Reforming Serbia’s Constitution: Enhancing judicial accountability at the expense of independence?

The EU integration process has given momentum to domestic demands for judicial reform in the Serbian Constitution. This has prompted the government, through the Ministry of Justice, to launch a reform process that unfortunately can’t be called participatory. Moreover, the proposed amendments are unlikely to insulate the judiciary from politicization. The need to ensure the adoption of the reforms in parliament and in a referendum requires extensive public engagement and a reformulation of the proposed amendments, taking in account the views of the Venice Commission and European integration standards – writes Milan Antonijevic.

As a country in transition, Serbia is facing challenges regarding the establishment and maintenance of constitutionalism and the rule of law. As part of the effort to address the challenges, a process to reform the constitution, in particular focusing on the independence of the judiciary, is underway. Right from the adoption of the current Constitution in 2006, Serbia has witnessed a constant campaign from civil society groups and the expert community to change the constitution, as it was adopted too quickly with little public debate and with several visible deficiencies. The Venice Commission, in its ex post analysis of the constitution in 2007, enumerated a large list of deficiencies. The Commission is expected later this year to give an opinion on the draft constitutional amendments, this time before their adoption.

Initiatives from different civil society organizations (CSO), including ‘My Constitution’, have formulated a list of priorities for constitutional change in the last decade. In addition, numerous publications and expert articles have been published, providing the basis for the current debate. One area of the constitution that arose greatest concern is the judiciary and its unequal position within the constitutional separation of powers framework. Serbia’s effort to join the European Union has energized the impetus to reform the judiciary. As part of the EU integration process, following the requirements drawn by the European Commission, the Action Plan for Chapter 23 of the Serbian Government, dealing with the judiciary and fundamental rights, foresees changes to constitutional provisions regulating the judiciary. In addition to addressing longstanding domestic demands, such reforms are a necessary precondition to finalize the negotiations under Chapter 23 with the EU and the member states to pave the way for Serbia’s EU integration.

Calls for a more open reform process

Unlike the process of adoption of the 2006 constitution, which was not participatory and transparent, at the beginning of the ongoing process of constitutional change, the government called for proposals for amendments. This call appeared to be exploratory as the government did not publicize the initial version of the amendments. This resulted in severe controversy and dissidence among relevant experts, CSOs, independent institutions and opposition political parties. Most of the main CSOs as well as professional associations of judges and prosecutors abandoned this ‘debate’ until and unless the Ministry of Justice presents the official draft of the proposed constitutional amendments. The Ministry in January 2018 finally published the first ‘working version’ of the proposed constitutional amendments consisting of changes affecting the judicial framework.

CSOs, experts and professional judicial associations have indicated that the proposed amendments would lower the standards set in the current constitution.

The Ministry is now receiving comments on the proposals. Comments have already been shared by the judges’ associations, prosecutors association, the High Court of Cassation, the appellate courts, the High Judicial Council, the State Prosecutorial Council, bar chambers, constitutional law professors and numerous CSOs (YUCOM), all stating nearly in one voice that the amendments will not contribute to judicial independence, but instead they would lower the standards set even in the current constitution. CSOs have in addition called on the government to reveal the names of the authors of the working version of the proposed amendments. The constitution is the supreme law of the land, and the part regarding judiciary is fundamental for the rule of law. It is therefore important to have meaningful public debate with clear draft provisions containing proper explanations and identifying the authors, as it can shape expectations and set standards.

Parliament has noticeably been absent in the constitutional debate within this phase, with only two ruling party members of parliament accompanying the Minister of Justice on four roundtables around Serbia. At the same time, opposition political parties expressed concern over the process of amending of the constitution.

Assessing the proposed reforms: Enhancing judicial accountability or continuing the politicization of the judiciary?

An analysis of the first working version reveals that, while there are some positive elements, the amendments contain substantial problems, as well as numerous deficiencies and may leave the judiciary in the shadow of the extremely influential and politicized executive and legislative branches. The provisions that have been criticized have roots in ostensible government attempt to balance guarantees of judicial independence with judicial accountability.

A notable element of the proposals is the removal of the three-year probation period for judges. Accordingly, once elected, judges would have a guaranteed mandate with a secured tenure. This is an important change, as it leads to the possible certainty in judicial career which is a precondition for their independence. Unfortunately, there is not much more that can be stressed as a positive change.

In the HJC, the balance in the proposed draft visibly leans towards non-judicial members appointed by parliament.

The proposals dealing with the composition of the two judicial councils, the High Judicial Council (HJC) and the State Prosecutors’ Council (SPC), require more details and could compromise the independent of the judiciary. In the HJC, the balance in the proposed draft visibly leans towards non-judicial members. Out of the proposed ten members, only five will be judges. The amendment proposes to remove the Minister of Justice and the head of the relevant parliamentary committee from the HJC. Nevertheless, it introduces a new group of members who must be ‘distinguished lawyers’ selected by parliament from outside the judiciary. Crucially, to address the practical challenges the round number of members to the decision-making process, the proposal grants a casting vote to the president of the HJC, who has to be from among the distinguished lawyer. The newly introduced ‘distinguished lawyer’ positions may allow political influence, which can be even more intensive, hidden and harder to prove. 

Under the current constitutional framework, six of the 11 members of the HJC are from the judiciary. In addition, the President of the Supreme Court of Cassation is an ex-post officio member. The six judicial members are directly elected by and among their peer judges, elections that the Lawyers Committee for Human Rights (YUCOM) monitored in 2015. The HJC furthermore includes one law professor and one experienced and prominent lawyer. All selected members of the HJC must be confirmed in parliament. In its analysis of the current constitution, the Venice Commission noted the apparent plurality in the current HJC. Nevertheless, it criticized the final authority of parliament to appoint all the elected members as a potential avenue for the politicization of the judiciary.  The Commission recommended the substantial amendment of the relevant provisions.

