The Council of Europe (CoE) Venice Commission published on Monday its opinion on Serbia's draft proposal on Constitutional amendments, saying it welcomed them and recommended improvements, calling for the continued involvement of opposition.
On Friday, Serbia’s Justice Ministry said the Commission gave a positive opinion on the suggested Constitutional changes but did not mention other parts of the report.
The Commission’s opinion reads as follows.
„The initiative of the Serbian authorities to bring the 2006 Constitution in line with European and international standards, albeit only on the part of the judiciary, is to be welcomed, but the parliamentary opposition should continue to be involved in the constitutional reform process.
Besides, there is room for improvement on the substance, notably concerning the election and the composition of the High Judicial and High Prosecutorial Councils, said the Council of Europe’s body of constitutional law experts, the Venice Commission, in its opinion on the draft constitutional amendments on the judiciary in Serbia published today.
„In comparison to the situation in 2018, there currently appears to be the necessary political momentum in Serbia to achieve a satisfactory result“,
said the Venice Commission. It noted that the process of public consultations for these draft amendments could be characterised as ‘sufficiently inclusive and transparent.’
However, in the context of the current Serbian political landscape – with a one-party majority in the National Assembly and the absence of the parliamentary opposition – there is a strong need to adopt an inclusive approach in order to reach as broad legitimacy for the constitutional reform as possible among all institutional actors and all political forces in Serbia. „It is therefore important for the Serbian authorities to actively seek the participation and involvement of the opposition,“ the Venice Commission argues.
On substance, the Venice Commission welcomes, inter alia, the introduction of the principle of non-transferability of judges, functional immunity for judges and prosecutors, the removal of the probationary period for judges and prosecutors, the provision according to which the High Judicial Council will no longer be dissolved if it does not render a decision within 30 days and, most importantly, the removal of the competence from the National Assembly to elect court presidents, the Republic Public Prosecutor and public prosecutors and to decide on the termination of their office as well as to elect judges and the deputy public prosecutors.
To improve the draft amendments, the Council of Europe experts recommend, inter alia, reconsidering the composition of the five-member Commission, which constitutes the anti-deadlock mechanism that is supposed to elect members of the High Judicial Council and the High Prosecutorial Council in case the National Assembly fails to timely elect them.
„There is a danger that the anti-deadlock mechanism meant to be an exception becomes the rule and allows politicized appointments,“ warns the Venice Commission stressing the need to encourage consensus.
While welcoming the proposal for the High Judicial Council (HJC) to be composed of 11 members, the Venice Commission recalls that pursuant to European standards, no less than half of its members should be judges appointed by their peers.
Besides, while the two-thirds majority requirement in the parliamentary vote on the HJC is welcome and should be kept, eligibility criteria designed to reduce the risk of politicisation should be added.
There are now fewer prosecutors in the High Prosecutorial Council than in the past – this is not to be recommended, says the Venice Commission, calling for more public prosecutors elected by their peers in its composition.
With respect to the time constraints that are partly due to the planned dissolution of the current National Assembly in view of holding early elections in the spring of 2022 – the Venice Commission reiterates that it is not its role to solve these time constraints.
However, it is crucial for the Serbian authorities to amend, by way of priority, the Law on the Referendum in line with the recent Venice Commission’s recommendations, as this Law will be applicable to the constitutional referendum to be organised after the adoption of the draft constitutional amendments.