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Serbia Justice Functional Review

External Performance Assessment > Access to Justice Services

b. Affordability of Justice Services (Financial Access to Justice)

  1. This section assesses system performance against the agreed indicators and standards outlined in Indicator 3.1 of the Performance Framework. As financial access is a particular concern in Serbia, several indicators are measured.
  2. Financial access to the court system is the largest barrier to access to justice for most Serbians. Box 14 below gives an indication of average total costs for court users in 2013.

Box 14: How Much on Average Do Court Users Pay?

Average total costs as reported by court users in the Multi-Stakeholder Justice Survey 2013 including all court fees, lawyers’ fees, and travel costs, but not including fines.

  1. On further examination, however, it is not absolute costs but perceived value-for-money which drives court users’ concerns. Box 15 below highlights the clear relationship between access to justice and quality of services delivered.

Box 15: Costs vs. Quality – An Insight into Court Users’ Perceived Willingness to Pay

Whilst court users complain about the costs of going to court, they are far more willing to pay if they are satisfied with the quality of justice services delivered. As shown in Figure 98, 75 percent of court users who report that the quality of services they received was low also reported that the costs were excessive. By contrast, the 29 percent of court users who reported that quality was high considered the costs to be excessive.

The above results lead to the conclusion that improvements in quality would increase not only user satisfaction but also access to justice. These results highlight the interaction between efficiency, quality and access. Users who experience a lengthy time to resolution are likely to have paid more and be less satisfied with the service. By contrast, users who receive a prompt high-quality service are more likely to be satisfied and to perceive value in that service.

  1. Justice services entail many individual costs to the user. The section below examines court-related costs, lawyer-related costs, and specific financial access issues facing lower-income Serbians, including court fee waivers, court-appointed attorneys, and legal aid.
  2. Serbia does not have a system of private insurance for legal costs, so court users must pay fees out-of-pocket. Serbia is among only 13 countries monitored by the CEPEJ where such a system does not exist.493

i. Affordability of Court Fees

  1. Court fees are set out in the Law on Court Fees.494 Fees are based on the stated value of the claim, up to a cap of 97,000 RSD.495 Fees are paid on every motion submitted,496 every decision rendered,497 and every court settlement reached in all litigious processes and commercial disputes. In uncontested proceedings, a nominal fee of 390RSD applies in some instances, though higher fees apply for uncontested processes involving property, such as inheritance procedures or division of property. Fees are also charged in criminal cases initiated by a private party, and Serbia is one of only eight countries monitored by the CEPEJ that charges such fees.498
  2. Court users cite the court-related costs as a considerable obstacle to access to the judicial system in Serbia. In the 2014 Access to Justice Survey, focus groups stressed that court processes (particularly litigation) are considered very expensive even by educated citizens in Belgrade who are active in the economy. In the 2009 and 2013 Multi-Stakeholder Justice Surveys, the public with experience in court proceedings identified court costs as the most significant constraint as well. (See Table 19 below.)
  3. Notably, businesses report that the courts are becoming increasingly inaccessible to them due to high costs.499 In 2013, nearly 20 percent more businesses without court experience reported that court costs impact their access to courts compared with 2009. Approximately 7 percent more business entities with court experience reported in 2013 that court costs impeded accessibility than in 2009.
  4. Half of the public and business representatives surveyed considered court-related costs in their particular case to have been excessive. These figures remain approximately the same as from 2009, except in misdemeanor cases. The Misdemeanor Court is increasingly unaffordable to users. In comparison with those who did not have experience with a court case, a considerably higher percentage of experienced citizens cite high costs, suggesting that perceptions of high fees are not a myth but based on the experience of users.
  5. The majority of survey respondents state that costs of their own court case represented a burden on their personal budget. Compared to 2009, these figures remained constant with the exception of misdemeanor cases where, in 2013, a higher percentage of users stated that costs of their court case were a significant burden on their budget.
  6. These perceptions are rooted in reality, particularly for those from less affluent parts of the country. As seen in Table 19 below, court fees for a divorce case, among the least costly in terms of court fees, would require the average person in Novi Pazar to pay 76 percent of their monthly net income in court fees alone. When attorney fees are included, even at the commonly discounted rate, the Novi Pazar resident would be required to pay nearly five times (523 percent) of their monthly net income to cover the total costs of the case. While a much wealthier Belgrade resident would pay only 20 percent of their average monthly net income in court fees for a divorce proceeding, once attorney fees are included, costs for a divorce would exceed the average Belgrade resident’s monthly net income.
  1. By contrast, court fees become relatively inexpensive in high-value civil cases.503 There is a cap on court fees at 97,000 RSD (1,100 EUR), and stakeholders report that the cap distorts incentives when the cost of the claim is high by encouraging very wealthy individuals or large companies to pursue unmeritorious claims, exploit procedural inefficiencies or mount frivolous appeals. This anomaly could be rectified by removing the cap and simplifying the court fee structure based on the percentage of the claim.

