The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. IFIMES has analysed the current events in Serbia with a special emphasis on Serbia's accession to EU membership and the functioning of its judicial system after the crisis which has escalated due the non-reelection of numerous judges and prosecutors. The most interesting sections from the analysis entitled “Collapse of the judicial system in Serbia” are given below. SERBIA: COLLAPSE OF THE JUDICIAL SYSTEM IN SERBIA Since the disintegration of SFRY the judicial system in Serbia has been constantly facing deep crisis. Already during the regime of Slobodan Milošević analysts had pointed to the catastrophic situation of the legal system. However, Serbia's judicial system faced even more serious situation after the Democratic Opposition of Serbia (DOS) won the elections on 5 October 2000, which further escalated due to non-reelection of judges and prosecutors in 2009 since they were not approved by the current governing regime which is symbolised by President Boris Tadić. Following the unlawful and unconstitutional rejection to re-elect the judges and prosecutors, EU institutions became indirectly involved in the resolving of this open issue. Serbia's government promised to implement radical changes after 5 October 2005 in all spheres of life, especially in the judicial segment. However, the situation further aggravated when the new authorities started to liquidate their opponents and all those who did not agree with the “racketing” carried out by the new government. The power of politicians was often stronger than the legal order because political elites subordinated the legal system to their authority and thus, in the opinion of analysts, brought about the collapse of the judicial system in Serbia. What does the reform of the justice system in Serbia represent? What are its goals, conditions, criteria? What results have been achieved? MISTAKES MADE BY THE HIGH COURT COUNCIL Analysts have pointed to a series of obvious mistakes made related to the non-reelection of judges and prosecutors. 1. The failures made by the High Court Council during the re-election procedure carried out in December 2009 were: a) to inform the non-reelected judge during the course of the procedure of the reason for doubting his/her professionalism, dignity and competence; b) to enable the non-reelected judge an insight into the evidence on the basis of which the existence of doubts regarding his/her professionalism, dignity and competence was concluded, as well as the evidence on the basis of which it was concluded that other candidates fulfilled the conditions; c) to enable the non-reelected judge, before the decision is made, to comment on the facts on the basis of which conclusions were made regarding his/her professionalism, dignity and competence; d) to serve the non-reelected judge with the decision stating the reasons on the basis of which it was concluded that he/she did not fulfil the conditions for the election and the reasons on the basis of which it was concluded that the other candidates fulfilled those conditions, as well as stating that the decision to file a constitutional complaint shall not compromise the complainant's permanent judicial function. Moreover, during the implementation of the re-election procedure the High Court Council carried out several activities which represent the violation of fundamental human rights and freedoms guaranteed in the Constitution of the Republic of Serbia and the European Convention for the Protection of Human Rights and Fundamental Freedoms, including the following: a) stating that all data related to the election procedure represent business secret; b) using personal data contrary to the Constitution and the law; c) making public statements regarding the realisation of rights of non-reelected judges, which undermined their personal and professional dignity. Thus during the re-election procedure the High Court Council violated the following rights and freedoms as laid down in the Constitution of the Republic of Serbia and the European Convention: a) the right to equal protection and legal remedy laid down in Article 36 of the Constitution of the Republic of Serbia and the right to an effective remedy laid down in Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; b) the right to work laid down in Article 60(4) of the Constitution of the Republic of Serbia and the right to possession laid down in Article 1 of Protocol 1 to the European Convention; c) the right to carry out a public function under equal conditions in line with Article 53 of the Constitution of the Republic of Serbia; d) right to a fair trial laid down in Article 32 of the Constitution of the Republic of Serbia and Article 6 of the European Convention; e) prohibition of discrimination laid down in Article 21 of the Constitution of the Republic of Serbia, Article 14 in relation to Articles 6, 8 and 13 of the European Convention and the principle of general prohibition of discrimination laid down in Article 1 of the Protocol 12 to the European Convention; f) the right to dignity laid down in Article 23 of the Constitution of the Republic of Serbia; g) the right to protection of personal data laid down in Article 42 of the Constitution of the Republic of Serbia and the right to respect for private and family life laid down in Article 8 of the European Convention; h) the right to information laid down in Article 51 of the Constitution of the Republic of Serbia and the freedom of expression laid down in Article 10(1) of the European Convention. In the performance of its activities, the High Court Council limited the above human rights and freedoms of non-reelected judges, especially the right to a fair trial, above the level permitted in the provisions of Articles 20 and 32(3) of the Constitution of the Republic of Serbia and Article 6(1) of the European Convention. The High Court Council thus failed to respect even the minimum standards required for the application of the provisions of Article 32 of the Constitution of the Republic of Serbia and Article 6(1) of the European Convention. 