Serbia’s Constitutional Amendments – Towards Depoliticisation of the Judicial Branch of Government or Preservation of the Current State?

At the eighth special session held on 30 November 2021with the votes of 193 deputies, the National Assembly adopted the Amendments to the Constitution of the Republic of Serbia. During this session, the Assembly adopted the Draft of the Constitutional Law for the Implementation of the Constitutional Amendments and also the Draft Decision on Calling a Referendum in which citizens will decide whether to accept or reject Constitutional Amendments. The referendum scheduled for 16 January 2022, will address changes to the Constitution on the part of the “Organisation of Government”, i.e., areas of judiciary and public prosecutors well as several other related articles. Given that this is a topic on which citizens remain under-informed, this article critically reviews key envisioned changes, answering the question of whether these Constitutional Amendments truly result in the depoliticisation of the judicial branch of power.[1]

Changes to the Role of the National Assembly – Reduction of the Omnipresent Political Factor

Despite the fact the Constitution of the Republic of Serbia’s was adopted through political consensus in 2006 and confirmed by a majority of citizens in a referendum, immediately after its entrance into force, it became clear that the manner in which it regulates the judicial branch of power is not entirely in accordance with European standards. Specifically, the European Commission for Democracy through Law (Venice Commission) expressed unambiguous concern about the potential politicisation of the judiciary in its March 2007  on the Constitution of Serbia, stating that “the influence of parliament on the judiciary is clearly excessive“.[2] Domestic legal experts almost unanimously agreed with the views of the Venice Commission that the Constitution allowed the Assembly to wield a disproportionate influence over the process of electing and dismissing judges and public prosecutors. As both domestic and foreign experts emphasised the objective constitutional necessity of changing the Constitution to prevent the politicisation of the judiciary, this consensus suggests that the constitution-makers failed to establish long-term constitutional foundations for Serbia.

The suggested changes to the Constitution replace the provisions which grant the National Assembly the authority to elect the President of the Supreme Court of Cassation, presidents of courts, the Republic Public Prosecutor, public prosecutors, and terminate their tenure of office, as well as to elect judges and deputy public prosecutors, thus significantly limiting the Assembly’s authority. Specifically, according to the Constitutional Amendments, the Assembly will be limited to the election of four members of the High Judicial Council and the High Prosecutorial Council (currently called the State Prosecutors Council), as well as the election of the Supreme Public Prosecutor (currently called the Republic Public Prosecutor). A qualified majority is required for their appointments, that is, two-thirds of all Assembly members for members of the High Judicial Council (HJC) and the High Prosecutorial Council (HPC), and three-fifths of all Assembly members for the Supreme Public Prosecutor (SPC). That should ensure that persons appointed to these functions are not elected solely by the ruling parties, but rather as a result of a compromise with the opposition parties. This would prevent the ruling party or the ruling coalition from appointing suitable individuals to these positions, all the while the principle of loyalty and patronage, which currently dominate elections in the Assembly, would be replaced by the principle of expertise.

On the other hand, potential risks associated with this method of election of HJC and HPC members warrant special attention. Namely, provided that the Assembly does not elect the SPC and all four members of the HJC and the HPC within the deadline set by the Law, they will be elected by a commission consisting of the Speaker of the National Assembly, the President of the Constitutional Court, the President of the Supreme Court (acting President of the Supreme Court of Cassation), the Supreme Public Prosecutor and the Ombudsman. Although it is meant to be an anti-deadlock mechanism, there is a reasonable concern, also pointed out by the Venice Commission, that it could become the rule and allow politicised appointments. Even though it is designed to be an exception, in the absence of a political will on the part of ruling parties to seek a compromise solution in collaboration with the opposition, it could potentially foster politicization.

In order to fully clarify this concern, this argument must be linked to the adopted Constitutional Law for the Implementation of the Constitutional Amendments. Namely, Article 8 of the Constitutional Law states that the President of the Supreme Court of Cassation (future President of the Supreme Court) and the Republic Public Prosecutor (future Supreme Public Prosecutor) will continue to hold the office until the expiration of their mandate. Bearing in mind that the current holders of these positions were elected by an absolute majority of the Assembly, as was the Ombudsman, four of the five commission members, along with the Speaker of the Assembly, will be politically appointed. In practice, the attempt of depoliticisation of the judiciary through proposed constitutional changes might be rendered ineffective.

