Serbia Justice Functional Review

Summary with Recommendations

a. Governance and Management

There is not a single management entity in the Serbian justice system able to substantiate how the system actually performs or use data to identify areas for performance improvement.
Effective management of the judicial system is hindered by difficulties in measuring system performance. Data are scattered across fragmented information systems with gaps, overlaps, and inconsistencies. Data collection tends to be manual, which absorbs a lot of time and staff resources and is prone to errors. Reports are not often tailored to management needs, and so do not adequately inform decision-making. Analytical capacity across the sector is inadequate, and so the foundation for management decisions remains weak. There is not a single management entity in the system able to substantiate how the system actually performs or use data to identify areas for performance improvement. The system lacks a unified vision of what good performance should look like, or a performance framework around which stakeholders unite to set goals and targets. As a result, it is very difficult for the system to manage for results.
Effectiveness in strategic management is limited. The adoption of the NJRS 2013-2018 and its Action Plan represents a significant milestone for the Serbian judiciary. Their content is comprehensive, and progress is being made against several milestones. However, the Action Plan may be overly ambitious and it will be difficult to implement effectively within the five-year timeframe. The NJRS also focuses heavily on enacting legislation more than ensuring the effective implementation of existing and new legislation to change behavior on the ground. Yet the latter is the more important task and it requires an organizational and managerial approach more than a legal one. The NJRS and Action Plan also lack a clear focus on how reforms will affect court users, who should be the ultimate beneficiaries of the reforms. A Strategy Implementation Commission exists, but lacks a work plan and a secretariat and is not driving reform implementation. In the resulting vacuum, it is not clear among the many fragmented stakeholders who is leading the system’s reform effort or driving for performance improvement. At this rate, at best by 2018 Serbia may have enacted relevant legislation but behaviors will not have changed and performance will not have improved on the ground.
It will be essential to adequately prepare the Councils for their new functions by the end of 2015.
A range of key governance and management functions are currently being transferred between various bodies. In the past, these functions were almost entirely entrusted to the MOJ. In the somewhat poorly sequenced and inconsistently implemented transition towards more responsibility for the HJC and SPC, some fragmentation, overlaps and redundancies have occurred and impeded the effective management of system performance. Moving towards the full transition of responsibilities, it will be essential to adequately prepare the Councils for their new functions by the end of 2015.
Limited management capacity in the Councils hinders their ability to meet the challenges ahead. Each Council has established an organizational plan and taken steps to implement it. Each is able to administer only their most basic requirements. The Administrative Office of the HJC is already sizeable, but many positions are held by junior clerical staff and lawyers who see their roles in narrow terms. The Councils lack managerial capacities to drive performance improvements across the sector. For example, neither institution currently has a system to evaluate or re-engineer work processes, even though such work will be critical to improving system productivity.
The internal organization within courts needs to be improved if the system is to reach and sustain higher levels of performance. To date, the Councils have undertaken little work to assess whether the internal organization of each court or PPO is optimal. No analysis has been conducted on how organizational variations affect productivity or other aspects of performance. The Councils do not carry out process re-engineering to produce high-quality outputs more rapidly, with less effort, and at lower costs. The Court Book of Rules provides extensive guidance, but it is outmoded. Current efforts to update the Book of Rules are focused narrowly on the minimum requirements to comply with the new procedural codes, suggesting that reformers are yet to appreciate the significant benefits to be reaped by simplifying and modernizing processes. Individual Court Presidents use their own systems based on personal initiative or with the support of donors. A simple case-weighting system would assist to equalize caseloads and manage workloads, but much can be done in the meantime through effective monitoring of data from existing systems.
Greater use of managerial reports from the various case management systems, in particular the analysis of Ageing Lists, would assist greatly.
Inside each court, the managerial abilities of Court Presidents are pivotal to success. Stakeholders report that the performance of an individual court depends largely on its Court President’s enthusiasm and willingness to address management issues. However, most Court Presidents have received no training on management and few incentives exist to encourage a modern and proactive approach to management. Courts lack specialized staff to assist in management tasks and often lack basic management tools. Greater use of managerial reports from the various case management systems, in particular the analysis of Ageing Lists, would assist greatly. The higher performing Court Presidents each seem to have cultivated in an ad hoc manner a small managerial team of skilled mid-level professionals who support him/her to run the court. This model seems to work well and could be replicated. Court Presidents also rarely meet with each other – they could benefit greatly from colloquia aimed at sharing information, generating ideas and replicating innovations.
To enable this transformation, the resource mix must favor spending on ICT, infrastructure, training and innovation, while reducing spending on the large wage bill, particularly on judges and low-skilled ancillary staff.
A core task for governance and management bodies is to ensure the appropriate mix of system resources to enable performance. In Serbia, neither the MOJ nor the Councils have developed the capacity to consider and program resources jointly. This has led to a resource mix that is currently inadequate to bring the system in compliance with EU accession requirements. Continued fragmentation exacerbates this challenge resulting in suboptimal coordination and management of resources, as well as resource planning. When there is a common view, it reveals a strong bias toward adding judges and assistants, while the provision for much-needed provision for other resources is not sufficiently prioritized. To enable transformation, the resource mix must favor spending on ICT, infrastructure, training and innovation, while reducing spending on the large wage bill, particularly on judges and low-skilled ancillary staff. This will require a series of calibrated decisions by the governance and management bodies.
The mechanisms to govern integrity and conflicts of interest are not fully able to address a perceived lack of integrity in the judicial system. Serbia’s random case assignment technology works well to reduce predictability in the assignment of individual cases to specific judges. However, not all courts use the functionality, and those Court Presidents who do use it overrule the system relatively frequently. There is no corresponding technology for allocating files randomly within PPOs. Integrity Plans have been prepared only for some parts of the judiciary. Formal rules on gift-giving to judges, prosecutors, and staff are clear. Yet gift-giving remains prevalent. Complaints are numerous, but grievance redress is scarce. Lessons learned from complaints do not systematically feed these into reform processes.

