The Venice Commission Opinions as a Framework of Constitutional Changes in the Area Governing the Judiciary

Abstract

The process of constitutional change undoubtedly provokes intense reactions both to the professional and the general public. The need for a wider dialogue within this process is no longer questioned. Nevertheless, over the years, the issue of constitutional order is no longer exclusively an internal issue of European states. Membership in the family of European nations, either through the Council of Europe or through the European Union, implies the obligation to reach and maintain a certain level of standards regarding the organisation and functioning of the legal system. One of the most important mechanisms in this regard is the previous analysis and giving opinion on the draft Constitution by the Venice Commission. In parallel, taking into account the views taken by the Commission on earlier proposals of the constitutions of other member states of the Council of Europe during the drafting of constitutional amendments is also of crucial importance. As the current constitutional changes in the Republic of Serbia constitute an integral part of the accession negotiations with the European Union (Chapter 23), Serbia has committed itself in the Action Plan for this chapter- the part relating to the organization and, in particular, the independence of the judiciary, to amend its Constitution in accordance with the views of the Venice Commission. Apparently, it seems as a simple task, but that in practice, it gets on the complexity due to several factors analyzed in this paper. First of all, there is a question of the (non)existence of unambiguous standards governing this field, but also the issue of their (non) selective application to all countries equally. Finally, the flexibility and uniqueness of the views taken by the Venice Commission on concrete issues concerning constitutional guarantees in the field of judiciary are essential for assessment of their influence in the process drafting of a new text of the Constitution, as well as in terms of choosing concrete solutions regarding the composition and competences of the High Judicial Council and the State Prosecutorial Council, as bodies in charge of ensuring the independence of the judiciary, but also when it comes to creating mechanisms of independence and accountability of the holders of judicial functions.