Decision of the Constitutional Court VIIIU No.102-2010

News16.07.2010.

The Constitutional Court, composed of: the president Bosa Nenadić, Ph.D., and judges Olivera Vučić, Ph.D., Marija Draškić, Ph.D., Bratislav Đokić, Vesna Ilić-Prelić, Goran Ilić, Ph.D., Agneš Kartag-Odri, Ph.D., Katarina Manojlović-Andrić, Milan Marković, M.S., Dragiša Slijepčević, Ph.D., Milan Stanić, Dragan Stojanović, Ph.D., and Predrag Ćetković, in a proceeding according to the complaint from Zoran Saveljić from Niš, and on the basis of the Article 167, Paragraph 4, in relation to the Article 148, Paragraph 2, of the Constitution of the Republic of Serbia, at the session held on May 28, 2010 issued a

• DECISION

1. Complaint by Zoran Saveljić is adopted, and the decision of the High Judicial Council No. 06-00-37/2009-01 of December 25, 2009 is abolished, in the part of Paragraph I, point 662 of the judicial pronouncement (decision).
2. The High Judicial Council is ordered to reconsider, within 30 days after the reception of this decision, the application by the complainant Zoran Saveljić for the vacancy of the judge at the Court of Appeals in Niš, and the Higher Court in Niš.
3. The request by the complainant to postpone the implementation of the Decision from clause 1 and to postpone the election of judges which is underway is rejected.

 

• Argumentation

1. On February 22, 2010, Zoran Saveljić from Niš submitted to the Constitutional Court an appeal against the decision of the High Judicial Council No. 06-00-37/2009-01 from December 25, 2009, that stipulated the termination of office on December 31, 2009 of all judges that were not elected according to the Law on Judges (“Official Gazette RS”, No. 116/08).
The complainant claims that: on July 15, 2009, when the High Judicial Council published vacancies in “Official Gazette RS”, No. 52/09, for the election of judges in general and special courts in the Republic of Serbia, he worked as a judge of the Municipal Court in Pristina, situated in Niš; that he was elected as a judge for the first time in 1985, according to the regulations at the time, and that since 1985 he was permanently working as a judge; that he timely submitted his application for the position of a judge at the Court of Appeals in Niš, and the Higher Court in Niš; that he fulfills all the conditions to be elected as a judge in the courts where he submitted his application, that is, there were no reasons to terminate his office as a judge, because according to the Article 13 of the Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts it was established that the judges elected according to old criteria, and who performed their duty at the time of elections, and who applied for positions at the courts of the same kind, that is of the same level, fulfill criteria and standards from this decision; that he found out that he was not elected by not seeing his name in the Decision on Election of Judges of the General and Special Courts (“Official Gazette RS”, No. 106, of December 17, 2009), and that afterwards he was formally informed that his judicial office was terminated by the challenged Decision of the High Judicial Council from December 25, 2009.

The complainant emphasizes that the challenged Decision, besides the note on the termination of the judicial office on December 31, 2009 and the list of 837 judges whose office is to be terminated, contains only a short, general explanation in regard to all judges that were not elected, that their office was terminated because they did not fulfill the conditions to be elected at the court for which they applied, according to Article 45 of the Law on Judges, and Articles 1, 13 and 14 of the Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts. He established that the argumentation of the challenged decision implies that he and the other judges that were not elected do not fulfill any of the conditions for the election into the court, and the Decision did not name particular reasons why they do not fulfill those conditions, nor did the High Judicial Council inform the applicant during the process of election on any doubt about his expertise, worthiness and professional ability. He pointed out that the High Judicial Council, during the election process, didn’t allow him to see the evidence on the basis of which was raised the suspicion if he fulfilled the conditions for election. Referring to the Article 148, Paragraph 2, of the Constitution, and the Article 99, Paragraph 1, of the Law on Constitutional Court, which guarantee the right to a special legal remedy to a judge whose office was terminated – an appeal to the Constitutional Court - and referring to Article 17, Paragraph 2, of the Law on High Judicial Council, which determines that a decision of the High Judicial Council, against which is allowed a legal remedy, must be explained, he emphasizes that the challenged Decision had to be explained by naming clear, concrete and individual reasons in relation to each judge whose office was terminated, as well as in relation to him, because of which the High Judicial Council decided that certain judges are not to be elected into office, and what had as its consequence the termination of their office.

