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Judicial Independence and Impartiality in Serbia: between Law and Culture

By on December 17, 2012

On July 11, 2012, with sentence n. VIII-U-534/2011, the Serbian
Constitutional Court overturned the decisions of the High Judicial Council dismissing
a group of judges because they did not satisfy the requirements for being
elected to judicial office with permanent tenure. As a consequence, the Court ordered
the Council to re-elect the judges within 60 days.
This decision put an end to a complex procedure, which involved the
Parliament, the High Judicial Council and the Constitutional Court, concerning
the so-called judges’ “re-appointment”, put in place following the judicial
reforms adopted in Serbia since 2006. The case is particularly interesting
because it demonstrates how difficult is the implementation of reforms
introducing in a country, by legal instruments, principles that have been
almost ignored in the past, such as, in the case at stake, judicial
independence and impartiality. By the point of view of the European observers,
this case is even more interesting, considering that those reforms have been
adopted in order to comply with the rules and standards imposed by the European
Union in the context of the Eastern enlargement. Therefore, it represents a
test for the evaluation of the effectiveness of European conditionality in the
field of judiciary reforms.
Before analyzing the ruling, I will provide an introduction on the
judiciary reforms adopted in Serbia in the last years, focusing on the new
procedure for the appointment of judges. My aim is to show both how European
conditionality influences the processes of legal transitions even with
reference to the basic principles of the judicial systems and the limits and
the weaknesses of this system. In fact, as this case shows, the adoption of
reforms introducing completely new rules without a parallel process of
transformation of culture risks to be useless or, even worse, to produce
adverse effects.


Serbia became a candidate
country to the European Union on March 1st, 2012 and the European
Commission started to monitor its progresses in 2005, concerning, inter alia, “judicial capacity”[1]. In Serbia, the importance of judicial reforms as a
condition to join the European Union has been clearly declared in the key
principles of the 2006 National Judicial Reform Strategy, stating that, through
the implementation of the principles of independence, transparency,
accountability and efficiency of the judicial system, the EU association
process will be facilitated.

On the basis of these
principles, a number of new rules have been introduced in the 2006 Constitution
and the legislation. In fact, the Constitution and the laws adopted on the
basis of the 2006 National Judicial Reform Strategy declare the principles of
independence, transparency and liability of judges, in line with all the
European and international standards. In particular, all the documents state
the principle of independence of Courts[2] and judges[3]. The principles of immunity of judges[4] and financial independence[5] are considered as preconditions to judicial
independence. The principle of transparency is enshrined in the Constitution[6] and the Law on Organization of Courts[7]; finally, accountability is guaranteed by the
principle of liability of judges[8] and efficiency is the aim of all the laws.
Judicial independence is one
of the main standards of judicial capacity[9] and its implementation has been a major concern in
Serbia, considering that, during the previous regimes, it was completely
rejected: with the aim to strengthen this principle, in the reforms, a new
self-governing body, the High Judicial Council (HJC)[10], has been introduced[11].The introduction of this institution, holding
constitutional status, has been considered positively by the European
Commission[12]. Nevertheless, the simple introduction of a
self-governing body is not enough in order to guarantee the effective
independence of the judiciary, or might even produce adverse effects, as it is
demonstrated by the controversial case of the procedure for judges’ appointment.

