Keywords

1 Introduction

Ever since the Helsinki Final Act of 1975, the principle of judicial independence has been recognized as one of the core values among the OSCE Member States. Its importance was further highlighted at the Copenhagen meeting of OSCE States as quintessential for “ensuring respect for all human rights and fundamental freedoms, the development of human contacts and the resolution of other issues of a related humanitarian character” (The CSCE Cf. document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE , 1990). This commitment to the rule of law and judicial independence by the OSCE states was further strengthened in the OSCE Charter for European Security of 1999 (OSCE Summit Declaration, 1999) and later in Helsinki Council Decision no. 7/08 on further enhancing the rule of law in the OSCE area. The primary standards for establishing the principle of judicial independence in the national context of the OSCE states were defined in the Kyiv Recommendations on Judicial Independence in Eastern Europe, the South Caucasus, and Central Asia (OSCE, ODIHR & Max Planck Minerva Research Group on Judicial Independence, 2010). The rule of law and judicial reforms have also been recognized as one of the main areas of OSCE operation in the literature on the topic (Evers, 2010).

Despite the laudable commitment, obtaining and preserving an independent judiciary in the OSCE region has been proven to be much more difficult in practice (Bodnar & Schmidt, 2012). One of the reasons behind such a state of play is the unfinished transition process and unsatisfactory judicial reform in many of the OSCE countries (Mihr, 2020). This chapter will illustrate the experiences of the countries that have had to pursue the most radical measure of interference with judicial independence—judicial vetting—for compliance with their rule of law commitments. This chapter’s main research claim is that vetting needs to be assessed holistically through international standards and the particular national context. If international standards are not narrowly curtailed to the necessities of each national context, there are inherent dangers of abuses passing undetected. The chapter will proceed in the following manner: Firstly, closer attention will be given to the definition of the vetting of judges in the context of transitional justice. Secondly, contemporary vetting procedures will be analyzed in the context of the rule of law deficient democracies”, which pursue judicial vetting prevalently for institutional capacity-building purposes and not only as means of “dealing with the past” (Karstedt, 1998). Finally, the vetting experience of Serbia between 2008 and 2012 will be closely examined using Frankeberg’s (2006) method of layered narrative. The Serbian vetting saga reveals valuable insights into how international vetting standards can be used and abused nationally. Additionally, it shows that the procedural safeguards of the vetting procedure can be easily circumvented.

2 Vetting as Means of Interference with Judicial Independence

Vetting procedures have gained momentum in Third Wave Democracies as a tool for rebuilding state capacity post-crisis or during regime shift within the transitional justice framework (Mayer-Rieckh, 2007). In the broadest sense, vetting can be defined as a process of “assessing integrity to determine suitability for public employment” (United Nations, 2006, p. 4). This procedure aims to “exclude from public service persons with serious integrity deficits to reestablish civic trust and re-legitimize public institutions and disable structures within which individuals carried out serious abuses” (United Nations, 2006, p. 9). Throughout the 1990s, vetting was used to reorganize various public sector structures: police, state officials, and the judiciary underwent such vetting in new democracies emerging following the departure from communism or authoritarianism. Vetting was implemented as a tool of transitional justice in post-communist countries such as East Germany (Wilke, 2007), the Czech Republic (Skapska, 2003), and Poland (Czarnota, 2007). It has also been applied in post-conflict settings such as Bosna and Herzegovina (Mayer-Rieckh, 2007). As a part of radical measures of restructuring the public sector, authoritative international organizations such as the OSCE, the UN, and the Council of Europe have closely monitored the vetting procedures. Nevertheless, research on the precise nature, impact, and scope of vetting in practice remains scarce, except in transitional justice scholarship (e.g., De Greiff, 2007; Elster, 2004; Horne, 2017; Lynch, 2013; Mihr, 2020; Stan, 2016).

In many post-communist countries, vetting has often been paired with lustration, both in theory and practice. The concepts of vetting and lustration are used interchangeably in the literature (Sadurski, 2005, p. 245), although there are significant differences. As Czarnota has explained, lustration “does have some elements of vetting, but it goes further because it is connected with the process of decommunization, which means a conscious attempt at removal of the remnants of communism from the public life of the societies and states embarked on the process of democratization and creation of a law-governed state” (Czarnota, 2009, p. 311).

Thus, it could be argued that lustration is a means of “dealing with the past”, (Sisson, 2010) while vetting is a forward-looking measure that aims to foster public trust in institutions and strengthen new democracies. A vetting process is a form of administrative justice (Teitel, 2009). It is prescribed by law and guided by legal principles in its implementation, unlike pure purging, a very similar phenomenon often present in post-authoritarian contexts. Unlike the purging of the previosus regime’s staff without any aspect of due process, which has a general retaliatory nature (Lynch, 2013, p. 61), vetting serves the purpose of supporting democratic transition and building citizens’ trust in state institutions.

