Tamara Spaić

JUDICIARy REFORM OR hOW TO MAkE ThE SERBIAN JUDICIARy WORThy?

Tamara Spaić, Journalist and Editor for the Blic daily newspapers since 2004, specialized in issues on internal affairs and EU accession. Previously she worked as a Journalist and Editor for Dnevni telegraf, Nedeljni telegraf, Reporter, Glas Javnosti dailies, as well as on certain project of the European Union Delegation to

Tamara Spaić

Anesthetizing bad news independence of the judiciary and protect judges from pressure, still has members, for the judiciary in Serbia is full of shocking cases whom the most relevant domestic and of clear interference of politicians in the work international institutions assessed that they of courts and prosecutors, to that extent that acted unconstitutionally and illegally, sitting one has the impression that the whole society within, as dictated by the authorities. it is is anesthetized with bad news. they collate on shocking that only recently it was the first time a daily basis and serve only as confirmation for that a judge, no less than a judge of the Special the general impression that nothing is right, that court, complained of pressure from another we are in a vicious circle and enchanted by the judge, because he judged according to the law, firm grip of powerful people who do not allow but contrary to what the most powerful changes. politicians in the country would like. in such a situation it is clear that only a powerful external factor can help Serbia to start Minister of Justice re-elected despite establishing itself as a state of law, in which negative assessments every individual can have hope in achieving justice. the opening of negotiations with the it is also shocking that a young officer, during european union in chapters 23 and 24 could be whose term in office these and many other the initial beginning of emerging from the shocking cases took place, was re-elected; a vicious circle of bad, shocking news. however, man who, as a minister, took part in a street again, it all depends on us and our political will protest against a court (even if this court to change the justice system, and following the deserved public protest); who will also remain election of the new Serbian government, there remembered for taking a bottle of water from a are not many reasons to believe in this. student and throwing it into the bin out of the blue, only because it was not patriotic, but of it is shocking that the Supreme Judicial court, croatian origin. it is also shocking to have him whose legitimate role is to defend the re-elected to the same position of power, 24 The New century No 07 -May2014 immediately after all independent, regulatory to an image of the judiciary as weak to various and professional bodies in Serbia, including forms of pressure. cases such as the former european experts, presented analysis on how customs director mihalj kertes, two bishops of during his tenure the state of the judiciary the Serbian orthodox church (pachomius and deteriorated. hilarion), the entire family of the former president milošević, or the businessman “the judiciary was better before the reform”, predrag ranković peconi, confirm the feeling the association of Judges concludes. “the among the public that there are first and second Serbian judiciary is not independent on any order citizens. because, if you are in power, or criterion of the european court of human close to those who are, you can, without fear of rights in Strasbourg”, the council for the fight reprisal, violate the law. otherwise, you are not against corruption warned. the ombudsman, protected from their tyranny. in his annual report, diplomatically assessed that the “backbone of independence and autonomy of judges and prosecutors are Pressures and threats to the Court professional associations”, in other words, it is not the ministry, nor is it the high Judicial it is worrying that in all of these and other council. needless to say, or to specifically controversial cases known to the general public, remind, these professional associations have no the high Judicial council, an independent body power, and their inability is evident even in the that is constitutionally mandated to provide and smallest of examples, such as, for example, the guarantee independence and autonomy of fact that the president of the association of judges and courts, was restrained and failed to Judges herself was not elected to a judicial take any action. in return, public warnings, position. threats and orders were coming from the executive branch to the judiciary on what it is to in 2009, a unanimous opinion on the necessity do. of reform ruled. Subsequent events led to now having the year of 2009 as unattainable in many for years, court presidents are only acting fields, as assessed by the president of the presidents of the court. the top of the judicial association of Judges, dragana boljević. authority therefore violates the law by tolerating such a situation in short term. comparing 2013 with 2008 (excluding preventing courts from appointing presidents in misdemeanor cases), it is evident that in 2013 full responsibility and mandate, is verified in a there was nearly four million active cases, and way that holds the judiciary in a subordinate that nearly two and a half million of these position, facilitating the manipulation of courts remain unresolved, out of which nearly two by political powers and tycoons. million are executive ones. in contrast, in 2008, there were slightly less, 2, 400 000 cases, the depth of the general anesthetizement with leaving less than 800, 000 unresolved in the bad news is also demonstrated by the example end, out of which less than 400,000 executive of discovering the most direct interference of ones. the executive branch of the authorities into the appointment of judges. if there were any doubts the obsolescence of court proceedings has that politicians from the ruling parties, during become over the last year one of the most the reform of the judicial system in 2009, made visible methods used for having privileged lists of suitable and unsuitable judges and people, close to the government, exempt from prosecutors in which the main criterion was punishment and accountability. examples of their membership of these parties, and not their well-known personalities against whom a trial expertise, diligence and dignity, then after the or execution of the punishment was halted due publication (on the association of Judges to obsolescence create and additional sense of website) of a written document from vlasotince dependence of the court on political and other to prove it, there could no longer be any doubt. centers of power in the public, and contribute accountability lacked. Why? because drafting of