In the context of the wide
reform of the judiciary system in Serbia, a new procedure for judges’
appointment was introduced. In fact, according to art. 147 of the 2006
Constitution and 46 of the Law on Judges, the judges should be elected by the
National Assembly, on the proposal of the High Judicial Council. Art. 45 of the
Law of Judges then specifies that «the High Judicial Council, when nominating a
judge, takes into consideration only his/her professional ability and
worthiness. Every nomination for election shall be reasoned».
Already during the process
of adoption of the Constitution and the law, this procedure has been considered
with concern by the Venice Commission, that stated that «the involvement of
Parliament in judicial appointments risks leading to a politicisation of the
appointments». On the contrary,«the main role in judicial appointments should
be given to an objective body such as the High Judicial Council» and «proposals
from this body may be rejected only exceptionally»[13]. Nevertheless, the Serbian Constitution was adopted
and the mechanism for judges’ appointment was not modified: in its opinion on
the final text, the Venice Commission confirmed the view expressed before,
underlining the risk of politicisation of the process of judges’ appointment[14].
The major concern of the new
procedure for judges’ appointment was the fact that the rules had to be applied
not only to new judges, but also to judges already in office. In fact, a
general judges’ election was planned, including all of them. The judges already
in office able to pass the selection, would have been be “re-appointed”, while
the other simply dismissed.
The risk of violation of the
most basic principles of judicial independence, at least indirectly, by
breaching the rule of irremovability of judges was evident, as the Judges’
Association of Serbia openly denounced it. Therefore, the Association required
the Consultative Council of European Judges to deliver an opinion on the
mechanism for judges’ re-appointment, since this procedure – which, according
to the Serbian judges, was not based either on the Constitution or on the law –
seemed to be oriented by political rather than legal objectives[15].The CCJE responded with a declaration, issued on
November 24, 2008[16], in which it stated, quoting the Venice Commission
Opinion on the Draft Law on Judges and the Organisation of Courts in the
Republic of Serbia,  that «the need for a
re-appointment process with respect to all judges (…) was not at all obvious»
and that «the principle of irremovability of judges and tenure until a
mandatory retirement age or the expiry of a fixed term of office is a
fundamental tenet of judicial independence».
Notwithstanding the
criticisms on the risks of politicisation of the procedure and the possible
violation of the principle of the independence of judges, on July 15, 2009 the
procedure for judges’ appointment was opened, on the basis of the rules
provided in the reform[17]. A total of 5030 applications were submitted, while
only 2483 positions were available; as a consequence, a huge number of  judges were dismissed. The procedure was
conducted in a very obscure way, as it was not public, criteria and standards
for evaluation were not clear, non re-appointed judges weren’t clearly informed
about the reasons of their dismissal and didn’t have the possibility to raise
any objections to the decision.
The judges’ dismissal – that
caused a serious judicial crisis in Serbia – has also been hardly criticized by
the European Commission, which in the 2009 and 2010 Progress Reports on Serbia
observed, in particular, that the criteria for the re-appointment of judges
were not fully in line with the Venice Commission’s recommendations, as they
left space to political influence over the procedure. Considering these
concerns, the Commission carried out an assessment mission, whose findings
confirmed that this procedure «showed important shortcomings regarding the
composition and independence of the High Judicial Council (…) the application
of objective criteria and the transparency and reliability of the overall
process»[18]. Later, the Commission specified that the Serbian
authorities had to review the procedure and that this process would be
monitored in the progress reports as well as in a possible opinion on the application
of Serbia to the European Union[19].
It is easy to observe that
the body that had been introduced in order to protect and implement the
principle of judiciary independence in Serbia was one of the first responsibles
for its indirect violation, by disregarding judges irremovability, without
adequate guarantees. It is even more worrying that the acts by which these
principles were violated had also been adopted on the basis of a procedure that
was particularly questionable with reference to the respect of other basic
rules of the judicial process, such as the right to a fair trial and judicial
impartiality. All these concerns have been at the basis of several appeals that
the dismissed judges submitted to the Constitutional Court.
The Court adopted the first
ruling on the process of judges re-appointment on March 25th, 2010.
In this case, it stated that the 2009 appointment procedure had not been
conducted according to the general customary procedure and the right to a fair
trial had been violated. This opinion was confirmed by the rulings of May 28,
2010 and December 21, 2010, where the Constitutional Court allowed the appeals
of judges Zoran Savelijć and Milena Tasić, affirming, in both cases, that the
right to a fair hearing was infringed.
In all cases, the
Constitutional Court allowed the appeals and ordered the HJC to rule again on
the applications of the candidates for appointment as judges. On the basis of
these rulings, therefore, the review procedure was put in place, according to
the rules of the Amendments to the Law on Judges[20] and the Decision
on the criteria and standards for the evaluation of qualification, competence
and worthiness and of procedure for the review of decisions on the termination
of judgeship
[21]. In particular, according to art. 5 of the Amendments
to the Law on Judges, the decisions on dismissal had to be reviewed by the HJC
not in its full composition, but only by the members ex officio. Nevertheless, the implementation of the review
procedure did not solve the problem, as it resulted in the confirmation of most
of the decisions on judges’ dismissal, with a procedure that did not respect,
again, the right to fair trial, but also the principle of judicial
impartiality.
On these grounds, a huge
number of judges submitted new appeals to the Constitutional Court which,
finally, adopted the decision n.
VIII-U-534/2011 of July 11, 2012.