Nevertheless, the differentiating lines between the two may get blurred. As Horne has observed, “while there is a gray area in which a vetting program can potentially blur into a purge”, these two procedures can be differentiated by “having a clear process with transparent and legitimate vetting criteria, limiting the procedures in advance of their commencement, basing the process on reliable and verifiable information, and cleaving to the rule of law practices” (Horne, 2017, pp. 428–429). The de-Ba’athification program in Iraq is recognized in the literature as a prime example of how vetting can be misused for political purposes (Horne, 2017; Sissons & Al-Saiedi, 2013).

Vetting has been recognized as a successful measure within the transitional justice framework. The international community has assertively endorsed it, especially in post-conflict societies such as post-Dayton Bosnia and Herzegovina (Bergling, 2008). Nevertheless, such a drastic measure is prone to significant misuse, as has also been noted. For example, in the first years of post-1989 Poland, vetting was often used as a bargaining chip in the political arena and proposed as means of dealing with political opposition (Walicki, 1997). Kiss (2006) has also noted a similar pattern in post-communist Hungary. Besides the dangers of political misuse of the vetting procedures by national governments, another problem has emerged in the vetting practices of post-conflict societies—the inapplicability of international standards due to the embedded local socio-political context, for example, in the case of Kosovo (see Betts et al., 2001).

Vetting procedures are also standard in contemporary legal realities, but the discourse around them remains predominantly in the transitional justice setting. Institutional capacity-building and public sector reforms have been deemed “the heart of the transformation” process (Boraine, 2006). Nevertheless, the institutional reform umbrella within transitional justice rarely focuses on the specifics of each part of the public sector that needs to be transformed for a democratic regime to prevail.

This chapter argues for building on a distinctive framework for vetting judges. A distinct framework should, on the one hand, observe international standards on judicial independence and the rule of law and, on the other, account for the specificities of the local contexts in which the vetting is being applied.

The aims and rationales of vetting procedures have changed considerably over time. In the post-communist setting, the main ground for vetting was involved with the previous communist regime. In the post-conflict environment of Bosnia and Herzegovina, the primary rationale was to vet officials who might have had links to severe human rights abuses due to the atrocity of the war that took place at the beginning of the 1990s. One of the main ideas behind the vetting of police, judges, and prosecutors in Bosnia and Herzegovina was to eliminate individuals who were in any capacity related to war crimes, as well as to establish proportionate ethnic representation among the officials of the public sector (Hasic, 2015).

Nevertheless, in the last decade, new aims and different grounds for vetting have emerged that target the judicial sector only and focus primarily on strengthening the rule of law and judicial integrity. This rationale for vetting judges has appeared in countries that could be defined as “the rule of law deficient democracies” (Bogdandy & Ioannidis, 2014). These countries still carry the remnants of their past (Mihr, 2020). However, their judicial reforms through vetting have now been prompted by their obligations deriving from their international commitments and EU accession procedures (Coman, 2014). Thus, the institutional capacity-building of the judiciary as an aspect of transitional justice has merged into the constitutionalization of international standards on judicial independence. For example, the purpose of the Albanian Vetting Act of 2016 was to.

determine specific rules for carrying out the transitional re-evaluation of all persons to be vetted, to guarantee the proper functioning of the rule of law, the true independence of the justice system, as well as the restoration of public trust in the institutions of [that] system

(The Assembly of the Republic of Albania (2016). Albanian Law no. 84/2016 – “The Vetting Act”).

The new aims and rationales of the vetting procedures are reflected in the international standards on vetting, which call for stricter scrutiny and more robust procedural safeguards when it comes to the restructuring of judges (see Venice Commission, CDL-REF(2022)005, 2022). Nevertheless, these standards have not been analyzed systematically and, over time, the focus of judicial vetting shifted to forward-looking goals of establishing an independent judiciary as a cornerstone of contemporary constitutional democracies. As the transition to a democratic regime has gained a prevalently forward-looking nature, the current aims and rationales behind the vetting procedures tend to differ from the ones in transitional justice. Unlike the post-communist vetting of judges, which took place during the 1990s, the model that emerged in the last two decades has been primarily justified by the urgent need to clear the judicial sector of corrupt and incompetent judges. Judicial vetting now aims to reach the requirement of independence and integrity of the judiciary as prescribed by the modern understanding of the rule of law. In this manner, vetting has become one of the mechanisms for combatting corruption in the judicial sector, which is particularly important in rule-of-law deficient democracies where this has been a particular issue (Laver, 2012).

The vetting of judges is now based on assessing the judiciary through objective criteria such as competence and impartiality and less on examining their particular involvement in the previous regime. With objective grounds for evaluation and strict procedures for its implementation, a vetting process might appear shielded from the possible political misuses detected in post-communist settings. However, empirical evidence from several countries, such as Serbia, shows this is only sometimes the case. As Gloppen has warned (2013, p. 73),

“if misused, however, anticorruption strategies become very effective tools for undermining judicial independence by ridding the judiciary of independent-minded judges that the authorities find bothersome.” This danger of political misuse requires a deeper engagement with national contexts when implementing a measure as radical as vetting regarding the judiciary or one of the other branches of government.

