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Serbia Justice Functional Review

External Performance Assessment > Quality of Justice Services Delivered

e. Quality of Decision-Making in Cases

i. Use of Standardized Judgment Writing Tools

  1. There is no template or common approach to judgment writing. A judgment-writing component is included in the Judicial Academy’s continuing training program for 2014, but the training is general and does not teach a standardized approach. As part of the initial training at the Judicial Academy, trainees receive compulsory training on writing of various types of judgments and other court decisions in civil, non-litigious, enforcement, and criminal cases; and in their final evaluation, they are evaluated on judgment-writing skills by their mentor judges.352 There have also been some individual initiatives by Higher Court judges to create and distribute their preferred templates. Yet no consistent approach has ever been endorsed by the four Appellate Courts, the SCC or the HJC. As a result, each judge drafts his or her judgments differently, often by dictating the judgment following a personally preferred style or individualized template based on personal experience.
  2. There may be considerable value in standardizing judgment writing. Stakeholders, particularly attorneys but including appellate judges, report frustration at the diversity of styles, structure and methodologies applied by judges, as well as the variability in quality seen in judgments. In their view, a more standardized approach – at least to the structure of judgments – would assist readers to follow the judge’s reasoning in any given case.
  3. The absence of a standardized approach to judgment writing has a ripple effect through the system, causing a lack of standardization in other routine documents. For example, there is no standard template for drafting legal submissions, and attorneys adopt their own individual styles.353

ii. Consistency of Decision-Making with the ECHR

  1. Decisions of the ECtHR provide an indication of the quality of justice services in Serbia vis-à-vis the human rights standards outlined in the ECHR. However, assessments against this indicator should be treated with some caution for several reasons.
    1. There is a lengthy lag between a rights violations and its determination by the ECtHR. This is due to several factors, including the time it takes for a violation to exhaust local remedies and the significant backlog of cases in Strasbourg. As a result, performance against this indicator is a good indicator of past performance in ECHR compliance, but may not reflect well on the current quality of justice services.
    2. Data may also be skewed, as some victims of rights violations are more likely to avail themselves of the ECtHR than others. Some interest groups such as unions fund the legal costs of ECtHR complainants, so the kinds of disputes they bring to the court may be over-represented. By contrast, indigent unrepresented defendants who lack the means for legal representation in domestic courts are fairly unlikely to pursue a case in Strasbourg.
  2. The statistics of the ECtHR in Strasbourg suggest that the Serbian justice system is struggling with being in full compliance with the standards of the ECHR. Between 2010 and 2013, the number of cases where Serbia has been found in violation of the right to a fair trial within reasonable time and similar protections under the ECHR has been increasing. Out of a total number of 69 judgments of the ECtHR finding Serbia in breach of the ECHR, 17 percent of violations related to the right to a fair trial and 10 percent to an excessive length of proceedings. 25 percent of violations concerned failures to enforce final court and administrative decisions. Other violations were found for the right to an effective remedy. Serbia has also been sentenced for a lack of effective investigation, and inhuman or degrading treatment.
  1. There also is a noticeable increase in the overall number of Serbian cases pending before the ECtHR. Serbia now has the highest number of pending cases at the ECtHR (11.3 percent of the caseload in 2013). This is only surpassed by far larger countries, such as Russia (16.8 percent), Italy (14.4 percent), and Ukraine (13.3 percent). Since 2011, the number of pending cases has increased from 6,752, to 10,053 in 2012, and to 12,569 in 2013. However, due to an increasing backlog of the ECtHR, the figures on decided applications are significantly lower, starting from 461 in 2011, 1,637 in 2012, and 3,887 in 2013. Almost 97 percent of the decided applications are declared inadmissible or struck out.
  1. Only a small number of applications decided by a judgment resulted in judgments finding at least one violation of articles of the ECHR (8 out of 12 in 2011; 10 out of 39 in 2012; 21 out of 193 in 2013). Among these, it is common for the ECtHR to also find a violation of the right to a fair trial.
  2. There is a noticeable increase in the number of friendly settlements. In 2011, there were 49 friendly settlements; but by 2013, the number of settlements had risen to 679. Reaching a friendly settlement is an effective way in which Serbian authorities can resolve matters without the need for cases to go to hearings.356 The negotiation of friendly settlements is likely to be a useful litigation strategy for the State, given that awards for non-pecuniary damages can be quite high. Friendly settlements are also good for applicants as they prevent further delay in resolving their case and receiving compensation.
  1. Non-compliance tends to be found in a limited number of case types highlighting specific problems. Among the pattern of violations of Article 6, a few currently stand out, most notably complaints surrounding the restructuring of state-owned enterprises and the payment of military allowances. This indicates that non-compliance is not systemic across the board, and that problem areas may be addressed through targeted interventions.

