on April 6, 2009 till November 30, 2009, given the fact that she became its President ex lege, without election, and on the basis of another position to which she had been appointed. The end of the text of the HCC Rules of Procedure published in the Official Gazette of the RS No. 43/09 includes the following: “The President of the High Court Council, Nata Mesarovic, in person” That is contrary to the above mentioned Article 51 of the Law on the HCC, because Ms. Mesarovic was not President of the High Court of Cassation at the time – she was to become its President only six months later (June 1, 2009 – November 30, 2009).

Another question to be raised is, who chaired the HCC meeting where Ms. Mesarovic was nominated President of the Supreme Court of Cassation, considering that the HCC Rules of Procedure state that the HCC President or member shall be excluded “from taking part in a discussion on an issue that concerns him/herself and from decision taking on such issues” (Article 13 Para. 1). We do not know either whether there was a quorum as specified under Article 14 Para. 2 of the Law on the HCC (“The Council may hold sessions provided there are no less than six Council members present”). Also, how was Ms. Mesarovic elected President of the Supreme Court of Cassation when that court had not been in existence yet? According to the Law on the Organisation of Courts, that court was to start functioning only on January 1, 2010 (Article 89). Therefore, the President of the Court was appointed without the members of the Court themselves being appointed yet, therefore, a Court which did not exist at all. This principle is applied in the parliamentary system of government for forming the authority of the executive branch of power – the government. First the Prime Minister - the mandator - is nominated (appointed), and only then are the members of the government nominated, following which, a vote of confidence is cast in the Parliament, depending on the constitutional solutions. This is exactly why the Law on Judges has again breached the Constitution in its “transitional” provisions (Article 102 Para. 5), because it has omitted one of the requirements provided for by the Constitution referring to the appointment of the President of the Supreme Court of Cassation (Article 144 Para. 1 of the Constitution) – opinion of the general session of the Supreme Court of Cassation that has been obtained. The fact that the chronology of events in connection with the “reform” of the judiciary has been completely disrupted is evidenced also by the Decision on Appointments to the Permanent Positions in General and Special Jurisdiction Courts, adopted by the HCC on December 16, and published in the Official Gazette of the RS on December 17, where under the designation ‘THE SUPREME COURT OF CASSATION’ and Item 14 stands there is the name ‘MESAROVIC NATA’. Therefore, the President of the High Court of Cassation appointed on November 30, 2009 became a judge of the Supreme Court of Cassation on December 16(17) 2009! In all the democratic countries in the world, first the court is appointed, and then they proceed with the appointment of the court president from among the ranks of the judges. Since the procedure applied in our case, regarding “the highest court in the Republic of Serbia” (Article 143 Para. 4), was the other way round, one may say judging on the basis of that, that it is more than likely, that we, as a state, are the opposite of a democratic state.

• Criteria and norms

And, just like it happens with the unhappy drowning man, the HCC will drag down with it to the bottom of the water also those who have lent it a helping hand in order to rescue it – the Constitutional Court of Serbia. That court, whose number of members has practically been halved (it no longer has ten, but only nine of the required 15 judges) passed an act on March 25, 2010, which does not exist in the legal nomenclature of enactments it passes ( pursuant to Article 44 of the Law on the Constitutional Court, “The Constitutional Court shall adopt decisions, rulings and procedural orders”) – the enactment concerned being – “Views”. These were drawn up in a style, that Vuk Karadzic would refer to as “Making a speech for the sake of a speech”. It consists of two sections. The section under Roman I states that the judges who have not been appointed have the rights prescribed by the Constitution and the relevant Laws (as if the judges did not know about that before the “view” of the Constitutional Court), and the section under the Roman II says that the term of office of the judges who have not been appointed shall terminate “on the basis of the individual, reasoned decision by the High Court Council, which, among the rest, must include the individual reasons for which a certain person has been rejected”, with the reasons being based on the Law on Judges and the Decision of the HCC about the Criteria and Norms for the Assessment of Qualifications, Competences and Eligibility for Appointment as Judge and Court President. The second paragraph of the same section states the same regarding deputy public prosecutors, including indispensable alterations. By lecturing the HCC (and the State Prosecutors’ Council) in this manner, the Constitutional Court has turned from a government authority “which protects the constitutionality and legality and human and minority rights and freedoms” (Article 166 Para. 1 of the Constitution) into a legal-educational institution. The Constitutional Court is not a scientific institute or the Serbian Academy of Sciences and Arts to have the right to present its opinions and views regarding legal issues outside the area of constitutional disputes, but it is a government body responsible for resolving constitutional disputes on the basis of generally binding, final and enforceable enactments. If the members of the HCC did not manage to learn about law during their university studies, the Constitutional Court will not be able to help them master it either. In connection with the appeal filed by the judges who have not been appointed, the Constitutional Court should have convened a debate session inviting also the appellant and the HCC representative, following which it should have taken a decision on approving the appeal and cancelling the decisions of the HCC terminating the judgeships, because they lack the constituent element of the decision – concrete reasons for which the judges have not been reappointed. Otherwise, in connection with the appeal against the decision terminating judgeships, the Constitutional Court only has cassation authority (annulment due to unconstitutionality and illegality), without also having authority with regard to merits (it cannot appoint a judge whose appointment has been rejected). This is how things are for the time being. One cannot help feeling that, instead of such a Jacobean method applied to the judicial reform, the said reform, just like any other reform, should have been implemented gradually (and not all at once and radically, because in that case it is a revolution) observing the Constitution and the applicable judicial laws. This means that the HCC, complying with the constitutional principle of the permanence of judgeship, should have acted in accordance with Article 150 Para. 2 of the Constitution and moved the judges from the courts that have been abolished or have lost the prevalent part of their jurisdiction, to the courts that have taken over their jurisdiction, appointing judges only in the case of newly-established courts and judges who are appointed to that office in a higher instance court. The judges’ performance would then be subjected to an objective evaluation laid down by the new law, which is to be performed every three years including consequences specified by the Law (Article 32-36 of the Law on Judges) and to permanent training (Article 9 the Law on Judges). Therefore, instead of a subjective selection of judges, there would have been an objective one, and the performance of judges would have been reviewed based on objective indicators available to everyone, following which the evidently unqualified and reckless judges would have to leave the judges corps. However, reform of the judiciary was not the objective. The desired goal that was to be accomplished under the apparel of a reform was political purification of the judiciary. Legal reorganisation of the judiciary was a pretext for this, and it was propped up by the Constitutional principle of the permanence of judgeship. However, even after the 2006 Constitution, the National Assembly can alter the present “organisation and composition of the courts” any time, because it has that competence for as long as that Constitution is valid. Would such a change entail a new appointment of judges? It certainly would not, because that would be a negation of the constitutional principle of the permanence of the judicial function, just like it was negated by the current Law on Judges.

