Serbia Talks: Judiciary Reform and Judges Joining Political Parties
Homen: Time Will Show the Reform Results
Dragana Boljević: Going to Strasbourg Due to Violation of Judges’ Rights
There are many disputes over the implemented judiciary reform. Although they agree about the necessity of the reform, the representatives of professional associations of judges and prosecutors and the Ministry of Justice are disputing over whether it all had to be implemented in that particular manner.
Ms. Dragana Boljević, President of the Judges’ Association of Serbia and Mr. Slobodan Homen, State Secretary in the Ministry of Justice, talked about the implemented reform, reelection of judges, new court network, judges joining political parties, creation of parallel systems and of European institutions’ disapproval of the “novelties” in Serbian judiciary.
Politika: How do you perceive the judiciary reform so far?
Boljević: Although the reform was necessary, and that was the topic of conversation of Judges’ Association for the last ten years, the reelection and the new judicial network are not reform. Those measures were undertaken without analyzing the consequences that might occur. The Council of Europe’s experts, that should soon present their final report on judicial reform, stated that the reelection polluted the judicial atmosphere so much that the reform cannot be implemented until the reelection problems are removed.
The associations of judges and prosecutors, together with OSCE, are in the field trying to identify problems and support better functioning of the new judicial network that did not achieve the declared objectives of creating a faster, cheaper and more accessible judiciary and courts with equal caseload.
Homen: Each reform is extremely difficult and complicated, especially when you want to reform something that was done in a particular way for 50 or 60 years. It cannot be implemented without corporation of competent institutions and professional associations and I have to say that the Ministry had a very good cooperation with the Judges’ Association and the Prosecutors’ Association. I agree with Ms. Boljević that the biggest stumbling block of this reform is the general election. I believe this is only a small part of the overall reform which, unfortunately, drew most of the public attention. That procedure should definitely be completed as soon as possible i.e. the Constitutional Court should complete proceedings upon complaints of the non-elected judges as soon as possible. Talking about the reform, I have to mention that the analysis of commercial courts’ work indicates that they are operating 30 percent faster than before. If the results of analyses in other areas turn out to be like that, for example in civil or criminal matters, we could say that the reform was a success.
Politika: What specific complaints did the European institution have concerning the reform?
Boljević: In numerous their reactions, the EU emphasized the important deficiencies of reelection procedure pertaining to composition and independence of the High Court Council and State Prosecutorial Council, application of objective criteria, as well as transparency and reliability of the whole process. That is why a working group was formed consisting of members of European Commission and our officials whose task was to find solutions for removing the reelection deficiencies. Since things are not developing fast enough and in compliance with standards, Mr. Stefan Fule warned, in the name of European Commission, on the 1st of June, that the European Commission will be evaluating the manner in which these deficiencies are removed in the progress report and that it will affect the assessment of Serbia’s candidacy for joining the EU. By the end of July, the Minister received a new letter from Mr. Fule and in a few days, we will report on the letter received from Mr. Pierre Mirel, Director of Political Directorate for Southwest Balkans.
Homen: Cooperation with the European Commission and the EU did not begin by adoption of a set of judicial laws or their application. It started long time ago. When the application of the new laws started, we proposed to the European Commission to form a joint commission for monitoring the judicial reform on a monthly basis. During the reform, we received an initial letter from the EU and exchanged dozens of correspondence with their representatives. The EU asked us not to disclose the mentioned documentation while this joint commission is operating. The results of the team work, remarks and comments should be reflected in the EC report to be submitted by mid-November. Then it will be quite clear what the remarks were, what was accomplished… As for the work of that commission, I have to say that the Ministry performs only a small fragment of work; it actually refers to the High Court Council and the State Prosecutorial Council.
Boljević: This working group’s sole mandate is to remove the reelection consequences. It is understandable that the talks, considerations of various ideas and solutions do not need to be publicly disclosed. But there are no obstacles preventing the public to find out about the content of the letter.
Homen: I would personally like to be able to publish the last letter that was quite positive. The original agreement was for this commission to deal with the issues of general election, but later on, by joint agreement, the commission acquired much wider authority, including the chance to address the next steps in the judicial reform.
Politika: What else needs to be done in order to complete the judicial reform?
Homen: The Constitutional Court must rule on complaints and end that process. Then follows the adoption of important procedural laws. It is extremely important to complete the computerization of all cases in Serbia because that will enable the monitoring of the entire “pace” of the case. It is normal for certain omissions to occur in the reform. We usually detect those omissions as we go, but we can also solve them in that way.
Boljević: Reelection is presented as the first reform measure. If we imagine the rule of law as a building, then reelection violated the independence of judiciary, which is the foundation of the rule of law. And if the foundation is not good, the building will be permanently unstable. Therefore, it is necessary to remove the deficiencies of reelection, which is something that EU constantly insists upon. Computerization is a good thing but it will take time. The other most serious problem is the new court network and that will be difficult to resolve. The network is expensive; the courts are becoming both de facto and legally inaccessible to citizens. For example, only 14 out of 47 judges of the Appellate Court in Kragujevac come from this town. They receive their salaries, allowance for being relocated which is 40 percent of the salary, then 250 euros for accommodation; a driver, fuel and amortization of vehicles for their transportation have to be paid as well. Clerks/note-keepers receive amounts practically equal to their salaries of 17,000 dinars for bus transportation to work. Reform is a too serious thing to be addressed as you go. That is why we should have at least waited with changing the court network.