2. After the Constitutional Court of the Republic of Serbia adopted the first single decision following the complaint by the non-reelected judge (Decision No. 102/2010 of 28 May 2010), the High Court Council started in mid-June 2010 to issue new individual decisions on the cessation of judicial function to non-reelected judges, which “replaced” the decision of 25 December 2009 that applied to all 837 non-reelected judges. In some cases the decisions were served directly by the High Court Council while in other cases they were served by the Constitutional Court together with the letter to those who submitted a complaint against the decision of 25 December 2009, inviting them to state whether they wish to continue with the original complaint or else it would be regarded that they withdrew the complaint. If the complainant stated that he/she continued with the complaint, the Constitutional Court asked him/her to state the reasons on the basis of which he/she challenges the changed decision of the High Court Council and to submit the relevant evidence. Obviously the Constitutional Court will not regard the newly adopted decision as an independent new decision capable of being challenged; instead it will decide on the complaints against the decision of 25 December 2009 taking into account the statements in the new decisions which were adopted six months later (although that is legally not possible since in the new individual decisions, marked with the number and date of adoption, it is stated that the non-reelected judge's function ceased on 31 December 2009, and these decisions represent completely new independent decisions capable of being challenged and against which a complaint may be filed with the requirement for the annulment of this individual new decision, while such requirement could not be made in the complaint against the single decision of 25 December 2009). An analysis of the individual new decisions (written on 5 pages) clearly shows that the grounds for the decision are in most part (4 pages) the same for all non-reelected judges, while the reasons for doubting the professionalism, dignity or competence of the non-reelected judge are given in only one paragraph. However, the decisions do not state which evidence was collected and produced and they contain a series of inaccurate or false data both regarding the work of the non-reelected judges (reports on the work results for individual non-reelected judges were “framed” and on the basis of such “framed” or inaccurate and false data the non-reelected judges were proclaimed as non-professional and non-competent) and false data on the basis of which the High Court Council concluded that the candidate did not fulfil the conditions regarding the dignity (fully inaccurate presentation of the actual situation or false presentation of facts in order to justify at any price the decision on non-reelection, whereby the non-reelected judge was not given a chance to comment on those facts and to submit evidence in order to challenge the false statement made by the High Court Council). As reason for doubting the dignity of the non-reelected judge they even went so far as to state the investigation procedure which was dismissed with the force of res judicata because the public prosecutor withdrew from the criminal prosecution (no charges were filed because the procedure was dismissed already in the investigation phase) and the measure of prohibiting or suspending the judge's function which was a direct consequence of an unjustified and unlawful initiation and realisation of the investigation procedure (which was also subsequently dismissed), which means that any investigating procedure against the non-reelected judges, even though it was obviously unjustified and unlawful, represented reason for doubting their dignity (unlike in the case of individual elected judges). This triggers questions as to how the dignity was examined, what data were collected and from whom and whether use was made of unofficial evidence or data on the criminal investigation, police reports or opinions of some security service, information from the media, opinions of politicians or political parties, “personal memories” of individual members of the High Court Council regarding the work of certain non-reelected judges or some other information which is only known to the members of the commission which decided on the fate of the judges and prosecutors. “FLAT-RATE” AND NON-DOCUMENTED GROUNDS FOR NON-REELECTION The grounds for the non-reelection stated in individual decisions are “flat-rate” and non-documented (in one case a non-reelected judge was labelled as incompetent because during the investigated period he passed more decisions on the merits than non-merit decisions although all the decisions were confirmed by the court of second instance; in another case a non-reelected judge was labelled as incompetent because during the investigated period of 3 years he passed three decision after the expiry of the 30-day deadline, although in the same investigated period of 3 years some of the elected judges did not pass even one decision within the 30-day deadline or they