The judiciary is still dependent on political pressures in the Western Balkans

BELGRADE – The fight against high-level corruption requires an independent judiciary, free from political pressure, it was concluded during the panel “Supporting judicial reforms “, within SELDI Regional Policy Forum.

The countries of the Western Balkan use different legal solutions to free the judiciary from political pressure. However, legal solutions to the selection of judges that guarantee their independence are not sufficiently implemented in practice.

During the panel, Tobias Flesenkember, Head of the Council of Europe Office in Belgrade, stated that the main problem is political influence on the judiciary, adding that it is important to undertake the necessary accountability and control mechanisms. He noted that in this regard, the way in which judges and prosecutors are chosen is important.

Speaking about the situation in Serbia, he said that the focus of the Council of Europe is on the GRECO reports, which for years indicate that the constitutional provisions created a direct political influence on the judiciary through how judges are elected. He added that the new constitutional changes are a step forward in freeing judges from political pressure.

He pointed out that an independent judiciary is also a question of political culture.

“In the last months in Serbia, we could see how political forces leave for freedom of assembly. From those political events, we could see the political culture and the political influence on the system. The same problem exists with the fight against corruption,” Flesenkemper said.

Jovana Spremo, Advisor at YUCOM specialized for EU integration-related policies, during the panel, talked about where Serbia stopped with the process of constitutional changes. She pointed out that they are now working on developing constitutional amendments through the adoption of special laws.

“In Serbia, the process of harmonizing a set of judicial laws has begun in order to achieve the goal of constitutional changes – the independence of the judiciary from other branches of government,” said Spremo.

She pointed out that the entire process of constitutional changes in Serbia was marked by great mistrust as to whether the changes would lead to an independent judiciary.

“What created great distrust with the process of informing citizens started very late. “Information practically started the moment the referendum was announced, although the process lasted from March 2021, which was late,” she explained.

According to Spremo, the referendum, which was organized before the scheduled elections in Serbia, was used mainly by the political parties for political calculations, and not for the actual debate on constitutional changes.

Biljana Papović, Deputy Executive Director at Center for Democratic Transition in Podgorica, explained that creating an independent judiciary in Montenegro started ten years ago, but that goal was never reached.

“At the beginning, Parliament managed to find a qualified majority for the judicial council and to continue adopting some laws and mechanisms that we implemented in the legislation. However, adequate implementation of legal mechanisms in Montenegro has been absent,” she said.

According to Papović, the fact that the president of the Supreme Court was arrested in Montenegro, who was the official leader in judicial reforms for years, tells what was happening on the ground while the citizens of Montenegro heard about judicial reforms.

“Vesna Medenica was arrested on charges of creating a criminal organization and trading in influence. The president of the Commercial Court is also in prison under similar charges. It shows what was happening while we heard that the reform towards an independent judiciary was happening. However, their arrests are a sign that the political elites in Montenegro have realized that legal solutions must be implemented,” she said.

However, Papović assessed that Montenegro still has no institutional strength that would oppose political pressures.

Aneta Arnaudovska, a Senior Anti-corruption Advisor at Regional Anti-Corruption Initiative, said that in the countries of the region, some of the shortcomings in the behavior of judges when it comes to corruption cases could be recognized. This indicates that in the entire region, there is a lack of judicial quality in the fight against corruption.

“We can recognize the difference between professional mistakes and lack of quality to fight corruption in judges. Some of the shortcomings in the behaviour of judges are manipulation of legal qualifications, use of some evidence, quick conclusion after a long duration of the pre-investigation procedure,” she said.

Arnaudovska concluded that the courts are most often passive instead of active in the region.

This article was published as part of the project “Civil society for good governance and anti-corruption in southeast Europe: Capacity building for monitoring, advocacy and awareness-raising (SELDI)” funded by the European Union.