Judicial Independence

Playing by the Rule of Law

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Judge Omer Hadziomerovic wags his burning cigarette above an ashtray, which he does frequently to punc­tuate his skepticism.

“We have a low level of legal culture,” he says, sitting on the bench in Serbia’s Belgrade District Court while it is not in session, speaking through an interpreter.

“There is little understanding of law and the rule of law. We once had a defendant plead the Fifth Amendment, which we do not have by such a name in Serbia, because he saw it on Law & Order.

“It is somewhat the same but even worse with our parliament [the National Assembly]. They make laws but they pay no attention or do not understand how those laws will work in practice, and we often find them unworkable. Then when the parliament wants to do something for political reasons, it makes law to fit the situation.”

Sometimes those “situational” laws, usually later found unconstitutional, are obvious attempts to thwart reform, settle scores or shore up remnants of old regimes.

Hadziomerovic is wagging the next cigarette as he moves on to another problem that hits even closer to home. The laws concerning judges themselves were changed for the better by the new government formed in 2001 after the ouster of authoritarian President Slobodan Milosevic. The judiciary was given greater control over appointments to the bench, discipline and dismissal.

But the parliament has reeled in much of that over the past few years. “They don’t want judicial independence,” Hadziomerovic says, speaking of both the legislative and executive branches. “They are afraid of it. They want to control everything, including us.”

Apparently that control applies to judges’ wallets, too. Last year the government raised base salaries for the legislative and executive branches and deliberately left the judiciary behind–despite constitutional guidelines that set similar pay grades for equivalent positions in all three branches. Earlier this year, the Judges Association of Serbia, along with a prosecutors group, sued over the pay slight.

Judges feel the political heat to such an extent, Hadziomerovic explains, that they joke among themselves, “If you want judicial independence, remove telephones from judges’ offices.”

There aren’t enough cigarettes in the pack for Hadziomerovic to cover all the problems. At least now, as a spokesman for the judges association and its former president, he can speak out in the strongest fashion. Not many years ago he might have been removed from the bench, lost his government issued apartment and maybe worse.

Yet there is renewed hope with the development of a new court in Serbia for dealing with war crimes. This court, by design and international scrutiny, could become a touchstone for forging an independent judiciary in a transitional democracy.

Judicial independence and the rule of law are at the top of the list for Serbia’s entry into the European Union, which is concerned about stability in south central Europe. The EU’s so called Copenhagen Criteria require that prospective members have institutions guaranteeing the rule of law, on paper and in practice.

A functioning legal system is necessary for business enterprises to operate free from corruption, for human rights to flourish and for Serbia to deal with its past–specifically, war crimes–as it moves into the future.

The Yugoslav federation fell apart in the early 1990s, a process that began with the death of president for life Josip Broz Tito in 1980. The resulting wars between the nation’s former republics unleashed centuries old ethnic hatreds. There were untold numbers of murders, executions and rapes by militaries and paramilitaries.

Serbia was the biggest part of the former Yugoslavia, in both size and population. The seat of government was, and for Serbia still is, in Belgrade. And while all sides committed atrocities, Serbia was the bigger power and generally viewed as the greater aggressor.

Yugoslavia had been a splash of color at the edge of the Iron Curtain during the years the former Soviet Union held sway over much of eastern and central Europe, the so called Eastern bloc. The Socialist Federal Republic of Yugoslavia, which included the republics of Serbia, Croatia, Macedonia, Bosnia Herzegovina, Montenegro and Slovenia, remained independent. It was more open to the West and some aspects of a market economy. Now Serbia is somewhat of an international pariah. Its economy is devastated and entry into the EU is seen by many Serb leaders as the only way to recover. Embarrassingly, Serbia is far behind neighbors it has long considered backwaters, Bulgaria and Romania, on the path to EU membership.

A Step Forward

One beacon of hope for judicial independence is the new domestic court for dealing with war crimes and organized crime, two problems that became intertwined under Milosevic when crime bosses controlled some paramilitary units. The Special Chamber for War Crimes and the Special Chamber for Organized Crimes, within the Belgrade District Court, were created in 2003. The war crimes court has one trial under way and others in the pipeline.

