- Published: 08 November 2008
In order to eliminate the major unconstitutionalities and encourage the indispensable public debate on the set of draft judiciary laws, the Judges' Association of Serbia held a round table entitled "Judiciary Laws" on 8 November 2008, which was attended by eminent experts - law college professors and judges and representatives of international organisations and associations. After analysing the degree in which the draft laws are harmonised with the Constitution of the Republic of Serbia and international standards, the participants adopted the following conclusions:
1. The transitional and final provisions of the Act on Judges and Act on the High Judicial Council allow for the politicisation of the judiciary and impermissible political influence by prescribing the so-called general re-election of judges, in contravention of the explicit constitutional provisions, and by establishing procedures varying from those envisaged by the main provisions of those very laws - procedures related to the nomination of the members of the first High Judicial Council from amongst the ranks of judges and the determination of the necessary number of judges by the first High Judicial Council (with the prior consent of the Minister of Justice).
The rights of citizens to an independent and impartial judge, a fair trial, legal certainty and rule of law shall be seriously jeopardised if the following provisions are adopted:
2. The transitional and final provisions of the Act on Judges envisaging the so-called general re-election of judges, given that the procedure for electing all judges, the so-called re-election procedure, inevitably presupposes that even the tenures of judges, who now have permanent tenures, shall be terminated at one point without any constitutional grounds, while the new Constitution, adopted in accordance with the procedure laid down by the prior Constitution, envisages the permanence of judicial tenure (Art. 146, para 1), as had the prior Constitution, whereas the Act on the Implementation of the Constitution, which is a technical law for implementing the Constitution, may not include provisions in contravention of the Constitution nor does it have provisions on the termination of judicial tenure.
3. The transitional and final provisions of the Act on the High Judicial Council, which envisage a procedure for the appointment of the first High Judicial Council in contravention of the other provisions of the Act and rule out a judicial vote on nominees for the High Judicial Council from amongst the ranks of judges, which is in contravention of international standards and allows the executive and legislative authorities to influence the make-up of the first High Judicial Council, which is to conduct the re-election of all judges, i.e. this allows for the politicisation of the judiciary.
4. Unclear, inappropriate and omitted provisions on financial safeguards for the independence of the judges, in contravention of international standards envisaging that remuneration of judges has to be regulated by law, prohibiting the lowering of the salaries they had attained and stating that a judge's retirement pension must be at the closest possible level to the level of their final salary as a judge, because all international standards must be applied as a whole if an independent, professional and efficient judiciary is to be genuinely ensured.