Dr Zoran Ivoševic, Judge of the Supreme Court of Serbia

INDEPENDENT AND FAIR JUDICIARY IN DEMOCRATIC SERBIA

1. THE JUDICIARY AND OTHER BRANCHES OF POWER

During the past half-century, the Serbian judiciary spent 45 years in a unified system of power. Although it represented a separate governmental function in that period, it was still not a separate branch of power and independent from the legislative and executive branches. Instead, it was incorporated, together with them, into a "unified system of social self-protection". In that system, all three branches of power were kept on a reign by the party, controlling them through the obligations and responsibilities of power holders arising from their party membership. Since the party was an "avant-garde of the working class", the bridled courts were displaying almost a religious devotion to its "historical aims". Since these aims were set in the Constitution and the laws providing a basis for the administration of justice, their devotion was an integral part of the formal independence of courts in their class affiliation.

When the omnipotent party disappeared in the explosion of the Berlin Wall, all three branches of powers - like the horses given a free rein - started a perpetual race according to the rules of separation of powers, set by the Serbian Constitution of 1990 and the Yugoslav Constitution of 1992. According to these rules, the National Assembly is "running" for the legislative power, the Government for the executive power and the judiciary, represented by the Supreme Court, for the judiciary power. Like in any Balkan race, the rules are violated, especially in uproar at the start of the game. Until 5 October, 2000, the executive power proved to be the most successful, leaving the National Assembly and Government far behind and beginning to defy them with unreasonable laws, recalcitrant decrees, incompetent ministers, disciplined presiding judges, raging police authorities and gloomy and bristling policemen. Therefore, the "racers" were not moving "parallel to each other", as stipulated by the rules, but "one after the other". Thus, the executive power was followed by the legislative one, and the legislative power by the judicial one. The legislative and judicial branches of power bear responsibility for such an order by themselves. The judicial power - because it renounced its constitutional right and turned into a service for saying "yes" to government proposals, right away and in dead silence. The judicial power - because it is still drowsy after fifty years of a unified system of power and its inferiority complex vis-?-vis the executive and legislative powers. Moreover, it has not yet freed itself from a slavish mentality and political narrow-mindedness, and has become capable of resisting various pressures and influences, especially political ones. In such a gloomy environment, the legislative branch has been disregarded and the judicial one disdained. Both branches of power have been politicized. Therefore, it is no wonder that the National Assembly has remained without the authority of legislative power and the judiciary without the authority of judicial power. The independence of the judiciary proclaimed by the Constitution has become a mere illusion. In the last years of the 20th century, the judiciary drifted away from its illusion: it was contaminated with daily politics. Judges were elected according to their political fitness and not their expertise and reputation. The courts were overwhelmed with resignation, fear and uncertainty. Political processes, mock trials, unlawful arrests became more and more frequent. The number of unsolved murders, kidnappings and other serious criminal offences was also on the increase. "Efficient" debt-collecting agencies began to substitute inefficient courts. They are increasingly talking about corruption in the judiciary. Trials were turned into political fora and pre-election rallies. The reputation of the judicial power was ruined.

Independent judiciary does not exist here, although it was proclaimed by the Constitution that "courts are independent in their work". Therefore, the priority task of democratic Serbia should be to make the judiciary a really independent branch of power.

In principle, the constitution separates the legislative, executive and judicial branches of power, entrusting each of them to special organ, so that these organs - through the autonomous exercise of their powers - can restrain other branches, not allowing any of them to become absolute, in an attempt to establish a balance between separate branches of power in a unified system. The principle of separation of powers is based on awareness that "nobody can be restrained by his own will but only by somebody else's" (S. Jovanovic). However, it is "easier to lay down this principle than to apply it" (S. Jovanovic). This is why independent judiciary poses a problem. And this problem will not be solved until the principle of separation of powers is strengthened, until the guarantees of independent judiciary become more reliable, until courts stop being class ones and become fair, and until they become better organized and more efficient.

2. INDEPENDENT JUDICIARY

According to Article 91, section 1, of the Serbian Constitution, courts are independent in their work and administer justice in accordance with the Constitution, laws and other regulations.

Numerous international documents have been devoted to the independence of the judiciary, the most important being the Universal Declaration of the Independence of Judiciary adopted in Montreal in 1983 (in further text: the Universal Declaration) and the Basic Principles on the Independence of Judiciary adopted in Milan in 1985 (in further text: Basic Principles).

Since the judicial power consists not only of institutions (courts), but also of people that exercise it (judges), the independence of the judiciary has two dimensions: institutional and personal. Therefore, one can speak about the independence of the judiciary as an institution and the independence of judges as a personality.

