WHY EXTRAORDINARY ASSEMBLY

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WHY EXTRAORDINARY ASSEMBLY ?

• NEW CONSTITUTION
• CONSTITUTIONAL LAW
• UPCOMING JUDICIARY LAWS
• ANNOUNCING REELECTIONS
• OUR POSITION
• ON
• OPEN ISSUES

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ACTIVITIES OF THE JUDGIES ASSOCIATION

• TWO INTERNATIONAL EXPERT ROUND TABLES , April
  2004
• CONSTITUTIONAL FOUNDATION OF THE INDEPENDENCE OF
  THE JUDICIARY
• PUBLICATION, December 2004
• CONSTITUTIONAL POSITION OF THE JUDICIARY
• PUBLICATION, January 2005
• PRINCIPLES OF THE JUDICIAL REFORM STRATEGY
• CONFERENCE, December 2005
• INDEPENDENCE AND ACCOUNTABILITY OF JUDGES AND
  PROSECUTORS IN THE NEW CONSTITUTION
• INTERNATIONAL CONFERENCE, December 2005
• THE CONSTITUTIONAL POSITION OF THE JUDICIARY
  AND DISCIPLINARY ACCOUNTABILITY OF JUDGES
• CONFERENCE, October 2006
• MEETING THE NEW CONSTITUTION JUDICIARY THE
  DAY AFTER

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CONCLUSIONS FROM THE CONFERENCE MEETING THE NEW
CONSTITUTION JUDICIARY, THE DAY AFTER

• CONSTITUTIONAL GURANATEES OF INDEPENDENCE OF THE
  JUDICIARY ARE NOT PRECIZE AND SUFFICIENT
• THROUGH LAWS THESE GUARANTEES SHOULD BE COMPLETED
  AND HARMONIZED WITH INTERNATIONAL STANDARDS
• IN LAW WORK OUT IN DETAIL THE GUARANTEES OF
  INDEPENDENCE OF THE HIGH JUDICIAL COUNCIL
• THERE IS NO LEGAL BASIS FOR REELECTION OF JUDGES

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CONSTITUTION AND CONSTITUTIONAL LAW?PEN ISSUES

• The Status of Present Judges
• Judiciary Laws

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THE NEW CONSTITUTION AND THE STATUS OF PRESENT
JUDGES

• OLD CONSTITUTION
• Permanent tenure of judges office (art.101
  para.1)
• NEW CONSTITUTION
• Permanent tenure of judges office (art.146)
• Revocation of court or of the substantial part of
  the court jurisdiction does not terminate judges
  office (article.150)
• CONSTITUTIONAL CONTINUITY

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PERMANENT TENURE OF OFFICE

• OLD CONSTITUTION
• Article 101
• (1) Judge shall have a permanent tenure.
• NEW CONSTITUTION
• Article 146
• (1) Judge shall have a permanent tenure.
• (2) Exceptionally, a person who is elected a
  judge for the first time shall be elected for the
  period of three years.
• Article 148
• (1) Judges term of office shall terminate at
  his/her own request, upon coming into force of
  legally prescribed conditions or upon relief of
  duty for reasons stipulated by the Law, as well
  as if he/she is not elected to the position of
  the permanent judge.

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ORGANISATION AND JURISDICTION OF COURTS AND
STATUS OF JUDGES

• NEW CONSTITUTION
• Article 143
• (2) Establishing, ?rganisation, jurisdiction,
  system and structure of ?courts shall be
  regulated by the Law.
• (4) The Supreme Court of Cassation shall be the
  Supreme Court in the Republic of Serbia.
• Article 150
• (1) Judge shall have the right to perform
  his/her judicial function in the court to which
  he/she was elected, and may be relocated or
  transferred to another court only with his/her
  own consent.
• (2) In case of revocation of the court or the
  substantial part of the jurisdiction of the court
  to which he/she was elected, a judge may
  exceptionally, without his/her consent, be
  permanently relocated or transferred to another
  court, in accordance with the Law.

