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MDTF Activities > Chapter 23 Judiciary and Fundamental Rights BILATERAL Meeting - 9-10 December, 2013

Chapter 23 Judiciary and Fundamental Rights BILATERAL Meeting - 9-10 December, 2013

On December 9th–10th, 2013, the European Commission (EC) organized the bilateral screening meeting in Brussels on Chapter 23 – Judiciary and Fundamental Rights.

In this continuation of the process of analytical examination of legislation which began with the explanatory screening organized on September 25th to 26th, representatives of the Republic of Serbia provided the European Commission representatives and experts with a comprehensive, precise and realistic picture of the situation in the country regarding existing legislation, its implementation, degree of preparedness and plans for alignment with the acquis in areas covered by Chapter 23 – judiciary, fight against corruption, fundamental rights and EU citizens' rights. The bilateral screening meeting shall now serve the European Commission as a basis for its assessment of the level of alignment of Serbia’s legal system with the EU acquis, and its evaluation of what further must be done in the negotiating process and prior to accession to the European Union. The Commission will produce a Screening Report on the relevant screening findings, which will be transmitted to the EU Member States. The Screening Report will contain recommendations on the commencement of the negotiations on Chapter 23 or, if so assessed by the European Commission, also the opening benchmarks which are related to requests for the adoption of strategies and action plans, meeting the contractual obligations towards the EU. Opening of the negotiations on chapters for which opening benchmarks have been set can begin only after the EU Council decides that the candidate country has fulfilled those benchmarks.

At the bilateral screening meeting, the delegation of the Ministry of Justice and Public Administration – MOJPA consisted of:

