Home   About     Activities    Documents    News    Functional Review   Procurement & Vacancies   Results & Reporting 

Serbia Justice Functional Review

Internal Performance Assessment > Governance and Management

b. Structures and Powers of Governance and Management Bodies

i. Distribution and Fragmentation of Functions

  1. A range of governance and management functions are currently under transfer within Serbia’s court system. Traditionally, both were almost entirely entrusted to the MOJ functions (see Figure 109). Out of a concern to enhance institutional independence, many responsibilities have been (or are being) transferred from the MOJ to the HJC and the SPC.604 The SCC also ceded some functions to the HJC, including the responsibility for the election and discipline of judges. The SCC maintains its key role as the highest court in Serbia through the management of courts and cases.
  1. The Councils have already assumed some key functions, and the NJRS anticipates more to come. Both Councils advanced their organization in the recruitment and selection of new judges and prosecutors. However, critical details related to the career management of judges, prosecutors and court staff remain undefined, such as their evaluation, promotion, handling of complaints, and their training.
  2. Still today, stakeholders report that the MOJ is ‘in the driving seat’ of the reform agenda while other stakeholders behave more passively. Yet the transition of functions has resulted in the MOJ being less involved in the implementation of reforms. Further, stakeholders report that the quality of interactions among stakeholders is oftentimes strained, and this undermines coordination and exacerbates existing fragmentation. There is thus a high risk that reforms will lack ownership among those responsible for their implementation, thus jeopardizing their success.
  3. Further, despite the re-shuffle, the current legal framework maintains several redundancies and inconsistencies, which inhibit system performance. Some gaps are created by the law and others by how the Councils assumed their new responsibilities or their interpretation of them. This affects the relationship between the MOJ and the Councils, and between the SCC and HJC. The MOJ, the HJC and the SCC still share responsibilities for setting and implementing some policies on court resources and operations.
  4. For example, effective caseload management is hampered by the bifurcation of functions between bodies. For several years, the SCC was in charge of the backlog reduction efforts, but the NJRS states that the HJC will be responsible for determining equitable caseload and the allocation of cases.605 The NJRS calls on the HJC to prepare Annual Reports on court performance and define the measures for its improvement, although the SCC Annual Reports are comprehensive in this regard. Both the HJC and the SCC still require that individual courts submit periodic reports on case movement, and that each court compiles its own databases on the results.
  5. There is also overlap regarding the promotion of judicial independence and integrity. Stakeholders report that the SCC is more active than the HJC in promoting independence, and many suggest that the HJC should play a more prominent role. The NJRS Action Plan charges the SCC with overseeing the measures to improve integrity within the courts,606 but the HJC is responsible for selecting and evaluating judges, and overseeing Integrity Plans.
  6. The management of civil servants is another area where overlap hinders effectiveness. All court staff are hired and managed by individual Court Presidents. The hiring of civil servants is made under the SCC’s broad direction, but the SCC has not traditionally issued guidelines, and the number of civil servants continues to be set by the MOJ. The overlapping rule-making authority may explain the enormous court-to-court variations in staffing patterns as well as the use of temporary, contracted, and volunteer staff to fill what Court Presidents identify as gaps. Starting in 2016, the HJC will be responsible for providing adequate training, compensation, performance management, and discipline for court staff. The HJC has not yet focused on these issues, but they will be critical to driving performance improvements.
  7. Progress on capital projects is hampered due to the bifurcated management of capital and current expenditures. Until recently, the HJC was responsible for the operation and maintenance costs for infrastructure, with the MOJ retaining authority for capital investments. As of 2014, the MOJ is responsible for both functions, thus facilitating a more coherent approach to infrastructure investment. From 2016, it is anticipated that the package of responsibility will move to the HJC. While the move may be appropriate, the to-and-fro of responsibilities discourages either institution from developing robust capacities. Oddly, for ICT resources, the same change may not occur. Rather, it is expected that the MOJ will remain responsible for capital ICT investments, while the HJC will handle operations and maintenance – therefore the bifurcation will persist. The judicial system should reconsider the placement of functions relating to capital and recurrent expenditures to ensure coherence in this important area.
  8. Looking forward, it will be important to plan for the legally mandated changes such that the Councils are prepared to assume their new functions at the end of 2015. More regular meetings among these fragmented stakeholders may also help to prevent issues ‘falling between the cracks’ and promote a more cohesive and coordinated approach to management of the sector.

