Photo: Predrag Trokicic

Photo: Predrag Trokicic

For Tanja Tagirov (1961-2017), whose article on this topic would have been better and more interesting

“President Aleksandar Vucic said on Tuesday that he agrees with remarks from Brussels that the Serbian judiciary system is inefficient and prone to political influences, but that these problems are inherited… “When a political party such as the Democratic party appoints all the judges and prosecutors as part of a so-called judicial reform, it is certain that these problems exist. You saw, after all, Miskovic’s private judge who officially became the vice-president or a senior official of Jeremic’s party… Obvious and brutal political influence is in play, and the people from Europe are quite right when they say that, and I am convinced that that is what they were referring to”, Vucic told reporters in Paris.”

This statement is better than the others, first of all because the president acknowledged that political pressure on the judiciary was real, and, second, because he did not utter a complete, but only a partial lie. He neglected to say a lot with this statement, which doesn’t mean that he managed to conceal it. At least where the judiciary is concerned, “the truth” means a faithful display of circumstances, the whole truth, and nothing but the truth. And what he said is, therefore, not true, because it is not whole and it is not just the truth.

What’s true about this statement? Yes, there is political pressure on the judiciary, more open and ruthless today than during the previous government, as Vucic said: “brutal”. Yes, the previous government pretended to implement the judiciary reform through general rounds of election and re-election of judges and prosecutors, and it failed in doing so, more thanks to Pescanik and other (then) free media, than to the opposition, which, back then, included the current president of the republic.

And what’s not true, and what wasn’t said, although it should have been?

It is not true that Vladimir Vucinic is a judge, he hasn’t been one for a while now, thanks to the influence of today’s ruling (Vucic’s) political officials and their faithful “high councils”, “court presidents” and similar “independent and autonomous” judicial institutions. It is not true that Vucinic was ever “Miskovic’s private judge”. His work was in line with the law and he got judicial satisfaction only in the end, when he decided not to be a judge any longer. This satisfaction, however, is only moral, with no legal value, because it came when nobody, except for the former judge, cared about it anymore – when he had already left the judiciary. Furthermore, no judge has become a “senior official of Jeremic’s party” – Vucinic the lawyer did that. (For any statement to be truthful, the temporal dimension is very important, because the court procedure basically seeks almost the same thing as the theatre – a specific time, a certain place, a particular action. Moreover, their unity. What distinguishes them, however, is the necessity to leave out the fake dramatic moment from court proceedings.)

It is also not true that today’s judiciary consists only of the prosecutors and judges “appointed by the Democratic party”. The president of the republic remained silent about the decision of the constitutional court of Serbia, passed at the end of 2012, which ordered the judicial bodies to return all previously elected judges and prosecutors to work, in accordance with legal procedure. He also didn’t say that they were indeed returned to work, under the presidency of then (but also current) presidents of the judicial bodies, and that today’s secretary general to the president of the republic and then minister of justice, Nikola Selakovic, had a prominent role in that process. So, among Serbian judges today there are also those with no debts to the Democratic party. On the contrary. The president also forgot that all previous judges and prosecutors were returned to courts and prosecutors’ offices, but not in accordance with legal procedure. And so it happened that some judiciary authorities (despite the fact that Selakovic was in them, or perhaps exactly because of that) elected some persons previously sentenced for not-so-cute criminal acts. All of this was done, it bears repeating, under this regime. And then those persons had to be removed in secret proceedings.

It is true that there is a clear and blatant political influence on the judges and prosecutors. The president didn’t say who was responsible for this and, in his usual manner, blamed the previous government for it. It is well known that the most dangerous pressure on the judiciary is the one coming from executive political power. Meaning, the government which is in power at the time of the unlawful pressure, i.e. the current government. And this means his government. The journalists he was talking to were aware of this, as he, too, must be. But his explanation came from another temporal dimension. He said that these problems were „inherited“. It is well known that public rights (particularly those steaming from executive power) aren’t inheritable. A serious government, particularly one who came into power based on promises to eradicate corruption, doesn’t inherit problems – it solves them.

But, what did this government do to solve the inherited problems in the judiciary?

For the first time in modern history, in October 2012, a judiciary fiesta started with the passing of the new law on amnesty and the ensuing generous application of said amnesty by the former president of the republic. The alleged reasons for the new law were the fact that the prisons were crowded and the savings the amnesty would cause. I don’t know if a similar thing has previously ever happened anywhere in the world. This law was adopted in a parliament dominated by the members of the current president’s party.

For the first time in modern history, after Miskovic’s arrest in 2012, the then first vice president of the government said that no one is stopping the police and the prosecutor’s office from doing their job anymore. On that occasion, I wrote on this portal: “And just when I thought that Vucic’s simple soul has accepted the lawful state, he cried out to – political will (Svedok, RTS, 12.12.2012). Without political will, both his and of his party’s, the prosecutor’s office and the police would still be diligently studying the Anti-corruption council’s documents and Verica Barac’s heritage. In order to turn theory into practice, all they needed was – political will“. Not two years after this statement, Savamala happened. Meaning, complete passivity of the police, with obstruction from the prosecutor’s office who took more than a year to solve this puzzle by concluding that it was outside of their jurisdiction. And all the political will did was to say that he knows who did it (for He knows all), but won’t tell us anything other than that it was “complete idiots“, which, truth be told, are many in our public.