ii. Timing of Court Fees and Related Expenses

  1. The Law on Civil Procedure envisages that each party pays court fees before they submit an initial claim or answer. The court will not suspend litigation for failure to pay fees; however, many potential or unseasoned court users may not be aware of the rule. In any event, the existence of significant upfront fees may deter access to the courts.
  2. While court users report that the highest percentage of the overall costs of court proceedings relate to court fees, litigants may incur other significant costs. These include expert witness fees, witness expenses,504 translation costs, and costs of placing ads on the court bulletin board. Users also incur personal costs, including their own travel and time off from work to visit lawyers and participate in proceedings. One participant in the focus groups noted that:

    ‘(...) I can’t do my job and do this [pursue the case in court] at the same time, so I lose money. That’s why it’s very expensive, really time consuming and burdening.’505

  3. Expenses such as those of expert witnesses must generally be paid in advance by the party who suggested their appearance before the court. In those instances, the court will proceed with the case without the report of the expert witness unless/until the expert fees are paid.506 Some may be willing to produce an opinion before they are paid, however, given the growing problems with arrears, fewer and fewer experts are willing to do so (for further discussion on the impacts of arrears, see the Financial Management Chapter). Other expenses related to evidence, including those of other witnesses, shall be paid in advance or shortly after presentation of respective evidence.507 These costs and their timing add further disincentives for parties to pursue cases.
  4. Upfront costs further deter users because of the expected delay in recouping them. According to the Access to Justice Survey, when respondents who had not taken cases to court were asked why they would not do so, the most common reason cited was the expectation that proceedings would last too long (49 percent).508 Serbia has also experienced periods of higher inflation in recent years, leaving court users out of pocket because of the delay. The expectation of a long delay in recouping costs if the party is successful may in itself deter access.
  5. Constitutional Court cases pose slightly different access problems. Individuals who file an appeal to the Constitutional Court of Serbia (the last legal remedy that has to be used before a case can be brought before the ECHR) are not required to pay court fees but are generally required to cover their own attorney costs. In addition, prescribed attorney fees for Constitutional Court proceedings are very high.509 The inability to recoup these expenses would deter many potential court users from pursuing their claims.
  6. Many courts maintain an online fee calculator that enables potential litigants to estimate their court fees before filing a case. This conforms to the CCJE standard510 that ‘(…) technology should be developed whereby litigants may (...) obtain full information, even before proceedings are instituted, as to the nature and the amount of the costs they will have to bear’. It is arguable whether these calculators alone can empower users to be informed about their costs up front, given that they don’t provide all necessary information and explanations of the complexity of the fee schedule, including its dependence on the value of the claim and the type of case. As a result, parties seeking to understand the likely fees still need to visit the court to have court staff assist them. The online fee calculators would be more helpful if they contained explanations as to when a specific fee has to be paid and whether it should be paid by a plaintiff, a defendant, or both parties.