  1. Mr. Nikola Selaković, Minister;
  2. Mr. Danilo Nikolić, State Secretary for the Judiciary;
  3. Mr. Radomir Ilić, Advisor to the Minister;
  4. Ms. Mirjana Mihajlović, Advisor to the Minister;
  5. Mr. Čedomir Backović, Assistant Minister for European Integration and International Projects;
  6. Mrs. Jasmina Benmansur, Assistant Minister for Registers and Freedom of Association;
  7. Marijana Šarac, Advisor to the Minister;
  8. Jasna Bujuklić, Junior adviser;
  9. Mrs. Aleksandra Stepanović, Head of Sector for protection of rights of persons deprived of liberty, within the Administration for the Enforcement of Penal Sanctions;
  10. Mr. Jovan Ćosić, Head of Sector for Normative Affairs and International Cooperation;
  11. Mr. Zlatko Petrović, Head of Group for the Supervision of Data Secrecy;
  12. Mrs. Danica Stojanović, Head of Sector for European Integration in the Field of Judiciary;
  13. Mr. Nikola Naumovski, Adviser within the Sector for European Integration in the Field of Judiciary;
  14. Ms. Milica Ostojić, Junior Adviser within the Sector for European Integration in the Field of Judiciary;
  15. Ksenija Radović, Junior Adviser within the Sector for European Integration in the  Field of Judiciary;
  16. Dragić Radovanović, Independent Adviser within the Sector for European Integration in the Field of Judiciary;
  17. Branislav Stević, Head of Sector for Judicial Professions;
  18. Dragana Rajić, Head of Sector for Freedom of Assembly;
  19. Milutin Trnavac, Higher Adviser within the Register of Churches and Religious Organisations;
  20. Ivana Ninčić, Consultant for International Cooperation;
  21. Ivana Krpina, Consultant for European Integration;
  22. Darja Koturović, Consultant for Access to Justice;
  23. Kosta Mitrović, Consultant for Justice Sector Policy;
  24. Milica Kolaković-Bojović, Consultant for Prosecutorial Reform.
Representatives of other relevant state and independent bodies such as the Republic Public Prosecutor’s Office, High Judicial Council, State Prosecutorial Council, Supreme Court of Cassation, Anti-Corruption Agency and Anti-Corruption Council were also present. The meeting, after opening words and introductory remarks, began with covering the topic of the judiciary. The topic was divided in three parts, with a specific accent on the reform of the judicial system and effective justice system. In the first presentation, the normative and institutional framework for the judiciary was explained, as well as for the independence of judiciary and autonomy of Public Prosecutor’s Office. The position, composition and election of members of judiciary councils and the key competences of these institutions, as well as the election and termination of judicial and prosecutorial officials, permanent tenure, nontransferability, immunity, and financial independence solutions were explained. Identified shortcomings, such as the influence of the National Assembly on the process of election of judiciary officials, court presidents and members of the High Judicial Council/State Prosecutors’ Council, insufficiently transparent work of the High Judicial Council and State Prosecutors’ Council and delays in the process of gaining full budgetary authority were admitted, as well as required measures laid out. With respect to impartiality, guarantees and integrity and professional ethics standards were explained and shortcomings, such as inadequate mechanisms for monitoring property of judicial officials and lack of action plan for improvement of integrity of judges and public prosecutors, for the purpose of acting in line with generally accepted standards of ethics, were identified. Required measures as are amendments to the Law on Anti-Corruption Agency in the part concerning integrity plans and Agency authorizations, as a short-term goal whose implementation is planned for the first half of 2014 and the creation of an action plan for improvement of integrity and ethical conduct of judges and public prosecutors, as a continuous goal, with necessary international assistance were assured. With respect to competence – initial and continuous training, as a right and duty of the judges, public prosecutors/deputy public prosecutors to advanced professional education and training, at the cost of the Republic of Serbia, with statistical indicators, and lists to identified shortcomings and measures was explained. Similarly, questions of responsibility, including mechanisms, statistical data, and identified shortcomings and measures were laid out. Efficiency of the judiciary was explained through efficiency indicators, i.e. number of unresolved cases, number of cases per court/judge, that is, per public prosecutor/deputy public prosecutor, duration of court procedures, judiciary expenses, level of respect of human rights, and statistics and problems were noted, as well as objectives and measures described in the National Judicial Reform Strategy for the period 2013-2018. On the other hand, a separate presentation was given on Criminal Code amendments and implementation of the Criminal Procedure Code from 2011, with a particular accent on the question of “abuse of office” and particularities and reasons for amending the legal framework in this respect, to be aligned with European legislation and GRECO recommendations. The most significant novelties brought by the Criminal Procedure Code from 2011 were explained, as well as preparation for implementation of the new Code/institutional capacities, problems recognized during the previous course of implementation and measures for elimination of identified problems. Following the presentations of Serbian representatives, an extensive question and answer period ensued in which experts from the European Commission inquired on particular topics of interest such as whether a three year probation period guarantees the independence of judges, what is the timeline for constitutional amendments, and which measures are provided that ensure uniformity of jurisprudence. Explanations were requested on the current situation as regards random allocation of cases as well as specific type of information regarding the budget, backlogs per type of courts. Regarding the implementation of the new court network as from January, 2014, the Commission inquired what are the transitional measures that have been foreseen. Subsequently, a presentation on war crimes – legal and institutional framework, administrative capacities, cooperation with ICTY, was given and a short question and answer period was provided.  