ВИСОКИ САВЕТ СУДСТВА У НОВОМ НОРМАТИВНОМ РУХУ
THE HIGH JUDICIAL COUNCIL IN THE NEW NORMATIVE SETTING

Summary/Abstract: In the first quarter of 2022, the Republic of Serbia has partially changed its 2006 Constitution. Solely certain parts of the Constitution concerning the election of judges and prosecutors were changed, with the aim of providing greater independence in their work. One of the most important novelties is that all judges should be elected by an independent body – the High Judicial Council (hereinafter: HJC). In the spring of 2023, the laws by which these constitutional provisions are implemented were adopted. The focus of this paper is (in fact) the law related to the HJC, the body which is supposed to be the regulator of the independence of the judiciary. The paper analyses the composition, procedure and conditions needed to select the HJC’s members, and also the duration and termination of their mandate. The general impression is that the law does not follow the basic intention of the Constitution, which is reflected in the fact that the Council should be truly independent. According to the spirit of the Constitution, the High Judicial Council should have a key role in the process of choosing the judges. Thus, its degree of independence in deciding is directly proportional to the future independence of the judges and the judiciary in general. On the contrary, we are inclined to believe that the legislator tried to limit the range of the independence of the HJC in all aspects. Many of the law provisions are ambiguous, difficult to implement and constitutionally questionable. In the article, the author points out most of the key weaknesses of the law and gives the proposals de lege ferenda. Be that as it may, we are afraid that there are few reasons for optimism, because hardly can we expect that such legal solutions will bring true independence to the HJC and, in turn, to Serbian judiciary as a whole. The author sincerely hopes that the reality will show the other side of the coin or that Serbia will bring a better law in this area as soon as possible.

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