iii. Accessibility of Court Fee Waivers

  1. Box 16: Inconsistent Application of Court Fee Waivers In 2013, a lawyer assisted two indigent clients in Vojvodina in their claims for review of their legal capacity. The lawyer reported to the Review team that the two parties had identical circumstances – no income, no property and living in the same psychiatric hospital. Identical claims were submitted to two different judges of the same court requesting a waiver for the costs of medical examinations. One was accepted while the other was rejected. The second matter is currently awaiting appeal.
    The Civil Procedure Code allows for court fee and cost waivers for parties who are financially unable to cover court-related costs.511 As demonstrated in Table 19 above and confirmed in surveys, lower income individuals are deterred from courts because of costs, and fee waivers may be critical to enable their access. Particularly in labor- related civil proceedings involving unpaid wages, a court fee waiver may determine whether the person can proceed with their claim or not. However, there is very limited understanding of the court fee waiver option among the public, therefore many potential users would be deterred from the courts unaware they could access this benefit.
  2. The court fee waiver program is largely undocumented. Official statistics and information on the number and amount of fee waivers granted by courts is lacking. Information about fee waivers is not recorded in AVP,512 and manual registers of waivers are not kept. The only recording of fee waivers is by individual judges in their orders, therefore aggregation of data is not possible. It is possible that court fee waivers represent a ‘positive story’ where the court system is improving access to justice for poorer court users. However, it is difficult to measure any impact without better data.
  3. The court fee waiver program is unstructured and largely goes unmonitored, resulting in divergent practices. There are no guidelines or standardized forms on granting a waiver. As a result, court practice varies according to information provided in interviews with attorneys and judges. Two different courts could rule on fee waiver requests entirely differently for persons in similar circumstances. Some courts report they apply a ‘rule of thumb’ that the higher the court fees, the more that should be provided in support of the claim; while other courts apply no such rule. In some locations, the judge or the presiding judge of a panel decides, in others the judge confers with the Court President. In some locations, two judges of the same court could rule differently, as shown in Box 16. The lack of structure and guidance on fee waivers creates an inherent inconsistency in access to justice across the court system.
  4. Though practice varies, stakeholders report that courts tend to consider the party’s property, income. Courts may also consider the party’s financial dependents as well as the value of the claim.513 In practice, interviewees indicated that judges would usually grant a waiver if the party submits an official statement to show they are unemployed and own no real estate. Recipients of social welfare may also be free from the duty of pay related costs of procedure, but again this is applied inconsistently.
  5. Stakeholders reported that some Court Presidents informally discourage their judges from approving fee waivers as fees form a significant proportion of courts’ budgets (for further discussion of budgets, see Financial Management section). It is not possible to verify this claim, but if proven accurate, would suggest that extrinsic factors are influencing the access to justice of individual users and that practice is indeed inappropriately divergent.