The complainant, besides this, challenges the composition of the High Judicial Council that made decisions in the process of the general election of the judges, the process in which the High Judicial Council brought decisions, and he emphasizes the flaws of the challenged Decision in regard to the content of the explanation and the instruction on legal remedy, considering that the claims in his appeal point to the conclusion that the challenged Decision was brought by an irregular application of the relevant procedural and substantive laws.

The complaint which was submitted also contains the claims about the violation of the complainant’s rights, which were guaranteed by the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms, but which mainly relate to the violation of the Constitution and the agreement with the ratified international contract of the clauses of the Law on Judges and the Law on High Judicial Council.

The complainant proposes that the Constitutional Court adopts his complaint and abolish the challenged Decision in the part that relates to him, to order the High Judicial Council to reconsider his application for the position of a judge at the Court of Appeals in Niš, and the Higher Court in Niš, and to allow him to exercise his rights on the basis of work until the end of the decision making process in regard to the application. Also, he proposes that the Constitutional Court, on the basis of Article 86, Paragraph 2, of the Law on Constitutional Court, postpone the implementation of the challenged Decision, in the part that says the complainant’s office was terminated, and to order the High Judicial Council to appoint the complainant to the office in the court that took over the responsibilities of the court in which the complainant was performing his duty as a judge, of the same kind and of the same level, until the process of reconsidering his application is terminated. Also, to postpone the election of judges according to vacancies issued by the High Judicial Council on February 19, 2010, published in the daily newspaper “Politika”, and to ban the High Judicial Council to publish new vacancies for election of judges until the end of the process of reconsidering his application.

2. In regard to constitutional complaints, that is the complaints that the judges submitted to the Constitutional Court because during the process of the general elections they were not elected to permanent office as judges, the Constitutional Court, in accordance with Article 34, Paragraph 1, of the Law on Constitutional Court (“Official Gazette RS”, No. 109/07), sent a letter from the Court, No. 97/1 on February 24, 2010 to the High Judicial Council with the request that the High Judicial Council submit a report on whether the non-elected judges received individual decisions on the termination of their office, with individual reasons why they were not elected, and if such decisions were not submitted to the judges, the reasons should be given why that was the case. A deadline of 15 days was given to submit this report, with a warning that if the deadline is breached the Constitutional Court will continue the proceeding and bring decisions on the basis of available documentation, in accordance with Article 34, Paragraph 3, of the Law on Constitutional Court.

The High Judicial Council submitted a report on March 11, 2010 in which it was stated: the High Judicial Council was not submitting individual decisions on termination of office to judges that were not elected in the process of the general elections of judges in the Republic of Serbia advertised on July 15, 2009 with reasons why they were not elected; that all the non-elected judges received identical decisions that stated that their office was to be terminated on December 31, 2009, in accordance with Article 101, Paragraph 1, of the Law on Judges (“Official Gazette RS”, No. 116/08); that in this particular case it was not about the process of reelection of judges, or dismissal of judges, so the High Judicial Council did not find it necessary to submit an individual decision with individual reasons to each of the non-elected judges; that the decision of the High Judicial Council, according to which the office of judges not elected during the general elections process is terminated, do not qualify for prescribed legal remedy; to implement the clauses of Articles 67 and 68 of the Law on Judges as of January 1, 2010, and to apply them to those judges who took their office on January 1, 2010.

Taking into account the content of the report from the High Judicial Council from March 11, 2010, the Constitutional Court, at the session on March 25, 2010, determined the legal position which relates to two previous issues in regard to the rights of the judges whose offices were terminated due to the fact they had not been elected to permanent office as judges: those individuals have the right to file a complaint with the Constitutional Court, as was established by Article 148, Paragraph 2, of the Constitution, and the decision about the termination of their judge’s office must contain specific reasons why that individual was not elected.

The Constitutional Court informed the High Judicial Council on this legal position, presented the submitted complaints, and ordered it to act in accordance with this position within a deadline of 15 days after the reception of this decision, which is to reply to the claims from the complaint. The High Judicial Council did not comply with the given deadline, neither in regard to this complainant, nor the others, and did not comply with the decision of the Constitutional Court to deliver individual explanations to the complainants as to why their judges’ offices were terminated and why they had not been elected to a permanent judge’s office.