Box 11: Article 6, ECHR

  1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
  2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
  3. Everyone charged with a criminal offence has the following minimum rights:
    1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
    2. to have adequate time and facilities for the preparation of his defense;
    3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
    4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
    5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
  1. Around 5,500 out of 12,569 pending applications alone relate to inconsistent application of the law, a commonly-found type of violation. The 5,500 applications are based on a similar factual scenario, namely the claims of military allowances owed to reservists in 1999, where many reservists remain unpaid, while reservists residing in seven municipalities were paid, allegedly due to executive pressure.358 After examining the merits of the leading case, the ECtHR ordered the Serbian Government to take all appropriate measures to secure non-discriminatory payment of the military allowances in question to all those who are entitled. Non-compliance seems to be driven by fiscal rather than legal considerations.
  2. With approximately 2,400 cases pending in 2012, another commonly found type of violation relates to non-enforcement of the final decisions against socially-owned enterprises. Between 2004 and 2009, the ECtHR rendered a number of judgments359 which found a violation of the applicants' right to a fair trial due to the failure of Serbian authorities to take appropriate measures needed to enforce domestic judgments ordering socially-owned enterprises to pay salary arrears and employment benefits. In 2010, there were approximately 3,570 domestic judgments rendered against socially-owned enterprises in this respect with an aggregate amount of approximately 2.7 billion RSD (costs and interest not included). The Council of Europe’s Committee of Ministers therefore decided to monitor the implementation of general measures to address this particular issue.360 It asked the Serbian authorities to establish the exact number of unenforced decisions for this type of cases. In March 2012, the Serbian Government introduced a regulation in order to register the final decisions ordering state-owned companies to pay employment arrears resulting in approximately 55,000 applications being filed as of September 2012. This scale indicates that the underlying problem may be primarily fiscal and economic rather than rooted in dysfunctions of the judicial system.
  3. There are also complaints regarding the excessive length of other types of proceedings, but these are less numerous. In 2010, there were approximately 294 applications pending before the ECtHR concerning the excessive length of other types of proceedings. Excessive length of proceedings affects civil cases more than criminal cases. Examples of case types include child custody cases where excessive delay can entrench an existing situation and thus violate rights.361
  4. The Serbian authorities have been invited to implement a range of general measures, and significant progress has been made on many legislative measures. The Constitution has been amended to enshrine the right to a fair trial. Legislative measures have included amendments to the Family Law to provide that disputes involving children are resolved urgently. Laws on mediation have been enacted. Laws on civil procedure and related regulations have been amended to improve service of court documents.
  5. The implementation of non-legislative measures has been more mixed. Efforts to reduce backlogs continue, but a case-weighting system has not been introduced. The court network has been reformed and an automatic case processing (AVP) in Serbian courts is underway but the completion of its IT network remains. The introduction of continued training as a requirement for appointments of judges has been introduced but continuing training is not comprehensive.
  6. Reforms to implement general measures will continue, though their impact on effective ECHR compliance is unknown. The baseline and targets for these reforms have not been measured, and the impacts have not been monitored. While the intent of legal reforms is good, much will depend on implementation, and while the impacts are likely positive, it is difficult to tell the extent to which they are contributing to better compliance with the reasonable time requirement.
  7. As of January 2014, citizens in Serbia are now able to submit a request for protection of the right to trial within a reasonable period of time to courts of ordinary jurisdiction. Recent amendments to the Law on the Organization of the Courts362 introduced this new mechanism for protection of human rights into the Serbian legal system. According to the new rules, the Courts of Second Instance can now determine if there has been a violation of the right to trial within a reasonable time, award compensation, and set timeframes for first instance courts to deliver judgments. Unsatisfied parties can ultimately appeal to the SCC.363
  1. At first glance, the new legislation gives the impression of aggressive reform – an initiative to ‘crack down on slow judges’ and to improve efficiency in case processing. The mechanism is based on similar reforms in Italy (Pinto Law)364 that are also applied in Croatia, Romania and Slovenia. In Serbia, stakeholders report that the recent reform is producing an atmosphere of ‘crackdown’ and that regular reporting of backlogs and trials within a reasonable period of time are putting pressure on judges to resolve older cases. Whether this produces the intended result, however, is not yet certain.
  2. Based on experience elsewhere in Europe, Pinto-style proceedings have shown mixed results. In Italy, rather than speeding up court proceedings and lowering the number of applications before the ECtHR, it resulted in a caseload increase of already burdened domestic courts, late payment of compensations, and an increase in the length of proceedings.365 It temporarily reduced the number of complaints to the ECtHR, because complaints had further avenues to exhaust local remedies. However, by the end of 2011, approximately 5,000 out of 14,500 pending applications before the ECtHR against Italy were related to the so-called ‘Pinto proceedings’.366 Furthermore, in 2011, the Italian Government spent €200 million as a pecuniary compensation to injured parties, an amount which could have been used to conduct necessary institutional reforms instead and improve the efficiency of the judicial system as whole.367 Pinto-style reforms appear to work well in systems which, in general, function well and where the violation of the right to trial within a reasonable time is an exceptional circumstance attributable to improper administration of an individual case.368 Remedies such as a motion for setting a deadline or a supervisory appeal also appear to work better than pecuniary compensation. However, if a judiciary suffers from large and generalized backlogs in courts, these proceedings may provide too blunt an instrument of reform. In such conditions, the remedy has the effect of allowing a party to ‘jump the queue’ (either directly by ordering the case to be put on a priority list or indirectly by setting deadlines which could, due to the existing backlogs, not be complied with unless the judge prioritizes that case over others). This however jeopardizes the right to equality before the law and results in other litigants having to wait longer for their turn.
  3. There is a risk that the recent reform in Serbia may produce unintended results, similar to Italy’s experience. Stakeholders reported to the Review team that this dual system has created confusion among lawyers and parties and has opened new avenues for procedural abuses by attorneys seeking to take advantage of the bifurcation to for tactical advantage. The dual system also artificially inflates case numbers and workloads, and some suggest it is already providing an excuse for higher courts to generate backlogs and slow down resolution times. It is too early for the impact of the reforms to be assessed, but they should be closely monitored to measure their results, and to prevent them becoming a distraction to the courts’ core function of resolving parties’ disputes.

