Access to Justice Services
Main findings ↩︎
- While Serbia lags behind other European countries in
access to justice, it has improved since 2013. Key improvements
include the Law on Free Legal Aid, the Central Application for Court
Fees (to facilitate application for fee waivers),
online databases of law and case status, and incentives for mediation.
There remains room to improve affordability, information, management,
and evaluation of access to legal services.
- Affordability remained the most serious barrier to access
to justice in Serbia for citizens and businesses. Court and
attorney costs represent a significant proportion of average income in
Serbia, even for a simple case. Businesses report that the courts are
becoming increasingly inaccessible due to court and attorney costs.
Small businesses are the most affected.
- The application of court fee waivers is still not
unified, resulting in inconsistent access to justice services for the
indigent. Rules on court fee waivers are not comprehensive,
lacking deadlines for submitting a request for exemption and deadlines
for the court to decide on the request. There is very limited
understanding among members of the public of the court fee waiver
program. There are no guidelines or
standardized forms for judges who grant a waiver, and decisions go
largely unmonitored. Except for the amount of court fees, the parties
often point to unequal treatment by the courts and the lack of
information as the key problems experienced in waiving fees. Waivers may improve access to
justice in some areas, but without data their impact cannot be
monitored.
- Attorney fees are more highly prescribed than in many EU
member states. Attorneys are paid per hearing or motion. This
encourages protracted litigation and reduces the ability of low-income
citizens to pay for legal services.
- Ex officio attorneys may be appointed for indigent
clients, but there are concerns regarding their quality control and
impartiality. To enable equal distribution of cases among ex
officio attorneys, the Bar Association of Serbia introduced a call
center and software for tracking.
- In accordance with the Serbian Constitution and European
principles of justice, a legal aid system was established in October
2019. The Law on Free Legal Aid provides two distinct
categories – legal aid and legal support. Legal aid is provided by
lawyers and municipal legal aid services and by civil society
organizations in cases of asylum and discrimination.
- Municipal legal aid services receive citizens’ requests
for free legal aid and decide on their eligibility based on their
financial situation. Legal aid is provided for all case types
except commercial and misdemeanor cases where a prison sentence is not
envisaged. Persons eligible to receive legal aid are those who already
receive social benefits, children receiving child benefits and members
of certain vulnerable groups. In addition, individuals who do not
currently receive social or child benefits are eligible if payment of
legal aid from their own resources would render them qualified for
social benefits.
- The Ministry of Justice has limited resources to monitor
the new legal aid programs. The Ministry maintains a registry of legal
aid providers and decides on appeals against the denial of municipal
legal aid services. Only one employee is responsible for
implementing the new programs. Not all providers are submitting data to
the Ministry, and satisfaction with services is not tracked or assessed
at a central level.
- Effective implementation of the Free Legal Aid Law is
hindered by lack of proper budget planning and a shortage of funds in
municipalities’ annual budgets. In addition, some municipalities do not
keep a registry of free legal aid, which impacts the monitoring of
implementation. Furthermore, the Ministry of Justice has
recognized the challenge of unifying the practice of municipal legal aid
services to ensure equal access to justice for all citizens.
- More outreach is necessary to inform citizens about legal
aid and legal support. Most citizens are unaware of any free legal
services that might be provided in their municipality. To
improve cost-effectiveness, the participation of CSOs, legal aid centers
and law faculties should be encouraged.
- Awareness of law and practice has improved significantly
in the last five years, especially among professionals. Judges,
prosecutors, and lawyers can access the Official Gazette online database
of laws, bylaws and caselaw. The special website on court practice was
established in 2020, including a selected number of court decisions of
the Supreme Court of Cassation, appellate courts, the Administrative
Court, the Commercial Appellate Court and the Misdemeanour Appellate
Court, which significantly increases access to these among
professionals. These improvements in the accessibility of legislation
and jurisprudence contribute to the increasing quality and consistency
of court practice.