• Even if you do not want to, you still will

The fact that a political purification of the judiciary is concerned, is corroborated also by the following: If the two lists of appointed and rejected judges are collated, it appears that the first list consisted of those judges who should not be reappointed. The whole “reform” is actually because of them. The number of appointed judges is smaller than the number of judges required, as determined by that same HCC. The fact that the list of appointed judges for not the prime issue is also supported by the data that there is also one deceased judge on the list – judge of the Municipal Court in Pozega, Ljubisa Djuric, who died in October 2009. Generally, how can one explain the fact that already on February 19, 2010, the HCC declared the appointment of 81 judges in the courts of general and special jurisdiction, and only two months before that it did not appoint 837 judges who had already acquired that capacity and together with it, also judicial experience. How come none of the 837 judges had the professional and moral repute that could have been deemed their pledge for continuing their judge’s profession, considering that the number of judges required had not been achieved? I apologize for the observation, which is personal, just like any other observation. As a lawyer who keeps up to date on his profession, and who has lectured at two school of law in parallel for three decades, examining the students, and who has spent several years as a member of the bar examination commission, I have noticed that the number of distinguished names that I recall from literature or from the examinations, is much larger on the list of rejected judges.

Since the issue regarding the appointment of the judges, as regards the judges who have not been appointed, has not been finalised, we now have to see whether the Constitutional Court will protect the current Constitution after the HCC, or whether it will protect the government policy. However, the goal has already been attained, actually on December 17, 2009, when the HCC published its decision on the appointment of the judges. The “reform” of the judiciary has finally dismantled the holy principle of the judge’s function – the permanence of judgeship. The confidence of judges in that principle has been completely undermined. The destruction of this principle has also destroyed the main hallmark of the functioning of the courts – their independence. The judges who have passed the election have been fraught with uncertainty and fear of losing their jobs if the ruling political set finds fault with them or if a new political set comes to power with the plan to implement a judicial “reform” just like the present one, starting from the very beginning under the slogan “all the judges are to leave the courts, and then all of them are to apply for the published vacancies”, and then, whoever is favourable to the new political team will be reappointed, and whoever has fallen out of favour will have to leave. The judges’ backbones have finally been broken, and the awe of uncertainty has creeped into them together with the fear ofpolitical strongmen. The organisation of courts can be carried out perfectly, but if judges have to start guessing what the will of political strongmen might be instead of establishing what the will of the law is in determining cases, feeling constantly torn by the uncertainty of whether they have taken the right side or not, judicial independence will prevail only in the Constitution. It will take a long time for the wound inflicted on the judiciary by such a “reform” to heal, and if it does at all, it will leave a big scar. Where one branch of powers in the state is scarred and defective, and only all three of them make a whole, then, such will the whole government be. “Forcing” of the reform of the judiciary has displayed the overall mercilessness of the government. Not much has changed in that respect since Milos’s times, regardless of the rhetoric ornaments and other outward decorations of the so called democratic government. A rare thing has happened in Serbia. People from the profession and academics, otherwise, at the opposite poles in the professional and ideological sense, have stood up to the defence of the principle of the permanence of judgeship. The inexorability of the government has, nevertheless, prevailed over their unity. The government has carried out the “reform” in Milos’s style. Milos made the best presentation of that style when he snapped at Dimitrije Davidovic, the author of the Serbian Constitution, in response to the attempt of the latter to have his own opinion: “I am the master! And you shall serve me! If you want to, you will, alright, but if you don’t, you still will!”

By Prof. Ratko Markovic, Ph.D.

Text from the Pečat Weekly