Judicial Reform in Serbia and Negotiating Chapter 23 - a Critical Outlook (original) (raw)
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10.5937/pravzap0-6011 = Judicial reform in Serbia and negotiating chapter 23: A critical outlook
Pravni zapisi, 2014
A sound and independent judiciary is a precondition for accomplishing the rule of law. Sound judiciary and citizens' trust in it are of critical importance in any state. However, the attainment of true judicial independence is a task faced both by old democracies and transition countries. For countries facing the challenge of EU accession, such as Serbia, good judiciary is not only an immanent value to be obtained, but will also be a key issue during the negotiation process. Since the adoption of the new constitutional framework in 2006, Serbia has embarked on the task of improving its judicial system. Unfortunately, this process was carried out under strong political influences, and had a devastating effect on the Serbian judicial corps, at the same time undermining any trust citizens had in the judicial force. Following the change of the political majority in the Parliament and the changes in government, the Serbian Ministry of Justice has undertaken the task of formulating a new Judicial Reform Strategy and Action Plan for its Implementation, which will be the core instruments to be used in the attempt to attain the two above-mentioned objectives: establishing sound and independent judiciary and meeting the relevant EU accession benchmarks. In this paper, the authors will give their critical account of the Serbian National Judicial Reform Strategy 2013-2018 and the Action Plan for its Implementation, identifying its major deficiencies and drawbacks. The authors will also analyse the planned and implemented changes of the Serbian regulatory framework.
Strategic Approach to the Judicial Reform in Montenegro: The Current State of Play and a Way Forward
The dynamics of modern legal order, 2024
More than two decades have passed since Montenegro introduced the strategic approach to judicial reform. The quality of policy documents, but also the intensity of reform processes varied over the time, being intensified mostly when the strong political support to Montenegro EU accession processes existed. Considering the importance of the present reform momentum, as for the future of Montenegro judiciary as for its EU accession processes, in this paper, the authors address the main findings on the current state of play judicial reform in Montenegro. The paper also provides the recommendations on the necessary steps to be taken in order to foster those processes towards a full fulfilment of the Interim Benchmarks (IBMs) in Chapter 23 and receiving the Interim Benchmark Assessment Report (IBAR), since this is the precondition to obtain the closing benchmarks and to enter the final stage of negotiations in Chapter 23.
ORGANIZATION OF THE JUDICIARY IN THE REPUBLIC OF SERBIA IN THE CONTEXT OF CONSTITUTIONAL AMENDMENTS
2017
Responding to the public invitation for submittal of proposals for amendment of the Constitution, published on the Web page of the Office for Cooperation with Civil Society, the Institute of Criminological and Sociological Research, the Serbian Association for Criminal Law and Practice, the Civic Organization Europius, and the Alumni Club of the Judicial Academy, as a member of the Rule of Law Academic Network - ROLAN initiative, have made the analysis of relevant standards with proposals of possible amendments of the Constitution. As the framework of the analysis and proposals, the issues were taken which were identified, in its recommendations within the Screening Report1 , by the European Commission (hereinafter: the EC), as well as others, substantially connected with them, with which the Venice Commission dealt in the opinions on the 2005 Draft Constitution of the Republic of Serbia 2 as well as on drafts of relevant judicial laws. When preparing the document, with the consent of all the authors who are the members of the above-mentioned organizations, parts of their formerly published and unpublished analyses, studies, and scientific articles were used, without specific references. As the source of the EU standards in the subject area, several dozens of international documents were used, adopted by the relevant bodies of the United Nations (hereinafter: the UN), the Council of Europe (hereinafter: the COE), and the EC. Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on independence, efficiency and responsibility of judges, is no doubt the key source of standards, which is already visible from the actual preamble, which stipulates that when adopting the text of the recommendation, all the relevant sources of standards of the COE, the UN, the CCJE, etc., were taken into consideration.
