Izbor sudija uporedno i u Republici Srbiji – predlozi za promenu Ustava
Choice of judges in comparative and in the Republic of Serbia - Proposals for Changing the Constitution

Author(s): Vladan Petrov
Subject(s): Law, Constitution, Jurisprudence, Constitutional Law, Public Law, Policy, planning, forecast and speculation
Published by: Fondacija Centar za javno pravo
Keywords: Public law; constitution; history; reform;suggestions; judges; election; appointment; Republic of Serbia; comparative law;
Summary/Abstract: The adequate system of judicial appointments is one of the most important institutional guarantee of the real and personal independence of judiciary. In the first part of the article, the author briefly describes the main models of judicial appointments in comparative law. A lot of European states have introduced a special body (judicial council) with a competence to elect judges or to propose judicial candidates appointed by other organs (i. e. Parliament). However, there is no single non-political model of judicial appointments which could perfectly comply with the principle of the independence of judiciary, on the one hand, and the principle of the responsibility of judiciary, on the other. In the second part, the author analizes the most important features of the systems of judicial appointments in the states of the Region (the former Yugoslav republics). In all of them (except Slovenia), judicial councils elect judges. Those bodies consist of judicial and non-judical members. However, the judical element prevails. In almost all of them, there have been constitutional changes in the last few years whith a same goal to make a system of judicial appointments more objective. In the third part, the author, firstly, analizes the main characteristics of the system of judicial appointments under the Constitution of Serbia of 1990. The election of judges by the Parliament was the model with a lot of objections. The High Council of Judiciary was introduced in 2001 by the law not by the Constitution. The Constitution of Serbia of 2006 has made two important changes in the election of judiciary. Firstly, the Constitution has introduced the probationary period (three years) for a person who is elected a judge for the first time. Secondly, the Constitution constitutes The High Judicial Council as „an independent and autonomous body which shall provide for and guarantee independence and autonomy of courts and judges“. The author emphasizes the bad constitutional solutions from the inadequate definition of the principle of the separation of powers to the competences and the composition of the High Judicial Council.

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