1) Independence of the judiciary as an institution is reflected in its autonomy vis-?-vis the bodies of legislative and executive powers (Item 2.04 of the Universal Declaration), as well as in relation to other government bodies and organizations, bodies of territorial and local self-government, chambers and trade unions, political parties, associations, centres of power, powerful individuals, public opinion and other sources of influence.

Courts are also independent in relation to other courts having the same or higher rank, or being of the same or different kind (Item 2.03 of the Universal Declaration). Lower courts respect the decisions of superior ones, but must have the freedom of decision-making, regardless of the obligation to act upon the objections made by a superior court.

Courts must defend their independence on every occasion. All others are bound to observe their independence. This refers especially to the executive power, which is prone, by tradition, to encroach on the domain of the judicial power. It is disturbing to hear the omnipotent statements of some holders of the executive power that the new authority has not yet established "its judiciary", that Miloševic will not be extradited to the Hague, that he will be detained at the end of this March and the like. However, there are also encouraging statements such as, for example, that any member of the Government who exerts pressure on the court will be relieved from office.

2) Independence of judges as a personality is reflected in their freedom to take impartial decisions, on the basis of their own evaluation of facts and their own understanding of law, without any limitation, influence, stimulus, pressure, threat, interference or intervention, direct or indirect, coming from anyone and for any reasons (Item 1.03 of the Universal Declaration and Item 2 of the Basic Principles).

Various influences are constantly trying to get through to the court, but whether they will succeed in this venture depends primarily on the personality of judge, that "living righteous one", "subjective objectivity", "the engineer of law" or "the artist of law" (as they used to call him), who should not have other authority except law and justice. Judges cannot be controlled by rulers or leaders, by armed forces or police, by a political party or gangs, by relatives or friends, by godparents or colleagues, or by lovers. Nobody, except his conscience.

While many affairs of the state require only a routine, for a successful performance of the judicial function, one must have almost the divine power of decision-making and reasoning. The judge decides on life and death, on freedom and non-freedom, on ownership and property, on damage and its compensation, on truth and lie, on fortune and misfortune, on spirit and an evil spirit, on lawfulness and unlawfulness, on constitutionality and unconstitutionality, on law and non-law. In other words, he decides on the most important and subtlest values, goods and interests of people and their communities. Therefore, he must become worthy of his sublime profession. This will also help him to win confidence of people.

And one can win confidence by strengthening a reputation, honest life, impartiality, integrity, dignity and courage. The fearful and servile one is not noticed either by citizens or by the public, not to mention those who made him to be like that. They remember him only when they need him. After "use" they will send him back on the margins of social life, after tapping him on the shoulder here and then. The judge who has integrity and dignity is not popular, but he is respected. They never tap him on the shoulder but respect him and bypass him when looking for someone who should perform the dirty job of daily politics.

In order to win the confidence of people, judges must follow the code of professional responsibility. Such codes exist in many countries. We have the Code of Judicial Ethics of the Serbian Society of Judges on 9 May 1998. It has ten canons with the following titles: be independent, be just, be professional, be free, be good, be decent, be incorruptible, be dedicated, be apolitical, be devoted to the code. The judiciary must be faced with these canons and atone for its past sins before passing through the Dantean purgatory and moral, personnel, professional and any other catharsis. Judges must stop being the lackeys of daily politics and become the apostles of a lawful state.

3. THE GUARANTEES OF INDEPENDENT JUDICIARY

The independence of the judiciary, as an institution, and the independence of judge, as a personality, cannot only be based on the constitutional provision that courts are independent in their work. Therefore, their independence must be protected by a system of guarantees. Such a system is established so as provide incentive to the judiciary to be independent, as well as to strengthen popular awareness that it really is independent. This system shows not only the lawfulness of a state but also its cultural level (Dj. Tasic). As cultural property, these guarantees have been raised to the level of civilizational standards, as evidenced by the Universal Declaration and Basic Principles.

According to the source of norm-setting, the guarantees of independent judiciary can be divided into three groups: guarantees stipulated by the constitution, guarantees stipulated by law and guarantees falling within the generally accepted rules of international law.

The most powerful guarantees are those stipulated by the constitution. "To state in the constitution that courts are independent and then to fail to mention, as a constitutional principle, the instrument that personifies independence in the most appropriate way, means to leave courts to the mercy of precarious legislative bodies... The majority in parliament is not always led by the state interests, but by those of its own party" (Ž. Peric). The legal guarantees of independent judiciary are also significant, because they are binding as long as they last, like constitutional guarantees. The fact that the law can be altered more easily than the constitution is a deficiency, but it may also be a virtue, because it is easier provide for new guarantees by law than by the constitution.