“This court has thus far been able to keep moving forward despite all the pushing and pulling in other directions by various forces in the government,” says Djordje Djordjevic, a consultant to the war crimes court for the United Nations Development Program. “At the time it was created, there still was some momentum for reform in the government. Care was taken in selecting judges without political affiliation, and I believe they have gained much from training programs.” (Such training has come with the help of the ABA’s Central European and Eurasian Law Initiative, the Organization for Security and Cooperation in Europe, the United Nations Development Program and others.)

The war crimes chamber was created to take lower level cases handed down from the International Criminal Tribunal for the former Yugoslavia, based in The Hague. This is part of the ICTY’s completion strategy. The court, which was created in 1993 by the United Nations, is expected to complete all trials by 2008 and appeals by 2010. The expectation has been that the ICTY would try the organizers and leaders, with Serbia’s domestic court handling those who carried out orders or acted on their own. The court in Belgrade can expand cases it is given or bring others through its own investigations.

The organized crime court builds its own cases and has been much busier, with some significant convictions and sentences already handed down.

Officially, the separate courts for war and organized crimes are called chambers. But generally they are known as the special court. Its mission is both practical and, given tensions over judicial independence, symbolic.

“Setting this institution up as somewhat separate from the rest of the judiciary in a transitional democracy has been a good thing,” says Sam G. Nazzaro, a U.S. Justice Department lawyer serving as resident legal adviser for Serbia and Montenegro. “There has been an interesting interplay between its independence and that of the government, and at times the court is almost at odds with its own government because of that independence–which is good.”

Many of the players in all three branches of Serbia’s government have been around since the days of Milosevic, who was ousted by a peaceful but vocal revolution in October 2000. Some of them go further back, to the Tito era.

“Many people here have baggage,” Nazzaro says. “The question is whether they still carry it.”

With so many people in office who worked in earlier regimes and governments, Serbia can look like Picasso’s cubism, juxtaposing familiar features through odd angles, positioning and proportion.

Some are moving forward. Some pull the other way.

Others look over their shoulders.

That was apparent last year when a contingent of six judges on Serbia’s more than 60 member Supreme Court, on a panel designated to handle appeals of domestic war crimes cases, visited The Hague for meetings. While there, they observed the ongoing trial of Milosevic in the ICTY.

Noticeably, says one member of the visiting group, two of the judges stood behind pillars that blocked them from Milosevic’s view. Many members of the Supreme Court were put there by Milosevic and he is said to still run the Socialist Party, which remains a significant force, from his cell in The Hague.

The Supreme Court raised eyebrows in 2003 when it overturned guilty verdicts in two war crimes cases tried in regular Belgrade District courts before the creation of the special court. The cases were remanded on procedural grounds. This summer, retrials in the same courts again resulted in convictions.

Nazzaro says many people, including some in the U.S. Embassy, saw the remand as a bad sign. But he wanted to read the opinion first. The court’s reasoning, he found, can be seen as legitimate. The high court said the trials did not specify which individuals committed which criminal acts.

Now the new convictions will go back to the Supreme Court’s justices. “They could alter the whole scorecard because they have de novo review,” Nazzaro says. “They can do a lot of things. They don’t have limited review like us.”

An Elusive Independence

Like the Supreme Court, the special court still has to go further to prove its independence. At its formation, there was a lot of debate over just how special the new court would be and, thus, over its name and ostensible placement within the district court. It is the most comprehensive domestic institution for dealing with war crimes in the Balkans, with its own laws and with tools not available to the rest of the nation’s judges and prosecutors. The separate divisions with jurisdiction for both war and organized crime are unique.

Milosevic had needed help making the economy work during the 1990s after the international community imposed economic sanctions on Serbia. And the government needed help when the draft failed to build up the armed forces.

The result was the development of highly structured crime syndicates helping with necessities such as oil, as well as helping themselves, and the creation of paramilitary groups led sometimes by crime bosses and sometimes by high level law enforcement officers.

All the while, Milosevic stirred nationalist feelings by playing up the old ethnic fault lines. That political tool has currency to this day.

