Summary with Recommendations
c. Access to Justice Services
- Lack of affordability is the most serious barrier to access to justice services in Serbia. Court and attorney costs represent a significant proportion of average income in Serbia. Pursuing even a simple case is unaffordable for many. Citizens do their best to avoid the courts: nearly 63% of the general public reported that, if they had a dispute which they thought should be settled in the court, they would decide against pursuing it; and fear of costs was the most common deterrent. Over half of recent court users surveyed considered the court-related costs in their particular case to have been excessive. The schedules for court and attorney fees are also quite complex, so court users struggle to estimate likely costs.45
- Lack of affordability of justice services also causes a drag on the business climate. Over one-third of businesses with recent experience in court cases reported that the court system is a great obstacle for their basic business operations, and an additional 30 percent reported that courts are a moderate obstacle. Businesses also report that the courts are becoming increasingly inaccessible to them due to high court and attorney fees. Small businesses face particularly challenges in navigating the court system, including high costs, cumbersome processes, lengthy delays, inadequate enforcement, and constantly changing legislation.
Over one-third of businesses with recent court experience reported that the court system is a great obstacle for their basic business operations. An additional 30 percent reported that courts are a moderate obstacle.On further examination however, it is not absolute costs to users but perceived value for money
which undermines access to justice. Although court users complain
about costs (and non-users report that costs deter them), the Multi-
Stakeholder Justice Survey found that recent court users who were
satisfied with the quality of services delivered were far less likely to
consider the costs to be excessive.46 These data therefore suggest
that improvements in quality and efficiency in service delivery could
improve access to justice, by increasing the perceived value for
money for potential court users, while also improving user
- Attorneys play an important role in helping court users to navigate the system, but their fee structure is out of step with European practice and creates perverse incentives which undermine access to justice and efficiency and quality and service delivery.47 Self-represented litigants struggle to proceed alone
without lay formats, checklists or practical guides, and
unsurprisingly therefore, they are less likely to succeed. Attorneys
are paid per hearing or motion, which encourages protracted
litigation. Fees are awarded based on a prescribed Attorney Fee
Schedule, which prohibits from charging less than 50 percent of the rates prescribed. This arrangement is out of step with European practice.48 Serbia’s prescribed fees are also highly inflated and unrealistic, and in practice many attorneys charge less than the mandatory minimum because rates are beyond user willingness to pay. State-appointed attorneys (known as ex-officio attorneys) may be appointed for indigent clients but there are concerns regarding the mechanism for their selection and a lack of quality control.
- A court fee waiver is available for indigent court users but its implementation is haphazard, resulting in inconsistent access to justice for the indigent. There is very limited understanding among the public of the court fee waiver program. There are no guidelines or standardized forms for judges who grant a waiver and their decisions go unmonitored. Stakeholders report that some Court Presidents informally discourage their judges from waiving fees, as fees are a source of revenue for courts. Waivers may improve access to justice in some areas but without data its impact cannot be monitored.
- Legal aid programs are provided by an incomplete patchwork of services across the country. Municipal Legal Aid Centers cover around one-third of the country and around one-half of Serbia’s total population. Yet, most citizens are unaware of any free legal services that might be provided in their municipality.
There remains a high risk that the Free Legal Aid law, like other reforms in recent years, will become ‘stillborn’ if fiscal and operational implications are not carefully planned or if implementation arrangements are weak.Reforms are currently underway to expand legal aid in line with EU practice by providing both ‘primary legal aid’ (legal information and preliminary advice) and ‘secondary’ (legal representation) to the poor and certain vulnerable groups. While the aims of the reform are admirable, there remains a high risk
that these laws, like other reforms in recent years, will become
‘stillborn’ if fiscal and operational implications are not carefully
planned or if implementation arrangements are weak. Despite
several years of deliberation in working groups, there remain some
concerns with the latest draft of the law. The current draft creates a
bias in favor of secondary legal aid, to be provided predominantly by
attorneys, while doing little to encourage primary legal aid, which
would be provided by CSOs, municipal legal aid centers, and law
faculties. Yet, the efficient delivery of primary legal services is likely to have the greatest benefit in terms of increasing access to justice for the largest numbers of Serbian citizens and could be delivered at much lower unit costs. It will be important to ensure that primary legal aid is adequately funded and delivered consistently throughout the country. Meanwhile, proposals for secondary legal aid could be considered more cautiously. A Fee Schedule will also need to be developed for the compensation of service providers for both primary and secondary aid. Based on previous analysis, the fees for these services should be far lower than the current Attorney Fee Schedule.49 Quality assurance mechanisms will also be required and this is another area of high implementation risk.