It should be noted (because a little is known about this fact) that the guarantees of judicial independence falling within the third group are also binding. According to Article 16, section 2, of the FRY Constitution, "the generally accepted rules of international law form an integral part of the internal legal system". Hence, if a guarantee represents a generally accepted rule of international law, it will act in the internal legal system as stipulated by law.

Let us get acquainted with these guarantees, at least with the most important ones.

1) Appointment of judges. In the judge appointing procedure, those who will exercise the judicial power are elected. Since the personality of judge has a decisive influence on the work quality of a court, the appointment of judges provides an extremely important guarantee of independent judiciary. Under the Constitution, judges and presiding judges are elected by the National Assembly (Article 73, Item 10). Therefore, this election cannot be entrusted to another body by law. But, the nomination of judges and presiding judges can. According to the Law on Courts, judges and presiding judges are nominated by the Committee for Judiciary of the National Assembly, but this does not conform to the constitutional principle of separation of powers. It would be better to entrust nomination to a specified extra-parliamentary body such as, for example, the high judicial panel, composed of judges (appointed by the Supreme Court) and prominent legal experts (appointed by the National Assembly), whereby judges should constitute a majority. This panel would preclude a decisive influence of the Government on the nomination of candidates for the judicial office, which would be in conformity with the Universal Declaration (Item 1.13). In this way, the profession of a judge would become more accessible to a wider circle of skillful and honest individuals (Items 2.11 and 2.13 of the Universal Declaration). By amending the Constitution, the high judicial panel could become - the nominating body.

2. Permanence of the office of a judge. According to Article 101, section 1, of the Constitution, the office of a judge is permanent. The judge is an "elected person on a permanent assignment" (Article 70, section 1, of the Law on Labour Relations in Government Bodies). Since the judge is elected for an indefinite term, his function is not re-elective. Thus, he does not run the risk, at least formally, that his office would be terminated for extra-legal reasons (ideological, party, political and the like). The permanence of the office of a judge is the "strongest constitutional guarantee of judicial independence" (Ž. Peric). It enables the judge to devote himself to the administration of justice as a profession. But, as a professional, he cannot be an employee.

The exercise of power is not contracted (like employment), but entrusted. Therefore, the one who has been elected for and entrusted with the judicial power is an elected person and not an employee. He holds office and also has certain rights arising from labour (pay, working hours, holidays, leave, social insurance and the like). Should the judge establish a labour relation, he would do it with the state (Article 2 of the Law on the Fundamentals of Labour Relations). Thus, he would be excluded whenever the state is a party to a dispute (Article 71, section 2, of the Law on Civil Procedure). In that case, there would be nobody to put the state on trial, which would be contrary to the principle of the rule of law, laid down in Article 1 of the Constitution.

The permanence of the office of a judge does not rule out the possibility of a judge being elected to a higher court or the supreme one. However, this also requires his consent. Consequently, without his consent, there is no promotion in rank either.

The permanence of the judge's function does not mean, however, that it is performed for life. The judge's office may be terminated on his request or if he meets the requirements for an old-age pension. His office may also be terminated against his will in cases as set forth in Article 101, section 3, of the Constitution (unconditional sentence of at least six months for a criminal offence, or any sentence for punishable dishonest action, unprofessional and unconscientious performance of the judicial function, permanent loss of working ability). Item 2.39 of the Universal Declaration stipulates that a judge must not suffer the consequences if his court is dissolved, although he may be sent to another one.

The permanence of the judge's function was not respected. In the well-known "judge-hunt season" (November 1999 - June 2000), thirty or so judges could not be find a shelter behind by this constitutional guarantee. It was easily and skillfully evaded.

2) Residential permanence. The permanence of the judicial function should guarantee not only the status of judges but also their residence (Dubarle). The judge is not only the holder of judicial power, but also a citizen with personal, family, housing, professional, social and intellectual status. Since this status is acquired in the place that is the centre of the judge's vital relations, any forced change of his habitual residence would bring unrest in his life, which may also exert influence on the quality of the judicial function. Therefore, the Constitution stipulates that the judge cannot be transferred to another duty against his will (Article 101, section 5), which is in compliance with Item 2.18 of the Universal Declaration.

Having regard for this constitutional guarantee, the Law on Courts stipulates that a judge at first and second instance may, with his consent and the consent of both courts, be assigned permanently to another court having the same jurisdiction. With his consent, he may also be sent temporarily to another court under specified conditions (Articles 53 and 54). Unfortunately, in both constitutions this guarantee gave way to political reasons. In the operetta-style trial to Bill Clinton and other "merciful angels" in Belgrade, a judge played the leading role.