The second major topic which was covered at the meeting was fundamental rights. Specific topics which were addressed were human rights, compliance with international instruments and European case-law, institutional set up and overall legal arrangements, and promotion and enforcement of human rights (human dignity, right to life and to the integrity of the person, prohibition of slavery, servitude and forced or compulsory labour, respect for private and family life and communications, right to marry and found a family). An accent was also given on the prevention of torture and ill-treatment and prison system, in two separate presentations. The following specific fundamental rights were subsequently presented individually in detail: freedom of thought, conscience and religion; freedom of expression and media freedom and pluralism; freedom of assembly; freedom of association, including freedom to form political parties and the right to establish trade unions and right to property, with a specific focus on the right to restitution. The principle of non-discrimination, including the strategic framework (strategy and legislation), implementation of the principle including towards vulnerable groups such as the Roma, LGBTI persons, women and gender equality, persons with disabilities or human rights defenders, and rights of the child. The following major topic was the right to a fair trial and procedural safeguards, including civil justice: right to an effective legal remedy, free legal aid and access to justice and criminal justice: right to information, interpretation and a lawyer. Finally, the legislative and administrative framework for victims' rights was laid out. On the second day, the topic of fundamental rights was continued, with the presentation focusing on respect for and protection of minorities, cultural rights, legal and institutional framework, implementation measures and follow up of FCNM Advisory Committee Opinions, preparation for the 2014 national minority councils elections, Roma Strategy and implementing measures, strategy and measures to improve internally displaced persons' situation and the EU Fundamental Rights Agency. The second presentation laid out the framework for measures against racism and xenophobia, including police response and judicial follow up and combating hooliganism and violent behaviour. The third presentation dealt exclusively with the topic of protection of personal data, after which ensued three presentations on anti-corruption policy. The Multiannual strategy and action plan in the fight against corruption was laid out, as well as compliance with International instruments (GRECO's recommendations), prevention of corruption, institutional set up, asset declaration and verification, and anti-corruption measures in the public administration. Subsequently, the topics covered were financing of political parties and electoral campaigns, free access to information, specific vulnerable areas (health, education, justice, law enforcement, public procurement, local government), repression of corruption, specialised institutions (police, prosecution, court), pre-trial investigation phase (inter-agency co-operation, access to data bases, special investigation tools, multi-disciplinary investigation teams, amendments to penal procedures code, financial investigation capacity), asset confiscation, whistle-blowers protection and procedure for dismissing criminal investigations. Among important questions posed by the European Commission on the topic of anti-corruption were related to integrity plans, i.e. how does Serbia plan to ensure avoiding the risk of producing too much paper work that does not give any concrete results; are the resources calculated for the implementation of this Action Plan endorsed by the Ministry of Finance and secured in the budget of all relevant Ministries and institutions, including also at the local level, how can the Anti-Corruption Agency tasks be accomplished satisfactorily given the scarce resources, how are checks on conflict of interest and asset declarations done in practice, and what are the reasons for the poor track-record for the number of criminal charges initiated as a result of the checks on asset declarations. Finally, presentations on EU citizen's rights, including the right to vote and stand as a candidate in elections to the European Parliament, the right to vote and stand as a candidate in municipal elections, and the right to move and reside freely within the European Union were given, as well as diplomatic and consular protection framework. Beside the presentations given by the representatives of Serbia, the questions posed by European Commission for each particular topic covered by presenters were extremely valuable and important for focusing on the most controversial and problematic issues. The representatives of the Republic of Serbia had immediately provided answers to many questions, while it was agreed that for a number of issues the answers will be prepared and subsequently submitted to the European Commission in writing. The consultants present at the bilateral screening meeting actively participated in the preparatory phase before the meeting, analysing the relevant acquis, assisting the members of the delegation of MOJPA and other employees within the institution to interpret the acquis, establish contentious issues and draft the presentations and tables of concordance, analyse relevant questions which may be posed at the meeting and propose methods of dealing with such issues as well as plans of alignment. Subsequently, they actively contributed during the whole meeting, presenting selected issues to the European Commission experts and assisting other presenters in providing clarifications and answers to particular questions during the question and answer period, as well as taking notes of remarks, suggestions and requests coming from the European Commission experts. Both the European Commission and the head of the Serbian negotiating team stated that representatives of Serbia demonstrated a high level of preparedness for the meeting, which is crucial in painting a clear picture of the current situation in relevant areas and in detecting problems and difficulties that may occur during the negotiations. Particularly, it is important to note that at the start of the bilateral meeting screening for Chapter 24: “Justice, Freedom and Security”, which was held immediately after the meeting for Chapter 23, on 11-13 December, 2013, the European Commission stated that the bilateral meeting for Chapter 23 was very productive, the presentations were impressive as was the team work and excellent preparation of the presenters, which should be congratulated. In the following period, an emphasis is expected to be placed on implementation and results, i.e. on improving of the process of harmonization, the results of which should be visible. The Minister of Justice and Public Administration Nikola Selaković pointed out that in the following period Chapter 23: „Judiciary and Fundamental Rights“ will be objectively assessed, and the steps which need to be taken will be clearly indicated, as well as how and in what timeframe and whether appropriate measures can implemented on their own or with the help of the European Commission. He stressed that he is convinced that Serbia will be able to implement all the acquis which was presented at the explanatory screening, both those standards that are already in the domestic legal system, as well as those that have yet to become part of Serbia’s legal system.