The Rule of Law and Constitutional Changes in Serbia
Krivično zakonodavstvo i funkcionisanje pravne države (Criminal Legislation and Functioning of the Rule of Law), (Simović, M. ed.), 2018
Abstract. “The rule of law, not rule of men”, is the sentence frequently used to express one of the main principles that serve as a milestone of modern democracies. From ancient Greeks to modern legal theory, the rule of law principle increased its importance from basic guaranties established to protect citizens from unlimited power of sovereign to modern concept based on separation of power, whose synergy is framed by checks and balances mechanism. The basic pattern of the rule of law is nowadays consisted in constitutions of numerous countries all around the world, but also recognized as an accession and membership criteria by European Union. The author analyzes an issues of mutual balancing three branches of power in the context of constitutional changes in Serbia requested by the European Commission in the process of accession negotiations for the membership in EU. The author puts in the focus strengthening constitutional guaranties of judicial independence, accessing the draft Constitutional Amendments proposed by Serbian Ministry of Justice. Key words: rule of law, constitution, separation of power, check and balances, judiciary
Conference Proceedings:THE NEXT SEVEN OF THE EUROPEAN UNION Reports from the Seventh International Scientific Conference of the European Studies Department, Faculty of Philosophy at Sofia University “St. Kliment Ohridski” May 2020, 2020
In accordance with the obligations undertaken in the process of the accession to the European Union, the three candidate countries in the Western Balkans have initiated or undergone the process of changing their constitutional acts in order to align them with the requirements stemming from Chapter 23 Judiciary and Fundamental Rights. The paper aims to analyse how Montenegro and Serbia approached this commitment as an integral and essential part of the Action Plans for Chapter 23, while Albania did it as a part of the preparation of the country to receive the candidate status and the opening of accession talks. Subsequently, the paper shows that during the drafting process, the three states were guided by the standards defined by the Venice Commission in its opinions and proposals as well as the EC views received within consultative processes they have undertaken. It also points out the differences in the approach to the content of the changes by the European Union and the Venice Commission in the three cases. While Serbia still has to implement these changes, this paper also presents the diverse experience in Montenegro since 2013 and Albania since 2016 in relation to the implementation of the Constitutional amendments in practice and the effects it has had. Furthermore, the paper discusses the effects of the Constitutional reform in the light of the Enlargement Policy considering the latest developments and the fact that the Rule of Law is an essential part of these processes and the EU requirements. Finally, the paper concludes that the Venice Commission, invited by the European Commission, has provided the three states with its opinion guided both by technical, but also political principles, which, as an effect, has produced a diverse approach to how certain elements of the constitution treat the independence and autonomy of the judiciary within the process of integration in the EU.
The EU’s ‘new approach’ is a bold attempt to learn the lessons of previous enlargements and to avoid having to initiate a Cooperation and Verification Mechanism after accession. It rests on the principle that issues relating to the judiciary and fundamental rights (Chapter 23 of the acquis) and justice, freedom, and security (Chapter 24) “should be tackled early in the accession process and the corresponding chapters opened accordingly on the basis of action plans, as they require the establishment of convincing track records” (European Commission 2011b: 5). This study shows that the EU has indeed learnt a number of lessons from previous enlargements and has gradually applied these in its dealings with candidate and potential candidate countries of the Western Balkans. Most notably, the new approach has placed greater emphasis on supporting change in practice rather than just legal compliance. Local stakeholders, including civil society organizations, have been engaged in dialogue and monitoring. It is too early to tell whether the new approach is triggering a long-term transformation of judicial independence, but the EU has clearly eschewed short-termism, an emphasis on formal compliance, and elite-led reforms in favor of a strategy based on ownership, inclusion, and gradual and verifiable change. However, despite clear evidence of progress in all of the cases studied, the research highlights serious and persistent gaps between European standards for independence and impartiality, and the realities on the ground. These challenges are compounded by a general distrust amongst citizens regarding the work of the judiciary, particularly when important decisions are made behind closed doors. A strong, verifiable track record of adjudication without external interference is required to convince people that there has been a break with the politicized judiciaries of the past. However, in a quest to bolster independence, it is not sufficient for the EU and other external agencies to simply encourage the judiciary to work in isolation from the executive and legislative branches of authority. Political (and party) interference is undesirable, but democratic checks and balances are essential. In its pursuit of independence, professionalism and efficiency, the EU needs to be careful that the reforms and initiatives it pursues in the Western Balkans do not lead to an accountability deficit. Moreover, there is a clear risk that a more powerful judiciary, operating with increased autonomy, will exacerbate rather than reduce the threat of political interference. Judicial Independence in the Western Balkans: Is the EU’s ‘New Approach’ Changing Judicial Practices?
