Global Judicial Dialogue
Judicial Reform in the Republic of Serbia
Hon. Vida Petrovic-Skero
President of the Supreme Court of Serbia
The Serbian judiciary has been facing many problems for a long period of time. For the rule of law and legal certainty to be established, and public trust in the judicial system regained, the judiciary as whole – and courts in particular – must be reformed. In order to do so, a National Judicial Reform Strategy has been adopted. Implementation of this Strategy should provide the main conditions for guaranteeing the right of citizens to a fair trial by an independent and neutral court established by the law.
Serbia’s New Constitution and the Judiciary
The Supreme Court of Serbia |
Notably, the new
Constitution of the
As
the fundamental act of the state, the Constitution must
provide guarantees for judicial independence. The new
Constitution does state that judicial power is unique on
the territory of the
The
new Constitution provides for the existence of the
Supreme Court of Cassation as the highest court in the
The
new Constitution also provides for the legal remedy that
can be filed to the
In addition, the Constitution states that the permanent tenure of judges is a very important guarantee of judicial independence. Nevertheless, it provides as an exception that the person elected as a judge for the first time shall be elected by the National Assembly for a tenure lasting only three years.
Judicial Selection and Tenure
Judicial Training Center |
An
important development in the establishment of judicial
independence and the separation of powers in
In order to facilitate the functioning of this highest judicial body, one which is competent for the election and removal of judges, the law must regulate the nomination process of its members so that an other branch of government cannot elect its members based on some criteria other than the criteria of competence. This is because members of Parliament do not possess sufficient knowledge and expertise to assess which judges are highly professional and moral persons who meet the above mentioned criteria.
The
reform of the judiciary should in any event ensure that
the court president becomes “the first among equals”.
However, the current approach by which the National
Assembly elects the President of the Supreme Court of
Cassation and the presidents of other courts, especially
in a country in the process of transition such as
The judges’ permanent tenure of office as a guarantee of judicial independence was regulated in the previous Constitution and is also provided for in the new one. As noted above, the only exception is the person elected to the post of judge for the first time, when the tenure of office is limited to three years. Such a person is elected by the National Assembly on the proposal of the High Judicial Council. After the three year term of office expires, the High Judicial Council elects the judge taking into account the guarantee of the permanent tenure of office. This allows the Council to make the selection only in those cases involving candidates previously elected by the National Assembly.
Unfortunately, even though the Constitution guarantees
permanent tenure of office, there have been different
statements given in public on the issue of whether all
judges in
The possibility of such a view results from the provision of the Constitutional Law which essentially represents the transitional and final provisions of the Constitution and provides that the first election of judges and the President of the Supreme Court of Cassation must occur within 90 days from the day of the High Judicial Council’s formation. The election of judges and presidents of other courts must take place within one year from the High Judicial Council’s formation. This provision, which is unclear on the issue of whether the Constitutional Law requires reelection of judges not only for new types of courts, but also for judges of the existing courts, has been met with different interpretations by legal experts. Thus, politicians talk about reelection of all judges without taking into account their constitutionally protected permanent tenure of office.
The Constitution also prohibits the political activity of judges. This broadly defined prohibition should constitute a framework within which a law can offer more specific solutions. Without a legal provision of this type, the prohibition might be abused depending on the quality and composition of the legislative and executive branch.
Other Judicial Reform Goals and Challenges
Judicial Training Center |
Having in mind the goals set forth in the National
Judicial Reform Strategy, we can conclude that a lot has
been done related to the regulation of mandatory, basic
training of candidates for judges and prosecutors. The
Judicial Training
Center, for example, continues to develop as an
institution responsible for organizing continuing
education of judges—something to which every judge in
However, only by developing adequate budgets for the implementation of laws will they have positive effects. Without this, not even good legislative solutions will have the intended results. Therefore, it is important to have strong coordination between all three branches of government, so that the legislature enacts laws which can in fact be implemented instead of just being a pure declaration. In addition, the executive must provide sufficient funding for a qualitative implementation of laws.
It is also important to provide sufficient budgetary funds for the functioning of courts. In recent years, the main challenge facing the judiciary has been insufficient funding. For instance, courts have not had enough funding for basic services such as electricity, water and phone services. An even bigger problem is the fact that budgetary funds have been insufficient to cover costs of mandatory defense provided for by attorneys. This has caused, on several occasions in the previous two years, attorneys to go on strike and not appear in court even when their clients were in custody. This situation, in turn, has led to delays in court proceedings and has effected the reputation of judiciary.
It is
clear that the time ahead is going to be a challenging
one for
In
this regard, it is also very important that judges in
For More Information
Prosecutors Association of Serbia
This article was translated from Serbian by the ABA/CEELI in Belgrade.