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Serbia Justice Functional Review

External Performance Assessment > Quality of Justice Services Delivered

g. Integrity in Justice Service Delivery

  1. Integrity and perceptions of it link directly to the quality of decision-making by courts. This section outlines indicators and European benchmarks which correspond to Indicator 2.6 of the Performance Framework.

i. Perceptions of Integrity and Reasons for Lack of Integrity

  1. Stakeholders commonly report that the judicial system lacks integrity in the delivery of justice services, though the term may mean different things to different individuals. For judges, prosecutors, and lawyers, several factors undermined integrity. A striking 89 percent of lawyers, 73 percent of judges, and 77 percent of prosecutors report integrity was primarily undermined by the length of proceedings. However, more than 50 percent of judges and prosecutors also report that poor and non-transparent personnel policy, political influence, and inadequate penalties for corruption undermine the integrity of the judicial system. In comparison to judges and prosecutors, a considerably higher percentage of lawyers believe all the listed factors undermine the integrity of judiciary.428

ii. Perception of Trust and Confidence

  1. The judicial system is one of the least trusted institutions in Serbia. According to the Multi-Stakeholder Justice Survey, only 26 percent of the citizens trust the judicial system (see Figure 70).430 On a positive note, perceptions of trust have improved, and this increased trust was observed in other state institutions as well, with the exception of health system. Trust increased more among court users than the public, suggesting that experience in using the court system can build trust (see Figure 71).
  1. A variety of factors undermine citizen trust in the judicial system. Over 80 percent of respondents selected length of proceedings, corruption, political influence, inadequate penalties for corruption, and poor and non-transparent personnel policy as causes for their lack of trust in the judicial system. Over 70 percent also named content of court decisions, lack of fairness, and the selective initiation of cases (see Figure 72). Several – though not all – of these factors are within the judiciary’s control and align with the goals of the NJRS, suggesting that continued efforts to improve performance in line with Chapter 23 standards should improve trust and confidence over the medium to longer term.

iii. Extent of Reported Corruption and Use of Informal Means

  1. Court users admit that they engage in corruption and other informal means to advance their cases in the Serbian judiciary. The data below are likely to vastly under-represent the extent of corruption,434 but nonetheless provides some insights into corruption occurring within the justice system.
  2. In the Multi-Stakeholder Justice Survey, 9 percent of court users in misdemeanor cases reported using informal means to advance their case. In civil cases, 4 percent reported corrupt behavior and in criminal cases, 2 percent reported corrupt behavior.
  1. 144. According to the 2013 ACA Court User Survey, around 10 percent of court users reported that a bribe was solicited from them.436 Among those, 90 percent said the request was made indirectly, for example by staff who were unnecessarily stalling a process or indirectly pointing out that procedures may be hastened through the payment of money, while the remaining 10 percent were asked openly to pay a bribe. Court users report reacting differently when bribes were expected. On average, 33 percent of respondents who found themselves in such a situation reported that they ‘had given what was requested’, while 66 percent ignored the request, or at least reported so.
  2. Bribery of court staff appears to be more common than bribery of judges. Among those who reported paying a bribe to someone in court, 66 percent of respondents paid it to the court administration, while 17 percent paid it to a judge and 17 percent paid it somebody else (lawyer, expert witness, bailiff etc.). Again, it is not known whether the ‘somebody else’ is the ultimate recipient or an intermediary. Several stakeholders reported that lawyers and court staff solicit money purportedly for bribes which they do not pass on.
  3. The ACA findings are broadly similar to the findings of the UNDP’s Corruption Benchmarking in Serbia Survey.437 In their December 2012 report, 5 percent of respondents reported giving a bribe to a judge in the last three months, but this decreased to 1 percent in June 2013 and 0 by December 2013.438 However, bribery to public administrative clerks was much more pervasive.439 In December 2012, 9 percent of respondents reported giving a bribe to a public administration clerk, and this rose to 14 percent in June 2013 and 19 percent in December 2013.
  4. Comparing these various reports in Serbia against the experience in the region, Serbia appears to have an issue with corruption in the court system. In the Transparency International Global Corruption Barometer 2013, 20 percent of respondents reported that they paid a bribe to the Serbian judiciary, without specifying the value of the bribe or to whom or it was handed. This is a worse outcome than the EU11 States.
  1. In addition to basic bribery, other informal means are reportedly used. In the 2013 ACA Survey, 19 percent of all court users surveyed reported that they had tried to affect some procedure in court through informal channels, such as ‘pulling strings’ with court staff. 10 percent of court users admitted trying to affect content of court decision. The remaining 9 percent reported trying to influence the proceedings in some way.
  2. Gift giving is also reported to be a common practice. In addition to reports of bribery, the ACA Court User Survey found that an additional 22 percent of service users said that they had given gifts of their own accord at least once. Gifts were reported to be given usually after ‘the job was done’, as a token of gratitude for the ‘favor’.441
  3. Attempts to unduly influence the judiciary come from a range of sources and via a range of means. In the Multi-Stakeholder Justice Survey, judges and prosecutors were asked about situations in which an individual tried to resort to informal means to affect their work,442 although the same questions were not posed to court staff and lawyers to enable a comparison.
  4. 151. In 2013, the most common sources identified by judges were employees of the court, lawyers, and politicians. The experience was similar for prosecutors who reported that the most common sources of undue influence were lawyers, politicians, and other employees. It is unclear whether the reference to ‘other employees’ and ‘lawyers’ suggests that these actors seek to influence judges on their own initiative, or act as intermediaries.
  1. In interviews, several stakeholders also noted the prevalence of self-censorship in decision-making among judges and prosecutors. By its nature, self-censorship is not induced by a specific exertion of executive power but is exercised on the discretion of a judge and prosecutor in an environment where judicial independence is not fully realized. The Functional Review was unable to measure the extent of such self-censorship.
  2. In relation to the means put forward to affect the judge’s work, the most commonly identified were ‘other’, political influence, and threats. For prosecutors, the means were political influence, threats and ‘other’. 9 percent of judges and 10 percent of prosecutors reported offers of gifts, and 8 percent of reporting judges and 6 percent of prosecutors reported pecuniary compensation.
  1. Though a limited sample, the survey may suggest that attempts to influence judges and prosecutors are more sophisticated, while simple bribery may be more common among court staff. The ACA and the Ombudsman’s Office expressed a similar view.
  2. Looking forward, recent across-the-board cuts to the nominal salaries of state employees may increase the prevalence of corruption in courts. In particular, spikes in petty corruption may be expected, as lower-paid court staff may seek informal means to recoup lost wages.

