Serbia Justice Functional Review
External Performance Assessment > Efficiency in the Delivery of Justice Services
- System efficiency is a significant challenge facing the Serbian judiciary but is improving in some areas.
- Production and productivity in courts has improved over the last three years, but more should be done to address pockets of under-performance. Clearance rates rose and are currently in line with EU averages, but this success is due largely to declines in incoming cases, and given the amount of resources they could have been higher.173 There is significant variation across courts, but few courts produced a less-than-100 percent clearance rate by 2013. The average case dispositions per judge are in the acceptable range but vary markedly by court type and court location.174 Average case dispositions per judge have declined in the last two years in Basic, Commercial, and Misdemeanor Courts, again to due to a reduction in incoming cases and an increasing number of judges. It appears that judges generally dispose of about the same number of cases that they receive – whether that figure is big or small – without much impact on case backlogs. Many courts resolve fewer cases per judge than could be reasonably expected, and many judges resolve fewer cases than their colleagues. If the output of the worst performing courts could be lifted to the current average, productivity would be in line with performance in EU11 countries. Judges across Serbia would then have more time to contribute to other important functions that support the attainment of Chapter 23 standards, including training.
- In terms of timeliness of case processing at first instance, the picture is also mixed but improving. Serbia’s pending stock of unresolved cases per 100 inhabitants is high in comparison to EU averages, although this is improving for civil and commercial cases. Congestion rates remain high at around 1.41 and are particularly high in Basic, Commercial, and Misdemeanor Courts. On average, new cases proceed through the system relatively smoothly: as a result the average age of resolved cases is relatively young across all case types. However, backlogs persist because old cases remain ‘stuck’ and many inactive cases remain on the books. Although the case management systems are capable of producing Ageing Lists of Unresolved Cases, they are not routinely produced and so Court Presidents do not generally analyze them. This is unfortunate because Ageing Lists are perhaps the most useful tool available to track timeliness in case processing. The Functional Review developed an Ageing List for the purpose of this report, and it highlights an alarming number of cases that remain pending after three, five, and even ten years. These old cases are unlikely to meet the timeliness requirements of the European Convention on Human Rights (ECHR) and they thus require particular attention. The time to disposition of resolved cases in days varies markedly by case and court type. The time to case disposition is short in Higher Courts (98 days) but long in Basic Courts (736 days). In civil and commercial litigation, Serbia’s time to case disposition is reasonable and in line with EU averages. Whereas in enforcement cases, timeliness is intractably long and far worse than elsewhere in Europe. Unsurprisingly, user perceptions of timeliness remain negative, and the long duration of cases frustrate court users. Furthermore, data on the timeliness of first instance proceedings does not reflect the full user experience, as appeal rates are high and the ‘recycling’ of cases through re-trials is too common, and this further prolongs the ultimate resolution of disputes for the parties.
- Effective enforcement underpins the justice system, and on this indicator Serbia lags far behind EU Member States. Enforcement cases comprise much of the backlog and cause most of the congestion and delays in courts. Enforcement departments within courts are often poorly staffed and exhibit low morale. Much of the problem relates to unpaid utility bills, which make up around 80% of the enforcement caseload.175 While recent reforms will ensure that many new monetary enforcement cases, including utility bill cases, are now channeled to private enforcement agents instead of to courts, and ongoing monitoring of this profession will be required to ensure their effectiveness in dealing with these cases. Meanwhile, the elimination of the existing backlog of old enforcement cases in courts will require specific measures.176 On a positive note, remedies are available. Mass resolution (purging) of cases has proven successful at the Belgrade First Basic Court, and this experience could be replicated in other courts. Targeted evidence-based approaches have also shown some promise in the Vrsac Basic Court. By contrast, enforcement cases that do not relate to utility bills, such as the enforcement of court judgments, proceed relatively smoothly, though there remains room for improvement.
- A range of procedural inefficiencies cause frustration among court users and practitioners and contribute to delays. Service of process is required at each step of the process, and unnecessary delays here cause a ricochet effect through the system. Avoiding service of process is relatively easy; on average at least 57% of attempts at service of process fail. Stakeholders are unanimous that the Postal Service is ineffective and it has little incentive to improve whilst it charges the courts per attempt of service. Related cases are rarely joined (and even claims and counter-claims are not routinely joined) resulting in duplication. However, judges are unlikely to change that behavior and join cases more often whilst ever they are monitored on the raw quantity of their resolved cases. Time management in courts is often poor. Hearings are held only in the mornings, despite a lack of courtrooms. Some courts use existing case management software to schedule hearings, while others rely on manual diaries which are less reliable and more time-consuming than their modern equivalents. Routinely, there is a long delay in scheduling the first hearing in a case and an average three-month time lag between hearings. Case processing practices are outdated, including disjointed hearings and the manual exchange of case information. Case files get misplaced and take a long time to transfer from one court to another. Preparatory departments have shown some promise, but many courts have been slow to establish them, often due to lack of space or reluctance on the part of judges to part with ‘their’ assistants.177 Hearings are often cancelled or adjourned because of the non-appearance of prisoners or expert witnesses: this is often due to poor coordination between courts and critical service providers, which is exacerbated by the growing arrears owed to these providers. An excessive number of hearings do not contribute to resolution of the case, suggesting that judges are not using their powers to actively manage their cases. For their part, attorneys perpetuate procedural inefficiency in the courts, and they have little incentive to change behavior whilst ever they are paid per hearing.
- Procedural abuses by litigants often go unmanaged, as do frivolous claims and appeals. Trial judges fail to exercise their powers to curtail abuses due to a range of factors, including fear that their decisions may be overturned by appellate courts, their close relationships with attorneys, as well as a general dynamic of torpor within courts. In some areas however, stronger procedural laws, including tougher sanctions, as well as greater clarity from appellate jurisdictions, may assist judges to be more proactive in case management.
- Efficiency in the delivery of prosecution services is also a concern, but a lack of data inhibits more detailed analysis in this Review. The prosecution service is also undergoing profound change in the transition to a prosecution-led adversarial system under the new Criminal Procedure Code (CPC). The transfer of more than 38,000 investigation cases from Basic Courts to PPOs reduced inventory in the courts but created a new backlog for prosecutors, which they are struggling to process. New obligations have also expanded their scope of works, and they are ill-equipped to deal with these. Work processes require review to adapt to this new environment.
- Meanwhile, the efficiency of administrative services178 is high and improving, but unfortunately many of these functions will soon be taken from courts. The time required to complete verification tasks has reduced by one-third from 2009 to 2013, and in at least half of all cases, verification can be completed at one location within a half-hour. User satisfaction is often over 70% and has increased on most aspects between 2009 and 2013. Perceptions of the conduct and competence of staff has also improved. Nevertheless as part of a controversial reform to create private notary services, these tasks are scheduled to be transferred in 2015 from courts to private notaries. It is unclear what problem this aspect of the reforms is seeking to solve, given high existing levels of satisfaction with verification services. If courts were to be able to compete with notaries for basic verification tasks, they would be well-placed to provide good value-for-money services. If courts do lose these functions, significant staff reductions should be expected to follow.