Commendably, under the proposed amendments, the judicial members of the HJC will be elected by their peers, without the need for parliamentary approval.

The proposed amendments do not remove the potential politicization of the judiciary. This is particularly notable in the parliamentary majority needed for the approval of the nominated distinguished lawyer members of the HJC. Commendably, under the proposed amendments, the judicial members of the HJC will be elected by their peers, without the need for parliamentary approval. In the first round of elections, 3/5th of MPs is needed to elect the distinguished lawyers. If the required majority is not reached within 10 days, a second round of parliamentary voting will be organized, requiring only 5/9th of the MPs. The source of the 5/9th requirement is not clear. Nevertheless, it allows a bare majority to make the ultimate appointments. A higher threshold, such as a 2/3 majority, would be a clear signal that larger political consensus is needed for choosing the members thus leading to more objective criteria and a constructive debate within parliament. That the ruling party could potentially achieve the 5/9th majority could signal that the amendments are tailor-made for the current composition of parliament, which is incompatible with judicial independence that is imperative within the Action Plan for Chapter 23.

The proposed composition of the High Prosecutors' Council tilts the balance even more in favor of the executive and legislative branches. One seat is reserved to the Minister of Justice. Only four out of the 11 members would be prosecutors elected directly by and among their peers. One seat is reserved for the Public Prosecutor, who will be chosen by parliament, which will also appoint five distinguished lawyers. This composition of the SPC contradicts the Action Plan for Chapter 23, which clearly stipulates that the constitutional change will ensure that prosecutors will occupy at least 50% of the membership of the Council.

The proposal amendments lower the criminal immunity of judges and prosecutors in comparison to the current constitution,

Beyond the composition of the councils, the proposed amendments empower the Minister of Justice to adopt disciplinary measures against judges, as well as to start dismissal proceedings against judges and court presidents. While the HJC will decide in these disciplinary proceedings, one of the distinguished lawyers appointed by parliament would have the casting vote, thereby giving the non-judicial members the practical majority.

In addition, the proposals lower the criminal immunity of judges and prosecutors in comparison to the current constitution, and the lack of any explanation for these changes opens questions regarding its logic, necessity and legitimacy. The proposed amendments also allow the HJC to transfer judges against their consent in the case of the ‘rearrangement of the court system’, a vague phrase potentially subject to divergent interpretations and therefore discretionary abuse. The transfer of prosecutors would also be possible in every case, without their consent upon the decision of the SPC. These provisions further the dependency of judges and prosecutors to the politically appointed members of the HJC and SPC.

The amendments also refer to the Judicial Academy as the training institution for judges and prosecutors. The Academy would be the sole entry point to judicial positions in courts and the prosecution. Nevertheless, the capacity of the institution and the lack of guarantees for its independence leave room for concern. Furthermore, the question of court assistants and their legitimate expectation to enter the judiciary as judges and prosecutors, bearing in mind their long-year experience in these judicial institutions, has not been expressly dealt with.

In their current state, the Venice Commission is likely to disapprove significant parts of the proposed reforms.

It is also important to note the importance of implementation laws that would give effect to the proposed constitutional amendments. These laws should be comprehensive and should also be presented for public debate and reviewed by the Venice Commission.  

Concluding remarks

With the Action Plan for Chapter 23, the Serbian Government has committed itself to addressing concerns regarding the existing influence of the legislature and executive in the selection and disciplining of judges and prosecutors. Nevertheless, as they stand now, the proposed amendments will merely shift the channel of influence. The National Convention on the EU, a body composed of civil society organizations monitoring the EU integration process, has dispatched a Press Release calling on the Ministry of Justice to withdraw the working draft of the amendments to the Constitution as published. Also a group of professional associations and CSOs wrote an open letter to  the government, the National Assembly and the President requesting that the working version of the amendment to the constitution be withdrawn and fully reformulated. In particular, it is crucial to establish a working group for drafting that will include judges, prosecutors, representatives of the legal profession, constitutional professors and other stakeholders. However, Ms. Kuburovic, the Minister of Justice, has rejected the withdrawal of the amendment: ‘there will be no word on amendments withdrawal’. The details of the final version to be sent to the Venice Commission and whether it will contain the standpoints of the professional associations and CSOs, which may be the reason for writing a new text, remain to be seen. In their current state, the Venice Commission is likely to disapprove significant parts of the proposed reforms. As the Venice Commission indicated in its 2007 opinion on the Serbian constitution, ‘Judicial independence is a fundamental prerequisite of a democratic constitutionalism and is also wholly necessary to ensure that the constitution is not merely a paper exercise but will be enforced in practice’.

Critically, the constitution requires a mandatory referendum as the reforms affect the division of powers.

At the domestic level, to enhance the legitimacy of the reform process and the chances of its approval, it is important that the government, CSOs, opposition parties and other stakeholders ensure that the reforms do not continue the politicization of the judiciary. The organization of public discussion forums to engage citizens in the reform process is particularly important. In the absence of a feeling of inclusion and understanding of the proposed reforms as well as cross-party consensus, the needed 2/3 majority of the total number of members of parliament to amend the constitution may not be achieved if any of the coalition members supporting the government abstains from voting. Critically, the constitution requires a mandatory referendum as the reforms affect the division of powers. Accordingly, the Serbian Government should follow the lead in providing ground for full judicial independence, leaving judicial accountability concerns and monitoring to professional organizations, civil society, and the public at large.

Milan Antonijevic is the director of YUCOM- the Serbian Lawyers' Committee for Human Rights.