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Strasbourg, 15 June 2009, OPINION ON THE DRAFT CRITERIA AND STANDARDS FOR THE ELECTION OF JUDGES PDF Print

Strasbourg, 15 June 2009

OPINION ON THE DRAFT CRITERIA AND STANDARDS FOR THE ELECTION OF JUDGES AND COURT PRESIDENTS OF SERBIA

Adopted by the Venice Commission
at its 79th Plenary Session
(Venice, 12-13 June 2009)

 

INTRODUCTION
1. By letter dated 18 March 2009, the Minister of Justice of the Republic of Serbia, Ms
Snezana Malovic, requested an opinion on the (1) draft Criteria and standards for the election
of judges and court presidents and on the (2) draft Rules of procedure on criteria and standards
for the evaluation of the qualification, competence and worthiness of candidates for bearers of
public prosecutor’s function.
2. The present opinion is prepared jointly with the Judiciary and Law Reform Division of the
Directorate of Co-operation of the Council of Europe on the basis of comments by Mr Pierre
Cornu (Switzerland), Mr James Hamilton (Ireland), Mr Jean-Jacques Heintz (France) and Mr
Guido Neppi Modona (Italy), who were invited by the Venice Commission and the Judiciary and
Law Reform Division to act as rapporteurs. Their comments are in documents CDL(2009)088,
089 and 090 respectively.
3. This opinion was adopted at the 79th Plenary Session of the Venice Commission (Venice,
12-13 June 2009) in the presence of the Minister of Justice of the Republic of Serbia, Ms
Snezana Malovic .
.
BACKGROUND
4. The Venice Commission adopted two opinions for Serbia during its 74th Plenary Session
(14-15 March 2008), one on the draft Law on the High Judicial Council (draft Law on the High
Court Council CDL(2008)013 and the Opinion CDL-AD(2008)006) and one on the draft laws on
judges and on the organisation of courts (draft Law on judges CDL(2008)014 and the Opinion
CDL-AD(2008)007). In these opinions, the Commission expressed its concern that the
Constitution of Serbia did not sufficiently support judicial independence and that there was a
risk of politicisation of the judiciary by the election of judges and of the High Judicial Council by
Parliament.1 The draft laws were deemed, in general, to be in line with European standards,
but there were a number of provisions which weaken judicial independence that the Venice
Commission referred to.2
5. On 21 February 2008, the rapporteurs Mr Pierre Cornu, Mr James Hamilton, Mr Jean-
Jacques Heintz and Mr Guido Neppi Modona accompanied by Ms Tanja Gerwien and Ms
Ana Rusu from the Secretariat, visited Belgrade, where they met with representatives of the
Ministry of Justice, the Working Group for drafting laws related to the organisation of the
judiciary and the Judges Association of Serbia.
6. During this meeting, the rapporteurs expressed their concern that the proposed
procedure regarding the reappointment of existing judges would leave open the possibility of
removal of judges from office who had not been guilty of any misbehaviour. The drafting
group explained, however, that there was a problem concerning corruption involving some of
the judges who had been appointed during the previous regime. The rapporteurs
nevertheless felt that the proposals at the time were a disproportionate response to this
problem and that existing judges should not be removed from office unless they could be
shown to have engaged in misbehaviour or were incompetent to hold the office of a judge.
1 CDL-AD(2008)006, paragraph 74 ; CDL-AD(2008)007, paragraph 122.
2 CDL-AD(2008)006, paragraphs 17, 76; CDL-AD(2008)007, paragraphs 49, 52, 82, 112, 114, 120, 124, 128.
- 3 - CDL-AD(2009)023
7. The draft Law on judges at the time provided no guarantee that existing judges against
whom no incompetence or misbehaviour was alleged, would be reappointed. It also contained
a requirement that Parliament be presented with two candidates for each vacancy.
8. The Law on Judges, as adopted on 22 December 2008, states that Parliament elects
first-time judges from among the candidates nominated by the High Judicial Council (Article
51) and one or more candidates may be proposed for each vacancy (Article 50). Permanent
judges are elected by the High Judicial Council (Article 52).3
9. This Law also refers to the criteria and standards for the election of judges and presidents of
courts (hereinafter the “draft criteria on judges”) in its Article 45 paragraph 64, which were
drafted by a working group of the Ministry of Justice, and are the subject of this Opinion
(CDL(2009)091)...

OPINION ON THE DRAFT CRITERIA AND STANDARDS FOR THE ELECTION OF JUDGES AND COURT PRESIDENTS OF SERBIA Adopted by the Venice Commission. PDF

 
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