Institute for War and Peace Reporting | Giving Voice, Driving Change
Politics Sways Serbia's Judges
With its pleasing 19th century architecture, bright blue paint work and peaceful surroundings, the former magistrate’s building in the centre of Zemun seems an unlikely symbol for all that’s wrong with the Serbian judiciary.
But observers say the battle for control of the former courthouse – now decorated with flags of the Serbian Radical Party, SRS, who use it as their local headquarters, is a perfect illustration of the worrying phenomenon that judges in Serbia cannot resist political pressure.
The trouble at the magistrates building began more than six years ago and pitted the SRS against political rivals the Democratic Opposition of Serbia, DOS, with the judiciary caught firmly in the middle.
In December 1998, then rulers of Belgrade’s Zemun municipality, the SRS signed a 30-year lease on the building for a price well below the market rate and all paid in advance.
Many believe the party simply signed the agreement with itself since the company that rented it the building - Zemun Information Business System - was known to be run by officials from the SRS. The party has denied any irregularities with the lease.
When DOS took over in 2000 they wanted the SRS out, saying they gained possession of the building through abuse of power. Eager to please their new political partners, judges at the Fourth Municipal Court told the SRS to vacate the premises, citing irregularities in the lease and financial damages caused to the state by the bargain rent.
Despite four court orders to move out, however, the Radicals resisted the pressure to go while the police simply stood by.
What followed was more helpful judicial intervention - this time from the Serbian Supreme Court, which, under pressure from the SRS to whom the Milosevic-era judges had remained loyal, revoked the original verdict in January 2004 and ordered a retrial. That never happened, because late last year the SRS came back into power in Zemun and the municipal prosecutor soon withdrew all charges against them.
Lawyer Djordje Nedeljkovic, who represented the municipality in the eviction battle, estimates the Serbian government will lose around 2.5 billion dinars (309 million euro) if the SRS hang onto the building until the end of their lease.
When asked to comment on the dispute, a Radicals’ representative said it considers the matter closed since the prosecutor dropped the case.
Observers, however, say the Zemun saga was one of the latest examples of judicial subservience to those in power - a holdover from the days of Josip Broz Tito when a major requirement for any appointment to the bench was Communist Party membership.
MILOSEVIC INTIMIDATES, INFLUENCES
After the collapse of the former Yugoslavia and the rise of Slobodan Milosevic, the traditions started under Tito continued. Judges were intimidated by presidents of courts who assigned politically risky or sensitive cases only to obedient judges who’d benefited from the free apartments and cheap loans granted to them by the regime.
The rigged 1996 elections stand out as a particularly serious example of the influence of politicians over Serbian court decisions during that era.
Unable to dispute the opposition's victory in the local elections, Milosevic ordered the courts to invalidate the poll results, citing voting irregularities throughout the country.
The First Municipal Court obliged, annulling the results in 33 Belgrade municipalities. The Supreme Court then dismissed appeals filed by the opposition bloc Zajedno [Together] against the municipal court decisions.
Mass street protests, which lasted for months, followed and these, coupled with an additional pressure exerted by the European Union, forced Milosevic to adopt a special law abolishing the court rulings that invalidated the election result.
Vesna Rakic-Vodinelic, director of the Institute for Comparative Law, said the participation of the Supreme Court in this process amounted to judicial elections theft. “The rigging of 1996 elections would not have been possible without the participation of judges,” Rakic-Vodinelic told Balkans Crisis Report, BCR.
DOS DOES NO BETTER
DOS, which toppled Milosevic in 2000, did little better and also failed to introduce significant changes within the judiciary.
The judges responsible for the 1996 election rigging were not punished, and the Lustration Act, legislation under which those who collaborated with the former regime and abused human rights are purged from public life, never implemented, though it was actually passed by parliament in June 2003.
The act was supposed to be the basis for the appointment of all officials and candidates for senior positions in the judiciary but lack of political consensus among Serbia’s main parties has proved its undoing.
Lustration has been successful in reforming problematic judicial systems in some countries including the former East Germany.
