The Judicial Reform in Serbia in Relation to the Venetian Concept of the Rule of Law

The Judicial Reform in Serbia in Relation to the Venetian Concept of the Rule of Law Presented by: Prof. Dr. Petrov Date: 13 October 2023 Introduction -Traces Of Judicial Independence In The Serbian Constitutional History And A Recent Failed Attempt Of Judicial Reform - The Sretenje Constitution from 1835 - proclamation of judicial independence; - The Constitution of Kingdom of Serbia from 1888 a classic determination of the independence of the judiciary in the constitutional monarchy; - The Constitution of Republic of Serbia from 1990 - proclamation of the rule of law; The Constitution from 2006: • The permanency of the judge's function curtailed by „the probationary mandate" of judges; • - 2) deconstitutionalization of the grounds for the termination of judicial office. The so-called reform of the judiciary (2008-2010) - „a state of confusion in the Serbian judiciary" (J. Trkulja). The general reelection of judges, de facto lustration of judges, i.e., the unconstitutional political, cleansings" of the judiciary. The independence of judiciary in the VC Rule of Law Checklist - Rule of Law Checklist as an identity card" and VC constitutional document in the sphere of the rule of law; a synthesis of the multi-decade contribution of the Commission to the definition and implementation of the rule of law. „The banchmarks" of the rule of law are: A. Legality; B. Legal certainty; C. Prevention of abuse (misuse) of powers; D. Equality before the law and non-discrimination; E. Access to justice; - the Checklist, available to all stakeholders international organization, national authorities and civil society, is constantly evolving. The reform of the judiciary in Serbia in the VC „mirror" Until 2021 limited influence of the VC: • a) the Opinion on the Constitution of Serbia from 2006; • b) the VC Opinion on draft constitutional amendments in June 2018; the Memorandum of the Secretariat on the Compatibility of the Draft Amendments to the Constitutional Provisions on the Judiciary in October 2018; - The "new beginning" of the constitutional reform of the judiciary in December 2020; the Assembly adopted a Proposal to amend the Constitution in June 2021; the text of the constitutional amendments determined by the Parliamentary Committee was submitted to the VC; - In the process of amending the Constitution, two standards were reached: 1) Public hearing; 2) the VC was actively present and openly consulted; - Approval of the constitutional amendments by the citizens in the referendum on January 16, 2022 after their adoption by the National Assembly; - The revision of the Constitution proclaimed on February 9, 2022; Judicial laws adopted a year later (February 2023). The constitutional amendments from 2022 completely replace the part of the Constitution from 2006 concerning the judiciary: - a) The first systematic change - the return of the permanence of the judicial office as an absolute constitutional principle; - b) the second systemic change - the method of electing judges. Judges are elected to a permanent position and that is the competence of the HJC; - c) the HJC as a constitutionally potent body. The competences related to deciding on the positions of judges, presidents of courts and lay judges specified in the Constitution. The HJC has 11 members: six judges elected by the judges, four prominent lawyers elected by the National Assembly and the President of the SC. Prominent lawyers elected by the National Assembly with the votes of two-thirds of all deputies. If the National Assembly does not elect all four members within the deadline specified by law, the remaining members are selected by the Commission from among all other candidates who meet the conditions for election. The Commission consists of: the President of the National Assembly, the President of the CC, the President of the SC, the Supreme Public Prosecutor and the Protector of Citizens (Ombudsman); - d) the fourth systemic change the stronger guarantees of internal independence of the public prosecution as well as abolition of the category of deputy public prosecutors.. In the Opinion on the draft judicial laws from October 2022, the Commission identified four key challenges that must be systematically addressed: - 1) The "generation gap" between judges; - 2) the material conditions performing the function of a judge; for - 3) "the strictly hierarchical organization of the judiciary, with a strong notion of supervision, hierarchy between higher courts and lower courts, and multiple forms of evaluations and controls"; - 4) the change, that is, the building of the rule of law legal culture. Conclusion - Factors of success: • 1) Time-always inevitable; • 2) the involvement and dedicated work of all stakeholders in the process; • 3) the responsibility of everyone, first of all the highest state authorities and especially the judicial councils. A responsibility to solve problems, not to "photoshop" them; - The reform of the judiciary in the "Venetian mirror" will remain like the "vain queen" from the fairy tale about Snow White and the Seven Dwarfs, if its bearers "do not take a good look" at the "Serbian political and legal mirror" and at the vision of universal justice, which is the only and true rule of law.