Serbia Justice Functional Review
External Performance Assessment > Quality of Justice Services Delivered
b. Quality of Laws and Law-Making
- Clearly, the quality of justice depends on the quality of the law and system performance of the system.327 This section looks at three dimensions of quality of laws corresponding to Indicator 2.1 of the Performance Framework: perceptions of the quality of existing laws, the law-making process, and the rollout of recent law reforms.
i. Perceptions about the Quality of Existing laws
- In the Multi-Stakeholder Justice Survey, judges, prosecutors, and lawyers expressed some reservations about the precision and clarity of Serbian laws. Only 4 percent of judges, 3 percent of prosecutors, and 5 percent of lawyers stated Serbia’s laws are precise or clear.328 The prosecutors’ perceptions of the laws have worsened since 2009, possibly driven by perceptions around the introduction of the CPC. Meanwhile, lawyers’ perception of the laws has improved (see Figure 52) .
- Further, professionals expressed reservations about the fairness of Serbia’s laws. Only 13 percent of judges and prosecutors considered laws to be generally fair and objective, although these perceptions are an improvement compared to 2009. Again, most professionals reported somewhere in the middle (See Figure 53).
- The Survey also highlights how unclear laws can impact the quality of justice services. 21 percent of judges, 19 percent of lawyers, and 9 percent of prosecutors cited unclear laws as the main reason why the quality of judicial work is not higher.331
- For court users, ‘bad laws’ were also to blame for why the quality of work was not higher in their own cases. 25 percent of the public and 24 percent of business representatives cited bad laws as the main reason. From 2009 to 2013, the perception appears to have become slightly worse.
- In interviews, stakeholders noted that overlapping and conflicting laws cause problems for the courts. One stakeholder in the Misdemeanor Courts cited discrimination law as an example: five or six laws prohibit discrimination in different ways, making it difficult for judges to reconcile and determine those cases. In the Commercial Courts, stakeholders also noted that several bankruptcy laws apply concurrently, causing confusion for judges, lawyers, and parties alike. Lawyers expressed concerns in interviews that different procedural laws apply to their clients, such that the same case could proceed differently in different locations. Several stakeholders highlighted the need for greater harmonization of existing laws, as well as the need to consider existing laws when drafting new ones. Other stakeholders noted there are gaps in the law, and that judges struggle to deal with these cases in the absence of clear guidance.
ii. Quality of the Law-Making Process
- All acknowledge that the law requires improvement, but there is concern that the pace and process of law drafting may undermine quality. Several stakeholders identified poor drafting practices in recent years as contributing to unclear or ambiguous new laws, which have led to uncertainty about the application of laws by the courts.
- As one stakeholder noted, there is a ‘hyperinflation of law drafting’. Significant efforts are being expended in the sector on the establishment and operation of a large number of working groups covering various aspects of reform. The MOJ advises that there are currently approximately 15 working operational groups. One member of the Secretariat for the Implementation of the Strategy informed the Review that in the future, there would be around 35 working groups for various aspects of the strategy. With a high number of disparate groups, the possibility rises that they may work at cross purposes with each other. Civic engagement in the process of law reform is minimal, and public debates were described by several stakeholders as perfunctory. Amendments are frequently passed through the legislature under emergency procedure.
- This ‘hyperinflation’ of law-making has impacts for end users. For example, the National Alliance for Local Economic Development (NALED) tracks 30 laws important for businesses and reports that over the last five years, these laws have been amended or overhauled 98 times in total. Businesses clearly struggle to keep apace. Focus groups with small businesses also highlight that the constant ‘churn’ of laws affects business operations.333
- Even a large and advanced legal system would struggle to develop and deliver such a large number of high quality laws simultaneously. The large number of working groups in Serbia may represent an over-commitment, a lack of prioritization, or a lack of commitment to quality in law reform or legal drafting. It is not clear whether, in practice, the large number of legal reforms is part of the problem or part of the solution.