The countries that have pursued judicial vetting to fight corruption and inefficiency in the judiciary score relatively low in adherence to the rule of law (World Justice Project, 2021). Continuous work on the national level, but also in cooperation with international organizations such as the Organization for the Cooperation and Security in Europe (OSCE) and the Council of Europe CoE, has been carried out to improve the overall efficiency and independence of the judicial sector in the OSCE region. The OSCE states that falling short of the rule of law requirements cannot be perceived only through the transitional justice framework. Shifting the focus from their transitional nature to the specifics of their rule of law deficiency could help identify whether specific tools, such as the vetting of judges, could be well adapted to their local contexts.

3 Democracies with Systematic Rule of Law Deficiencies

Judicial vetting as a tool for strengthening judicial independence and accountability has spilled over from the transitional and post-conflict contexts. It has also been used in countries that the literature refers to as “delegative” (O’Donnell, 1994), “fragile” (Issacharoff, 2015), or “defective” (Merkel & Croissant, 2000). These terms should not be used interchangeably. Seeing them listed allows us to draw a meaningful conclusion—there are multiple layers in differentiation between a well-functioning democracy and a full-fledged authoritarian regime. The definition of defective democracies hints at the problems encountered by the OSCE states that pursue judicial reforms (such as Serbia, Ukraine, Moldova, and Bosnia and Herzegovina). According to scholars, a

defective democratic system significantly limits the functioning of core democratic institutions that secure basic political and civic participatory rights and freedoms, imposes constraints on the horizontal checks and balances on power, and/or imposes limitations on democratically legitimated authorities in their effective political power to govern

(Croissant & Merkel, 2019, p.440).

Many of these democracies have emerged from authoritarian regimes and still struggle with the past. However, there are inherent dangers in perceiving them only as democracies in transition. As Merkel notes:

“It can be shown that defective democracies are by no means necessarily transitional regimes” as “they tend to form stable links to their economic and societal environment and are often seen by considerable parts of the elites and the population as an adequate institutional solution to the specific problems of governing ‘effectively’ (Merkel, 2004, p.33).

In that sense “as long as this equilibrium between problems, context, and power lasts, defective democracies will survive for protracted periods” (Merkel, 2004, ibid).

Acknowledging that some transitional regimes may have become permanent could contribute to a better understanding of their problems, especially regarding the flaws of their judicial sectors. Assessing these countries in light of their current state of play and not the ideal full-fledged democracy they aim to become may facilitate the adjustment of tools such as vetting to their respective local contexts.

The vetting of judges as a rule of law enhancement tool calls for a narrow delineation of the context where it can be applied. Bogdandy and Ioannidis (2014) offer an account of “democracies with a systematic deficiency in the rule of law” (Bogdandy & Ioannidis, 2014). According to these authors’ definition, democracies with a systemic deficiency in the rule of law are those in which “institutions are regularly seen as unable to tackle infringements, due to corruption, unwillingness, institutional weakness, or lack of necessary capacity” (Bogdandy & Ioannidis, 2014, p. 73). Thus, in these countries, “normative expectations are undermined” (ibid). Focusing on the systemic violations of the rule of law is essential for assessing the vetting of judges. This tool is perceived as radical and should be used only when every other measure of strengthening judicial integrity fails. A thorough analysis of empirical evidence is needed to conclude whether vetting successfully addresses a systemic rule of law deficiency in the judicial sector. This chapter aims to contribute to that line of research.

4 International Standards—Towards a New Framework?

That a judiciary is not only a part of the public sector but also a governmental branch has significant implications for a vetting process regarding its scope, aims, and procedural safeguards. The judiciary’s position in constitutional architecture is guided by the principles of separation of powers, the rule of law, and judicial independence, as prescribed by international standards and national constitutional norms (e.g., see International Commission of Jurists, 2007, p. 20).

Against this backdrop, those principles should be reflected in the normative framework of the vetting procedures and be balanced with the need for a complete restructuring of the justice system. From an assessment of the authoritative international documents which not only set the standards of protection of judicial independence but also put limits on interference with the organization of the judiciary, it is noticeable that only a few are dedicated explicitly to vetting. The authoritative international documents on judicial independence, such as the Basic Principles on the Independence of the Judiciary (UN, 1985); Universal Charter of the Judge (International Association of Judges, 1999); Kyiv Recommendations on Judicial Independence in Eastern Europe, South Caucasus, and Central Asia: Judicial Administration, Selection and Accountability (ODIHR, 2010); or the European Network of Councils for the Judiciary (ENCJ)’s Minimum Standards regarding the evaluation of professional performance and irremovability of members of the judiciary (ENCJ, 2012–2013), do touch upon the principle of irremovability of judges, as well as the appointment, dismissal, and disciplinary procedures, but do not tackle judicial vetting in the form of either a disciplinary or judicial removal tool.

