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The basic request for changes to the Constitution on the judiciary dates back to 2007, when the Venice Commission – analyzing the Serbian Constitution – concluded that in order to harmonize our rules with EU rules, it is necessary to eliminate double political influence over the judicial power.
And many other circumstances, such as the escalation of the coronavirus pandemic, the large number of sick or self-isolating judges, lack of time and instruments, but also the inability of candidates to present themselves adequately and equally in each court and face their work program proposals. in relation to the work of the HJC, but also the development policy of the judiciary in Serbia in the next five years, will negatively affect the conditions and the environment in which the elections for the members of the HJC will take place.
Some courts and court presidents were unwilling to do so, but also many judges, who, due to the danger of contagion or obligation, but also under various other excuses, did not come to present candidates in many areas.
Some candidates state in their submissions that the question is whether authorized election observers, p. Eg The OSCE Mission in Serbia, precisely because of the danger of the epidemic and its rules, abandoned the observation of the electoral process, and that this effort, in cooperation with the OSCE Mission in Serbia, was accepted by the Committee on Lawyers for Human Rights (YUCOM).
Although the Electoral Commission concluded that compliance with epidemiological measures is mandatory, it is also possible to go to the homes of judges who have contracted the coronavirus or are in self-isolation.
That number, as we have heard in some courts, p. Eg in the Belgrade Misdemeanor Court, it is not small, so there should not be a different practice in the application of this charge, since according to the Association of Public Prosecutors and Deputy Prosecutors of Serbia, it happened in some cases during the election of the elected members of the Council of State Prosecutors.
This probably contributed to one of the candidates at the level of basic and misdemeanor courts, a judge of the Second Court of First Instance in Belgrade, who is also the Chairman of the Board of Directors of the “Forum of Judges of Serbia”, withdrawing his candidacy three days before the elections.
Let us hope that there are no more cases of this type, as was the case in the previous elections of 2016 for a judge of a member of the HJC, representatives of appellate court judges, when of four candidates, two candidates withdrew their candidacies, one just before the vote. There has been a phenomenon that experts call disabling, the so-called dispersion of voices.
That the government wants to interfere in the election of judicial officials, perhaps even more directly than before, we have seen in the process of electing the members of the Council of State Prosecutors, in which the Association of Prosecutors and Deputy Prosecutors of Serbia he called the then Secretary of State. Prosecutors are influenced to select certain candidates, which the official did not deny, and the declaration of the Ministry of Justice on that occasion was reduced – to put it simply – that constitutional changes are being carried out in the judiciary.
Those who know the situation in the Judiciary draw the attention of the general and judicial public and that certain candidates for HJC members are privileged in the media, not local, but also in those of national frequency, and in the public service , because they have been given the opportunity of a pre-electoral and electoral period, the appearance in prime time of television with national frequency, with different functions and occasions, and other candidates could only dream of it.
Others have a large presence in social networks and sites, so the individuals who follow these processes, and my littleness, wonder if it exists and what is the background of these phenomena
What are the mechanisms and interests that make these inequalities possible, why don’t electoral organizers guarantee them equally to all candidates?
In the end, will this, in the case of the election of a candidate as a member of the HJC, initially undermine or perhaps enhance the unity and solidarity expected of the members of the HJC in the protection of the fundamental interests of the judiciary and, above all, the independence, autonomy and impartiality of the courts and judges? .
Under these conditions, it remains for us to study well what 16, out of a total of 24 candidates for members of the highest organ of the judiciary, wrote in their programs that were published on the website of the Supreme Council of the Judiciary.
What is written in them about the attitudes of the candidates on the constitutional changes initiated by the Ministry of Justice, on strategic and systemic documents – judicial laws, is especially important because these issues will be the greatest challenge and examination for the future HJC.
The results of the analysis of these programs, which were published on the Open Doors of Justice portal, are worrying, but not surprising for those who are well aware of the situation in our judiciary. Because when documents on systemic issues of the higher bodies of the judiciary are “forgotten”, p. Eg in the Judicial Development Strategy 2020-2025. or when it adopts its opinion without objection on the HJC Chapter 23 Revised Action Plan in a telephone session, and on July 10, 2020, both documents are adopted by the so-called technical government, despite the appeal of the National Convention For the EU not to do so or when the highest judicial bodies sidestep the issues of inevitable constitutional changes in the judiciary, it is not surprising that the judges-candidates for the highest positions in the judiciary lack clarity and maturity opinions on these issues?
Only four or five HJC member candidate programs in brief deliberations show a courageous attitude towards the above.
In all these programs, there is no review and reference to an extremely rich discussion and numerous documents through which, taking into account the working version and the reform project of the Ministry of Justice to the Constitution, not only the HJC (twice , before and after the Opinion of the Venice Commission), but also the Supreme Court of Cassation, DVT, numerous courts and professional associations of judges and NGOs of the profession, but also the most prominent people in the academic community.
The international expert public also reacted: the Advisory Council of European Judges of the Council of Europe, the Advisory Council of European Prosecutors of the Council of Europe and others.
Furthermore, none of the authors of these programs, except in a presentation video, refers to the certainty that a greater monopoly of the executive-political power in these processes could lead to results and consequences equal or similar to those of “rounding” judicial reform through the re-election of all incumbents. judicial functions in 2009.
For all the above, I make a new appeal to all colleagues – judges, to think about everything in time and decide informed and aware that the five elected judges, together with another, and the interim president of the Supreme Court of Cassation, will decide on justice in the Judiciary. or perhaps on the fate of individual judges.
In any case, you will have the opportunity to accept or not the glove of fighting for the realization of the rule of law and the division of power in our Republic, on the development of the judiciary in Serbia, which is under great pressure.
I am referring to many years of activity and attempts by some representatives of the executive-political authorities to review the original positions of the Judiciary on the issue of constitutional changes and to find an ally among our colleagues, for various reasons and partial, unethical reasons , but also illegal.
In this situation, which is difficult and complex for the whole of society, despite the fact that our past knew the most difficult, taking into account that the elections will obviously be held under such conditions (no one, not even the one who writes these lines, has officially initiated and proposed its postponement). It would be great if the judges acted the way judgments are rendered and the way our best and most conscientious predecessors acted, without any influence, even if he was the presiding judge, with knowledge, attitude and integrity.
If that is not the case, I believe that everyone in the judiciary, but also the citizens of Serbia who are waiting for a legal, fair and efficient judicial decision, will find themselves in a further big problem.
The author is a judge of the Novi Sad Court of Appeal and a member of the High Judicial Council.
Text taken from the Otvorenavratapravosudja.rs portal
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