With the July 2012 ruling,
the Constitutional Court annulled the HJC decisions, considering that not only,
as in the previous cases, the principle of fair trial had been infringed, but
also the principle of judicial impartiality, due to the composition of the
Council at the time of the adoption of the decisions on review. In fact, according
to the Court, both principles must govern the activities of the High Judicial
Council, because the Council, when deciding directly on questions concerning
the status and position of judges, has the character of a “tribunal” and is
obliged to respect all the rules concerning the judiciary.
With particular reference to
the impartiality of judges, the Court found that, in the specific case, the
principle was infringed, since the decisions on the objections raised by the
dismissed judges were adopted by the same members of the HJC who participated
in the decision on the election. This was considered unconstitutional by the
Court, which, quoting as a precedent the European Court of Human Rights
case-law, stated that «impartiality has been challenged when the same member
who decided in the procedure in the first instance decides on the legal
remedy». In particular, according to the Court «the presumption of
qualification, competence and worthiness in the review procedure may be
regarded as overturned only on condition that at least six members of the
permanent composition of the High Judicial Council from among judges with
permanent tenure who had not been members of the first composition of the High
Judicial Council had voted in favour of overturning the objection».
For these reasons, the Court
allowed the appeal and ordered the HJC to elect the appellants to serve as
judges.
This decision might finally put an end to
the sad story of judges’ dismissal in Serbia. However, it only applies to those
judges who submitted an appeal and, even though it states a general principle,
it has not general effects; in fact, in order to become effective towards all
Serbian judges, it should be provided with pivotal character by the
Constitutional Court[22]. Nevertheless, even in this case, this seems to be
only a partial remedy. As the CCEJ pointed out, in fact, legislation is the
only possible full remedy[23].

The case described here
seems to be a failure of European conditionality in the field of judicial
reforms, since the most important principles that have been formally introduced
– judicial independence and impartiality – have been
substantially violated by the same body in charge with their protection. On the
contrary, judicial independence and impartiality require, before
the introduction of legal principles, the creation of a culture[24]. Moreover, these principles can work properly only in
an environment where all the other fundamental principles of the constitutional
state are respected[25]. When judicial reforms, introduced by legislation,
are not supported by cultural – and constitutional – ownership, the risk of a
gap between de jure and de facto judicial independence and
impartiality is very high[26].
In conclusion, this case demonstrates that
the evolution of a State, according to new principles and values, cannot be
considered as a pure legislative and fast process. This does not mean that
legislative reforms – supported by European conditionality – in “new
democracies” are useless. They are indeed fundamental, even if they have to be
considered only as the very first step. After them, cultural education and
dissemination of values, on one side, and laws’ implementation, evaluation,
discussion, and adjustment in the domestic culture, on the other, are needed.
To this aim, the efforts of all national institutions – such as Parliaments,
Courts and self-governing bodies – as well as political actors are essential,
in an on-going “dialogue” with supranational legal and political institutions.

 


[1]
On judicial capacity as a
standard to join the European Union, see Open Society Institute, Monitoring the EU Accession Process:
Judicial Capacity
, 2002.

[2]Art.
142-2 Const.; art. 1 and 3 Law on Organization of Courts, in Official Gazette of the Republic of Serbia, n. 116/08, 27th
December 2008.

[3] Art.
149 Const.; Art. 1 Law on Judges, in Official
Gazette of the Republic of Serbia
, n. 63/01, 42/02, 17/03, 27/03, 29/04,
35/04, 44/04, 61/05, 101/05.

[4]Art.
151 Const.; Art. 5 Law on Judges.

[5] Art.
4 Law on Judges.

[6]Art.
142-3 Const.

[7] Art.
7 Law on Courts.

[8]Art.
6 Law on Judges.

[9] On
judicial independence as a European standard, see: Open
Society Institute,  Monitoring the EU Accession Process:
Judicial  Independence
, 2001; Seibert-Fohr,
A., Judicial Independence in European
Union Accessions: The Emergence of a European Basic Principle
, German Yearbook of International Law,
52/2009-2010, 405-436.

[10] Art.
153 Const.

