Serbia – criteria for judges and prosecutors: Venice Commission opinion

Strasbourg , 17.06.2009 - At the plenary session on 13 June, at the request of the Ministry of Justice of Serbia, the Commission has adopted two opinions on:

 

(1) the Draft Criteria and Standards for the Election of Judges and Court Presidents; and

(2) the Rules of procedure on criteria and standards for the evaluation of qualification, competence and worthiness of candidates for public prosecutors.

The draft criteria on judges are welcomed by the Venice Commission and are on the whole in line with European standards. However, the Venice Commission raises reservations with respect to the manner in which the various skills are going to be evaluated and balanced against one another. It is important that a proper evaluation is carried out and that these criteria are not simply treated as a numbers exercise.

The draft criteria have partly addressed the Venice Commission’s concerns about the re-appointment procedure for existing judges, who have not been guilty of any wrongdoing, notably with the presumption that these judges fulfil the criteria in this draft. However, this presumption can be overturned, and in this respect, the Venice Commission advises that caution be applied.

It seems to the Venice Commission that the timeframe for the implementation of the re-appointment procedure, which is currently 1 December 2009, is very short.

The draft criteria on prosecutors are very detailed, comprehensive and form a good basis on which to establish objective criteria for the appointment and promotion of prosecutors. They provide for a concrete and objective evaluation of prosecutors, carried out by the State Prosecutorial Council, an authority that provides guarantees of impartiality and competence.

The main concerns raised by these criteria relate to the following:

• the risk of an over mechanistic approach to statistical information concerning workloads and the like, and
• evaluating persons through the use of questionnaires by their colleagues which are filled anonymously poses some risks, which could be overcome by introducing some safeguards to avoid the possibility that a prosecutor could be evaluated unfairly.

In addition, the evaluation procedure is going to require much work from the prosecutors and from the State Prosecutorial Council. It is therefore important that the persons responsible for the evaluation be able to take on this duty under conditions that will lead to a fair outcome.

Website of the Venice Commission: www.venice.coe.int

For more information, please contact Tanja Gerwien +33 3 88 41 28 73 tanja.gerwien@coe.int