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Without a substantial change in the behaviour of public officials and MPs, there is no rule of law

On the occasion of a series of activities of the Government of Serbia on the formal implementation of the Action Plan for Chapter 23, The National Convention on the European Union (NCEU) Working Group on Chapter 23 warns that only formal fulfillment of criteria without substantial change of behavior does not lead to the improvement of the rule of law and respect for the principle of separation of powers.  On 15 April 2021, the High Judicial Council (HJC) passed a Decision on amendments to the HJC’s Rules of Procedure and thus established a mechanism that will enable the HJC to directly respond to cases of undue influence on the judiciary and judges. Since public officials and MPs most often comment on the work and decisions of judges and prosecutors, thus exerting political influence, we hope that this mechanism will really work, when the existing regulations that could prevent such behavior are no longer applied.

The Action Plan for Chapter 23 was the topic of the meeting the Minister of Justice held with the Prime Minister, the newly elected representatives of the High Judicial Council and the State Prosecutors' Council on 15 April 2021. According to the media, the work on creating a mechanism for monitoring compliance with court rulings was one of the reasons for this meeting. On the same day, the High Judicial Council amended the Rules of Procedure, the document that explains the working and decision-making manners of the Council in cases of undue influence on the work of judges and the judiciary. According to these changes, the Council will appoint a judge from the elected members who will be competent to act in cases of undue influence. The aim is to ensure the protection of the independence and autonomy of the appointed judge.

We emphasize that the Revised Action Plan for Chapter 23 provides for the establishment of an effective mechanism that will enable the High Judicial Council and the State Prosecutors' Council to react against political interference as well as a monitoring mechanism for full respect of court decisions and refraining of government officials and politicians from public comments when it comes to courts.

We highlight that the role of the Government and the National Assembly in carrying out this activity should be related to refraining from any influence on the judiciary, as well as to sanctioning the behavior of officials and MPs, which led to the introduction of this measure. In the situation in which the actions of judges and prosecutors are commented on daily basis in the National Assembly, on social networks, and in certain media, without any sanctions determined by the existing regulations, we see the mentioned changes to the Rules of Procedure of the Supreme Court as necessary. We call on the Council to select as soon as possible the competent judge who will be adept to act in cases of undue influence.

In April 2021 alone, at least three parliamentary sessions discussing the election of judges and public prosecutors, as well as the election of the President of the Supreme Court of Cassation, several deputies in their speeches directly attacked and smeared judge Miodrag Majic and commented on his court decisions. In the previous year, more than 30 similar attacks on judges were recorded, some of which took place in the presence of representatives of judicial councils. Neither the President of the National Assembly reacted to them, nor did the High Judicial Council afterwards. Neither the President of the National Assembly reacted to them, nor did the High Judicial Council announce itself afterwards. Due to all the above, the NCEU Working Group for Chapter 23 points out that such meetings represent a formal rather than essential commitment to the rule of law, for as long as speeches of the kind are not sanctioned.