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ORGANISATION AND JURISDICTION OF COURTS AND
STATUS OF JUDGES

• CONSTITUTIONAL LAW
• Article 5
• (2) During the second session after the
  appointment of the Government, the National
  Assembly shall harmonize with the Constitution
  the laws that regulate implementation of the
  Constitutional provisions on courts and public
  prosecutors offices, as follows laws that
  regulate organisation and jurisdiction of courts,
  appointment and cessation of function of judges
  and court presidents, the High Judicial Council,
  the organisation and jurisdiction of public
  prosecutors offices, appointment and cessation
  of function of public prosecutors and deputy
  public prosecutors, and the State Prosecutorial
  Council.
• Article 6
• (1) Courts and public prosecutors offices shall
  continue their work until the harmonization with
  the Constitution of laws that regulate their
  organization and jurisdiction, status of judges,
  and status of public prosecutors and deputy
  public prosecutors, unless otherwise provided by
  this Law.
• (2) Courts that have not begun their work by the
  day this Law comes into effect, shall start with
  their work within the period determined by laws
  that serve to harmonize the courts organization
  and jurisdiction with the Constitution.

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STATUS OF JUDGES AFTER HARMONIZATION OF LAW ON
COURTS WITH CONSTITUTION

• POSSIBLE SCENARIOS
• 1. PRESENT COURTS CONTINUE THEIR WORK
• Judges within these courts continue their work
• (art.101 para. 1 of Old Constitution, art.146
  para. 1 ? art.150 para. 1 of the New
  Constitution)
• 2. PRESENT COURTS REVOCATE OR LOSE THE
  SUBSTANTIAL PART OF THEIR JURISDICTION
• The High Judicial Council transfers judges to
  new established courts
• (art.150 para.2 of the New Constitution)
• 3. PRESENT COURTS CONTINUE THEIR WORK AND NEW
  COURTS ARE ESTABLISHED
• Judges keep their positions in courts that
  continue to work
• (art.101 para. 1 of Old Constitution, art.146
  para. 1 and art.150 para. 1 of the New
  Constitution)
• Judges are elected for new courts by
• - the High Judicial Council between present
  judges (art.147 para. 4 of the New Constitution),
  
• - the National Assembly, on the proposal of the
  High Judicial Council , among persons that are
  elected to the post of judge for the first time
  (art.147 para. 1 of the New Constitution)

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• PRECONDITION FOR THE REELECTION OF PRESENT JUDGES
  IS THAT THEIR JUDICIAL FUNCTION HAS TERMINATED
• NEW CONSTITUTION DOES NOT REPRESENT OR CONTAIN
  LEGAL BASIS FOR TERMINATION OF JUDICIAL FUNCTION
• It retains the principle of permanent tenure of
  office for judges
• Constitutional continuity with the previous
  Constitution
• Termination of court does not terminate the
  judicial function
• IN ACCORDANCE WITH THIS, THE ARTICLE 7. OF THE
  CONSTITUTIONAL LAW SHOULD BE INTERPRETED

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CONSTITUTIONAL LAWART. 7

• (1) Appointment of the president of the Supreme
  Court of Cassation and the first appointment of
  the judges of the Supreme Court of Cassation
  shall take place no later than 90 days from the
  effective date of the constitution of the High
  Judicial Council.
• (2) Judges and presidents of other courts shall
  be appointed no later than one year from the
  effective date of the constitution of the High
  Judicial Council.
• Term appointment of the court presidents and
  judges can only be interpreted as fulfilling of
  spots of the court presidents and judges in
  courts that will represent the network of courts
  after harmonization of the Law on Courts with the
  Constitution.
• Term first appointment for the Supreme Court of
  Cassation can only be interpreted in a way to
  consider that court as a new court.