3. The High Judicial Council on May 19, 2010, after the given deadline, submitted a brief to the Constitutional Court in which it suggests that the Court reject the complaint as groundless, and to confirm the challenged Decision, supplemented with individual reasons for termination of the judge’s office. The issuer of the challenged Decision claimed that the acts of the complainant, in the capacity of an investigating judge in four cases of the Municipal Court in Pristina, two cases being from 2002 and two from 2007, showed reasons to doubt his expertise and skills, in accordance with Article 14 of the High Judicial Council’s Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts. The issuer of the challenged Decision also emphasized that “the claims from the complaint that the procedure was grossly violated, substantive law wrongly implemented, and constitutional rights and the rights guaranteed by European convention violated, are groundless, taking into account that the High Judicial Council implemented the process of the general election of judges in accordance with the Constitution and relevant laws, including European convention”.

The content of the submitted brief implies that it was not the answer by the issuer of the challenged Decision on the many claims in the complaint, but a supplement to the argumentation of the challenged Decision in regard to reasons for the termination of the complainant’s office as a judge.

As the giver of the challenged decision did not comply within the given deadline with the order by the Constitutional Court to submit to the complainant an individual decision on termination of his judge’s office with specific reasons why he was not elected to the permanent judge’s office, nor did it reply to the Constitutional Court in regard to concrete claims from the complaint, the Court continued its proceeding in regard to the complaint, according to Article 34, Paragraph 3, of the Law on Constitutional Court.

4. During the implementation of the proceedings, the Constitutional Court established the following facts and circumstances that are of significance for making decisions in this constitutional court case:

The complainant was elected to office as a judge in 1985, according to the regulations at the time, and at the time of publication of the High Judicial Council’s vacancy for election of judges in the general and special courts in the Republic of Serbia, in the “Official Gazette RS”, No. 52 from July 15, 2009, he was performing his duty as a judge at the Municipal Court in Pristina, situated in Niš.

The challenged decision No. 06-00-37/2009-01 was issued by the High Judicial Council on December 25, 2009. The decision was made by reference to the clauses of Article 101 of the Law on Judges (“Official Gazette RS”, No. 116/08 and 58/09) and Article 13, Paragraph 2, of the Law on the High Judicial Council (“Official Gazette RS”, No. 116/08). It was determined according to Paragraph 1 of the challenged Decision that the office of the judges not elected according to the Law on Judges (“Official Gazette RS”, No. 116/08) terminates on December 31, 2009, and within points 1 through 837 were listed names and surnames of the judges and titles of the courts where they performed their duty. Paragraph 2 of the Decision stated that the named judges had the right to compensation of the salary, which was to be determined by the acting president of the court where they were entitled to that right.

The challenged Decision contains a part named “Argumentation”, where it was states: that the High Judicial Council implemented a process of general election of judges in the Republic of Serbia after the Constitutional Court published a decree IUz-43/09 on July 9, 2009 in which it refused the initiative to start a proceeding for determining non-constitutionality and non-compliance with ratified international contracts of the clauses of Article 99, Paragraph 1, Article 100, and Article 101, Paragraph 1, of the Law on Judges (“Official Gazette RS”, No. 116/08); that, until the vacancy for election of judges, 3194 judges performed that office in the Republic of Serbia, of which 770 were magistrates; that the High Judicial Council issued a Decision on the number of judges in the courts (“Official Gazette RS”, No. 43/09, and 91/09), on basis of which it advertised elections for 2483 judges at the general and special courts in the Republic of Serbia; that 5030 applications were submitted for those positions, of which 2373 were submitted by judges; that the Law on Judges stipulates conditions for the election of a judge, among which are expertise, skill and worthiness, while criteria and standards for evaluation of fulfillment of those conditions the High Judicial Council determined in the Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts; that the High Judicial Council determined the skillfulness and capacity of the judges that performed the duty at the time of elections on the basis of reports on their performance during the past three years, with data on the number of cancelled, changed and confirmed decisions according to legal remedies, percentage of fulfillment of the performance standard, time needed to make court decisions, expiring of statute of limitations of criminal proceedings, and through direct monitoring of cases, if there were substantial reasons to doubt the efficient and skillful performance of a judge; that the High Judicial Council determined the worthiness of judges on the basis of information about the behavior of judges, obtained from reports from relevant prosecutorial offices on judges against which criminal proceedings were initiated, or on basis of information obtained from the Supervisory Board and High Personnel Council of the Supreme Court of Serbia, and the substantiality of the complaints on the work of judges by clients themselves was also evaluated, which was addressed to the presidents of courts, the president of the Supreme Court of Serbia, Ministry of Justice, Judiciary and Administration Board of the National Assembly, and the High Judicial Council; that the other sources of information on which it was determined if a judge fulfilled the conditions for election were the personal sheet of a judge and data from his/her personal and professional biography; that among the judges whose office was terminated were also the judges who applied for election into the courts of higher level only, and for which the High Judicial Council determined that they do not fulfill the conditions from the Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for election to that court, and that a number of judges applied only to one court, for which the High Judicial Council, in regard to established criteria and number of vacancies, and taking into account concrete results by a judge, decided that they do not fulfill conditions for election into that court, so the High Judicial Council couldn’t elect them, without their application, to some other court of the same level; that the High Judicial Council, on basis of the stipulations from the Law on Judges, application of criteria and standards from the Decision, chose 1531 judges to permanent office, for which it determined that they fulfill all the stipulated conditions. It was stated in the argumentation of the Decision that the judges from Paragraph 1 of the Decision did not fulfill conditions for election to the court they applied for, stipulated in Article 45 of the Law on Judges and Articles 1, 13 and 14 of the Decision on Criteria and Standards, so therefore the Decision was issued on termination of their office by December 31, 2009.