- The system for access to information by court users about
the courts in general and their own cases has improved. Portal
Pravosudje now enables access to information on the status of ongoing
procedures in all courts (all types and all instances), including
information on the status of cases handled by private bailiffs. In
addition, the development of e-court improved contact with the court and
enabled electronic communication. On the one hand, compared with 2009
and 2014, a lower percentage of citizens and business representatives
report that specific court and case information is accessible. On the
other hand, users directly involved in court cases reported a high level
of satisfaction in this respect, suggesting that those with immediate
experience have benefited from an updated system.
- Application of mediation is still limited, as well as
awareness of it by citizens and businesses. Additional outreach
initiatives to potential court users will be required, along with
intensive training for judges, prosecutors, lawyers, and court
staff. Further incentives should be built into the
institutional framework to encourage its use and integrate it into the
court system, such as the development of a special registry for
mediation cases which will allow the inclusion of these cases in the
results of judges’ evaluation and promotion.
- Equality of access for vulnerable groups continues to
pose challenges. The majority of citizens surveyed reported that the
judiciary is not equally accessible to all citizens. Perceived
unequal treatment of citizens is primarily based on economic status and
party membership. Equal access to justice is also seen to be denied to
citizens who have less education and also based on ethnicity, sexual
orientation and gender.
Introduction ↩︎
- Access to justice is a basic principle of the rule of law
and includes several dimensions: individuals’ access to courts, legal
representation for those who cannot afford it, and equality of
outcomes. There is no access to justice where citizens,
especially marginalized groups, fear the system and so do not use it,
where the justice system is financially inaccessible, where individuals
lack legal representation, or where they do not have information or
knowledge of their rights. The EC emphasizes the importance of enhanced
access in justice system reform and relevant parts are included in the
Action plan for Chapter 23.
- Access to justice is also an economic development
concern, as constraints on access to justice appear to create a drag on
businesses. As in 2013, the judicial system remains an obstacle
for the business environment. Around one-third of business sector
representatives reported that the situation in the justice system
negatively impacts the business environment in Serbia.
However, another 35 percent of respondents reported that the justice
system has no influence or impact on the business environment and 25
percent believed it had a positive or very positive impact on the
business climate. (see Figure 100). However, the size of the company and
sector have an impact on the perception. Bigger companies perceive the
positive impact as greater, 49.3 percent of enterprises with more than
50 employees believe that the justice system has a positive impact on
the business environment, compared to 17 percent of enterprises with up
to 9 employees. Enterprises in the services and trade sectors (25
percent) perceive a positive impact more than those in the manufacturing
sector (11.6 percent).
Figure 100: In your opinion, how does the current situation in the
justice system affect the business environment in your country?
Source: Understanding Barriers to Doing Business:
Survey Results of How the Justice System Impacts the Business Climate in
South East Europe, World Bank, 2019
- In comparison with the rest of Europe, Serbia lags behind
in access to justice. According to the World Justice Project’s
Rule of Law Index 2020, Serbia ranks the low among the EU countries in
terms of accessibility and affordability of the civil justice system
(see graphs below). However, Serbia’s ranking improved from 2014 to 2020
from 0.48 to 0.59. Additionally, Serbia’s ranking
improved in comparison to non-EU neighboring countries and according to
2020 data, access to justice is better than in Albania and Bosnia and
Herzegovina.
Figure 101: Access and Affordability of Civil Justice, EU and Serbia,
WJP Rule of Law Index 
2020
Figure 102: Access and Affordability of Civil Justice, Regional
Countries and Serbia, WJP Rule of Law Index 2020
- According to the 2020 Regional Justice Survey, the
perception of courts accessibility is high, however, it differs among
individuals inside the system, those working with the system, and those
outside it. For example, the Survey found that judges and
prosecutors perceive the system as most accessible; in excess of 85
percent rated the system as accessible, and 76 percent of the general
public rated the system as accessible. Individuals within the system,
particularly judges and prosecutors, and those without frequent
interactions with the system may not be well placed to assess access to
justice. The negative perception of accessibility is the highest among
lawyers, among whom 30 percent rated the system as
inaccessible.
