HOĆE LI PRAVOSUĐE ZAISTA BITI NEZAVISNO U SRBIJI?
WILL THE JUDICIARY REALLY BECOME INDEPENDENT IN SERBIA?

Summary/Abstract: The author analyzes the amendments to the Constitution of the Republic of Serbia, which were adopted in January 2022, related to the judicial system. The ruling political elite defined the goal of amending the Constitution as improving the independence of the judiciary, primarily with regard to the manner of electing judges and prosecutors and the guarantee of the principle of permanence of their functions. The paper is critically intoned, both in terms of the manner of adopting the amendments and in terms of their content. The author points out at the beginning of the paper that the legitimacy of the referendum is questionable, not only because of the percent of citizens who voted, but also because of the legal regulation which does not provide any limit on the number of citizens who must participate in the referendum in order to secure its validity. When it comes to the content of the amendments the author points out that the accepted solutions are not drastically different from the previous ones. While some improvements could be noted, there are also serious bad solutions. Although the author analyzes particular norms in the amendments, the focus of the analysis is on the principle of the permanence of the judicial and prosecutorial functions, the methods of election of judges and prosecutors, and the composition of the bodies that elect them. The author points out the significant tension between the ideas of independence of judges and prosecutors and their responsibility, which, in this particular case, is resolved in favor of presumed independence. This means that the constitutional amendments do not adequately address the issue of accountability of judicial office holders, defining as the more important aim the ensuring of their independence, while there is no evidence other than the mere belief that the independence will indeed be ensured.

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