iv. Affordability of Attorneys

  1. Parties in most cases choose to hire a private attorney for representation. The law requires only in some procedures that a party be represented by an attorney,514 but in civil cases 65 percent of court users reported hiring an attorney, while 53 percent did so in criminal cases. There is also a high ratio of lawyers-to-population in Serbia.
  2. Hiring an attorney is advisable if not necessary, due to the complexity and ambiguity of law and practice. Further, court users report they are strongly discouraged by peers to ‘go alone’ because the lawyer’s relationship with the judge may determine the outcome of a case. As stated by a participant in a focus group ‘the price of the lawyer also includes acquaintance with the judge.515
  3. Attorney fees and costs are highly regulated.516 The Attorney Fee Schedule specifies fees for each type of proceeding and each legal action or motion.517 Parties can negotiate, but fees must not be greater than 500 percent nor less than 50 percent of the tariff rate. In practice, assessments of payments reveal that the Attorney Fee Schedule is unrealistic.518 Stakeholders reported it is common for parties to pay 50 percent of the tariff rate. In poorer areas outside of the cities, particularly in the South and East of Serbia, rates are likely to go below the 50 percent threshold.
  4. The Attorney Fee Schedule is out of step with European practice and should be removed. In 42 of the 47 Member States of the Council of Europe, lawyers’ remuneration is freely negotiated.519 The European Court of Justice has found that the mandatory minimum fee violate Article 49 of the EC Treaty.520 To align national legislation with the Acquis, there is a strong trend among EU Member States and Candidate Countries to move away from fixed tariffs. During its accession process, Croatia amended the Law on Attorneys Service in 2008 to provide greater flexibility to attorneys in setting fees. Similarly in 2004, Romania eliminated minimum fees and strictly prohibited price fixing.521 Existing EU Member States have moved in the same direction.522 Where fixed prices have been removed, several EU Member States have maintained recommended fee schedule for services, which may be set by either the professional body or the MOJ. These are justified on the basis of being a guide for consumers and judges in awarding costs, as well as a default scale in cases of where no agreement on fees is reached between the lawyer and the client. However, the EC advocates that both fixed and recommended fee scales are restrictive and anti-competitive forms of regulation and should be abolished at the earliest opportunity. The EC also argues that relevant information on the costs of legal services for consumers could be provided through alternative means far less restrictive of competition, such as the publication of historical and survey-based price information by independent parties, such as consumer organizations.523
  5. Further, attorneys are paid per hearing or motion on the Fee Schedule, which is in conflict with CCJE opinion that ‘the remuneration of lawyers and court officers should be fixed in such a way as not to encourage needless procedural steps.524 Attorneys who accept payment by the case are rare.
  6. Attorney fees are very high compared to the average per capita income in Serbia, particularly in criminal and civil cases.525 The recent Fiscal Impact Analysis of Free Legal Aid Options conducted by the World Bank indicates that the average attorney’s fee in a criminal case is 118,000RSD, while that for a civil case is 75,000RSD.526 The average criminal advocate fee is thus 17 times that of the average monthly net income of a resident of Novi Pazar, and more than four times that of the average monthly net income of a Belgrade resident.
  7. According to the 2013 Multi-Stakeholder Justice Survey, 71 percent of the citizens with court experience found attorney-related costs to be one of the most insurmountable barriers to access to the judicial system.527 Perceptions of affordability have deteriorated since 2009. 76 percent of respondents reported fear of inability to cover attorney-related costs strongly affects their decision on whether to bring a dispute to a court. Strikingly, the percentage of companies that find the judicial system inaccessible in terms of attorney-related costs rose by 18 percent from 30 percent to 48 percent in the period between 2009 and 2013.
  8. Attorney fees create a barrier to access to justice for business, particularly small businesses. 52 percent of companies with 3 to 10 employees cite that attorney-related fees make the judicial system inaccessible, while 47 percent cite that court fees make the system inaccessible. Although these percentages decreased with size of the company, they remained obstacles even for larger companies (see Figure 103).
  1. There are also concerns regarding the variable quality of attorneys. Several stakeholders report hearing large numbers of complaints regarding the quality of attorneys528 . Mechanisms for redress regarding the conduct of an attorney are opaque, and discipline of attorneys by any of the Bar Associations is rare.529 Stakeholders were unable to point to any instance – of ex-officio attorneys or private attorneys – where an attorney has been sanctioned for malpractice. In a positive step however, attorneys are now required to hold professional liability insurance, and each Bar Association is able to pay for collective insurance for its members. So claims by former clients against negligent attorneys may be more likely in the future.530

