Article 70 Of Law On Judges Found Unconstitutional

Considering a petition submitted by the Humanitarian Law Center (HLC), the Serbian Constitutional Court has found that Article 70 of the Law on Judges is in contravention of the principle of separation of powers enshrined in Article 9 of the Serbian Constitution.  The Court ruled the provision in violation also of Article 101 (4) of the Constitution, which states that the Supreme Court, not the Judicial Administration Council (JAC), establishes when reasons exist for removal from judicial office.

Under the unconstitutional article, proposals for the nomination and dismissal of court presidents are made by the JAC, which is made up of the Justice Minister, Chairman of Parliament’s Judicial Affairs Committee, President of the Serbian Supreme Court, and four judges of district or other superior courts who are all appointed by Parliament.  Owing to this composition, the executive branch of government has a predominant influence in the JAC.

Where the appointment and dismissal of court presidents is concerned, the European Charter states that national law must provide for the participation of a body independent from the executive and legislative branches, and in which at least one half of the members are judges appointed in a manner guaranteeing the broadest representation of the judiciary.

The HLC welcomes the decision of the Serbian Constitutional Court which, in considering the constitutionality of legislation with an impact on the independence of the courts, demonstrated its adherence to the rule of law and the principle of separation of powers.

In view of the importance of the office of court presidents, the HLC calls on the competent authorities to ensure the achieved level of the independence of the judiciary by adopting new legislation on the appointment and terms of judges to this office, and their dismissal.  The HLC urges that court presidents be appointed and dismissed under the same procedure as other judges.