Serbia Justice Functional Review

Internal Performance Assessment > Governance and Management

Effectiveness in Strategic Management

The adoption in Parliament of the NJRS 2013-2018 and its Action Plan represents a significant milestone for the Serbian judiciary. This second Strategy was built on the first Strategy that covered the 2006-2011 period. Each was designed with the objective of EU accession, and therefore both strive to align the Serbian judiciary with EU benchmarks. The specific aim of each Strategy was slightly different. While the 2006-2011 Strategy focused on the legal and structural change, the 2013-2018 Strategy focuses on the ‘fine tuning’ the new Framework.
The NJRS and Action Plan are comprehensive but overly ambitious. The NJRS provides a solid evaluation of the previous strategy, including a thorough and honest review of the limited progress made to date and the significant tasks that lie ahead. The document provides a lengthy list of goals without listing their prioritization. It will be difficult to implement the 237-page Action Plan within the five-year timeframe. Despite the significant efforts made within its first year, implementation is already experiencing delays (see further below).
Despite its purported emphasis on fine-tuning, the second NJRS focuses more on developing the law than ensuring the effective implementation of existing and new legislation and processes. To meet the Acquis requirements, the passage of new legislation will be inevitable (for a further discussion around the quality of laws and law-making in Serbia, see the Quality Chapter). However, the system should resist the natural bias of legal professionals to add legislation, which has been shown to be a suboptimal approach to improving justice services. Over the last two decades, the experience of judiciaries seeking transformation, including those in Eastern Europe, highlights the need to balance legal reform with pragmatic changes in practice and process. One pitfall is the passage of ‘stillborn’ law – legislation that exist ‘on the books’ but are incapable of effective implementation due to the absence of appropriate funding, planning, administrative, or practical elements that enable them.628
To avoid these pitfalls, the implementation of the Action Plan requires an organizational and managerial approach more than a legal one. Planning for effective implementation is imperative, as is recognizing that the passage of legislation is perhaps the beginning of a process and not an end. Budgets must be modified based on realistic estimates of new requirements. Reforms may also require changes to existing institutions, business processes, and workflows. Training is an important element in this change process, and it is of concern that the Judicial Academy’s focus to date has been on new recruits rather than the necessary in-service training that can equip the system to deal with reforms. Outreach is essential to raise awareness and to gain the buy-in needed by actors in the system to ensure their cooperation. Also, judiciary leaders should identify the behavioral changes they wish to see, and the system performance results they seek to achieve beyond the passage of a particular law. In a positive step, the Principle 5 ‘Efficiency’ lists some measurable indicators, such as the number of old cases, the number of courts and prosecutors per 100,000 inhabitants, and the scope and structure of the costs of the judicial network. With these indicators, specific targets could be identified and monitored, and the impacts of reforms could be measured.
The NJRS and Action Plan also lack a clear focus on how these reforms will affect the users. If there still is room for re-setting objectives (rather than eliminating them), stakeholders may consider these modifications before implementation is further waylaid. Prioritization could be given to reforms that provide the greatest impact in enhancing the court user’s experience of the court system, and improving the users’ satisfaction with justice services. According to the latest Multi-Stakeholder Justice Survey, stakeholders aware of the reforms show high expectations. These expectations could therefore serve as a selection criterion for any effort to prioritize activities.
By 2018, Serbia may have enacted the new laws and regulations listed in the Strategic Plan so that it may ‘check the boxes’ as requested by the EC. Whether behaviors and performance within the Serbian judiciary will have changed in accordance with the intended effects of the NJRS is not obvious. It may be that the NJRS requires a second stage of fine-tuning focused exclusively on the on-the-ground implementation.

The NJRS’s analysis of system needs appears complete, but the Action Plan may be overly ambitious and lacks a statement of how results will affect court users. If there is room for adjustment, the emphasis on new laws might to reoriented to prioritize those with most impact and fine-tuning might be directed to benefits that will be felt by users.