v. Use of Ex-Officio Attorneys

  1. Court users report that attorneys were appointed ex-officio in 17 percent of criminal cases and 2 percent of civil cases. Although the law requires ex-officio appointment in some cases,531 no official data are collected on the number of appointments or the types of cases where ex-officio appointment is most common.
  2. Stakeholders expressed some concern regarding the integrity of the process for identifying ex-officio attorneys. The respective Bar Associations maintain lists of attorneys who specialize in criminal law and are available for work.532 However, practice differs regarding the use of this list. In the past in Belgrade, the Bar Association had a telephone number that police, courts or prosecutors could call and be directed to an attorney. This practice was perceived well by stakeholders. Unfortunately, the practice ceased in 2013 amidst uncertainty regarding the leadership and management of the Bar. Outside of Belgrade, no such hotline has ever existed. Instead, the police make a series of phone calls looking for an attorney, relying either on the list (often an old copy) or their personal contacts. Since the introduction of the new CPC, there has been some limited change in practice, but this has not addressed the problem. Prosecutors in Belgrade reported that they are required to make calls looking for an attorney.533 They express discomfort with this process, given their high workloads and potential exposure to criticism and conflict of interest. Meanwhile in most if not all locations outside of Belgrade, police calls remain the standard practice.
  3. Stakeholders expressed similar concern regarding undue influence in the appointment of attorneys. In some locations, the police, prosecutor, or the court reportedly narrow the list of attorneys and appoint only those who will encourage confession and lessen the workload of the case. It is not possible for the Review to substantiate these claims, but, if proven, such practices would deny defendants of the right to legal assistance of their own choosing under Article 6 (3) of the ECHR. The same concern has been expressed by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on several occasions. In 2011, it reported that:

    ‘As had been the case during the 2007 visit, several detained persons who had benefited from the services of ex-officio lawyers complained about the quality of their work; in particular, the ex- officio lawyers apparently met their clients only once (in court), and often tried to convince them to confess to the offence for which they were being charged. Once again, the delegation heard allegations that the choice of a particular lawyer had been imposed on the persons concerned by the police.’ 534

  4. The work of ex-officio attorneys is not monitored to ensure quality control. Information regarding appointments is not entered into AVP, or if entered, it is as a ‘general remark’ not suitable for running analytic reports. Some stakeholders report that the quality of work by ex-officio attorneys is lower than party-funded attorneys due to their limited accountability. Several stakeholders allege that ex-officio attorneys are more likely to pursue unmeritorious claims and appeals to increase their billings. In the absence of data or quality control mechanism, the Review team is unable to substantiate these claims.

vi. Accessibility for Unrepresented litigants

  1. Court users report that they represent themselves in around 30 percent of criminal cases and 30 percent of civil cases.535 No official data are collected on the number of defendants who self-represent.536
  2. Self-representation would be very challenging in the Serbian context and place unrepresented court users at some disadvantage in terms of their access to justice. Judges usually guide or support self-represented litigants to ensure fairness. However, there is limited information or guidance for self-represented litigants, such as lay guides, checklists (see discussion of informational access below). The challenge is borne out in the results. In the 2013 Multi-Stakeholder Justice Survey, respondents who represented themselves had judgments go against them in a higher percentage of cases (60 percent) than people represented by a private lawyer (44 percent). The introduction of an adversarial system under the new CPC is likely to deepen the challenge in criminal proceedings. Initiatives to improve access to laws and court procedure (see below) would better enable users to navigate the court system. Initiatives to simplify case processing in the kinds of cases where users self-represent, such as in Misdemeanor Courts and in the pursuit of small claims in Basic Courts, could also improve access to justice for large numbers of people, while producing quality and efficient outcomes. For a further discussion on small claims, see the Efficiency Chapter.