[11] A
High Judicial Council was not provided in the Yugoslav Constitutions, the 1990
Serbian Constitution, nor in the Constitutional Charter of the Union of Serbia
and Montenegro. On the introduction of the High Judicial Council and the
implementation of the principle of judicial independence, see Lilić, S., Independence of the Judiciary and the High
Judicial Council in Serbia
, in Diritto
pubblico comparato ed europeo
, 4/2010, 1676-1685.

[12] See,
for example, the 2007 Progress Report on Serbia.

[13]
Venice Commission, Opinion on the
Provisions on the Judiciary in the Draft Constitution of the Republic of Serbia
,
24 October 2005, CDL-AD(2005)023.

[14]
Venice Commission, Opinion on the
Constitution of Serbia
, CDL-AD(2007)004, 17-18 March 2007.

[15]
Letter of December 24, 2007, sent by Dragana Boljević, President of the Judges’
Association of Serbia, to Raffaele Sabato, Chair of the CCJE, available at
http://www.coe.int/t/dghl/cooperation/ccje/cooperation/LetterCCJE_serbie.pdf.

[16]
Available at
http://www.coe.int/t/dghl/cooperation/ccje/cooperation/LetterCCJE_serbie.pdf.

[17]In
fact, an advertisement for the appointment of judges was published on the
Official Gazette of the Republic of Serbia n. 52/09 of 15th July
2009.

[18]
Letter of April 27, 2010, sent by J. M. Barroso, President of the European
Commission, to Dragana Boljevic, President of the Judges’ Association of
Serbia, Vito Monetti, President of Magistrats
Européens pour la démocratie et les libertés
and Goran Ilic, President of
the Prosecutor Association of Serbia, available at
http://www.coe.int/t/dghl/cooperation/ccje/cooperation/LetterCCJE_serbie.pdf.

[19]
Answer given by Mr Füle on behalf of the Commission, June 1, 2010, available at
http://www.coe.int/t/dghl/cooperation/ccje/cooperation/LetterCCJE_serbie.pdf.

[20]Official Gazzette of the Republic of Serbia n.
101/2010.

[21]
Adopted by the High Judicial Council and published in the Official Gazette of the Republic of Serbia n. 35-90/2011.

[22]
Judges’ Association of Serbia, Statement
with regard to the Constitutional Court Decision from July 11, 2012.

[23]
Declaration of the Consultative Council of European Judges on the Review of the
Decisions of the High Council of the Judiciary on the Election of Judges in
Serbia, June 18, 2012.

[24]Shetreet,
S., Creating a Culture of Judicial
Independence: the Practical Challenge and the Conceptual and Constitutional
Infrastructure
, in Shetreet, S., Forsyth, C., The Culture of Judicial Independence. Conceptual Foudations and Practical Challenges, Leiden-Boston,
Marthinus Nijoff Publishers, 2012, 17-67.

[25]
According to Das, C., The Threats to
Judicial Independence. Experiences from the Commonwealth
, in Shetreet, S.,
Forsyth, C., The Culture of Judicial
Independence
, supra at 24,
139-152, as the experiences of the failure of legal transplants in the
Commonwealth show, «a culture of judicial independence has to go hand in hand
with a culture of constitutionalism».

[26]On
the distinction between de jure and de facto judicial independence, see
Guarnieri, C., Piana, D., Judicial
Independence and the Rule of Law
, supra
at 24, in particular 113-114. According to the authors, «de jure indicators
refer only to legal rules concerning the status of judges and their competences
and powers, while de facto indicators try to catch the empirical dimension of
judicial independence and deal with both the status of judges and their powers
in practice».

1 Comment
  1. Reply

    Aina

    January 4, 2013

    I agree with you in a way.Quite possibly many of these cnaghes should have been ammendments. They won’t be ammendments now, because as they are already expected and imagined to be part of the constitution there is no need to ammend things.We supposedly ammend the constitution when something we think we need is ruled unconstitutional. What is the solution for something we think we need (and hence should really ammend for) is, possibly erroneously, ruled constitutional.That has been probably going on for a while. It is a simpler and quicker process, but can make bad precident (leaving aside all the things of this nature that I disagree with.)I can’t imagine any one bothering to put together and pass an ammendment for something that already de-facto exists. Perhaps a better plan would be to ammend, with clearer meaning, the troubling parts of the constitution. An ammendment to the commerce clause that clarifies what the federal level should be (and perhaps removes some percieved existing powers) has actual utility. That is of course a legislative initiative, not a judicial one.

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