Figure 103: General Perception of Court Accessibility
Affordability
of Justice Services (Financial Access to Justice) ↩︎
- Financial access to the court system remains the largest
barrier to access to justice for most Serbian citizens and business
representatives. More than half of citizens perceive
affordability as the biggest challenge to accessing the justice system,
while physical accessibility is recognized as a barrier only by 15
percent of citizens and 7 percent of the businesses.
Figure 104:General Perception of Three Specific Aspects of
Accessibility
- Costs of court cases increased from 2013 to 2020,
especially in civil cases, where costs are now three times
higher. On average, the cost of citizens’ first instance
proceedings was over 600EUR, which is higher than the average monthly
salary in Serbia. The increase of court costs
contributes to further court inaccessibility; already in 2013, when
costs were significantly lower, citizens perceived finances as deterrent
in 2013. Box 19 below gives an indication of average total costs for
court users in 2013 and 2020.
Box 19: How Much on Average Do Court Users Pay?
- 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.
Affordability of Court Fees ↩︎
- The system of calculating court fees, as well as a method
of taxing and collecting them, set out in the Law on Court Fees, has not
been changed since 2013. Fees are based on
the stated value of the claim; in the litigation cases, it ranges from
1,900 RSD to 97,000 RSD, and in commercial cases, from 3,900 RSD to
390,000 RSD. Fees are paid on every motion
submitted, impacting how assertively claims
can be pursued, as well as on every decision rendered
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. In administrative proceedings, a nominal fee of 390RSD
applies for initiation of the process, as well as for every motion
submitted (e.g.., appeal, claim for repetition of proceedings).
- Court users cite that court-related costs present more
than 60 percent of total case costs and present a considerable obstacle
to access to the judicial system in Serbia. In the 2020
Regional Justice Surveys, the public with experience in court
proceedings identified court costs as the most significant constraint as
well. Businesses also identified attorney costs as a significant
barrier.
Figure 105: Citizens and Businesses: Types of Costs of First Instance
Proceedings
- However, court fees represent a smaller portion of total
court case costs than attorneys’ fees, even when those are discounted
and vary widely by region. The financial burden of court cases
is especially high for users coming from less wealthy parts of the
country. As seen in Table 16 below, court and attorney fees for a
divorce case would require the average person in Novi Pazar to pay 80
percent of their monthly net income, even at the commonly discounted
attorney rate. The Novi Pazar resident would be required to pay nearly
150 percent of their monthly net income to cover the total costs of the
case if discounts were not applied. Court and attorney fees for a
divorce case in Belgrade, once discounted, would exceed 43percent
percent of the average Belgrade resident’s monthly net income.
Table 16: Divorce Costs as a Share of Average Income
| Novi Pazar |
45,475 |
5,320 |
62,250 |
67,570 |
11.6percent |
136.8percent |
148percent |
80.1percent |
| Belgrade First |
84,327 |
5,320 |
62,250 |
67,570 |
6.3percent |
73.8percent |
80.1percent |
43.2percent |
Source: Calculation of the World Bank
- The cap on court fees remained since 2014, so the
high-value civil cases continue to be relatively inexpensive compared
with lower-value cases. The stakeholders
reported 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.
- The Law on Civil Procedure envisages that each party pays
court fees before they submit an initial claim or answer, but 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.
- The courts lack an online fee calculator that enables
potential litigants to estimate their court fees before filing a
case. The unified online fee calculator should be available on
all court websites, including 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. Some courts have calculators that are not in compliance
with the last amendments of the Law on Court Fees, or some courts
present only the text of the Law. The fee-based user-friendly calculator
is available, but that should be provided by courts free of
charge.
Accessibility of Court Fee
Waivers ↩︎
- Fee waivers may be critical to achieving equality in
practice and enable access by lower-income individuals who are deterred
from court use because of costs.
The Law on Court Fees and the Civil Procedure Code allows court fee and
cost waivers for parties who are financially unable to cover
court-related costs. However, there is very limited understanding of the
court fee waiver option among the public; therefore, many potential
users who would be deterred from accessing the courts are unaware they
could use this benefit.