passed much more decisions after the expiry of the 30-day deadline); sometimes those grounds were untrue or false (completely false data on the results of work were stated by the High Court Council in individual decisions, which differ significantly from the data in official reports on the work of the judges which were submitted to the High Court Council by the courts where those non-reelected judges performed their judicial function). On the basis of those grounds each individual judge was labelled as incompetent, unprofessional or undignified, which will follow him/her throughout his life and carrier. The High Court Council decided on the destiny of several thousands of people including judges and their families, carelessly labelling them as incompetent, unprofessional or undignified, thus practically preventing them from working and not giving them any possibility to defend themselves and challenge those accusations. The complaint submitted to the Constitutional Court has not proven to be an effective remedy, since as stated above the Constitutional Court can not be the right instance which would enable effective legal protection. Although priority was given to resolving judges' and prosecutors' complaints, and the deadline for their resolving already run out at the end of May 2010, the Constitutional Court has managed to resolve only one out of more than 1,500 complaints. Moreover, having announced it would resolve the complaints against the decisions issued on 25 December 2009 taking into account the statements in the new decisions which were adopted six months later, the Constitutional Court clearly stated its intention to violate several legal principles of the state governed by the rule of law. Thus individual decisions replaced the single decision of the High Court Council of 25 December 2009 and stated that the non-reelected judges shall cease to perform their judge's function on 31 December 2009. Each individual decision has its own number and date of adoption, while the complaints filed by the non-reelected judges contain the requirement for the annulment of the decision of 25 December 2009 since individual decisions did not exist at the time of filing the complaints. In April and July 2010 the Constitutional Court was staffed with the judges whose lives and professional carriers raise concern as to whether they will be deciding on the complaints independently, impartially and within a reasonable time while respecting all the aspects of the right to a fair trial laid down in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Even if the Constitutional Court eventually accepted a complaint, such decision would not be enforceable since it would not be binding for the High Court Council. The Constitutional Court can only reverse the decision of 25 December 2009 in the part related to the complainant and order the High Court Council to review within the given period of time its decision on the complaint filed by the complainant against the invitation to tender for the election of judges to permanent judge's functions to which he/she applied, although such review of the decision would be utterly pointless since other judges have already been elected after the above invitation to tender and no sanctions are provided for the High Court Council if it fails to act in line with the Constitutional Court's order. THE DECISION OF THE CONSTITUTIONAL COURT CAN NOT REPLACE THE DECISION OF THE HIGH COURT COUNCIL The adoption of individual decisions more than six months after the reelection has not rectified the mistakes made by the High Court Council which did not give the non-reelected judges the possibility to comment on the facts stated in the decision or to challenge them before the decision was adopted by the High Court Council. The grounds for the non-reelection of each individual judge stated in those decisions can not be used by the Constitutional Court as the basis for deciding on the merits, since the Constitutional Court is not authorised to decide on the fulfilment of the conditions for the election to the judge's function nor to elect the judges and it can therefore not estimate the professionalism, dignity and competence of the non-reelected judge. The decision adopted by the Constitutional Court can therefore not replace the decision adopted by the High Court Council since the Constitutional Court is not authorised to elect the judges nor is the High Court Council obliged to act in line with the decision of the Constitutional Court. What has the reform of the justice system changed? Is the judicial system independent? Are the results of the reform of the judicial system visible? It is not possible to provide appropriate answers to those questions. WHAT IS THE INFLUENCE OF PRESIDENT TADIĆ? Serbia's President Boris Tadić and other politicians from his political circle are trying to leave the impression of very modern and pro-European politicians in Brussels. However, their activities in the West Balkans have certainly proved that this is not the case. The fact is that even after he was elected as President of the Republic of Serbia, Tadić remained also the leader of the Democratic Party (DS). Besides Kosovo's President Fatmir Sejdiju (LDK) Tadić is the only president performing a double function – being the president of the party and the state at the same time. This was probably the reason why Tadić supported the law on performing double functions whose adoption may affect the increase of corruption rate. According to the corruption index from Transparency International Serbia is ranked 83rd. The actual situation in Serbia is that President Tadić introduced