Although it does not appear simple to offer an alternative to this solution – which could simultaneously overcome the potential institutional blockage and depoliticise appointments – the political will of ruling parties to act in the spirit of the Constitution, seeking a compromise with the opposition during the election of the SPC and HJC/HPC members, will remain essential to prevent people loyal to and suitable for the ruling party from being appointed to these important positions. Considering that new articles 151 and 163 of the Constitution, which, among other things, regulate how the Assembly elects members of the HJC and the HPC, leaves room for this issue to be further regulated by law, it should be insisted that this procedure be defined in such a way that guarantees appointment of prominent lawyers of the highest professional and moral qualities.

Composition and Competencies of the High Judicial Council – A Step Towards Depoliticisation

Regarding the composition of the HJC, the Constitutional Amendments provide for a significant reform. Even though this body would still count eleven members, the number of ex officio members is reduced from three to one, those directly elected by the Assembly reduced from eight to four, and the remaining six members would be judges appointed by their peers.[3] Namely, the President of the Supreme Court would be the only ex officio member of the HJC, while the Chair of the competent Parliamentary Committee and the Minister of Justice, are excluded as they do not belong, as representatives of legislative and executive power, to the body which is supposed to guarantee the independence of courts and judges. They will be replaced with two prominent lawyers with at least ten years of experience in legal practice whom are elected by the Assembly. Despite the fact the number of lawyers will increase from two to four, they will nevertheless remain a minority next to six judges and the President of the Supreme Court. Most importantly, although this body will remain numerically unchanged, all six judges of the HJC will be selected by judges, unlike before when the Assembly had this role.[4] Such configuration aims to reduce the Assembly’s role while not completely abolishing it, in order to achieve the balance and maintain ties with citizens’ representatives.

The HJC is strengthened, not only by depoliticising its membership, but also by broadening the scope of its competencies. All Assembly’s competencies, in terms of appointments and dismissals of judges and public prosecutors, will be transferred to the HJC. Currently, the Constitution limits the role of the HJC on proposing the candidates to the Assembly which has the power to make the final decision on the appointment. With the amendments, the HJC would be responsible for electing a judge for the first time (as the probationary three-year period of judges is abolished). Moreover, this institution would be able to elect the President of the Supreme Court and court presidents, as well as to decide on the termination of judges’s tenure in office. The fact that the HJC, and not the Assembly, will be in charge of electing the President of the Supreme Court who is its ex officio member, could further strengthen the independence of this body.[5] It can therefore be concluded that proposed constitutional solutions, in terms of the composition and competencies of the HJC, outweigh its cons and that they indeed have high potential to depoliticise this body and ensure its independence.

Composition and Competencies of the High Prosecutorial Council – Unfinished Job

Although the amendments substantially change the High Prosecutorial Council (currently called State Prosecutors Council), it seems that it will nevertheless remain an insufficiently depoliticised body. At first glance, the proposed changes in this area appear to follow the model applied in the case of the HJC by retaining eleven members, reducing the number of members directly elected by the Assembly, and reducing ex officio members, with the Chair of the competent Parliamentary Committee excluded in the case of HPC. Remaining five members would come from Chief public prosecutors (current public prosecutors) and public prosecutors (current deputy public prosecutors) would appoint the five remaining members among public prosecutors.[6] However, a key obstacle lies in the fact that, despite the Venice Commission’s recommendations and the explicit stance of the Group of States against Corruption (GRECO), both the Minister of Justice and the Supreme Public Prosecutor have retained their ex officio status. Both the Venice Commission and the Consultative Council of European Prosecutors (CCPE) unambiguously stated that it is crucial for the HPC autonomy that prosecutors count as the majority in this body. However, the proposed constitutional changes actually reduce the number of prosecutors in the HPC, compared to its number in the current State Prosecutors Council. This action effectively leads to a situation where the number of those elected directly or indirectly by the Assembly in the HPC will be more than a half,[7] and thus politically appointed members could outvote public prosecutors elected by their peers.[8]

Regarding competencies of the HPC, this body would be strengthened compared to the current State Prosecutors Council. In particular, the State Prosecutor Council is only able to propose to the National Assembly the candidates for the election to a deputy public prosecutor position for the probationary three-year period, and subsequently their possible election to permanently perform that function, while the Assembly elects public prosecutors on Government’s proposal. On the other hand, future HPC would have the competence to appoint all public prosecutors and chief public prosecutors, with the exception of the Supreme Public Prosecutor, whom it will be able to only propose (something which is currently being done by the Government) Meanwhile, the current State Prosecutors Council can decide on the termination only of tenure of office of deputy public prosecutors,  while the same decision is made by the Assembly when it comes to public prosecutors (upon the Government proposal). With the proposed amendments, the HPC will be the only body with the authority to dismiss both public prosecutors and chief public prosecutors. These provisions should prevent the legislature and the executive branches from interfering in the process of prosecutorial appointment and dismissal, and guarantee the autonomy of the Public Prosecution Office’s activities.

