JAS communication

Public statements28.09.2011.

The satisfactory review of the judicial and prosecutorial reappointments is one of the main tasks on Serbia’s EU accession agenda. Despite announcements that most cases would be resolved by end September, the High Judicial Council (HJC) completed only 20% (175) of the cases since 15 June 2011, when the review began. Over 600 other cases are still pending.

Of the 249 cases it has reviewed, the HJC failed to render decisions on 30% (74) of them.
Of the 175 completed cases, the HJC resolved 12 of them by taking 12 procedural decisions – either due to the unfortunate death of the non-reappointed judges or because the judges not reappointed in December 2009 were reappointed in July 2010 and withdrew their legal remedies.

And, finally, of the 163 cases in which the HJC rendered decisions on the merits, it upheld the complaints of 55 (34%) judges

Although the HJC has been rendering its decisions collectively, the percentages of upheld “complaints” differ by commission and by judge-rapporteur. The percentage of complaints upheld by the 1st Commission, chaired by judge Mira Ivic [the judge-rapporteur with the fewest upheld complaints (18%)], stands at 27.7%. On the other hand, the percentage of upheld complaints by the 2nd Commission, chaired by judge Milimir Lukic, [the judge rapporteur with 59% upheld complaints] stands at 37.7%. The recently detained judge Jaksic had the highest percentage of upheld complaints – 60%.

Comparison of the first HJC session, when 119 cases were reviewed -- nearly as many as during the ensuing four sessions altogether-- and when 36 “complaints” by the non-reappointed judges (45%) were upheld, i.e. 50% more than at the other four sessions altogether, evidences a decline in the number of cases reviewed by the HJC and in the percentage of upheld “complaints” and a constantly high percentage of cases on which the HJC did not render decisions – 30% at all sessions. The latter means that the judges- rapporteurs had in these cases suggested that the “complaints” be upheld.

The Justice Minister had indicated this trend in her interview to the Belgrade daily Blic on 12 August 2011: “Does the reinstatement of some non-reappointed judges indicate that the judicial reappointment process was not good?
- No! First of all, one cannot draw a conclusion on the entire procedure based on the first decisions. Half a percent of all the judges, who had filed their complaints, have been reinstated so far. Therefore, no mistakes were made in 99.5% of the cases during the general reappointment procedure. That is the situation now, but let us not go into percentages...”
http://www.blic.rs/Vesti/Politika/271102/Snezana-Malovic-Nece-biti-zasticeni-sadasnji-i-bivsi-funkcioneri

Each of the upheld “complaints” testifies that the HJC had dismissed the judge who had complained without cause. The number of cases of judges dismissed without cause has so far reached at least 87! Thirty-two of the judges not reappointed (dismissed) during the 2009 reappointment procedure were appointed judge after the additional vacancies were advertised in 2010. The complaints of another 55 have so far been upheld during the review procedure. And only 20% of the cases have been reviewed to date!

This number does not factor in the judges who had not been reappointed in 2009 but had in the meantime been appointed to the offices of City Attorney General of one of the largest cities in Serbia, Deputy State Attorney General, Director of the Anti-Monopoly Agency and Assistant Justice Minister.

A cover-up of the groundless dismissals is the reason why the review procedure is being slowed down and why the HJC has failed to render decisions on 30% of the cases it has reviewed. And now the whole review procedure has been brought into question by the detention of judge Jaksic.

The European Union was promised that only HJC members who had not taken part in the reappointment procedure - i.e. the six judges newly appointed to the HJC in March 2011 - would be rendering decisions in the review procedure. The representative of the law colleges in the HJC could also have taken part in the review procedure in theory, but, back on 9 March 2011, the Anti-Corruption Agency rendered a legally binding decision that he was in conflict of interests (because he did not opt for one of the two offices he had been appointed to) and proposed to the National Assembly to dismiss him.

Given that the HJC takes decisions by a majority of votes (under Article 17 of the Law on the HJC) and there are 11 HJC members, a decision needs to be upheld by six votes.
This is why the Judges’ Association of Serbia calls on the High Judicial Council to state without delay how it plans to continue the reappointment review procedure, one of the few outstanding albeit greatest European tasks before us.

What will happen to the over 660 pending cases?

Reappointment review issues do not affect only the judges, both the non-reappointed and (re)appointed ones. They affect all citizens of Serbia who expect fair trials and the successful suppression of corruption, which can be conducted only by unintimidated judges. Because the citizens are entitled to know why Serbia slid from 106th place in 2009 to 128th place in 2011 among the 142 countries ranked by the independence of their judiciaries. All the countries in the region outrank us. Albania ranks 101st.

The reappointment review affects the citizens of Serbia because that assessment was made by economists, entrepreneurs, investors, who could help reduce poverty in Serbia. Who do not dare invest in Serbia and open new jobs because of the state its national judiciary is in.