- Recent legislative amendments seek to promote mediation but there are significant implementation challenges. Due in large part to previously failed reforms, there is limited awareness of mediation among judges, attorneys, court staff, and court users. Among those who are aware of mediation services, few report it to be a useful means of dispute resolution. A significant outreach initiative to potential court users will be required, along with intensive training for judges, prosecutors, lawyers, and court staff. Further incentives should be built in to the institutional framework to encourage the use of mediation and integrate it into the court system.
In Serbia, continuous changes in legislation and scarce outreach of reforms combine to prevent the public from understanding their rights and obligations, or how to uphold them in court.Awareness of law and practice is limited, even among professionals. Judges, prosecutors, and
lawyers struggle to conduct research and keep abreast of new
legislation, cases, procedures, and practices. Before 2014, the only
legal databases with consolidated legislation were maintained by
private companies on paid subscription basis. Few courts publish
their court decisions, so access to these even among judges is very
limited. On a positive note, the Official Gazette recently launched a
free online database, and this should improve access to legislation.
Efforts to raise awareness and build the capacity among
professionals to conduct legal research could reap significant rewards in terms of consistency of practice across the jurisdiction.
- Among the public, awareness of law and practice is even more limited. Continuous changes in legislation and scarce outreach of reforms combine to prevent the public from understanding their rights and obligations, or how to uphold them in court. Businesses report that access to laws – and frequent changes in legislation and regulations – causes uncertainty that affects their business operations. A significant injection of outreach and awareness-raising of legal reforms among the public, particularly among potential court users, is required. Existing court users also struggle to access information related to their own case. Examples exist in Croatia and elsewhere of court portals which could be applied in Serbia to enable court users to access information related to their case in a manner consistent with privacy laws.
- Women experience the judicial system differently from men in a few ways. Women report more than men that justice services are inaccessible. More often than men, women find attorney fees to be cost-prohibitive. Women are also more likely to experience barriers to access to justice and inefficiencies in justice service delivery because they are more likely to be parties to certain types of cases, such as custody disputes and gender-based violence, which exhibit specific problems relating to procedural abuse and delay.
- Equality of access for vulnerable groups poses specific challenges. The majority of citizens surveyed reported that the judiciary is equally accessible regardless of age, socio-economic status, nationality, disability, and language. However, those citizens who are over 60 years of age, live in rural areas or have the least amount of education find the judicial system particularly inaccessible, suggesting that targeted interventions are warranted. Individuals with intellectual and mental health disabilities experience serious disadvantage through the process by which they are deprived of their legal capacity. Members of the Roma community, refugees and internally displaced persons also report low awareness of their rights, as well as concerns regarding fair treatment before the courts. For these groups, there is a case for strengthening the dissemination of information to relevant CSOs and community leaders about the functioning of the judiciary and basic legal rights. The experience of the LGBT community is slightly different: though they appear more than the abovementioned groups to be aware of their legal rights, they remain deterred from filing cases due to fear of reprisal and perceived discrimination.
Recommendations and Next Steps
Simplify the court fee structure to enable users to estimate likely costs. Remove the cap on court fees. Standardize the court fee waiver process, and collect and analyze data on court fee waivers.50 Implementation of this recommendation will align with EU standards and good international practice.51 The initial steps can be made in the short term for little to moderate costs.