- Although the legislative framework provides various
possibilities for exemption from court fees, there are a number of
problems in practice. Both Law on Court Fees and Civil
Procedure Code do not include a deadline for submitting a request for
exemption of court fees nor a deadline for the court to decide on the
request. Also, the absence of regulation
often creates problems regarding the form of the decision, whether it
should be in the form of a special decision or it should be part of the
judgment.
- The lack of consolidated data on the implementation of
the court fee waiver rules further complicates the assessment of this
mechanism in practice.
- To overcome the problem of undocumented fees and
inconsistent application of the fee waiver program, the Central
Application for Court Fees (CSST) was developed in 2020. It has
yet to be seen if all functionalities of the application will be used
and if the judicial system will track all payments of the court fees,
including information about fee waivers.
- Though practice varies, stakeholders report that courts
primarily take into consideration the party’s property, income, and the
number of family members. Courts may also consider the party’s
financial dependents as well as the value of the claim.
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 the procedure, but again
this is applied inconsistently.
Affordability of Attorneys ↩︎
- Parties very often choose to hire a private attorney for
representation In civil and criminal cases even when not
required. The law requires only in some procedures that a party
be represented by an attorney, but in civil cases,
57 percent of court users reported hiring an attorney, while 65 percent
did so in criminal cases. However, in misdemeanor cases, only 10 percent
of citizens hired a private attorney.
- In most jurisdictions, lawyers are free to negotiate
their fees through agreement with their clients. Most countries have basic
principles regarding the fee structure and require that the fees are
adequate and proportionate depending on the value and complexity of the
case. In contrast, in Serbia, attorney fees and costs are highly
regulated, unlike in most EU Member States.
The Attorney Tariff on Costs and Fee Rates
specifies fees for each type of proceeding and each legal action or
motion. Parties can negotiate, but fees must not be greater than 500
percent nor less than 50 percent of the tariff rate.
- Attorneys are paid per hearing or motion, which is in
conflict with CCJE's opinion that ‘the remuneration of lawyers and court
officers should be fixed in such a way as not to encourage needless
procedural steps.’ Attorneys who accept
payment by the case are rare.
Mandatory Defense ↩︎
- Although the law requires the ex-officio appointment of
attorneys in some cases, no official
data are collected on the number of appointments or the types of cases
where the ex-officio appointment is most common.
- To overcome concerns regarding the integrity of the
process for identifying ex-officio attorneys, the Bar Association of
Serbia introduced a call center accompanied by software to track
information on mandatory defense.
The police, courts, or prosecutors can call and be directed to an
attorney while the call center officer uploads information on the ex
officio attorney to the software. This practice, introduced in February
2019, was perceived positively by stakeholders. The daily report on
called and engaged ex officio attorneys is published on the website of
the Bar Association. The software enables the production of the report,
but also as well as searches by the attorney or by the prosecutor
(police officer or judge) who requested the attorney, whether the
attorney refused to accept mandatory defense and their reasons for
rejection. The call center removed the burden from prosecutors who
previously reported challenges in ensuring attorneys were present during
the investigation.
- Stakeholders expressed concerns regarding undue influence
in the appointment of attorneys and the performance of ex officio
lawyers. 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 2018, it reported
that: “ex officio lawyers only met their clients in the court and
that in several cases they did not show any interest in having a
confidential conversation with their clients…Allegations were also made
about certain ex officio lawyers being more interested in maintaining
good relations with police officers than representing their
clients”.
- 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 analytical 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 mechanisms, the Review team is unable to substantiate
these claims.
Legal Aid Programs ↩︎
- The right to an attorney provided at state cost when a
party to a non-criminal dispute cannot afford an attorney is outlined in
the EU’s Charter of Fundamental Rights,
the ECHR , and the
United Nation’s Principles on Access to Legal Aid in Criminal Justice
Systems. In Serbia, the Constitution guarantees the right to
legal aid. In recognition of the principle, Serbia, after years of
preparation, adopted the Law on Free Legal Aid in 2018.
The application of the Law started on October 1, 2019.
