Requested by: Serbia, Ministry of Justice

Recommended Measures:
- The draft Law should specify that candidates who were elected officials or members of the Government or members of political parties with leading roles cannot be seen as “worthy” and should therefore not be eligible for the HJC. The draft law should equally stipulate that those candidates whose close relatives, spouses and partners were active in politics are ineligible ; - Describing more precisely in which situations the mandate of a member of the HJC may be terminated by, inter alia, linking it to a behaviour (and not only general “unworthiness”).

Measures taken: The texts submitted to the National Assembly for adoption were modified as compared to the texts examined by the Venice Commission in October and December 2022, and further amendments were made during the parliamentary discussions. The overall direction of the amendments corresponds to the recommendations of the Venice Commission. In particular, the laws now indicate that in ensuring proper judicial administration court presidents should not interfere with the adjudication process and a general rule prohibiting interference with the conduct of court proceedings in individual cases is introduced. The composition of the Ethics Committee and the principles of ethical behaviour of judges are now defined in the law. “Frequent” failure to participate in the work of the High Judicial Council (HJC) and the High Prosecutorial Council (HPC) without justifiable reason is added as a ground for termination of the mandate. Possibilities for the secondment of judges are restricted, evaluation criteria are mentioned in the law, the notion of the “repeated disciplinary offence” is defined more narrowly. The notion of the “improper influence” on the work of the courts is further limited. The power of the prosecutor to request documents or information is restricted to cases where there is a special “legal authority” for such requests. Clarifications are introduced describing the procedure of objections against mandatory instructions of upper prosecutors, the right to object against the annual work schedule is introduced. Some recommendations were not sufficiently addressed: for example, the interrelation between the procedure of dismissal and the disciplinary proceedings, and the role of the HPC and the HJC in those proceedings, remain somewhat unclear. Finally, some of the amendments introduce new legal mechanisms, not analysed in the October and December opinions. For example, the role of the two councils in the budgetary procedure is redefined, and certain new disciplinary offences are created. Most importantly, the laws on the HJC and the HPC introduced a new procedure for the shortlisting of the candidates to the positions of lay members in the two councils, which is the task of the Judiciary Commission of the National Assembly (the JC). This was at the focus of attention of the Commission which recommended that this process should lead to a shortlist of candidates who are either politically neutral or at least politically diverse. The pre-selection procedure now comprises three rounds. It starts with a vote by a 2/3 majority in the JC. If no requisite majority is attained, in the second round a 3/5 majority is required. If this majority is not reached either, the matter is transmitted to a 5-member commission composed of the Speaker, the President of the Supreme Court, the President of the Constitutional Court, the Prosecutor General, and the Ombudsman. This commission will directly elect the lay members to each of the two councils (without a vote at the National Assembly). In its December 2022 opinions the Venice Commission welcomed the introduction of a 2/3 majority requirement for the shortlisting decision by the JC. As to the new anti-deadlock mechanism, the Serbian authorities were confident that it was constitutionally permissible. The same 5-member commission is mentioned in the Constitution as an anti-deadlock mechanism in the case the National Assembly cannot select the 4 candidates (which requires the 2/3 majority vote by all candidates). It remains to be seen whether this mechanism will ensure apolitical (or politically diverse) lay component of the two councils. To contribute to the depoliticisation of these appointments the two laws also strengthened the ineligibility criteria for the candidates. Thus, members of Parliament and top government officials are barred from being candidates, and the candidates should also not be in a position of “strongly influencing the making of political decisions”. This is positive, although the two December opinions recommended even more extensive and specific ineligibility requirements, to create a “safety distance” between lay members and party politics. In sum, the adoption of the five laws is an important advance in the process of bringing the Serbian judiciary in line with the European standards.