5. The Constitutional Court found that the following clauses from the Constitution and the law are of importance for the evaluation of validity of the complaint against the decision of the High Judicial Council:

The provision of Article 36, Paragraph 2, of the Constitution of the Republic of Serbia guarantees each individual’s right to file a complaint, or to use other legal means against a decision made to decide on his rights, obligations or interests based on law.

The provision of Article 148, Paragraph 1, determines that a judge’s office is terminated on his own request, by implementation of conditions prescribed by law, or by dismissal for reasons stipulated by law, as well as if he/she was not elected to permanent office, while the provision of Paragraph 2 of the same Article stipulates that the decision on termination of judge’s office is to be made by the High Judicial Council, and that a judge has the right to appeal against this decision to the Constitutional Court, and that this appeal excludes the right to submit the constitutional appeal.

The provisions of Article 67 of the Law on Judges (“Official Gazette RS”, No. 116/08 and 58/09) state: that a judge has the right to appeal to the Constitutional Court against the decision of the High Judicial Council on the termination of his/her office with a deadline of 30 days from the reception of the decision (Paragraph 1); that the Constitutional Court can, by its decision, refuse the appeal, or confirm the appeal and abolish the decision on termination of duty (Paragraph 2); that the decision of the Constitutional Court is definite. In accordance with Article 107, Paragraph 1, of the Law, the listed provisions of Article 67 of the Law are implemented as of January 1, 2010, while the provisions of Articles 43 through 54 of this Law, which define the conditions for election of judges, election procedures, procedures for giving the oath by an elected judge and the text of the oath, began being implemented from the day when this law came in power.

According to the provisions of Article 99, Paragraph 1, of the Law on Constitutional Court, the public prosecutor and deputy public prosecutor may lodge an appeal with the Constitutional Court against a decision on the termination of a judge’s office within 30 days from the reception of the decision.

Taking into account the listed provisions from the Constitution and the law, the Constitutional Court determined that the provisions of Article 148, Paragraph 2 of the Constitution guarantee the right to appeal against the decision of the High Judicial Council on termination of a judge’s office even in the case when a judge was not elected to permanent office, and not only in the case when other conditions and reasons stipulated by law come in power. As, in this concrete example, the procedure for election of judges was implemented, and the challenged Decision brought, by application of provisions from the Law on Judges from 2008, the Constitutional Court assessed that the judges whose office was terminated because they were not elected in that process, could not be devoided of their right to appeal against the challenged Decision, as Article 67 of that same Law stipulates, because it would mean excluding the procedure of instance control of the challenged Decision, which makes a coherent whole with the first-instance proceedings.

Also, the Court especially had in mind that the right to appeal is guaranteed by the Constitution to each entity (legal or individual), against a decision that decides on his/her rights, obligations or interests based on law, as well as that the appeal was submitted on February 22, 2010 (after the Law on Judges came into power in its entirety).

Therefore, at the session held on March 25, 2010, the Constitutional Court determined the legal position that the judges from Article 99, Paragraph 1 of the Law on Judges, which were not elected to permanent office during the process of election of judges, implemented on the basis of the provisions from Article 100 of that Law, have right to appeal to the Constitutional Court, according to the stipulations of Article 148 of the Constitution, and according to the provisions of Article 67 of the Law on Judges.

6. The Constitutional Court assessed that in order to evaluate the validity of the claims in the submitted appeal, of importance are the provisions of the Constitution, Law on Judges, Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts (“Official Gazette RS”, No. 49/09), Law on High Judicial Council (“Official Gazette RS”, No. 116/08) and Rules of Procedure of the High Judicial Council (“Official Gazette RS”, No. 43/09).

