On the appointment of justices and prosecutors

Serbian legislature is in bad shape and it needs to be reformed. We agreed on this point last year, when we passed the laws designed to reform the legislative system in Serbia. Already then I pointed at two existing problems. One was that the deadline set for the completion of the reform is too short; the other concerned the very conception of the legislative reform.

To be clear, this government has envisaged a reform too extraordinary in its scope and quite incomparable to any set of reforms in any other country. In practical terms, this reform meant revolution. It was to start off from the legislature’s degree zero, which basically meant that all judges and prosecutors were to be suspended for a moment, only to be appointed anew, regardless of whether this was going to be their first appointment or a reappointment. Such a radical reform had to be preceded by thorough research which would obtain a realistic image of the problems embedded in our legislature, and help design a reform capable of grappling with essential problems. Instead, the reform created a total mess, the consequences of which cannot be predicted. I must add that not even a regime as authoritarian as that of Joseph Visarionovich Stalin, ever decided to change all judges and all prosecutors at the same moment. Also, I believe that neither this government, nor the individuals who designed the reform and the appointment of judges and prosecutors have the reputation or the capacity to implement such a vast change.

Furthermore, the problem of juridical corruption and the question of why citizens have no trust in judicial institutions remain insufficiently clear. I believe that only a small number of individuals in the judiciary received bribes. But it is political pressure that remains an old, lagging illness of our juridical system. Nepotism and the impact of “friendly connections” are traditionally influential elements. Our judicial system has been turned upside-down on the largest possible scale, albeit without any clear insight into the core of the problem. It is precisely the way in which justices and prosecutors are being appointed and promoted that I believe to be the key cause of corruption within our judiciary. This is where the crash of moral integrity occurs. And consequently, this is what leads to the lack of expertise, which happens to be a tremendous problem of our judges and prosecutors.

Since the procedure for the nomination and appointment of judges and prosecutors once again remains nontransparent, it is reasonable to suppose that it had been carried out in a manner of voluntarism, i.e. without a strict application of the criteria for the assessment of judges and prosecutors. The very manner in which we were addressed by the President of the High Judiciary Council and the President of the National Council of Prosecutors encourages our suspicion. By now you ought to have responded to all of the doubts that have emerged in the public. Instead, however, you decided to read aloud, from a piece of paper, the text written in advance, which we could have just as well read ourselves. But what you ought to have described, in detail, was how you worked; did you always work plenarily or were there “working groups”; did you obtain an opinion from a higher court (form the Prosecutor, that is) about each and every candidate; how much time did you have to spend on each candidate (according to one calculation, you seem to have spent five minutes on each application); which selection methodology did you apply; what kind of dilemmas did you encounter along the way; were the meeting minutes taken that would allow an insight into your work? While it was your duty to clear even the tiniest suspicion concerning the correct procedure and correct application of criteria, we heard nothing about these concerns. To me, your laconic behavior, which suggests that everything was done in keeping with the law, in accordance with the criteria and, of course, in compliance with the “European standards,” is simply appalling.

Let me ask a laconic question. If you had three assessment criteria – expertise, effectiveness, and moral integrity – how did you combine them? Did the selected candidates have to fulfill all three criteria, or perhaps only one, or two, or none? Which percentage of the selected ones did fulfill all three criteria? Was moral integrity of judges taken to be the necessary condition for appointment? For, as the logic goes, he who is not effective enough, can be trained more – effectiveness can be achieved through learning. But if neither a judge nor a prosecutor have moral integrity and moral character, they simply must not be appointed judge or prosecutor.

Let me return to the issue of moral integrity of judges, since this is what sparked most criticism in the public. This criterion has been very generally and vaguely defined – you didn’t quantify it, although you could have, if only you had enough will and time. Obviously, it was applied in a manner of voluntarism. And it was obviously meant to cover the issue of conflict of interest, although this particular criterion had not been known in advance. Marital ties of justices and lawyers were scrutinized. This prompted a large debate in the  public. In other words, did you take into account conflict of interest, and if yes – how did you define such conflict? Some claim you took into account only marital ties – though not even this was done consistently, but rather on a case-to-case basis – while other family ties were not counted as conflict of interest. For example, you, as President of the High Council, did not answer whether or not you abstained from voting when your son’s application was being considered? If you did, there must be a report about it, the one we can check and verify the fact. I am sorry, you seem agitated all of a sudden, but abstaining from vote in this case is absolutely necessary. Mrs. President of the High Council, please hear out these objections patiently.