At the end of August, Serbia’s pro Western president, Boris Tadic, in an interview with a Belgrade daily newspaper, accused the government of Prime Minister Vojislav Kostunica of returning to the ways of Milosevic and “creating the atmosphere of the 1990s.” Tadic pointed out that Kostunica’s government recently dropped charges against Milosevic’s son and wife to appease others in the coalition government. Those dropped charges lent more fuel to criticism of the justice system, which is held in low esteem by the public.

The new coalition government led by Kostunica was formed after the assassination of reform minded Prime Minister Zoran Djindjic in 2003. “After the prime minister’s assassination, this became a democracy in crisis,” Nazzaro says. “In many respects everyone had to look to the court and the prosecutors to show some leadership and direction at that crucial time. The hope is that they finish the job they started and continue some momentum.”

The Kostunica government’s approach to the judiciary has been heavy handed since it came to power at the beginning of 2004.

For example, when Minister of Justice Zoran Stojkovic assumed office, he used his first news conference, in March 2004, to announce that the new court should be abolished. Stojkovic declared that all of Serbia’s judges were capable of handling such cases and that there should be no “special court.”

Critics, including vocal international observers, saw this as an attempt to protect high level members of government who are widely believed to have participated in both kinds of crime during the Milosevic years. Stojkovic quickly backed off.

A Court with a Mission

The special court building is several miles and a mindset away from the Belgrade District Court. The pay for judges and prosecutors is higher, in light of both risk for individuals and the complexity of cases. The main courtroom is said to be the second largest in the world, with elaborate security, including bulletproof, Plexiglas enclosures for defendants.

While the organized crime court has finished some trials and sent several high level people to prison, the war crimes court has yet to reach above the low hanging fruit–most of which the ICTY has handed to it–and go after midlevel suspects. While several investigations are under way, the court has begun only one trial, in March 2004, and it is expected to end this year.

The big question is how high the court can go without an iron hand reaching out from the past to pull down what has been gained–small advances in political will and public opinion, and the courage of people on the ground. Power grabs began as soon as the court was created. And the assassination of the prime minister in 2003 signaled that Milosevic may be gone but his era is not completely so.

“I have been under pressure to make this a puppet show,” says Vladimir Vukcevic, the special prosecutor for war crimes, who has seen and experienced plenty of pressure since becoming a prosecutor in 1975. “People in other areas of the judicial system are still influenced a lot by the authorities. Late last year they wanted me out because I don’t listen to instructions.”

Vukcevic says he was visited twice by Republic Public Prosecutor Slobodan Jankovic, the equivalent of attorney general, advising him to tell the ICTY that Serbia would proceed with cases against four former generals wanted for trial in The Hague. It was obvious to everyone that this was an attempt to protect the generals.

When Vukcevic refused he was targeted for removal. That prompted U.S. Ambassador Michael Polt to contact Prime Minister Kostunica and express concern, not about Vukcevic the individual but about the new institution and the need for its independence. Vukcevic remained. But then a bombshell hit this summer.

The special prosecutor for organized crime, Jovan Prijic, had been moving at a faster pace than the war crimes prosecutor, who must wait for cases to be sent down from The Hague. Prijic bagged his biggest success in July–and was fired a week later.

Lengthy prison sentences, ranging from 15 years to the maximum 40, were set for the former head of Serbia’s secret service and the former commander of one of the most notorious paramilitary units, as well as five other men. They killed former Serbian President Ivan Stambolic in August 2000, after Stambolic joined the opposition to Milosevic.

The former paramilitary commander still is on trial in another, even bigger case–the murder of Prime Minister Djindjic in 2003. Prosecutors expect these cases will tie together people and evidence to show conclusively that Milosevic used the nation’s security apparatus and paramilitaryy groups to put down political opposition, often by murder.

Pressure continues for the turnover of former Bosnian Serb President Radovan Karadzic and his top general, Ratko Mladic, the so called Butcher of Bosnia. Both have been indicted by the ICTY for alleged involvement in the massacre of 8,000 Muslim men and boys in Srebrenica in 1995. They are believed to be hiding in Serbia, with the help of police and military authorities.

