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Struggle for Separation of Powers and Rule of Law

19.06.2017

Strengthening of the rule of law in the process of accession to the European Union (EU) has for decades been a priority set by the countries in the Western Balkan region. Due to the dynamic of the negotiations with the European Union, the issue of the rule of law has reclaimed the position and attention it deserves in Serbia over the past few years, especially since talks on Chapter 23 were launched in mid-2016. Insistence on the implementation of the law, as well as on other elements of the rule of law, has increasingly been mentioned as a priority by Serbian politicians and, in particular, has been highlighted by all visiting EU officials.


The decision to attach major attention to the rule of law in the Chapter 23 Action Plan (AP) was a logical consequence of analyses of the situation in the judiciary; the AP puts special emphasis on amending the Constitution, as one of the obstacles to the full realisation of judicial independence.


Namely, the system established under the 2006 Constitution of the Republic of Serbia does not provide sufficient guarantees for the independent work of the judicial and legislative authorities and insufficiently supports the work of independent institutions.


The shortcomings are primarily visible in the institutions established to guarantee judicial independence, as well as the judiciary’s inequality vis-à-vis the other branches of government, and, finally, in the imprecision and illogicality of the provisions on the appointment of judges and prosecutors, court presidents and other judicial officers.


The fact that not all the constitutional rights and guarantees of separation of powers, especially the provisions guaranteeing conditions for the creation of an independent judiciary and autonomous prosecution service, have been consumed sufficiently has further motivated us to investigate the causes of the situation. This would pre-empt the risk of constitutional amendments, including the ones proposed in this Paper, bypassing the independent judiciary, i.e. not contributing to the establishment of an independent judiciary at long last.


The timeliness of opening a public debate on the Constitution stems from the Chapter 23 Action Plan, which sets the deadlines for the debate and adoption of the Constitution in 2017. The urgency of constitutional change is also corroborated by the fact that the European Commission will re-examine and critique the efficiency of the realisation of the rule of law during the process of reviewing Serbia’s compliance with the Copenhagen criteria.



The two above-mentioned reasons for the urgency of opening a public debate on constitutional amendments must immediately be supplemented by the third reason: the citizens’ demands that rule of law be established and that the independence of the judiciary be simultaneously ensured. 

 

 

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