Neustavna reforma "reforme" pravosuđa

Abstract

The author presents and analyses the Law on amendments to the Law on judges of December 29, 2010, concluding that, even though the rationale of the proposed Law envisaged the retroactive effect of some of its provisions, neither constitutional nor theoretical conditions for retroactivity have been fulfilled. The main shortcomings lay in the fact that the Law enables not only the retroactivity of its own provisions, but also the provisions of a by-law, the content of which was unknown at the time the Law was passed, as well as in the fact that there was no justifiable need for retroactivity in the first place. It is also concluded that the content of certain provisions of the Law breaches the principle of separation of powers to legislative, executive and judicial and that the law-maker strayed in the realm of the judiciary by ex lege ending the procedures commenced before the Serbian Constitutional Court, initiated by complaints of former judges who were not elected to permanent judicial functions. The paper also analyses the decision of the Serbian Constitutional Court No. 102/2010 of May 28, 2010, published in the Official Gazette of the Republic of Serbia, No. 41/2010 of June 15, 2010. The author concluded that the Constitutional Court unnecessarily and unfairly limited the control of the work of the High Judicial Council in the procedure of re-election of judges, since it did not review the legality of application of rules on worthiness, expertise and competence criteria to each individual judge, and it did not use the possibility to pass a so-called pilot decision in the single case decided upon, after which all complaints of non-elected judges would be decided upon in an unified manner, since the breaches made in the procedure before the High Judiciary Council were general and identical for all these judges.