Serbia Justice Functional Review
Internal Performance Assessment > Governance and Management
f. Effectiveness of Mechanisms to Govern Integrity and Conflicts of Interest
i. Random Case Assignment
- Serbia’s random case assignment technology works well to reduce predictability in the assignment of individual cases to specific judges within a court and thus prevent ‘judge shopping.’ The system ensures that new cases are distributed equally over the course of the year, and randomly based on an algorithm.643 The distribution of cases is done by the court registry and supervised by the Court President, Court Secretary, or Court Registry Manager.
- However, the software is not available in all courts. It is available through the case management systems of Basic, Higher, Appellate, Commercial, Administrative Courts and the SCC.644 Random case assignment software is not yet available through all Misdemeanor Courts. The Misdemeanor Court in Kikinda developed an IT solution to provide the same functionality, and many Misdemeanor Courts in Vojvodina use this solution. In other Misdemeanor Courts, allocations are still done manually through the registry office, and given the caseloads in these courts the task would be a burdensome and time-consuming. New case management software (SIPRES) will shortly be rolled out to all Misdemeanor Courts which include this functionality.
- Further, not all courts that do have the software use it. One stakeholder estimated that in 2013 only around 60 courts were using the functionality; however this figure could not be verified. So it is unclear why it would not be used in those courts. Reasons may include lack of understanding, lack of training or individualized case management practices.645 Whilst ever the random case allocation is voluntary, such outliers will persist. Court Presidents across all courts should be required to use the software when allocating cases. This would increase consistency in the randomness of allocations, while also enabling the monitoring of data and trends.
- In places were random case assignment software is used, the algorithm is overruled by Court Presidents relatively frequently. This is not necessarily done for collusive purposes but to re-allocate cases to more equitably distribute the workloads, if for example one judge receives many complex cases while another receives many simple ones. Further, the algorithm does not allow for the specialization of case processing, so a Court President wishing to see a particular judge (or small team of judges) specialize in certain case types would need to re-allocate those cases manually.646 Unfortunately, data relating to these overrides are not collected, so further analysis is not possible.
- The random case assignment algorithm could be enhanced once a case weighting methodology is developed. A simple case-weighting methodology and some specialization in case processing, could be incorporated into the algorithm and refine the case allocation process. At that stage, the need to override the random case assignments would be significantly reduced. Overrides could then be monitored closely, and Court Presidents could be fully accountable for their decisions to circumvent the random allocation.
- There is no corresponding technology for allocating files randomly within PPOs. Cases are not assigned electronically; instead, a case assignment logbook is kept. The Prosecutor assigns incoming cases to the first available Deputy Prosecutor based on an alphabetical list, and can re-allocate based on broad discretions.647 This system has advantages in that it caters to case complexity and specialization. However, stakeholders note that there remains a perception that within some offices, cases are assigned based on extrinsic factors. In the medium to longer term, and once related functions are automated in PPOs, a random assignment technology could be considered. This would also improve transparency and accountable in case allocation.
ii. Development and Monitoring of Integrity Plans
- All state institutions, including in the judiciary, are required to develop Integrity Plans by March-April 2013 under the ACA Law. Integrity Plans require each institution to identify its potentially vulnerable points of corruption, assess risks, and apply self-control in the implementation of their competences. Creating an integrity plan is to be done in phases: the institution first conducts an evaluation and risk assessment, then prepares measures to prevent corruption, and implements the plan under the guidance of the ACA.
- To date, most of the courts have not submitted Integrity Plans.648 The HJC planned to develop specific forms for courts to complete and training, but this has not yet been executed. Once shared, an Integrity Plan will need to be developed for each court and approved by the Court President.
- By contrast, the Misdemeanor Courts have been active in developing their Integrity Plans. With the JRGA support, all Misdemeanor Courts and Appellate Misdemeanor Courts met the deadline.649
- Prosecutors have also been forthcoming. The SPC and RPPO have each prepared their Integrity Plans and submitted them to the ACA, as have most PPOs. As of January 2014, only 11 PPOs had not yet submitted a plan. Those PPOs which have yet to submit plans should do so as a priority.
- Once submitted, implementation and monitoring should be prioritized. Since the ACA is not leading this process, the Councils or the SCC/RPPO would need to demonstrate leadership to promote a change of culture of vigilance. The ethics committees of the HJC and the RPPO should start to issue opinions and standards with practical examples of conduct of what is and is not permitted. Further training could be provided to judges, prosecutors, and court staff focusing on the areas of vulnerability and the changes, processes, and behaviors that will be required to maintain vigilance in those areas, as well as training sessions for Court Presidents to share experiences in implementation. If, as the 2013 ACA Court User Survey suggests, petty corruption among court staff is more prevalent in courts than high-end corruption among judges, then public education campaigns could also be implemented across courts and PPOs, with posters and pamphlets to accompany complaint awareness to signal a change in culture.
iii. Rules on Gift-giving
- The formal rules regarding giving gifts to judges and prosecutors are clear. According to the Law on Judges and Law on Prosecutors, acceptance of gifts is contrary to the provisions regulating conflict of interests and can amount to a disciplinary offence. Further, the Law on the ACA also prohibits gifts in connection with discharge of a public office. No official, including judges and prosecutors, may accept a gift whose value exceeds 20 EUR.650 The Law also regulates the procedure for judges, prosecutors, and civil servants651 to reject gifts, the duty to report and maintain records of gifts, and the prohibition against receiving gifts from certain individuals. Yet stakeholders working in the courts reported to the Functional Review team that they are not aware of records being kept on gifts.