The EU said earlier this year that Serbia’s failure to turn over high level war crimes suspects was pushing it backward on the path to joining the union. The U.S. suspended a $10 million payment in an aid package for the same reason.

Soon more than a dozen suspects were delivered to The Hague. (Many of those who surrendered “voluntarily,” as the government spins it, received huge financial payments for their families as well as retirement benefits.)

Prijic was cashiered by the nation’s top prosecutor, who had pressured war crimes prosecutor Vukcevic about the four generals. Minister of Justice Stojkovic is widely believed to have orchestrated the move.

Interestingly, Prijic’s replacement, Slobodan Radovanovic, has a good reputation. He is on the executive board of the Public Prosecutors and Deputy Public Prosecutors Association of Serbia, which, like the judges association, is becoming a player in policy and reform. He announced immediately that he would keep Prijic as a deputy and that his No. 1 priority is to continue investigating the murder of Djindjic.

“This appears to have been done in a way that someone can say to one group, ‘You see, we made a change,’ and then tell another, ‘But look, nothing really changed,’ ” says Robert Lochary, the country director in Serbia for the ABA’s CEELI. But it was the kind of jolt that too often follows reforms and successes in Serbia. “It’s too early to talk about implications,” says Aleksandar Milosavljevic, a deputy prosecutor for organized crime and president of the executive board of the prosecutors association. “The only thing certain is that doing it this way can create instability in the system.”

The system itself may be undergoing major change. On July 1 the Serbian minister of justice, Stojkovic, proposed sweeping judicial reform.

Significantly, the proposal calls for a representative of the judges association, as well as one from the prosecutors association, to be on a Strategy Coordination Commission to monitor progress and issues if the reforms are adopted as expected. Judges and prosecutors have complained over the years about having no input in legislation concerning the judicial system.

“Over the past year these associations have become big players in legal reform,” says Blazo Nedic, a Serb who works as legal counsel in the ABA’s CEELI office in Belgrade.

“There have been no important developments that they weren’t invited to comment on or submit suggestions. Often now their members are invited onto working groups that draft legislation. They still don’t have the impact we’d like, but we hope they’re on the right track.”

Tortuous Progress

Many of the proposed reforms are aimed at ensuring independence for judges and prosecutors. But Judge Hadziomerovic is skeptical, having seen too many political contortions over the years.

The judges association was created in 1997, soon after then president Milosevic’s use of compliant judges to overturn election results that would have deposed him. The association had no legal right to exist and held clandestine meetings in members’ apartments.

In July 2000, with Milosevic anticipating similar problems in an upcoming election, 18 judges were removed from the bench. Many of them were on the executive board of the judges association, which had even dared use the word “independent” in its name when first launched. Later, when a new government was formed in 2001 after Milosevic’s downfall, all were reinstated. Many were promoted to higher courts and positions. Recognizing the association’s potential, CEELI offered the judges a small grant in 1997 to purchase computers and hire a secretary.

“Their board had a very heated debate, and they finally said they couldn’t accept it because it would open them to allegations of being tools of foreign mercenaries,” says CEELI’s Lochary.

Since the fall of Milosevic, the Judges Association of Serbia has held annual meetings and developed canons of judicial ethics, which thus far are binding only on its members. In 2001, the association accepted a $41,000 CEELI grant to open, equip and staff an office as well as to develop programs and meetings for members. The U.S. Agency for International Development and other agencies and groups have also assisted the association.

By 2004 the judges association, which collects dues from its 1,500 members who comprise three fourths of the judiciary, managed to operate for several months with no outside funding.

More recently, CEELI and others have put greater effort into development of the prosecutors association, which was created in 2002. The association is following in the footsteps of the judges, developing ethical standards for its members and working on proposed reforms.

Earlier this year, the two associations sued over pay raises given others in government but not judges and prosecutors. In June, the Constitutional Court, which reviews legislation but not individual cases, agreed the pay slight was unconstitutional.

