Summary with Recommendations
a. Efficiency in Justice Service Delivery
- System efficiency is a significant challenge facing the Serbian judiciary but is improving in some areas.
If the output of the worst performing courts could be lifted to the current average, productivity would be in line with performance in EU11 countries.Production and productivity in courts has improved over the last three years, but more should be
done to address pockets of under-performance. Clearance rates
rose and are currently in line with EU averages, but this success is
due largely to declines in incoming cases, and given the amount of
resources they could have been higher.17 There is significant
variation across courts, but few courts produced a less-than-100
percent clearance rate by 2013. The average case dispositions per
judge are in the acceptable range but vary markedly by court type and court location.18 Average case dispositions per judge have declined in the last two years in Basic, Commercial, and Misdemeanor Courts, again to due to a reduction in incoming cases and an increasing number of judges. It appears that judges generally dispose of about the same number of cases that they receive – whether that figure is big or small – without much impact on case backlogs. Many courts resolve fewer cases per judge than could be reasonably expected, and many judges resolve fewer cases than their colleagues. If the output of the worst performing courts could be lifted to the current average, productivity would be in line with performance in EU11 countries. Judges across Serbia would then have more time to contribute to other important functions that support the attainment of Chapter 23 standards, including training.
- In terms of timeliness of case processing at first instance, the picture is also mixed but improving. Serbia’s pending stock of unresolved cases per 100 inhabitants is high in comparison to EU averages, although this is improving for civil and commercial cases. Congestion rates remain high at around 1.41 and are particularly high in Basic, Commercial, and Misdemeanor Courts. On average, new cases proceed through the system relatively smoothly: as a result the average age of resolved cases is relatively young across all case types. However, backlogs persist because old cases remain ‘stuck’ and many inactive cases remain on the books. Although the case management systems are capable of producing Ageing Lists of Unresolved Cases, they are not routinely produced and so Court Presidents do not generally analyze them. This is unfortunate because Ageing Lists are perhaps the most useful tool available to track timeliness in case processing. The Functional Review developed an Ageing List for the purpose of this report, and it highlights an alarming number of cases that remain pending after three, five, and even ten years. These old cases are unlikely to meet the timeliness requirements of the European Convention on Human Rights (ECHR) and they thus require particular attention. The time to disposition of resolved cases in days varies markedly by case and court type. The time to case disposition is short in Higher Courts (98 days) but long in Basic Courts (736 days). In civil and commercial litigation, Serbia’s time to case disposition is reasonable and in line with EU averages. Whereas in enforcement cases, timeliness is intractably long and far worse than elsewhere in Europe. Unsurprisingly, user perceptions of timeliness remain negative, and the long duration of cases frustrate court users. Furthermore, data on the timeliness of first instance proceedings does not reflect the full user experience, as appeal rates are high and the ‘recycling’ of cases through re-trials is too common, and this further prolongs the ultimate resolution of disputes for the parties.
The successful mass resolution of enforcement cases in the Belgrade First Basic Court could be replicated in other Basic Courts.Effective enforcement underpins the justice system, and on this indicator Serbia lags far behind EU Member States. Enforcement cases comprise much of the backlog and cause most of the congestion and delays in courts. Enforcement departments within courts are often poorly staffed and exhibit low morale.
Much of the problem relates to unpaid utility bills, which make up
around 80% of the enforcement caseload.19 While recent reforms
will ensure that many new monetary enforcement cases, including
utility bill cases, are now channeled to private enforcement agents
instead of to courts, an d ongoing monitoring of this profession will
be required to ensure their effectiveness in dealing with these cases. Meanwhile, the elimination of the existing backlog of old enforcement cases in courts will require specific measures.20 On a positive note, remedies are available. Mass resolution (purging) of cases has proven successful at the Belgrade First Basic Court, and this experience could be replicated in other courts. Targeted evidence-based approaches have also shown some promise in the Vrsac Basic Court. By contrast, enforcement cases that do not relate to utility bills, such as the enforcement of court judgments, proceed relatively smoothly, though there remains room for improvement.
