War crimes trials in light of constitutional amendments

On January 22, 2018, the Ministry of Justice published a working text that envisages amendments to the Constitution in the provisions governing the work of the judiciary. The Humanitarian Law Center (HLC) would like to point out that the proposed amendments to the Serbian Constitution reduce the currently attained level of independence of judges, as well as the autonomy of prosecutors, only to relocate the existing political influence on the judiciary from the National Assembly to the High Judicial Council, through the “distinguished lawyers” who  constitute this body and independently have the majority in making decisions, as well as the authority to introduce institutes and institutions through which the executive power can directly exercise political influence on the election of judges and prosecutors. Bearing in mind the previous work of the Office of the War Crimes Prosecutor (OWCP) and of the Special Council of the Higher Court in Belgrade regarding war crimes, characterized by the small number of indictments, the non-processing of medium and high-ranking members of the army and police, the absence of political support for trials and the delays in proceedings, the HLC considers that the proposed amendments to the Constitution will only contribute to the continuation of such a manner of working, owing to political pressure, which is bound to come from the change in the composition of the High Judicial Council and of non-judicial bodies that would be receiving quasi-judicial powers.

By adopting the proposed amendments, the work of the entire judicial system of Serbia will worsen, and the HLC points out that from the perspective of war crimes trials, three solutions are especially problematic:

1. The introduction of the Judicial Academy as a constitutional category, from whose ranks exclusively future judges and prosecutors in the Serbian judiciary would be elected. Considering that the Law on the Organization and Jurisdiction of Government Authorities in War Crimes Proceedings (Articles 10 and 14v) requires that during deployment or referral to the Department of the Higher Court, priority is given to judges possessing expertise and experience in the field of international humanitarian law and human rights, and that defendants or suspects in these proceedings are assigned lawyers who, inter alia, possess the necessary knowledge and experience in the field of international humanitarian law and human rights, the question arises as to whether the trainees of the Judicial Academy are generally capable of becoming the bearers of judicial or prosecutorial functions in war crimes proceedings. Bearing in mind that the training programme for the trainees of the Judicial Academy is not covering adequately or at all the field of international humanitarian law, the HLC points out that they will not be able to respond to the tasks in war crimes proceedings. Denial of the right of the associates and assistants already working with judges and prosecutors in the specialized departments to apply equally for judicial and prosecutorial positions, would be a step backward in the work of this part of the justice system.

Besides, the possibility for the executive power to influence the selection of future judges and prosecutors is also left in the provisions of the Law on the Judicial Academy, according to which the Judicial Academy Board of Directors is authorized to conduct a preliminary selection of initial trainees for future training as judges and prosecutors, from whose ranks those who execute these functions would later be selected. In this way, the role of the High Judicial Council and of the High Council of Prosecutors would be undermined, and only those candidates who have completed training at the Academy would be chosen for the holders of judicial functions, whose selection was previously performed by the Board of Directors of the Judicial Academy as a non-judicial body. The indirect exclusion of the High Judicial Council and of the High Council of Prosecutors as the bodies that should be independently responsible for  the selection of the best candidates for bearers of functions in the courts and prosecutor’s offices would also affect the work of the specialized prosecutor’s office and the war crimes court, as by preventing them from selecting bearers of functions outside the candidates from the initial training at the Judicial Academy, the quality of the work of future judges and prosecutors in these fields of the judicial system would be called into question. Adding to this a complete absence of training regarding international humanitarian law, it can be said that the judiciary of Serbia would, beyond any doubt, only regress when it comes to war crimes trials.

2. Direct pressure on the work of the judges would also be the result of a decision according to which the minister in charge of the judiciary would be able to initiate disciplinary proceedings and a procedure for the dismissal of judges and presidents of courts. Although the provision of Article 64 of the Law on Judges in paragraph 1 provides that an initiative for dismissal of a judge can be submitted by any person, including the minister in charge of the judiciary, increasing this right of the competent minister to the level of a constitutional provision can have no other purpose other than the introduction of another channel through which the executive power could put pressure on the judiciary. The HLC recalls the statement made by the former President of the Republic of Serbia to the daily “Politika”, when he warned the then War Crimes Prosecutor, Vladimir Vukčević, that he should ” pay attention to what he is digging up in Serbia” – words which constituted the most drastic form of influence on the work of the OWCP. Bearing in mind the experience so far in the specialized War Crimes Chamber, where the pressure on the work of judges and prosecutors has come directly from the top of the executive power, such a solution would only be the legalization of an already unacceptable interference in the work of the judiciary.

3. The constitutional amendments especially worsen the position of prosecutors, as is also reflected with the possibility of the permanent transfer of the deputy public prosecutor to another public prosecutor’s office without his consent, thereby opening the space for punishing those deputy prosecutors who are not willing to accept political pressures from the executive power. The HLC in particular points to the position of deputy prosecutors in the OWCP, whose work, by virtue of this proposal to amend the Constitution, would become even more difficult. Bearing in mind the fact that war crimes trials are particularly sensitive as such, and that the need to investigate and prosecute crimes committed by members of the army and police of the Republic of Serbia should be constantly insisted on, as well as that proceedings against high-ranking officers who are still active in the army or the police should be conducted, the role of each prosecutor in this department is of great importance, especially in the light of his/her autonomy to exercise the function. What is more, the various types of pressure on the work of the OWCP that are reflected in the demands for the processing of crimes against Serbs, the earlier mentioned statement by the previous President of Serbia regarding the work of the then prosecutor Vladimir Vukčević and similar actions by the holders of the executive power, necessarily demand that a future solution – which should be arrived at by amendments to the Constitution – should go in the direction not only of the autonomy of the prosecution, but also its independence, modelled on the status of judges. Instead of the writers of the constitutional amendments taking a step in this direction, however, they have decided that the prosecutors’ already unequal position be downgraded still further.

The HLC points out that the primary idea of an amendment to the Constitution should be to improve the position of judges and prosecutors, as reflected in a greater degree of independence and autonomy, and the elimination of political influence in any way by the legislative and especially the executive powers, as well as ensuring the protection of citizens’ rights in court. Bearing in mind the current situation in the OWCP, as well as in the specialized council of the Higher Court in Belgrade, which is manifested in  lack of political support for the processing of war crimes, the long-term duration of court proceedings, the absence of indictments against high-ranking perpetrators of war crimes committed in the former Yugoslavia, and the absence of independent investigations, it can be concluded, beyond any doubt, that it is necessary to improve the independence and autonomy of judges and prosecutors with amendments to the Constitution. Instead, the solutions offered not only do not achieve these goals, but they directly subordinate the judicial power to the executive power, which now has the space to limit the work of the judicial authorities in additional ways. The HLC therefore believes that it is necessary to withdraw the proposed amendments and, with the consent of the expert public, to prepare a new text.