- The Law on Free Legal Aid lays out two distinct types of
assistance: legal aid and legal support. Legal aid is provided
by lawyers and municipal legal aid services and by civil society
organizations in cases of asylum and discrimination. Municipal legal aid
services receive citizens’ requests for free legal aid and decide on
their eligibility based on their financial situation (see Box 20 below).
Legal support, which includes general legal advice, filling forms,
preparation of documents for notaries, and representation in mediation,
is provided by civil society organizations, mediators, and
notaries.
- The Ministry of Justice is responsible for maintaining a
registry of legal aid providers and decides on appeals against decisions
of municipal legal aid services. The bar chambers submitted a
list of 3,213 lawyers as legal aid providers to the registry, and 155
municipalities registered legal aid providers. In addition, two civil
society organizations are registered as free legal aid providers. In the
group of providers of legal support, there are mediators (45), notaries
(17), and civil society organizations (30).
The municipal legal aid services are responsible for the call center
used for refereeing citizens to lawyers and ensuring equal distribution
of cases among lawyers. In 2020 the Ministry of Justice ruled on 116
appeals against decisions of municipal legal aid services, and most of
them were for non-response from a municipal legal aid service (78) and
rejection of a request for free legal aid (31).
- Public awareness and knowledge about free legal aid is
limited, and most citizens are unaware of any free legal services that
might be provided. Only five percent of the general population
is familiar with the details related to free legal aid. In the 2020
Regional Justice Survey, 46 percent of respondents indicated that they
do not know whether free legal aid is available or not, while a similar
percentagee knew that free legal aid exists but have no specific
information regarding it. Citizens who have had recent court experiences
are more likely to be familiar with free legal aid (12percent), compared
to those without any experience with courts (4percent).
Figure 106: Citizens Knowledge about Free Legal Aid
- Judges, prosecutors, and lawyers believe that legal aid
is not available to those in need. More than forty percent of
judges, prosecutors, and lawyers perceived that free legal aid does not
adequately reach the categories in need, while a significant percentage
of service providers claim to be unable to evaluate the accessibility of
free legal aid because of a lack of information.
Figure 107: Judges, Prosecutors and Lawyers: Availability of Free
Legal Aid
- Based on the Ministry of Justice's annual report on the
implementation of the Law on Free Legal Aid in 2020, advisory
services were provided 19,395 times, general legal information was given
in 9,745 instances and 1,913 written submissions were provided. In 2020
there were 6,883 requests for free legal aid, from which 5,367 were
approved, and in 954 cases, users were referred to a lawyer.
- Not all providers are submitting data to the Ministry of
Justice, which collates rates of use of free legal aid and types of
services, and the Ministry lacks resources to evaluate the
programs. Only one employee in the Ministry of Justice is
responsible for oversight of free legal aid implementation, including
field visits to the municipal legal aid services. Satisfaction with
services provided is not tracked or assessed at a central level. The
only instrument for measuring users’ satisfaction is a complaint
submitted against a lawyer.
Box 20 Law on Free Legal Aid:
- The Tariff Schedule for free legal aid introduced
significantly lower fees for lawyers than paid in other cases.
For example, under the free legal aid Tariff Schedule,
the cap a first-instance criminal proceeding for crimes up to 5 years of
imprisonment is 60,000RSD while under the general Tariff schedule
lawyers' fee is 22,500RSD for a motion in
criminal proceedings.
- Funding for legal aid is provided by the state
budget. The costs of the legal aid
provided by municipal legal aid services are covered by the local
self-government budget, while costs for services provided by lawyers,
notaries, and mediators are covered 50 percent of the local
self-government budget and 50 percent of the budget of the Republic of
Serbia.
- Effective implementation of the Free Legal Aid Law is
hindered by a lack of proper budget planning and a shortage of funds in
municipalities’ annual budgets. In addition, some
municipalities do not keep a registry of free legal aid, which impacts
the monitoring of implementation. Furthermore, the Ministry of Justice
has recognized the challenge of unifying the practice of municipal legal
aid services to ensure equal access to justice for all
citizens.