How to Vote on January 16?

In conclusion, an answer to the question that currently burdens the majority of citizens who have not yet made a final decision on how to vote in the referendum should be offered. It is legitimate to question whether the Constitutional Amendments are adequate enough to ensure the independence of the judiciary and bring Serbia closer to the European Union. On the one hand, the Venice Commission is unequivocal in its assessment that the proposed constitutional amendments deserve positive assessment. It has also, however, expressed regret due to several elements that have remained inconsistent with its recommendations – some of which are purely technical, while other may be substantial, such as those concerning the composition of the HPC. Additionally, there are reasonable concerns about the role of the commission which may end up serving as a potential substitute for a difficult-to-achieve parliamentary consensus between the ruling parties and the opposition. Moreover, regrets may be expressed about the Constitution Amendments’ omission to regulate the eligibility criteria for judges and public prosecutors, as well as the missed opportunity to reform the Constitutional Court.

Constitutional change in this area is one of the most important obligations that Serbia is expected to fulfill as part of the EU accession process. It was mentioned in point 14 of the EU Negotiating Framework for Serbia, as well as several times explicitly underlined in the Screening Report on Chapter 23. Meanwhile, negotiating Chapter 23 – Judiciary and fundamental rights – has gained additional importance in the EU revised enlargement methodology by being placed in the cluster One and further emphasising that progress in this area will be crucial to the entire accession process. In spite of that, Serbian officials’ warnings that the European integration of Serbia will be stopped if the referendum fails appear exaggerated. Enlargement to the Western Balkans represents a geostrategic interest of the EU and it should not be expected that the Union will give up on Serbia due to a potential negative decision of the citizens in the upcoming referendum.

In any case, given the existing constitutional framework for the judiciary, these amendments represent a significant step forward. Citizens should freely, with no fear or pressure, use their right to vote in the referendum and, as the sole sovereignty holders in the Republic of Serbia, decide whether or not to accept the change to their country’s highest legal act. Constitutional change will continue to be an unavoidable requirement on Serbia’s path to the EU. Citizens who want Serbia to join the EU but are dissatisfied with the Draft Amendments can hope that in the future, in a more plural convocation of the National Assembly, an even better Constitutional Amendments will be adopted, which they will then need to confirm in a referendum.

[1] The most important changes envisioned in the Constitutional Amendments, the European Policy Centre presented in its CEP infographic.

[2] On that occasion, the Venice Commission reiterated its position expressed in Opinion no. 349/2005, where point 16 explicitly states that “involving the Parliament in judicial appointments risks politicizing appointments (…) because elections in the Parliament are discretionary procedures in which political reasons will always play a role.“ In its conclusion to the 2007 Opinion, the Venice Commission warned that constitutional provisions on justice, combined with the party leadership’s dominance over MPs, could lead to a situation in which political parties control the judiciary.

[3] Court Presidents, the same as under the current Constitution, could not be elected to the HJC.

[4] One of these judges will be elected for the President of the Supreme Judicial Council, so existing legal solution where the President of the Supreme Court of Cassation is automatically the president of the HJC will be changed at the constitutional level.

[5] We should not miss the fact that the current President of the Supreme Court of Cassation, who was elected by the Assembly on the proposal of the HJC, will continue to hold the office until the expiration of her mandate in 2026.

[6] The Constitutional Amendments stipulate that chief public prosecutors cannot be elected members of the HPC, which prevents senior holders of the public prosecutor’s office from sitting in this body together with those they are directly superior to. This should ensure that public prosecutors who are elected in the HPC perform their work freely and on their own conscience, without pressure from higher in the hierarchy.

[7] This becomes even more obvious if we consider that the abovementioned Constitutional Law provided that the current Republic Public Prosecutor, elected on the proposal of the Government by a majority vote in the Assembly, will continue to hold the office until 2027. According to the proposed Constitutional Amendments, the Supreme Public Prosecutor would still be elected by the Assembly, although by a majority of three-fifths of all members of the Assembly and no longer on the proposal of the Government, but on the proposal of the HPC, which should ensure its autonomy. However, we will not be able to see the implementation of this provision until after 2027.

[8] It should be noted that the voting procedure in the HJC and the HJC is not regulated by the Constitutional Amendments, so the law may provide for a qualified, rather than an absolute majority. In practice, this would require finding a compromise between politically appointed members and members elected by the profession but would also introduce the danger of a potential institutional blockade.