The HJC developed its own implementation plan for 2011-2013, but the Plan remains largely unimplemented. The plan for the most part incorporates goals and expands on those from the NJRS and Action Plan. For example, the plan stressed the HJC’s interest in participating in the drafting of the legal reforms affecting it operations. The HJC plan also identified mechanisms not mentioned in the NJRS and Action Plan, such as the use of consultations with judges and other stakeholders, a comparative analysis of solutions from other countries, and media promotion. The HJC plan was more specific on the delay and backlog reduction targets. Given the delays in the HJC’s implementation of its own structure, many of the goals are still pending realization but would make good targets for the next period. The plan’s short length and limited number of targets may be more practical than the longer NJRS Action Plan.

ii. Dissemination of Strategies

The NJRS documents do not appear to be widely known. In fact, the Multi-Stakeholder Justice Surveys showed that over time, the public awareness of the first reform process has dissipated. Correspondingly, all the existing buy-in was lost as a consequence.⁶²⁹
More critically, support for the older reforms decreased significantly among system professionals and staff between 2009 and 2013 (see Figure 112). While the question referred to the 2010 reform – and not the two strategic plans – the declines suggest a decreasing faith in the leadership’s ability to program positive changes.

Public awareness of the new strategy is even more limited (see Figure 113). Those aware of the new strategy have relatively high but unknown expectations for its progress. More dialogue with the public, particularly with court users, might better define what the Serbian population expects from their courts. Such dialogue may prevent disappointment and disillusionment later on.

If governance and management bodies want broader stakeholder ‘buy in’ to the reform agenda, further dissemination is required. Leaders may need to find ways to explain the reform more simply, with an emphasis on results and the likely impacts for court users. Without a proactive outreach signaling a shift in performance and culture, improvements in the perception of the judiciary are unlikely to occur even in the medium and longer term.
By contrast, more professional staff became aware of the new 2013-2018 Strategy than the former strategy, but its content remains not well understood (see Figure 114). The media are the staff’s primary source of information, in addition to informal discussions and their own reading of the legislation instead of a concerted effort by the judiciary to inform its staff.

Professional staff was generally less supportive of the new reform strategy, but more so than the general population and businesses (see Figure 115). This sentiment suggests the sector authorities could face resistance from within. Some resistance may already exist in pockets of a ‘counter-bureaucracy’ – a segment of permanent judges, prosecutors, and staff who acknowledge the existence of new rules but do their best to thwart their implementation. The reasons for such lukewarm support require further analysis. If the reason for lackluster support is purely due to a lack of information, then outreach of the NJRS – explanation of its goals, actions, targets, and intended benefits – would be timely to build awareness and harness the staff’s input in the system to meet the new goals. If the issue relates to specific concerns, perhaps some accommodations could be made to obtain the necessary buy-in.

Serbia’s public and its judicial sector staff are relatively uninformed about the NJRS. Judicial authorities might want to consider a multi-dimensional dissemination approach, one part aimed at the public, another at businesses, and a third at sector employees, whose attitude toward the strategy is somewhat mixed.

iii. Implementation of Plans and Measurement of Progress

The monitoring and coordination of the 2013-2018 Strategy rests with the Strategy Implementation Commission.⁶³⁴
The Commission leadership described its role to the Functional Review team as only reviewing the reports it receives about the NJRS implementation. The leadership also did not see itself as authorized to recommend changes to the content, order, or timing of activities called for in the Action Plan. This is arguably an appropriate role, and it would be well to leave the actual implementation to the HJC and SPC with the Commission overseeing and reporting on the results. ⁶³⁵
The Commission Secretariat called for in the Action Plan intended to provide the Commission with expert, technical, and administrative support has not been established, apparently due to lack of funding. Instead, the MOJ has been providing support to the Commission under the interim language of the NJRS via its RAFU.⁶³⁶ The Secretariat’s functions imply an ambitious role for the Commission.