4. Immunity of judges. According to Article 96, section 2, of the Constitution, nobody who participates in a trial can be called to account for the opinion given in the process of judicial decision-making. Also, in legal proceedings instituted against someone for a criminal offence made in the performance of the judicial function, such a person cannot be detained without the approval of the National Assembly. In this constitutional provision, the principle of separation of powers was not taken into account. In the opposite, it would stipulate that the deputies and members of the Government are granted immunity from criminal prosecution and detention (Article 77, sections 3 and 4, and Article 91, section 4), while judges - only from detention. Also, it would not specify that the National Assembly should decide on the immunity of deputies, the Government on the immunity of ministers and - instead of the Supreme Court - the National Assembly would decide on the immunity of judges.

Since the immunity of the holders of judicial power is weaker than the immunity of the holders of legislative and executive powers, and since the judge is subordinated to the holder of legislative power, the constitutional provisions on immunity depart from the constitutional principle of separation of powers. In this respect, the Serbian Constitution is not in conformity with itself, or the Universal Declaration which, in Item 1.15, stipulates that only the court may abolish the judge's right to immunity. This must be taken into account in the forthcoming constitutional reforms.

5. Incompatible activities of judges. According to Article 100 of the Constitution, a judge cannot perform a service or a job that is incompatible with the judicial function. In Article 5, section 2, of the Law on Courts, it is specified that the judge cannot 1) become a popular deputy, deputy or councillor; 2) perform political and administrative functions, 3) perform an additional service, job or duty, which may affect his independence or impair his reputation, or the reputation of the court. Consequently, it is incompatible with the character of the judicial function that a judge engages in anything that might affect his independence and the reputation of the judicial power.

A judge cannot be a federal deputy, popular deputy, deputy to the Assembly of the Autonomous Province, city or municipal councillor.

A judge cannot perform political and administrative (not "legal" as erroneously stated in the law) functions. Political functions discredit the impartiality and neutrality of the judge, thus impairing confidence in the court. The Constitution guarantees the freedom of political organization and activity to all citizens, including judges (Article 44). However, it does not permit judges to perform the activities or services being incompatible with the office of a judge. Thus, they cannot be elected to the organs and fora of political organizations, nor can they carry out political activities. In Item 2.8, the Universal Declaration stipulates that judges must not be active members or have any duty in political parties. This does not mean, however, that judges cannot have their political convictions. They can, but their convictions must not exert influence on the independence and dignity of the court. Administrative functions are performed in the executive, administrative and other bodies and organizations of the government, territorial autonomy and local self-government, as well as in the institutions having public authority.

A judge cannot perform any service, job or duty that might exert influence on his independence. He cannot practice law or provide legal assistance in some other way; he must also refrain from any business activities, except those concerning his own property (Items 2.29 and 2.30 of the Universal Declaration). A judge must also avoid other activities that might impair his reputation or the reputation of the court. Therefore, he must refrain from any dishonest action or action that makes such an impression or arouses suspicion and doubts, impairs self-confidence or, in some other way, shakes confidence in the court and its impartiality.

Many judges did not care much about these prohibitions, especially if they held the office of a presiding judge.

Naturally, a judge may engage in scientific, intellectual, cultural, artistic, humanitarian and similar activities, which will enhance his reputation and the reputation of the court.

6. The assignment of judges and cases. The assignment of judges and cases cannot be carried out by anyone outside the court (Item 2.43 of the Universal Declaration). According to Article 28, Item 1, and Article 30, section 1, of the Law on Courts, this issue comes within the competence of the judicial administration, which is headed by the presiding judge.

The assignment of judges is planned at the end of the current for the coming year or, in other words, in advance. The schedule according to which cases are to be received and assigned to judges is also made in advance. In this way, a case is assigned to a "natural" or "casual" judge, and not to the judge assigned by the presiding judge at his discretion.

The assignment of judges and cases according to schedule prevents the "fixing of judges" or, in other words, that a particular judge is assigned to a particular case and vice versa. At the same time, it enables that each case is assigned to a "casual judge" and that each judge is assigned a "casual case". Therefore, the provisions relating to this guarantee should be raised to a principled level, unless already specified by the Constitution. They have now been degraded by the section of the law relating to judicial administration, so that they are almost like the rules of procedure in character. This is why "special panels" for specified cases are set up (just like in disputes in connection with elections in 1996) or, in other words, specified cases are assigned to another judge and not to one to whom they should be assigned according to schedule. This serious disease of our judiciary can be treated by the removal of the presiding judge from office, but the import of this medicine has just begun.

7. Lay judges. According to Article 99, section 1, of the Constitution, apart from judges, lay judges also participate in a trial in the manner specified by law. Those are citizens of various professions who are elected by the National Assembly for the term of four years and are illegible for re-election. They do not participate in a trial as professionals, but as members of the panel, having the rights and duties of a judge. Their participation in a trial ensures a specific, popular internal control of the judicial power, thus contributing to the idea of independent judiciary.