- Organizational methods within working groups have not always been clear. Stakeholders who are members of various groups expressed frustration that working groups are not often given clear direction about the goals to be achieved by the law and the specific mandate and methods for their work. Some working groups are guided by prior analytic studies, and others simply debate their views. Meetings often run without agendas, so content is debated in long unstructured sessions and the dynamics of discussion
depend on who participates or is most vocal. Some working groups have been open for over two years and have yet to produce drafts for broader discussion. Some suggest that the existence of working groups create an impression of progress without the results of progress, in a manner that suits particular members of those groups.
- Representation on working groups may also be an issue. Official working groups do not always include representatives from the populations or entities with the most expertise or
those most directly affected by the legislation. For example, the Anti-Corruption Agency was not
included in the working group drafting the whistleblowing law, notwithstanding its relevant expertise. In the Working Group on Free Legal Aid, representatives from civil society and municipal legal aid centers were not initially included, though this was rectified. The HJC was not included in the working group amending the Court Rules. Working Groups usually contain only members based in Belgrade, and so the views of those outside of Belgrade are rarely expressed and country-wide consultation is rare. It is sometimes unclear whether working group members are, in practice, conveying their personal views or the official position of the organization they represent. Working groups also often do not include specialists in legislative drafting, and once the responsible ministry formally proposes the law to the Government, those giving technical opinions during the intra-agency consultative process frequently do not have the contextual understanding to know whether the proposed legislation, as drafted, will effectively achieve its intended objectives.334
- Working groups do not always consider the practical dimension of legal reform. The financial and operational implications of proposed laws are not analyzed in detail, nor is an objective assessment made of the institutional capacity of the system to deliver changes and what processes should be amended to support the new laws.335 Often, this is left to by-laws, which may not be drafted by the same groups or may be drafted long after a law has taken effect. Laws that clearly have financial implications continue to be enacted with the clause ‘this law has no financial impacts’, thus creating an unfunded mandate that constrains implementation.336 Therefore, while many laws are best attempts to resolve a perceived problem, the chances that they will produce unintended consequences – or simply not be implemented – is high.
- Consultation processes and public debates are often perfunctory. Civil Society Organizations (CSOs) report that they receive very limited advance notice of public debates, even on complex draft legislation. Debates are unstructured and few suggestions are incorporated. Once tabled in Parliament, laws are routinely passed under emergency procedure, further limiting debate.
- Looking forward towards accession, change will be the only constant. Further reforms are underway and the passage of many new laws will continue to be required. The challenge will be to ensure quality control in the law-making process.
iii. The Rollout of New Laws
- Stakeholders frequently expressed concern regarding the successive and continual reforms in the law over the last decade. In recent years, laws have been passed, not implemented, then amended again, and confusion prevails regarding aspects of the law’s application and its implementation arrangements. In interviews with judges and prosecutors in particular, legislation arose as a challenge to the quality of services delivered, but more out of concern that the constant amendment of legislation makes it difficult for practitioners to keep apace and implement the law fully and faithfully. Several judges acknowledge that they prefer to stall their decisions (or continue to apply old laws) while waiting for appellate courts to provide guidance on new laws.
- Beyond practitioners, court users also highlight flux as a concern. In focus group discussions, potential court users highlighted that laws change so quickly that it is impossible for ordinary people to know what the law is. While legal reform will be inevitable through the Chapter 23 process, performance improvements will occur only if practitioners and users can keep pace with reforms and amend behaviors.
- The Judicial Academy could play a more proactive role in supporting the rollout and implementation of new laws. Despite its institutional mandate for continuing training, the Judicial Academy is not usually integrated into the rollout of reforms and plays a low profile as a venue for trainings. To date, the Judicial Academy has provided some ad-hoc support to the roll-out of particular reforms, such as the new CPC and the new Law on Misdemeanors with donor support. However, its continuing training program should be both broader and deeper, and based on a comprehensive needs analysis aimed at transforming the capabilities of the judiciary.
- There should be a greater focus on dissemination and popularization of new laws, particularly given the pace of the reforms, the limited consultation, and the emergency passage of laws. Awareness of new laws is low among the public, court users, and even among legal professionals (see Access to Justice Chapter). Yet they are the subjects and actors in the new laws and their understanding is needed for laws to be implemented effectively. Those leading legislative efforts could invest more in outreach activities to target the affected groups and users. Outreach efforts could also help improve stakeholder perceptions of the justice system, and build buy-in and trust in the reform process.