Access to and Awareness of
Laws ↩︎
- Access to and awareness of laws, a pre-requisite to
access to justice, is still limited in Serbia. Prior to 2014,
the only legal databases where statutes in their complete form were
available were those established and maintained by private companies for
an annual membership of approximately 500EUR.
On January 1, 2014, the Official Gazette (Sluzbeni Glasnik) launched its
online database where all legislation, including regulations adopted by
bodies other than the National Assembly, are available. This database is
partially publicly available for free (only selected laws and bylaws),
while full access requires payment of annual membership of approximately
340EUR. The National Assembly publishes
legislation only as adopted without inserting changes in existing
statutes. Ministries and other institutions that can adopt regulations
do not always publish them.
- 2020 Regional Justice Survey results suggested that
one-third of citizens perceived access to information, including access
to laws, as a challenge. People often do not
know where to find regulations and miss practical information concerning
their rights or procedures for their protection.
- Frequent changes in legislation undermine individuals’
access to justice, an issue recognized by lawyers as a significant
challenge. More than 40 percent of lawyers claimed that access
to information is limited. Judges and
prosecutors acknowledged to the Review team that they, too, struggle to
be up to date with the constant amendments.
- Free access to practical guidelines, authoritative
interpretations, and commentaries following new legislation is still
limited. Where they exist, useful commentaries on legislation
by relevant experts are not available to free of charge.
- In the 2020 Regional Justice Survey, compared to 2009 and
2014, a lower percentage of citizens and business representatives report
that specific court and case information is accessible (see Figure 108
below). 60 percent of the public and 69 percent of business
sector respondents reported that the judicial system is accessible in
terms of general access to information, compared with 64percent and
76percent, respectively, in 2013.
Figure 108: Perceptions of Accessibility of Information among Public
and Business Sector 2009, 2014, 2020
- Access to information is perceived as more challenging by
highly-educated citizens than lesser-educated citizens. In the 2020 Regional Justice
Survey, 38 percent of highly-educated citizens expressed difficulty in
finding necessary information, compared to 24.8 percent of the least
educated. These results mean that highly-educated citizens have more
expectations related to the volume, type, and quality of available
information, while the less-educated citizens lack the computerization
to access needed information or that information is not provided at an
appropriate reading level. These possible interpretations should be
borne in mind when planning how to make information on procedures more
accessible.
- Experience with court cases reflects positively on access
to information. Both citizens and businesses who had experience
with court cases reported higher satisfaction with access to information
in their specific case. 84 percent of citizens perceived access to
information in specific cases as positive, in comparison to 60 percent
of citizens who reported general satisfaction with access to information
from the justice sector. Businesses show similar patterns: nine out of
ten businesses who were involved in a specific case see accessibility
positively, compared to seven out of ten who did not have direct
experience.
Figure 109: Citizens and Business: Access to Information in General
vs Ease to Obtaining Information in Concrete Case
- Respondents use several sources of information when
looking for information about their case; in comparison to 2013, users
rely more on lawyers and official sources of information. This
varies in frequency depending on the type of case. In commercial cases,
lawyers are the most common source of information at 85 percent,
followed by official court information and then unofficial sources such
as friends, media, and the internet. A similar pattern holds true in
criminal cases, where lawyers are the prevailing source of information
(72 percent). In civil cases, lawyers and official court sources of
information are used most frequently (64 percent). Official sources of
information prevail in misdemeanor cases (95 percent), followed by
unofficial sources (41 percent).
Figure 110: Sources of Information Used for Case-Specific
Information
- Although there is progress in providing information
online, there is still room for improvement, which would enhance both
access and efficiency. All courts and prosecutor's offices have
websites. While prosecutor office websites are unified in visual design
and type of information provided, court websites still vary greatly.
Some courts have rich websites (for instance, the First Belgrade Basic
Court), while others do not have a website at all. Some NGOs also offer
useful, practical information. Providing online
information enables potential users to conduct research without
assistance, prevents unnecessary travel to the courthouse, and can
improve the efficiency of court processes. In 2020, internet penetration
in Serbia was approximately 80 percent,
and the Serbian judiciary should adjust to this.