- Simplify the court fee structure to enhance understanding of likely court costs. Remove the cap of 80,000 RSD on court fees and remove court fees for criminal cases initiated by a private party. (MOJ – medium term)
- Provide lay formats of information online and in paper brochures about the foreseeable costs and duration of proceedings to enable potential court users to better estimate the costs of their case. (MOJ – medium term)
- Adopt and disseminate standards for granting fee waivers, and create a standardized fee waiver application form and decision form for use by all courts. (MOJ, SCC – short term)
- Require staff to enter data on fee waiver requests and decisions in existing fields in AVP. Over time, monitor data fee waivers to encourage compliance with standards. (MOJ, courts – short term)
Remove the Attorney Fee Schedule to enable competition in the market for legal services. Develop a more cost-effective Attorney Fee Schedule to apply only for legal services to the state (e.g., legal aid services and ex-officio attorney appointments). Consider moving away from a pay-per-hearing model.52 The CCJE advises that remuneration of attorneys should not be fixed in a way that encourages needless procedural steps.53 The European Court of Justice has held that mandatory minimum fees violate the EC Treaty. In 42 countries monitored by the CEPEJ, lawyers’ remuneration is freely negotiated.54 Some steps will entail low to moderate costs but they would likely be more than offset by savings in moving from per-hearing payment for court-appointed attorney.
- Remove the Attorney Fee Schedule and allow attorneys to negotiate their fees freely with clients. Develop a lower Attorney Fee Schedule for legal services provided to the state (see below), which could also apply as the schedule for awarding costs. (MOJ – medium term)
- Periodically update Bar Association lists to inform the process of selecting ex-officio attorneys, and provide lists to all relevant stakeholders. Clarify the appointment process and re-instate/establish Bar Association hotlines for attorney referrals. Provide parties with information on how to make a complaint about an ex-officio attorney. (MOJ, Bar Associations – short term)
- Require court staff to enter data on ex-officio attorney appointments into existing AVP fields. Monitor the use of ex-officio attorney appointments by case type, outcome, appeal rate and time to disposition. Compare with data where attorneys were not appointed ex-officio. Over time, use data to inform future reforms of ex-officio appointments. (MOJ, Bar Association – short to medium term)
- Provide parties with information on how to make a complaint about an ex-officio attorney. Strengthen quality control mechanisms for ex-officio attorneys. (Courts, Bar Associations – long term)
- Consider whether the mandatory appointment of ex-officio
Prioritize the passage of an adequately funded, cost-effective Free Legal Aid law that expands the pool of service providers and limits State costs.55 International standards establish the right to counsel to protect fundamental rights, and the ECHR calls for state-supported defense for indigent parties when the interest of justice demands it. The law should be passed as a priority, and rollout can occur in the medium term. Potential significant costs can be contained by following these recommendations:
- Prioritize passage of the draft Free Legal Aid Law. Ensure that the operational and fiscal implications of the draft law are adequately addressed. Cost and provide funding for primary legal aid services and ensure its coverage across the territory. Secure funding to implement any expanded mandates provided in the law. (MOJ, MOF – short term)
- Develop an Attorney Fee Schedule for the reimbursement of providers of primary and secondary legal aid. Consider a payment mechanism whereby clients receive vouchers for legal aid services and can choose their own provider. (MOJ – short term)
- Task a Working Group within the MOJ to plan and oversee the rollout of the new law and draft regulations. Provide training to service providers. Establish the proposed quality control mechanism and relevant protocols. (MOJ – medium term)
- Provide easy-to-read information about court processes in pamphlets and on the web, including guidance on assessing court and attorney fees, and how to make a complaint against attorneys. (MOJ – medium term)
- Disseminate information to the public about the availability of legal aid services. (MOJ – medium term)
- Collect and analyze data on the use of legal aid by the public, including the most common case types, the workloads of service providers and the levels of satisfaction of users. (MOJ – medium term)
Improve services for self-represented litigants, including simple forms and checklists for court users, and lay brochures and guides of basic laws and procedures.56 Improved information can enable litigants to proceed smoothly through the system without an attorney, thus improving access to justice, as well as efficiency in the delivery of services.
