Europe as a promoter of Rights Dragana Boljević General Secretary of MEDEL President of Judges’...

Europe as a promoter of Rights

Dragana BoljevićGeneral Secretary of MEDELPresident of Judges’ Association of Serbia

27 March 2015

Serbia – what is that?

Country from VIII to XV century


Kingdom in 1217


Kingdom in 1217Nomocanon (Constitution)

in 1219



in 1219Empire in 1345



in 1219Empire in 1345

Dušan’s Code 1349


Kingdom in 1217Nomocanon (Constitution) in

1219Empire in 1345

Dušan’s Code 1349

paragraph 172 on judges:“All judges are to adjudicate by the Code,

rightfully, as it is written in the Code, and not to adjudicate by the fear of Empire of mine”


Kingdom in 1217Nomocanon (Constitution) in

1219Empire in 1345

Dušan’s Code 13492 important battles halt Turkish invasion towards

Europe for 1 century – Marica in 1371 and Kosovo in 1389

Country from VIII to XV centuryKingdom in 1217

Nomocanon (Constitution) in 1219

Empire in 1345Dušan’s Code 1349

2 important battles halt Turkish invasion towards Europe for 1 century – Marica in 1371 and

Kosovo in 1389Serbia loses its statehood in

1459

Regained statehood – XIX century


• liberation uprisals in 1804 and 1815


• liberation uprisals in 1804 and 1815• 1815 becomes principality


• liberation uprisals in 1804 and 1815• 1815 becomes principality• 1882 becomes kingdom


• liberation uprisals in 1804 and 1815• 1815 becomes principality• 1882 becomes kingdom• 1912 expels Turkey from the Balkan and

restores Kosovo



restores Kosovo• 1918-1919 Yugoslavia was being formed

(kingdom)




(kingdom)• 1945 socialistic Yugoslavia, Serbia with 2

regions – Vojvodina and KiM (later on autonomous provinces)






• 1992 dissolution of SFRY






• 1992 dissolution of SFRY• 1992 FRY formed






• 1992 dissolution of SFRY• 1992 FRY formed• 2006 Serbia, after referendum in Montenegro






• 1992 dissolution of SFRY• 1992 FRY formed• 2006 Serbia, after referendum in Montenegro • 2008 secession of Kosovo (NO referendum)

Serbian Constitution from 1835

– 10th in Europe


– 10th in EuropeSerbian Civil Code from 1844 – 3rd in Europe after French and

Austrian – 4th in the world


– 10th in EuropeSerbian Civil Code from 1844 – 3rd in Europe after French and


Co-founder of the League of Nations

Serbian Constitution from 1835 – 10th in Europe

Serbian Civil Code from 1844 – 3rd in Europe after French and


Co-founder of the League of Nations

Co-founder of the United Nations

(as part of Yugoslavia)

Basic principles of contemporary statehood

• Self forming of the state – with no aid of great powers, even with their opposition

• Social equality (Turkish enslaving left no room for higher class)

• Libertarian spirit

Serbia is Europe!

SERBIAN CASE STUDY

Europe as a promoter of rights

Constitution 1990 – discontinuity

• Instead of Socialist Republic of Serbia – Republic of Serbia

• Separation of powers• Equalisation of all types of property

(beginning of privatization)• Political pluralism• Judges - tenure until retirement

(instead of 8 year-tenure)

Time of crisis – 1990s

• Dissolution of Yugoslavia• Wars in Croatia and Bosnia • Serbia in sanctions• Unprecedented inflation in Serbia• Departure of 1/3 of judges from

judiciary – 800 judges• Judges that remained – low income,

overburdened and demoralized

Judiciary between 2000 and 2009

• More than 2/3 of judges elected or promoted• Supreme Court – more than 80% of judges promoted• Wish of “new powers” to influence judiciary

– Permanent campaign against judges – Judges were to blame for all flaws – Re-election as a miracle solution

• 2006 Constitution – continuity (no re-election of judges)• However, re-election considered as prescribed by the Constitution

– Inadequate comparisons with “transitional” countries:• Establishment of new social systems and/or new states• New constitutions • Lustration in eastern German judiciary• Tenure of judges prolonged till retirement • Re-election of judges

These processes have occurred in Serbia after the Constitution 1990

No need for those solutions in Serbia of 2000s

Excuses for reelection:• In 1990s Milošević imposed “his own” judges• Judges are under political influence• Judges are inefficient• Judges are corrupt

Excuses were incorrect – one of proofs: grass-rooted establishing of Judges’ Association of Serbia (JAS)

