The Association of Serbian Judges warned that judicial system is part of the integral legal system and that it must be organized in line with the Serbian Constitution.
It turned out that the agreement on judiciary in Kosovo and Metohija (KiM), which was reached after a long break in negotiations with Pristina, was to small step for opening the first negotiation chapter on Serbia’s way to the EU. On the other side, despite claims coming from state officials that the agreement is status neutral , part of the opposition in Serbia claim that negotiators had made to big step beyond the law and that transfer of judiciary into a Kosovo system is another lever of the Serbian authority that is handed over to Pristina. Serbian government, however, did not have any doubts about it, thus the report on agreement was adopted immediately, like in case of all other agreements deriving from the Brussels Agreement.
Lawyer Branko Pavlovic says that the issue of territorial organization, jurisdiction and composition of courts, can’t be arranged by any government’s decision, agreement in Brussels or any other reference to the Brussels Agreement, because when we discuss the issues of organization and jurisdiction of courts that is subject matter arranged by the laws, whereas when it comes to composition of courts it is, based on the Constitution and laws, the area in the exclusive jurisdiction of the High Judicial Council.
Pavlovic justifies such interpretation by recalling the last year decision of the Constitutional Court of Serbia (CCS), to dismiss the initiative to assess the constitutionality of the Brussels Agreement, since court was of opinion that the Agreement in its nature is not the legal act.
“In case that the Brussels Agreement would be an international agreement, then the issue of superiority of its legal force over the regular laws could be challenged, but in that case it would also be a document whose constitutionality could be assessed. Since that is not the case, and it does not fell in the category of any other legal act, even of a lesser legal force than the law, then it is not possible to recall it when it comes to these issues,” said Pavlovic.
The Association of Serbian Judges recalled on conclusions of the Association’s assembly from 8 December 2013, on integral Serbian justice system and position of judges from KiM, and also called the legislative authorities, executive and the High Judicial Council to take into consideration that ‘judicial system makes the part of the integral legal system and that it has to be organized in line with the Constitution of the Republic of Serbia’. They warned that ‘judges form the territory of the Autonomous Province of Kosovo and Metohija have constitutionally guaranteed permanent posts of judges too, which can’t cease due to abolition of a court or their refusal to carry out judicial functions in courts which are out of the judicial system of the Republic of Serbia.”
Thus, Pavlovic argues that agreement on judiciary violates laws of Serbia and that ‘courts on the territory of Kosovo and Metohija will operate in future as parts of the so called Republic of Kosovo’s institutions, under its coat of arms, name, flag, oath, in line with co called laws, wheres all of it will be provided only to individuals that have Kosovo’s citizenship, or at least the double one. It won’t be possible for any single decision to be reviewed, not even by the highest judicial institution of the Republic of Serbia, that is, all final decisions brought following regular or extraordinary appeals, will be brought by Pristina,” said Pavlovic. He underlined that concerns expressed by the Prime Minister Aleksandar Vucic and Minister of Justice Nikola Selakovic , that there won’t be sufficient number of judges, comes as an awareness that judges will not wish to be transferred and work in the so called Republic of Kosovo and that they will remain judges of the Republic of Serbia. “Their judicial function can’t cease, and until their retirement they are entitled on judicial salary from the budget of the Republic of Serbia,” concluded Pavlovic.
The president of the Serbian parliament’s Committee for Kosovo and Metohija, Milovan Drecun, has no dilemma at all whether this agreement is in violation with our laws, and referred to ‘specific’ that we can’t implement our laws on the territory of KiM, not only due to the unilateral declaration of independence, but due to the (UNSC) Resolution 1244. “If we are recalling the Resolution 1244, then our courts can’t be present in Kosovo and Metohija, like no other institution of ours, since it would violate the Resolution,” said Drecun and stressed that the Brussels Agreement is status neutral.
Answering on comment that there are opinions that agreement on judiciary is in violation with the laws from the perspective of Serbian legislation, Drecun says that it is true that judiciary will function within Pristina’s legislative framework, but he reminded that our laws are not implemented on the territory of KiM and that we have handed over the administration over that territory to UNMIK, based on the Resolution 1244.
“A forcible secession took place, which we can’t annul by our will, and now we are establishing cooperation by treating those institutions as that they are provisional institutions of the self-governance, in order to bring them in line with the Resolution 1244, (thus) protecting our own people from the arbitrariness of the courts which are operating there,” concluded Drecun and called all who have opposite opinion to ‘go to KiM, and with the laws they are recalling upon, protect Serbs who are trialed and who will be trialed there.