ii. Composition of the Councils

  1. The establishment of the Councils is consistent with European standards, however several details in their composition and organization deviate from the CCJE’s recommendations.607 Reforms to strengthen the Councils are currently under discussion. Reforms are likely to require constitutional amendment and could be considered as part of a constitutional amendment package.
  2. The composition of the Councils and method of appointment of members is not consistent with the CCJE recommendations. The National Assembly elects eight of the eleven members of the HJC, with the other three members being ex-officio. The current composition of the Councils includes the Minister of Justice and a President of the Judiciary Committee of the National Assembly. The CCJE Opinion 10 (2007) acknowledges that Councils may have a mixed composition of judges and non-judges, but emphasizes that it must reflect the guarantee of the independence of the judiciary, and that any perception of self-interest, self-protection, and cronyism must be avoided. The CCJE rejects the inclusion of representatives of the other branches of government in the Council, particularly the Executive branch. The CCJE also recommends against a selection process whereby representatives of the other branches of government nominate Council members. The composition of Serbia’s Councils should thus be amended.608
  3. Opinion 10 makes two further suggestions regarding the composition which are not yet present in the Councils in Serbia. The first is the participation of technical specialists in the discussions on specific issues, although not as voting members. The second is the suggested selection of non-judge members to supply additional skills, knowledge, and viewpoints such as civil society or small business representatives. The Councils may find these additional voices valuable to their work.
  4. The en-masse replacement of Council members every five years is also problematic.609 The simultaneous replacement of all members represents a loss of institutional memory for any organization. The effect is particularly unfortunate at this stage, when the Councils are still developing their internal structure, procedures, and institutional competencies. This situation should be resolved by the adoption of a staggered replacement program for the elected members, as recommended by Opinion 10 (2007).
  5. Further, very little information is furnished about candidates in the nomination process. As a result, judges and prosecutors are unable to make informed voting decisions about those who should represent them. Public experts and professional associations are similarly unable to provide informed advice. Instead, stakeholders report that the process is dominated by political, personality and popularity factors, rather than the candidate’s track record of performance or their positions on Council policies. In future, nominations could be accompanied with some basic and objective statistics on the candidate’s track record and their plans for membership on the Council, which can be used to inform the process.
  6. Lastly, some managerial background would be valuable for the Council members. The management experience of judges and prosecutors generally is acquired on-the-job. Court Presidents and heads of PPOs receive most of this practical training; however the Law for the HJC precludes Court Presidents being candidates for Council membership. Familiarity with management principles and practices would be a considerable advantage in interacting with the Council’s management office and interpreting the information and recommendations it provides. An increase in managerial experience could be achieved by including management experience as a criterion for election.

iii. Powers of the Councils

  1. The Councils’ powers in relation to judicial appointments, promotions, and dismissals are more limited than what is called for in European and international standards. Currently, the National Assembly approves the initial appointments of all judges and prosecutors, as well as the appointments of Court Presidents and Chiefs of PPOs, the promotions of Public Prosecutors and the dismissal of Court Presidents and Public Prosecutors.610 Appointments by the legislature are rare in Europe, and they raise concerns for the independence of the judiciary.611 As stated by the Venice Commission:

    ’the involvement of Parliament in judicial appointments risks leading to a politicization of the appointments and, especially for judges at the lower level courts, it is difficult to see the added value of a parliamentary procedure.612

