There is little question that judicial independence, in particular the personal guarantees of judicial independence, is essential for the establishment and preservation of the rule of law. It is also undisputed that, to the extent to which democracy cannot function without the rule of law, judicial independence is a prerequisite for a democracy. However, formal safeguards do not represent an absolute guarantee that the judiciary will be independent, since the examples of the breach and disregard of those paper guarantees are quite numerous in practice; nor does it mean that in places where there is confusion of powers, as in the United Kingdom, independent judiciary cannot be maintained. Actually, their importance lies in the fact that the constitutional framework in which the power is truly separated and divided boosts the security of the courts by necessitating coordinated action among several political actors to attack the judiciary. Under those conditions, the costs of subverting judicial independence become sufficiently high to persuade the actors to tolerate judicial independence half-heartedly.
The 2008-2012 judicial reform in Serbia proves that it is possible to subvert the judicial independence even in a constitutional framework in which the power is separated and divided. Furthermore, the judicial reform was put in place in the name of democratic transition. Whether the cost of subverting judicial independence will prove to be too high actually depends on the type of legal and political culture within which the judicial independence operates. And vice versa, subverting judicial independence, through vetting of the judiciary, has a harmful effect on judges by creating a culture of fear among them. Concretely, the “judicial reform episode” had a strong, negative impact on Serbian judges. All of the judges who were interviewed and who went through that reform have stated that their colleagues strongly fear the possibility of a new, similar vetting of the judiciary in the near future. Consequently, it comes as no surprise that despite the fully fledged constitutional guarantees of separation of powers and of judicial independence, judges in Serbia behave as if they live in a system of unity of powers. In principle, they do not perceive themselves as a separate branch of government and they generally do not act like one. They consider the judiciary to be a contentious branch of the executive power, in contrast to the administration, which applies the law in non-contentious cases.
In instances where the separation of powers framework is not sufficiently effective to ensure judicial independence and autonomy of the courts, other, non-state ac- tors, such as academia, the civil society and the international community, may contribute significantly to it. A spontaneous judicial support network composed of lawyers, academics and non-governmental organizations was established to defend the respect for the permanent tenure of the judicial office in the judicial reform episode, and eventually to advocate for the amendments to the 2006 Constitution, so as to increase the guarantees of judicial independence even further. The interaction of the judicial support network with the European Commission on the one hand and the Constitutional Court of Serbia on the other hand proved to be a determining factor for the change in the course of judicial reform and the subsequent 2022 amendments to the Constitution.
In this paper, we examine the ways in which the vetting of the judiciary created a judicial culture even more submissive to the political branches of government (2) and the kind of repercussions the 2008-2012 judicial reform episode had on the entrenchment of the personal guarantees of judicial independence in the amendments to the Constitution adopted in 2022 (3). I finish the paper with the concluding remarks (4) and policy recommendations (5).
Read the policy brief here:
Personal Guarantees of Judicial Independence and Judicial Culture in Serbia