These questions concern the already (re)appointed judges, as much as the selection of new judges, those appointed for the first time and previously nominated by the High Judiciary Council (new prosecutors are nominated by the National Council of Prosecutors). It is their appointment that we are to discuss in the Parliament today. The list of new judges contains 876 nominated candidates. We received the list on Friday evening, when not a single MP was in the Parliament building. This is to say – we could have access to the list on Monday, immediately before the session, when there was no longer time to analyze the list which contained only the candidates’ names. True, each Parliamentary party’s group received a copy with candidates’ personal information and biographies, but we had no time to process the data. And you could have made the list more transparent by ordering it in accordance with each candidate’s GPA (grade point average).

I really have to ask now why you didn’t supply the university GPAs. You put only the names on the website, but hid their average university score, thinking perhaps that no one would care to dig through a heavy pile of information about the candidates. You knew also that we have no time for it. Well, you see, I managed to do a little research and to process the data on several of them. One of the nominees was Aleksandar Đurić, whose mother is Olga Đurić, Administrative Court judge, former judge of the Supreme Court of Serbia; his GPA is 7.2, length of study: six years. Why didn’t you put this on the web site as well? Another case: Dejan Stefanović, mother Margita Stefanović, judge of the Appellate Court in Belgrade, GPA 7.8, length of study: six years. Ana Trifunović, father Predrag Trifunović, Supreme Court judge, GPA 7.85, length of study: four years. Nataša Petrićević-Milosavljević, mother Nada Petrićević, non-appointed judge of the Supreme Court of Serbia, GPA 8.6, length of study: five years. Maja Peković-Savić, father Novica Peković, appointed judge of the Supreme Court of Serbia, length of study: six years GPA 8.6.

There is one more curious fact here concerning the nominated judges. One of the nominees is Tanja Trkulja-Vasić, whose husband is Dragan Vasić, leader of Red Star sports fans. But this is not all. Her sister, Maja Trkulja, is employed in a lawyer’s office together with Jugoslav Tintor. They are both paid by the Red Star Football Club to represent its fans when they find themselves before the court due to social unrest that they cause.

Such low transparency of your own work is a clear indication that unprejudiced operation of the High Council is the weakest point of our judiciary. I hope we can agree that, if a judge kneeled before a politician, or if he passed verdicts under the influence of political decisions, he cannot be considered morally qualified for reappointment. You must have been aware of the fact that you chose the judges who, under the guise of law, had applied political criteria in their decision-making, especially during the election-related lawsuits in 1996, 1997 and 2000; in cases that involved political parties; in trials that violated human rights, such as illegal detention. But it is also the fact that among the appointed judges there are those whose intentional procrastination led to the invalidation of the case due to the statute of limitations. You know that at the point when charges were being pressed in more than 67 counties in Serbia and in all Belgrade districts, courts passed verdicts that denied citizens’ election vote. These are the justices you consider to have moral integrity, and they were reappointed. Among them are: Ana Popović, Vesna Obradović, Smiljka Nigarac-Niciforović, Miroslav Vučetić, Jasna Belović, Bojana Paunović, Milomir Nikolić, Danijela Nikolić, Jasminka Obućina. Due to time restrictions, this list is, unfortunately, incomplete. However, it contains names such as Vesna Mitrović, from the Požarevac District Court, who signed an investigation warrant and requested a two-month detention for Veljković, Luković and Sokolović, the three members of OTPOR.

As regards the appointment of prosecutors, the situation is the same. I have personally received complaints from various citizens – one of them, for example, from Zrenjanin. The citizen is complaining that one of their best Deputy Prosecutors, Zoran Đuran, was not reappointed.

The least you can do is provide an explanation to all non-appointed candidates as to why they had not been selected. An account of your decisions – both about those who have been and those who have not been appointed alike – would provide an insight into your entire work, and into the kind of judiciary we have been given.

Shortened and revised speech delivered in the National Parliament of Serbia on December 23, 2009.

Translated by Vesna Bogojevic

Peščanik.net, 30.12.2009.