PRILOG RASPRAVI O (NE)ZAVISNOSTI SUDSTVA U REPUBLICI SRBIJI
CONTRIBUTION TO THE PUBLIC DEBATE ON THE (IN)DEPENDENCE OF THE JUDICIARY IN THE REPUBLIC OF SERBIA

Summary/Abstract: The independence of the judiciary is a basic precondition for a well-organized state and a free society. lt can be provided only by the Constitution, because it is free from the influence of the legislative and executive authorities. However, the Serbian Constitution left too much room for the legislature to influence the judiciary. Therefore, the European Union in Chapter 23 pointed out as a necessary reform of the judiciary, ie depoliticization of the judiciary. This paper, prepared for public discussion, discusses the position of the judiciary in the current Constitution of the Republic of Serbia from 2006, as well as in the proposal of constitutional amendments in the area of judiciary. ln this regard, the author first deals with the position of the judiciary, ie the analysis of the principles of separation of powers, the manner of electing judges, the procedure of their election, as well as the composition and significance of the High Judicial Council (HJC) in the current Constitution as well as in the Draft Amendment to the Constitution (amendments no. l, Vll, Vlll, Xll, Xlll, XlV, XV and XVl). The author believes that, in general, the proposal of constitutional amendments in the ĥeld of justice in the Republic of Serbia can be assessed as solid. lmmediately before its drafting, all relevant factors were consulted (domestic expert public, Venice Commission), and in the normative sense, it really represents a step forward in relation to previous solutions. The manner of electing judges was finally de facto left to the expert body — the High Judicial Council, and the reasons for the termination of the judicial function, ie the dismissal of judges, became materia constitutionis. ln addition, the manner of electing members as well as the President of the High Judicial Council is fully in line with the principle of independence of the judiciary. The only objections can be addressed to the revision of Art. 4. para. 3. where a much more acceptable solution seems to be one that would guarantee that „the relationship between the legislature and the executive is based on balance and mutual control”, and in which „the judiciary is independent”. ln addition, there is a lack of a clear constitutional norm that guarantees the election of judges by the HJC (although the constitution-maker had this in mind), ie it seems that the decision-making threshold by the High Judicial Council seems to be set quite high, which may at some point lead to a blockage in decision making. lf the Committee on Constitutional and Legislative lssues of the National Assembly really accepted the stated remarks, the citizens would have an easy task in front of them at the announced referendum and Serbia would get quality constitutional norms in the ĥeld of judicial power.

• Details
• Contents