For the first time in modern history (in January 2014), then first deputy prime minister, in front of the cameras, “solved” the murder of Slavko Curuvija. However, then special prosecutor for organized crime was also present, as some kind of an opening act for the first deputy prime minister. The procedure on this murder is still under way in the first instance, but Vucic could not wait for the ineffective judiciary. And the judiciary speaks through convictions that can be overturned. The word of a first deputy prime minister, however, is undefeatable. As are the words of a prime minister and a president. Not today, not here.

For the first time in modern history, a judge was exempted because he “unjustly extended the proceedings”, even though the law says that a judge can be disqualified only when there are justified reasons to suspect bias. But, this was no ordinary judge: it was a lawsuit filed by Andrej Vucic against “Asomacum”, for mysterious “identity theft”.

For the first time in modern history, after the fall of a military helicopter, a prosecutor’s office found guilty the ones flying the helicopter after they were already dead. Generally, the prosecution advertises its acts and takes a stand regarding criminal responsibility. The conclusion of the higher prosecutor’s office in Belgrade that “the primary responsibility lies with the helicopter crew” is unacceptable, since at the time of publication of this legal position, all members of the crew were dead and could not be prosecuted. And if there’s no procedure, there is no legally based conclusion on criminal responsibility. The prosecution has no authority to pronounce anyone’s criminal responsibility; it conducts criminal prosecution and investigative procedure, and the court is the one to decide on criminal liability of the persons involved, based on the results of the court proceedings which (it bears repeating) couldn’t have been implemented, since they were all dead. Did all of this become possible only because the order of the political will was stronger than the law? (“I won’t give up Gasic, I won’t give up Loncar!”)

There’s more. There’s too much.

Well, here’s something that did not happen for the first time. For the second time in modern history (the first time it was Turkey) in the proceedings by a citizen against the republic of Serbia conducted in 2013, our state was obliged not only to pay the citizen fair compensation, but also to establish an independent mechanism that will examine the fate of the babies who were proclaimed dead and disappeared from the maternity wards under suspicious circumstances and provide their parents with fair compensation. To be fair, Vucic wasn’t in power when the babies disappeared. But, in four years, his government did nothing to implement this decision of the European human rights court.

At the beginning of this article, I didn’t quote everything the president of the republic said about the judiciary of Serbia. I omitted this: “They are quite right about the judiciary and I have no illusions about it, we will have to work hard to fix the things we’ve inherited and completely change the political influence on the judiciary.”

I will leave aside the (majestic) plural. I’ll just say that, at least according to the constitution and the laws, the president of the republic has nothing to do with the judiciary, except abolition and amnesty, so the „we“ here is completely against the constitution and the laws. Did he say „completely change political influence on the judiciary“? Maybe using the same methods as the previous government, whose inheritance he speaks of.

Complete change, when said by a politician about the judiciary, includes the change of the entire judicial and prosecutorial staff – just as the previous government did in 2009 under the constitutional law on the Implementation of the constitution of 2006. So, the second time in the most modern history of Serbia. Because, we’re about to get a new constitution, or at least constitutional amendments regarding the judiciary. And consequently, a constitutional law for the implementation of the constitution or constitutional amendments. What a cute weapon of vengeance to put in the hands of any political authority, and especially an authoritarian one, to be used against the judges and prosecutors, who are trying – imagine their gall! – to be independent.

Translated by Marijana Simic

Pešč, 18.12.2017.

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Vesna Rakić Vodinelić, beogradska pravnica, 1975-1998. predaje na državnom pravnom fakultetu u Beogradu, gde kao vanredna profesorka dobija otkaz posle donošenja restriktivnog Zakona o univerzitetu i dolaska Olivera Antića za dekana. Od 1987. članica Svetskog udruženja za procesno pravo. 1998-1999. pravna savetnica Alternativne akademske obrazovne mreže (AAOM). 1999-2001. rukovodi ekspertskom grupom za reformu pravosuđa Crne Gore. Od 2001. direktorka Instituta za uporedno pravo. Od 2002. redovna profesorka Pravnog fakulteta UNION, koji osniva sa nekoliko profesora izbačenih sa državnog fakulteta. Od 2007. članica Komisije Saveta Evrope za borbu protiv rasne diskriminacije i netolerancije. Aktivizam: ljudska prava, nezavisnost pravosuđa. Politički angažman: 1992-2004. Građanski savez Srbije (GSS), 2004-2007. frakcija GSS-a ’11 decembar’, od 2013. bila je predsednica Saveta Nove stranke, a ostavku na taj položaj podnela je u aprilu 2018, zbog neuspeha na beogradskim izborima. Dobitnica nagrade „Osvajanje slobode“ za 2020. godinu.

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