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Serbia Justice Functional Review

External Performance Assessment > Efficiency in the Delivery of Justice Services

b. Timeliness in Cases Processing

  1. Delay, or lack of timeliness, is a key indicator of the efficiency of a justice system, and an EU concern in the Chapter 23 accession process.209 Here, timeliness is addressed with three types of indicators, corresponding to Indicator 1.2 of the Performance Framework:
    1. pending cases (carry-over stock);
    2. time to disposition (measured in a variety of ways); and
    3. timeliness as reported by court users and practitioners.
    Among these, the indicators for pending cases are the most reliable, although they are less direct measure of timeliness.210

i. Number of Pending (Carry-Over) Cases

  1. Pending cases can be defined in many ways – examined here are the number of unresolved cases carried over from one year to the next, known as pending stock or backlog. The existence of pending stock is not a concern in itself and is only problematic when the numbers are large and the cases are old.211 The size of Serbia’s pending stock is a consequence of years of accumulation. The good clearance rates seen over the past few years have brought gradual reductions, aided in part by the overall decline in new incoming cases, but not enough to remove the old pending stock. Pending stock is sometimes called backlog, but in Serbia (and in many countries), the term backlog is legally defined by the age of the case.212
  2. In Basic Courts, as shown in Figure 21, the size of the pending stock varies by case type and by the direction, rate, and size of changes from year to year. Enforcement cases dwarf the other categories. The number of pending enforcement cases declined over the four-year period but remains very high. The four other types of cases showed less reduction, but they are such a small portion of the total pending stock that their numbers alone are no cause for alarm. More important, these pending cases also represent a lesser proportion of the annual incoming cases in their respective categories. For enforcement cases, pending stock still comes to over three times the new incoming cases, which are also decreasing.
  1. At the end of 2013, 2.3 million cases were pending at the Basic Courts, a reduction of nearly 600,000 cases compared to 2010. Enforcement cases accounted for roughly two million of the total cases pending. Most of the reduction occurred in Belgrade First Basic Court that retained 1.1 million enforcement cases awaiting resolution.214 Other Basic Courts with a high number of pending enforcement cases at the end of 2013 are the Belgrade Second Basic Court with 104,483 pending enforcement cases, followed by Kragujevac with 69,217, Nis with 64,164, and Novi Sad with 64,495. Despite their current large numbers (and in some instances advanced age, see below), backlogged enforcement cases are likely to decrease in importance. An exercise to purge old inactive cases would also help. For a further discussion on enforcement cases, see the Enforcement section.
  2. Once enforcement is set aside as a special issue with special remedies, there remain 290,925 cases pending in Basic Courts, of which 171,222 are civil litigious cases. Little is known about these pending cases, and some may be relatively young cases entering late in the previous year. Other cases however, like the minority of non-utility bill enforcement cases, merit further attention to understand why they remain unresolved (there are some data on their relative age, but the statistics are not very reliable – see discussion below). The reasons are likely to be varied, and individual Court Presidents should examine their stock of pending non-enforcement cases that were not commenced late in the prior year. Court Presidents should identify the reasons why they remain unresolved and press for their resolution.
  3. Criminal investigations are also a disappearing category for the Basic Courts because of the new CPC. Of the 38,871 investigation cases in the Basic Courts in 2013, 98 percent (or 38,123 investigations) were transferred to the Basic Prosecutor Offices. By the end of 2013, Basic Courts had only 6,578 investigation cases in pending stock, presumably in pre-trial matters. Courts may still count their occasional interventions (e.g., to decide on pre-trial detention or grant search warrants) as ‘cases’ because they represent an easy way to raise dispositions. But given the need for quick resolution of these matters, very little pending stock is expected. The Basic Courts’ transferred stock probably included many ‘dead’ cases that could be closed quickly. An investigation that goes on for several years usually will, or should, be terminated for lack of progress. With the transition of investigation functions, it will be important for the Prosecution Offices to sift through these pending cases and dispose of old ‘dead’ ones. Further, turning investigations over to the prosecutors is no guarantee of quick resolution – it may simply shift a problem from one place to another. In many countries that have adopted this practice, the prosecutorial backlog has mounted quickly.215 In Serbia, prosecutors’ careful management of incoming investigations will be necessary to prevent numbers of pending cases from climbing, and ultimately the backlog from growing.
  4. Compared to European averages, Serbia’s pending stock per 100 inhabitants is high, and unsurprisingly, is highest for enforcement cases (see Figure 22 for 2010 figures). The CEPEJ 2010 figures for civil and commercial cases (litigious and non-litigious) were also substantially higher for Serbia, reflecting the many years when clearance rates were well below 100%. Given what is known on the number of enforcement cases carried over from 2010 to 2011, the figures below are questionable (far too low for enforcement, but possibly reasonable for other areas) and the true position may be worse.
  1. Data from the CEPEJ for 2012 do not put Serbia in a much better light. Figure 23 compares Serbia’s pending caseload with the EU average. On a positive note, the differences in civil and commercial cases have lessened, and Serbia has fewer pending administrative cases.

