Courts Are Not Faultless

Zoran Ivosevic is 60 years old and has gone through all the levels of the judiciary, including the post of republican undersecretary for justice and the supreme court posts he has held since 1992. VREME talked to him about the judiciary crisis and ways of overcoming it as well as how the Judges’ Society can help.

VREME: What is the purpose of this kind of organization? What are the society’s goals?

IVOSEVIC: "Judges are citizens like everyone else. They have the right to organize themselves and act through that organization under article 44, point 1 of the Serbian constitution. Recent events, especially over the disputed elections, showed that judges have to organize to defend themselves from various pressure.

The goals of the Society are affirmation of the law as a profession and science, a state of law, the rule of law, an independent judiciary, moral attitudes towards daily judgments, a moral code that the society will draw up and getting things moving from a dead end since we have hit rock bottom. We have to save ourselves first in order to save the law as a profession.

This is not a political or union association but a professional association to advance our position. We care very much about how we are doing our jobs.

To make things clear: we will advocate all this but we can’t deal with those issue directly since we aren’t a state body or institution. How far we’ll get to is another issue."

How do you see your social role as court and judge and how far is the Serbian judiciary away from that?

"I see the judiciary as the constitution sees it. We want no more or less than that. The constitution is the highest legal act and it defines the judiciary as a state mechanism which is independent and judges according to the constitution, laws and regulations. That is how the Society sees it, but there’s a big difference between what the constitution envisages and reality. That difference is especially deep now and all our efforts will be aimed at drawing closer to the constitution. We can’t go outside the constitution or disregard it. This crisis shows that we are far from that, and I don’t mean daily trials. Courts sit in judgment every day and do rule independently but in sensitive political trials that is not so. When I say that the courts haven’t reached the line set by the constitution I mean those trials primarily. In those trials the judiciary is still listening to whispers from daily politics."

Do you mean that the judiciary is not independent only in those sensitive political trials?

"Those are the ones that interest me most. The courts are not an organization which is faultless. They are only people and court errors are possible. I’m not talking about that. Incorrect implementation of material law is a true cause for complaint. But we’re not discussing that. That is a normal thing."

Corruption and carelessness are normal occurrences in the judiciary.

"Once, 10-20 years ago, I was prepared to immediately oppose assessments like that and argue with people who said that because I was convinced that wasn’t so. But, now I am fairly indifferent towards stories like that. If there is corruption and carelessness in society, it’s probably also present in the judiciary. I think there were reports of that in the daily press. Some judges were dismissed and some were taken to court but I don’t know much about this and I couldn’t talk about the whole thing as an occurrence. I only know that the courts are not very speedy and that there are many judges who have left the judiciary."

Will the Society be prepared take note of those occurrences if they exist?

"Naturally, we are interested in that as well. The moral code which will be named code of professional ethics will focus on that. We are interested in the moral image of judges. If something like this happens the court of honor will react. On the other hand, I don’t know if there will be occurrences like that. The judiciary is not only a thing of the law but also of the culture of a nation and society will deal with the issue. State bodies exist and they can deal with it. We will focus on the judiciary from the inside, on people, on ourselves. We have no ambition to be parallel authorities and even if we did it would be nonsense. How can we do the job of state bodies."

You said you were interested in sensitive political trials..

"No, I am not at all interested. I am not interested in politics at all. But I am irritated by the whole thing. If I were interested in politics I would be in politics. I don’t like politics at all. I am interested in my job and if politics attacks it I will defend it. I mean daily politics. If politics is included in the laws and constitution I will respect it. Daily politics is doing things for people who are currently part of the political authorities."

What about the political trials in Kosovo and the Sandzak?

"What trials?"

Trials for terrorists,. Defense lawyers and their clients are complaining of a number of illegal points in court, some even claim that force was used in the investigation with the knowledge of the investigating judge and that the indicted men were refused medial assistance. Those aren’t the first claims of that kind in Kosovo. The supreme court has sent delegations to Kosovo often, obviously things aren’t OK there.

"I haven’t heard about those trials, I am in civil law not criminal law but problems do exist. I was in Kosovo recently for a meeting of all Kosovo judges but that was devoted to the actions of the justice ministry and supreme court. It’s a project to help speed up the Kosovo courts. For years nothing was done there and a large number of cases were left untried. There was no court protection there for a long time. Then, in the past 18 months, the entire Serbian judiciary leaped to Kosovo’s aid. That meeting was held to sum up the effects to date and as far as I understood, the situation is very good now in terms of speed."

