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RR RUEHAG RUEHAST RUEHDA RUEHDBU RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA
RUEHLN RUEHLZ RUEHNP RUEHPOD RUEHROV RUEHSK RUEHSL RUEHSR RUEHVK
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DE RUEHBW #1284/01 3061230
ZNR UUUUU ZZH
R 021229Z NOV 09
FM AMEMBASSY BELGRADE
TO RUEHC/SECSTATE WASHDC 0342
INFO EUROPEAN POLITICAL COLLECTIVE
RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
RHMFISS/HQ USEUCOM VAIHINGEN GE
RUZEJAA/JAC MOLESWORTH RAF MOLESWORTH UK

UNCLAS SECTION 01 OF 04 BELGRADE 001284 
 
SENSITIVE 
SIPDIS 
DEPARTMENT FOR EUR/SCE (P. PETERSON), INL (A. SIMIC) 
 
E.O. 12958: N/A 
TAGS: PREL PGOV SR
SUBJECT: SERBIA'S JUDICIAL REFORM PROCEEDS DESPITE CONTINUING 
CONTROVERSY 
 
REF: A) 08 BELGRADE 1250; B) BELGRADE 32 
 
Summary 
 
------- 
 
 
 
¶1.  (SBU) Serbia's National Assembly passed in late 2008 an 
ambitious judicial reform package in line with requirements in the 
2006 Constitution, and the government immediately began the process 
of implementing the new laws.  The laws are intended to increase 
judicial independence and efficiency and eliminate corruption. 
Although the draft legislation was modified before passage to 
address concerns raised during the public review process, there 
nevertheless remain many concerns about possible political 
influence, lack of transparency in reselection of judges for the 
entire system, and the difficulties presented by such massive 
change.  Despite these concerns, the government appears to be 
proceeding in good faith, but needs to take the important step of 
educating the public before the benefits the new system can be 
realized.  End Summary. 
 
 
 
Status of Judicial Reform Package 
 
--------------------------------- 
 
 
 
¶2.  (SBU) The package of judicial reform legislation passed on 
December 22, 2008, after several modifications to address concerns 
expressed by civil society and the international community (Ref A). 
The package passed with little discussion in the National Assembly, 
with only the Democratic Party of Serbia (DSS) opposing.  The 
government immediately began taking steps to implement the new 
system.  It constituted in March 2009 the High Judicial Council 
(HCC) and High Prosecutorial Council (SPC), which will control the 
courts' and prosecutors' budgets and be responsible for hiring, 
firing, and disciplining judges and prosecutors.  The Councils then 
developed criteria for selection of new judges and prosecutors for 
an entirely new court system, and the government submitted the 
draft criteria to the Venice Commission for comment.  The 
government published a call in the official gazette for 
applications for the new court system July 15, which were due July 
¶30.  The two councils are now meeting to evaluate the applications 
from both sitting judges and prosecutors and new applicants.  The 
new court system, with elected judges and prosecutors, must by law 
be in place by January 1, 2010. 
 
 
 
¶3.  (SBU) The changes the legislation brings are intended to bring 
greater judicial independence and efficiency, in line with European 
Union standards.  There is a long-recognized need for reform after 
political interference in the judiciary during the Milosevic era. 
Public officials have repeatedly emphasized that the laws were 
aimed at removing corrupt judges and prosecutors and ensuring that 
future judges and prosecutors were high-caliber and under proper 
oversight.  The courts will also be responsible for their own 
budgets and administration, making their operations less beholden 
to ministries run by politicians.  Finally, officials note that a 
new court system and better personnel will also make trials more 
efficient and reduce case backlogs, shortening the time citizens 
receive justice and increasing confidence in the system. 
 
 
 
Political Influence 
 
------------------- 
 
 
 
¶4.  (SBU) Concerns remain that the legislation will not produce a 
stronger, more independent judiciary.  The original draft bills had 
specified criteria for election to the HCC and SPC and had a 
bottom-up approach, with judges and prosecutors selecting council 
members.  The final legislation instead required the then-current 
High Judicial Council to nominate members of both organizations, 
whom the National Assembly then confirmed.  After the councils were 
formed in April, OSCE Serbia Rule of Law and Human Rights deputy 
 
BELGRADE 00001284  002 OF 004 
 
 
head Livio Sarandrea told us the new mechanism permitted political 
influence over the selection process.    International 
Communication Partners (ICP), a consulting firm often critical of 
government policies, issued a report on October 23 echoing these 
concerns and added that if the goal was to eliminate a corrupt and 
inefficient system, the top officials of the existing system should 
not have been allowed to select their successors in the new system. 
 
 
 
 
Judge Selection Constitutional and Fair? 
 
---------------------------------------- 
 
 
 
¶5.  (SBU) The draft bills and final laws were criticized for 
requiring a new selection of judges, forcing sitting judges to 
compete for their own jobs when the Constitution had given them a 
lifetime mandate.  Justice Ministry Assistant Minister for European 
Integration and International Projects Dragana Lukic told us in 
June that there was no way to transfer existing judges to a 
completely new court architecture without a new selection, because 
the number of judgeships was reduced and there were no one-for-one 
equivalents in the new system.  Justice Minister Snezana Malovic 
explained to us in May that the requirement was constitutional 
because current judges had been appointed and given lifetime 
mandates under the previous Constitution; since the 2006 
Constitution called for the new HCC to elect them, they had to 
obtain a new permanent mandate.  Justice State Secretary Slobodan 
Homen told us October 19 the selection process also was intended to 
weed out corrupt or incompetent judges and bring "new blood" into 
the courts. 
 