ii. Congestion ratios (the Relative Size of the Pending Stock)

  1. The congestion ratio helps to assess the importance of pending stock, by analyzing two figures: the number of cases carried over and the number of cases disposed.218 Ideally, the congestion ratio should be well under 1.00, indicating that pending stock is far less than the annual outflow.
  2. Serbia’s congestion ratio has gradually improved and is now at 1.41 for the entire judicial system. That comprises 2,839,979 cases unresolved or carried-over to 2014, versus 2,011,062 resolved in 2013. The gradual improvement is due to a combination of decreases in the number of incoming cases, and slight to significant increases in resolved cases. See Table 5, which is depicted graphically in Figure 24.
  1. There is considerable variation among and within the different court types. Rates remained below 1.00 for the entire period for all but the Basic Courts. However, the disaggregated ratio shows some important differences.
  2. Basic Courts improved their congestion ratios but they remain still well above 1.00. Still their lowest rate of 1.52 was not repeated in the two following years. The 2011 congestion ratio was the result of the closure of a large number of enforcement actions in Belgrade First Basic Court. Nonetheless, Belgrade First still has the second highest congestion ratio, 3.51, of all the Basic Courts. Other Basic Courts with rates much higher than the average of 2.02 include Belgrade Second, Krusevac and Cacak.
  3. Within Basic Courts, congestion ratios vary by case type. For civil cases (both litigious and non-litigious), congestion has been easing. Congestion ratios from criminal trials have been gradually improving from an alarming 1.45 in 2010, to a still-concerning 0.99. The congestion ratio for enforcement cases remains over three times that of other case types (see Figure 25).
  1. Congestion in Higher Courts is low and falling. The Higher Courts reduced their congestion ratio in civil litigious cases by more than half. However, congestion of non-litigious cases has risen and needs to be dealt with (see Figure 26).
  1. The Appellate Courts’ congestion ratio is low and falling. Congestion ratios for civil litigious cases rose from 0.46 to 0.49 and should be monitored (see Figure 27).
  1. Congestion in the Commercial Courts has been erratic and the current congestion ratio of 0.77 is of concern. This is particularly puzzling in light of the substantial decrease in incoming cases, and a 20 percent increase in additional judges in 2012. With lower incoming cases and a higher number of judges, the Commercial Courts could reasonably have reduced congestion and attended to their backlog.
  2. Misdemeanor Courts also present a puzzle – their congestion ratios have been dropping but are still unsatisfactorily high. Misdemeanor Courts are reasonably expected to perform better since the number of new incoming cases has declined as well. Increasing dispositions per judge, particularly among under-performing courts, may resolve this issue.
  3. Examination of the relationship between overall congestion ratios and congestion ratios for enforcement cases in individual courts is very strong, revealing that courts that tend to be congested with enforcement cases tend to be congested generally. As shown below, some of the enforcement congestion ratios are alarmingly high. For example, 10.0 for Cacak, 8.7 for Vranje, and 7.0 for Belgrade Second. Belgrade First’s high congestion ratio of 5.0 for enforcement cases is modest in comparison. This observation simply reinforces prior conclusions that backlogged enforcement cases are the Basic Courts’, and thus the entire systems, principal challenge regarding delays.224
  1. This finding should not divert attention from the smaller number of other types of pending stock in the Basic Courts or in the rest of the judiciary. As further discussed below, the enforcement backlog is for the most part a special problem, and is numerically concentrated in a few courts. Nonetheless, as Figure 28 demonstrates, the backlog affects Basic Courts throughout the system even if on a smaller scale. As for the pending stock in other courts, the collective figures tended to remain stable or improved, collectively accounting for roughly 530,000 cases, 80 percent of which found in the Misdemeanor Courts. The rates for the Misdemeanor and Commercial Courts do raise questions. Despite declining workloads for the Commercial Courts, the congestion ratios of a majority of judges remain relatively high. The sheer size of older cases for these courts should be manageable, and while there may also be a few cases that defy resolution, further significant reductions should not be difficult.

