STATEMENT

Public statements22.07.2010.

The new practice in the procedure of the High Judicial Council has been noticed starting from middle June 2010. The High Judicial Council started to deliver new, individual decisions on the termination of the judicial function of non-elected judges, which "replaced" the so-called circular decision from December 25, 2009, which was exactly same for all 837 non-elected judges. As it is known to the Judges’ Association, more than 30 decisions of that kind were distributed.

For several cases, the High Judicial Council delivered them directly. For the other cases, delivery was organized by the Constitutional Court, with note for those who appealed on the decision of December 25, 2010 to declare weather they would stay to the statements of the appeals or, otherwise, it would be considered withdrawn. If the appellant continues the appeal, the Constitutional Court orders to specify reasons for denying the High Judicial Councils changed decision and to enclose the proves relevant for deciding.

It is said in the statement of the Constitutional Court from June 29, 2010:
 

“First 11 individual decisions of the High Judicial Council on the termination of the judges’ tenure of office, in which individual reasons for non-appointed judges are stated, arrived to the Constitutional Court. Decisions of the exact content were delivered to the non-appointed judges too.
 

From the above it follows that the High Judicial Council began to act according to the stands of the Constitutional Court (adopted on March 25, 2010), apropos Court’s stands expressed in the decision of the Constitutional Court from May 28, 2010 that adopts appeal of non-appointed judge Zoran Saveljic.
In accordance with that, the conditions are created for the Constitutional Court to continue the procedure on appeals of non-appointed judges to which individual decisions were delivered.
 

The Constitutional Court expects High Judicial Council to promptly deliver individual decisions to all other non-elected judges, and that the same would also be done by the State Prosecutorial Council in terms of non-appointed public prosecutors’ deputies.”
 

It is obvious, therefore, that the Constitutional Court will not consider the new-delivered decisions as independent, new decisions eligible for appeal, but it will, while deciding on appeals against decision of December 25, 2009, take into consideration the statements from the new decisions.
 

In accordance with the conclusions from the Third Extraordinary Assembly of December 26, 2009, that, among other things, legal assistance will be provided to all judges who were not elected in order to achieve effective protection of their rights regarding reappointment, Judges’ Association of Serbia discussed the new situation and concluded the following:

1. Decisions that, starting from mid-June 2010, replace the circular decision of December 25, 2010 on the termination of judicial function for all 837 non-elected judges, are separate decisions on the termination of the judicial function.

2. Appealing to the Constitutional Court against the new decisions too, is recommended.

3. If the new decision is delivered by the Constitutional Court with referred letter for explanation, it is recommended that:

• To submit the appeal within the period of time determined by the Constitutional Court, although it is shorter than the time limit for appeal
• At the end of appeal against the new decision it should be noted that it is legally unacceptable that the new-delivered decision is not considered new, but, for prudential reasons, the Constitutional Court should consider states from the appeal as reasons to challenge the changed decision, which should be considered as the appellant acted on the orders of the Constitutional Court.
   

4. Conditions were met for the non-reappointed judges and prosecutors to turn to the European court for protection of human rights in Strasbourg, even before the completion of proceedings in front of the Constitutional Court.

In addition to a number of previous circumstances that pointed to the conclusion that the Constitutional Court could not be an instance that will provide effective legal protection, such a conclusion is supported by several recent events:

• Although priority has officially been given to the ruling of the appeals of non-reappointed judges and prosecutors, and the deadline for the ruling expired latest at the end of May 2010, the Constitutional Court has resolved only one of more than 1,500 appeals.
• In April and July 2010, the Constitutional Court was completed with judges whose private life and career emerge fear that they will not be able to decide on appeals independently, impartially, professionally and within reasonable time, with respect to all aspects of the right to a fair trial under Article 6 of the European Convention.
• With the announcement that it will decide on appeals against decisions of December 25, 2009, having in mind the states from decisions adopted half a year later, the Constitutional Court has expressed, in unambiguous way, an intention to violate a number of legal principles, which constitute the foundations of the rule of law.

More detailed information on each of these findings will be published soon.