Box 23: Duties of the Commission Secretariat:

Drafting updated versions of Action Plan for Strategy implementation;
Drafting proposals of recommendations and decisions based on the report of special working groups;
Setting up working groups for implementation of the main Strategy goals by coordinating their work, ensuring the continuity of cooperation with working groups which participated in the drafting of the Strategy and Action Plan;
Establishing coordination with representatives of other bodies envisaged for implementation of relevant strategies and action plans;
Considering projects financed from the international resources;
Assessing the cost of activities envisaged by Action Plan;
Collecting and compiling statistical data relevant to strategic decision-making, as well as other data serving as indicators for implementation of activities set out by the Strategy;
Collecting, compiling, processing, and analyzing data received from all the relevant stakeholders envisaged as institutions competent for the implementation of the Strategy under the Action Plan;
Drafting decisions and documents of the Commission, based on the collected and analyzed data;
Analyzing comparative reviews and international recommendations which are to be incorporated into the legal system of the Republic of Serbia, in order to align domestic legislation in the EU integration process; and
Performing other duties, as ordered by the Commission or on the basis of the Rules of Procedure, which are necessary for the implementation of the Strategy.

Responsible entities are obliged to provide data and information to the Secretariat regarding the Strategy implementation activities.

One potential disadvantage of the Commission’s chosen lesser role is that it leaves the MOJ as the sole interlocutor with the EU for reporting on progress meeting Chapter 23 criteria. This issue could be resolved through the formation of a Commission Secretariat organized to support the reporting process, and working in close coordination with the HJC and SPC to deal with the questions, data requests, clarifications, and criticisms forwarded by the EU experts. Alternatively, the two Councils could continue to work through the MOJ, decreasing their dependence by developing their own implementation and reporting capabilities. Neither arrangement satisfies the longer-term need to facilitate inter-institutional collaboration and exchange of information beyond the accession process. Other countries have enhanced coordination without creating another legally constituted bureaucracy. Serbia might try the same, via the formation of ad-hoc task forces to focus on specific problems as they arise. Before that happens, the two Councils should put their own houses in order.
However, as the Commission further defines its role, like the Councils, it will have to design and put in place a technical body to support it. So long as the MOJ continues as the interlocutor with the EU, this may be less urgent than staffing the Councils. Nonetheless, the implications for the adequate coordination of the reform plans also need to be considered. If the Commission lacks at least some staff, its ability to perform this function or serve as a forum for discussions will be limited.
With four years remaining, it is still possible to prioritize the Action Plan and achieve significant progress. It will be a challenge to effectively plan, draft, operationalize, and implement several dozen new laws in the remaining four years. At this juncture, further prioritization and sequencing would be useful. To meet targets, tracking of advances should be done more frequently. For the public’s benefit, as well as for the EU, each lead institution in the Action Plan might develop a means of reporting on progress at least twice per year.

iv. Capacity to Obtain and Analyze Stakeholder Feedback

In the Serbian justice system, there are very few feedback loops to enable stakeholders to provide input to the performance management process or to the reform process. Evaluations of judges works from the top down and focuses on discipline and compliance, and there are no corresponding processes to allow lower Court Presidents to provide input to the work of those above them in the hierarchy (superior Court Presidents, the SCC, the HJC, or the MOJ), or to provide feedback to improve or innovate system performance. There are few colloquia that bring together Court Presidents or judges of different court levels to discuss common challenges. Consultation processes for draft legislation are perfunctory for the reasons outlined in the Quality Chapter. As a result, leaders at the top of the system receive little feedback and lack information critical to evaluating the effectiveness of the system.
The Serbian judiciary does not conduct its own user feedback surveys. The World Bank MDTF-JSS has funded and implemented two large user surveys, and the judiciary has provided input and approval to both surveys.⁶³⁷
Whilst not a standard per se, advanced judiciaries in Europe and around the world, are increasingly using surveys as a routine data collection method to supplement statistical data. Surveys can be particularly useful in areas such as user satisfaction in terms of timeliness, costs, access to justice and integrity. Table 20 below shows that the majority of EU Member States monitored to the CEPEJ implement a range of surveys to seek the views of key stakeholders.