4.1 Transitional Justice Standards on the Vetting of Judges

The literature often uses vetting with lustration procedures applied to the public sector, including the judiciary (Mihr, 2020). The CoE’s framework for assessing the transitional justice measures in European post-communist countries has provided necessary standards on lustration procedures, including the vetting of judges. The guiding lustration standards may be found in the Parliamentary Assembly of the Council of Europe Resolution 1096 (PACE, 1996) and its explanatory memorandum (CoE Committee on Legal Affairs and Human Rights, 1996), and more thoroughly through the jurisprudence of the European Court of Human Rights (Sweeney, 2012). Although the standards under the CoE offer general guidelines on restructuring institutions in a transitional period, they do not specifically regulate the vetting of judges as a specific branch of the public sector. In that sense, more thorough are the Operational Guidelines of the International Center for Transitional Justice (ICTJ), produced in collaboration with the United Nations Development Programme (UNDP) in 2006, on “Vetting Public Employees in Post-Conflict Settings—Operational Guidelines” (ICTJ-UNDP, 2006), as well as the report of same year by the United Nations High Commissioner for Human Rights on “Rule of Law Tools for Post-Conflict States—Vetting: An operational Framework” (OHCHR, 2006).

Besides the prosecution of crimes committed under totalitarian regimes, the PACE resolution also envisioned administrative measures such as lustration and decommunization laws for the persons “who did not commit any crimes that can be prosecuted […], but who nevertheless held high positions in the former totalitarian communist regimes and supported them” (PACE, 1996, para. 11). The specific aim of these measures was to “exclude persons from exercising governmental power if they cannot be trusted to exercise it in compliance with democratic principles, as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now” (ibid). These administrative measures were implemented nationally through lustration laws and vetting in the public sector. The PACE Resolution emphasized that these measures could be deemed to be the rule of law adherent if the following conditions are fulfilled:

Firstly, guilt, being individual, rather than collective, must be proven in each case – this emphasizes the need for an individual, and not collective, application of lustration laws. Secondly, the right to defense, the presumption of innocence until proven guilty, and the right to appeal to a court of law must be guaranteed. Revenge may never be a goal of such measures, nor should political or social misuse of the resulting lustration process be allowed. The aim of lustration is not to punish people presumed guilty – this is the task of prosecutors using criminal law – but to protect the newly emerged democracy (PACE, 1996, para. 12).

By setting these criteria, the Assembly aimed to highlight the rather pragmatic nature of the lustration procedures, whose primary purpose is to enable a smooth transition rather than address the wrongdoings of the past. The Guidelines supporting the Resolution, contained within the Explanatory Memorandum, discuss in detail the requirements that must be considered within the lustration procedures.

The European Court of Human Rights (ECtHR)’s jurisprudence on lustration in the countries of post-communist European broadly reflects the Resolution. The claims brought before the ECtHR were mainly argued under Article 14 in conjunction with Article 8 and Article 6 (on procedural grounds) (Sweeney, 2012, 133–139). In the case Matyjek v Poland (No. 38184/03, ECtHR, 2007), the ECtHR applied the criminal limb of Article 6, referring to the tests set in the well-known case Engel and Others v Netherlands (Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, ECtHR, 1976) and equated lustration to criminal trials in terms of procedural safeguards. The requirement of the same procedural safeguards under the criminal limb of Article 6, which imposed quite a burden on countries seeking lustration, did not entail that the ECtHR equalized the lustration process with the criminal trial. The specific nature of the lustration was illustrated in conditions laid out in the judgment Adamsons v. Latvia (App. no 3669/03, ECtHR, 2008). According to this judgment, there were four necessary conditions for the lustration process to be compatible with the European Convention. Firstly, a lustration law had to be accessible and predictable, as required by the principle of legality. Secondly, the punishment could not be its only purpose. Thirdly, the procedure must have been precise enough to address the individual (rather than collective) responsibility and followed by sufficient procedural safeguards (Adamsons v Latvia, App. no 3669/03, ECtHR, 2008, para. 116). The Council of Europe’s framework on transitional justice measures illustrates the main rationales that emerged in the post-communist setting to delineate the procedural safeguards needed for the lustration and vetting to be differentiated from plain purging.

The ICTJ Operational Guidelines further emphasize that “There is no ‘one-size-fits-all’ response to vetting and public consultations help design context-and institution-specific vetting strategies” (ICTJ-UNDP, 2006, p. 19). Nevertheless, before a country proceeds with vetting as a transitional justice mechanism, six different types of conditions need to be fulfilled: (1) political, determining whether there is a political will to pursue vetting; (2) institutional, assessing which state institutions need to be vetted; (3) individual, identifying the individuals who fall within the scope of vetting; (4) legal, specifying which actor will have the legal mandate to implement vetting; (5) operational, related to the resources needed to carry out the vetting procedures; and (6) temporal, adapting the vetting process to other transitional processes within the country, such as political ones (ICTJ-UNDP, 2006, pp. 11–14). The experience of the post-communist countries shows that the transitional regimes mainly grappled with the lack of will within the society to carry out radical reform in both the institutional and political realm as, for example, took place in post-1989 Hungary and Poland (Nalepa, 2021, p. 279).