iii. Deferred Prosecution as an Alternative Sanction

  1. The use of deferred prosecution is becoming an increasingly common option for alternative sanction in criminal cases.369 In a 2012 study, deferred prosecution was applied mostly for crimes such as endangering public transport, non-payment of alimony, and the destruction and damage to the property of another.370 In nearly two-thirds of deferred prosecution cases (63.5 percent), the sanction imposed was the payment of money to the benefit of a humanitarian organization, fund, or public institution. In about one-quarter (23.7 percent) of deferred prosecution cases, the sanction was to rectify the detrimental consequence caused by the commission of the criminal offence or to indemnify the damage caused. Less common was the payment of alimony in 5 percent of cases, participation in psych-social treatment in only 1.7 percent of cases, and community service in only 1.3 percent of cases.

Box 12: How Does Deferred Prosecution Work in Practice in Serbia?

Often referred to as ‘the principle of opportunity’, the public prosecutor is empowered to defer the prosecution of certain types of cases* and thus divert them out of the court system by offering suspects alternative conditions in lieu of a sentence. Conditions may include one or more of the following:

    1. rectify the detrimental consequence caused by the commission of the criminal offence or indemnify the damage caused;
    2. pay a certain amount of money to the benefit of a humanitarian organization, fund or public institution;
    3. perform certain community service or humanitarian work;
    4. fulfil maintenance obligations which have fallen due;
    5. submit to an alcohol or drug treatment program;
    6. submit to psycho-social treatment to address the causes of violent conduct; or
    7. fulfil an obligation determined by a final court decision, or observe a restriction determined by a final court decision.

In practice, the prosecutor halts the prosecution for a specific time (which may not exceed one year) during which time the suspect must fulfil the obligation/s undertaken. Should the suspect not comply, the prosecution automatically re-commences with little further paperwork required. Competence for oversight of the fulfilment of obligations is performed by the Commissioner with the authority to execute criminal sanctions, in accordance with a regulation issued by the relevant minister responsible for the judiciary.

* The prosecutor may defer criminal prosecution for offences punishable by a fine or a term of imprisonment of up to five years. Deferred prosecution is not available in certain types of cases, such as family violence.

