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Letter to the President of the National Assembly – On the occasion of the amendment of the Constitution

On 14 June 2021, the Judicial Subgroup of the Working Group of the National Convention on the European Union sent a letter to the speakers of the National Assembly and the Committee on Constitutional Affairs and Legislation on the occasion of the Committee’s future work on amending the Constitution.

Dear Mr Dačić,

Dear Mrs. Žarić Kovačević,

On Monday, 7 June 2021, a qualified deputies’ majority adopted the Proposal for the change of the Constitution of the Republic of Serbia, enabling the beginning of the drafting of the act on the change.

As stated in the proposal, this act should ensure the independence of the judiciary from political influence by minimising the impact of the legislature and the executive in selecting, proposing, electing, transferring, appointing and terminating judges, court presidents and (deputies of) prosecutors. The independence must be based on precise criteria.

Following the Constitution of the Republic of Serbia, the Rules of Procedure of the National Assembly, and the steps listed in the activities of the revised Action Plan for Chapter 23, we are entering the third phase of the process that includes drafting an act amending the Constitution. We emphasise again that the previously planned deadline for changing the Constitution (end of 2017) has long been exceeded. However, this must not be an excuse to give priority to speed instead of content in the process of changing the most important legal act, which is practically just beginning. It must not be an excuse either for democracy and inclusiveness of the change process.

We use this opportunity to remind you of the Procedural Proposals sent to the National Assembly by the Association of Judges of Serbia on 15 April 2021. The NCEU Chapter 23 Working Group agreed with and joined these proposals. Under Article 203 of the Constitution of the Republic of Serbia, as well as Article 44 of the Rules of Procedure of the National Assembly and Procedural Proposals of the Serbian Association based on these acts, we appeal to the Committee to form a special working group to draft an act amending the Constitution. We expect that the formation of that group meets the standards of publicity and transparency and that the Committee publishes the names of its working group members, publishes procedural rules of procedure and opens its work on drafting an act amending the Constitution to the interested public.

We consider as the most important to include in the working group the most eminent professors of constitutional law and representatives of the highest judicial institutions (Supreme Court of Cassation, Republic Public Prosecutor’s Office, High Judicial Council, State Prosecutors’ Council), as well as professional and non-governmental associations. The 2014 legal analysis of the constitutional framework on justice in Serbia, supported by the judiciary as a whole in November 2016, should be taken as a basis for drafting the text.

We join the Serbian Association of Judges’s proposal that the Committee submits the act on changing the Constitution before voting on it, as well as the constitutional law to the Council of Europe for joint expertise of its advisory bodies (Venice Commission, Consultative Council of European Judges and Consultative Council of European Prosecutors). It is crucial because the Constitutional Court of Serbia considers the constitutional law to be part of the Constitution and that its constitutionality cannot be assessed. We point out that the Venice Commission did not comment on the draft constitutional law, which is a critical part of the Constitution, and that it is necessary to give an opinion on it as well as on the act of amendment to the Constitution. Also, the joint expertise of the Council of Europe bodies should clarify whether the proposed solutions, having in mind the currently valid constitutional solutions, really reduces the political influence on the judiciary and the achieved level of guarantees of independence and autonomy of the judiciary, and thus on the already achieved level of citizens’ right to a fair trial before an independent and impartial court.

On this occasion, we invite the Committee, i.e. a special working group, to directly consult with the Judicial Subgroup of the Working Group of the National Convention on the EU for Chapter 23. The judicial subgroup consists of Serbian Judges Association, Association of Public Prosecutors and Deputy Public Prosecutors of Serbia, Judicial Center research CEPRIS, Forum of Judges of Serbia, Alumni Club of the Judicial Academy, Committee of Lawyers for Human Rights YUCOM, Belgrade Center for Human Rights, Transparency Serbia, European Movement in Serbia.

In this way, the Board will have the expertise of the most prominent professional associations and non-governmental organisations that monitor the judiciary’s position at its disposal. As already pointed out during previous public hearings, in addition to the actual need to ensure greater independence of the judiciary from political influence, Serbia has an obligation to change the Constitution in this part and within the negotiating chapter 23 - Judiciary and Fundamental Rights.

The National Convention on the EU was established as a body for special cooperation between the National Assembly of the Republic of Serbia and civil society in the accession process. Accordingly, we believe that the model of collaboration of the Committee with the NCEU Working Group for Chapter 23 is the best possible form of civil society associations in the ongoing process of drafting an act amending the Constitution of the Republic of Serbia in the part relating to the judiciary.

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