iii. Age Structure of the Pending Stock

  1. To comprehend the challenges posed by pending stock, a clearer understanding of its composition, age, and how courts select the cases for resolution is needed. A court with a clearance rate of 100 or higher is probably resolving a significant number of new cases fairly quickly, handling a smaller portion of cases over a slightly longer period (depending on their complexity), and passing (once enforcement cases are out of the picture) only a relatively small percentage to that part of its pending stock that may never be resolved. Judges tend toward this pattern naturally. When judges know their output is monitored, such as through ‘productivity norms’, this can distort incentives. Judges are then likely to ‘cherry picking’, focusing on the easiest cases while leaving the older cases in the cupboard.226 Whether judges are monitored or not, it is extremely unlikely that they would automatically resolve the oldest cases first.227 This is why concerted backlog reduction programs are necessary to eliminate the older cases.228
  2. The Ageing List of Unresolved Cases at Table 6 shows the composition and age structure of all unresolved cases from the date of the initial act. The Ageing List is incomplete (and may thus present an optimistic conclusion) but nonetheless provides some insights.229 As a priority, case management systems should be upgraded to enable the production of more comprehensive ageing lists for both resolved and pending cases.
  1. The Ageing List reveals that many very old unresolved cases remain ‘stuck’ in the Serbian judiciary. Any case older than 10 years is likely to violate Article 6 of the ECHR as well as other international and European standards – and there are 191,966 of such cases in Serbia. Across the system, the approximately 772,225 cases older than five years is alarming, and whilst 694,124 of them consist of enforcement cases in the Basic and Higher Courts, there are around 78,101 non-enforcement cases that remain pending after five years. Most are likely to be inactive and could be purged.
  2. For the Basic Courts, it is not surprising to see the large number of old and unresolved enforcement cases. Setting them aside, there still remain 9,590 civil litigious cases and 731 civil non-litigious cases that are older than five years. There also remain 366 criminal investigations and 2,932 criminal trial cases that are older than five years. These should be targeted immediately.
  3. With regard to the Higher and Appellate Courts, the majority of pending cases are relatively young, although many would be considered backlogged within the Serbian definition of the term. Most concerning, in the Appeals Court there remain 6,314 civil litigious cases that are older than five years, and 1,587 criminal cases pending after five years. In the Higher Court, 3,748 civil litigious cases remained pending for over five years. There are also 61 criminal investigations and 516 criminal trial cases that have been pending for over five years. Given the large number of judges and the low workloads in these courts, instructions could be given to target these old cases immediately.
  4. Given the number and age of cases in the pending stock at nearly all levels, it is clear that this situation will not change rapidly even with current clearance rates and falling caseloads. Additional measures are needed. This usually means a backlog reduction program and another kind of triage to divide stock into three categories, each for different treatment: cases that can be closed because the right to pursue them has expired, inactive cases the parties may be invited to revive before they are closed for lack of action, and active cases likely needing a nudge to process faster. It would also be useful to identify large classes of cases, such as the public utility enforcement actions, that might lend themselves to a mass solution.
  5. The USAID Separation of Powers Project implemented one such program in 10 pilot courts between 2009 and 2013.230 The results in the participating seven Basic Courts and three Higher Courts demonstrated that backlogs could be reduced with the use of simple measures. By the end of 2012, the initial six pilot courts had reduced their backlogged cases by 49 percent, from 23,000 to 12,000. The still more dramatic removal of 600,000 backlogged enforcement cases from Belgrade First Basic Court through an agreement with Infostan was also a result of the project, as were various additions to the new civil and criminal procedures codes (e.g., the use of preliminary hearings and improvements to service of process and delivery of court documents). In connection with the development of a second NJRS, the Supreme Court embarked on a national-level backlog reduction plan.