- Similarly, the rules ‘on the books’ are quite clear for civil servants. The Law on Civil Servants also prohibits civil servants, which includes staff and temporaries but not volunteers or interns, from accepting a gift or any other services or benefits in connection to the performance of their tasks, except for occasional presents of smaller value. There is some ambiguity about what ‘occasional presents of smaller value’ means. However, if a similar 5 percent standard is applied, and assuming that civil servant salaries average 400 EUR per month, gifts should not exceed 20 EUR. Similarly, a civil servant may not use his or her status as a state authority in order to influence the exercise of his or her rights or rights of people related to them.
- However, gift-giving does occur and stakeholders report it is relatively frequent. In the 2013 ACA Survey of Court Users, 22 percent of court users said they gave ‘small gifts’ at least once, mainly after ‘the job had been done’ as a token of appreciation for the respective ‘service.’ As is common in surveys of this type, this figure is likely to be under-reported due to reluctance among respondents to speak freely of their experience in gift-giving. Further, the value of the term ‘small gifts’ was not defined. The ACA survey results also suggested that gift-giving was more a problem among court staff than among judges and prosecutors, who are likely to use more subtle means of influence.652
- Related to this, asset disclosures are not monitored. Conflict of interest rules require that judges and prosecutors provide asset declarations. However, there is no mechanism in place to check these. This significantly undermines the potential impact of the rules, and also undermines public trust and confidence.
- The HJC and the SPC could do more to foster a culture that rejects gift-giving. More detailed protocols on gift giving are not elaborated into the Council’s internal rules, orders, and procedures of the courts or PPOs. Doing so would raise awareness of the rules and the specific procedures to be followed. This is an area where the HJC in particular could take a more proactive role in the future in supervising court staff’s work. More could also be done by the HJC and the SPC to raise awareness of the rules among the staff and citizens. Judiciaries across Europe and elsewhere use promotional campaigns to raise awareness among court users that it is not acceptable to offer gifts. Specific trainings are also useful to assist court staff to understand the parameters of ethical behavior and the consequences of non-compliance, as well as to coach them on responding to offers of gifts.
iv. Recusals (Exemptions and Exclusions)
- To manage conflicts of interest, the Serbian judiciary has two mechanisms for recusals of judges: exclusions and exemptions. Exclusions require that a judge be disqualified from hearing a case if one of several grounds exists, such as if the judge is a party to the proceeding, a shareholder to a company that is a party, a family member of a party, if the judge had previously participated in the case, and so on.653 Exemptions are more general and apply where circumstances would give rise to doubt the impartiality of the proceeding judge, and the judge may be disqualified where such doubt can be shown. When a party submits a written motion to exclude or exempt a judge, the proceeding judge is required to suspend proceedings, make a statement about the motion, and notify the Court President who has the authority to decide on the merits of the motion based on the information contained in it. Motions are to be decided within three days, sometimes they can be issued immediately and other times rescheduling of hearings is required.
- There is little monitoring or tracking of recusals within the court system. Details are maintained manually by most courts,654 but recorded in AVP by some. They are usually reported to the Higher Court but not to the HJC, the SCC, or in any one system that would enable monitoring or tracking. As a result, it is not possible to measure the extent of the use of recusals, or the circumstances by which they come about.
- Stakeholders report a range of views on the use of exemptions. Some argue that the process of decision-making is not transparent, raising concerns that Court Presidents consider issues beyond what is contained in the exemption motion. Some report that lawyers abuse the applications for exemption as a delaying tactic requiring judges to make statements in frivolous motions, thus prolonging the duration of the case. Other stakeholders report that judges are routinely partial in their dealings with parties, but that parties are reluctant to seek exemptions for fear of retribution. Without better data, the Functional Review team cannot substantiate these claims.
v. Use of Internal Controls
- There are otherwise few internal controls to manage integrity across the judiciary. In the 2014 Multi-Stakeholder Justice Survey, the majority of judges and prosecutors say that some form of internal control exists in judicial system, but a substantial proportion report that it was not present at all. Out of those who reported that internal control existed, only slightly more than half reported that it contributed to integrity of judiciary (see Figure 116).
- However, there appears to be a consensus that further internal control is necessary. In the 2014 Multi-Stakeholder Justice Survey, 86 percent of judges, 89 percent of prosecutors, and 95 percent lawyers agreed that internal control is important for the future strengthening of the integrity of the judicial system. The majority of judges, prosecutors, lawyers, and court users also indicate that governance within the courts should be changed to improve judicial operations.