Recommendations and Next Steps

Recommendation 23:
Clearly define the governance structure, organization and goals of the Councils and enhance their management capacities to carry out their current responsibilities and prepare for the transition of additional functions.⁶⁶ Because of the short time remaining before the scheduled transfer of these functions on 1 January 2016, many of the recommendations will require prompt implementation. Costs for these items are relatively low, with ongoing costs if a General Manager is hired.

Complete the Councils’ definitions of their working arrangements and internal rules; create subcommittees or other means of allocating members’ responsibilities. (HJC, SPC – short term)
Amend the Constitution and relevant legislation in line with Venice Commission and CCJE recommendations to enshrine Council and court independence, including regarding appointments and promotions within the judicial system.⁶⁷ In doing so, consider also amending rules on retiring the Council en masse every five years, replacing them with rotational elections that assist the retention of corporate memory and momentum. (MOJ, HJC, SPC, Assembly – medium term)
Consider adding a General Manager to each Council to provide managerial oversight, based on a job description that requires prior management experience. (HJC, SPC – medium term)

Recommendation 24:
Create an ongoing strategic and operational planning function in the judiciary to collect and analyze data and plan process improvements.⁶⁸ The CCJE specifies that the goal of data collection should be to evaluate justice in its wider context,⁶⁹ and the design of data collection procedures, evaluation of results, their dissemination as feedback, monitoring, and follow-up procedures should reside in an independent institution within the judiciary.⁷⁰ Most of these recommendations should be completed in the short term to prepare for transfer of responsibilities from the MOJ. The data gathering and reporting, strategic and operational planning functions will develop over the medium term. The creation of capacity to fulfill these functions will require ongoing and potentially expensive staff costs.

Define the Strategy Implementation Commission’s work plan. (Commission – short term)
Adapt the Functional Review’s Performance Framework into a streamlined dashboard-style framework to monitor system performance, with a small number (maximum of 10) of key performance indicators most likely to drive performance enhancements. (Commission, MOJ – medium term)
Consider revising the NJRS Action Plan to increase the focus on the effective rollout and implementation of a smaller number of reforms most likely to improve system performance from the perspective of court users. Identify measurable targets. Monitor and document results, especially in the efficiency area. (MOJ, HJC, SPC, Commission – short term)
Require all institutions to provide brief and frequent updates on progress against targets. Communicate to stakeholders the baseline results, initiatives and changes in outcomes. (SCC, HJC, SPC – short term)

Recommendation 25:
Bolster the sector’s capacity to systematically analyze workloads and determine the efficient resource mix to achieve policy objectives.71 Adopt a simple case weighting methodology.⁷² Adding judges and staff to address performance issues is ineffective without a more rigorous evaluation of system needs. These activities should begin in the short term and would be ongoing.

