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Serbia Justice Functional Review

Internal Performance Assessment > Human Resource Management

c. Recruitment, Evaluation and Promotion of Judges and Prosecutors

i. Recruitment and Nomination of Judges and Prosecutors

  1. The Serbian judiciary historically lacked an objective entry point for the judicial profession. Before the development of the Judicial Academy, the criteria for judicial appointments to the Basic Court or the Basic PPOs were based solely on education and years of experience. These generic criteria created much room for discretion in appointments.789
  2. Upon the establishment of the Judicial Academy in 2009, graduation from the Academy became a mandatory precondition for initial selection to a Misdemeanor or Basic Court. In 2013 however, the position was overturned by the Constitutional Court.790 The concept of the Academy is closely aligned with the principle of an objective basis for entry into the judicial profession as promulgated by the CoE.791 For the initial selection process to conform with the Constitutional Court decision and CoE principles, the Councils would need to select candidates for the Academy in future, and establish competitions based on objective selection criteria between those who attend the Academy and those who do not.
  3. Using the Academy as a primary entry point to the profession assumes a national career service, whereby graduates can be placed in any court that needs them – but this does not exist in Serbia. In many European systems, graduates of a judicial training academy are allowed only one refusal of a judicial appointment to a certain location, and a second refusal results in the candidate being precluded from future judicial appointments. In contrast, Serbian judges and employees apply to individual courts, and once appointed under the Constitution, they cannot be moved to another court without their consent. Few institutional incentives exist to encourage that consent.
  4. Judicial Academy Trainees are highly selective about the courts where they wish to work, which perpetuates the temporary staffing problem. The Law on the Judicial Academy and the contract between the Academy and candidates oblige candidates to apply for open positions. This rule recognizes the significant funds and effort spent in training Academy trainees, and the salaries they received during the training period which are 70 percent of that of an appointed judge. However, this rule is not being applied. Instead, trainees are applying to selective courts and in the meantime continuing to work as judicial assistants on a temporary basis.792
  5. Further, there is no specific nomination process for appointment to a superior court.793 Education and years of experience remain the formal criteria, and applicants come forward when the HJC announces open positions. Nominations to superior courts could come from inside or outside the judiciary.794 Since there have been few appointments to Higher Courts in the previous three years, the criteria for making these appointments, and whether there is a greater likelihood of internal promotions or external transfers into the judiciary, cannot be assessed.795
  6. Looking forward, the HJC should limit promotional appointments to candidates from within the judiciary. Given the excessive number of judges already in the system, it is necessary to fully utilize existing resources, at least for the medium term until the numbers of judges falls by attrition. It is also important to create viable career paths for existing judges and to enable junior judges to develop their skills through experience, training and successive positive evaluations to advance on the professional ladder. Internal promotions could also add value in terms of increased consistency of decision-making and uniformity in the application of the law, as well as greater continuity and collegiality within the judiciary.

