PRAVNI ZAPISI • Year I • No. 1 • pp. 139-149
RECYCLED JUDICIAL REFORM
Prof. dr Zoran Ivošević
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, no. 1/2010, pp. 139-149
Original Scientific Article
Judicial reform, court system, court network, shortcomings in regulations, shortcomings in the application of regulations.
Legislation on judicial reform established a new court system, a new court network and a new position of judges. According to the Law on Organisation of Courts, judicial power is performed by courts of general and special jurisdiction. General jurisdiction belongs to basic courts, higher courts, appellate courts and the Supreme Court of Cassation. Special jurisdiction belongs to misdemeanour courts, the Higher Misdemeanour Court, commercial courts, the Appellate Commercial Court and the Administrative Court. The highest court in Serbia is the Supreme Court of Cassation. The court network consists of 34 basic courts, 24 higher courts, 4 appellate courts, 45 misdemeanour courts, Higher Misdemeanour Court, 16 commercial courts, Appellate Commercial Court, Administrative Court and Supreme Court of Cassation. The position of judges is regulated by the Law on Judges and is conditioned by the Law on the High Judicial Council. The former law regulates the independence and mandate of judges; incompatibility and compatibility in performance of judicial functions; conditions and criteria for election of judges and presidents of courts; evaluation of the work of judges and court presidents; termination of judicial functions and of the mandate of court presidents; removal of judges; accountability of judges. The position of judges does not depend only on the quality of legislation, but also on its proper application.
The quality of legislation was impaired through transitory provisions of the mentioned laws. There are faults in the application of legislation, as well, especially in the procedure of general election of judges.
Faults towards those who were elected have struck the sitting judges. Among the re-elected judges, some of them have participated in the 1996 election fraud, been in conflict of interest, were facing acquittal, passed problematic decisions humouring daily politics, or were inefficient or unsuccessful. Among judges who were not re-elected, there are those who have successfully and in a professional manner conducted their judicial duties, were efficient and dedicated to their calling. The faults of those who conducted the election concern the premature constitution of the High Judicial Council, work of the Council in an incomplete composition, unconstitutional presiding of the Council and ignoring the specific position of sitting judges during the process of general election.
The process of general election ended with a decision which does not contain individualised reasoning for non-election.
The legality of the general election will be decided upon by the Constitutional Court, before which the procedure on appeal by the non-elected judges has already started.