Report on the Judicial System in Serbia

July 2001

One of the most important promises made by the opposition before coming to power on October 5, 2001, was the establishment of a legal state, the introduction of the rule of law at all levels, the creation of an independent system of law courts, and thus also the establishment of the responsibility of all those who had violated the law. In a state where, for ten years, decisions regarding life and death, freedom and imprisonment were in the hands of the ruling structures, and in which even the most insignificant court proceedings could be guided by the political, personal and financial influence of individuals, groups or parties, there is no doubt that the promised establishment of a legal state seemed to the voters as a way out of the darkness of lawlessness.

The pompously announced functional and personnel reorganization of courts and the prosecutor's office, named "the cleaning of the judiciary", which was to imply the initiation of dismissal procedures, and even criminal proceedings against judges and prosecutors who, in their work, flagrantly violated the law and principles of the profession they had vowed to honor, has, for now, stopped at several dismissals and a large number of terminations of judge duty on personal request or due to retirement. Unlike the relatively extensive media coverage of the dismissals of the presidents of the Constitutional Court of Serbia, the Supreme Court of Serbia, the Business Court in Belgrade, the District and four Municipal Courts in Belgrade, the republican public prosecutor and the public prosecutor of the District Court in Belgrade, who were relieved of their duties primarily for political reasons, the other "dismissals and terminations of duty" were only published in the "Official Gazette", as the Serbian Parliament's decisions. Although it is good that people holding these posts have been removed, negative and unacceptable is the fact that the public has not been informed about the reasons for this.

Namely, because of the dismissals and terminations of duty on personal request or due to retirement, some of which was probably done under pressure, the opportunity has been lost to establish which law violations and abuse of office these people should have answered for. As far as the public knows, so far not one single criminal action has been taken against judges suspected of having administered justice on the basis of political orders, who were corrupted by receiving apartments from the party they were members of, or who received bribes. Such actions by the new authorities, taken under the motto "no revanchism", have produced a double negative effect. First of all, it is precisely such "removals" of people that have created a climate of revanchism, since their responsibility (except in a few cases) was not established in a court procedure, this giving rise to doubt about the legality of these decisions, and secondly, the large dissatisfaction of the citizens, exposed to the self-will and unlawful arbitration of judges for at least ten years, did not find at least some satisfaction in proceedings that would establish the possible responsibility of these persons. In this manner, the new authorities which have constantly been professing legality and legitimacy in the establishment of the rule of law, have been prolonging, since the very beginning, the citizens' mistrust of the system of law courts, as one of the main postulates of a legal state.

The second level of problems concerning the functioning of the judiciary is the non-existence of legal preconditions for the functioning of the Constitutional Court of Serbia, or actually, for the regular work of the Supreme Court of Serbia, as the highest court instances in the republic, and the non-existence of a republican public prosecutor.

Namely, since the beginning of the year, the Constitutional Court of Serbia has not been composed of the necessary five judges, so as to be able to take decisions. Out of nine judges, the number envisaged by article 126 of the Constitution of the Republic of Serbia, following several dismissals and retirements, there now remain only three arbitrators, one of whom is the court president. Without going into the previous political bias and utilization of this Court, there is at present no court that can decide on: the accord between of laws, statutes of the autonomous provinces, other regulations and general acts on the one hand, and the Constitution on the other, accord of the republican bodies' regulations and general acts with the law, the constitutionality of collective agreements, banning the work of political parties or other political organizations etc. Since there is no quorum, none of the old cases, or any of the 120 or so new requests that arrived at the Constitutional Court over the past few months, have been put into procedure. Among others, the cases awaiting the assessment of their constitutionality are the "regulatory plan for Dedinje", enabling the legalization of illegally constructed facilities in this elite part of Belgrade, as well as the Serbian government's Decree according to which the government has the authority to force any company in which it has any kind of share, to dismiss the management, perform a certain activity and so on.

The questions of when the issue of the functioning of the Constitutional Court of Serbia will be resolved, by whom and how, remain without an official answer for now. In view of the fact that many of the submitters and initiators of the requests for the assessment of constitutionality, who believe their rights have been violated by acts adopted by the new authorities, are deprived of the protection of their rights, it can rightly be suspected that the resolution of this legal obstacle will depend on daily political needs.

The situation is almost identical with the Federal Constitutional Court which does not have a quorum for decision-making either, and whose existence and functioning depends on the resolution of the problems at the federal level.

The problem of the functioning of the Supreme Court is more of a factual than a legal nature and can be divided into two levels. First of all, out of around sixty judges currently working at the Supreme Court, at least half had "earned" their positions thanks to their many years of loyal service to the previous regime. Independence, expertise, professionalism, incorruptibility, courage and high moral standards were not conditions these people needed to fulfill in order to become judges of the Supreme Court. Such a selection of judges has led to a situation in which only a smaller number of the judges of this court, including the newly elected president, possess professional and moral qualities to administer justice and take last instance decisions, while an overwhelming majority of them either do not try in court at all or do this in an insufficiently professional manner. From the standpoint of an average citizen, one can conclude that, if judges at the highest, and most often last court instance in the republic are not sufficiently competent to administer justice, the competency of judges at lower-level courts must be even smaller. This conclusion is not absolutely correct, since lower-level courts do have exceptional judges who are high professionals and experts, but this fact does not significantly change the picture of general mistrust of judicial bodies.