vii. Legal Aid Programs for the Indigent

  1. The right to an attorney when fundamental rights are at stake is enshrined in international standards. The further right to an attorney provided at state cost when a person cannot afford an attorney is outlined in the EU’s Charter of Fundamental Rights,537 the ECHR,538 and the United Nations’ Principles on Access to Legal Aid in Criminal Justice Systems. In Serbia, the Constitution guarantees the right to legal aid, but does not define ‘legal aid’ or who can provide it.
  2. Current legal aid providers deliver an incomplete patchwork of services across Serbia. Around 46 municipalities have Municipal Legal Aid Centers (MLACs), and an additional 10 municipalities deliver legal aid without an MLAC. Together, these cover around one-third of the country and around one-half of Serbia’s total population. However, the remaining municipalities do not provide the mandated services either because of funding or capacity constraints or because they do not prioritize the service. In Vojvodina, 28 of the 47 municipalities offer legal aid to the citizens.539 Only six of these municipalities provide legal aid that includes representation before courts and administrative bodies, and the rest provide limited advice or information. Outside of Vojvodina, the situation is likely to be worse. Law Faculty Clinics and CSOs also provide some legal aid services in specific topics, such as refugee law and human rights protection.
  3. National data is not collected on the number of instances of legal aid, nor on how much money is spend on legal aid service provision. Among the 47 countries monitored by the CEPEJ, Serbia is one of only four countries where it is impossible to identify the budget allocated for legal aid.540 Based on the municipal survey across Serbia in 2012, the 56 or so municipalities that provide legal aid of any form responded to 73,000 requests for assistance, offered advisory services 57,000 times, made 29,000 free submissions, 17,000 paid submissions, and 17,000 written submissions. Requests for assistance equaled slightly more than 2 percent of their collective populations. This was accomplished with a staff of around 80 legal advice providers and 20 support staff. In total, there were 911 requests per provider, 565 requests for submissions, and an estimated 379 actual court cases filings per provider.541
  4. Most citizens are unaware of any free legal services that might be provided in their city or municipality.542 In the Access to Justice Survey, 58 percent of respondents across Serbia reported that they were not aware of any service that provided legal aid. An additional 25 percent indicated that no organization in their city or municipality provides free legal assistance to citizens. Namely, 82 percent of the respondents could not name a single organization or institution that provides legal aid free of charge, even when an MLAC is present in their municipality. Some of those who named an organization did so incorrectly – for example, 4 percent named the Ombudsman Office as an institution providing free legal aid, when it does not.
  5. Where services are provided, they are perceived by clients to be of good quality. In the Access to Justice Survey, 93 percent of the respondents who used legal aid services were satisfied with those services, a resoundingly positive endorsement.543
  6. Rates of use of free legal aid, types of services provided, and satisfaction with services provided are not tracked or assessed at a central level. Data are fragmented and neither collected nor analyzed – some legal aid providers do not keep records at all.
  7. Reform is underway to expand legal aid consistently with EU standards. A Working Group to draft a Free Legal Aid Law has been working on-and-off for several years.544 A working group is aiming to finalize the draft, although that group met once in 2014. Key features of the draft law are outlined below, and some and remaining ‘sticking points’ and risks are highlighted.
    1. Primary legal aid (such as an initial consultation and the provision of general information and initial advice, as well as the drafting of documents) would be provided for all case types except commercial cases by a host of service providers, including MLACs, CSOs, trade unions and Law Faculties. All persons providing primary legal aid must be law graduates. However, no state funding is to be provided for this primary legal aid service, and there is no requirement for municipalities to establish MLACs. Delivery would presumably rely on international donor support or funding from individual municipalities. This is an area of high risk for implementation, because there is a high likelihood that primary legal aid would be underfunded. It is also likely that, without support, those municipalities that do not already have MLACs will not open them. Under the current scenario then, primary legal aid would continue to be provided inconsistently across the territory and underfunded compared with needs.
    2. Secondary legal aid (such as representation in courts and mediation) would be provided for certain types of cases only, focusing predominantly on criminal defense. It would be delivered by those providers who are eligible to represent clients in court, as per the procedural rules that govern the time of case in question. In effect, this means that Bar Association attorneys will be the predominant providers of secondary legal aid. It is not clear whether trade unions or some other professional organizations may also be in a position to represent their members. It is also not clear how representatives would be chosen or allocated to cases. This aspect of the policy also poses high implementation risks. Relying on Bar Members for the bulk of service delivery would significantly increase program costs beyond what the justice system can likely afford in a challenging fiscal environment.545 Further, Bar Members do not always have expertise in the types of cases where the poor need assistance, whereas associations and CSOs often have staff dedicated to specializing in this work, several of whom have law degrees and Bar exams, but are not members of a Bar Association. There is thus concern that Bar Members would deliver a lower-quality service for a higher-than-affordable price. Also, it is unclear how users would be aware of secondary legal aid services and referred to service providers in areas where primary legal aid does not exist.