In Serbia, avoiding service of process is relatively easy: on average at least 57% of attempts at service of process fail.A range of procedural inefficiencies cause frustration among court users and practitioners and contribute to delays. Service of process is required at each step of the process, and unnecessary delays here cause a ricochet effect through the system. Avoiding service of process is relatively easy; on average at least 57% of attempts at service of process fail. Stakeholders are unanimous that the Postal Service is ineffective
and it has little incentive to improve whilst it charges the courts per
attempt of service. Related cases are rarely joined (and even claims
and counter-claims are not routinely joined) resulting in duplication.
However, judges are unlikely to change that behavior and join cases
more often whilst ever they are monitored on the raw quantity of
their resolved cases. Time management in courts is often poor. Hearings are held only in the mornings,
despite a lack of courtrooms. Some courts use existing case management software to schedule hearings, while others rely on manual diaries which are less reliable and more time-consuming than their modern equivalents. Routinely, there is a long delay in scheduling the first hearing in a case and an average three-month time lag between hearings. Case processing practices are outdated, including disjointed hearings and the manual exchange of case information. Case files get misplaced and take a long time to transfer from one court to another. Preparatory departments have shown some promise, but many courts have been slow to establish them, often due to lack of space or reluctance on the part of judges to part with ‘their’ assistants.21 Hearings are often cancelled or adjourned because of the non-appearance of prisoners, attorneys or expert witnesses: this is often due to poor coordination between courts and critical service providers, which is exacerbated by the growing arrears owed to these providers. An excessive number of hearings do not contribute to resolution of the case, suggesting that judges are not using their powers to actively manage their cases. For their part, attorneys perpetuate procedural inefficiency in the courts, and they have little incentive to change behavior whilst ever they are paid per hearing.
Preparatory departments have shown some promise, but many courts have been slow to establish them.Procedural abuses by litigants often go unmanaged, as do frivolous claims and appeals. Trial judges
fail to exercise their powers to curtail abuses due to a range of
factors, including fear that their decisions may be overturned by
appellate courts, their close relationships with attorneys, as well as
a general dynamic of torpor within courts. In some areas however,
stronger procedural laws, including tougher sanctions, as well as
greater clarity from appellate jurisdictions, may assist judges to be more proactive in case management.
- Efficiency in the delivery of prosecution services is also a concern, but a lack of data inhibits more detailed analysis in the Functional Review. The prosecution service is also undergoing profound change in the transition to a prosecution-led adversarial system under the new Criminal Procedure Code (CPC). The transfer of more than 38,000 investigation cases from Basic Courts to PPOs reduced inventory in the courts but created a new backlog for prosecutors, which they are struggling to process. New obligations have also expanded their scope of works, and they are ill-equipped to deal with these. Work processes require review to adapt to this new environment.
- Meanwhile, the efficiency of administrative services22 is high and improving, but unfortunately many of these functions will soon be taken from courts. The time required to complete verification tasks has reduced by one-third from 2009 to 2013, and in at least half of all cases, verification can be completed at one location within a half-hour. User satisfaction is often over 70% and has increased on most aspects between 2009 and 2013. Perceptions of the conduct and competence of staff has also improved. Nevertheless as part of a controversial reform to create private notary services, these tasks are scheduled to be transferred in 2015 from courts to private notaries. It is unclear what problem this aspect of the reforms is seeking to solve, given high existing levels of satisfaction with verification services. If courts were to be able to compete with notaries for basic verification tasks, they would be well-placed to provide good value-for-money services. If courts do lose these functions, significant staff reductions should be expected to follow.
Recommendations and Next Steps
Strengthen performance management in courts by recognizing and rewarding higher-performing courts and implementing performance improvement plans for under-performing courts. Intensify dialogue between courts to exchange good practices and experiences through a more intensive program of meetings, workshops and colloquia.23 Lifting under-performers to the current average would considerably improve efficiency and consistency of practice, and bring Serbia’s performance closer in line with that of EU Member States. These recommendations can be implemented at relatively low cost, using the Performance Framework indicators (at Annex 2) as an initial reference.