iv. Perceptions of Corruption

  1. There remains a perception of widespread corruption within the Serbian judiciary. 51 percent of the citizens, 41 percent of judges and 52 percent of prosecutors report that corruption is present in the judiciary447 (see Figure 79). Businesses also report that corruption creates an obstacle to their operations.
  2. However, perceptions of corruption are improving. In 2013, the percentage of those who reported that corruption is present in judicial system decreased across all groups. However, a substantially greater decrease was reported among judges and prosecutors than among lawyers and court users.448 As a result, views among stakeholders about the extent of corruption became divergent, as Figure 80 and Figure 81 below show.449
  1. For citizens, the judiciary is second only to the health system as the institution most affected by corruption 452(see Figure 81). These are the only two institutions where the majority of citizens report that corruption is present to a considerable degree.
  1. In comparison with the EU, EU11, and its neighboring countries, Serbia appears to have a problem with corruption. According to the Transparency International’s Global Corruption Barometer 2013, Serbia ranks 72nd out of 175 countries. In comparison to the EU11, Serbia has the second highest rate of perceived corruption, second only to Bulgaria and on par with Lithuania (see Figure 82). Serbia’s judiciary also ranks the worst in comparison to neighboring countries in the region, including both EU and non-EU members.
  1. The World Justice Project Rule of Law Index 2014 examines perceptions of corruption in both civil and criminal cases.456 In civil cases, Serbia scores 0.40 and ranks behind all EU11 countries, and second only to Albania as the worst in the region. In criminal cases, Serbia scores 0.41 and ranks second-last compared to the EU11, after Bulgaria, and second-last in the neighboring region, after Albania.
  1. Similarly, in the Life in Transition Survey,459 Serbia is ranked 20th out of the 29 Central and South Eastern European Countries. Around 6 percent of respondents in that survey reported that unofficial payments are usually or always needed in civil courts. This compares to 5 percent in Slovenia, 6 percent in Croatia, 7 percent in FYR Macedonia, 8 percent in Bulgaria, and 10 percent in Romania.
  2. Lastly, according to the Business Environment and Enterprise Performance Survey (BEEPS), around 6 percent of firms reported that bribery is frequent in dealing with courts.460 The BEEPS shows a significant improvement in perceptions of corruption since 2008, although not quite approaching EU11 levels (see Figure 86).

