Serbia Justice Functional Review


Objective, Scope & Structure

“The accession process today is more rigorous and comprehensive than in the past. This reflects the evolution of EU policies as well as lessons learned from previous enlargements. (…) The rule of law is now at the heart of the enlargement process. The new approach, endorsed by the Council in December 2011, means that countries need to tackle issues such as judicial reform (…) early in accession negotiations. This maximizes the time countries have to develop a solid track record of reform implementation, thereby ensuring that reforms are deeply rooted and irreversible. This new approach (…) will shape the Commission’s work with the enlargement countries.”

Enlargement Strategy and Main Challenges 2013-2014, European Commission, Brussels, 2013.

  1. This Functional Review presents a comprehensive assessment of the current functioning of Serbia’s judicial system, along with options and recommendations to inform Serbia’s justice reform initiatives in view of the requirements of Chapter 23 of the Acquis Communautaire. The Functional Review was jointly requested by the European Commission (EC) and Serbian authorities ahead of the commencement of negotiations for Chapter 23 to better inform the negotiation process, and its design and structure were based on extensive consultations with both parties. The Functional Review provides the basis for the Serbian authorities to develop their Chapter 23 Accession Action Plan and to update the existing Action Plan for the implementation of the National Judicial Reform Strategy 2013-2018 (NJRS). In doing so, the Functional Review also presents an objective baseline of current sector performance, which enables Serbia to assess the impact of future justice reform initiatives.1
  2. The Functional Review comprises an external performance assessment and an internal performance assessment. The external performance assessment (Part 1) examines how well the Serbian judicial system serves its citizens in terms of efficiency, quality, and access to justice services. The internal performance assessment (Part 2) examines the inner workings of the system, and how governance and management, financial and human resources, ICT, and infrastructure are managed for service delivery.2 The two assessments highlight different aspects of sector performance and should be read together.3 The Functional Review does not make assessments of Serbia’s compliance with European law and is not for the purpose of providing legal advice.
  3. The structure of the Functional Review follows the indicators set out in the Performance Framework (matrix at Annex 2), and the content is driven by the relevant European benchmarks, standards and references. The Performance Framework was developed in close consultation with Serbian and EC authorities, building on European and international best practices for justice sector performance measurement, and specifically tailored to the Serbian context, including the institutional environment, distinctive Chapter 23 challenges, and the prevailing data environment. The Framework’s matrix outlines:
    1. performance measurement areas (efficiency, quality, access etc.);
    2. performance indicators, against which assessments are made (indicators correspond to sub-headings throughout the Functional Review Report);
    3. relevant Chapter 23 references; and
    4. data sources within the Serbian system.
  4. The Functional Review is sector-wide but focuses primarily on the courts because they are the main vehicle for justice service delivery and the primary institutions of justice in Serbia. The scope includes all types of services and covers litigious and non-litigious aspects of civil, commercial, administrative, and criminal justice. The focus is on the actual implementation and day-to-day functioning of the sector institutions that deliver justice to people, rather than the ‘law on the books’. The scope includes other institutions in the sector to the extent that they enable or impede service delivery by the courts, including: the Ministry of Justice (MOJ)4, the High Judicial Council (HJC), the State Prosecutorial Council (SPC), the courts, the Public Prosecutor Offices (PPOs), the Judicial Academy, the Ombudsperson’s Office, the police, prisons, and justice sector professional organizations (such as the Bar, notaries, bailiffs, and mediators).5 The Functional Review prioritizes aspects within this scope based on data availability, relevance to the achievement of the Acquis, and national policy objectives. The reporting period for the Functional Review was January 1st, 2010, to June 30th, 2014.
  5. A distinct feature of this Review is its emphasis on data and analysis. Assessments draw on a mix of quantitative and qualitative data, including statistical analysis of case management, finance and human resource data, a multi-stakeholder perception survey, an access to justice survey, process maps, legal analysis, a desk review, focus group discussions, workshops and key informant interviews. For each assessment made in the Functional Review, multiple sources are triangulated to present the most objective and realistic picture as possible.6
  6. The recommendations are designed to be actionable and specific with the objective of aligning the performance of the Serbian judiciary with that of EU Member States. Each recommendation notes how its implementation links to the NJRS Action Plan and Chapter 23 requirements. In each case, a ‘main’ recommendation is highlighted, accompanied by a series of practical next steps to implement it. Each step also notes the institution that would be responsible for taking the recommendation forward, as well as the other institutions whose collaboration is necessary for effective implementation. Timeframes are indicated for each step, from short term (12 months), medium term (2-3 years) and long term (5 years), commencing from October 2014 in order to synchronize with the NJRS Action Plan.
  7. The precise prioritization and sequencing of the implementation of recommendations will be made by the Serbian authorities as part of their Chapter 23 Accession Action Plan. Even so, the Functional Review Team was requested to provide an overview list of top priorities, on which progress would be essential to improve performance in line with European benchmarks. This is provided in the following section, Overall Conclusions and Priorities.