a presidential system without having changed the Constitution. The influence of the President's Office on the media is exerted through marketing. President Tadić is surrounded by people who are very good at marketing. Serbian political and media scene is increasingly turning into a marketing field for spinning, where one affair overleaps another, with the aim to divert attention from more important issues and problems such as unemployment, poverty and the difficult economic situation. However, public opinion polls have shown that the people are actually most interested in the latter topics. Analysts believe that the influence of Serbia's President Boris Tadić is present in all spheres of life in Serbia where he needs or wants to have that influence. IS BORIS TADIĆ HIDING BEHIND BOGOLJUB KARIĆ? Analysts have pointed to the almost forgotten fact that during his term of office as Minister of Telecommunication, Tadić was also the chairman of the management board of “JP PTT saobraćaja Srbije” (public enterprise of postal communications of Serbia), which had a joint company with “Mobtel” owned by Bogoljub Karić. From that period it is still not clear what role Tadić played in the initiation of bankruptcy procedure, determination of the amount of the share capital, preparation of the company for its sale to the buyer who was related to his Democratic Party (DS), sponsorships carried out by the order of Boris Tadić etc. The investigating bodies have not examined nor processed President Tadić on those issues yet. WHO IS SERBIA TRYING TO LIQUIDATE? The current events in Serbia inevitably point to the question of who Serbia is trying to liquidate. Obviously it is trying to liquidate large capital holders. After 5 October 2000 Serbia enabled certain individuals such as the owner of Delta company Miroslav Mišković to accumulate extreme wealth. The fact is that Miroslav Mišković accumulated most of his wealth after the year 2000, i.e. after the Democratic Opposition of Serbia (DOS) came into power. The concept of liquidation using the judicial institutions does not differ in any way from the concept used by Slobodan Milošević in his fighting for power. Miodrag Kostić, Zoran Drakulić, Milan Beko, Vojin Lazarević, Miroslav Mišković. Who is next? It started when Bogoljub Karić established the political party called “Power of Serbia” which represented a potential threat on Serbia's political scene, especially for the Democratic Party of Serbia (DSS) led by the then Prime Minister Vojislav Koštunica who initiated the prosecutions against Karić. From the registry of political parties it is evident that Bogoljub Karić is still the president of “Power of Serbia”, which points to the question of political motivation in this case. Obviously the law is not equally applied to all in Serbia. This is evident in case of Bogoljub Karić who was convicted before the judicial proceedings even started. All this points to a serious violation of the right to a fair hearing and the presumption of innocence as guaranteed in Articles 10 and 11 of the Universal Declaration of Human Rights. This is further confirmed by the media lynch which was led against certain individuals by certain media and the executive authorities. Information coming from the circles close to the ministries or the office of the prosecutor to which the media referred but from which those institutions have not publicly distanced themselves, justifiably question the independence and professionalism of those bodies as well as the media announcement of the expropriation of Bogoljub Karić and members of his family, which arouses doubts as to whether the announced expropriation activities will represent further violation of human rights of the Karić family and others who do not comply with the present authorities? Will this kind of activities carried out by the state bodies slow down Serbia's EU accession process? It is characteristic of democratic states that they enable a fair trial, the possibility to defend oneself and the equal treatment of all citizens. However, due to the above stated an impression has been created that in case of Bogoljub Karić that was not possible, since he was convicted before the judicial proceedings even started, as is evident from Serbian media reports and statements made by certain Serbian top officials. The judiciary remains in the hands of the government. Although several years have passed since the initiative for the constitutional review of the Extra profit Act and the Expropriation Act was submitted, the Constitutional Court of Serbia has not decided on that issue yet. In the daily newspaper Danas (14 August 2010) Serbian Minister of Justice Snežana Malović wrote an article in which she openly interfered in the independence of the judiciary, commented on individual cases and “gave instructions” to judicial institutions on what to do in concrete cases, especially in the case of the Karić family. This justifiably points to the question of independence and professionalism of judicial institutions and the influence on their work exerted by the government symbolised by President Tadić. WEAKENING OF DADIĆ AND SPS It is becoming increasingly clear what the situation on the political scene in Serbia is. In the new constellation of political relations, the Delta's owner Miroslav Mišković turned to President of the Serbian Progressive Party (SNS) Tomislav Nikolić for help and support. In the meanwhile Tadić and Nikolić made a political agreement with the goal among other to weaken the Socialist Party (SPS) and its president Ivica Dačić, whose constantly increasing popularity has endangered the position