ii. Criteria for the Evaluation and Promotion of Judges and Prosecutors

  1. Judges in Serbia have never undergone any professional evaluation of their performance. The absence of this key human resource management tool has led to a systemic underperformance, excessive variations in performance, low motivation and morale, among other challenges.
  2. The HJC missed several opportunities to improve the quality of the judiciary due to continued delays in finalizing the evaluation rules.796 In 2012, over 800 judges on probationary status were automatically made permanent without any evaluation, due to delays in finalizing the rules. This included around 570 misdemeanor judges who had not been originally appointed as judges within the judiciary.797 In May 2014, 141 Acting Court Presidents were appointed as permanent Court Presidents, but in the absence of any rules, the method of evaluation was ad-hoc. The HJC has also appointed judges to superior courts while the rules were in draft form with no standards in place.
  3. Delays in evaluating acting Court Presidents for permanent appointment also caused problems. For over three years, there have been significant delays in nominating permanent Presidents for the Misdemeanor, Basic and Higher Courts.798 In some cases, there has been a yearly turnover in court leadership.799 This situation created instability and affected the interim appointee’s ability to manage their Courts. The prolonged insecurity also created an inherent vulnerability among those ‘acting’ to undue influence and dependence on executive power. In May 2014, 141 Presidents were appointed, but in the absence of rules, the method of evaluation was ad-hoc. The finalization of rules should thus be prioritized to avert further missed opportunities.
  4. Productivity norms have existed for some time for judges, but to date they have not incentivized good behavior and evaluations have not been conducted. Norms rely almost entirely on the number of dispositions per month, productivity norms encourage judges to ‘cherry pick’ simple cases or resolve cases too quickly while avoiding complex cases or backlog reduction. The only consideration of work quality was the rate of cases set aside on appeal, which may take some years to eventuate. Although productivity norms were described by several stakeholders as no longer ‘official’, their continued existence creates a frame to guide the behavior of individual judges. The most determinative of whether individual judges comply with productivity norms is whether their individual Court President monitors those norms.
  5. Formal rules for the evaluation of judges were adopted by the HJC in July 2014. Their stated purpose is to promote judicial competence, to motivate judges to improve performance, and to enhance public confidence in the judiciary. The rules demonstrate a substantial improvement from the past. Judges will be evaluated based on the quality and quality of their decisions, as outlined in Table 31 below.
  1. There are three grades that judges may receive: extraordinarily successful, successful and not satisfied, and no marks are given. Several stakeholders have expressed concern that these grades set a low and unclear bar for performance. The lack of nuance in grading may result in under-performing judges being graded as satisfactory. The same concern was expressed regarding the previous draft rules upon which these rules are based. Under the draft rules, a judge scoring merely 22 out of 100 would be grade as satisfactory. Time will tell whether the evaluation system is implemented rigorously for under-performing judges. If the system tolerates under-performance as satisfactory, the significant effort of developing these rules will be undone, as the rules may then discourages exemplary performance and entrench low motivation and morale within the judiciary.
  2. Court Presidents will be evaluated based on one sole criterion: whether they have ‘not remedied malfunctioning court administration’ identified by the immediately superior court. The criterion properly recognize that the position of Court President has significant case flow and management responsibilities for both judicial and non-judicial activities. However, its negative formulation does not encourage Court Presidents to innovate or strive for improved performance. The criterion also relies on the superior court president identifying a malfunction, when many do not.
  3. The rules and underlying statutory provisions are imprecise about how evaluations will be used to determine promotions, identify performance defects or discipline judges, with a few exceptions. If a judge is evaluated as having attained ‘exceptional success’ during probation, s/he is automatically made permanent. If evaluated as ‘not satisfactory’, a permanent appointment cannot be made. However, for judicial candidates who receive a ranking of ‘satisfactory’, it is unclear how the HJC will decide whether the judge should be retained.
  4. The evaluation system could be designed to more proactively encourage professional development of individual judges. Modern judiciaries frequently require that judges undertake certain training programs to ensure consistency in knowledge across the judiciary and to build capacity in new areas, such as developments in EU law. Evaluation can also build positive incentives for judges to demonstrate performance that contribute to the judiciary, for example by participating in backlog reduction taskforces, mentoring less experienced judges, moving locations with consent, or introducing an innovation in case processing.
  5. For permanent judges, the only specific provision in the rules detailing the results of evaluation indicate that a judge rated as less than satisfactory can be mandated to attend continuing training. The Law on Judges indicates that the HJC may dismiss a judge for ‘unconscientious or incompetent’ performance but without further guidance. For permanent judges seeking election to a Higher Court, the Law on Judges only specifies that the HJC may conduct ‘an extraordinary evaluation’ of a judge but does not discuss how regular evaluations of the judge will be applied.
  6. The evaluation procedure will depend on the existence of reliable and comparable statistical data that are currently unavailable. For example, due to system fragmentation, the data concerning the number of decisions remanded back to a judge by an appellate court can only be obtained by each individual court running an ad-hoc report in their AVP systems, which would then need to be re-entered and analyzed by the HJC. This is extremely time-consuming, laborious exercise, and it is questionable whether it would occur with sufficient rigor and accuracy to enable judicial evaluation.800
  7. The evaluations process will present a significant administrative burden and workload for the judiciary.801 If judges were evaluated once every three years, around 950 judges would need to be evaluated by each year. Panels of three judges would be selected from the court level immediately superior to the judge being reviewed, removing these judges from their court duties. Superior court judges have not traditionally had a strong supervisory role over individual lower court judges, and it is unclear how engaged they will be in assuming these new duties.802 The panels would need to collect and verify the data, perform all of the calculations, and prepare needed reports. Yet there are no HJC staff assigned to the judge evaluation function, and junior clerical staff would not be up to the task. Therefore it is likely that evaluations would not be administered adequately, even if the rules were approved, which would likely cause controversy and contestability in the process.
  8. Rules on promotion should build in positive incentives for judges to contribute to the judiciary’s performance. Several modern judiciaries use promotion criteria as a way to incentivize good behavior and signal the kinds of attributes that judges should develop if they seek career advancement. This is especially true for judiciaries that have a balanced age structure, because permanent younger judges need clear signal for career progression to maintain motivation and morale. In Serbia, promotion applications could include ‘highly desirable’ criteria that encourage applicants to have:
    1. served in at least one court (thus encouraging judges to move locations at least once in their career, which may also foster consistency in practice and procedure and stronger collegiality);
    2. undertaken management training (thus encouraging a modern management approach in courts), including understanding of court administration and case management techniques etc.;
    3. undertaken continuing training, particularly in European law (thus encouraging increased capacity in line with European standards); and
    4. contributed to performance improvements, such as participation in a backlog reduction teams or led an innovative project within their court.
  9. By signaling desirable attributes, the system can harness the potential of large numbers of judges to contribute to the judiciary’s transformation. Identifying desirable attributes can also raise morale, promote professional development, and career progression.
  10. The SPC also approved new rules for evaluation of prosecutors in May 2014. Like for judges, the new prosecution rules represent a significant improvement by outlining the expectations of the prosecution service and the requirements to meet them. They also suffer from similar drawbacks, including the absence of incentives to improve performance. The implementation and monitoring of these rules will require improved capacity within the SPC to be effective.
  11. For both the HJC and SPC evaluation rules, implementation and monitoring will be essential. After a reasonable period of implementation, the rules should be reviewed and amended to apply any lessons learned from the rollout.