The New century No 07 -May 2014 25 lists of suitable judges and prosecutors could in during which the regime criminalized the entire this way remain as a model for the future as society, and placed criminals into a privileged well. position and made them into a caste that is not accountable to anyone and is not subject to the bad practice from 2009 was followed by laws. the line between war and the new another, new, widely used practice by the democratic society that was supposed to executive branch, for violating the presumption emerge after 2000 was not made. this made of innocence. it became common for possible that even 14 years after democratic government officials to comment on trials, changes, the prominent representatives of the announcing arrests and detention without a regime that led the country into sanctions and previous court decision. in such cases (the war are left unpunished, and parts of the example of the businessman miroslav mišković criminal underworld are placed as in an is only the best-known, but not the only one) it untouchable caste above the law and the became almost common to extend the courts. the lack of lustration is probably most detention of suspects for above the legal limit, responsible for the practice of having the judges so the constitutional court had to react who broke the law (for example, by repeatedly over the past period, ending illegal participating in election fraud in 1996-97), or detention. procrastinated adjudication, left unpunished, also shocking is the discussion of the ministry and even having them promoted. Judges who of Justice assistant in the past period who, at a made decisions contrary to the will of the meeting of the Working group for drafting the political top were in detention or had their Strategy of Judicial reform, stated that what is promotion prevented (the case of a judge and happening in Serbia is a “pernicious trend of member of the high Judicial council, blagoje judicial independence" and that a balance Jakšić who spent five and a half months in needs to be struck between the judicial and custody on charges of abuse of office, and who executive powers because otherwise “a group made decisions in the high Judicial council on of 2,000 irresponsible people (referring to the the non-elected judges who were not to the judges) will become outlaws”. any comment on likes of the authorities at the time). this political attitude towards the judicial only from this analysis (which does not even authorities is redundant and points to the touch upon the problem of confusing reputation and integrity of the judiciary first of amendments to the law, lack of bylaws, case law all, from which in two waves (in the mid- inequality, great distrust of citizens in the nineties and during the 2009-2010 reforms) the judiciary which tops the negative list of all state most experiences and best judges left. institutions, the poor financial position of the judicial staff, unconstitutionality of the law on In the shadows of un-lustrated Judges…) it is clear that Serbia is far from security services becoming a state of law. What is also disturbing is that with the election of the new government a very important factor in which judiciary there is no political will to change this in sight. reform in line with european standards is announced is the fact that Serbia missed lustration and reform of the security services, whose unconstitutional and illegal services were used by the previous government extensively, during the re-election of judges and prosecutors, and by this government, for the collection of forensic evidence (for example, the secret searches of flats of which the ombudsman warned in his annual report). and this is a country that has gone through wars

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