The provisions of Article 32, Paragraph 1 of the Constitution guarantee the right to everybody that an independent, impartial and lawfully established court fairly and in a reasonable length of time publicly discuss and decide on his/her rights and obligations, soundness of doubts that were the reason to start the proceedings, and the accusations against him/her.

It was stipulated by the Law on Judges: that a judge could be elected if he/she is a citizen of the Republic of Serbia who fulfills the general conditions for work in state bodies, who graduated law, passed the bar exam, and who is professional, skilled and worthy of the office of a judge (Article 43); that professionalism implies theoretical and practical knowledge necessary to perform the duty of a judge, that skills imply abilities that allow for efficient application of specific legal knowledge in order to resolve court cases, and that the worthiness implies moral qualities that a judge must possess, and behavior in accordance with those qualities. Moral qualities that a judge should possess are honesty, conscientiousness, fairness, dignity, persistence and exemplarity, and behavior in accordance with those qualities implies maintaining the reputation of a judge and a court in office and outside of it, awareness of the social responsibility, maintaining the independence and impartiality, reliability and dignity in the office and outside of it, and taking responsibility for internal organization and positive image of judiciary in the public, as well as that the criteria and standards for evaluation of professionalism, skillfulness and worthiness are being prescribed by the High Judicial Council, in accordance with the law (Article 45, Paragraph 2 through 6).

The provisions of Article 13 of the Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts, which was issued by the High Judicial Council on the basis of Article 45 of the Law on Judges, stipulate: it is assumed that a judge who was elected according to old regulations, and who performs the duty at the time of elections, and applied to be elected in the court of the same kind, that is the same level, fulfills the criteria and standards from this decision (Paragraph 1); this assumption can be abated if there are reasons to doubt that the candidate fulfills the criteria and standards from this decision, because he/she did not demonstrate that he/she has the skills, abilities and dignity for performance of the function of a judge (Paragraph 2); it is considered that a candidate did not demonstrate satisfactory level of expertise if in the past three years he had a number of cancelled decisions high above the average of the court in which he performs his duty (Paragraph 3); it is considered that a candidate didn’t demonstrate satisfactory level of skill if in past three years he did not complete a number of cases defined by the Standards for evaluation of minimal success in performance of duty as a judge, which will be temporarily applied until the day when the provisions of Articles 21 through 28 of the Law on Regulation of Courts (“Official Gazette RS”, No. 80/05) come in power, or if expiration of the statute of limitations of a criminal proceeding could be attributed to the obvious mistake on the part of the candidate (Paragraph 4); it is considered that the candidate didn’t fulfill the criteria and standards from this decision if the High Personnel Council determined the reasons for termination of his duty (Paragraph 5); the High Judicial Council will assess in each individual case if a candidate, upon whom a disciplinary measure was imposed by the High Personnel Council, fulfills the criteria and standards from this decision (Paragraph 6). The provisions of Article 14 of the Decision stipulate in what way, and depending on what, reasons are formed to doubt the skillfulness and ability of a candidate, while the provisions of Article 15 regulate the issue of the source of information and the ways to obtain information and an opinion on all candidates.

Article 17, Paragraph 2 of the Law on High Judicial Council regulates that the decisions of the Council must always be explained, when a legal remedy against them is allowed, and when it is provided by the law and the Rules of Procedure.

Article 32, Paragraph 1 of the Rules of Procedure of the High Judicial Council prescribes that the decisions of the Council, against which are allowed legal remedies, must be explained.

According to the Constitutional Court, it results from the listed provisions of the Constitution, laws and regulations of the High Judicial Council:
- that any individual elected as a judge in the Republic of Serbia must, besides general conditions for election, fulfill three special conditions: expertise, skillfulness and worthiness to exercise the function of a judge;
- that the fulfillment of those conditions is determined by the High Judicial Council during the process of election of judges to permanent office, as well as during the process of nomination of individuals who are elected as a judge for the first time;
- that the implemented process of general election of judges in the Republic of Serbia, advertised on July 15, 2009, had certain specific characteristics in comparison to the usual procedure of election to the permanent office of a judge, and those specific characteristics were that the general elections included all the judges that already performed their duty according to old regulations at the time when the vacancy was advertised. It was assumed that they fulfilled the criteria and standards for election, but this assumption could be abated if there were reasons to doubt that a candidate fulfilled conditions for election, by not demonstrating that he/she was expert, skilled, and worthy of the function of a judge, and the High Judicial Council had to ascertain that during the implementation of the election procedure;
- that during the procedure of election, the right to a fair trial, guaranteed by the Constitution, had to be provided, which includes the right for non-elected judges to receive the explanation of the decision on termination of their duty.