This paper examines the extent to which EU-driven institutionalisation of the judicial councils has been successfully operationalised to deliver the anticipated results regarding judicial independence as well as the influence of intervening factors such as the determinacy of conditions, historic legacies and informal practices. By analysing the case of Macedonia, it argues that the establishment of judicial councils has not met the normative values and expectations that they were set to achieve through the judicial reforms. The paper detects four general negative effects of the ‘European model’ of judicial councils: (1) premature introduction without paying due consideration to the actual context in the respective countries, (2) increased exposure of the judiciary to both internal and external pressures induced by newly established institutional avenues, (3) further compromising of individual independence of judges, and (4) reduced transparency of judicial self-governance.
„POLICIJA I PRAVOSUDNI ORGANI KAO GARANTI SLOBODE I BEZBEDNOSTI U PRAVNOJ DRŽAVI“ Police and Judiciary as a guaranties of the liberty and security in the Rule of Law, Police Academy & Hanns Seidel Stiftung, 139-148, 2017
Judicial Reform in the Republic of Serbia got a new context by opening Chapter 23 in accession negotiations with the EU in mid-2016. In that moment Serbia took over the obligation to implement the detailed Action Plan in order to strengthen its normative and institutional capacities and ensure the rule of law. Having in mind that judiciary has the crucial role in that process, the dynamics and quality of its reform in previous period should be considered as the one of indicators of Serbian readiness to meet EU standards in this field. Establishment of the efficient and sustainable mechanisms for monitoring and evaluation of reform activities enabling continuous and timely prepared data on reform results as a solid ground for taking corrective measures in order to speed up and improve quality of the reform process. The significant progress has been made in this regard through appointment of special temporary expert bodies in charge for reform monitoring and evaluation. The initial steps was made through the work of the NJRS 2013-2018 Implementation Commission but more visible progress could be found in results of the Council for implementation of the Action Plan for Chapter 23 established by the end of 2015. For the first time, detailed data on reform results are quarterly publicly available in Serbian and English. However, among others, sustainability of the achieved dynamics and quality of the process remains an issue, especially having in mind austerity measures that prevent the Government from long term engagement of high quality staff.
2017 Global Review of Constitutional Law - Country Report on Serbia
2017 Global Review of Constitutional Law, 2018
In 2017, Serbia has kept its proclamatory EU-membership-oriented policy. During 2017, six negotiation chapters with the EU have been opened (chapter 6, company law; 7, intellectual property law; 20, enterprise and industrial policy; 26, education and culture; 29, customs union; and 30, external relations) while the Ministry of Justice, in the second half of the year, started the first preparatory activities aimed at amending the Constitution in order to comply with EU requirements related to improving the independence of the judiciary (negotiation, chapter 23). All critical remarks addressed to the state of the judiciary by the European Commission in its Serbia 2016 Report remain fully relevant, while the absence of substantial national political debate on major political and legal issues – as well as the fact that, according to the Reporters Without Borders’ World Press Freedom Index 2017, the country has fallen seven positions regarding media freedom – allows the conclusion that liberal democracy was certainly not on the rise. There is no doubt that constitutional reform will remain the main issue in 2018.