    Stakeholders are aware of this deficiency, and constitutional amendments are under consideration.
  2. As an elegant interim measure, the NJRS states that only one candidate should be proposed per position, depriving the National Assembly of its ability to select candidates among several. Nonetheless, the amendments should proceed as a priority, and would be a significant positive step to enshrine judicial independence and the separation of powers in Serbia.
  3. The passage of amendment will not be a panacea for barring all political influence as more subtle forms of influence exist. Perceptions among judges and prosecutors of the independence of their own judicial system is low, and perceptions are equally poor among lawyers and the general public,613 and these perceptions likely derive from something more than National Assembly approvals. Some stakeholders allege that judicial appointments become politicized at a very early stage, with political parties reviewing names well before National Assembly involvement, and that this practice has been embedded in the culture of the Serbian judiciary for decades.614 If that is so, then improvements in judicial independence and public trust and confidence would require changes to behaviors throughout the process. The implementation of appropriate governance and management across the judiciary will be critical to ensuring that the spirit of the amendments is upheld in daily operations.
  4. The passage of amendment will not be a panacea for barring all political influence as more subtle forms of influence exist. Perceptions among judges and prosecutors of the independence of their own judicial system is low, and perceptions are equally poor among lawyers and the general public,613 and these perceptions likely derive from something more than National Assembly approvals. Some stakeholders allege that judicial appointments become politicized at a very early stage, with political parties reviewing names well before National Assembly involvement, and that this practice has been embedded in the culture of the Serbian judiciary for decades.614 If that is so, then improvements in judicial independence and public trust and confidence would require changes to behaviors throughout the process. The implementation of appropriate governance and management across the judiciary will be critical to ensuring that the spirit of the amendments is upheld in daily operations.
  5. On financial matters, the extent of independence of courts and councils from the Executive seems to be appropriate. Some countries have established constitutional earmarks to protect their judiciary from encroachments on their financial independence. However, setting the right earmark is difficult. Further, judiciaries enjoying earmarks (predominately in Latin America) do not perform demonstrably better.615 Serbia is already at the high end of the ratio of judiciary expenditure as a percentage of GDP. If Serbia adopted an earmark based on the percentage of GDP, it would have reached the European limit; if the earmark was based on the percentage of the public budget, it would have exceeded the European limit. Rather, resource allocation within the judiciary suffers from excessive rigidity that is neither due to the resource envelope nor imposed by the MOF.616 Looking forward, better financial management, particularly within the Councils, will be critical to ensuring that the judiciary can exercise its financial independence more effectively.
  6. Beyond finances, the defined work and goals of the Councils remain unclear. The Strategic Guideline 1.1.2 of the NJRS Action Plan calls for the clarification of ‘specific competencies’ of the Councils through changes to the relevant rules of procedure. However, it does not specify which competencies are to be clarified and only offers examples instead.617 Both Councils should move rapidly to set these definitions lest another law sets the definitions for them.
  7. The organization of the Council members’ work is another source of concern. The details of internal organization were left to the Councils, but little progress has been made to date. The USAID SPP recommended the formation of internal committees, in particular a committee for budgetary matters. However, the Councils, the SCC, and the RPPO believe they may only adopt the structures and processes specified in the statutes and rules regulating their work. For this reason, the HJC indicated that it could not create internal subcommittees. This impasse will need to be resolved for the Councils to implement their mandate effectively or else the work will soon be overwhelming.618

