Strasbourg, 20 April 2010
DECLARATION OF THE CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
ON THE REFORM OF THE JUDICIARY OF SERBIA
The Consultative Council of European Judges (CCJE):
having regard to the implementation in Serbia of a Law on Judges providing for the termination of the duties and rights of judges elected or appointed under the former Constitution, as from 31 December 2009,
recalling that the situation concerning the termination and re-appointment of Serbian judges was examined on several occasions and was considered in several texts issued on the international level, and in particular in a Declaration by the CCJE on 24 November 2008 in which the CCJE expressed concern that the legislation being proposed then may infringe judicial independence,
issues the following declaration:
1. A re-appointment process with respect to all judges of a country is not at all obvious, even within the context of a reform at the constitutional level and of the judiciary itself;
2. The termination of Serbian judges violated the principle of irremovability of judges, as well as the implementing of the above mentioned piece of legislation infringed the international standards, and also ignored the recommendations of the Venice Commission how to apply the criteria suggested in its Opinion n° 528/2009.
3. A termination of office of individual judges for lack of professional capacity or other legitimate reasons might have been ordered, nonetheless, by way of disciplinary sanction, with the due process guarantees of the European Convention of Human Rights (see Recommendation n° R(12) 94, Principle VI (2) and (3));
4. The central strategy goal of the National Judicial Reform Strategy, adopted by the Serbian National Assembly on May 25th 2006 was “to regain the public Trust in the Republic of Serbia judicial system” (Part I C of the Reform Strategy). The re-election process and the way as it was exercised Serbia raises concerns that the aim of establishing a Serbian judiciary deserving due trust at the national and international level may not be attained.
5. To reduce these effects In any case those judges that have not been re-elected:
(a) should be informed in writing of the specific reasons for which their office has been terminated;
(b) should be granted an effective remedy before an independent body which should be composed by judges appointed according to criteria, and using a procedure, agreed by the relevant actors; due process guarantees of the European Convention of Human Rights should be applicable; international bodies such as the Venice Commission and the CCJE, as well as international and national judges’ associations, should be associated to this independent instance as observers;
(c) pending review of decisions of termination, those judges who have been removed, should be provided sufficient means to cover their living expenses;
6. The CCJE stands ready to assist the Serbian authorise by giving its opinion if so requested. The CCJE will follow the further developments with interest and ask its Serbian member to give a report at its next plenary meeting.