While these conditions served as valuable guidance for countries that underwent more comprehensive institutional reform in the first years of transition, they need to be revised in contemporary vetting, explicitly targeting judges. The vetting narrative has now switched from the “dealing with the past” rationale to strengthening the rule of law and enhancing the efficiency of the judiciary. As the nature of the vetting procedure has become more technical and politically neutral in its aims, the requirement for political consensus seems to have lost its previous profundity, although authoritative bodies, such as the Venice Commission, still emphasize its importance. According to the Venice Commission, regarding the Albanian Draft Vetting Law, “it’s the question of political necessity and the wide public consensus that determines the legitimacy of a measure radical as a re-evaluation of all judges” (Venice Commission, 2015, para. 98).

The problem in practice is assessing whether there is a sufficient political consensus. This shortcoming in the judicial vetting paradigm leaves space for possible political misuse, which the Serbian vetting procedure of 2008–2012 illustrates.

Vetting of the judiciary now falls within the constitutional framework on judicial independence of each OSCE state, which is also affirmed in authoritative international standards. The standards on contemporary vetting procedures can be found primarily in the soft law of specialized international bodies, such as the Venice Commission and the OSCE Office for Democratic Institutions and Human Rights (ODIHR), which closely follow the vetting of judges in national contexts. Although the standards laid out by these bodies broadly reflect the vetting principles established in the transitional justice context, they are better adapted to the necessities of the local contexts and the specific nature of the judicial role.

4.2 Contemporary Standards on the Vetting of Judges

The standards for vetting judges, as previously emphasized, have been thus far analyzed in the literature from the transitional justice perspective. However, there were recent developments in standards on vetting under the European Convention of Human Rights following the Albanian judicial reform process of 2016. In the judgment, Xhoxhaj v. Albania (ECtHR, 2021), the ECtHR, for the first time, assessed the compliance of contemporary vetting procedures with the Convention (Tammone, 2022). The case concerned a former judge of the Constitutional Court of Albania, who was dismissed due to the vetting procedure as she had failed to account for some of her financial assets. The applicant referred to Articles 6 and 8 of the Convention, but the ECtHR found no violation. This judgment represents a significant development in the international framework of judicial independence and the principle of judicial irremovability. As some observers noted, the ECtHR “changed the ‘course’ of case law not only from Oleksandr Volkov v. Ukraine but also from Baka v. Hungary as regards the principle of the irremovability of judges” (ECtHR, 2021). The justification for this shift is found in the particular circumstances of the Albanian situation, which the ECtHR characterized as sui generis (Xhoxhaj v. Albania, para. 299). The question that remains unanswered is what the criteria are to determine which case legitimately calls for an exception from the principle of the irremovability of judges and which, on the other hand, represents its flagrant violation, as was the case of the Serbian reappointment of judges a decade ago.

The specific nature of the vetting of judges, which may result in their dismissal, calls for a holistic interpretation of the relevant international standards on all the procedures concerning judicial status—appointment, dismissal, and evaluative and disciplinary procedures. The assessment of vetting as a tool for enhancing judicial integrity cannot overlook the fact that no international standard calls for an absolute principle of the irremovability of judges, as almost all of the relevant documents allow for an exception. Nevertheless, strict procedural safeguards must be observed even in cases of abnormality. For example, the Universal Declaration on the Independence of Justice (Singhvi Declaration) holds that “A judge shall not be subject to removal except on proved grounds of incapacity or misbehavior rendering him unfit to continue in office” (United Nations, 1987, para. 30).

Similarly, the Kyiv Recommendations entail that disciplinary proceedings should be used only in “instances of professional misconduct that are gross and inexcusable and that also bring the judiciary into disrepute” (ibid. para. 25). Further, procedures that lead to dismissal of judges need to be fair (Report of the UN Special Rapporteur, para. 61.), open (Kyiv Recommendations, para. 26.), and conducted by an independent authority (Recommendation CM/Rec (2010)12, par 69). The standards by which judges are assessed should be clear and foreseeable (Oleksandr Volkov v. Ukraine, ECtHR, app. no.21722/11, para. 173–185), and the decision on dismissal needs to be reasoned (Kyiv Recommendations, para. 26). Lastly, judges need to be provided with an effective remedy against the decision on their dismissal (Baka V. Hungary, App. 20,261/12, para. 21).

These standards should also be reflected in the vetting of judges, as emphasized in the Venice Commission’s Position Paper on vetting judges in Kosovo (Venice Commission, 2022). As the Venice Commission has highlighted, “dismissal due to a negative evaluation should be avoided for all judges who have taken office, except in exceptional circumstances. In case of imbalance between these, the independence of the judiciary takes precedence” (Venice Commission, 2022, 82). The strict observance of the judicial independence principle and its prevalence over other institutional considerations is the key differentiating factor between the transitional and contemporary vetting procedures.