However, the institution of lay judge has not been in conformity with this idea for a long time. It survives as the necessary yet superfluous formality, which is satisfied by idle pensioners having no will or talent to really participate in a trial. The Law on Courts cannot be freed from this institution due to its constitutional origin.

Nevertheless, it can be reduced to a reasonable measure. in accordance with Article 99, section 2, of the Serbian Constitution, the law may prescribe that only professional judges administer justice in specified matters. The number of those courts and matters may be considerably larger even under the present Constitution.

8. Responsibility and removal of judges. According to Article 53, section 2, of the Constitution, everybody must perform the public function conscientiously and in a responsible manner. This also applies to the judge, so that he may also be called to account. The responsibility of judge is usually considered to be disciplinary one (even in international documents), although, in real fact, it refers to responsibility for the performance of the judicial function or, to be more precise, for unconscientious and irresponsible performance of this function. In that sense, the responsibility of judge is sanctioned by his removal from office. The grounds for removal are laid down by the Constitution and established by the Supreme Court.

According to Article 101, section 3, of the Constitution, a judge may be relieved from office: 1) if he is sentenced unconditionally to at least six months for a criminal offence or any other penal offence that makes him unfit for the performance of the judicial function; 2) if he performs the judicial function unconscientiously and unprofessionally, and (3) if he loses his working ability for ever. (The last reason does not fall within the notion of responsibility in this sense). However, in Article 46, Item 4, of the Law on Courts there is one more reason: if he performs the functions, duties, service or activities that are incompatible with the office of a judge. This addition is unconstitutional because it brings the judge into a less unfavourable position than that guaranteed by the Constitution. Moreover, it is unnecessary, because the incompatible activities of a judge may be qualified as unconscientious performance of the judicial function.

The procedure for removal of a judge is initiated by the President of the Supreme Court. An initiative may be given by the presiding judge, session of all judges in a court, presiding judge of an immediately superior court, minister of justice and the Committee for Judiciary of the National Assembly. The Supreme Court, at its General Session, decides as to whether there are grounds for the removal of a judge from office. During such proceedings, the judge must be given a chance to express his view on the grounds for his removal. A judge cannot be removed from office unless the General Session of the Supreme Court determines that the grounds for his removal. The National Assembly brings the decision on his removal and informs the judge, Supreme Court and Ministry of Justice about its decision.

The principle of separation of powers is evident in the removal procedure. The highest court has a decisive influence on whether a judge will be relieved from office or not. However, some improvements can still be made. If the General Session of the Supreme Court determines that there are grounds for the removal of a judge, its decision will be final at first instance, which irritates Article 22, section 2, of the Constitution providing for judicial decision-making at two instances. It would be more appropriate that a smaller body, e.g. the grand personal panel (consisting of a specified number of Supreme Court judges), makes such decisions so that a dissatisfied judge may refer to the General Session of the Supreme Court (by lodging an objection or using some other legal redress). This would also be in conformity with Item 3.37 of the Universal Declaration, stipulating that "legal protection must be guaranteed" in the procedure of establishing the responsibility of judge.

Unfortunately, this guarantee of judicial independence was not respected either. Those thirty or so members of the Serbian Society of Judges were relieved from office at the General Session of the Supreme Court of Serbia. The new National Assembly revoked this decision, thus enabling these judges, removed unconstitutionally from office, to return to their profession.

9. Association of judges. "In accordance with the Universal Declaration of Human Rights, members of the judiciary are, like other citizens, entitled the freedom of expression, belief, association and assembly, provided always that in exercising such rights, judges shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of judiciary. Judges may establish associations of judges or other organizations and join them in order to safeguard their interests, promote professional improvement and protect the independence of the judiciary". This is set forth in Items 8 and 9 of the Basic Principles. Since they contain the generally accepted rules of international law, these provisions of the general principles form an integral part of our internal legal system, in accordance with Article 16, section 2, of the FRY Constitution. But, in any case, judges are, like other citizens, guaranteed the freedom of association under Article 44 of the Constitution.

Judges have their association in Serbia. This is the Serbian Society of Judges, set up on 26 April, 1997, as a non-political, professional association of judges, aimed at affirming law as a profession and science, pleading for independent judiciary, caring for the reputation and material status of judges, as well as for the improvement of regulations relating to the organization and work of courts. However, this association was frustrated by the removal of those thirty or so judges, including almost all members of the Governing Body. Moreover, its work was made impossible by the rejection of its application to be registered as an association of citizens in which, unfortunately, the highest court also participated. By revoking the decision on their removal from office, the National Assembly enabled those judges not only to return to their profession, but also to activate their membership rights in the Serbian Society of Judges. It will soon continue with its activities.