- Create fields in AVP to collect data the number of self-represented litigants, their case types, outcomes and times to disposition. Require that staff enter data. Over time, use the data to design more targeted interventions to support self-represented litigants. (MOJ – short term)
- Building on lessons from Vrsac Basic Court, develop checklists of routine processes for court users and disseminate widely. (Courts – short term)
- Develop lay information packs for case types that are (or could be) most commonly pursued without an attorney, including guides, flow charts and infographics (MOJ – medium term)
- Develop/improve registries of allied professionals, such as enforcement agents, mediators and private notaries, to include expertise, geographic area, clear fee descriptions, complaint procedures, and disciplinary actions initiated or fines levied against an individual. Include in the bailiff registry a calculator for assessing likely bailiff fees (similar to the court fee calculator). (MOJ, Chamber of Bailiffs – short term)
Operationalize the new Mediation Law, create incentives for court users and practitioners to opt for mediation, and monitor the results. Conduct intensive training among professionals on mediation and disseminate information to potential court users.57 The CCJE recognizes the critical role of judges and lawyers for consensual settlements.58 EU Member States are required to ensure training and quality of mediators and mediation confidentiality. While some steps can be taken soon, this is a large undertaking requiring considerable time, money, and political will to accomplish. In order to encourage mediation, the remuneration structure for attorneys will need to be changed from one based on fees paid for hearings to one based on legal services and case resolution.
- Develop quality standards for mediators and a certified mediator registry. (MOJ – short term)
- Raise public awareness of mediation through websites, brochures, and public service announcements. Introduce a Mediation Self-Help Test, applying lessons from the Netherlands, so that parties can determine whether mediation would benefit them. (MOJ – short term)
- Establish a formal Court-annexed mediation program in all Basic and Higher Courts and standards for determining which cases are appropriate for mediation.59 Strengthen mediation confidentiality requirements, requiring that judges serving as mediators cannot serve as trial judge in the same case and providing trial judges only with confirmation that mediation was unsuccessful rather than the reasons no settlement was reached. (MOJ,HJC – medium term)
- Provide incentives to potential users of mediation, including:
- Lawyers: provide subsidized, tiered training to familiarize attorneys with mediation and those lawyers who decide to become mediators. Require mediators who received subsidized training to provide a specified number of free mediations. Introduce a system of co-mediation and mentoring to enhance mediator skills. (MOJ, Bar Associations – medium term)
- Judges: develop training and printed materials for Court Presidents and judges about the advantages and mechanics of mediation. Count dispositions achieved through mediation as part of the individual judges’ workload. (HJC, JA – medium term)
- Public: introduce legal aid for mediation60 and provide a temporary financial stimulus via free mediation hours. Set fees for mediation at less than court litigation fees, reflecting likely lower court costs than through standard litigation. Reduce the mediation fee in small claims cases to bring it more in line with court fees for these cases. (MOJ – medium term)
- Create an effective mediation case referral and management system, including: a) criteria for selecting cases; b) procedures for selecting a mediator; c) statistical monitoring and reporting; and d) coordinating activities between the court, litigants and mediators. (HJC – medium term)
Make important cases, consolidated legislation, and information about open and disposed cases freely accessible online.61 Implementing this recommendation will advance several CCJE goals.62 Most of these efforts can be accomplished in the medium term for low to moderate costs.
- Provide public information about court processes via court websites and brochures and using radio and television public access channels. Start with information about misdemeanor case process for which citizens indicate that the least information is available and the highest demand for information exists. (MOJ, HJC – short term)
- Publish consolidated legislation online free of charge. For the most commonly-used legislation, provide annotated commentaries. (National Assembly, Official Gazette – medium term)
- Ensure that parties in pending cases can access the basic registry and scheduling information about their case on the web portal, applying lessons learned from Croatia. (HJC, MOJ – medium term)
- As discussed further in the ICT resource section, develop common standards on which appellate decisions should be uploaded to searchable public websites. (MOJ, SCC – medium term)
Develop lay formats of legal information specifically aimed at reaching vulnerable groups. 63 CEPEJ reports 17 EU Member States provide special information to ethnic minorities in line with CCJE recommendations64 supporting steps to strengthen the public perception of impartiality of judges65 Further, providing information to designated groups can be made in the short to medium term for low cost.
- Develop lay formats of legal information specifically tailored for vulnerable groups, including less educated court users, Roma and internally displaced persons. (HJC – short term)
- Develop court materials including websites in languages other than Serbian consistent with European standards for providing information in other languages. (MOJ – medium term)
- Organize training programs in non-discrimination and equal treatment for judges and court staff. (HJC, JA – medium term)
- Consider the feasibility of establishing a victim of crime service, applying lessons from EU Member States. (MOJ – medium term)
- Conduct a public campaign to raise awareness on the role of, and right to, a court appointed interpreter. (MOJ – long term)