‘Closer … And Farther Away’

This summer, the judges and prosecutors associations immediately called for revisions in the minister of justice’s proposed reforms, which they believe fail to go far enough to make them equal with and less subservient to others in government. For example, Hadziomerovic, the judges association spokesman, says the proposals still would give the legislature a role in disciplining judges, while the other two branches of government are wholly self policing.

And Milosavljevic, executive board president of the prosecutors association, says, “One bad part of the proposed reforms is that it would move prosecutors closer to the executive branch and farther away from the judiciary, which is risky.” He explains that in a civil justice system with an inquisitorial model this is significant.

“Still, we see the proposed reforms as a big achievement,” says CEELI legal counsel Nedic. “If everyone remains true to their word, it will be significant.”

Justice Minister Stojkovic’s backing of the reforms is seen as significant and positive, but other actions he has taken since assuming office have been viewed differently. They include threatening to abolish the new court, orchestrating the attempt to keep the four generals from trial by the ICTY, and firing the organized crime prosecutor.

Like many in office now, Stojkovic is faced with the balancing act of holding together a coalition government of several political parties, including power centers trying to prevent investigations of war crimes and organized crime.

“To his credit, Stojkovic helped clear legal paths for the domestic war crimes court to use evidence from the ICTY, and he recently got behind the development of a witness protection program, as well as the proposed judicial reforms,” says Djordjevic, the U.N. Development Program’s consultant to the special court.

The court may again soon be looked to for steadiness in the midst of upheaval. The Kostunica government came under a lot of fire during the summer, especially after charges against Milosevic’s son and wife were dropped. More and more, the government is seen as an obstacle to real reform.

Elections are expected soon to form a new government with a different coalition of political parties. If that happens, the special court could once again be looked to as a symbol of steadiness and direction in a time of uncertainty. The big question concerns whether a new coalition government would have the political will to strongly back the court and its mission.

Doing so would go a long way toward building judicial independence for all of Serbia’s judiciary and making the rule of law more than a slogan.


A Hybrid Takes Root

Robert Lochary tried something odd for the heck of it when he was training prosecutors soon after arriving in Serbia two years ago. He is country director in Serbia and Montenegro for the ABA’s Central European and Eurasian Law Initiative.

Serbia has a civil law system and thus an inquisitorial procedure that limits the role of prosecutors, with judges both presiding over and conducting trials. But the country’s new court for war crimes and organized crime is pushing through some of those boundaries. Lochary wanted to show prosecutors an alternative.

“I did a sample closing argument from a murder case I handled before I came over,” says Lochary, who formerly worked as a prosecutor in Boulder, Colo.

At the end of a trial, Serbian prosecutors ordinarily tell the panel of judges hearing the case that the testimony and evidence are complete. Then they ask for a maximum sentence. Why bother saying more? There is no transcript, other than brief encapsulations by the presiding judge.

Five months after the training session, one of the organized crime prosecutors mentioned to Lochary that a colleague had recently used a full scale closing argument, which would not be permitted in a regular Serbian court. Apparently the case had gone so badly the prosecutor figured he had nothing to lose.

“I grinned and asked if he won,” Lochary recalls. He didn’t.

But the practice may gain currency and, some believe, spread throughout the judicial system. One side effect of the increased international help with war crimes is the exposure of civil law systems to some of the best practices of common law and the adversarial system.

The International Criminal Tribunal for the former Yugoslavia and the International Criminal Court both have developed hybrid systems, using aspects of both inquisitorial and adversarial processes.

In Serbia, prosecutors for war crimes and organized crime cases are using adversarial tools such as “witness collaborators,” or cooperating witnesses with full immunity. They expect the tool eventually will be expanded beyond all or nothing arrangements to permit plea bargaining.

Prosecutors in the special court also are gaining more power in initial investigations. A recent proposal for sweeping judicial reform calls for them to take over many of the functions of investigative judges. Currently those judges reinvestigate a prosecutor’s work before sending it along to trial judges, who themselves approach cases in an investigative fashion.

“The challenge now is for Serbia to pick which way to go,” Lochary says. “They can stay with the continental system and duplication and triplication of effort, or they can move to a more common law system with adversarial roles.”

Terry Carter is a senior writer for the ABA Journal.

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