v. Judicial Independence and Perceptions of Judicial Independence

  1. A range of legal safeguards exists to protect the independence of the judiciary. Further reforms are underway to remove vestiges of dependence, including the removal of the Parliamentary approval of appointments.462
  2. Notwithstanding the legal protections, a significant portion of judges and prosecutors report that their system is not independent in practice. Around 25 percent of judges and 33 percent of prosecutors report that the judicial system is not independent.463
  3. Lawyers and court users are even more skeptical of the independence of the judiciary. Around 50 percent of the members of general public and business sector, and 56 percent of lawyers report that judicial system is not independent.464 Among the general public and business sector, those with recent court experience are more likely to consider the judiciary not independent. Discouraging as this may be, court users’ perceptions have actually improved since 2009.
  1. Judges, prosecutors and lawyers point to a range of institutions influencing the judiciary’s independence. The majority of judges, prosecutors, and lawyers expressed the belief that the media, politicians and political parties are the most responsible for jeopardizing the independence of judicial system, but other institutions have their share of responsibility as well. More than 35 percent of judges and prosecutors argue that specific ministries and the government jeopardize the independence of the judiciary. The general public also report that the influence of political parties impedes independence and reform.467 In interviews, stakeholders reported several methods through which independence is undermined, most notably politicization in the appointment and promotion processes for judges and prosecutors, as well as commentary by government officials and influential figures in ongoing cases.
  2. The 2014 World Economic Forum’s Global Competitiveness Report468 ranks Serbia’s judiciary 129th out of 148 countries for judicial independence. With the exception of the Slovak Republic, Serbia lags behind all EU Member States and non-EU neighboring countries in the region. The results are similar in the 2014 Bertelsmann Transformation Rule of Law Index,469 where Serbia ranks last behind the EU11 with a score of 6.0 out of 10 for judicial independence.470

vi. Perceptions of Impartiality and Fairness

  1. Perceptions of fairness diverge depending on perspective. Only 52 percent of the public and around 60 percent of business representatives consider the judicial system to be fair. This view is consistent across court users, non-users, and lawyers alike. In the Argus Survey, the view was even more pessimistic, where only 11 percent of the general public reported that they consider the judiciary to be impartial.472 Nonetheless, about 80 percent of judges and prosecutors evaluated the system as fair. On one positive hand, court users with experience in court cases evaluate the fairness of their own trial more positively than the fairness of the judicial system in general (See Figure 91).
  1. Naturally, the evaluations by court users were biased by the outcome of the judgment in their case.475 However, the majority of those for whom the judgment was not in favor still evaluate the trial as fair, and around 20 percent as fully fair (see Figure 92). Interestingly, court users who were self-represented regarded the process in their case to be fairer than those who engaged an attorney.Stakeholders suggest that this difference is more likely to be due to low public trust in attorneys and attorney behavior towards clients, rather than a reflection on the conduct of the judiciary.
  1. Perceptions of fairness are improving among the public and court users. While the majority expressed more negative than positive perceptions in 2009, the trend reversed by 2013. Still, most reported the system as only ‘partly fair’ rather than ‘fully fair’ (see Figure 93). Among professionals, judges and prosecutors reported that fairness is deteriorating, while lawyers were more positive (see Figure 94).
  1. Attitudes towards fairness have a significant influence on court users’ decisions to file an appeal against the decision in their case. Among court users who received a decision that was not in their favor but continued to report the trial to be fair, only 8 percent of the public and 6 percent of business sector filed an appeal. However, where court users reported the trial to not be fair, 63 percent of the public and 63 percent of business sector filed an appeal. The response of court users to perceived unfairness is rational, but it also highlights how improvements in perceptions of fairness can reduce appeals and improve quality and efficiency.
  2. Overload and poor organization were reported to be the most responsible. The majority of judges, prosecutors, and lawyers agree that the primary reason for unfairness lies here. Prosecutors are increasingly concerned, and in 2013, 25 percent more prosecutors named overload and poor organization as the reasons for insufficient fairness in the judicial system.481 This highlights the positive relationship between efficiency and quality – improvements in the Serbian judiciary’s efficiency would produce more fairness in justice services in the view of those practicing in the system.
  3. Politicization and corruption were also cited among the primary reasons, but stakeholders diverged in their emphasis on this point. More lawyers and court users than judges and prosecutors cited politicization and corruption as influencing factors in unfairness. Also, the percentage of naming corruption somewhat decreased among all three groups (see Figure 96).
  1. Socio-economic status was also often cited as a reason for unfair treatment. 25 percent of judges, 22 percent of prosecutors and 40 percent of lawyers reported that the public is treated unequally by virtue of their socioeconomic status.
  2. Laws are also perceived to be part of the unfairness problem. More than one-third of judges and prosecutors, and 45 percent of lawyers named the poor legal provision as a source of unfairness. In particular, biased laws were identified as a cause of unfairness, and a significant number of judges, prosecutors, and lawyers in the survey reported that unfair and biased laws negatively affected the fairness of the judiciary system. This should give some food for thought to the various working groups drafting laws, including to their composition and consultation mechanisms. Overcoming these perceptions could improve opinions of the justice system more broadly while creating more buy-in for laws to be implemented effectively (for a further discussion on law-making, see section above).