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POLITICAL WILL AND REELECTION OF JUDGES

• POLITICAL WILL EXISTS
• LEGAL BASIS DOES NOT EXIST
• SERBIA IS A COUNTRY BASED ON THE RULE OF LAW
• Article 1 of the New Constitution
• Republic of Serbia is a state of Serbian people
  and all citizens who live in it, based on the
  rule of law and social justice, principles of
  civil democracy, human and minority rights and
  freedoms, and commitment to European principles
  and values.
• LAW BEYOND THE POLITICAL WILL
• (POLITICAL WILL WITHIN THE LIMITS OF LAW)

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PROBLEMS IN THE PERSONNEL STRUCTURE OF COURTS AND
THE CAUSES

• COMPETENCE
• ELECTORIAL SYSTEM
• SYSTEM OF TRAINING
• SYSTEM OF ACCOUNTABILITY (ASSESMENT OF LABOR
  VALUE)
• MOTIVATION
• CONSCIENTIOUSNESS
• SYSTEM OF ACCOUNTABILITY (DISCIPLINARY
  ACCOUNTABILITY)
• CORRUPTION
• SYSTEM OF PREVENTION
• SYSTEM OF REPRESSION
• INDEPENDENCE
• GUARANTEES OF INDEPENDENCE
• PERSONALITY OF A JUDGE

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JUDGES ARE PRODUCT OF THE COURT SYSTEM

• PRESENT COURT SYSTEM DOES NOT GUARANTEE JUDICIAL
  POSITIONS FOR BEST CANDIDATES (ELECTION OF
  JUDGES)
• PRESENT COURT SYSTEM IS NOT CAPABLE TO
  RECOGNIZE AND REMOVE BAD JUDGES (DISMISALL OF
  INCOMPETENT AND UNPROFESSIONAL JUDGES)
• PRESENT COURT SYSTEM OPEN TO CORRUPTION
• PRESENT COURT SYSTEM DOES NOT HAVE STRONG
  GUARANTEES FOR INDEPENDENCE OF JUDGES

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SISTEMATIC CHANGES - REQUIREMENT FOR LONG LASTING
RESOLUTION OF THE PROBLEM

• REGULAR ASSESMENT OF THE QUALITY AND QUANTITY OF
  JUDGES WORK
• DISCIPLINARY ACCOUNTABILITY FOR UNPROFESSIONAL
  WORK AND IMPROPER BEHAVIOR
• STRONG GUARANTEES FOR PERSONAL INDEPENDENCE OF
  JUDGES

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HARMONIZATION OF JUDICIARY LAWS WITH CONSTITUTION

• CONSTITUTIONAL LAW
• Article 5
• (2) During the second session after the
  appointment of the Government, the National
  Assembly shall harmonize with the Constitution
  the laws that regulate implementation of
  Constitutional provisions on courts and public
  prosecutors offices, as follows laws that
  regulate the organization and jurisdiction of
  courts, appointment and cessation of function of
  judges and court presidents, the High Judicial
  Council, the organization and jurisdiction of
  public prosecutors offices, appointment and
  cessation of function of public prosecutors and
  deputy public prosecutors, and the State
  Prosecutorial Council.

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HARMONIZATION OF JUDICIARY LAWS WITH CONSTITUTION

• HIGH JUDICIAL COUNCIL
• ELECTION OF JUDGES AND PRESIDENTS OF COURTS
• TRANSFER OF JUDGES
• DISMISSAL OF JUDGES

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HIGH JUDICIAL COUNCIL

• MANNER OF ELECTING MEMBERS AMONG JUDGES
• PROCEDURE (PROPOSAL)
• ALL COURT TYPES AND INSTANCES INCLUDED
• DISMISSAL OF MEMBERS
• REASONS
• WHO DECIDES
• ORGANISATION AND WORK CONDITIONS

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ELECTION OF JUDGES

• CRITERIA
• PROCEDURE
• THE NATURE OF PROPOSAL OF THE HIGH JUDICIAL
  COUNCIL FOR ELECTION OF PRESIDENTS OF COURTS AND
  FIRST ELECTION OF JUDGES

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• REVOCATION OF THE SUBSTANTIAL PART OF
  JURISDICTION
• CRITERIA FOR DISPOSITION
• PROCEDURE

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DISMISSAL OF JUDGES

• REASONS FOR DISMISSAL
• PROCEDURE
• THE NATURE OF THE PROPOSAL OF THE HIGH JUDICIAL
  COUNCIL FOR ELECTION OF PRESIDENTS OF COURTS AND
  FIRST ELECTION OF JUDGES