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Judicial Reform in Serbia 2008–2012

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Judicial Reform in Serbia 2008–2012 VESNA RAKIĆ- VODINELIĆ ANA KNEŽEVI Ć BOJOVIĆ MARIO RELJANOVIĆ JUDICIAL REFORM IN SERBIA 2008–2012 CENTAR ZA UNAPREĐIVANJE PRAVNIH STUDIJA prof. dr Vesna Rakić Vodinelić • dr Ana Knežević Bojović dr Mario Reljanović JUDICIAL REFORM IN SERBIA 2008–2012 Library Editor Prof. dr Jovica Trkulja Published by Center For Advanced Legal Studies Goce Delceva 36, 11 000 Beograd tel: 2608 360, fax:2608 346 e-mail: [email protected], www.cups.rs For The Publisher prof. dr dr.h.c. Vladimir Vodinelic Reviewed by prof. dr Momčilo Grubač prof. dr Mihajlo Dika prof. dr Zoran Ivošević Translated by Ana Knežević Bojović Language Editing Svetlana Imperl Prepress and printing „Dosije studio“, Beograd Circulation 500 copies ISBN 978-86-7546-076-3 dr VESNA RAKIĆ VODINELIĆ dr ANA KNEŽEVIĆ BOJOVIĆ dr MARIO RELJANOVIĆ JUDICIAL REFORM IN SERBIA 2008–2012 Belgrade 2012 TABLE OF CONTENTS Preface. 9 Abbreviations. 11 Vesna Rakić-Vodinelić PART ONE I: REFORMING THE JUDICIARY – THE 2008–2010 PERIOD . 13 1. Introductory Observations . 13 1.1. Is There a Formula of „Good Judiciary“? . 13 1.2. Elements of the „Good Judiciary“ Formula. 17 1.3. Judicial Councils . 18 1.4. Legal Reception of European Standards Concerning the Judiciary in Serbia . 22 2. Normative Grounds . 35 2.1. International Legal, Theoretic, Constitutional and Statutory Grounds of the Latest Judicial Reform . 35 2.2. The Constitution and the ConStitutional act for the Implementation Of the Constitution . 39 2.3. Judicial Organisation Statutes . 44 2.4. Decision on Establishing the Criteria and Norms for Assessing the Competence, Capacity and Worthiness for the Appointment of Judges and Court Presidents . 73 2.5. Constitutional and Legislative Procedure Before the High Judicial Council. 75 3. Implementation of the Reform . 78 3.1. How was the Judicial Reform in Serbia Carried Out. 78 5 Judicial Reform in Serbia 2008–2012 3.2. Positions of the European Commission. 94 3.3. Judicial Network and the Number of Judges. 96 3.4. Composition and Manner of Work of the First HJC Composition During The Course Of The Judicial Appointment and Reappointment . 97 3.5. Application of Procedural Principles . 101 4. Change of Normative Basis: Act Amending the Judges’ Act 105 4.1. Subsequent Attempts at „Eliminating the Deficiencies“ . 105 4.2. The Review in Practice. 113 4.3. Cause and Origin. 114 Ana Knežević Bojović Mario Reljanović II: REVIEW PROCEDURE 2011–2012. 117 1. Introductory Observations . 118 2. Interviews/Hearings with the Petitioners – The Work of the Spc “Working Bodies” And HJC Commissions 119 . 121 2.1 Procedure Before the State Prosecutors Council “Working Bodies” . 121 2.2 Procedure Before the High Judicial Council Working Bodies. 138 3. Transparency and Independence in Work and Decision-Making of the “Working Bodies” and the Commissions, and SPC and HJC Sessions . 150 3.1 The Work of the SPC “Working Bodies” and the SPC General Session. 152 3.2 The Work of HJC Commissions and HJC Full Session . 158 4. Analysis of the Content of the Decisions . 180 4.1. General Observations Regarding the Decisions . 180 6 Table of Contents 4.2. State Prosecutors’ Council Decisions . 185 4.3. Decisions of the High Judicial Council . 193 4.4. Conclusion . 199 5. Organisations Which Monitored the Procedure and their Actions. 201 5.1. Monitoring the Hearings Before the State Prosecutors Council and the State Prosecutors Council Sessions. 202 5.2. Monitoring of Hearings Before the High Judicial Council and of HJC Sessions. 206 5.3. Activities of Professional Organisations Unrelated to the Hearings. 212 5.4. European Commission Assessment of the Judicial Reform in Serbia . 214 5.5. Conclusion . 217 6. Decisions of the Constitutional Court of Serbia Of July 2012 . 218 7. How to End the Judicial Reform in Serbia? . 226 7 PREFACE On the pages that follow the authors confront the legal com- munity in Serbia with the recent legal history of failed attempts at improving Serbian judiciary, at restoring citizens’ trust in it, at set- ting a sound base for the law ruling over politics – at least in the most important elements in the judicial domain; the authors also present the results of such failed reform and investigate the legal and political causes of this failure. The monograph is divided into two parts – the first part en- titled „Reforming the judiciary 2008–2010“ was written by Vesna Rakic-Vodinelic, whilst the second one, entitled „The 2011–2012 Review Process“ was written by Ana Knezevic Bojovic and Mario Reljanovic. The division is both chronological and logical – the au- thors wanted to analyse the constitutional and legislative framework of the judicial reform in Serbia systematically and comprehensively, as well as practice of the bodies that carried out this reform, and offer a final assessment on the success of this endeavour, which was formally