- Establish a department in the SCC to analyze court performance issues, using the Functional Review and the Performance Framework as a foundation. (SCC – short term)
- Select a targeted number of indicators that drive court performance and monitor these across all courts. (SCC – short term and ongoing)
- Acknowledge performance improvements and innovations by showcasing their work at regular symposia and through non-financial rewards of recognition (e.g. Court Staff/President of the Year, Best Performing Court of the Year, Most Improved Court of the Year; Innovator of the Year etc.). (HJC with MOJ – short term)
- Disseminate individual and institutional good practices and innovations through workshops and colloquia among Court Presidents and heads of departments within courts. (SCC with HJC – medium term)
- Carry out targeted interventions aimed at assisting those courts facing severe performance challenges to rise to the current averages. (SCC – medium term)
Prioritize the implementation of the SCC Backlog Reduction Strategy, targeting in particular the utility bill enforcement backlog through analysis and a coordinated package of incentives.24 Develop Ageing Lists as a key tool for managing timeliness and backlog reduction, and monitor the progress of each court. This builds on the work already underway by the Backlog Reduction Working Group. Results here would help bring Serbia’s efficiency in line with that of EU Member States. Moderate funds may be needed for staff overtime to address the backlogs. The initial recommendations can be implemented at relatively low cost, although technical assistance may be required for some items.
- Accelerate the backlog reduction program and adopt the measures proposed in the Best Practice Guide to prevent the recurrence of backlogs. (HJC, SCC – short term and ongoing)
- Monitor prosecutorial investigations to prevent the accumulation of an investigative backlog. (SPC and RPPO – short term and ongoing)
- Analyze why the Infostan approach to withdraw inactive utility bill cases was so effective, replicate lessons learned with other utility companies. (SCC liaising with MOF, MOE, Utilities – short term)
- Establish taskforces in those courts most affected by utility bill backlogs. Re-allocate sufficient staff, particularly judicial assistants, from other departments to these taskforces, and provide them sufficient ICT equipment and software. Court Presidents should provide the necessary leadership and managerial support to enable them to succeed. Develop a comprehensive Ageing List of enforcement cases, and create ambitious yet realistic targets. Closely monitor the results of taskforces and report regularly to the relevant Working Group. Recognize good performers through evaluation, promotion and non-financial recognition and awards. (SCC – short term and ongoing)
- Create incentives to overcome the stigma that enforcement work is unattractive, such as giving ‘bonus points’ for the resolution of enforcement cases in productivity norms or considering backlog reduction efforts in evaluation and promotion processes. (HJC, SCC – short term)
- Analyze the non-enforcement backlog with a comprehensive Ageing List. Require that Courts report routinely on resolution of old cases. (SCC – short term)
Monitor the implementation of recent reforms introducing private enforcement agents, including workloads, costs, quality and efficiency of service delivery, and integrity.
- Analyze data on the use of enforcement agents to assess their effectiveness and impact on court performance. (MOJ, SCC – short term, ongoing)
- Create an internal panel of the Chamber of Bailiffs to process complaints against enforcement agents as a first tier. Incorporate remedial training as a potential sanction for agents. Disseminate information regarding avenues for complaint against enforcement agents. (MOJ, Chamber, JA – medium term)
- Conduct a comparative analysis of the cost of enforcement services (including deposits, reimbursable expenses, and fees) in other European jurisdictions, and analyze models and affordability. Consider reducing the enforcement deposit and better regulating reimbursable expenses for enforcement agents. (MOJ – short term)
- Introduce caps on the number of outstanding cases per enforcement agent and avoid assigning additional cases if performance standards are not met. (MOJ, Chamber – medium term)
- Amend the location from where enforcement agents are appointed from the creditor’s territory to either the creditor’s territory or the territory where the debtor is registered to ease logistical constraints on enforcement. (MOJ – short term)
Establish preparatory departments in all medium and large sized courts. Monitor their results and exchange experiences.25 Judges, court staff, and practicing attorneys acknowledged these departments would be useful, particularly for ensuring that cases are ready for hearing, but the lack of staff or commitment to the process hindered the implementation. Departments can be established in the short term, while evaluating the results will require more time. The cost is moderate with the potential for substantially improved efficiency.