The Constitutional Court further assessed that the legal obligation, in relation to the explained decision on termination of duty, is not geared toward the formal existence of the explanation as an integral part of the document brought by the High Judicial Council, but toward naming the concrete facts and circumstances that were decisive for non-election of a certain individual to permanent function of a judge, as a legal basis for termination of his duty as a judge. This because the challenged Decision on termination of duty as a judge, because of non-election to permanent office on part of the High Judicial Council, is not a document of declarative nature, but a constituent document which prior to being made must be preceded by a procedure to determine which condition, or which of the prescribed conditions for election to permanent office, the judge does not fulfill and for what determined reasons.

By naming concrete, individualized reasons for which a judge was not elected to permanent office, and because of which his office as a judge was terminated, the issuer of the challenged Decision provides arguments on the basis of which it could be concluded that its decision was not the result of contrariness or arbitrariness, and at the same time it provides to the individual, about whom a decision was made, a possibility to effectively use legal means available to him/her, in order to challenge the soundness of the decision itself.

Taking this into account, the Constitutional Court, at the session on March 25, 2010, decided on the legal position that the office of the judges - who were not elected to permanent duty by decision of the High Judicial Council in regard to election of judges to permanent offices at the general and special courts (“Official Gazette RS”, No. 106/09), and what had as its consequence the termination of their duty as judges – will terminate on the day when the newly elected judges take over the duty (Article 101, Paragraph 1, of the Law on Judges), on the basis of the individualized, explained decision of the High Judicial Council, which must contain individualized reasons why particular individuals were not elected, and which are based on conditions for election of judges prescribed by the provisions of Article 45 of the Law on Judges, and more closely related Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts.

7. In regard to this, the Constitutional Court evaluated that the challenged Decision which relates to termination of office of all non-elected judges, with such a general explanation has procedural flaws that disable the Constitutional Court to assess its legality in relation to the complainant, in the sense of substantive law, and also disables the complainant from efficiently using his right to appeal. Therefore the Constitutional Court could validly only resolve the submitted appeal, but not evaluate the legality of the challenged Decision. Although the challenged Decision formally contains a part named “Argumentation”, according to the Constitutional Court it could not be regarded as an explained Decision, in the sense of Article 17, Paragraph 2 of the Law on High Judicial Council, because it does not contain concrete and individualized reasons on the basis of which it was determined what conditions for election to permanent office of a judge the complainant does not fulfill, and therefore his office as a judge was terminated. Therefore, the challenged Decision does not give to complainant a satisfactory level of concreteness, necessary to challenge it by an appeal, what violates the constitutional right of the complainant to approach the court as one of the procedural guarantees of the right to fair trial, and at the same time it does not allow the Constitutional Court to investigate it in its essence and discuss its soundness during the proceeding according to the appeal.

Such a position of the Constitutional Court is also based on the practice of the European Court for Human Rights regarding the application of Article 6, Paragraph 1 of European Convention for the Protection of Human Rights and Fundamental Freedoms (violation of right on fair trial). In many of its decisions the European court emphasized that the lack of explanation could cause difficulties in approaching the court, if it prevents efficient usage of the appeals procedure because of insufficient details in regards to the basis on which the first-instance decision was made (i.e. the verdict in the case of Salov versus Ukraine, where it was determined that the lack of explanation of the decision hindered the petitioner in challenging certain issues during the appeals procedure, as well as the verdict in the case of Hadjianastassiou versus Greece, when the submitter of remonstrance was given only a short version before submitting an appeal – a resume of the verdict of the Military Court of Appeals).

The Constitutional Court emphasizes that each single document of state bodies, which decides on somebody’s rights, obligations or legally based interests, must be explained in the process of making it, what ensures elementary fairness of the implemented procedure, which is guaranteed by Article 32, Paragraph 1 of the Constitution. The decision on the election of judges to permanent office, and the decision on termination of the office of judges who were not elected to permanent office, are in direct factual and legal relation. Not being elected as a judge, in this concrete case, had as its consequence for the complainant not only the termination of his office as a judge in the Municipal Court in Pristina, but also the termination of his employment and loss of his rights in that regard. Therefore, the complainant had to be provided, during the procedure of election, with all the procedural guarantees stipulated by the right to fair trial, among other things, and in regard to termination of his office as a judge he had to be given an individualized, explained decision by the High Judicial Council that contains individualized reasons why he was not elected, based on the conditions for election of judges stipulated by the provisions of Article 45 of the Law on Judges, and more closely related Decision on Criteria and Standards for Evaluation of Expertise, Ability and Dignity for Election of Judges and Presidents of Courts, as well as on information and opinions gathered in accordance with this decision.