ended in July 2012, but the final outcome of which remains unknown. Consequently, the first part of the publication examines, at its very beginning, the legal theories behind what is considered good judiciary in a democratic state, and underlines the political inde- pendence of judges as a key element of this formula. The author then critically examines the legal reception of European standards concerning the judiciary in Serbia. A special part is then dedicated to the international, theoretic, constitutional and legislative basis of the judicial reform of 2008. The author scrutinizes the Serbian Con- stitution of 2006 and the Constitutional Act for the Implementa- tion of the Constitution, and also the judicial organisation statutes, which were the normative grounds for the most invasive interven- tions in the judiciary in the democratic history of Serbia. The deci- 9 Judicial Reform in Serbia 2008–2012 sions of the Serbian Constitutional Court and the corresponding separate opinions are analysed in detail. The author then describes the manner of work of the bodies which carried out the reform, paying special attention to the composition and modus operandi of the first composition of the High Judicial Council and deficien- cies observed with regards to both these issues. She then analyses the normative framework for reviewing the decisions adopted by the first composition of the High Judicial Council and the State Prosecutors’ Council, as an introduction into the second part of the publication. The second part is a detailed critical analysis of the process for reviewing the decisions on non-appointment of judges, public pros- ecutors and deputy public prosecutors. The authors first describe, in detail, the work of the bodies conducting the procedures, ana- lysing in particular the extent to which relevant procedural princi- ples have been observed. They go on to analyse transparency of the work of the two bodies and assess whether they were truly inde- pendent bodies the actions of which were directed towards amend- ing the mistakes made in the judicial reform. A part of the publi- cation is dedicated to the analysis of the decisions adopted by the new compositions of the State Prosecutors’ Council and the High Judicial Council. The authors then reflect on the role of various or- ganisations which monitored the procedure and their influence on the course of the review process. At the very end, the authors ana- lyse the decisions adopted by the Constitutional Court in July 2012, whereby the procedure was de facto restored to the stage prior to the 2009 appointment. In their conclusion, the authors are sharp but justified in their criticism of the attempts at reforming Serbian judiciary in accord- ance with European standards, and also give some general recom- mendations that should be followed in order to achieve the goal any democratic state should strive for – to have a truly independent and highly professional judiciary. In Belgrade, September 2012 Authors 10 ABBREVIATIONS Courts and other state bodies SPC – State Prosecutors’ Council ECrHR – European Court of Human Rights PPO – public prosecutors’ office RPP – Republican Public Prosecutor CCS – Constitutional Court of Serbia SCC – Supreme Court of Cassation HJC – High Judicial Council Regulations and official journals ECHR – European Convention for the Protection of Human Rights and Fundamental Freedoms (SM Official Gazette, M–5/20) CC – Criminal Code of the Republic of Serbia, (RS OG 67/2003) RS OG – Official Gazette of the Republic of Serbia FRY OG – Official Gazette of the Federal Republic of Yugoslavia SM OG – Official Gazette of Serbia and Montenegro SFRY OG – Official Gazette of the Socialist Federative Republic of Yugoslavia CRP – Court Rules of Procedure (RS OG No. 70/2011) BPA – Barristers’ Profession Act (RS OG 31/2011) SPCA – State Prosecutors’ Council Act (RS OG No. 116/2008, 101/2010 and 88/2011) 11 Judicial Reform in Serbia 2008–2012 PPOA – Public Prosecutors’ Office Act (RS OG No. 116/2008, 104/2009, 101/2010, 78/2011 – other statute and 101/2011 CPC/2001 – Criminal Procedure Code (RS OG 13/2001) CPC/2011 – Criminal Procedure Code (RS OG No. 101/2011) JA – Judges’ Act (RS OG No. 116/2008, 58/2009 – CC decision, 104/2009 and 101/2010) STCPPOA – Seats and Territories of Courts and Public Prosecutors’ Offices Act (RS OG No. 116/2008) GAPA – General Administrative Procedure Act (RS OG No. 30/2010) OCA – Organisation of Courts Act (RS OG No. 116/2008, 104/2009, 101/2010, 31/2011 – different statute, 78/2011 – different statute and 101/2011 ADA – Administrative Disputes’ Act (RS OG No. 111/2009) CCA – Constitutional Court Act (RS OG No. 109/2007 and 99/2011) NCPA – Non-Contentious Procedure Act SRS OG, No. 25/82 and 48/88, RS OG, No. 46/95 and 18/2005 HCJA – High Council of the Judiciary Act (RS OG 62/2002, 42/2002) HJCA – High Judicial Council Act (RS OG No. 116/2008, 101/2010 and 88/2011) OA – Ombudsman Act (RS OG No.
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