Politika: Are you under the impression that the reform was done in haste, on the spur of the moment?
Homen: That has been the topic of conversation for ten years and at one point the decision had to be made and the reform had to be initiate. I believe further postponement would be counterproductive and harmful for the citizens.
Boljević: A long period of waiting for the reform does not give you the right to perform it in haste and it was done in haste. It should have been done in phases (elaboration of the High Court Council, Supreme Court of Cassation, Administrative Court and appellate courts, inclusion of misdemeanor courts). Everything else should have been done later on. Especially the judicial network.
Politika: Do you think the fact that non-reelected judges receive remuneration until their appeals before the Constitutional Court are resolved actually represents acknowledgement of mistakes in the process of reelection?
Homen: In line with the letter of the law, the Constitutional Court interpreted that, practically, the procedure conducted before it is of second instance. So, the reelection procedure did not finish with the decision of the High Court Council. That will happen when the Constitutional Court passes a decision. It is the Constitutional Court’s view that the remuneration should be paid out until the ruling upon complaints of the non-elected judges and we cannot interfere with that.
Boljević: It is true the Constitutional Court “extended” the law while taking that stand on March 25. However, I am convinced that is the result of the European Commission’s view on the improper reelection. If every one of us, non-elected persons, assisted our colleague judges with 10 rulings a month, which is what we have asked for, in six months there would be 50,000 rulings completed. Incredibly enough, there was no one to listen to us although it would have been beneficial to all.
Politika: What is your comment on Vladimir Cvijan’s statement that most of the non-elected judges joined SNS (Serbian Progressive Party)? Does that mean the implemented re-election is gaining a political note?
Boljević: I do not believe so. I consider that an act of helplessness and revolt caused by numerous violations of right in the process of reelection and the fact that the institutions are not functioning. Even the non-elected judges are judges, with a very unusual status though, until the Constitutional Court decides to rule upon our complaints. With strict standards of our behavior, we should have shown that we were not to be sent away.
Homen: We should differentiate whether something is a political issue or not. The dispute on judges that is taking place among the political parties cannot be useful to either parties, or judges or the state. Should the political parties wish to address this issue, there is only one institution where they can do that, and that is the parliament. Finally, the parliament adopted these laws, it can dispute them, change them and the political parties can provide their comments as well. I wonder why some of the non-elected judges are joining that party. If the reason behind that is that they share political convictions of the party, that is absolutely legitimate. If by any case, the motive is to re-enter the judiciary in that way, it indicates their questionable moral quality in terms of impartiality and independence in passing decisions. The question remains what to do with the judges who joined that party.
Politika: What is your comment on Čedomir Jovanović, the LDP (liberal Democratic Party) leader, saying that membership of non-elected judges in SNS violated the democratic order and that parallel institutions of the system have been created in this way?
Boljević: I listened to that statement carefully. Apart from mentioning removal from duty, which is exactly what we claim happened to the non-reelected judges, I was astonished at how “well-informed” he was about the alleged reasons for removal of those judges from duty since they themselves are not acquainted with those reasons.
Homen: I partially agree with Mr. Jovanović that any kind of public discussion, especially about judges joining political parties, definitively jeopardizes the democratic order. The citizens cannot trust the judiciary if that issue is undergoing speculations based on the statements of political parties in the newspaper. If you leave an impression that those people will return when some new party comes to power, we get to a situation of having political parties’ extensions through judicial institutions.
Politika: Can we expect new investigations, having in mind that information on illegal activities of some of the non-elected judges went public after the reelection?
Homen: I cannot tell you much about that. I am not a member of the High Court Council nor did I take part in the election procedure. Those issues are exclusively within the competence of the High Court Council, and where the investigations are concerned, within the competence of the Public Prosecutor’s Office of the Republic of Serbia.
Boljević: If the High Court Council came up with those data, it is not just a matter of unworthiness and removal from duty, but also criminal liability of judges that were not reelected. The HCC was obliged by law to press criminal charges against them. Since HCC did not do so, there is doubt about the existence of proof for such things at all.
Politika: What made the non-elected judges turn to the court in Strasbourg?
Boljević: The Constitutional Court resolved only one case out of 1,000. That was a pilot ruling according to which all other cases should have been resolved but that is where it came to a halt. Interestingly enough, out of five judges of the Constitutional Court meanwhile elected by the Supreme Court of Cassation, not one was a judge before the December (re)election. There is some serious conflict of interest for four of them, as well as for the judge elected in early July in the Parliament, preventing them to deicide on improperness of reelection. Over the line was the fact that in cases without ruling upon complaints against December decisions of HCC on removal from judicial function, the Constitutional Court accepted the new June decisions of the Council. Thus, the principle of legal certainty that prohibits one to rule twice on the same issue was violated, as well as many other generally accepted rules. This kind of behavior does not guarantee a fair trial. That is why we will submit the first hundred complaints in Strasbourg by September 20, before the proceedings before the Constitutional Court have finished.
Homen: I can only say that I have complete trust in the work of the High Court Council and the Constitutional Court. I support judges’ initiative to turn to the Court in Strasbourg because I think not a shadow of a doubt should remain regarding the implemented procedure and that is why it is important to make use of all legal remedies.