Jury Out on Serbia’s Botched ‘Reform’ of Judges
By Balkan Investigative Reporting Network
As the row over the selection of judges in Serbia shows no sign of ending, the Judicial Council, the body tasked with sorting it out, remains hopelessly compromised, its own credibility in tatters.
More than two years since Serbia’s government began trumpeting its judicial reforms, hailing a victory for the principle of lustration and a break with an old and compromised system, the chorus of criticism of those reforms has grown stronger.
Brickbats have come thick and fast from the international community, legal experts and the judges themselves.
Criticism has prompted a fresh look into the process of appointing judges. But the main judicial body tasked with sorting out the errors, the High Judicial Council, is itself under attack, and the complaints have not gone away.
Meanwhile the fact the whole process of decision-making remains totally hidden from the public has fed suspicion that too much in the world of the Serbian judiciary goes on behind closed doors.
Flawed from day one:
The process of reforming the corpus of judges in Serbia began in 2008, when the Judicial Council was tasked with examining the country’s entire quota of judges, about 3,000 in all, re-electing those it deemed suitable.
The process finished in January 2010, by which time more than 800 of the 3,000 had lost their jobs.
About 90 per cent of the rejects then either appealed to the Constitutional Court in Serbia or the European Court for Human Rights in Strasbourg.
But in December 2010, three months after Serbia’s Constitutional Court started discussing the appeals, the government changed the law and gave the task to High Judicial Council.
Thus, all the complaints were returned to the same body about whose decision the rejected judges were complaining.
Since then, while deciding which judges will be appointed and who remains dismissed, the Judicial Council has been accused of not respecting its own criteria, of sacking good judges for political reasons and of promoting others with deeply problematic records – and of doing all this far from the public eye.
The High Judicial Council was supposed to take into account five criteria when evaluating judges: qualifications, integrity, competence, diligence and efficiency.
It did not help matters that the letter sent to all the rejects was a template with an identical formal explanation.
This provoked an outcry, as those who had been rejected were entitled by law to get a written explanation of their wrongdoing.
At this point Europe became involved. The European Commission Progress Report on Serbia for 2010 expressed “serious concern” about the judges’ reappointment procedure.
It pointed to problems in the selection of members of the Judicial Council, lack of clear criteria in decision-making and allegations of political influence.
The work of the Judicial Council was seen as especially compromised because all sessions and voting were pronounced an official secret, so that members are banned from talking about what goes on.
Furthermore, the Council has been accused of promoting judges that were not up to the task.m
Both Justice Minister, Snezana Malovic, from the ruling Democratic Party, and the Judicial Council President, Nata Mesarovic, insisted that every new judge had been carefully checked.
In spite of that, among the new intake were dozens of names with questionable pasts.
Some had risked dismissal back in 2001, following the fall of Slobodan Milosevic’s regime, because of their role in the notorious election frauds of the Milosevic governments.
The government’s own body, the Anti-Corruption Council, in a report on February 10, 2011 said a number of newly promoted judges had poorer records than the judges who’d lost their jobs.
It highlighted the strange goings-on in the First Basic Court in Belgrade, where, before selecting judges for the court, the Judicial Council had unanimously agreed a list of best candidates.
Days later, during the voting, 20 names of agreed candidates had disappeared and been replaced with other names. How this happened has not been established because official secrecy procedures were in place.
Similar things happened in other courts. Significantly, among the new appointees for the Superior Court in Belgrade was Judicial Council President Mesarovic’s own son, Vladimir.
While mesarovic’s son had obtained a green light, other would-be judges were rejected for having relatives in the judiciary system.
Both judge and jury:
After the EU and experts in Serbia urged the government to take a fresh look at the selection procedure, and after the government agreed to re-examine the process in 2010, seven new members were appointed to the Judicial Council in March 2011.
This was then tasked firstly with deciding on numerous appeals and then with independently assessing the judges whose appointments were disputed.
If there was a hope that the new 11-member Council could start afresh and decide everything on merit, that hope soon faded.
According to the law from December 2008 on the Judicial Council, decisions must be made by a majority of all members, meaning at least six.
But so many members of the Council had been removed or resigned since the new Council was appointed in March 2011 that concerns remained about whether the Council’s rulings on appeals by sacked judges could be considered credible.
One problem concerned four members of the old Council who remained in the new Council after March 2011.
Three of these, Justice Minister Malovic, president of parliament’s board for justice Bosko Ristic, and Council chair Mesarovic held their posts ex officio.
While all three were committed not to vote in the new Council, their presence has still counted, as decisions must be made by a majority of 11, not only by the eight who vote, distorting the voting procedure. Namely, if five members vote “Yes”, they are still in a minority.