Another level of the functioning of the Supreme Court concerns competencies in the process of establishing the existence of reasons for terminating judge duty and dismissing judges. Under the valid Law on Courts from 1991, following an initiative for launching the procedure for the dismissal of judges, which can be initiated by the court president and a session of all judges in the case judges from that court, the president of the immediate higher court, the justice minister and the National Assembly's responsible body, the Supreme Court conducts the procedure for establishing whether there exist reasons for dismissal and informs the National Assembly about this. Out of the four reasons for dismissal envisaged by article 46 of the Law on Courts, there is no doubt that the reasons stipulated in article 3 - "if non-professionalism and unconscientiousness in performing judge duty is established" - could be applied more often. However, in order to prove someone's unconscientious and unprofessional work, the Supreme Court's Rules of Procedure say that this must be done at a General session of the Supreme Court, which, in order to take valid decisions, must be attended by two thirds of the total number of the court's judges, while decisions are taken by a majority of the total number of the court's judges.

In view of the envisaged procedure for dismissal, as well as the professional structure of the judges who are to decide on the dismissals of others and themselves, by establishing the "non-professionalism and unconscientiousness" of others and themselves, it is clear why the work of the Supreme Court is blocked in this segment of its functions as well.

Following the dismissal of the republican public prosecutor on February 14, 2001, this function has been performed by an acting public prosecutor. Under the law, the republican public prosecutor is directly in charge of the entire system of prosecution in the republic and is most responsible for the prosecution of the perpetrators of criminal acts and the protection of legality in the spheres of lawsuits and misdemeanor proceedings. The special importance of his function is reflected in the fact that he is to represent the main link between executive bodies of authority (the police) and courts. The fact that the republican public prosecutor has not been appointed for five months now and that these duties, in such an important institution, have been performed by an acting public prosecutor, intentionally or not, paralyses the work and main functions of the entire apparatus of prosecution in the republic, i.e. the prosecution of perpetrators of criminal acts.

The third level of the problem of the functioning of the judiciary concerns the normative regulation of this sphere. The adoption or at least the drafting of new laws regulating the organization and competencies of courts and the prosecutor's office, i.e. ones that will envisage a different manner of electing judges and of establishing the conditions for their election, remains still within the realm of announcements. It is to be presumed that, until the end of the summer, there will be no laws that will prevent, or at least reduce the possibility of having political and party influences affect the process of electing new judges and public prosecutors, the appointment of court presidents, the distribution of cases within courts, or the dismissal of judges and prosecutors. An especially important part of this law, apart from the reorganization of courts through the introduction of new courts and the redistribution of the competencies of the existing ones, would have to be the introduction of a precisely defined system on the basis of which the professionalism, expertness and efficiency of the work of each judge would be monitored.

The adoption of such laws, even if delayed, would quite certainly represent progress and would create a better basis for the speedier and more efficient resolution of the mentioned problems.

The fourth level of the problems in the functioning of the judiciary is the financial position of judges and the judiciary in general. After the institution of the new republican authorities, for some reason the judiciary did not find itself on the list of salary increases, as did the health care and education systems. For instance, according to the budget, only around 130,000 DM have been envisaged for the District Court in Belgrade for the year 2001. Of this amount, only less than half has been paid out. Courts still do not have computers, dictaphones, paper, photocopying machines and other items necessary for everyday work.

The average salary of a judge, depending on the rank, ranges between 250 and 400 DM, which cannot cover even the basic costs of living. The same is true of the salaries of public prosecutors and their deputies.

In a situation when the judiciary is faced with high-risk challenges, such as trials of former politicians, but also financially powerful people, for abuse and fraud, trials for war crimes, for corruption and organized crime, the question is whether judges and prosecutors will be able to resist the pressure, threats and bribery if their salaries remain at the present level.

Judging by previous experiences, one can rightly presume that those judges and prosecutors who performed their duties under dictates, either out of fear for their jobs or because of certain privileges, will not be able honorably to do their job. Those judges and prosecutors who have so far managed to resist all pressures and temptations, will find themselves under even greater pressure, which will probably result in the most professional and moral among them leaving the judiciary.

If all these problems do not start being resolved in September, the republican government will be faced with the total deconstruction of the judicial system, and thus of the state as well. If one also takes into account the citizens' growing dissatisfaction with the undertaken economic and social reforms, one can expects the citizens, in increasing numbers, to try to achieve their rights in the streets.

HCHRS