- Establish preparatory departments in those medium and larger courts that lack them. Collect baseline data on time to disposition and procedural efficiency, and monitor results. (SCC, MOJ – short term)
- Disseminate information about results to all courts and recognize good performance. (SCC, MOJ – medium term)
Develop and monitor performance statistics in PPOs.26 Monitoring the workload, via electronic means wherever possible, should be done in the short term for low cost, while making changes to correct problems will follow, with costs depending on what correction actions are taken.
- Design more detailed and disaggregated performance statistics for PPOs. (RPPO – short term)
- Monitor performance statistics in PPOs to prevent backlog from accumulating, and recognize good performers. (SPC, RPPO – medium term)
Collect and analyze data on procedural efficiency to inform future reforms.27 Provide practical training to support the rollout of recent procedural amendments. Adjust productivity norms to encourage judges to join related cases. The CCJE calls for judges to control the timetable and duration of proceedings, from the outset and throughout the legal proceedings. These recommendations can be accomplished in the short term at relatively low cost.
- Require staff to enter data into existing fields in case management software (AVP and SAPS). Provide training to staff on consistent data entry. Generate regular analytic reports and monitor results. (SCC, Courts, ICT providers – short term. See also ICT Management section)
- Create new fields in AVP and SAPS, focusing on data needs relating to timeliness, procedural efficiency, and prevention of procedural abuse. (MOJ – short term)
- Provide training to lower and higher court judges and judicial assistants on issues affecting procedural efficiency, including training to judges on their recently-enhanced powers to manage cases. (HJC, SCC, JA – medium term)
- Where variations in procedural efficiency exist between Courts, analyze and convene colloquia between courts to share experiences. (SCC – medium term)
- Analyze the extent of appeals, and procedural abuses; identify causes and develop possible sanctions.28 (SCC – medium term)
Tighten scheduling practices for court hearings, including by conducting hearings throughout the day and fully utilizing case management software functionality. Collect and monitor data on scheduling patterns, such as reasons for adjournments, to inform future reforms.29 Most of these changes could be made in the short term for little cost.
- To maximize the use of limited courtroom facilities, schedule hearings throughout the day, except in extraordinary circumstances. (SCC/Courts – short term)
- Collect and analyze data on cancelled and adjourned hearings and the reasons for them. (SCC/Courts – short term)
- Require that judges close each hearing by setting the next hearing date within a standardized timeframe, with only limited exceptions. (SCC/Courts – short term)
- Require that all courts use existing case management software to electronically schedule court hearings. Provide training as necessary. (SCC, JA, MOJ – medium term)
Reduce the requirements for service of process and reconsider arrangements for the delivery of service, applying lessons from some Basic and Misdemeanor Courts.30 Most of these steps can be taken in the short term at low cost.
- Monitor the implementation of recent procedural amendments which attempt to close loopholes on service of process. Collect and monitor data on service of process, including attempts and costs, and identify sources of variations. (MOJ, SCC, Courts – short term)
- Re-negotiate the MOJ’s outdated MOU with the Postal Service and pay only for successful service (modelling the experience from Uzice Basic Court). Increase training and awareness among postal officers of their requirements and the sanctions for abuse. Create a plan to monitor results and to report on changes. (MOJ – short term)
- Work with Courts to build flexibility into their budgets so that they can innovate, for example by contracting with private couriers (like Sloboda which delivered an inexpensive and successful solution in the Novi Sad Misdemeanor Court), or delivery men, as occurs in the Vrsac Basic Court. (HJC, MOJ – medium term)
- Provide training to judges on new rules and encourage them to take a proactive approach to managing service of process. (SCC, JA – medium term)
- Amend procedural laws to create a presumption of continual service after the first service of process, with the onus on the party to notify the Court of any change of address, along with sanctions for non-compliance. (MOJ, HJC – medium term)