iv. Managerial Capacities in the Councils

  1. The Councils will not be able to function effectively without managerial support. Council members constitute the governance body; they oversee management without engaging in it directly. This division of labor raises the question of whether the Councils’ managerial support is adequate. The CCJE and other EU and CoE bodies have not set specific standards, only emphasizing the need for an administrative or managerial office. In this light, the following analysis uses several criteria: the existence and implementation of an organizational plan; conformity of the plan with general management principles and its apparent adequacy in light of the tasks required.
  2. Each Council established an organizational plan and has taken steps to implement it. The organizational chart of the Administrative Offices of the HJC and SPC can be found in Figure 110 and Figure 111 The Councils do not have a General Manager or an Administrative Director, as is normal for this type of institution. Instead, each Council has a Secretary of the Administrative Office with a more limited level of competence and less senior job description. This role should be expanded to better enable the organization’s leader to advise the Councils on organizational and managerial matters. A structure analogous to the Anti-Corruption Agency may be more effective, where a Director leads the organization while reporting to a Board.
  3. The Administrative Office of the HJC is already sizeable. The structure suggests 45 positions, one ‘sector’, and three departments. One year following the approval of the rules,619 the Administrative Office of the HJC has filled 34 of the 45 positions. Personnel transferred from the MOJ staffed the sector for Financial and Material Affairs, and civil service personnel already working in the courts filled other positions. The Secretary of the Cabinet, a lawyer by training and experience, oversees the three departments while the Assistant Secretary of Cabinet, an economist, oversees the sector for Material and Financial Affairs. For these positions, prior management experience was not an official selection criterion. Also, the HJC counts only one ICT staff (currently on leave), and only one HR staff working only on internal functions such as payroll processing.
  4. The Administrative Office of SPC is smaller and less developed, but its role is narrower, focusing on the prosecution service. Overall, there are 16 employees in the Administration Office of which 12 are staff seconded from PPOs and four are temporary staff. The SPC counts two departments and one sector. With no heads of departments, all work funnels to the Secretary of the Administrative Office. There is no dedicated staff for specialist roles such as ICT, but plans are underway to recruit for those positions.
  5. If the Councils’ mandates were purely routine administration, the structure would be sufficient, but their role is far more complex and requires a broader range of skills. Both Councils fulfill basic administrative tasks. However, staff is unprepared to design, supervise, and implement more proactive approaches to management and planning since they lack managerial skills and backgrounds. For example, the HJC’s human resources capacity relates primarily to internal and routine HJC personnel needs. However, proactive HR management includes the assessment of personnel needs for the courts as a whole based on the changing nature of judicial work (new demands, new technologies, and new procedures). The structural change may require altering job descriptions and qualifications correspondingly, assessing and redefining judge-to-staff ratios, and identifying new types of expertise needed in the central and decentralized management units. Given the skill levels of its staff, it is not clear how the HJC would accomplish this change. More advanced tasks include assessing how additions of one type of resources can influence the needed expenditures in other areas, especially for budgetary planning. Budgetary analysts must consider both immediate costs (salaries and benefits, or the price of software design and installation) and the related costs of equipment, space, training, and maintenance requirements. Financial managers, in cooperation with other management units, should also identify alternative mixes of different inputs, their cost-benefit ratios, and allow for greater flexibility in resourcing.
  6. Furthermore, the HJC and the SPC organization charts do not include a function for overall planning based on statistical analysis and other hard data. The Strategic Action Plan (1.3.1) foresees the establishment of ‘working bodies’ to analyze the organizational performance in the Councils, although no action has been taken yet. The brief description in the Plan does not indicate whether these bodies would do any planning beyond producing reports and suggesting measures for improvement.
  7. Currently, the HJC’s planning and analytic capability is minimal. The HJC counts one position for ‘analytical-planning affairs’ in the department of Budget and Analytic Planning, although the job description only focuses on budgeting for salaries and current expenditures. In the same department, there is only one staff member in charge of processing data and the job description requires only a secondary education degree and two years of experience. In reality, the staff members see their daily job as clerical. The two statistical positions in the Department for Status Issues of Judges are largely devoted to processing data that are already collected automatically. Also, there is one database administrator in the HR department, but this person will only be working on the Council’s internal systems.
  8. Despite the many positions held by lawyers, there is neither an office nor a person to review the potential for procedural simplification or ways to remove the procedural bottlenecks in case processing. The position(s) focused on this topic might well fit in a planning and analytic office, assuming one is created. This office could also analyze proposals for procedural changes forthcoming from other agencies or branches of the government. Also, this office’s staff could lead the much-needed analysis of the financial implications of future reforms to ensure effective rollout in cooperation with the ‘sector.’
  9. The HJC’s design of its management unit corresponds to the traditional housekeeping approach to organizational administration and management. Once current positions are filled, the Council will need to consider the addition of units capable of analyzing performance, identifying areas for improvement, and developing suggested remedies.
    4Once the initial organizational structure is fully implemented, the HJC should review additional needs for more proactive management. This will mean first reviewing the qualifications for department and section heads to ensure that they (or their immediate advisors) can perform scenario-based and evidence-based planning using available data and comparative experience. It will be essential that the experience gained from other European countries is not isolated in the Department for European Integration, but is rather shared and implemented.

