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Respecting the profession is the path to a better Constitution

19. 02. 25

The Venice Commission, as an advisory body of the Council of Europe, presented its opinion on the latest version of constitutional amendments of the Ministry of Justice by taking note of the so-called memorandum of its Secretariat. It was noted therein that the text follows the recommendations formulated in the opinion of the Venice Commission of 25 June 2018. Such report is particularly unusual, not only because it was provided within an incredible one-week timeframe, and without an expert – rapporteur, but also because the Secretariat is a body in charge of administrative rather than expert tasks of the Venice Commission. The assessment as to whether more than 40 recommendations contained in over 20 pages of the Opinion of June 2018 were followed is an expert issue par excellence, whereas certain substantial recommendations from the Opinion have not even been considered, let alone adopted. For instance, the Venice Commission clearly stated its position that it is necessary to delete or at least additionally reinforce the provision stipulating that the term of office of all members of the High Judicial Council shall cease if the Council fails to pass a decision within sixty days, however this provision has not been deleted. With regard to constitutional amendments, the European Union has been inadmissibly silent and passive and it has decided for the time being to settle with the position of the Venice Commission.

 

Nevertheless, at the end of December 2018 another advisory body of the Council of Europe – Consultative Council of European Judges – also presented its opinion on the matter. This is not an international judges’ association protecting the interests of its members, but also an advisory body of the Council of Europe composed of one top-rank judge from each of the 47 member states of the Council of Europe. Given the diversity of the member state systems and the conditions required for the rule of law, this body formulates the opinions (European standards) on judiciary that can be applied in every member state. Opinions of the Consultative Council are subsequently taken into account by the Venice Commission when estimating the compliance of legal acts of certain state with the European standards.

Unlike the Venice Commission, the Consultative Council not only has a different opinion on the latest version of the constitutional amendments, but it also outlines a number of remarks which substantially render that version unacceptable from the aspect of European standards, including the following: the provision on the election of the non-judicial members of the High Judicial Council (HJC) by National Assembly i.e. by the five-member commission does not safeguard the independence of those members of the HJC and provides the possibility that they are elected according to the preference and undue influence of any dominant political party or parties; the HJC should not have an even number of members; the provision under which a judge shall… take into account case law is problematic and it should not be included in the Constitution; the manner in which the grounds for dismissal of judges are formulated violates the principle of judicial permanency and is potentially very dangerous for judicial independence; enabling political influence over the initial appointment of judges by prescribing the completion of training at the Judicial Academy as a condition for the selection of judges for the first time; provisions regulating the non-transferability of judges, as one of the guarantees for their independence, are insufficiently defined – by omission of guarantee that temporary relocation of judges to another court may only be done with the judge’s consent and that the judge shall otherwise be entitled to legal remedy; the aim of the HJC should be not only to guarantee but also to ensure the independence of courts and judges.

Given the stated critique, the Consultative Council suggested that provisions regulating the five-member commission should be deleted; that non-judicial members of the HJC should be elected by the Bar Association and law faculties, and equally from both government and opposition benches in the Assembly, whereas active politicians should be excluded from becoming members of the HJC; that the decisions of the Supreme Court should ensure uniform application of the law by the courts through the case law; that the grounds for dismissal, including incompetence, should be further regulated by clearly elaborated laws that also set out the specific misconduct that may result in a dismissal, and the procedure to be followed in cases of possible dismissal, whereas only the essential elements of this procedure should be included in the Constitution; that competences of the HJC should also include budgetary competences for the functioning of the judicial system and competences for the selection and recruitment of judicial assistants, and should not be defined as numerus clausus; that the HJC should have an odd number of members, the majority of which should be judges; that the provision on the dissolution of the HJC in the event that it does not render a decision should be deleted. It is obvious therefore that the stated proposals are yet to be significantly improved.

At the end of November 2018, the informal process was finally introduced into the legislative procedure by the Government’s proposal to the National Assembly to institute the amendment of the Constitution. Providing that it decides to initiate the amendment of the Constitution, the Assembly would be able to easily eliminate the shortcomings of the preceding process. This might be done if its competent committee established a working group, which would finally include several most prominent professors of the constitutional law, for drafting the proposal act on constitutional amendment, followed by public hearings and a real (not simulated) and wide-ranging public consultation process, if it subsequently requested the joint opinion of the Venice Commission and the Consultative Council of European Judges and finally adopted the proposal for the act on constitutional amendment that would be submitted to the National Assembly for adoption.

The Constitution is the supreme and most important legal act of a state and it is not to be frequently amended. The main problems in judiciary are primarily caused by the decades-long overwhelming influence of the executive power (political influence on the selection of judges and prosecutors and on their work, inadequate and non-harmonised laws, insufficient human and working resources, inadequate permanent training). Therefore, the continuation of such influence with the excuse that independence of judiciary is unreachable, unnecessary and dangerous would have a devastating effect on judiciary and on the right of citizens to be tried by independent and unbiased courts. Constitutional amendment should be a result of as comprehensive “social agreement” as possible, which can be achieved through democratic, extremely wide-ranged, indeed open and systemic public consultations, conducted in good faith. Considering that Serbia is strategically oriented towards European integration, it needs to take into account the overall EU legislation and apply it in the manner that best suits its tradition and capacities, so as to ensure the highest level of independence and objectivity of the judiciary. Positions of the Venice Commission recommend that an “evolving democracy”, which Serbia definitely is (unlike the stable, established democracies), needs to adopt standards that exceed the minimum ones in order to ensure real judicial independence. Judiciary is the ultimate protection of citizens against the wilfulness of the ruling power and unlawful acts of individuals, companies and state authorities.

It is encouraging that the Opinion of the Consultative Council of European Judges is entirely in concordance with the opinion of the profession in Serbia. This means that the politicians need to ensure and the citizens need to request that the profession should have decisive vote when it comes to complex issues such as the status of judiciary. Only that. But nothing less than that.

Dragana Boljević,

president of the Judges' Association of Serbia

The text was originally published on the website of the European Movement in Serbia, and was written as a part of the project "Changing the Constitution on the Way to the European Union: Advocating the Amendments to the Constitution".