  1. Deferred prosecution potentially offers a range of benefits for quality sentencing. It allows the offender to remain in the community and avoids a break in family ties and obligations, while the offender rectifies their wrongdoing to the victim and/or contributes to the community. By enabling forms of treatment, such as psycho-social, drug or alcohol treatment, it seeks to deal with the root causes of offending and promote crime prevention and rehabilitation and reintegration of the defendant into the community.371 However, the notion is perceived by some as a ‘privilege’ – a way of paying off a sentence or even paying off the State.
  2. Deferred prosecution has not yet fulfilled its potential because the Commissioner overseeing these cases lacks the requisite capacity. In particular, the Commissioner lacked the geographic reach, with only 15 offices across the 25 Higher Court regions. As a result, the application of deferred prosecution is not consistent throughout the territory. In some places, defendants may access it, while in other places they are denied simply because they reside in a place that has no Commissioner’s Office (or, perhaps worse, some defendants may receive it but the sanction is not monitored or enforced). Further, the Commissioner lacked the institutional mechanisms and staff to monitor effectively the implementation of sanctions. This explains why donations (which are easy to administer) are a high proportion of sanctions, whereas psycho-social treatment and community service has been ordered rarely even though these are among the conditions that may reap the most practical benefit for the rehabilitation and reintegration of the defendant into society. With the introduction of the new CPC and the Law on Probation, the Commissioner’s role should be enhanced with offices around the country. This may increase the use of deferred prosecution, particularly in cases of community service and treatment. Funding is likely to be required to enable the Commission to fulfill this important role, and this should be provided.
  3. Nonetheless, some local-level arrangements are already working well. A number of Basic Courts and Basic Prosecutor Offices have taken the initiative to work together with local institutions, such as hospitals, treatment centers and charities, to develop MOUs and elaborate protocols for the implementation by defendants of the agreed undertakings.372 In Vrsac for example, the Basic Prosecutor’s Office reported to the Review team that these MOUs work well for two reasons: first, their local nature makes it easy for the bodies to find practical ways to work together to ease any bottlenecks. Second, the MOUs are signed by the heads of local organizations, such as the chief of a local hospital and the President of a Basic Court, which secures effective cooperation.
  4. Looking forward, deferred prosecution arrangements would benefit from more support within the judicial system. The increased capacity of the commissioner should help to enable prosecutors to offer a more diverse range of conditions. Further, the RPPO could issue more detailed instructions to encourage the use of these powers in certain types of cases or with certain types of suspects (such as youth or marginalized groups), and to extend its use beyond the payment of money to more proactive rehabilitative efforts. Increasing public awareness of deferred prosecution would also reduce the misconceptions of it as a ‘privilege’ while also highlighting the importance of restitution to victims and of rehabilitation and reintegration of defendants in the interests of the community.
  5. Unfortunately, deferred prosecution and plea bargaining do not exist in Misdemeanor Courts because prosecutors are rarely work on misdemeanor cases. Yet the approach could arguably do most good with these types of minor cases, particularly where the prospects for early remorse and rehabilitation of the offender are high. In their absence, alternative sanctions should be strengthened in Misdemeanor Courts to provide Misdemeanor judges with the flexibility to make orders that increase the prospect for rehabilitation and reintegration.373

iv. Plea Bargaining

  1. Plea bargaining agreements enable prosecutors in Serbia to negotiate charges and sentences in exchange for a guilty plea by the defendant. The plea bargain has been touted as a tool that enables the effective and efficient disposal of cases in a manner that reduces the burden on courts and prosecutors, freeing up their time and resources which can then be devoted to contested cases.
  2. It is still too early to assess the effectiveness of plea bargaining in Serbia. The concept was introduced via amendments to the CPC in 2009 and was augmented via further amendments to the CPC in 2013. The rollout of the new CPC will enable such assessments in the coming years.
  3. Some stakeholders already noted that the plea bargaining process could be more effective. Lawyers argued that deputy prosecutors lack autonomy to make decisions, and that their internal approval processes prolong the negotiation process. Some prosecutors have also noted that their internal approvals process can be cumbersome at times, but that recent instruction from the RPPO will assist in future cases. Meanwhile, other prosecutors argue that plea bargaining will never reach its potential until sentencing policies are more stringent.374 According to prosecutors, lenient sentences, including sentences that go below mandatory minimums, reduce their ‘bargaining chips’ and undermine any leverage they may have to negotiate an efficient and effective outcome.
  4. Data are not available on the number of plea bargains as a percentage of criminal cases. Data collection in this area would be useful to enable the intended effects of the reform to be measured, and for future improvements to be identified.
  5. What is already clear is that plea agreements have become increasingly common in Serbia. In 2012, the Higher and Basic Public Prosecutor, the Prosecutor's Office Organized Crime, and War Crimes Prosecutor concluded a plea agreement with a total of 869 defendants (an increase of 100 percent compared with 2011). Of the total number of signed plea agreements in 2012, the court adopted the 706 agreements, an increase of 97.20 percent compared with 2011, with the rest presumably pending with the courts. With the entry into force of the new CPC in October 2013, plea bargaining is further increasing. According to statistical data from the RPPO, the number of plea agreements signed in February 2014 was 100 more than those signed in January 2014, suggesting that the trend towards using plea bargaining is getting stronger.
  6. By contrast, there has been negligible uptake of plea agreements in Misdemeanor Courts. In the three years since the reforms were introduced under the new Misdemeanor Law, only one plea agreement has been signed in Vojvodina in November 2013. This is unfortunate, when plea bargains could be particularly useful in resolving cases of tax and customs violations. In August 2014, amendments were introduced to encourage plea bargaining in misdemeanor cases, and it is hoped that uptake will improve.375
  7. To enable assessments of effectiveness, sufficient data on plea bargains should be collected and monitored. Plea agreements should be monitored and tracked by the number offered and signed agreements, the criminal offence and location, the decision by the court to adopt or reject, and most importantly the reasons for any rejections. Over time, such data will enable a better analysis of its effectiveness. The views of key stakeholders in the process should also be sought to fine-tune implementation.