In Serbia, user feedback will be necessary to inform future performance improvements in courts. Looking forward, the judiciary should allocate budget and assume responsibility for implementing a survey to obtain stakeholder feedback. One option would be to fund further rounds of the existing Multi-Stakeholder Survey, which has already been designed and allows comparison back to 2009. Alternatively, the judiciary could develop a more modest survey targeting a smaller number of topics. Although the work involved in administering surveys can be outsourced, effective implementation will require an ongoing leadership commitment among the HJC, MOJ and SCC to generate and use feedback to drive performance improvements.
The Councils and SCC might also consider incorporating a feedback loop as they progress with their work, by creating focus groups of Court Presidents to obtain input and road-test proposals. Provisions for feedback from judges (and prosecutors) as well as court users and the general public would also be useful.

v. Communicating System Performance

The SCC currently compiles and publishes annual information on caseloads. Preparing these reports requires significant effort and many man-hours given the fragmentation of systems (see the ICT Chapter). The quality of data has improved over the last few years, and it is commendable that the SCC produces what it does in such a challenging system. Although it provides a large amount of information, it offers very limited analysis or synthesis; therefore its audience and consumption are limited. In the future, reports could include data on managing resources for performance including average workloads and productivity, ageing lists, numbers of personnel, investments in ICT, and infrastructure resources. Annual Reports could report on the results of the SCC and the court system in relation to the NJRS Action Plan and the Action Plan for Chapter 23. Annual Reports could include information about new initiatives to strengthen efficiency, quality and access, as well as analysis of performance challenges and updates on how they are addressing these.
The SPC produces an Annual Report, but its data are much more limited. The problem originates in the underdevelopment of automated data collection, which prevents much disaggregation or analysis of data. The current organization of data makes it difficult for the organization and outsiders to analyze the performance of the prosecution system, and there is little practical information. Once new data systems roll out in the medium-term, reports should improve and more detail and analysis could be provided.
Academics and larger CSOs could use the data available to conduct further analysis if it was presented in an amenable format, such as Microsoft Excel. To date, there has been no analysis of who uses annual report information or to what ends. In other judiciaries, analysis by academics and leading CSOs has been important in identifying the developments that may have slipped to the judiciary.⁶³⁹
Providing reports on performance (and on strategic progress) in a user-friendly format for lay readers would be useful for public access and general information. In any judiciary, detailed performance data are unlikely to be used by ordinary citizens, the business sector, the media, or small CSOs. International experience demonstrates that a report containing analysis accompanied by a few charts and statistics could raise awareness on the efforts made by the judiciary. For example, the Brazilian judiciary compiles statistics on the performance of the over 17,000 judges in its federal and state systems. The report is consolidated into a short (20-page) pamphlet featuring the most important graphs and an explanation of their significance to raise awareness of pertinent issues.⁶⁴⁰ Targeted lay communication could more quickly improve the public perception of the judiciary among professional groups and CSOs, and build buy-in for future reforms. For example, the HJC’s new website is user-friendly and could be built over time to become a hub for useful public information.⁶⁴¹
By communicating official data in easy-to-read formats, the judiciary would also be better placed to counter misrepresentations. Currently, there are many discrepancies in the data portrayed in the public domain. The judiciary frequently falls victim to misrepresentations (intentional or otherwise) by the media and interest groups. Such ‘spinning of statistics’ by interested groups will occur in any system. However, the judiciary could mitigate the risk. If it routinely communicated reliable data in a legible format, it could more easily counter misrepresentations or misconceptions and raise awareness in the public domain.
There are several narratives on the Serbian judiciary experience to share, and more could be told had the system developed the analytical skills it greatly needs to further research these points and report on them. On the issues of delay and backlog for example, the SCC could more convincingly present the problems encountered and the progress made in reducing the number of pending cases. Using CEPEJ’s method for calculating the time to disposition, Serbia’s judiciary does relatively well in all first instance cases with the exception of the enforcement stage.⁶⁴² This example should be highlighted along with the results of the backlog reduction program, and a more detailed analysis of backlog content would help advance the presentation.