A fourth member of the council, lawyer Dejan Ciric, who was elected later than the others in the previous Council, has also been entitled to stay and he can also vote.
Thus, many of the same people who decided previously to reject various judges are now deciding on the appeals lodged against their own decisions.
Dragana Boljevic, President of the Judges’ Association of Serbia, says this violates the constitutional provision guaranteeing people a right to a fair trial.
“A fair trial means an independent and objective judge who was not involved into the initial case deciding the appeal,” she said. “This is unacceptable.”
Serbian ombudsman Sasa Jankovic has also weighed in. In January 2012, he called the situation on the Council “legally and logically inconsistent”.
Further undermining the validity of the Council’s decisions, the Anti-Corruption agency has disputed the presence of a fifth member of the Council, Predrag Dimitijevic.
This because he holds two public positions at once, which is illegal, one on the Council and another as a Dean of Law in Nis.
While the corruption agency says he should be removed, parliament has to approve this decision and hasn’t done so. Thus, Dimitrijevic remains on the Council.
The sixth member of the Council, Blagoje Jaksic, also has a big question mark hanging over him. On September 23, 2011 Jaksic was arrested and charged with alleged abuse of office.
Prosecutors for organised crime accused Jaksic and five others of having unlawfully gained 20 million dinars in 1998 when he was a judge in Mitrovica, Kosovo and when he allegedly verified false contracts for the purchase of office space signed by two other arrested men.
Previously, prosecution office had abandoned the case in 2004. Suddenly it had reappeared.
In August 2011, according to the written records from the Council session - which the Judges’ Association of Serbia obtained after the intervention of the Commissioner for Information of Public Importance - Jaksic informed the Council that the executive, ie the authorities, were “trying to put pressure on his work”.
In his letter to the Judges’ Association of Serbia, sent from prison on January 8, Jaksic repeated this claim. Once again he accused the executive of trying to influence his work on the Council, saying that after he refused to be controlled, “they” had started attacking him and his family.
His wife, a prosecutor in Belgrade, with no explanation, had been transferred to an office in Sremska Mitrovica, for example.
His case raises several questions, including one about how he could have been appointed a judge in 2009 in the first place, let alone been selected for the Judicial Council, if his background had not been cleared.
However Jaksic remains a member of the Council until court proceedings against him are complete because of the legal presumption of innocence until guilt is proven.
The seventh member of the Council, judge Milimir Lukic, resigned in November 2011, also complaining of political pressures and saying he did not “want to work under conditions where pressure is put on members of the Council”. His successor is another judge, Miroljub Tomic.
Thus, currently, only five of the 10 members of the Council are not disputed.
Another problem is that while under the constitution a majority of members of the Council should be judges, currently this is only the case with five, instead of six.
In spite of this, the Council has not stopped working. Over 300 appeals are currently being checked and some rulings have been already delivered.
In January this year the Ombudsman stated that all Council decisions made since the judges lost their majority on the Council should be considered null and void. He urged the Council to stop working until its composition matched the law.
Both Ombudsman Jankovic and President of Judges Association of Serbia Boljevic agree that when deciding on judges’ appeals, all members of the Council have to be present before adopting a decision.
Bosko Ristic, President of the Parliament’s Judicial Board, says this is already the case.
“Stories that the Council does not have quorum are speculation. We always work by our rulebook,” he told Balkan Insight.
Meanwhile, the judges whose appeals the Council have rejected are still appealing to the Constitutional Court. By March 3, the Court had received 136 such appeals.
Following Mesarovic’s statements that the Council’s decisions are legitimate, the Constitutional Court on January 18 said it had not given an opinion on the legality and legitimacy of the new composition of the Council, but will decide individually on the members, case by case.
Behind closed doors:
Meanwhile, how decisions were made by this Council, the public will never know.
Mesarovic and her supporters banned recording of the sessions, despite a majority on the council voting for transparency back in July 2011.
Some minutes from sessions have been given to the Judges’ Association of Serbia on the intervention of Rodoljub Sabic, Commissioner for Information of Public Importance, and can be found on the Association website.
Since March two observers, from the EU delegation and OSCE are also allowed to attend the sessions, but cannot be present during voting.
EU source from Brussels told BIRN that the EU “cannot assess and comment on validity of the process now, as it’s still too early.”
“It is up to the Constitutional Court will decide whether the Council had the right to adopt decisions.
“The EU will deliver its opinion on the process only after we assess the criteria that the Council were applying and see whether criteria were applied objectively,” the EU source added.