Further, the Venice Commission insists on the extraordinary nature of the vetting of judges, as “such radical solution would be ill-advised in normal conditions since it creates enormous tensions within the judiciary, destabilizes its work, augments public distrust in the judiciary, diverts the judges’ attention from their normal tasks, and, as every extraordinary measure, creates a risk of the capture of the judiciary by the political force which controls the process” (Venice Commission, 2015, para. 98). The OSCE/ODIHR (2014, para. A) took a similar position in the case of Moldova recommending that the possibility of dismissal of judges as an outcome of the evaluation process should be avoided.

While the above-described standards prescribe very detailed and strict procedural safeguards to be implemented in the vetting of judges, these can be easily circumvented in practice without due attention to the local context.

The following section of this chapter will analyze the Serbian reappointment of judges, which took place between 2008 and 2012, to illustrate how the local context may undermine the efficiency of procedural safeguards implemented in vetting judges. The Serbian reappointment of judges has been well analyzed in the national scholarship (e.g., Trkulja, 2010; Ivosevic, 2010; Marinkovic, 2009) but has not been assessed yet from the perspective of international standards on vetting as a tool for strengthening judicial integrity.

The next section of this chapter will depict how the local context not only informs but also undermines the normative expectations behind vetting as a tool of judicial reform.

5 Serbia—The Vetting of Judges as a Rule of Law Violation

The Serbian experience with the judicial vetting of 2009 is arguably one of the most explicit illustrations of the dangers inherent in judicial vetting if the local context is not observed. In this case, disregarding the principles of the rule of law and judicial independence was multifaceted. The arbitrariness of the reform application and gross violation of procedural safeguards reflected a disregard for the rule of law. The reappointment of the Serbian judges, which took place in 2009, has been labeled by Serbian scholars and international observes as a “traumatic experience” (International Commission of Jurists, 2016, p. 4), which enabled the government to “cleanse the third branch from the ‘politically unsuitable’” judges (Trkulja, 2010, p. 44). The specificity of the Serbian experience, as well as those of other previously discussed rules of law deficient democracies, is that breaking with the past as an aim in pursuing judicial reform overlaps with the necessities of complying with the standards derived from international commitments, Council of Europe and OSCE membership, and the EU Accession Procedure. Since the transition, the Serbian case of judicial reforms needs to be assessed through the prism of the EU Accession Procedure as, throughout the years, this has been the key driver of every judicial overhaul.

As the research on the EU rule of law conditionality shows, unlike in the previous rounds of enlargement,

the candidate countries from the Western Balkans are required not only to adopt the EU regulations and conditions set out in the negotiating chapters but also to have the most difficult acquis effectively and sustainably implemented before accession (Zhelyazkova et al., 2019, p. 24).

Serbia emphasized Chaps. 23 and 24, which require significant changes regarding the judicial and anticorruption framework. Amidst adopting the new Constitution of 2006, the Serbian government passed a “National Strategy for the Judicial Reform” (Ministry of Justice of the Republic of Serbia, 2006). The strategy emphasized the need for a radical change to meet the EU conditionality benchmarks, citing judicial incompetence and the low trust of citizens in the judicial system. Nevertheless, the implemented reform in no sense coincided with either the international principles of judicial independence or the best practices of the European region.

On 22 December 2008, the Serbian National Assembly introduced legislation to proceed with the planned reform of the judicial sector, among which was new legislation on judges (Law on Judges of the Republic of Serbia, 2008). The law addressed the reappointment of judges only at the end, in transitory and final provisions.

The composition of the High Judicial Council (HJC) tasked with the vetting was also regulated only by the transitory provisions of the Law on HJC. The call for general reappointment was announced in July 2009 (Official Gazette no. 52/09 of 15.07.2009). Within its decision-making process, the HJC violated the procedural principle of contradiction (audiatur et altera pars) as no vetted judge was called to a hearing while their case was being decided. Judges could not dispute the information used as evidence for their dismissal (Vodinelic et al., 2013, p. 102).

The final decision on the appointed judges was issued on 16 December of the same year (Official Gazette of RS, no. 116/08). The non-reappointed judges were made aware of their dismissal only once they realized their names needed to be added to the list of appointed judges. Soon after, the HJC issued a decision with the list of non-appointed judges (High Judicial Council of the Republic of Serbia, 2009). This decision did not include individual reasoning or any evaluation score indicating the reason for non-reappointment (Serbian Association of Judges, 25 March 2010). Officially, the judges were given a collective reasoning for their dismissal in this decision.

When the call was issued in July, 5030 applications were filed, half of which were from sitting judges (High Judicial Council, 2009). Only 1531 judges were reappointed, meaning that one-third of the previous judges were not reappointed, and the total number of judges was reduced by one-quarter (Serbian Association of Judges, 2010). Almost all of the 837 non-reappointed judges used the legal remedy provided by the Constitution—an appeal to the Constitutional Court (CC). 

The judicial status of all the non-appointed judges officially expired on 31 December 2009, which led to a surge in constitutional appeals to the CC. Although these cases were allegedly given priority, in the following year, the Constitutional Court issued only two judgments upon judges’ appeals—in the Saveljic case in May 2010 and the Tasic case in December 2010 (case Saveljic, VIIIУ-102/2010 of 28 May 2010 and case Tasic, VIIIУ-189/2010 of 21 December 2010).

