CCJE-BU(2018)4

Strasbourg, 4 May 2018

CONSULTATIVE COUNCIL OF EUROPEAN Judges

(CCJE)

Opinion of the CCJE Bureau

following a request by the Judges’ Association of Serbia

to assess the compatibility with European standards of the proposed amendments to the Constitution of the Republic of Serbia which will affect the organisation of judicial power

The Judges Association of Serbia (JAS), in its letter of 16 April 2018 addressed to the President of the Council of Europe’s Consultative Council of European Judges (CCJE), requested that the CCJE assess the compatibility with European standards of the proposed amendments to the Constitution of the Republic of Serbia which will affect the organisation of judicial power.

The Bureau of the CCJE has examined the draft of the Constitutional Law for the Implementation of Amendments I to XXIX of the Constitution of the Republic of Serbia and focused in particular on the amendments reproduced in Appendix I.

Following examination of the above-mentioned document in light of the Council of Europe’s standards and, in particular, the adopted Opinions of the CCJE on the matters relevant to the issues raised by JAS, the CCJE Bureau has delivered the following Opinion:

1. As regards Amendment II, the qualified majority by which the National Assembly (NA) will elect the High Judicial Council (HJC) members requires a three-fifths majority (150 deputies).

In the event that all members are not elected in this manner, the remaining members shall be elected within the following ten days by a five-ninths majority (138,9 deputies). This majority is also required for their dismissal.

However, it is important that members of the HCJ are not elected according to the preference of any one dominant political party or parties. A qualified majority of three-fifths will normally ensure that this is the case. It would therefore be advisable to uphold the requirement for such a qualified majority for all of the five members of the HJC regardless at what stage of election process members are elected in the Parliament.

This Amendment also introduces the possibility for the dismissal of HJC members, by a qualified majority of NA members. The draft Amendments do not, however, set out the reasons for such dismissal of HJC members. Moreover, Amendment XIV 3 prescribes that: “The term of office of a member of the High Judicial Council shall cease for reasons prescribed by the Constitution and law and in the procedure prescribed by law”.

Upon analysis of this Amendment, first of all it should be emphasised that there should be internal coherence within the amendments and that if one amendment says that reasons must be given elsewhere in the Constitution, then this should be ensured. Not mentioning the reasons for dismissal and, moreover, effectively opening a door for doing it through simple legislation, leaves room for arbitrariness and politically motivated initiatives to have HJC members dismissed. This is clearly a direct threat to their independence, and to the independence of the judiciary as a whole.

For these reasons, the Amendment is quite far from providing sufficient Constitutional guarantees for the independence of HJC members.

2. As regards Amendment V, in its Opinion No. 17(2014), the CCJE stated that judicial independence can be compromised by various matters which may have an adverse impact on the administration of justice[1].

Para 3 of Amendment V on independence of judges says: “The method to ensure uniform application of laws by the courts shall be regulated by law”. This would seem to imply that this provision contains a restriction of functional judicial independence in the interpretation of the law - free judicial opinion – which would also be contrary to the Opinion No. 20(2017) of the CCJE[2].

While it is true that courts may deliver different decisions in seemingly identical factual and legal situations, this does not necessarily mean that the law has been violated. The European Court of Human Rights (ECtHR) has also taken a stand on the subject, including in a case against Serbia[3], in which the Court observed that:

“54. (ii) The possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention;

(iii) The criteria that guide the Court’s assessment of the conditions in which conflicting decisions of different domestic courts ruling at last instance are in breach of the fair trial requirement enshrined in Article 6 § 1 of the Convention consist in establishing whether “profound and long-standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect”.

Such an assessment must also be based on the principle of legal certainty. This principle is a central tenet of the rule of law. It guarantees stability in legal situations and contributes to greater confidence of the public in the courts.

Lack of consistency in jurisprudence can negatively affect the legal system. However, the requirements of legal certainty and the protection of public confidence do not imply that case law development in itself is contrary to the proper administration of justice. It should be borne in mind that failure to maintain a dynamic and evaluative approach would risk hindering reform or improvement.

Court decisions and case law should therefore not be set in stone. The law, to the extent possible, leads and shapes social relations and, where appropriate, contributes to their development.  

Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities (Rec2010(12)) states[4]:

“The principle of judicial independence means the independence of each individual judge in the exercise of adjudicating functions. In their decision making, judges should be independent and impartial and able to act without any restriction, improper influence, pressure, threat or interference, direct or indirect, from any authority, including authorities internal to the judiciary. Hierarchical judicial organisation should not undermine individual independence”.

“Superior courts should not address instructions to judges about the way they should decide individual cases, except in preliminary rulings or when deciding on legal remedies according to the law”.

The CCJE’s Magna Carta of Judges (2010) states the following[5]: “In the exercise of their function to administer justice, judges shall not be subject to any order or instruction, or to any hierarchical pressure, and shall be bound only by law”.

Furthermore, the CCJE expressed an essentially identical view on this issue in its Opinion No. 20(2017)[6]. Although legal interpretations, views, opinions and binding interpretative statements may have a positive impact on the uniformity of case law and legal certainty, they raise concerns from the point of view of the proper role of the judiciary within the separation powers[7]. In a civil law system, inferior courts may depart from settled case law of hierarchically superior courts provided they set out their arguments for doing so. Furthermore, the CCJE concluded that a judge acting in good faith, who consciously departs from the settled case law and provides reasons for doing so, should not be discouraged from triggering a change in the case law. Such a departure from the case law should be seen as an element of the independence of the judiciary and it should not result in disciplinary sanctions or affect the evaluation of the judge’s work[8].

The CCJE advises against including this paragraph in the Constitution.  

3. As regards Amendment VII, the way in which the grounds for dismissal of judges are formulated may endanger the principle of irremovability of judges since the grounds given are vague and extremely broad and are not accompanied by an adequate legal protection.

Three grounds for the dismissal of a judge are set out in draft Amendment VII 3:

•           if a judge has been convicted of a criminal offense that carries a sentence of at least six months of imprisonment or of a criminal offence that renders him/her unworthy for the judicial function;

•           if a judge performs the judicial function incompetently;

•           if a judge has committed a serious disciplinary offense.

The CCJE Bureau wishes to recall the major principle of irremovability of judges and that “it is a fundamental tenet of judicial independence that tenure is guaranteed until a mandatory retirement age or the expiry of a fixed term of office”[9]. The security of tenure for judges and their appointment until the statutory age of retirement are a corollary of judicial independence^[10].

First of all, the reference in the Amendment to “incompetence” is far too vague and potentially very dangerous to judicial independence. As an example, in a case where a judge was dismissed for “breach of oath”, the ECtHR ruled that “the absence of any guidelines and practice establishing a consistent and restrictive interpretation of the offence of “breach of oath” and the lack of appropriate legal safeguards resulted in the relevant provisions of domestic law being unforeseeable as to their effects. Against this background, it could well be assumed that almost any misbehaviour by a judge occurring at any time during his or her career could be interpreted, if desired by a disciplinary body, as a sufficient factual basis for a disciplinary charge of “breach of oath” and lead to his or her removal from office”[11].

“Incompetence” as a ground for dismissal may even be more negative than “breach of oath” from the point of view of judicial independence and irremovability of judges, because while the “breach of oath” may somehow be still subject to guidelines, as it can be implied from the ECtHR judgment cited above, the “incompetence” may be much more difficult to assess, to measure and to quantify. “Incompetence” as a ground for dismissal raises more questions than answers, and it may easily become a tool for pressures and/or all sorts of manipulations, including political, exerted on judges, and thereby negatively affect judicial independence.

The CCJE Bureau recommends to delete “incompetence” as a ground for dismissal of a judge.

As regards dismissing a judge for a serious disciplinary offense, “the existence of exceptions to irremovability, particularly those deriving from disciplinary sanctions, leads immediately to consideration of the body and method by which, and basis upon which, judges may be disciplined”^[12]. The CCJE also emphasised that in each country, the statute or fundamental charter applicable to judges should define, as far as possible in specific terms, the failings that may give rise to disciplinary sanctions as well as the procedures to be followed[13].