v. Structure and Capacities of the MOJ

  1. The MOJ comprises eight major thematic units each headed by an Assistant Minister.620 It also includes the Cabinet of the Minister and the Secretariat of the Secretary General of the Ministry. In 2013, the number of full time employees was 174, as well as 13 part-time staff and consultants. However, the HR plan envisages 228 employees. Comprehensive data on the number of permanent staff and temporary consultants in the Ministry were not available, but there is a wide range of donor projects supporting the MOJ and justice sector reform more broadly.
  2. The MOJ workforce is relatively well qualified for legal duties, with most staff having tertiary education.621 However, they are less prepared for policy and planning work or other analytical tasks.
  3. The MOJ’s main responsibility is for policy and legislative issues and as the interlocutor and chief negotiator in Accession Negotiations under Chapter 23. Performing these functions requires strong legal, analytical, planning and project management skills. Capacity development and training are therefore needed, particularly in policy development and project management. This would include basic capacities to analyze statistics, extract and present policy/relevant information in support of decision-making (through policy briefs, memos, reports, etc.). This will be of upmost importance for the accession negotiations for Chapter 23. The resource constraints of Serbia’s public sector are likely to remain, and clear prioritization is therefore needed. While the MOJ management is anticipating future business needs in a number of areas, there is no formalized human resource strategy.
  4. The Sector for EU integration and International Projects has limited resources to perform critical coordination and resource mobilization functions. Significant pre-accession funding is available to support reforms in the judiciary. At the same time, reporting and coordination requirements with EU authorities will further intensify as Serbia obtains official candidate status. The Sector currently employs 11 staff, including an Assistant Minister. The Sector also hosts the Reform and Accession Facilitation Unit (RAFU), which is funded by the MDTF-JSS and consists of 12 advisors. The RAFU provides analytical, advisory and reporting services in a number of key areas such as reform of the prosecutors’ services, reform of the judicial network, outreach and communication, resource analysis, legal aid, reform of legal professions, anticorruption, etc. To absorb the increasing workload during the pre-accession process, and to ensure sustainability, increases in permanent staffing in this business area should be prioritized. Most candidate countries increased staffing in accession-related functions across the public administration, including in MOJs during the EU accession process, often on secondment from other areas. After accession, such capacity will need to be sustained and mainstreamed throughout the MOJ.
  5. To ensure coordination of recurrent and capital budgeting, strong communications need to be established between the Sector for Material and Financial Planning, the HJC, and the SPC. While the Councils could assume responsibility for capital budgets in the long run, stronger mechanisms for cooperation need to exist in the meantime between the Councils and the MOJ. Current financial management is primarily concerned with transaction processing and compliance control, rather than resource planning (see Resource Management section). The Sector employs 23 staff, including the Assistant Minister. After the transfer to the Councils, a reorientation of the financial management function in the MOJ could be undertaken to provide wider policy analysis, monitor cost effectiveness, and improve performance and efficiency in the judiciary. This would require improved information and data management, including the development of a database on caseloads, staffing, and costs across the court network together with resource planning tools that link budget allocations to service demand and results.