The role of the Constitutional Court in the Serbian vetting saga is specific and requires particular attention. In its case law regarding the reappointment of judges, the Court took a cautious approach and, rather than actively engaging in the process, opted for subtle nudging of the government to correct the mistakes already made. The judges’ appeals were upheld when the context revealed that the violations were hardly disputable. From the comparative perspective, the deference of constitutional courts when it comes to the vetting of judges is not unusual (see, e.g., Constitutional Court of Bosnia and Herzegovina AP-1091/07 of 14 April 2010). Nevertheless, an analysis of the review of the constitutionality of the judicial vetting procedures reveals that the difference between the transitional justice model of vetting and the rule of law deficient democracy model matters. When the vetting of judges is used as a transitional tool to support a shift in regime or address past abuses, adjusting the rule of law guarantees may be justified by the politics of the democratic transition. However, when the proclaimed aim of the reform is the rule of law compliance, the “extraordinary political circumstances” argument as a ground for deference becomes much more challenging to defend. The reluctance of CCs to intervene in the judicial vetting process indicates that the process in question is of a rather delicate, political nature where practical difficulties may weigh down the constitutional principles of the rule of law and judicial independence. A similar pattern of deference could have been noted during the 2003 vetting in Bosnia and Herzegovina. The Bosnian judges did not have an adequate remedy against the decisions on their dismissal, as the grounds for appeal were too narrow (Mayer-Rieckh, 2007, p. 200). The Bosnian Constitutional Court was not helpful in that regard, as it dismissed most of the judges’ appeals on the grounds of non-exhaustion of remedies or due to appeals being ill-founded (Iseric, 2019, p. 301). As previously stated, a right to an effective remedy against a dismissal represents one of the core tenants of judicial independence.

Nevertheless, considering the specificity of the Bosnian post-conflict exigencies, the common opinion has been that the above-analyzed shortcomings of the Bosnian reappointment procedure did not undermine its overall positive outcomes (Mayer-Rieckh, 2007). As the Venice Commission emphasized, “it would have been unrealistic to have insisted on immediate full compliance with all international standards governing a stable and full-fledged democracy in a post-conflict situation such as in BiH following the adoption of the Dayton Agreement” (Venice Commission, CDL-AD (2005) 004, 2005, para. 97).

In 2009, before the judgments in the Saveljic and Tasic cases, which had already been passed when the dismissal of judges was carried out, the CC had a chance to review the constitutionality of the reappointment procedure itself (The Constitutional Court of the Republic of Serbia, 2010a). In the IUZ-43/09 case, the applicants claimed that the reappointment of 2008 would violate the principle of retroactivity and interfere with the already acquired tenure of sitting judges. It would also breach the principle of the separation of powers and the right to an impartial and independent tribunal (ibid). The CC dismissed initiatives for constitutional review as unfounded and, thus, cleared the way for the reappointment of the judges. This CC’s solution backfired. Once the judges were dismissed, the CC was swamped with judges’ appeals.

In the Saveljic case, which concerned a judge who was not reappointed and who received only a decision with a general justification for the dismissal, the CC upheld the dismissed judge Saveljic’s appeal and found that the rationale for the discharge of a judge must be individual rather than collective, as well as based on the concrete facts and proven evidence, as that is the only way to secure respect for the principle of fairness as guaranteed by Article 31 (1) of the Constitution. The HJC violated the judge’s right to access the court as one of the vital procedural guarantees under the right to a fair trial.

However, due to the missing reasoning and individual decision on the dismissal, the CC was of the stance that the conditions for it to decide on the merits of judge Saveljic’s case were not met. The fact that the CC missed the chance to decide on merits and instead returned the case for reconsideration to the HJC, a body that the CC itself found to violate judge Saveljic’s procedural guarantees, shows the ineffectiveness of this remedy, the only one which judges had at their disposal.

In the aftermath of the judgment in the Saveljic case, on the same day, the HJC issued 564 individual decisions on the dismissal of judges and delivered them to the Constitutional Court so that the review of appeals presented by the non-appointed judges may resume (The Constitutional Court of the Republic of Serbia, 2010b, para. 10). But instead of repeating the assessment of evidence used for the dismissal of each judge and issuing individual reasonings in each case, the HJC reissued 564 individual decisions lacking the proper evaluation of the judges’ performance in light of the criteria set. Among these was that of Judge Milena Tasic, whose appeal was accepted by the CC. In the judgment, upon Judge Tasic’s appeal, the CC stated that the HJC had violated the principle of adversity as one of the prerequisites of the right to a fair trial, as Judge Tasic had been given no recourse to respond or have access to the files which were used as evidence for her dismissal.

