International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
December 2006, Volume 1, Issue 5

Global Judicial Dialogue

Judicial Reform in the Republic of Serbia

Hon. Vida Petrovic-Skero 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

Serbian Supreme Court
The Supreme Court of Serbia

Notably, the new Constitution of the Republic of Serbia, which contains provisions on the third branch of government, the judiciary, was adopted without any previous consultation with the representatives of this branch.

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 Republic of Serbia and that the courts are autonomous and independent in their work. However, these guarantees not only have to be proclaimed but also implemented in practice.

The new Constitution provides for the existence of the Supreme Court of Cassation as the highest court in the Republic of Serbia. Yet, the Constitution does not regulate its competences. This is in stark contrast to the Constitutional Court, Government, and National Assembly, the competencies of which are set forth in the Constitution.

The new Constitution also provides for the legal remedy that can be filed to the Constitutional Court against the decisions of the High Judicial Council and this means legal certainty for judges.

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

Serbian Judicial Training Center
 Judicial Training Center

An important development in the establishment of judicial independence and the separation of powers in Serbia is the constitutionalization of the High Judicial Council. This Council will be composed of eleven members, including six judges, one lawyer and one law professor, all elected by the National Assembly. The remaining three members, including the President of the Supreme Court of Cassation, the Minister of Justice, and the President of the authorized committee of the National Assembly, all serve ex officio.

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 Serbia, does not guarantee judicial independence.

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 Serbia would have to be “reelected”. These kinds of statements are mostly offered by politicians who often talk about the reelection of judges.

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

Serbian Judicial Training Center
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 Serbia is entitled and which surely guarantees highly educated and qualified members of the judiciary.

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 Serbia’s courts. New laws that would recognize the constitutionally established basis of the court system need be enacted. Moreover, it will be particularly important to secure the election of highly professional judges in order to protect the reputation of Serbia’s courts, both domestically and abroad.

In this regard, it is also very important that judges in Serbia communicate on different issues, freely express their opinions to which they are legally entitled, and exchange their experiences and communicate on the international level in order to bring about the success of judicial reforms and the independence of the judiciary.

For More Information

Supreme Court of Serbia

Judges Association of Serbia

Bar Association of Serbia

Prosecutors Association of Serbia

Ministry of Justice of Serbia

This article was translated from Serbian by the ABA/CEELI in Belgrade.

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© 2006 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Andrew Solomon and Maria Staunton.
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