Владавина права и институтционалне претпоставке независности судства у Србији
The Rule of Law and the Institutional Presupposition of Independence of the Judiciary in the Republic of Serbia

Author(s): Darko Simović
Subject(s): Constitutional Law
Published by: Правни факултет Универзитета у Источном Сарајеву
Keywords: Rule of law;Independence of judiciary;Constitution of Serbia from 2006;
Summary/Abstract: Despite the explicit proclamations of the independence of the judiciary in the Constitution of Serbia from 2006, some of its solutions represent a degradation of the standards already achieved in this field. Undoubtedly, it is necessary to execute certain corrections to the constitutional framework of judicial power in the Republic of Serbia. Firstly, the election of judges on a probationary three year period should be excluded because the idea of the re-election of judges is in logical contradiction with the permanency of the judicial function and the principle of the independence of the judiciary. Secondly, it is advisable to consider introducing changes to the manner in which elective members of the High Judicial Council are elected so as to avoid any possible indirect political influences during the election of judges and the termination of their term of office. To avoid the continuous uncertainty faced by judges it is necessary to define more restrictive conditions for termination of their office. The use of legal standards, such as “unconscionable” conduct in delicate situations such as this, surely cannot be a guarantee of the independence of the judicial system. Finally, for the judiciary to be truly independent, it is necessary to secure factual material independence of the judges, by creating some type of fixed budget which will remain outside the competence of the representative body. However, it also seems significant that a political culture be built, that would involve a steadfast awareness of the inviolability of the principle of the independence of the judicial power.

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