Serbian Justice Ministry has published the working version of the Draft amendments to the Serbian Constitution (“the Amendments”). The Amendments pertain to the reorganization of the Serbian Judiciary, supposedly aiming at increasing its independence from the legislative and executive branches.
Independence of the judiciary was a subject of a bitter public debate – while the government officials pledged to accept the requests from the EU to increase the independence, quite a few dissenting voices were heard from the governments’ own backbenches.
Only more controversy stemmed after the Amendments were published – an outcry from the judiciary that the proposed changes will only decrease the independence of the judiciary – both the professional organizations of both judges and prosecutors agreed.
The Amendments stipulate that the High Judicial Council and the High Prosecutorial Council (presently the State Prosecutors Council) will appoint judges, prosecutors and deputy prosecutors. This is a new solution – for the first time the judges and prosecutors are appointed by the aforementioned councils. Today, the Parliament appoints judges and prosecutors for the first three year tenure, and the independent bodies confirm or deny them permanent tenure afterwards. The Amendments strike out the three year tenure for the first time appointees.
However, in the current Constitution both councils have 11 members – the president of the Supreme Court (or the Supreme Public Prosecutor), two ex officio members, and 8 elected members, six of them judges (or prosecutors).
The Amendments reduce the share of the judges and prosecutors and deputy prosecutors to less than one half, and give the deciding vote to the president of the council, who is elected among the non- judiciary members. The parliament elects the non-judiciary members among the “respect and prominent lawyers”.
It is argued that it will increase, not decrease the influence of the parliamentary majority in the appointment of judicial officers, since the term “respect and prominent lawyers” could, basically, be the way in for the political representatives of the actual parliamentary majority.
The Amendments also stipulate that only the trainees of the judicial academy may be appointed in the first level courts and public prosecutor offices. This provision effectively shifts the decision making power for choosing the entrants to the Serbian judicial system to the persons controlling the academy. The Amendments do not implement safeguards for the academy’s independence from the government, it is argued.
The provisions of the Amendments enumerate the reason for the termination of tenure, thus shielding the judiciary from any possible attempts of some future legislators to circumvent the permanent tenure.
The influence of the politics on judiciary has been an issue in Serbia from the 1945 and has survived several changes of political system. It has been pointed out as one of key issues in Serbia’s accession to EU, and is under intense scrutiny in the accession process.
Some other important amendments to the constitutional system in Serbia are awaited, mostly pertaining to Serbia – Kosovo relations, and it is expected that some of the aforementioned controversies will be dealt with in the process of building the 2/3 majority in the Parliament that is needed for the most important changes to the Serbian Constitution.