 
 
¶6.  (SBU) Speculation remains about what may happen to sitting 
judges who do not receive a new position.  The Judges' Association 
of Serbia filed a lawsuit challenging the constitutionality of 
requiring the reselection.  The Constitutional Court ruled it 
constitutional on July 9.  Homen estimated that 500 or 600 sitting 
judges would be left without a position after the selection and 
would cease to be judges at that point.  He predicted many would 
file individual Constitutional Court challenges, but he anticipated 
the suits would be dismissed under a provision that civil servants 
could not sue the government.  Homen noted the reselection was a 
one-time process -- after the initial selection, the HCC would fill 
new vacancies only with graduates of the soon-to-be-created 
Judicial Training Academy, who would have proven their merit by 
winning a spot at and graduating from the Academy. 
 
 
 
¶7.  (SBU) The selection criteria for new judges and prosecutors 
generated further controversy.  The Justice Ministry submitted the 
criteria to the Venice Commission for review in March.  In its June 
report, the Venice Commission expressed several concerns, including 
lack of specificity in evaluating judges' and prosecutors' 
competence and ethics, and it stated that it would be hard for the 
system to objectively determine who was corrupt and who was inept. 
The Venice Commission, however, concluded that otherwise the 
criteria were in line with European standards.  The ICP report 
criticized the final criteria for not complying with the Venice 
Commission's recommendations.  Although Homen told us the Venice 
Commission's concerns were addressed in the final version of the 
criteria that were published with the application call, several 
observers claimed that there was no discernible difference between 
the original and revised versions. 
 
 
 
Lack of Transparency 
 
-------------------- 
 
 
 
¶8.  (SBU) The councils began meeting to select new prosecutors and 
judges in September amid concerns about lack of transparency, 
especially with the judge selection.  The Justice Ministry received 
over 5,000 applications for less than 2,000 judgeships, as many 
sitting judges applied for more than one position and there were 
new applicants as well.  OSCE Serbia Rule of Law and Human Rights 
 
BELGRADE 00001284  003 OF 004 
 
 
head Ruth Van Rhijn told us September 28 that she believed it was 
impossible for the councils to go through the applications and make 
choices before January 2010 without support staff, and she was 
unaware if the Justice Ministry had assigned any.  ICP noted in its 
report that even if the HCC had worked through August, which it did 
not, it would have had only 10 minutes to consider each applicant. 
Van Rhijn said the short amount of time to consider applicants gave 
the appearance that the decisions had been "precooked."  Even if 
that was not the case, the lack of transparency marred the process, 
Van Rhijn concluded.  Homen told us that the councils were in fact 
staffed with the Justice Ministry's "best" staff and were on track 
to complete the selections in December. 
 
 
 
Challenges of Setting up the New Court System 
 
-------------------------------------------- 
 
 
 
¶9.   (SBU) The new laws vastly reduced number of courts, to save 
funds and correct previous imbalances in workload.  According to 
the Justice Ministry, judges in some rural courts would hear a case 
or two a month while judges in the busiest courts in Belgrade each 
heard approximately 125 cases a year.  The Law on Courts replaces 
the current 138 municipal courts with 34 Basic Courts.  In order to 
address concerns about how far individuals would have to travel and 
the need for personnel who could understand the complex situation 
in areas with large minority populations, the final version of the 
law calls for the remaining 104 municipal courts to be converted 
into "court branches" with Basic Court judges riding circuit to 
conduct court business there periodically.  Observers and sitting 
judges noted that case backlog could increase in the short term 
since many cases would be assigned to a new judge who did not know 
the case and files might need to move to a new physical location. 
Acting Supreme Court President Nata Mesarovic told us in June that 
she believed it would take two to three years for the entire new 
court system to function effectively because the changes were 
radical. 
 
 
 
Next Steps 
 
---------- 
 
 
 
¶10.  (SBU) Despite concerns at the late start, the government is 
beginning to provide the administrative support for the councils 
and new courts and secondary, implementing legislation and 
regulations needed.  The government prepared and the National 
Assembly began discussing on October 27 a package of new judicial 
laws, including a Law on the Constitutional Court, a Law on the 
Judicial Training Academy, a Law on Organization of the Courts 
requiring some violent crimes cases to be heard in higher courts, 
and some changes to the Laws on Judges and Prosecutors required by 
other new legislation.  Homen told us that the European Bank for 
Reconstruction and Development in October had approved a $75 
million loan to the Justice Ministry to upgrade the current Palace 
of Justice (which houses the busy Belgrade District Court) in order 
to increase security, build two new prisons to ameliorate prison 
crowding and ensure that convicts served their sentences, and 
renovate buildings for the Justice Ministry and for prosecutors. 
The National Assembly also passed amendments to the Criminal 
Procedure Code and Criminal Code in August, and Homen said the 
government was on track to send the National Assembly a completely 
revised Criminal Procedure Code by the end of the year (Ref B). 
 
 
 
Comment 
 
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¶11. (SBU) Although there are lingering concerns about the lack of 
transparency in the selection of judges and the huge task that the 
government has taken on, Serbia appears to be acting in good faith 
to implement a massive and unprecedented restructuring of the 
judiciary.  If the government can overcome the hurdles, the reforms 
will result in real improvements such as putting the courts in 
 
BELGRADE 00001284  004 OF 004 
 
 
charge of their own budgets.  The most important question remaining 
is whether the reform results in increased citizen confidence in 
the judiciary.  The real driver for the judicial reform process 
thus far has been EU accession aspirations, with less care given to 
explaining the changes to the public.  The government has had 
several successes in 2009 in convincing the public of the need for 
changes, most notably on visa liberalization; we hope to see a 
similar burst of effort on judicial reform as the legislation nears 
its implementation date.  End Comment. 
BRUSH