vi. Managerial Capacities in the Courts

  1. Effective governance and management are particularly important at the court level. Court Presidents have traditionally managed and overseen their own courts and the courts below them in the hierarchy, at least in theory. In this sense, Court Presidents serve as mid-level governance and management bodies.
  2. It was thus concerning that Court Presidents had not been appointed since 2010 and many remained ‘acting’ for prolonged periods, and occasionally were replaced without justification. Stakeholders report that the prolonged ‘acting’ status of Court Presidents created various problems for these key players, including timidity in tackling management issues, self-censorship in sensitive matters, and a general feeling of uncertainty and dependence that negatively impacted performance in recent years. Fortunately, this issue has been addressed with the appointment of 141 Court Presidents in May 2014. This represents an opportunity to invest in these Presidents and build their managerial capacities.
  3. There are significant variations in court management among individual courts. The authorized functions of Court Presidents are quite extensive (see Box 17) and the structures of the courts and PPOs are set by detailed rules. However, there is no uniform approach to implementing these functions, and very limited guidance and accountability. On several field visits, stakeholders commented that it is not possible to comply with all rules, so they are forced to exercise discretion and make trade-offs as to which rules to break – an ironic sense that with too much rigidity comes disorder. The resulting variation is visible in staffing patterns, budget execution, arrears, judicial productivity and backlog reduction efforts, and in the use of automated systems and the submission of reports. Greater consistency is probably desirable although not at the cost of stifling productive innovation.
  4. The managerial abilities of Court Presidents are pivotal to success. Stakeholders report that the main determinant of a court’s performance is not its location, the number of incoming cases or its infrastructure but rather the quality of the individual Court Presidents and their willingness to address issues in their court.
  5. The performance of Court Presidents has been variable – those who have been strong base their success on individual enthusiasm and largely unrecognized effort. Very little training has been provided, and opportunities for Basic Court Presidents to meet and exchange experiences are rare. Some Court Presidents, even when they were ‘acting’, have been proactive in their management, setting clear expectations for performance among their judges and staff. Others simply fight fires in disarray. In between, there are examples highlighted throughout this Report of improvisations to solve ad-hoc problems that have led to innovations, and lessons could be learned from these and replicated around the country. Court Presidents report their courts court perform better – and their roles are made easier – in a governance and management environment where there are enough general rules to set parameters, but enough flexibility to adapt and innovate, reinforced by guidance and peer learning.

Box 17: From the Law on the Organization of Courts

The duties of Court Presidents include: representing the court, managing court administration, responsibility for proper and timely court operations by ensuring legality, order, and accuracy in the court; ordering the removal of irregularities, preventing procrastination in the court’s work, designating the panel of attorneys to provide free legal assistance, safeguarding the independence of judges and the credibility of the court, and other tasks set forth by law and the Court Rules of Procedure.

In Serbia, the court administration for which Court Presidents are responsible consists of tasks that support the exercising of judicial power, in particular: the organizing of internal operations, summoning and assignment of lay judges, activities related to standing expert witnesses and court interpreters, review of complaints and petitions, keeping statistics and drafting reports, enforcement of penal and minor offences sanctions, financial and material business of the court, and certification of documents for use abroad. The court administration is also regulated in more detail by the Court Rules of Procedure.

  1. Most Court Presidents lack specialized staff to assist them, and court rules are relatively silent or considerably outdated on the need for support staffing. Some Presidents have developed ad-hoc support teams. In Vrsac for example, an active and skilled team of middle managers assists the Court President to take decisions, implement, and monitor results. This approach should be systematized and the practice of using clerks for these tasks, or the hiring of contracted experts, should not be continued. Thus, in addition to developing staffing patterns for the Councils, a performance improvement program will require developing staffing profile to support Court Presidents. Some functions may be appropriate for a Court Manager, some for managerial advisors, and others for a combined IT/statistical specialist profile. Existing staff – especially judicial assistants and Court Secretaries – could rise to these roles. The key will be to create an attractive career path where positions have official recognition, detailed descriptions of responsibilities, selection criteria, and salaries commensurate with their market value.
  2. Under new governance arrangements, Court Presidents’ roles will be even more important. The Councils and their management offices will be responsible for setting and tracking the overall standards for their respective institution’s operations, monitoring their performance, and executing some centralized projects. However, the Councils require input ‘from below’ and a replication of some functions downwards through their organizational hierarchies. Further clarity on responsibilities and decision-making in higher-level courts is required. In addition, individual courts need to be adequately resourced to perform more modern tasks.
  3. Management by groups of judges would further enhance court performance and assist Court Presidents in carrying out their tasks. In the Netherlands for instance, the work is undertaken by Court Management Boards. These Boards function like a mini Council. If created at the Appeals Court level, the Boards might incorporate judges from lower courts. Service on the Boards need not be full-time, although Serbia has enough judges to make permanent Boards feasible. Much also depends on how much decision-making power the HJC delegates to the lower reaches of the judicial hierarchy. Similar considerations apply to the SPC and the prosecutors.
  4. While the HJC and the SPC should first focus on their own organization and management units, they will need to proceed quickly in defining the governance and managerial responsibilities of individual courts. This is where practical innovation to improve service delivery is likely to occur. Therefore, the goals for the HJC and the SPC should be to enforce uniform standards that still leave room for useful innovation.