• 1996 local elections fraud• Some judges justified this fraud by their decisions • “I don’t accept!” • 7 April 1997 establishing of Judges’ Association of Serbia

o 600 members out of 2400 judgeso No official status giveno Dismissal of most prominent members

o 3 in 1999o Several dozen in mid-2000

o Attempt to close Judges’ Association

• 2001 re-establishment of the work o Membership tripled o Official status obtained

•JAS is a member of:o Magistrats européens pour la démocratie et les libertés – MEDELo International Association of Judges - IAJ

JAS achievements:

• 1997 Ethical code • 2001 JAS 50-50 co-founder of Judicial Training Centre with

the Government of Serbia • 2003 Standards of judicial ethics; Ethical Committee• 2005 JAS drafted basic principles of the reform of judiciary

(a year before those of the Government)• Promoter of disciplinary system and evaluation of judges’

work (eventually implemented in the Law, but in fact misused)

• Strongest promoter and supporter of acquis• Awards given to the president of JAS

– Person of the year 2007 for the Rule of Law by OSCE– Most-European person 2011– Knight of profession 2013

are in fact recognition of JAS’s work.

However,The reappointment 2009

• Prescribed by the 2008 Law on Judges • Judges were obliged to apply for the appointment (“election”)

otherwise their (already permanent) tenure will cease • Application in July 2009

– 5 minutes per candidate – No transparency– No contradictory procedure

• Results in December 2009 – 837 judges not elected (1/3 of all judges)– Personal data abused (not elected ones with lawyer spouses)– Secret service data abused – The same judge appointed for several different courts (in several

cases)– Deceased judge appointed– No decision – No legal remedy

The review of the reappointment 2011/2012

• Change of Law on Judges – December 2010– Retroactivity – Legal remedies of non-reappointed judges

already filed to the Constitutional Court declared as new, so far not existent, legal remedies

– Constitutional Court is to transfer all those cases to the High Judicial Council (HJC)

–HJC is to decide on those legal remedies (on validity of its own decisions)

–HJC is to adopt the rules for the review


• Judicial elections for HJC – March 2011–HJC – 11 members

• 3 ex officio (President of the Supreme Court, Minister of Justice, Chair of Parliamentary Committee for Judiciary)

• one representative of Bar and one professor of the law faculty

• 6 judges

– Elections of 6 representatives of judges • No voting rights for 837 judges (whose legal status was

not resolved)• More than 900 judges elected as from 2010 voted

• “Blood cell count” of judiciary totally changed


• Rules for the review – new standards for the judges’ work for before 2009 retroactively introduced

• Simulation of fair procedure – conducted as to fortify 2009 dismissal decisions (only 17% of them quashed)

• July 2012 Constitutional Court annulled all HJC review decisions

• 642 judges dismissed (not reappointed) in 2009, now reinstated

What did Europe do?

What did Europe do?

• As from 2003, post-monitoring of Council of Europe• As from 2002 EC Progress Reports on Serbia• Even though in fall 2008 draft law on reappointment

were made public– JAS informed Venice Commission, but no opinion of the VC was

issued– EC Enlargement Commissioner has been informed by JAS on risks

of the reappointment – If EU did not give green light to the reappointment, it did not give

red either – No reaction of EC

• Certain regularity in relations EC – Serbia was evident:– Whenever EU had certain political demands from Serbia, it

insisted on the Rule of Law– Whenever Serbia fulfilled certain demands, EU would “forget”

about the Rule of Law until next occurrence – This relation still remains – now related to the implementation of

the Brussels Agreement in terms of judiciary in Kosovo

Eventually, the reaction of the EU – February 2010

• Strong joint reaction of judges’ and prosecutors’ associations and public following the reappointment in late December 2009

• EU mission in February 2010 to review on-goings in judiciary

• Based on report of the mission, EU sent a warning letter demanding for overcoming of flaws

• By mid-December of 2010 no solution found

Yet another turnover in terms of resolution

•By the end of December 2010, the Law on Judges amended

–Retroactive alteration of legal remedy as previously mentioned Letter of President of the

December 2010

“Until the review is completed, any further consolidation of the situation resulting from the reappointment procedure should be avoided.”

