Standing points for adopting the Law on Organization of Courts
The starting points for the amendments were shaped by the experts of the Judicial Research Centre (CEPRIS), considering the current constitutional regulation of the judiciary, as well as the ratio of the adopted constitutional amendments, which implies the elimination of the undue influence of the other two branches of government on the judiciary, and especially the political view, which was expressed and adopted in the process of amending the constitutional provisions, and which claimed “that the Constitution is not so important, it is only the basis for the law”.
The methodological approach was determined by following the existing systematization of still valid Law on Organization of Courts, by listing the key issues that must be regulated by a new law, with concrete proposals and explanations.
It was considered which changes were necessary due to the adopted constitutional amendments, the recommendations of the Venice Commission, theoretical position, recommendations of the Committee of Ministers of the Council of Europe, opinions of the Consultative Council of European Judges and, most importantly, the degree of real needs and possibilities of the courts to change the national judiciary.
Standing points for adopting the Law on Organization of Courts is the result of the work of the retired Judge and former President of the Supreme Court of Serbia, Vida Petrović Škero in collaboration with the lawyer, former Judge and President of the Second Municipal Court in Belgrade Gordana Mihailović and PhD student at the Faculty of Law University of Belgrade, Ana Zdravković.
Standing points for adopting the Law on judges
In the Constitution of the Republic of Serbia, the status of the judiciary is not defined, nor is the relationship between the three branches of government defined and limited in accordance with the principle of the rule of law, which requires a special attention in the process of adopting the Law on Judges, to the basic principles that should safeguard the rule of law and justice.
We can classify the key neuralgic points of the Law on Judges as follows:
- Basic principles (independence, tenure and irremovability, right to association, freedom of expression and public action, preservation of trust in independence and impartiality);
- Dismissal, transfer, appointment of judges (irremovability – assignment and transfer, mutual independence of judges – change of annual tasks, schedule of cases, evaluation);
- Appointment of a judge (procedure for the appointment of a judge);
- Termination of a judge’s office (dismissal of a judge);
- President of the court (acting president of the court);
- Lay judges (procedure and appointment of lay judges);
- Disciplinary liability of judges (serious disciplinary offense – dismissal procedure).
Standing points for adopting the Law on judges is the result of the work of the Professor of the Jurisprudence at Faculty of Law Miodrag Jovanović, in collaboration with the Judges Gordana Vidojković and Slađana Pantović and the Attorney Nataša Stojadinović.
Standing points for adopting the Law on High Judicial Council
Certain provisions of the Constitution of the Republic of Serbia of 2006 and the Constitutional Law on Implementation of the Constitution have been criticized by experts and the public since the adoption. During the following years, the necessity to change the highest legal act was confirmed, both due to the inconsistency of certain provisions with the fundamental principles of constitutional democracies and the rule of law, as well as due to the requirements in the process of European integration.
With the adoption of the Act on Constitutional Amendments of the Republic of Serbia in 2021, which was ratified in the referendum on January 16, 2022, the provisions of the Constitution pertaining to courts and the High Judicial Council, among others, were amended.
The lack of transparency and inclusiveness of that process was being indicated during the public debate and the implementation of the constitutional reform. However, the adopted amendments have become our new constitutional and judicial reality.
Along with all the positive or controversial from the point of view of the profession, those changes could be evaluated as a partially used opportunity to resolve the issues in the Constitution that contributed to the delays in the implementation of the previous reforms of the judicial branch of government.
Standing points for adopting the Law on High Judicial Council is the result of the work of the judge of the Court of Appeal in Novi Sad and former member of the High Judical Council Savo Đurđić in collaboration with the judge of the Court of Appeal in Belgrade Miodrag Majić and the PhD student at the Central European University in Vienna Teodora Miljojković.
In July 2022, the Center for Judicial Research (CEPRIS) formed five working groups, which created the standing points for the adoption of five laws – the Law on Judges, the Law on organization of courts, the Law on High Judicial Council, the Law on Public Prosecutor’s office and the Law on the High Prosecutorial Council. The standing points should indicate the key issues that must now be regulated by the mentioned laws, while proposing concrete solutions, bearing in mind the amended Constitution.
The preparation of this text was supported by the Embassy of the Kingdom of the Netherlands in Serbia, the Balkan Fund for Democracy, the project of the German Marshall Fund of the United States of America and the Embassy of the Kingdom of Norway in Belgrade.