10. Judicial budget. An autonomous judicial budget is a financial precondition for the independence of judiciary. However, the financing of the judiciary has not been adjusted to the principle of separation of powers. The funds for the work of courts are still provided out of the unified Republican budget (Article 68, section 1, and Article 65 of the Law on Courts). They are "uncoloured", so that the competent bodies "determine and remit the funds for the work of courts according to the need for a timely and proper performance of its function". Since it is the question of the bodies of executive power, there is no doubt that the Government plays a decisive role in the financing of the judiciary, all the more so, because it sets the requirements, amount and method of utilization of court taxes.

Such a situation must be changed in accordance with the principle of separation of powers. In so doing, it will be necessary to observe the constitutional unity of the government budget, but this should not be an obstacle to an appropriate influence of courts on their financing. This is also stipulated by Item 2.42 of the Universal Declaration.

The influence of the judiciary might be consolidated and articulated by the Supreme Court as the highest judicial body, but this could also be entrusted to some non-parliamentary, that is, non-governmental body, such as the High Judicial Panel. "As long as the judicial budget is only one item in the general government budget, which is prepared without any influence of the judiciary, as long as the judge's pay is not guaranteed and known in advance, as long as it depends on the will of the Government and minister of justice, and as long as it may arbitrarily be reduced or increased, judicial independence is an illusion... Under such circumstances, the permanence of the judicial function means nothing, because judges leave courts by themselves" (M. Grubac).

11. Material status of judges. As an "elected person on a prmanent assignment", the judge receives pay for the exercise of power. In the system of separation of powers, the holders of various powers must be equal in every respect, including their pay. In Serbia, judges are paid much less than the holders of legislative and executive powers at the same hierarchical level. The lagging of their salaries is not reasonable either, because judges, in contrast to the holders of legislative and executive powers, cannot make extra money (Article 100 of the Constitution). "A good pay for the judge is an important issue in democracies. In this profession there are no titles or medals, nor does it anticipate a higher social status as compensation for the inadequacy of pays. It is especially important, because just in a democracy people from all social strata should gain access to the judicial profession. What is the most important, however, is that the independence of the judiciary is ensured only in that way. Nothing else can expose man to temptation than financial problems. And today there are various channels which, on their surface, do not seem like corruptive practices, but this is what they are in their substance. Material security enables man to broaden his views and dedicate himself to his profession with much more enthusiasm" (Dj. Tasic).

In Item 2.21, the Universal Declaration stipulates that pays must be adequate and adjusted to the status, reputation and responsibility of the judge, that they must be adjusted to a rise in the cost of living caused by inflation and that they must not be reduced during their term of office.

The material status of judges is at a nutritional minimum. Therefore, there is increasing talk about corruption in the judiciary, especially in the sectors of investigation, execution and extraordinary mitigation of penalty.

The pays of judges are not only low, but are also in chaos as far as regulations are concerned. The provisions on wages and salaries were contained in the Law on Labour Relations in Government Bodies, but they ceased to be valid after coming into force of the Law on Wages and Salaries in Government Bodies. This law had to be in force only in 1996, but its validity was extended through 1997. With the expiry of 1997, it ceased to be valid, so that the pays of judges fell into a "black hole" where they are still wandering.

3. EQUITABLE TRIAL

According to the ideological dogma prevailing in the period of a unified system of power, law was the will of the ruling class. It originated from disguising the slogan (Lenin's) that "Law is the measure of political power" into an absolute "scientific truth".

In democratic Serbia, this slogan must be substituted for Protagoras' maxim that "Man is the measure of all things". All the more so, because the principle of a unified system of power in the Constitution has already been substituted for the principle of separation of powers and because in democracy it is necessary to have an equitable court and not a class one. And an equitable court deals equally with equal matters.

To the extent the dogma about law as the will of the ruling class was prevalent, the idea about equitable law - which was silently and persistently supported by Dr Božidar S. Markovic, a "prohibited" professor at Belgrade's Law School - was curtailed. In his view, positive law is not law on the whole, because "parallel to it and beyond it there is another law, which was given different names in different periods: justice, morality, natural law, law, living law and, finally, social law, but was always regarded as "something that is constant and beyond the law or will of positive law" and contains the "principles regulating the laws themselves".

It was observed a long time ago that justice is the cardinal virtue of rendering every man his due in equal treatment of equal matters (commutative justice), in unequal treatment of equal matters in proportion to their inequality (distributive justice) and in treatment of another man like oneself (ethical justice). Like an absolute truth, this extra-temporal and extra-legal virtue is unattainable, but every civilized society aspires to it. "This unattainable absolute truth, including the understanding of justice, is substituted in man for the natural instinct of self-preservation, the vitalistic principle of the conservation and development of life. Therefore, in addition to the survival and progress of society, human life is the highest criterion of material justice and standards for the assessment of social values, i.e. what belongs to whom, what is law and what is non-law (B.S. Markovic). As an abstract idea, these criteria are always the same, but their subject-matter changes, depending on the period, that is, social relationships. Therefore, justice is an eternal notion with the variable subject-matter, which requires the legal system to adjust to it.

