Serbia Justice Functional Review
External Performance Assessment > Quality of Justice Services Delivered
- As outlined in the Performance Framework, the quality of service delivery covers a range of dimensions ranging from quality of legislation to quality in case processing, decision-making, and appeals. The integrity of the system is also a dimension of quality in the eyes of users. Poor quality has significant implications for efficiency of service delivery as well as for the access to justice services.
- The poor quality of legislation in Serbia causes a range of problems for the courts. Lack of precision in legislative drafting creates ambiguity which is then exploited by parties. Overlapping and conflicting laws cause inconsistency of practice, while gaps in the law leave judges with little guidance. In all, 21 percent of judges and 19 percent of lawyers report poor quality legislation as the main reason for the poor quality of court services. Only 13 percent of judges and prosecutors considered Serbian laws to be fair and objective.
- Deficiencies in the policymaking and legislative process perpetuate these problems. There has been a proliferation of new legislation in recent years, often developed without policy analysis, and with limited analysis or buy-in from the stakeholders responsible for their implementation. Ad hoc working groups are convened by the MOJ to consider and draft each new law, and their organizational methods are haphazard. There are too many working groups, and the deliberative process is time-consuming without producing the requisite quality of drafts. Working groups tend to debate concepts rather than conduct analysis based on policy criteria, and they tend not to rely on data to inform decision-making. They do not sufficiently consider the financial and operational implications of proposed legislation, as evidenced by a lack of policy analyses or fiscal impact analyses. Consultation processes are perfunctory. Legislation is routinely passed by the National Assembly under emergency procedures.
- Following the enactment of new legislation, there has been limited outreach and training to embed new behaviors. In recent years, many laws have been ‘stillborn’, unable to be effectively implemented and requiring a new working group to start over again. This creates a constant and unproductive ‘churn’ of reform. Professionals have little time to apply the new legislation before they are revised. Many judges stall their decisions or continue to apply old legislation while waiting for appellate courts to provide guidance on new legislation. There is also evidence of reform fatigue, which is concerning at the outset of the Chapter 23 process. Legislative reform will continue through the accession process, but the quality of the working group process should be enhanced to prevent the Chapter 23 accreditation process from becoming a merely box-ticking exercise.
- When disputes arise, the application of the law is inconsistent across the country. More than 80 percent of judges, prosecutors and lawyers express concerns about inconsistent or selective interpretation of laws and inconsistent jurisprudence. Process Maps highlight that the ‘law in practice’ differs from the ‘law on the books’ in certain cases and at certain locations.
- Current arrangements for case processing present several challenges in terms of quality. The system lacks a standardized approach to routine aspects of case processing. There are no checklists, standardized forms or templates for routine aspects of case processing, nor is there a consistent approach to drafting routine documents, such as legal submissions, orders, or judgments. Meanwhile, there are few examples of specialized case processing for the types of cases that often warrant a tailored approach. Certain types of cases, such as small claims, complex fraud and gender-based violence, can tend to get ‘stuck’ in the system because they lack specialized case processing practices.
- In criminal cases, the quality of decision-making by judges and prosecutors varies. Some innovations are showing promise, including the use by prosecutors of deferred prosecution322 and plea bargaining. In deferred prosecution cases, arrangements to implement and monitor sanctions remain weak, causing prosecutors to rely disproportionately on cash payments as sanctions rather than more proactive rehabilitative measures, such as community work or psycho-social treatment. Monitoring is also inconsistently applied across the territory, largely due to the limited geographic reach of the Commissioner, undermining the principle of equality before the law. Plea bargaining procedures could be simplified by giving greater autonomy to Deputy Prosecutors. Sentencing appears inconsistent, and many stakeholders report that it is overly lenient, and prosecutors could play a more constructive role in compiling data on sentencing practices and trends and recommending sentences accordingly. Alternative sanctions could be strengthened by supporting the arrangements to implement and monitor sanctions. Alternative sanctions should be particularly encouraged in Misdemeanor Courts, where deferred prosecution and plea bargaining have only recently been introduced and where the prospects for rehabilitation for minor offenses is high.323
- More broadly, the Serbian judicial system struggles to fully comply with ECHR requirements, as evidenced by the large caseloads in Strasbourg. Non-compliance tends to be found in a limited number of case types, highlighting specific problems relating to inconsistent application of the law and non-enforcement of the final decisions against state-owned enterprises. It thus appears that the bulk of Serbia’s non-compliance relates to financial complaints against public entities, rather than structural problems in the judicial system. Friendly settlements offer some solution here. In an attempt to comply with the ECHR right to trial within a reasonable time, recent procedural reforms now enable parties to pursue a separate cause of action for delayed proceedings. These reforms are well-intentioned but run a high risk of producing unintended, or even perverse, consequences. Their implementation should be monitored closely and adjustments may be required.
- he appeals system is at the heart of Serbia’s problems in terms of quality of decision-making. Appeal rates are very high on average, as are reversal rates324 on appeal. Rates also vary markedly across court types, case types, and court locations. Without plausible explanation, some courts exhibit appeal rates and reversal rates that are double those of the court adjacent to it. Appeals from Basic Courts to Higher Courts (known as small appellation) are not well monitored in the system and, upon analysis, are particularly alarming. The perceived unfairness of the system, combined with its lack of uniformity and consistency, encourages court users to appeal. Attorney incentives may also play a hand in driving up appeals. At the same time, levels of trust in the appellate system among court users are low. On a positive note, recent procedural amendments to reduce successive appeals (known as the ‘recycling’ of cases) seem to be working. Nonetheless, appellate judges (notwithstanding their lighter caseloads) continue to remand cases back to the lower jurisdiction for re-trial more often than they are required to, rather than substituting their own judgment. Excessive remands duplicate workloads, inflate case numbers and perpetuate inconsistent practices by failing to provide adequate guidance to lower courts. The SCC plans to improve uniformity in the application of the law through a range of measures, including Certification Commissions. These efforts should be prioritized and augmented with a suite of basic quality-enhancing measures, which together could reduce appeal rates over time.
- Meanwhile, corruption remains a challenge for the Serbian judiciary. Serbia lags EU Member States and neighboring countries on all comparative indices of perceived corruption in the judiciary. Court users admit that they engage in corruption to advance their cases.325 Bribery of court staff appears to be more common than bribery of judges, who likely rely on more subtle means. In addition to bribes, at least 19 percent of users report ‘pulling strings’ to influence the courts. Such informal means are more often used to affect the procedure rather than the outcome, suggesting that improvements in transparency and efficiency in case processing would reduce opportunities for malfeasance. Gift-giving is also common and goes largely unchecked. Surveys indicate that the perceived prevalence of corruption is declining across the system However, in Misdemeanor Courts, public trust and confidence is falling.
- Perceptions of judicial independence in Serbia remain low. A significant portion of judges (25 percent) and prosecutors (33 percent) report that the judicial system is not independent, compared with 50 percent for the public and business sector, and 56 percent of lawyers. The same view is reflected in Serbia’s poor rankings in terms of judicial independence on a range of global indices. Notably, perceptions of judicial independence have worsened since 2009, which reduces the credibility of the system and users’ trust and confidence in it.