v. Quality in Sentencing

  1. Several stakeholders reported that the quality of justice is undermined by lenient or unpredictable decision-making. No quantitative data were put forward to substantiate this view, and the Review Team is not aware that such data are collected within the judicial system.
  2. Criminal laws frequently include broad sentencing ranges, allowing judges to exercise wide discretions. The law provides mandatory minimums for certain offenses, but stakeholders advise that they are not mandatory in practice. For example, in several corruption-related cases in Misdemeanor in Courts 2013, sentences were issues below the mandatory minimum.
  3. Several prosecutors argue that judges routinely err on the lenient side of the sentencing range. Some argue that leniency is a response to undue influence or corruption. Others suggest that poor infrastructure and a lack of security at courthouses have a chilling effect on judges and prosecutors alike.376
  4. Lawyers, on the other hand, argue that the problem is not so much leniency as it is unpredictability. According to this line of reasoning, similar types of defendants in similar types of cases may receive varying sentences, some far more lenient than others, and the actual sentence imposed is subject to the whim of the presiding judge.
  5. Stakeholders also highlight that non-custodial sentences are infrequent, erratic and inadequately monitored and enforced. The lack of non-custodial options is due in part to the lack of geographic reach and institutional mechanisms and capacity of the Commissioner responsible.377 This is unfortunate, given the chronic problems of overcrowding in Serbian prisons.378 The Commissioner will also require more flexible staffing arrangements to ensure that within each court area it is able to service small urban centers and rural communities.
  6. Perceptions of leniency and unpredictability also drive up criminal appeals. Appeals against sentencing are far more common than appeals against conviction. The RPPO instructs prosecutors to appeal against lenient sentences, which contributes to a relatively high rate of prosecution-initiated appeals. Meanwhile, lawyers report that they advise their clients to ‘throw the dice’ and appeal decisions ‘because you never know how the Appellate Court will respond’.
  7. Looking forward, prosecutors could play a more constructive role in recommending sentences to judges. In advance justice systems, it is common for the prosecution service to compile information on sentencing practices and trends, which prosecutors then use to inform their sentencing recommendations. This is a ‘soft’ but often effective way to mold more consistent sentencing practice over time, and are often relied upon, formally and informally, by judges and other stakeholders. A simple method is to produce summary tables, which note the sentences that courts have imposed in certain types of cases in recent years, as well as key mitigating or aggravating circumstances of particular cases. Over time, such tables provide rich detail and trends, which nuance broad sentencing ranges. Sentencing tables can become useful tools for prosecutors in the process of considering sentences, and something that the RPPO could consider developing.
  8. More could also be done to promote alternative sentencing, including probation, community service work, home detention and psycho-social treatment. As discussed above in the section on deferred prosecution, the rehabilitation and reintegration prospects of these types of sentencing arrangements are promising, and arrangements for deferred prosecution could be applied by analogy to alternative sentencing to improve the overall quality of sentencing by the Serbian judiciary. Further, among those who view community work is unattractive, its prospect may increase the enforcement of financial penalties. The passage of by-laws and regulations on these topics, accompanied with training, would assist the judiciary to use alternative sanctions more often.
  9. In Misdemeanor Courts in particular, alternative sanctions should be used far more commonly than they are to promote rehabilitation for minor offences. Recent legislative amendments have introduced Misdemeanor Orders, though they have only been used for fines to date. It may be possible to apply this new instrument for broader types of sanctions to improve the appropriateness of sentencing in misdemeanor cases.