The basic requisite of that adjustment if equity, which is derived from justice and serves its administration. But, equity does not work by itself. It is in the hands of the court which, as an intermediary between regulations and reality, introduces justice into the legal system, linking it to the legal norm. In this way, the court does not create law, but applies it to a particular case in a creative way.

In a system of the separation of powers, courts cannot lay down legal norms, because the legislative power is vested in other bodies. However, life is more dynamic and subtler than regulations, so that it always escapes their control: sometimes because there are no regulations, sometimes because they are incomplete or unclear, sometimes because their implementation would lead to the misuse of law, sometimes because they lost their meaning, sometimes because there is another reason for a failure of the legal norm. In such circumstances, the court cannot refuse to administer justice and refer to the deficiencies of the regulations; rather, it has to establish the legal system despite deficiencies. Therefore, judicial practice does not imply the mere grafting of regulations on to a real-world situation, but its creative breeding with reality, which always produces fresh fruits on the green tree of life. If the roots of this tree are constantly watered by the clear streams of reason, the court will breathe new life into regulations, even if these are stale, weak or terminally ill. If there are no regulations, the court will establish the legal system by trying according to a system of equity.

"Trial by equity does not imply an arbitrary trial based on the personal and biassed criteria of a judge, no matter whether such criteria are based on an abstract dogma (individual freedom, social solidarity), on ideologies in general or on an ethical principle or feeling (altruism, humanism, compassion and the like). Trial by equity does not imply an ideological or sentimental mode of trial. On the contrary - trial by equity is the mode of trial based on specified unbiassed, rational and social, that is, scientific criteria, such as the idea of equality and equal treatment, the idea of normal and reasonable, prevailing social standards of value, actual social interest and the like. Consequently, trial by equity implies the mode of trial according to specified rules, deriving from social laws. It has to be, above all, a scientifically based trial... For these reasons, the expression "it is equitable" is neither the ultimate nor sufficient argument in favour of a judicial decision. It must be backed by "justice" and some more specific, logical and realistic social reason, whether a rational, ethical, economic, political, technical or practical one, or all these reasons" (B.S. Markovic).

In principle, equity cannot act contrary to the legal norm, since it is binding upon the court, as the source of law, even if it has deficiencies. But, deficiencies are the reason why equity is an additional requisite of judicial decision-making, which is used to fill legal gaps, eliminate ambiguities and discrepancies in regulations and breathe new life into the "exhausted legal norm". Therefore, trial by equity is a subsidiary one. If there are no legal gaps, if the regulations are unambiguous and mutually adjusted and if there are no other deficiencies in the legal system, the judicial decision must be based on the legal norm. Since it already contains an "ethical minimum" (G. Jelinek), the norm has "sole competence to say what in a particular positive system is legal and equitable" (B.S. Markovic). If it turns out, however, that there is no appropriate norm or that it is insufficient, the court will provide protection based on equity. Thus, it follows that it is impossible to have simultaneously two parallel and mutually maladjusted or contradictory methods of trial - trial by law and trial by equity - within one legal system (B.S. Markovic). However, these two methods may be the complementary elements of a unified concept of judicial protection, which permits the application of equity after it has been proved that law does not exist or is not sufficient for the establishment of the legal system. Consequently, "trial by equity actually implies trial and reasoning on a dual plane. Namely, on the first plane, it is necessary to start with purely juristic elements and reasons (such as a legal prescription or contract) and if they are not sufficient, that is, if there are legal gaps and unambiguities, one should supplement them and find solutions on the second plane which implies, as already mentioned, one's constant establishment of a concrete relationship and study of the social norm to which this relationship should be applied" (B.S. Markovic).