Therefore, the CCJE considers that this provision, as well as that related to a criminal offense as a ground for dismissal, clearly requires the adoption of strong and clear implementing primary legislation, both to set out the specific misconduct that may result in a dismissal, and the procedure to be followed in cases of possible dismissal. The essential elements of this procedure should be included in the Constitution.  

The CCJE also recalls observations made by the Council of Europe’s Group of States against Corruption (GRECO) as regards Serbia[14]:

“The GET is furthermore concerned that evaluations serve as grounds for dismissal if “unsatisfactory” and that the HJC can initiate evaluations outside the usual three-year cycle, which might carry a risk of possible harassment or pressure, in particular in the specific context in Serbia as described throughout this report. In the view of the GET, the evaluation system needs to be focused on improving the judiciary as a whole and not on punishing individual judges. It refers in this connection to Recommendation Rec(2010)12 of the Committee of Ministers of the Council of Europe, according to which “a permanent appointment should only be terminated in cases of serious breaches of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions”[15]. In view of the above, GRECO recommends that the system of appraisal of judges’ performance be reviewed (i) by introducing more qualitative criteria and (ii) by abolishing the rule that unsatisfactory evaluation results systematically lead to dismissal of the judges concerned”.

4. As regards Amendment IX, in particular its wording in subsection 3 and its rather broad definition, the CCJE Bureau would like to reaffirm Rec2010(12) according to which judges may engage in activities outside their official functions. To avoid actual or perceived conflict of interest, their participation should be restricted to activities compatible with their impartiality and independence[16]. Judges should of course be free to associate in organisations which will protect their independence and impartiality.

It is also important to keep in mind that judges should not be personally accountable where their decision is overruled or modified on appeal[17].

5. As regards Amendments relating to the HJC, the CCJE examined the link between a judicial council’s composition and competences in its Opinion No. 10(2007)[18].

The Draft Amendments change the number of members, the composition of the HJC and the way in which its members (Draft Amendment XIII) and its President (Draft Amendment XV) are elected, as well its working and decision-making procedures (Draft Amendment XVI).

The provisions would result in a reduction of members from among the ranks of judges from seven to five. The HJC will now have 10 instead of 11 members and be composed of two equal groups of members – five judges, to be elected by their peers, and five “prominent lawyers”, to be elected by the Assembly. An even number of members is clearly inappropriate for a body, which will inevitably have difficulties adopting decisions in case of differences in opinion. The HJC President may not be chosen from among the ranks of judges.

It seems that the President of the HJC will not have the decisive vote when the opinion within the Council is split. This is commendable since it means that the non-judges of the HJC will not have a de facto majority.

On the other hand, for a body of this nature there will clearly be issues (not seldom sensitive and important ones) when the opinions of its members will be split down the middle.

The composition of the HJC should therefore be kept at an odd number, for example six judges and five non-judges. The CCJE Bureau wishes to recall in this regard that the Magna Carta of Judges (2010) states that “the Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers”[19].

Furthermore, Amendment XIII para 5 states that presidents of courts may not be members of the HJC. Since judges in the HJC should be elected by their peers, such a provision seems to unnecessarily restrict the judges’ choice of representation.

As regards the make-up of the HJC, if a Council has broad competences, especially if it manages the court budget, it should have a mixed composition in order to ensure the legitimacy of its work. However, even when the composition is mixed, its functioning should allow no concession at all to the interplay of parliamentary majorities and pressure from the executive, and it should be free from any subordination to political party consideration, so that it may safeguard the values and fundamental principles of justice[20].

If a Council has fewer competences, limited in practice to issues related to the status of the judges, as appears to be the case here, then there is no justification for reducing the number of its members from among judges as envisaged in Draft Amendment XIII.

The provision on the dissolution of the HJC in the event it does not render a decision (when its votes are split) is particularly troublesome. It could be perceived as aiming at rendering the HJC dysfunctional and politically controllable. In the opinion of the CCJE Bureau, this would bring the HJC under undue pressure to avoid its own dissolution.