In this onetime communist state, judges deemed too close to the ruling party or who had collaborated with the state security service were disqualified from serving in the unified German judicial system. About two-thirds of public prosecutors were also replaced. Out of about 3,000 judges who asked to remain, 1,750, 67 per cent, were deemed fit to stay.
But instead of taking similar steps to rid the system of the remnants of the Milosevic era and embark on an uncompromising reform of the justice system, DOS, led by the then prime minister Zoran Djindjic, began a battle to put the judiciary under its control.
The controversial Law on Judges, legislation which regulates their work, was passed stating if parliament failed to approve a candidate put forward by the High Judicial Council - an independent body charged with nominating judges, court presidents and prosecutors - a new one would be nominated by parliament's judiciary committee.
This effectively meant parliament had bypassed the High Judicial Council and given itself sufficient powers to choose its own candidates for these posts.
The Serbian Constitutional Court declared this unconstitutional in August 2002, but during the state of emergency declared after the assassination of Djindjic in March 2003, the judiciary committee granted a request from the ministry of Justice to retire 35 judges, including seven from the Supreme Court.
Some who lost their jobs were holdovers from the Milosevic era and therefore not politically-sympathetic to the new regime. Others were deemed too independent.
The ruling coalition of rightist parties headed by current prime minister Vojislav Kostunica and his Democratic Party of Serbia, DSS, has continued the tradition of exercising political influence on the judiciary and despite paying lip-service to the issue, little has been done to advance judicial reforms since he came to power in 2004.
The beginning of a reform strategy for the judiciary drafted, though never implemented, by Djindjic before he died has been totally ignored.
Ivan Bajazit, a former Belgrade District Court judge, said of the three components needed for an independent judiciary - favourable political climate and political will; proper legal framework; and good human resources and personnel policies - Serbia still has none.
A recent obstacle on the road to reform has been the delays in determining criminal responsibility for politically motivated crimes. The judiciary is dragging its feet over this issue and there is no end in sight to many cases which have been lingering on for years, further undermining the already fragile public confidence in the system.
One example is the ongoing trial of members of the interior ministry-controlled Special Operations Unit, JSO, and various state security agents including former secret service chief Radomir Markovic. They were charged with murdering four officials of the opposition Serbian Renewal Movement, SPO, in October 1999.
This trial, which has exposed the naked brutality of influence and power wielded by Milosevic's repressive apparatus, started for the second time in February 2004 after the Supreme Court quashed the convictions of Markovic and two JSO members and ordered a retrial because of alleged procedural irregularities.
SPO lawyer Dragoljub Todorovic said Milosevic's regime deliberately obstructed the investigation into the murder and those who remain loyal to their former leader are now influencing the trial. "Those who want continuity with the Milosevic's regime have pulled a few strings and got involved there," he said.
The ministry of justice has a national strategy for judicial reform but there has been neither public nor parliamentary discussion on the proposal since it was adopted last September.
When presenting the strategy to the media and the Serbian public in October, Justice Minister Zoran Stojkovic said it involved changing the Milosevic-era constitution and re-electing the country’s judges, a sort of legal lustration to root out bad apples.
It would also guarantee judicial independence from the political process, though the first steps down that path by the new administration when it formed last March weren’t exactly encouraging.
The justice ministry transferred the power to propose, and dismiss, candidates for the position of president of court to a new body, the state-controlled Court Administration Council.
Critics say the idea behind this move was crystal clear – to maintain the influence of politics on the judiciary, as in the old days, but once again through the president of court. Court presidents are powerful people, as they can indirectly influence judges by awarding them promotions and material benefits.
The Court Administration Council was never established thanks to the swift reaction of the Constitutional Court which declared the plan unconstitutional. "This provision … effectively reduced the degree of independence of judiciary," said Svetozar Ciplic, Constitutional Court judge, adding the court had found that the executive and legislative branches of power interfered with the jurisdiction of the judicial branch of power.
Omer Hadziomerovic, a judge in the Belgrade District Court, said the key to the success of any reforms is “strong constitutional guarantees for the independence of judges”.
"You cannot achieve independence of judiciary overnight, even if you adopt the best laws. The whole legal framework is very important,” he said, adding judges should be strong personalities who are familiar with the social, economic, political and cultural environment in which they dispense justice.