Box 3: Backlog Reduction in Action: a Story from Vrsac

The Vrsac Basic Court has significantly improved efficiency and reduced its backlog through a series of initiatives. These were led by two successive acting Court Presidents with the support of a core managerial team of skilled court staff, and the advice of the USAID SPP.

The Court Presidents focused on using court statistics to monitor judges on a weekly and monthly basis, comparing the number of resolved cases and the ratio of new and old resolved cases among different judges. Using an ‘I'm watching you’ strategy, each of the Court Presidents encouraged judges to work more efficiently, and not neglect old and difficult cases in favor of new and easy-to-resolve cases.

The Vrsac Basic Court did the same with the routine monitoring of progress in unresolved enforcement cases by court bailiffs. Once bailiffs knew that their work was monitored, the pace of resolution in enforcement cases improved dramatically. Outreach to the public with accompanying incentives also encouraged enforcement defendants to pay out their debts. For further discussion of enforcement, see below.

The Vrsac Basic Court also introduced simple layman’s checklists and forms for parties unfamiliar with court procedures, whether due to education, language, or socio-economic status. One such checklist, on how parties need to fill-in and file documents helped ensure that cases ran more smoothly. That practice became more complete and uniform. As parties became easier for judges to work with, the valuable time of judges could be better spent on judicial work.

The Vrsac Basic Court and Prosecutors Office increased their use of deferred prosecution, thus decreasing the inflow of new minor cases that could be readily dealt with in other ways. This allowed the court to focus on resolving cases. For further discussion of deferred prosecution, see the Quality Chapter.

The experience of the Vrsac Basic Court demonstrates a holistic approach to backlog reduction, which was led by two proactive Court Presidents at minimal cost. Congestion ratios dropped from an alarming 9.8 in 2012 to 2.6 in 2013.

  1. The Misdemeanor Courts have a different type of ageing problem, and one which directly results in impunity. In misdemeanor cases, a strict statute of limitations requires the initiation of an action within one year, with two years as an absolute deadline for resolution of the case, after which time the case collapses.231 In most common offences – such as traffic offences, defendants commonly ‘run out the clock’ by avoiding appearance or delaying procedures. Whilst this makes the case processing statistics of the Misdemeanor Court impressive, it inhibits the system from delivering justice for a range of common offences.232

iv. Time to Disposition by the Age of Resolved Cases

  1. Because average times can be deceptive, a detailed Ageing List of Resolve Cases is a preferred indicator of timeliness and delay. Ageing Lists group annual dispositions by the age of case, thus giving a better picture of the different tracks on which cases proceed. Table 7 below is an ageing list for the first half of 2013 provided by the SCC and shows the duration of resolved cases from initial filing until the date on which the judiciary considers it a resolved case. This ageing list is incomplete and may present an overly optimistic conclusion.233 Nonetheless, it provides insights into the composition and age structure of the resolved cases from the date of the initial act. As a priority, case management systems should be upgraded to enable the production of more comprehensive ageing lists.
  1. The proportions of older to younger cases resolved (shown in the figures below) confirm the view that productivity is improving but is selective. On a positive note, the figures suggest that the overwhelming majority of cases are resolved within two years. On the downside, the pie charts below show that judges in Higher, Basic and Commercial Courts are ‘cherry-picking’ in the extreme. Thus, a more concerted approach will be required for attacking what are probably various obstacles to faster disposition times.

v. Time to Disposition in Days (the SATURN Method)

  1. The CEPEJ devised its own means to estimate disposition times via a method called the SATURN (see Box 4 below for description). SATURN is a highly dramatic representation of the significance of congestion ratios. The SATURN methodology’s main difficulty is in its assumption of a ‘FIFO’ (First In, First Out) approach to case resolution, namely that judges resolve the oldest cases first. It is known that FIFO is not used in Serbia, or for that matter anywhere else. Rather, the opposite approach is common where judges prefer to resolve newer cases than older ones. Much of the accumulated stock, such as the utility bill enforcement cases, will only be removed through a radical backlog reduction program. If such steps are not taken, the older cases will continue to slumber in the court archives. SATURN also attempts to calculate average times, which, as noted above, can be deceptive for other reasons.

Box 4: What is the SATURN Methodology?