    3. Persons eligible to receive secondary legal aid would be individuals who already receive social benefits, as well as members of certain vulnerable groups (such as victims of domestic violence). Eligibility to receive social benefits would be determined through the database of the Ministry for Labor, Employment, Veteran and Social Policy (MLEVSP). However, it is not clear how any additional grounds of eligibility (for example based membership of a vulnerable group) would be determined.
    4. The MOJ would develop a FLA Fee Schedule for the compensation of secondary legal aid providers. The Fiscal Impact Analysis of Free Legal Aid advises that this Fee Schedule should be significantly lower than the existing Attorney Fee Schedule, which has proven to be unrealistic.546 There is some concern regarding the costing arrangements for all these service providers, and planning will be required to avoid the accumulation of arrears.547
    5. Quality standards would be proposed and a quality control procedure would be established by a unit that would be created within the MOJ to perform oversight and assure efficacy of legal aid service delivery. Both primary and secondary legal aid providers would be required to be listed in a Registry of FLA Providers, to be managed by the MOJ. The providers will be required to keep records on their services and report annually to the MOJ on the scope and form of provided assistance. For primary legal aid providers, this would increase their bureaucratic overheads, even though they would receive no funding from the State.548 It is unclear how the quality of legal aid service providers will be checked, and how data would be collected and monitored, particularly in secondary legal aid cases.
  8. Of most concern, there appears to be an imbalance in the implementation and funding arrangements between primary and secondary legal aid under the current draft of the proposed law. Efficient delivery of primary legal aid is likely to have the greatest benefit in terms of increasing access to justice for the largest numbers of people. It will be important to ensure that this aspect of the reform is adequately funded (although costs need not be high) and delivered consistently throughout the country, including in municipalities that lack MLACs. Meanwhile, proposals for secondary legal aid are likely to impact fewer users and could be very costly. The proposal appears not to have applied lessons from the current arrangements for ex-officio attorneys,549 so the quality of secondary legal aid services may be questionable. As a result, under the current arrangement both primary and secondary legal aid will face significant implementation challenges.
  9. Refinement, finalization, and operationalization of the draft FLA Law should be a priority. After years of languishing in successive working groups, it will be important for a simple and effective law to be passed that is consistent with the minimum requirements of Article 6 ECHR and can be applied consistently throughout the country. The law will need to be costed and funds allocated to enable implementation of both primary and secondary legal aid. The oversight unit at the MOJ would also need to monitor implementation carefully, including by collecting and analyzing data on cases, beneficiaries, providers and service quality, and should be prepared to propose corrective measures for the continual improvement of the program. Without significant financial and operational planning and oversight, there is a risk that the reform may become ‘stillborn’ like others before it.
  10. Lessons from legal aid systems in the region may be instructive in the final phase of refinement. A comparative analysis of legal aid systems was conducted by the MDTF-JSS in 2013, particularly highlighting Lithuania and Brcko, Bosnia, as two locations where legal aid has been implemented in a simple, effective, and fiscally responsible manner.550 It is increasingly common in advanced justice systems for legal aid to be provided on a user-provider payment system or voucher system, so that once a beneficiary is deemed eligible, the person can choose their own legal aid provider, rather than be allocated one. Such reforms have been known to improve both access and quality while enhancing user satisfaction and engagement in the process.
  11. If implemented effectively, the FLA law has the potential to transform access to justice, comply with Chapter 23, and improve the perceptions of the judiciary in the public. It will not address the concern that courts are too expensive for average Serbians, but it would help to ensure that those most needy have improved access. Given the recent fall in incoming cases before all courts (particularly sizeable falls in Basic Courts), the court system has the capacity to absorb such an increase in demand that may arise. The effectiveness of legal aid delivery would also be greatly enhanced by the range of efficiency and quality initiatives discussed elsewhere in the Chapter. For example, establishing a simplified small claims procedure that encourages self-representation through a streamlined user-friendly process would significantly reduce the demand for free legal aid and enable scarce resources to be focused on meeting core needs to comply with Article 6 of the ECHR.