Another problem highlighted by Hadziomerovic, who is also a member of Association of Judges, an NGO dealing with reform, is the lack of any real way to discipline judges. At the moment, discipline is supposed to be meted out by a council of nine Supreme Court judges, though they have not punished or dismissed a single person.
Hadziomerovic’s association proposes setting up an independent body responsible for disciplinary matters. Elsewhere, he believes education of those employed in the Serbian judiciary is a particular problem, citing France as an example of a country that offers good judicial training.
"To become a judge in France, you need to go through 31 months of training at the national school for judges, and then there is another level of training before someone is appointed a judge," he said.
Stojkovic agrees that badly educated judges are hampering the reforms. He suggests the current Judicial Training Centre, which is in charge of professional training for judges, could be a basis for a new Judicial Academy modelled on similar schools in Germany and France.
Besides training, Branislav Bjelica, Serbia’s deputy justice minister, told BCR that introducing a judicial budget that is separate and independent from the state budget and giving the High Judicial Council more power and independence are key issues.
Currently the High Judicial Council nominates judges based on information received from lower courts. However, BCR has learned the criteria by which candidates are nominated are unclear. A source close to international circles said members of parliament have complained of receiving insufficient information about candidates from the council. Such a lack transparency in the selection process, say some deputies, opens up a possibility for various manipulations, including political pressure.
About 2.4 per cent of the national budget, around 150 million euro a year, is currently earmarked for the justice system which employs around 14,000 people.
THE EU PERSPECTIVE
Perhaps the main prerequisite for Serbia and Montenegro’s membership of the European Union is resolving the problem of the judicial independence in keeping with European standards.
The EU believes the way a country’s judiciary is structured and functions is key to a smooth European integration process.
It says a credible, independent and efficient judiciary is also important for a healthy business environment and essential if EU internal judicial cooperation is to work.
Though the EU has acknowledged the progress already made in the judicial reform process including the removal a certain Milosevic-era judges, it says when freeing the judiciary from political pressure, particular attention should be paid to the way judges and prosecutors are appointed, promoted or dismissed; the way the court system is organised; the level of professional qualification of judges and prosecutors; their working conditions and the level of their remuneration.
"In Serbia, the judiciary is in a serious crisis and it's facing political pressures," said the Feasibility Study, which Serbia and Montenegro obtained in April giving them the green light to begin talks on EU accession. “The police and judiciary are under pressure, while the independence of the judiciary has been seriously threatened on several occasions and appointments and dismissals of prosecutors have been politically influenced.”
In Slovenia, also a product of the former Yugoslavia’s justice system, the influence of politics on the courts has been largely avoided by allowing parliament to select judges only when they are first appointed. The Slovenian High Judicial Council then makes its own decisions on promoting them from lower to higher courts and on punishments and disciplinary measures without interference from the state.
The Institute for Comparative Law’s Rakic-Vodinelic believes it is also up to Serbia’s High Judicial Council to ensure the government doesn’t exert undue influence on the judiciary. This could be difficult, since critics insist the council is at the moment firmly under the sway of the justice ministry. They cite the selection of Vida Petrovic-Skero as president of the Supreme Court. Petrovic-Skero was put forward by the justice minister.
"The High Judicial Council should bear the brunt of the struggle for achieving the independence of judiciary,” said Rakic-Vodinelic. “This body should allow the judicial authorities to become independent and equal with respect to other departments of the state administration."
The difficulties in establishing an independent judiciary in Serbia are a serious obstacle on its road to the EU, which insists the existence of an independent judiciary is a key condition for the opening of membership negotiations.
All involved in the process say the reforms that are necessary to create, maintain and strengthen the judicial system will take time.
However, they must be addressed without delay.
Sasa Gajin is a research associate at the Institute for Comparative Law. Aleksandar Roknic works for the Belgrade daily Danas. Dragana Nikolic-Solomon is Serbia and Montenegro BIRN director. Svetlana Jovanovska is a BIRN correspondent in Brussels. BIRN is a localised IWPR project.
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