Why are the courts so slow?

"The main reason is an insufficient number of judges. Serbia, as far as I know, should have some 2,500 judges under a decision of parliament but a large number of those posts are vacant. Over the past four years some 600-700 judges have left the judiciary. More recently a large number of posts have been left vacant. That problem is great in Kosovo because ethnic Albanian judges boycotted the courts and refused to work although they agreed to be elected. Now that has been corrected somewhat.

I think the main issue is why there aren’t enough judges. Although the profession is attractive it isn’t well paid. Salaries in the judiciary are very low, even insultingly low. Judges are in a special position because they can’t do anything on the side. Judges can’t be members of management boards and politicians can. A judge can’t earn money outside his job except by writing and there are few who can write. The problem of tardiness is a problem of money."

Is the problem of corruption also a problem of money?

"Of course. I think that if corruption exists that is the main reason. If people don’t have enough money to live on then they are tempted to do something like that. I repeat, I don’t know if it exists apart from what the press reported."

The government affects the way the courts work by keeping complete control over financing.

"That’s why one of the Society’s ideas is the creation of an independent judiciary budget, independent of the overall budget. There are traces of that in the new draft law. Courts, especially first level courts, get some money from taxes and fines. Part of that goes to the courts, 30%. The court uses that to support itself, for maintenance. Salaries can’t be taken out of that because we can’t sentence people to high fines so we can get our salaries.

An independent budget is part of the idea of an independent judiciary since, if a judge is due to get an apartment from the executive authorities, if the level of his salary depends on the executive authorities, the judiciary isn’t separate from the executive authorities. The courts don’t do the same for the executive bodies."

Pressure and fear are perhaps the greatest obstruction to the courts. Was any pressure ever exerted on you?

"I understand pressure. There will always be pressure. Everyone tries to get to the courts because they have interests that the court has to resolve. I can understand that although I don’t approve. I can even understand judges who cave in to pressure. An independent judiciary depends on the independence of judges. It’s very important who the judges are. Of course I experienced pressure but if you express your attitude towards pressure, they avoid you. I had that privilege. I screamed at the first opportunity. It provokes me and I reacted fiercely, even roughly. Something similar happened in this office a few months ago. A member of parliament came to see me to ask something and it later turned out it was about a certain case. I told him that I won’t discuss the case and asked him to leave. I simply won’t work that way."

The judiciary is part of the authorities, perhaps the highest authority. How much blame do judges hold for the situation they are in?

"They probably hold the greatest blame. The sorry state of the Supreme Court is probably the fault of the Supreme Court. The constitution allows courts to be independent. What can prevent it from that? Only a kind of slave mentality which we developed for a long time and are still living with. If we want to be practical, what can happen to a judge if he refuses to be obedient?"

Anything!

"What, he won’t be a judge any more? He has a trade and can go into private practice and earn three times more money."

But there has been a process of negative selection in place for decades, not only morally but also professionally.

"Probably there is but let me say this: judges are lawyers and they were taught that the law is a class institution. You can't create a man who will be different overnight. He will still be turned towards the definition of class court. I can’t explain why that’s so but I have a feeling that judges don’t speak gladly. Some grumble but keep quiet. But now they have spoken up."

The founding assembly of the Society included District Court President Branimir Tocanac and Belgrade Second District Court President Dragoljub Jankovic. Their role wasn’t too pure in the election crisis. Why were they there? Are they Society members?

"Any judge can become a member of the Society. All judges in Serbia were given membership applications, even Balsa Govedarica. Tocanac was the host, he allowed us to use the hall. I’m glad they were there. Membership in the Society does not depend on the Society but on whether someone is a judge. They are."

That assembly was attended by Nebojsa Sarkic, Assistant Justice Minister, who even lent support to the formation of the Society. Isn’t that strange?

"I don’t know whether it’s strange but I think he did a good thing. I got a satisfactory answer from him to a question similar to yours. He said: "Why should we create divisions? Why should some judges say they are independent and want democracy while others don’t?" He didn’t accuse of abuse of position like Govedarica did. I don’t need anyone to protect me from the Society, if it lets me down I’ll leave."