Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006other a professor at the law faculty.Presidents of Court may not be electoral members of the High Judicial Council.Tenure of office of the High Judicial Council’s members shall last five years, except for themembers appointed ex officio.A member of the High Judicial Council shall enjoy immunity as a judge.The independence and permanence of judicial functions are the basicprinciples of the right to a fair trial. They are undisputed in countries witha democratic social structure. Their contents are regulated by Acts of theEuropean Council. Recommendation number R (94) 12 of the Committeeof Ministers of the European Council regulates the rules of independence,efficiency and roles of the court. In Principe I, Paragraph 2c of theRecommendation it is stated:The organ which brings decisions on the election of judges and their advancement incareer should be independent from the Government and the complete executive authorities.In order to provide its independence, regulations should be made, for example, that ismembers are elected by the judiciary and that this body only decides on the rules by whichit will act 128 .Following the solutions from the Recommendation, the European Counciladopted in 1998 the European Charter on the Law for judges. In GeneralPrinciples, Paragraph 1.3 it is also stated:Concerning every decision which has influence on the choice, employment, appointment,advancement in career or the cessation of functions of judges, the law anticipates anintervention of organs independent from executive and legislative authorities, of whosemembership at least five are judges elected by their colleague judges, in a way whichguarantees the greatest representation of the judiciary. 129The Constitution regulates that the Parliament chooses the judges for thefirst time on the recommendation of the High Judicial Council. However,contrary to the recommendations of the Council of Europe, the electionof the members of the High Judicial Council who come from the judicialsphere is completely left to be regulated by the law. That means that theparliamentary majority could regulate the criteria for the election, determinewho gives recommendations and in the end elect six judges of their own128 Recommendation of the Council of Europe number 12, see above under 34129 European Charter on the law for judges, see above under 3338
Implementation of Transitional Laws in Serbia 2006liking in the High Judicial Council. With this solution, the principle of theindependence of judicial authorities has been seriously threatened. TheEuropean Commission has listed the faults of the mechanisms whichwould guarantee the independence of the judiciary as one of the basicfaults of the new Constitution 130 . Representatives of the judiciary in Serbiahave also criticized such a solution, stating that it would lead to a greatinfluence of executive authorities on the judicial authorities 131 . The Judge ofthe District Court in Belgrade, Omer Hadziomerovic, claims that the HighJudicial Council is „by its composition and the way of electing members,actually a parliamentary body“ 132 . Objections to the election of the HighJudicial Council, but also to some other regulations in the Constitutionwhich regulate judicial authorities, were presented by the President of theSupreme Court of Serbia, Vida Petrovic Skero 133 .130 The report of the EC can be found on the website of the Delegation of the European Commission inBelgrade: http://www.delscg.cec.eu.int/en/eu_and_fry/key_documents/documents/2006_Annual_Progress_Report_(sr_sec_1389_en).pdf,visited on November 24 th , 2006; the cited part of the report in Serbian wastaken fro the website of B92: http://www.b92.net/info/vesti/index.php?yyyy=2006&mm=11&dd=08&nav_category=11&nav_id=219052, visited on November 24 th , 2006131 Interview of Dragana Boljevic, spokesperson of the Judges’ Association of Serbia in the TV show«Poligraf» on B92, 25th October 2006, available at the website: http://www.b92.net/info/vesti/u_fokusu.php?id=122&start=60&nav_id=217052, visited on 14th November 2006132 Independence without warranties, POLITIKA, November 10 th , 2006, available at the website: http://www.politika.co.yu/detaljno.php?nid=11642, visited on November 24 th , 2006133 Better judiciary wants good judges, POLITIKA, November 10 th , 2006, available at the website: http://www.politika.co.yu/detaljno.php?nid=11644,visited on November 23 rd , 200639
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Implementation of Transitional Laws in Serbia 2006

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