As criticism from various international and national bodies sparked, the Serbian government decided to introduce amendments to the law on judges of 2008, create a review process of the transitional HJC’s previous work, and reassess all the cases of dismissed judges. However, the new solution introduced as a legal amendment was peculiar and disputable from the perspective of the rule of law and comparative constitutional practice. According to the amendments to the Law on Judges, a new composition of the HJC (the permanent one) was to be established, which would assess the work of the transitory design of the HJC. All the appeals of dismissed judges submitted to the Constitutional Court would be “converted” into requests to the HJC (The Law Amending the Law on Judges of the Republic of Serbia, 2010). Additionally, the amendment prescribed that the new composition of the HJC would adopt its new criteria for assessing judges who applied for reappointment.

6 Vetting of the Vetters

Due to the failure of the first vetting procedure, the international community closely monitored the review process. The review process was formally announced as an opportunity to remedy the previous mistakes and finally bring transparency to the vetting of judges. In reality, it was, as Ivosevic (2010) well coined, “a recycled judicial reform”. Nevertheless, according to the independent report of the EU delegation members who were present at the sessions of the newly composed HJC, the rules that the new composition of the HJC adopted “were frequently breached and interpreted in a way that is contrary to the purpose of the procedure” (Vodinelic, Bojovic & Reljanovic, 2013, 125). Furthermore, “the general impression is that this was done to justify the 2009 appointment before the general public both in the country and abroad” (Vodinelic, Bojovic & Reljanovic, 2013, p. 125).

In the case IUz-1634/2010, the CC emphasized that, in all the cases of dismissed judges, which were already in the appeal stage, the criteria that the new composition of the HJC would adopt could not be applied, as that would violate the principle of legal certainty (The Constitutional Court of the Republic of Serbia, 2011, section 2). Even when assessing the new judges who would apply for positions, the “new criteria” that the unique composition of the HJC was to adopt could only clarify the criteria that the first composition had used, as otherwise, it would amount to discriminatory differentiation between the judges assessed by the transitory design and those considered by the permanent one.

Finally, the problem that emerged in practice was that this new, permanent composition of the HJC needed to be revised, as some sitting council members had been members of the previous one. Some were also declared unfit for office by the Agency for the Fight Against Corruption. The decisions of the new composition were challenged before the Constitutional Court in the case of Jovanovic and Others (The Constitutional Court of the Republic of Serbia, 2012). The CC applied the judicial independence doctrine and concluded that the composition of the new HJC was in breach of the judge’s impartiality principle. Further, the CC also found that the new HJC criteria were discordant with the principle of legal certainty (The Constitutional Court of the Republic of Serbia, 2012). Finally, the CC quashed all the decisions of the HJC on the appeals of the 126 judges who were petitioners of the Jovanovic and Others case and ordered the HJC to reinstate them to their previous positions.

Besides the 126 judges that the CC indirectly reinstated to their positions, the new HJC, on its initiative, also quashed the previous HJC’s decisions on dismissal and reinstated judges dismissed in 2009. By 2014, around 590 judges (out of 837 dismissed) were reinstated. Around 700 judges decided to sue the state for material damages. Among the judges who were not reinstated, not necessarily all were deemed unfit for office—some had decided to change professions, and some had reached retirement age or passed away.

The Serbian vetting saga is a process that failed to comply with the principle of the rule of law on all levels. Firstly, the rationale behind the judicial reform needed to be clearer and more opaque, and its justifications must be better communicated to the public. The discrepancy between the official reasons given by the government—enhancement of the rule of law—and how the vetting was carried out shows that the 2009 reappointment was unavailing at best. Secondly, the grounds of the vetting procedure did not adequately reflect the proclaimed aim in how they were both prescribed and applied. Thirdly, the procedural flaws of the vetting amounted to a clear rule of law violation, which was also recognized in the analyzed jurisprudence of the Serbian Constitutional Court.

7 Conclusion

This chapter illustrates the trajectory of judicial vetting to strengthen institutional integrity within the OSCE region. Focusing specifically on the judiciary as a part of the public sector and a branch of government that undergoes vetting, it highlights the need for a deeper theoretical engagement with this tool from the perspective of judicial independence.

Putting forward the rule of law deficiency as one of the critical features of OSCE transitional regimes, it aimed to show what is at stake when vetting as a radical measure of institutional reform is pursued. Finally, the Serbian case study shows the inherent dangers of the vetting procedure which the object is only to reach the internationally prescribed levels of rule of law compliance.

As noted by Seibert-Fohr, “The OSCE region is unique and particularly suited to the analysis of judicial independence in transition because it includes countries in different stages of transition” (2012, p. 2). Analyzing how different stages of transition also impact the nature and the success of judicial vetting as a tool for strengthening judicial integrity may be an avenue for further research. As this chapter argues, the vetting experience of Serbia in the first decade of transition had significant shortcomings from a rule of law perspective. Some significant improvements in vetting procedures across the region have been noted in the last decade. For example, the ongoing Albanian judicial reform, which includes the vetting of judges, has been acknowledged as a successful example despite some identified shortfalls (Hoxhaj, 2021). Some other OSCE states, such as Moldova are actively pursuing the same path  (ODIHR, 2023).

For the vetting of judges to be recognized as an efficient tool for strengthening judicial integrity, international standards and local contexts need to be considered. Working towards a novel, evidence-informed framework may help in such an endeavor.