Membership of judicial councils should be such as to guarantee their independence and to enable them to carry out its functions effectively[21]. Other European standards set out specific qualities that individuals elected to judicial councils should possess: members, whether judges or not, must be selected on the basis of their competence, experience, understanding of judicial life, capacity for discussion and culture of independence[22], whereas the non-judge members may be selected among other outstanding jurists, university professors, with a certain length of professional service, or citizens of acknowledged status[23]. In any case, prospective members of the Council for the Judiciary, whether judges or non-judges, should not be active politicians, members of parliament, the executive or the administration. This means that neither the Head of State, if he/she is the head of the government, nor any minister can be a member of the Council for the Judiciary[24].

6. Conclusions:

A. The provisions on the dismissal of members of the HJC should provide the members with sufficient guarantees for their independence by stating possible grounds for dismissal (Amendment II, para 4).

B. The provision requiring legislation on the method to ensure uniform application of the law should not be included in the Constitution (Amendment V, para 3).  

C. The way in which the grounds for dismissal of judges are formulated violates the principle of irremovability of judges and is potentially very dangerous to judicial independence. The “incompetence” as a ground for dismissal of a judge should be deleted. Provisions on other grounds for dismissal should require strong and clear implementing primary legislation, both to set out the specific misconduct that may result in a dismissal, and the procedure to be followed in cases of possible dismissal. The essential elements of this procedure should be included in the Constitution (Amendment VII, 3).

D. The HJC should be composed of an odd number of members, the majority of which should be judges. The possibility for judges if they so choose to be represented by a court president should be guaranteed (Amendment XIII).

E. The provision on the dissolution of the HJC in the event it does not render a decision should be deleted.

Appendix I

Proposed amendments to the Constitution of the Republic of Serbia

Amendment II:

“By means of a three-fifths majority vote of all deputies, the National Assembly shall elect the five members of the High Judicial Council and the five members of the High Prosecutorial Council, and if they are not all elected in such manner, the remaining members shall be elected in the next ten days by means of five-ninths majority vote of all deputies, which is also required for their dismissal”.

Amendment V:

“A judge shall be independent and shall perform his/her duties in accordance with the Constitution, ratified international treaties, laws and other general acts.

Any influence on a judge while performing his/her judicial function is prohibited.

The method to ensure uniform application of laws by the courts shall be regulated by law.

The present Amendment shall supersede Article 144 of the Constitution of the Republic of Serbia”.

Amendment VI:

“General and special conditions for the election of judges, presidents of courts and lay judges shall be regulated by law.

A person elected for a judge for the first time in the legally specified courts with exclusively first-instance jurisdiction may be elected only if he or she has completed one of the forms of legally stipulated training in a judicial training institution.

The present Amendment shall supersede Article 145 of the Constitution of the Republic of Serbia”.

Amendment VII:

“A judicial tenure shall be permanent and shall last from the moment of the appointment until the retirement.

A judge's tenure of office shall cease, prior to the retirement, at personal request, in case of permanent disability for judicial function or in case of dismissal.

A judge shall be dismissed if he/she has been convicted for a criminal offense with at least six months of imprisonment or for a criminal offence that renders him/her unworthy for the judicial function, if he/she performs the judicial function incompetently, or if he/she has committed a serious disciplinary offense.

A judge and a president of the court shall have the right to lodge an appeal with the Constitutional Court against the decision of the High Judicial Council on cessation of judicial function, which shall exclude the right to lodge a Constitutional appeal.

The present Amendment shall supersede Article 146 of the Constitution of the Republic of Serbia”.

Amendment IX:

“A judge and a lay judge cannot be held accountable for an opinion expressed within the court proceedings or voting in the process of passing a court decision, unless they commit a criminal offense of violation of law by a judge, public prosecutor or his deputy.

A judge may not be deprived of liberty in the legal proceedings initiated against him/her for a criminal offense committed while performing judicial function without the approval of the High Judicial Council.

A judge and a court president shall be prohibited to engage in political actions, while other functions, activities or private interests which are incompatible with the judicial function shall be stipulated by the law.

The present Amendment shall supersede Article 148 of the Constitution of the Republic of Serbia”.

Amendment XII:

“High Judicial Council

Jurisdiction of the High Judicial Council

The High Judicial Council is an autonomous and independent state body that ensures the autonomy and independence of the courts and judges and court presidents by deciding on the issues of the status of judges, presidents of courts and lay judges determined under the Constitution and the law.