Case turnover ratio: Relationship between the number of resolved cases and the number of unresolved cases at the end of each year.

Case turnover ratio = Number of resolved cases / Number of unresolved cases at the end

Disposition time: The turnover rate is actually the congestion ratio inverted. Here it is divided (or multiplied) by 365 days to reach an approximate time for case resolution. The ratio measures how quickly the court turns over received cases, or in other words, how long it could be expected to take for a type of case to be resolved.

Disposition time = 365 / case turnover ratio or 365 X congestion ratio

  1. When SATURN is applied to the five major court types, significant differences in ‘average’ disposition times and trends between 2010 and 2013 emerge. All except the Misdemeanor Courts show significant changes, although not necessarily improvements. The Appellate Courts reduced their times markedly from the 2010 high, making small improvements thereafter. The Higher Courts showed less change but ended the period with their best score. The Basic Courts did reduce their average times from the 2010 high but increased again after 2011. The Commercial Courts demonstrate an up-and-down pattern, but never replicated the lowest time reached in 2010. Except for 2010, the Appellate Courts and Higher Courts consistently record the lowest times.
  1. When the SATURN calculations are disaggregated by case types, significant differences emerge. These differences are especially pronounced in the Basic Courts (see Figure 33). Times for other legal matters seen in Basic Courts remained low, and generally improved over the four-year period, but there is high fluctuation in enforcement cases. This reflects the impact of bulk resolutions of cases, which have been conducted in a few courts, most principally Belgrade First Basic Court.
  1. When the SATURN figures are calculated for individual Basic Courts, there are striking variations in the timeliness of cases by case type. In 2013, the average disposition time for civil litigious cases was 277 days. At the low end, Pancevo recorded 181 and Zrenjanin 192 days. At the high end, Kraljevo recorded 328 days and Belgrade Second 429 days. For enforcement cases in 2013, SATURN shows an average time of 1395 days, but Basic Courts range from 212 in Subotica to 3,664 in Cacak. The average time for enforcement in 2011 was 805 days, but Vrsac registered nearly 5,000 days as opposed to 154 days in 2013.
  2. There are similar, but less dramatic variations among other court types. Figure 34 shows differences among the four Appellate Courts for 2013. As disposition and clearance rates were similar for all four courts, the difference in time to disposition is best explained by the pending backlog at the beginning of 2013.239
  1. Commercial and Misdemeanor Courts also showed less variation than the Basic Courts in time to disposition. In 2013, times to disposition for all cases in individual Misdemeanor Courts ranged from 94 to 364 days, and individual Commercial Courts ranged from 123 to 338 days. The statistics provided do not allow a further disaggregation of commercial and misdemeanor cases.
  2. When compared with the ageing lists for time to resolution (Table 7), it is apparent that the SATURN averages conceal a good deal about real trends. SATURN is rather a prediction of how quickly cases will be resolved in the future based on total backlog and dispositions for one year. Where a backlog is very old and completely unattended, young and active cases may well be decided rapidly. The method does not capture this aspect and SATURN is not a direct measure of time to disposition, and thus real times experienced by parties may be quite different. However, the SATURN figures could spur courts to reduce backlog as the best means to improve their scores. Given the apparent tendency for courts to resolve more or less what they receive, this can be a positive idea. However, as old backlog is eliminated, the SATURN times for following years may appear to increase as they did for enforcement in 2012 after the purge at Belgrade Basic First in 2011.241
  3. Compared to EU averages, Serbia’s SATURN scores for first instance civil and commercial litigious cases stand up well. However, Serbia fares much worse in estimates for overall time to disposition for all non-criminal and enforcement cases. While the days calculated are somewhat different from Figure 32 and Figure 33, this is due to variations in how the Serbians and others interpreted the CEPEJ Questionnaire.
  1. Lastly, Serbia’s figures can be compared with EU timeliness standards, as measured by the decisions of the ECtHR in Article 6 cases (See Box 5).
  2. The EU averages are based on scores from 25 countries, but not all answered every question. Only 14 provided data on enforcement cases: Austria, Croatia, the Czech Republic, Denmark, Finland, France, Hungary, Italy, Lithuania, Poland, Portugal, Slovakia, and Slovenia. Of these, only Portugal has a higher time to disposition at 1,399 days, compared to Serbia’s 1,299 days. Slovakia is the country with the next highest time to disposition with 656 days. From there, times ranged from 398 to 9 days (in the Czech Republic). More complete data, including Serbia, will be provided in CEPEJ’s biennial evaluation to be published later in 2014.

