SERBIAN PARLIAMENT CONSIDERS JUDICIAL REFORM AMID

UNCLAS SECTION 01 OF 02 BELGRADE 001250

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PREL SR
SUBJECT: SERBIAN PARLIAMENT CONSIDERS JUDICIAL REFORM AMID
CONTROVERSY OVER JUDGE REELECTION

Summary
--------------


1. (SBU) The Serbian Parliament is developing a package of
legislation designed to strengthen the judiciary and improve its
efficiency. Some observers, especially the Judges Association of
Serbia, have criticized the bills for requiring the selection of new
judges for all courts, warning this could politicize the judiciary,
and for abolishing some local courts, which they believe would make
access to justice much harder for some citizens. End Summary.

Judicial Reform Bills in Parliament
--------------


2. (U) Parliament began on November 12 debate on a package of five
bills to implement changes required by the 2006 Constitution, the
Law on the Constitution, and the 2006 Judicial Reform Strategy
(JRS). The package of legislation includes a draft Law on Judges, a
Law on Organization of the Courts, and the Public Prosecution Act,
which describe the organization and function of the judiciary and
prosecution. The laws would replace the current Municipal and
District Courts with Basic and Higher Courts and create the Supreme
Appellate Court (Court of Cassation in civil law) to replace the
current Supreme Court. The laws would transfer many types of cases
to other types of courts, including the Administrative and Appeals
Court, which were created by law in 2001 but never implemented. In
addition, the Law on the High Judicial Council (HJC) would establish
a new HJC to replace the existing one, and the Law on the State
Prosecutors' Council would establish a similar council for public
prosecutors. The councils would be responsible for drafting
criteria for selection, discipline, and dismissal of judges and
prosecutors, and for the first time, the High Judicial Council
rather than the Justice Ministry would be given responsibility for
management and oversight of most day-to-day aspects of the
judiciary.


3. (U) In addition, the government plans to rationalize the
distribution of courts by creating a new network of courts that
would reduce the number of Municipal (soon to be Basic) Courts,
consolidate others, and cut the number of judges from 2,500 to
2,000. The most controversial provisions of the bills require the
new HJC to select new judges for all of the newly organized courts
according to criteria it would establish. Applicants for these
judgeships would not be limited to sitting judges, and current
judges could also apply for other judicial openings. The Justice
Ministry has promised to send the HJC's draft selection criteria to
the Council of Europe for evaluation before the process begins.

Judicial Reform Long Awaited
--------------


4. (SBU) The need for judicial reform in Serbia has been long
recognized, after decades of political interference during the
socialist era and the Milosevic regime. The European Commission has
repeatedly stressed the need for greater judicial independence,
efficiency, and transparency before Serbia's eventual accession to
the European Union. At the public unveiling of the bills on October
29, President Tadic said judicial reform was necessary to increase
judicial independence and improve citizens' confidence in the
judiciary's ability to protect their rights and combat corruption.
Justice Minister Snezana Malovic told us privately that the new
network of courts would increase efficiency and that the selection
of new judges would improve the overall quality of judges. War
Crimes Court President Sinisa Vazic told us reform was needed to
address a serious workload imbalance: some judges in outlying courts
heard only two or three cases per year while others, particularly
those in Belgrade, had dozens of cases. Justice Ministry State
Secretary Slobodan Homen told us on December 2 that the Ministry's
goal for the reforms was to bring Serbia's court system up to EU
standards. He encouraged review of the legislation and asked that
he be told of any provisions which were not EU-compliant.

Possible Flaws in Reform Plan
--------------


5. (SBU) While the need for further reforms of the system is not
disputed, some observers have expressed concerns about the
government's proposals. The most controversial aspect of the reform
plan is the selection of judges for the newly organized courts. The
Judges Association of Serbia (JAS),a voluntary organization to
which more than half of all Serbia's judges belong, reacted
strongly, stating this provision constituted reelection of sitting
judges, whereas the Constitution confers life tenure on judges, who
can only be dismissed for misconduct. The JAS cautioned that the
status of judges left without positions because their courts were
eliminated could only be settled by a Constitutional Court ruling.
JAS is further concerned that the draft legislation gives the new,
Parliament-appointed HJC sole responsibility for conducting the

BELGRADE 00001250 002 OF 002


entire selection process, which the JAS sees as an opening for
pervasive political influence on all judges. The JAS also said it
did not get to see final drafts of the laws and contended there was
no proper public discussion. Based on a letter from JAS, the
Consultative Council of European Judges issued a declaration
November 14 expressing concern that the reelection of judges "may
infringe judicial independence." The Justice Ministry stated that
the process was not a "reelection" because the entire court network
would be new and judges would be applying for new jobs, not their
own.


6. (SBU) Even if the selection process is constitutional, observers
have strong concerns that the process would be difficult and
time-consuming and could even suspend the ordinary work of the
judiciary. Supreme Court President Vida Petrovic Skero, who also
chairs the existing HJC, told us she anticipated a total of 10,000
applications for the 2,000 judicial positions. She said she worried
about the capacity of the new HJC to complete the selection process
within one year, since the existing HJC had no staff, resources, or
selection procedures that could be transferred. Director of OSCE
Belgrade's Rule of Law and Human Rights Department Ruth Van Rhijn
expressed skepticism that candidates for positions could be reviewed
thoroughly in the 90 days after the appointment of the HJC, as
currently required by the bill. She said the government's
confidence that it could enact its plan so quickly gave the
appearance that the choice of judges was "precooked."


7. (SBU) There are also concerns about the plan to eliminate some
courts. Vazic said some citizens would have to travel far to
conduct routine tasks such as obtaining birth certificates, permits,
and licenses. Chief Public Prosecutor Isuf Sulejmani from Presevo
in southern Serbia told us he worried that if the municipality's
court closed, ethnic Albanians would have to attend the court in
predominantly Serb Vranje, where their cases might not be given fair
treatment. Belgrade First Municipal Court President Miodrag Majic
told us it would be difficult if not impossible to manage the new,
consolidated courts efficiently or to oversee the work of all the
judges appropriately. Malovic told us the Ministry was concerned
about access for minorities and had taken this into account in its
plan for court reorganization. The Justice Ministry announced that
it received 300 suggested amendments to the bills and had accepted
more than 90 of them, which have not been made public.

Comment
--------------


8. (SBU) Decades of political interference and inefficiencies in
Serbia's judicial system have compromised judicial independence and
citizens' confidence in the government. Post has provided a wide
range of support to help strengthen the judiciary and participated
in some of the expert debates on the judicial reform package.
Nevertheless, we are concerned that the judge selection exercise
could aggravate existing inefficiencies during the selection
process, since judges who thought they had life-time tenure would
need to spend time applying for the "new" positions and might also
be distracted by efforts to challenge the laws in the Constitutional
Court, rather than focusing on their case loads. End Comment

BRUSH