In regard to this, the challenged Decision by the High Judicial Council, according to the Constitutional Court, was not explained in a way stipulated by the law, which violates the rights of the complainant which are guaranteed by the Constitution. The High Judicial Council did not act within the deadline, or after it, in accordance with the legal position of the Constitutional Court from March 25, 2010 according to which it had to bring an individualized decision on the termination of the judge’s office of the complainant. The Constitutional Court believes that submission of the brief that supplemented the argumentation of the challenged document, in regard to reasons why the complainant was not elected to permanent office as a judge, which is not an integral part of the document, cannot remove the flaws of the challenged Decision, because the explanation must be contained within the challenged document itself, which enables the evaluation of regularity of the specified matter of facts and application of relevant material regulations. As the appeal in this concrete case was submitted against the decision of the High Judicial Council, in regard to termination of the office of non-elected judges, the subject of evaluation, at the proceeding according to the complaint, could be only the challenged Decision and its content, so the lack of the specified facts and reasons for the non-election of the complainant, in the argumentation of the challenged Decision, represents a big and insurmountable defect that disables the Constitutional Court to approach its analysis in a competent way. The Constitutional Court emphasizes that in the process of making decisions in two instances, the right to fair trial must be provided in both instances, and that the kind and nature of violation of this right, which the complainant suffered during the first-instance proceeding, do not allow the Constitutional Court to remove that violation during the appeals procedure, nor to approach the essential instance control of the content of the challenged Decision.

8. During the proceedings, the Constitutional Court also took into account the claims from the complaint about the composition of the High Judicial Council, which made decisions during the process of election. The complainant claims: that the High Judicial Council was constituted on April 6, 2009, and was incomplete – without three members: a lawyer, a law faculty professor, and a judge; that the body of which existence is stipulated by the Constitution could be of an incomplete composition only if such an option is stipulated by law in unequivocal and explicit terms; that the Constitutional law for implementation of the Constitution, and the Law on High Judicial Council, do not contain clauses that would allow for constitution of the High Judicial Council as incomplete.

For assessment of these claims by the complainant, of importance are the following provisions of the Constitution, Constitutional law for implementation of the Constitution of the Republic of Serbia (“Official Gazette RS”, No. 98/06), and the Law on High Judicial Council:

The provisions of Article 153 of the Constitution stipulate: that the High Judicial Council is an independent and autonomous body that ensures and guarantees independence and autonomy of courts and judges (Paragraph 1); that the High Judicial Council consists of 11 members (Paragraph 2); that the High Judicial Council consists of the president of the Supreme Court of Cassation, Minister of Justice, and the president of the relevant board within the National Assembly, as members ex officio, and eight elected members, elected by the National Assembly and in accordance with the law (Paragraph 3); that the elected members consist of six judges with permanent office, of which one has to be from a territory of autonomous provinces, and two respected and eminent jurists with at least 15 years of professional experience, of which one is a lawyer and the other one a professor from the law faculty. According to Article 154 of the Constitution, it is within the jurisdiction of the High Judicial Council, among other things, to appoint and dismiss judges.

By the provisions of Article 6 of the Constitutional law on implementation of the Constitution of the Republic of Serbia, it was determined that the National Assembly will appoint the elected members of the High Judicial Council within 90 days from the day when the law from Article 5, Paragraph 2 of this law comes into power, and the members which are judges should be elected, for the first constitution of the High Judicial Council, among the judges who were already performing their office at the time of elections (Paragraph 3). Also, the constituent session of the High Judicial Council should be held within seven days from the day of election of its elected members (Paragraph 5).

The provision of Article 17, Paragraph 1 of the Law on High Judicial Council, stipulates that the decisions of the Council are made by a majority vote of all members. By the provision of Article 50, Paragraph 1 of the Law, there is a deadline of 90 days from the day when this law came in power, for the National Assembly to appoint the elected members of the first composition of the Council, while the provisions of Articles 52 and 53 of this Law stipulate the deadlines and procedure of nomination of elected members of the first composition of the Council, which are judges, a lawyer and a professor of a law faculty. According to the provision of Article 54, Paragraph 1 of this Law, the constituent session of the Council has to be held within seven days from the day of election of its elected members.

