The Notorious Fingerprints

In one of the episodes of a stale and long forgotten TV serial about the life of the pre-war communists, there was a scene in which a chief of police comes into the office of a judge and says: "His Majesty has ordered you to convict the communists because of their rallying!" Not impressed at all by what he has just heard, the judge turns to the clerk and says: "Write: the proposal is rejected!", and then looks up at the astonished chief of police and coldly says: "When His Majesty passes a law banning their activity, I will convict them."

Although it was filmed and shown at the time when the pre-war Yugoslavia was officially referred to as the "prison of nations", at proper time, that sequence showed us that even in such "prisons", the courts, apparently, managed to stick to some of its crucial principles and demonstrated some kind of independence even before His Majesty himself. Even in that proscribed first Yugoslavia, which could not have exactly boasted with its democratic traditions, it was impossible to imagine such things, as those coming about now in the remains of Yugoslavia, to actually happen - i. e. that party leaders, even before the prosecutors and the judges do so, call for and announce political trials for their opponents, whenever and wherever they find it convenient.

Prior to the elections in Serbia, the opposition often argued that the ruling party, while, on one hand, hypocritically defending the "rule of law", on the other hand tried to keep the judiciary in the position of the guardian of its political interests. Almost identical complaints can be heard today, when the re-electoral procedure is under way, for all the judges and the prosecutors in Serbia. It is developing in a manner which leaves significant room for suspicions that the government is in a great hurry to re-elect a mass of people, and thus finish this exceptionally important business by securing its undisputable position in the judiciary system, without leaving too many fingerprints. The opposition is accusing the government of preparing a new ideologization of the judiciary, which should enable the continuance of such practices that allow the judging by an unwritten "common law" of the ruling party, and not according to the law. Furthermore, the dissenters mostly concentrate on the question of "who will judge the judges" , i. e. whose opinion will be taken into consideration during the re-electoral procedure?

In other countries, the most prominent legal experts, university professors and lawyers with a long experience are asked for their opinion, because it is unthinkable to ignore their say. In the case of Serbia, apparently, it is possible to do so. And it will be the Ministry of Justice that will be deciding, most probably on its own, and within exceptionally short time limits, who will be those that shall represent the backbone of the future Serbian legal system. And there will be no guarantee that a good list of judges will be come upon, by using the help of the legal experts, qualified for such serious task. In the absence of a genuine "rule of law", the selecting of the "new people" may come to depend exclusively upon honesty, wisdom, virtues or biases of the most powerful people on different levels of the power structure. And, at least up to now, we haven't had too much luck with those. The collective re-election procedure should be completed on September 28 of 1992, and until then, the 2,939 judges and the 619 prosecutors will have to fear for their position and to await the decision. In case of a favorable decision concerning the re-election, one can expect to remain in his position for a long time, because the institute of the permanent appointment of judges, very common in many Western democracies, is being reintroduced in Serbia for the first time after 1936.

According to Mr. Dejan Vasiljevic, Ph. D., from the Institute for Criminological Research in Belgrade, the concept of the permanent appointment of judges itself is not controversial. But the actual way, in which it is being implemented in the Serbian legal system, does not promise much about reviving the concepts of autonomy, independence, competence and professional honesty in our courts. Mr. Vasiljevic claims that it is not hard to perceive how the road to the rule of law is leading us deeper and deeper into an authoritarian system, and into a chaotic situation in the area of legality and legal security of the citizens. "The whole business around the re-election of the judges in Serbia", he says, "looks like a regular farce". And while this farce is still going on, the lawlessness, which is already gaining momentum, might get completely out of hand. The judges undergoing the re-electoral procedure are presently exercising their duty in a highly uncertain conditions. The government can dispose of them as it pleases, not only because of the re-election, but also due to the fact that an administrative 20% cut in the number of the judges has been announced. The pressure that the SPS (Socialist Party of Serbia) exerts on the courts is evident, especially in the law cases concerning political incrimination, and nobody even bothers to cover it up any more. The climax of the farce is the fact that the Ministry of Justice, i.e. the Government of Serbia, will have a decisive influence on the election of the judges. The final word rests upon the Parliament, in which the opposition is powerless, meaning that the whole re-electoral procedure will be conducted in a spirit of obedience and suitability, same as in other party states.

Therefore, it is very possible, and it has already happened some ten years ago, that the best judges, which "have been proven unreliable", will abandon this profession and give way to the yes-men and to the incompetent people.

The fact that the decline of the law in Serbia has entered into its "catastrophic stage", has recently induced a group of renowned lawyers to request a constitutional law to be passed, abolishing all legal acts adopted between April 6, 1941 and September of 1990, when the Serbian constitution was proclaimed.

Mr. Milenko Radic, the attorney of the SPO (Serbian Renewal Movement), predicts that many prominent and honorable judges, especially the ones handling the political cases, will soon begin to abandon this honorable profession. According to him, there was no such occasion in any country, when that many judges have simultaneously undergone the electoral procedure, aiming for a permanent appointment, and that holds potential dangers for the society. In the situation which has arisen, Mr. Radic believes that the wisest solution would be to elect the judges for some key positions only, and to elect the others later, but with much more serious-mindedness. Such proposal was not accepted by the Parliament, and those who are hurrying the elections today, risk to, maybe, repeat the same task next year. Mr. Radic also has the information that more than 15,000 applications for judges and prosecutors of all levels have been received until November 22 of the last year. "The position of those waiting to be re-elected is humiliating in many ways", he said. In a certain way, they are blackmailed and forced to be obedient, and the profession itself is downgraded, especially by the re-electoral procedure, to a simple bureaucratic activity.

The attempts of "Vreme" to get an opinion about the forthcoming re-election, from any of the judges, failed to succeed. Some of them deemed that it is not appropriate to discuss that matter, at the moment when the re-electoral procedure is under way. As opposed to them, Mr. Zoran Stojkovic, the former eminent judge, gladly commented on the situation in the Serbian legal system. "The monster of the suitability criterion" he said, "rides again around the courts, and the regime is obviously still trying to treat the courts of law as a simple yes-men activity, and to regard them as an instrument of its daily political interests. The courts and the judges are pushed aside. They are in a desperate financial position, and spend most of their time in chasing the people whose cheques bounced or those failing to pay their TV subscription, while the big crime and the flagrant violations of the law continuously remain untouched.

The position of Serbian judiciary, is probably best illustrated by the lack of its reaction to the statement of professor Mihailo Markovic, concerning the trial against Vuk Draskovic. In other countries, the court would have had to react on such a thing, and professor Markovic would have got in serious trouble. I wouldn't be surprised at all, if the re-election of the judges, a matter of the uttermost importance for any society, gets on the agenda of the Parliament as the 39th item, and gets dismissed with the usual question of who is "in favor", and who is "against". It is evident that the government is trying to make room in the courts for many people from the federal institutions, who have lost their jobs. These people have no choice. They have spent their entire lives in politics, and they will know how to express their gratitude.