Despite being "in the background", equity is an important factor of fair trial, because it is used just in that sphere of reality, which is subtler than regulations. This enables the judge - during legal proceedings - to free himself from routine reasoning and find a solution in the stratified structure of commutative, distributive or ethical justice. In so doing, he must avoid arbitrariness, sentimentality or a similar state of mind, and take care not to fall victim of partiality, lack of principles, corruption and other consequences of "free trial". A judge is equitable if he renders every man his due, dealing equally with equal matters, dealing unequally with unequal matters, in proportion to their inequality, and in dealing equally with himself and others. It is not possible to define the notion of equity more precisely but, anyway, it would not be good. "If equity is defined, it is not equity any more. Once reduced to a formula and abstract forms of dry logic, it will also become dry and will not be able to embrace the new law created by life every day, nor to fill the gaps of the old one, nor to enter into details of a particular case. A direct contact between law and life will be broken. Consequently, one should not expect a full, materialized definition of the idea of equity or wish it happen. As a symbol of complex and dynamic reality, it must remain open so as to incorporate the entire, versatile spiritual and biological contents of society at this moment and in the future. - For this reason, there is no lasting recipe for fair solutions. In other words, one should not expect from equity to ensure some specific instructions in advance. It must be regarded, above all, as one way of reasoning or one method of interpreting law which, apart from the mastery of legal techniques, demonstrates many other kinds of knowledge and value judgements" (B.S. Markovic).

However, there is still one general restraint: trial by equity must remain within the limits of the legal system, that is, universally accepted legal and ethical principles.

In looking for fair solutions, judicial practice also makes use of the achievements of legal and other sciences (especially philosophy, sociology and economics).

Trial by equity corresponds to the principle of separation of powers, because it is adjusted to democracy, without any class, ideological and other prejudices of a unified system of power.

4. THE SYSTEM OF COURTS

Courts have not been organized in such a way as to enable an efficient exercise of the judicial power. They are inactive, slow and inefficient. This refers especially to courts of first instance (dealing with civil matters, in particular), where cases wait for months before being taken for processing. At the same time, one can wait for the completion of the procedure for a few years. The situation with respect to courts of second instance is not satisfactory either. Even the Supreme Court is burdened by a large number of cases, especially those dealing with administrative matters.

Such a situation requires the following organization of courts: courts of first instance should be activated; special courts should take "their cases" from the central storage of cases; courts of appeals should assume the entire jurisdiction at second instance and the Supreme Court should become the court of cassation.

1. Courts of first instance. By tradition, courts of first instance are the "bottleneck" of the judicial power. If they are organized in such way as to absorb the inflow of cases within a reasonable time-limit, the entire judiciary will stop being inefficient. The normal absorption of cases will be ensured if first instance jurisdiction is divided between municipal and district courts, whereby district courts would lose second instance jurisdiction. In turn, they would obtain much wider first instance jurisdiction, especially in civil matters. In this way, the judiciary would obtain two kinds of courts with exclusive first instance jurisdiction.

Municipal courts, which have so far been the only "pure" courts of first instance, would be relieved of the burden of more complex civil and criminal cases, but would retain all extra-judicial executive, cadaster and notarial matters.

District courts, which have so far exercised mostly second instance jurisdiction and, in part, first instance one, would become solely the courts of first instance, but would be higher in rank than municipal courts, because they would deal with more complex civil and criminal matters. Therefore, the district court judge would have a higher rank than the municipal court one.

Special courts of first instance would also be organized at the level of district courts: district commercial courts and district labour courts.

2. Courts of appeals. Courts of appeals would have second instance jurisdiction. They would be solely appellate courts and would not have any first instance jurisdiction. However, they would be appellate courts for all courts of first instance having general and specialized jurisdiction.

Consequently, they would decide on the appeals against the decisions of municipal courts, district courts, district commercial courts and district labour courts.

Two courts of appeals would specialize in appeals against the decisions of district commercial and district labour courts.

3. Administrative court. The administrative court would assume the institutional jurisdiction of district courts and the Supreme Court of Serbia in solving administrative disputes. In this way, the courts of general jurisdiction would be relieved from administrative matters in favour of another specialized court.

4. Supreme Court of Serbia. The Supreme Court of Serbia must really become the highest court in the Republic. To this end, it must stop being an instance court by transferring second instance jurisdiction to courts of appeals and jurisdiction for administrative disputes to the Administrative Court.

Once "freed" from instance jurisdiction, the Supreme Court will be able to devote itself to the control of valid judicial decisions in respect to the petition in revocation of judgement in all matters, as well as in determining the principled legal positions and principled legal opinions so as to ensure a uniform application of laws and other regulations. In this way, it will become the court of cassation.

5. The new law. The reconstruction of the judiciary is inevitable and the first step should be the adoption of the new Law on Courts and Judges. In this regard, the Centre for the Promotion of Legal Studies from Belgrade has prepared two models of this law: "for today" and "for tomorrow". "The model for today" (author: Dr Zoran Ivoševic) has been prepared according to the present Constitution, so that the legislator may use it right away. "The model for tomorrow" (its author: Dr Vesna Rakic-Vodinelic) has been prepared independently from the present Constitution and relies on the European law to which we aspire. Both models plead for the incorporation of the standards of the Universal Declaration of the Independence of Judiciary and the Basic Principles on the Independence of Judiciary into the judiciary of democratic Serbia.

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