The High Judicial Council was established by the current Constitution as a new body with the responsibility, in accordance with the law, to appoint judges for the permanent performance of their function. The provisions of Article 6, Paragraph 5 of the Constitutional law, and Article 54, Paragraph 1 of the Law on High Judicial Council, do not explicitly stipulate that the High Judicial Council must be constituted after the election of all of its elected members. Taking into account that the first composition of the High Judicial Council was made after the election of five out of eight of its elected members, and three members ex officio, it allowed the Council to perform all of the duties from its jurisdiction, stipulated by the Constitution and the law. Therefore the Constitutional Court assessed that the incomplete composition of the Council does not bring into question the legality of its work and decision making. Such a legal position, regarding the conditions for constitution of the National Assembly, the Constitutional Court expressed in Decision IU-61/2001 from February 12, 2004. Also, during the decision making process about the submitted complaint, the Court had in mind that the High Judicial Council had 10 members at the time when the challenged Decision was made (seven elected members), out of 11 members stipulated by the Constitution.

The Constitutional Court believes that legitimacy of work of a state body like the High Judicial Council is ensured, among other things, by its full composition. But, different circumstances can affect that individual members of the state body are not elected within deadlines stipulated by the Constitutional law and the law, which occurred during the election of the elected members of the first composition of the High Judicial Council.

9. The Constitutional Court additionally pointed to the fact that the positions of the Court, presented in decree IUz-43/09 from July 9, 2009, regarding the rejection of an initiative to start proceedings to decide on the unconstitutionality and incompatibility with the ratified international contracts of the provisions from Article 99, Paragraph 1, Article 100 and Article 101, Paragraph 1 of the Law on Judges (“Official Gazette RS”, No. 116/08), did not influence a different decision of the Constitutional Court on the submitted complaint because the decision on compatibility of legal stipulations with the Constitution and the ratified international contracts in itself does not mean that the stipulations that were the object of evaluation were properly implemented, and the Constitutional Court is competent to decide in proceedings on the complaints from the judges because of termination of their office.

10. Taking all this into account, the Constitutional Court, according to Article 101 of the Law on Constitutional Court, and in relation to Article 103 of this law, adopted the submitted complaint, and abolished the challenged Decision in that part which relates to the complainant, and ordered the High Judicial Council to reconsider, within 30 days after the reception of this decision by the Constitutional Court, the application for election as a judge at the Court of Appeals in Niš, and the Higher Court in Niš, which was submitted by the complainant.

Because of the reasons for adoption of the complaint, the Constitutional Court did not indulge into evaluation of the substantiality of the other claims from the appeal, which the High Judicial Council will take into consideration during the implementation of the new procedure, in order to remove possible procedural violations that preceded the making of the challenged document. The High Judicial Council is obliged to implement the new proceeding in accordance with the Constitution and the law, on which are based the legal positions of the Constitutional Court from March 25, 2010. The High Judicial Council is authorized to, during the renewed process of decision making about the application by the complainant, under the conditions and in a way stipulated by law and regulations brought according to the law, decide on his election or non-election to permanent function as a judge in the courts to which he applied. If it determines that the applicant does not fulfill the prescribed conditions for the election, the High Judicial Council will bring a decision on termination of his office as a judge, in which it will state which of the prescribed conditions the applicant did not fulfill, and will give concrete reasons and evidence on which it based such a decision.

The Constitutional Court dismissed the request by the complainant to postpone the execution of the challenged Decision, as well as to postpone the election of judges which is underway, according to the provisions of Article 56, Paragraph 3 and in relation to Article 86 of the Law on Constitutional Court, because it made a final decision by which it adopted the appeal by the complainant, abolished the challenged Decision in that part which relates to the complainant, and ordered to reconsider the complainant’s application for election as a judge in a permanent office.

The Court decided, according to Article 49, Paragraph 2 of the Law on Constitutional Court, and because of its importance for protection of constitutionality and legality, that is human rights and civil freedoms, to publish this decision in “The Official Gazette of the Republic of Serbia”.

11. On basis of everything that was presented, and the provisions of Article 45, point 12) and Article 46, point 3) of the Law on Constitutional Court, the decision is issued as described in pronouncement.


VIIIU No. 102/2010
President of the Constitutional Court,
Bosa Nenadić, Ph.D.