The High Judicial Council shall appoint and dismiss the President of the Supreme Court of Serbia and the presidents of other courts; appoint judges and lay judges and decide on the cessation of their office; collect statistical data relevant to the work of judges; evaluate the performance of judges, presidents of courts and judicial assistants; decide on the transfer and temporary relocation of judges; appoint and dismiss the members of the disciplinary bodies; determine the number of judges and lay judges; propose the amount of funds required for the work of the High Judicial Council and the work of courts in matters within its competence and autonomously disposes of these funds, and shall decide on other issues related to the status of judges, presidents of courts and lay judges provided by law.

The present Amendment shall supersede Article 151 of the Constitution of the Republic of Serbia”.

Amendment XIII:

“Composition of the High Judicial Council

The High Judicial Council shall be composed of ten members: five judges elected by the judges and five prominent lawyers elected by the National Assembly. A prominent lawyer shall be a law school graduate with a Bar exam who has at least ten years of working experience in the field of law falling within the competence of the High Judicial Council, who demonstrated professional work and enjoys personal reputation.

The National Assembly shall elect five members of the High Judicial Council upon the proposal of the competent parliamentary committee after having conducted a public competition, by a three-fifth majority vote of all deputies, and in case they are not all elected in this manner, the remaining members shall be elected within the next ten days by a five-ninth majority vote of all deputies. If all the members are not elected even in that manner, the remaining members shall be elected, after 15 days, from among the proposed candidates, by a commission comprised of the President of the National Assembly, the President of the Constitutional Court, the President of the Supreme Court of Serbia, the Supreme Public Prosecutor of Serbia and the Ombudsman, by majority vote.

The competent committee of the National Assembly shall propose twice as many candidates as the number of members elected.

The principle of equal representation of courts shall be taken into account in the process of election of judges as members of the High Judicial Council.

Presidents of courts may not be members of the High Judicial Council.

The present Amendment shall supersede Article 152 of the Constitution of the Republic of Serbia”.

Amendment XIV:

“Term of Office of Members of the High Judicial Council

Member of the High Judicial Council shall be elected to a five-year term of office.

The same person may not be re-elected as member of the High Judicial Council.

The term of office of a member of the High Judicial Council shall cease for reasons  prescribed by the Constitution and law and in the procedure prescribed by law.

The present Amendment shall supersede Article 153 of the Constitution of the Republic of Serbia”.

Amendment XV:

“President of the High Judicial Council

The High Judicial Council shall have a president.

The president of the High Judicial Council shall be elected from among members who are not judges.

The term of office of the president of the High Judicial Council is five years, or until the cessation of the term of office as the member of the High Judicial Council.

The present Amendment shall supersede Article 154 of the Constitution of the Republic of Serbia”.

Amendment XVI:

“Work and Decision-making of the High Judicial Council

The High Judicial Council may make decisions at a session where at least seven members of the High Judicial Council are present.

The decision shall be adopted by the votes of at least six members of the High Judicial Council.

In the case that the High Judicial Council does not make a decision in the matters in its jurisdiction prescribed by law, within 30 days from the day of the first decision making on that matter, the term of office of all members of the High Judicial Council shall cease.

The High Judicial Council shall publicly announce and explain its decisions, and make the decisions on the election and cessation of the tenure of office of judges, presidents of courts, and lay judges, decisions on the transfer and temporary relocation of judges, and decisions on the appointment and dismissal of members of disciplinary bodies on the basis of the criteria determined in accordance with the law and under a legally prescribed procedure.

The present Amendment shall supersede Article 155 of the Constitution of the Republic of Serbia”.

Amendment XVII:

“Immunity of the members of the High Judicial Council

Members of the High Judicial Council cannot be held accountable for an opinion expressed or vote given in decision-making within the High Judicial Council, unless they have committed a criminal offense.

The members of the High Judicial Council cannot be deprived of liberty in the proceedings initiated against them for a criminal offense they have committed as members of the High Judicial Council without the approval of the High Judicial Council.

The present Amendment shall supersede Article 156 of the Constitution of the Republic of Serbia“.