Box 5: How Long is Too Long? ECHR Timeliness Standards

There are no clear-cut rules for what constitutes a ‘reasonable time’, as every case must be considered separately. However, an analysis of a large number of cases before the ECtHR provides a useful indication of the approach taken by the ECtHR in interpreting Article 6 of the ECHR. The following can be established:

  1. The total duration of up to two years per level of court in normal (non-complex) cases is generally considered reasonable. Beyond two years, the ECtHR examines the case closely to determine whether the national authorities have shown due diligence in the process. (NB: Duration is measured differently for different cases. In civil cases it is normally the date on which the case was referred to the court; in criminal cases, it may also be the date on which the suspect was arrested or charged, or the date the preliminary investigation began. In administrative cases, it is the date on which the applicant first refers the matter to the administrative authorities).
  2. The end of the period in criminal cases is generally the date on which the final judgment is given on the substantive charge or the decision by the prosecution or the court to terminate proceedings. In civil cases, the end date is the date on which the decision becomes final; however, the ECtHR may also take account of the length of enforcement, which is considered as an integral part of proceedings. ‘Of manifestly excessive duration of proceedings’ refers to cases in which the applicant’s behavior had contributed to the delay.
  3. In priority cases, the court may depart from the general approach and find violation even if the case lasted less than two years. (‘Priority cases’ comprise the following: labor disputes involving dismissals; recovery of wages and the restraint of trade; compensation for victims of accidents; cases in which applicant is serving prison sentence; police violence cases; cases where applicant’s health is critical; cases of applicants of advanced age; cases related to family life and relations of children and parents; and cases with applicants of limited physical state and capacity.)
  4. In complex cases, the ECtHR may allow longer time, but pays special attention to periods of inactivity which are clearly excessive. The longer time allowed is, however, rarely more than five years and almost never more than eight years of total duration. The only cases in which the ECtHR did not find violation in spite of manifestly excessive duration of proceedings were cases in which the applicant’s behavior had contributed to the delay.
The tables below provide a ‘rough guide’ to appropriate lengths of proceedings by case type and complexity. It should not be taken as a fixed rule.

vi. Timeliness as Reported by Court Users and Practitioners

  1. In the Multi-Stakeholder Justice Survey, court users reported the average duration of their court proceeding from case filing to first-instance judgment.243 In criminal and civil cases, the average duration at first instance was approximately 15 months, and 8 months for misdemeanor cases. In business sector cases, the average duration is reported to be 13 months (see Figure 36) Timeliness of first instance proceedings appears not to have changed much since 2009. Compared with the data reported in 2009, the only change occurred in criminal cases, and this change is negative: on average, cases lasted three months longer.
  1. However, average durations hide the striking variation as reported by individual court users. In 2013, user responses on the duration of criminal cases ranged from less than a month to up to 70 months. In misdemeanor cases, duration ranged from less than a month to 46 months, well above the usual two years. In civil and business cases, duration ranged from less than a month to over 100 months. The variations are difficult to assess without further details on the nature or types of cases, but the data suggest that, at least in Serbia, discussions of ‘averages’ can be highly misleading of the court user’s experience.
  2. In all, court users surveyed for the Multi-Stakeholder Justice Survey expressed dissatisfaction with the duration of their first instance court proceeding.245 More than 70 percent of court users with experience in criminal, civil, and business sector cases stated that their court proceeding was longer than what they considered necessary.246 Misdemeanor Courts fared better – only 60 percent of users with experience in misdemeanor cases stated that their court proceeding was longer than what they considered necessary. Since 2009, dissatisfaction remains constant among the general court users, but business sector representatives are now even more likely to be dissatisfied with duration of their court proceeding (see Figure 37). Judges and prosecutors had a more positive perception of timeliness, and reported that about one quarter of their cases lasted longer than necessary, while prosecutors reported that about one third of theirs did. Lawyers estimated that about 55 percent of their typical cases lasted longer than necessary, which was about the same as citizens’ estimations.247 Survey data therefore also support the view that proceedings should be resolved more quickly.