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Incomplete information from Minister of Justice

18. 03. 19

In her interview of 11 March of this year, the Minister of Justice presented a series of false and incomplete information. Let us start one by one. The fact that the Working Group that consisted of judges, public prosecutors and constitutional law professors drafted the Legal Analysis of the Constitutional Framework on the Judiciary in 2014 does not mean that the Analysis was the starting point of the hitherto process of amending the Constitution in terms of content. This Analysis, the whole of the judiciary is concordant with, was hidden from the public by the Ministry of Justice, while the Working Version of the Draft Amendments is diametrically opposed to it. Comments of the Supreme Court of Cassation, the High Judicial Council, the Judges’ Association, as well as public statements of the members of the Working Group, Dragomir Milojević, constitutional law professors Irena Pejić and Darko Simović and my own testify about this.

Contrary to the Minister’s statement that in no country in the region there is a body whose membership consists of mostly judges which directly selects judges, in fact, judges represent the majority in councils’ membership in the countries with judicial councils and they directly select judges, for example in Italy, Spain, Romania, Bosnia and Herzegovina, while their memberships is exclusively consisted of judges in Lithuania, Bulgaria, Greece and Cyprus.

It is an incomplete and false claim that the National Assembly now appoints nine members of the High Judicial Council and that, according to the Working Version, only five will be appointed by the Assembly from the ranks of prominent jurists, which is allegedly to serve as a proof of decreased influence of the legislative. At the moment, all 11 members of the HJC are being appointed by the Assembly, and the majority of 7 members are judges. The proposed solutions decrease the number of HJC members from 11 to 10, the number of judges to 5, while the Assembly will select 5 members. Unlike the actual solution, the president of HJC will not be a judge and will have a decisive vote in situations of equal number of votes. By this, HJC will be allowed to reach decisions with not a single judge’s vote. Since the „political“ members of HJC will always be able to outvote the judges, the political influence on HJC will not be diminished, but increased. It is not true that a Member of Parliament will not be able to be a member of HJC. The proposed solution does not prescribe a single criterion, other than a candidate to be a jurist, therefore a member of HJC can become a Member of Parliament, active politician or a Minister. Standards require that an HJC member is appointed based on their professionalism, experience, understanding of the judiciary, ability to reach decisions, understanding of independence and to not be an active politician.

Asked what she thought of appearances of her assistant Backović, minding the fact that he vilified judges and public prosecutors in TV performances, the Minister explained that the critic did not mean vilification by falsely claiming that judges and public prosecutors had left the round table in Novi Sad due to an expressed remark. Her understanding for insistent incitement of mistrust in the judiciary (judges take away children and expel people from their homes), for undermining the idea of judicial independence, for public threats to judges that they will be harmed with pleasure is worrisome since the abolition of the rule of law in Serbia is being directly advocated for in this manner. A group of attendees left the event in order to prevent physical attack on a judge and in order to protest the absence of a reaction by the moderator – Assistant Minister to threats and aggressive confrontation of a participant in the debate towards the judge.

The claim that the majority of acting judges were appointed during the time of a single-party political system is absolutely false. Judges were reappointed in 1992 after the introduction of a multi-party system, therefore not a single acting judge in Serbia has been appointed in a single-party system for 26 years. Reaching for such an argument appears to announce for a new reappointment.

It is false that the Judicial Academy will not, by selection of candidates for initial training, in fact select judges in the future and take over the role of HJC. The amendments provide that in certain courts only a person who had completed special training in a judicial training institution can be appointed as a judge. It is clear that the selection of attendees by a judicial training institution, which is at the moment exclusively the Judicial Academy, represents a selection of judges in advance, since HJC will only be able to select from amongst them. Regardless of the name of such an institution, it will essentially be under politicians’ control.

The discourse regarding training as a constitutional category leads to a conclusion that there does not exist a mandatory training in Serbia, which is not true. Only a jurist which practices law in a court, public prosecution office, Bar etc. can be appointed judge or public prosecutor in Serbia, after having passed the bar exam and subsequently practiced for at least two or three years more. The need for training is undisputed and therefore the Judges’ Association of Serbia, alongside the Government, established the Judicial Centre, forerunner of the Academy, in 2001. At this moment, there are two types of training for future judges and prosecutors: mentorship, through practice, as is the case in Austria and Germany, and in Academy, which has existed only since 2010. The mere fact that for increasing the rank of the Academy to the constitutional level is only fought by its representatives, those who completed the training and the Ministry of Justice, itself justifies the stance of the academia and profession that the Academy today is a path of the political influence to the judiciary.

The complete and the most important information is that all of our most prominent professors of the constitutional law and theory of law and state are against the proposed amendments, there is not a single one of them who supported the amendments, and so are the Supreme Court of Cassation, High Judicial Council, State Prosecutorial Council, courts of appeal in Belgrade and Kragujevac and all courts that held sessions regarding amendments, the Judges’ Association of Serbia, Prosecutors’ Association of Serbia and over 20 associations that engage in human rights and the judiciary. All of them call for withdrawal of the amendments. That should be known.

Dragana Boljević
Published in the daily Politika, section Views (Pogledi)