Analyze existing caseloads based on managerial reports in the case management systems. Transfer files from busier courts to neighboring less busy courts, when appropriate and preferably during the early phases of case processing. (SCC – medium term)
Collect and analyze data about when and why random case assignments are overruled. Supplement data from random case assignments with analytic reports from case management systems to equalize the distribution of caseloads by case type and age. (HJC, SCC – short term)
Finalize a simplified case weighting methodology, applying lessons from the USAID SPP pilot. (HJC, SCC – medium term)
Refine the weighting of cases over time to continually improve the allocation of resources to meet needs (HJC – long term)
Create a planning, analytic, and statistics unit within each Council, with skilled staff who are capable of collecting and analyzing data about court performance. Task this unit to undertake planning and policy analysis functions focusing on the key performance areas. (HJC, SPC – short term)
Work with budget and management staff to consider and evaluate relative costs/benefits of proposals, analyze trends, develop ‘what-if’ scenarios and assess optimum resource mix. Provide advice to management on reform proposals. (HJC, SPC – medium term)

Recommendation 26:
Supplement statistics from the automated systems with periodic user surveys.⁷³ This is a best practice noted by the EC, CEPEJ and the International Framework for Court Excellence and an important source of information for the judicial system. This measure is not inherently costly although some technical assistance may be needed to develop remedies and programs.

Develop a court user survey, building on lessons from the Multi-Stakeholder Justice Survey. Finance the surveys through the HJC and SPC budgets. (HJC, SPC – medium term)
Conduct periodic open and/or focus group discussions with users at the local level. Develop exit questionnaires for court users. Consider results in the formulation of policies. (HJC – medium term)

Recommendation 27:
Re-engineer and streamline administrative processes in the courts and PPOs.⁷⁴ Re-engineering can result in more efficient and effective remedies for users, and reduced burden on judges and staff without sacrificing quality. Some tasks should be short term, but the overall effort will be ongoing. Once the analytical unit is established, ongoing costs will be minimal.

Expand significantly the initiative to revise the Court Book of Rules. Identify opportunities to re-engineer and streamline processes, not only to align with recent legislative reforms but more broadly to improve efficiency and quality of processes. (MOJ – medium term)
Establish a working group (comprising business process experts, judges and staff) to consider areas where re-engineering of processes would provide the greatest benefit. (HJC, Courts – short term)
Facilitate colloquia for Court Presidents to discuss attempts to innovate processes, to share challenges and lessons and replications. (HJC, SPC in collaboration with MOJ, Court Presidents for local meetings – short term)

Recommendation 28:
Reduce opportunities for conflicts of interest to arise. Fully implement the plan of the Complaints Handling Working Group and strengthen dissemination.⁷⁵ Offering avenues for court users to complain can be made quickly, with analysis in the medium term. There will be moderate costs for creating the web presence.

Require that all Court Presidents use the existing random case assignment software in allocating cases. Require Court Presidents to report on instances when the random assignment is overruled, including the rationale for reach decision. Monitor reports. (SCC – short term)
Create fields in AVP to collect data on the exclusions and exemptions of relevant persons (i.e. judges, prosecutors, lay judges, expert witnesses etc.) from cases. Require that court staff enter data on exclusions and exemptions and that Court Presidents monitor trends. (HJC/SCC – medium term)
Conduct a large-scale public information campaign to enhance public education on the scope and methods of both complaint and disciplinary procedures. (HJC – short term)
Link the outcome of complaints processes to evaluation, discipline and promotion systems for judges and prosecutors. (HJC, SPC – medium term)
Provide training for Court Presidents on their key role in complaints handling. Enforce disciplinary proceedings against Court Presidents who do not address complaints lodged or implement findings made. (HJC – medium term)

Recommendation 29:
Disseminate information about system performance to target audiences. Improving public awareness would enhance public trust and confidence, combat persistent negative reports about the judiciary and demonstrate improvements in service delivery in line with Chapter 23.⁷⁶ Costs are relatively low.

Improve analytic content of SCC Annual Reports and include summaries in lay formats. Accompany Annual Reports with downloadable spreadsheets of system data for the benefit of analysts and researchers. Maintain email distribution lists for more frequent updates of progress. (SCC, HJC – medium term)
Provide more detailed and disaggregated data in the annual reports of the prosecution service. (RPPO – medium term)
Develop a communication strategy to explain the role and work of the judiciary and the implementation of the NJRS, to address the perception gap between the general public and court users. (MOJ – short term)
Provide summary updates of recent reforms and their implications for court users and inform target audiences of proposed reforms using lay formats. (MOJ, Councils, SCC – medium term)