European Commission

January 2011

with the amendments to the law, the authorities „made a compromise and an important step toward correcting the situation, bearing in mind the shortcomings of the reappointment process and the elapsed time that to some extent already consolidated the situation.“

Adoption of the rules for review of the reappointment

• At the meeting which lasted from 9am until 1am next morning

• Retroactive criteria for the review rules adopted in May 2011

• In spite of opposition of JAS, rules were presented as joint achievement of HJC and JAS

Arresting of Ratko Mladić

several days on, followed by arresting of Goran

Hadžić

JAS press release: “burden of responsibility for implementing the Rules that are based on arbitrariness and non-objectivity shall also fall on the European Commission” In order to achieve certain interests (to get Serbia to cooperate with the Hague Tribunal, or to recognize the secession of Kosovo) EU "traded" Fundamental Principles and rights defined in the Copenhagen criteria, among others - stability of institutions guaranteeing democracy, the rule of law and human rights.

Europe as a real promoter of rights

• Fortunately, Europe is not just the institutions

• Europe is the people – intelectuals, experts and their associations led by:– no prejudice

– willingness to denounce prejudice

– the principle of equality

– the right of everyone to the acquis

• There was no expert who thought differently about the reappointment as presented here

•CCJE adopted 3 declarations on Serbia – 2008, 2010, 2012:

„Reform of the Judiciary in Serbia where it identified the

process of Reappointment Process of all Judges in Serbia

including judges who already had offices with permanent tenure as

being in conflict with international and European

standards“

• IAJ and EAJ – several resolutions on Serbia and addresses to EU Institutions:

- „Already twice we addressed you and other European authorities to react on these developments. We are not informed if there was no reaction coming from the European level – at least you assured us that the Commission will observe the process and its outcome – or if Serbian authorities simply ignored your interventions, - possibly encouraged by the fact that the last progress report stated that there was progress in the judicial field. […] - One has to consider the starting point of the problem. From the very beginning the re-election process, which included all judges even those with permanent tenure of office, was not in line with international standards“

• Dutch foundation Judges for Judges – numerous various activities including initiating of parliamentary question

Progress Report on Serbia 2011:„The review of judges has been so far conducted in satisfactory manner. Despite some procedural shortcomings, majority of decisions were generally tasks in line with guidelines... everything will hopefully turn well“

Report of EU experts on the review of the reappointment: „The entire review process was conducted only decision to satisfy form and is a school book of travesty of justice”

The question raised the issue of functioning of EU institutions and their mutual trust in order to be sure that the proper decisions

are to be adopted

However, the most important support came from MEDEL

• Vito Monetti, President of MEDEL at the time, was in Belgrade already in January 2010

• MEDEL’s review mission in February 2010

• MEDEL helped to establish communication with José Manuel Barroso, then President of EC

• Numerous declarations and addresses to various EU/CoE institutions

• Meetings with EC officials related to Serbian issue

• Audit of Serbian judiciary in 2012

MEDEL Audit of Serbian judiciary in 2012• Prepared as from November 2011 • Simon Gaboriau and Hans Ernst Boettcher engaged as independent

experts– First of all, studied Serbian legal acts

• April 2012, six days of meetings in Belgrade– Press conferences that followed the meetings– Written report on Audit

• Written report presented at the international conference in June 2012– „Even after the completion of the audit, the reasons for the implementation of the

"general elections" and the reasons why certain judges and prosecutors were dismissed remain unknown because there was no lustration“

– „Proceedings before the HJC/SPC did not involve corruption and a very small number of cases discovered ethical failures; decisions taken on the basis of performance statistics... are unconvincing because the available data are incomplete and of poor quality, and the quality of the judges’ performance cannot be reduced to simple statistics“

– „Such a situation led to a major disruption in the functioning of the entire judicial system…“

• Written report sent to all relevant addresses in Europe– Written report circulated and exchanged amongst European institiutions and used as the

basis for further analysis and recommendations

• Meeting with EC officials – September 2012– November 2012

• Recommendations for resolution in judiciary to the Minister of Justice of Serbia in December 2012

• MEDEL joint activities with Dutch foundation Judges for Judges, CCJE and IAJ related to Serbian issue

The role of Europe as a promoter of rights is multi-valued and complicated.

European institutions, on one side, are led by the political agenda and their own priorities that occasionaly coincide with the commitment to the acquis.

Experts and their bodies and organisations are always led by the acquis. Unfortunately, they are not decision-makers.

Implementation of the European acquis and mutual trust among judges across Europe should remain permanent and common aim for everyone in Europe.

Thank you for your attention

Europe as a promoter of Rights Dragana Boljević General Secretary of MEDEL President of Judges’...

Documents

Transcript of Europe as a promoter of Rights Dragana Boljević General Secretary of MEDEL President of Judges’...