On April 27-29, 2015 a group of Serbian Supreme Court (SCC) Justices and legal advisors visited Germany in order to get introduced to the mechanisms and technology of case law harmonization in Federal Republic of Germany.
Serbian delegation was composed out of Justice Snezana Andrejevic, Deputy Court President and editor-in-chief of SCC case law bulletin, Justice Ljubica Milutinovic, heading the Department on Protection of the Right to a Trial within Reasonable Time, Justice Vesna Popovic, Deputy Head of SCC Case Law Department, Justice Vesko Krstajic, in charge of case law harmonization in Criminal Department, Mirjana Puzovic, Head of Office of the Court President, and myself, as an MDTF-JSS consultant for court jurisprudence issues, embedded in the SCC.
This visit was supported by the OSCE Mission in Serbia and MDTF-JSS, as a response to the SCC wish to learn more about mechanisms of case law harmonization in a system with a lot of common features, with which Serbia shares the same legal tradition.
The first meetings were scheduled in the Federal Ministry of Justice (and Consumers’ Protection) which was at first strange for the study visit participants, since the Ministry has no competences in case law alignment process. Already after the first contact with Ministry representatives, we realized what the reason behind these meetings was: in every moment there are between 80 and 100 experienced judges, who have been seconded to the Ministry for certain period because of their expertise in certain field of law. The professional Ministry staff is composed out of these experts. Our interlocutors from the Ministry were judges-experts in civil, administrative and family law, and they introduced us to the case law harmonization mechanisms in German courts. The process is marked by two features: it is prescribed by the Law on Courts’ Organization; the process enables all courts’ decisions which are not aligned with usual practice to be examined by higher instance court, including Federal Supreme Court, upon an extraordinary legal remedy. Such mechanism has been established in 1950s.
According to Art. 129 of the Law on Courts’ Organization (Das Gerichtsverfassungsgesetz), when in civil proceedings a court wishes to depart from usual case-law, it is obliged to announce this to the parties and their attorneys, to provide detailed justification and to allow the right to extraordinary legal remedy, regardless of whether it is granted by law in respective case. In criminal proceedings, this technology is somewhat different, since the court which deters from the usual case law has an obligation to send the case file to the regional appellate or Federal Supreme Court (dependant on the jurisdiction) for review, immediately after passing the decision.
This study visit had another purpose: introduction to the system of education of lawyers – future judges. In two days the participants were exposed to a very complex and demanding education system of candidates for judges, prosecutors and attorneys posts: the system is comprehensive, unique and equal for all named categories; it encompasses practical work at a court, prosecutor’s office, law firm, governmental and/or local self-government office. The training is organized and carried out upon a program which is every year designed by a regional appellate court (Oberlandesgericht), for the respective territory. It is binding for all institutions and organizations in which the beneficiaries are trained. Even though this education is not carried out under the auspices of a judicial training institution, it has a well established mentor system; the quality control is performed by the Regional Bar Exam Bureau (Justizpruefungsamt). The trainees, so-called Referendaren, which want to become judges spend certain part of this education (which lasts up to two years) in the second instance, appellate court, dealing with case-law issues.
Upon returning to Belgrade, study visit participants held a presentation to the SCC justices and legal advisors on German best practices with regard to case law harmonization. During this presentation, the Supreme Court justices pointed out the following conclusions and recommendations:
1. The stability of legal, i.e. legislative system is of key importance to aligned case law. In 20th century, Germany went through at least three turbulent periods: The First World War, the Third Reich and the consolidation of two Germanies into one state in 1989/1990. However, its main procedural laws were created towards the end of the 19th and in the beginning of the 20th century, and they did not suffer great or systemic changes. These changes did not occur often, either.
2. Organized and continuous education of judges and judicial advisors contributes to harmonized jurisprudence. There is a general awareness of the importance of investing into future generations of judges, which is accompanied by a comprehensive and well established system of their professional development.
3. The engagement of experienced judges for the purposes of the ministry of justice, i.e. executive branch of government, could be introduced in Serbia as well. Such engagement would contribute to continuity and sustainable institutional reform (in times of frequent elections, and subsequent changes of personnel in ministries), the quality of legislative changes and proposals, and coherency of legislative framework.
4. It will be good to include practical education in second instance courts into the Judicial Academy’s initial training curriculum, i.e. to organize practical education in these courts for judicial assistants of first instance courts, in particular to the case law departments, for at least three months.
The last two recommendations do not require changes of legislation, or additional human or material resources, and the study visit participants assess that they would contribute to institutional capacity building with the purpose to reinforce legal certainty, which is the aim of case law harmonization.