of Tadić's DS in the left political block. Thus we may soon expect a framed political affair against Minister Dačić. SNS holds the dominant position in the right political block. Being the Minister of the Interior Dačić takes most credit for the abolition of the visa regime for Serbia's citizens. Mišković, who participated in the financing of SNS since its establishment under the new Tadić-Nikolić political agreement, has thus gained indirect protection from President Tadić. FREEDOM OF THE MEDIA AND JOURNALISTS According to the Freedom House assessment of media freedom Serbia is ranked 78th. An analysis of today's media situation in Serbia reveals numerous similarities with the period of Milošević's regime. Although the repressive Information Act which Serbia has adopted is not being implemented, that does not alleviate the damage caused to the media and journalists. Even after 10 years of its power the democratic government in Serbia has not managed to find the motivators and assassins of journalists Slavko Ćuruvija, Milan Pantić and Dada Vujasinović. Recent attacks and threats against certain journalists (Dejan Anastasijević, Brankica Stanković, Teofil Pančić and others) have shown that sometimes not even the basic safety is guaranteed in this profession. On the other hand, a comprehensive discussion on the independence and autonomy of certain media would be necessary. PROPOSED RESOLUTION OF THE UN GENERAL ASSEMBLY Serbia has submitted a proposed resolution on Kosovo for the September meeting of the UN General Assembly. This has provoked an unnecessary conflict with the EU and the US. However, analysts have noted that Serbia may still honourably withdraw the proposed resolution if during the meeting it submits amendments to the contents of the resolution that would not be contrary to the positions of the EU and the US or that would represent an acceptable compromise. CONFLICTS MAY ESCALATE IN SANDŽAK In case of Sandžak Serbia's government is repeating the mistakes it made in Kosovo. Obviously there is a lack of political will for an appropriate dialogue and mutual respect, since the government keeps ignoring the legitimate representatives of Sandžak. This opens numerous unnecessary questions regarding the extent of discrimination against the ethnic and religious minority. Recent problems related to the appointment of the religious teacher and limitation of normal realisation of religious education by the ministry of education has further complicated the situation in Sandžak. The problems related to the Muslim community in Serbia were caused by the establishment of a parallel religious Muslim community installed by the then prime minister Vojislav Koštunica in 2007. The situation has culminated after the chancellor of the International University in Novi Pazar Mevlud Dudić was dismissed from the government commission for religious education and a new member was appointed from a minor parallel Muslim community in Belgrade which is supported by the major part of Serbian politics. Although Article 132 of the Law on the Basic system of Education explicitly lays down that the school directors appoint religious teachers on the basis of the list submitted by the traditional church and religious community, this right has not been ensured to the representative and autochthonous Serbian Muslim community in Novi Pazar. According to that law the commission for religious education is composed of the representatives of churches and religious communities. The government therefore decides on the representatives of the competent ministries who will sit in that commission. However, it may not decide on the representatives of churches and religious communities, as it did in the recent case. This jeopardises the autonomy of Muslim community in Serbia. Perhaps now is the last chance for Serbia to start talks with the representatives of Sandžak. Serbia's present policy of ignoring Sandžak will increasingly distance Sandžak from Serbia. It is therefore of vital importance for Serbia to implement decentralisation in order to resolve numerous problems, including those related to the Sandžak region. Analysts have noted that there are strong police (gendarmerie) forces and numerous members of the secret service present in Sandžak, which will not contribute to the stabilisation of this part of Serbia but rather destabilise the situation and eventually provoke unnecessary conflicts. Analysts do not exclude the possibility of proclaiming the autonomy and adopting the constitution of Sandžak. Decentralisation as the process of democratisation and accelerated development can offer the right answers to those challenges and the right instruments for creating better material conditions for the general development of less-developed regions, Sandžak obviously being one of them. The position of the IFIMES International Institute is that the representatives of international organisations, notably the EU representatives, should increase their monitoring in Serbia, since the (non)European actions and certain activities of Serbian government may jeopardise Serbia's European prospects and provoke an unnecessary escalation of conflicts. Especially they should increase the monitoring of the judicial system, politically motivated judicial procedures and the (lack of) activities related to the apprehension and processing of war crimes suspects. The EU is expected to send its observers to the Sandžak region in order to prevent the escalation of conflict. Ljubljana, 7 September 2010 International Institute for Middle East and Balkan Studies (IFIMES) - Ljubljana Directors: Bakhtyar Aljaf Zijad Bećirović