Statement of MEDEL on the Constitutional reform in Serbia

In light of the process of constitutional amendments in Serbia with regard to the judiciary and the prosecutorial service

Having in mind the proposed solutions in the 13^th April 2018 Draft Amendments to the Constitution of the Republic of Serbia and the Draft of the Constitutional Law

Recalling to the unjustifiable violation of the Rule of Law undertaken in 2009 by “re-election” of all judges, prosecutors and deputies of public prosecutors and in 2011/2012 during the review of the re-election

Endorsing the Opinion of the Consultative Council of European Judges Bureau of 4 May 2018

MEDEL – Magistrats Européens pour la Démocratie et les Libertés, emphasises the following :

1. Achieved level of the independence of judges and the judiciary and autonomy of prosecutors and prosecutorial service must not be decreased. The judicial independence and prosecutorial autonomy in Serbia should be safeguarded and improved at the highest level in line with the acquis and best European practices.
2. The principles of separation of powers and the independence of the judiciary are the basis of the democratic society governed by the Rule of Law. The principle of functional autonomyfrom executive power, or principle of independency of the prosecutorial service is a prerequisite for independence and efficient judiciary.
3. As stated by Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities, decisions concerning the selection and career of judges should be based on objective criteria pre‑established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity. There should be no discrimination against judges or candidates for judicial office.

The Constitution should enshrine that judicial councils, independent of the executive and legislative powers, should be entrusted to appoint judges and prosecutors based on their professional competence and personal integrity attained in the manner, in a procedure and under the condition regulated by the Law, which provide for the independence of judiciary and access to judicial office to everyone without any discriminationAs stated by the Venice Commission in its Report on the Independence of the Judicial System, of 12-13 march 2010, “it is an appropriate method for guaranteeing for the independence of the judiciary that an independent judicial council have decisive influence on decisions on the appointment and career of judges”.

4. Members of the judicial councils, having in mind it’s functioning in Serbia, should not be active politicians, members of Parliament, the executive or the administration. They must be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion and culture of independence. Process of selection of members of the judicial councils and the functioning of the councils shall allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice. The provisions regulating the dismissal of members of judicial councils should provide the members with sufficient guarantees for their independence, by stating possible grounds for dismissal.

4a. High Judicial Council (HJC) should be composed of an odd number of members, the majority of which should be judges elected by their peers. The provisions on the dissolution of the HJC in the event it does not render a decision should be deleted.

4b. High prosecutorial Council (HPC) should keep composition with the majority of prosecutors elected by their peers.

5. MEDEL sees with much concern the inclusion in the Constitution of a provision requiring legislation of the method to ensure uniform application of the law.

In opinion nr. 20 (2017) of the CCJE (“The Role Of Courts With Respect To The Uniform Application Of The Law”) it is clearly stated that “the need to ensure uniform application of the law should not lead to rigidity and unduly restrict the proper development of law and neither should it jeopardise the principle of judicial independence” and that “it is primarily a role of a supreme court to resolve conflicts in the case law and to ensure consistent and uniform application of laws as well as to pursue development of law through the case law”.

MEDEL demands that any method adopted must ensure that only a higher court, following a due process and with no external influence, can decide on the uniform application of the law, under criteria that, as stated in the quoted opinion “should pursue the public function of the supreme court to safeguard and promote the uniformity of the case law and the development of law” and safeguarding the possibility of a dissenting decision when “a close and critical analysis would lead to the finding that the circumstances and the context of the cases do not match”.

6. The way in which the grounds for the dismissal of judges are formulated violates the principle of irremovability of judges and is potentially very dangerous to the judicial independence. Provisions on grounds for dismissal of judges and prosecutors should require strong and clear implementing primary legislation both to set out the specific misconduct that may result in a dismissal, and the procedure to be followed.
7. The principle of nontransferability of judges implies not only judges’ consent for transfer, but also for assignment (temporary measure) to another post and should be safeguarded in both aspects (permanent and temporary).
8. A judge should be guaranteed the legal remedy against a decision of HJC. 
9. Election of all public prosecutors by the Parliament with а simple majority, as well as strong hierarchical structure, could make an impression of public prosecutors as holders of political mandate. Impression of political mandate and political control over the prosecutorial service should be avoided.

June 7, 2018