- Availability
of court information and two-way communication with the courts both saw
significant progress with the introduction of a web portal Pravosudje
Srbije. The portal provides information on
the map of the courts with all relevant contact information, the status of ongoing procedures
by type of courts (basic, higher, appeal, commercial, misdemeanor,
supreme), including the status of cases managed by private bailiffs. Due to privacy constraints, the
portal can only be accessed by those who know the case number. Other
significant reforms included the development of the e-court, which
enables electronic communication with the court.
In addition, the Ministry of Justice developed eBoard, an electronic
notice board that became operational in January 2020
and replaced the previous physical notice boards in the courts in the
enforcement procedure. The web portal
Pravosudje Srbije includes a knowledge database
that provides general information on the jurisdiction of courts and
prosecutors’ offices, the obligation to testify, and family and
inheritance law. However, this information is not in a user-friendly
format and instead presents quotes from the legislation.
Access to Court Decisions ↩︎
- The SCC is still the only court that regularly publishes
all its decisions. However, the number of decisions available
online remains limited. Websites of the Appellate court in Novi Sad and Appellate court in Nis include a search engine that
enables easier access to the selected topic. The Constitutional Court
has made many of its decisions available online for the public. Other
courts do not regularly publish their judgments, although some, in
particular appellate courts, make some particularly important decisions
or excerpts from decisions available on their websites.
- The special website on court practice was developed in
2020. The website includes more than
12,000 decisions from the Supreme Court of Cassation, 45,000 from the
appellate courts, 5,000 from the Misdemeanor Appellate Court, 5,000
decisions from the Commercial Appellate Court, and 140,000 decisions
from the Administrative Court. The website includes a sophisticated
search engine that enables searching decisions by the court, year,
substance, registry, case number, president of the chamber, type of a
decision, etc. The decision of which cases to list on the court practice
website are made by court practice departments of the relevant courts.
The website was developed through project support and it needs to be
regularly updated with new decisions.
Access to Alternative
Dispute Resolution ↩︎
- Awareness of mediation is limited and is, in fact,
decreasing over time. According to the 2020 Regional Justice
Survey, only 14 percent of general court users and around 37 percent of
business users know what mediation is, and these levels are lower than
in the 2013 Multi-Stakeholders Justice Survey when 17 percent of
citizens and 53 business users were familiar with mediation.
Figure 111:Citizens and Businesses: Familiarity with Mediation
Process 2013-2020
- In May 2014, a new Law on Mediation was adopted by the
Serbian Parliament. The 2014 Mediation Law allows for parties
to be relieved from paying court fees if mediation is successful before
the end of the first hearing. Mediation may be used under the new Law in
any dispute unless a law stipulates the exclusive authority of a court
or other relevant body. In particular, mediation is seen as suitable for
property, family, commercial, administrative, environment, consumer, and
labor cases.
- The Law on Mediation introduced an obligation on courts
to promote mediation. The court is obliged to provide all
necessary information to the parties in a dispute about the possibility
of mediation, which can also be done by referring the parties to the
mediator. The Civil Procedure Code was amended in 2014 to include an
obligation for judges and courts to refer parties to mediation.
- Despite results showing that mediation is faster and
cheaper than a court proceeding, the Law on Mediation did not produce
its expected impact in terms of the number of issues handled.
In 2019 courts in Serbia managed 460,970 civil cases, while only 569
mediation cases were heard during the same year.
Research conducted with the EU for Serbia – Support to the Supreme Court
of Cassation project confirmed that first instance cases are resolved in
mediation in 53 days on average or 1/8th of the time of 414
days required to be resolved without mediation.
- Support for mediation by the Court Presidents is vital
for its success. Courts that were included in projects for the
promotion of mediation, like the Second Belgrade Court, the Commercial
Court in Belgrade, and Basic and High Courts in Cacak, established an
information service to provide information on the possibilities of and
procedures for alternative dispute resolution to citizens coming to the
court. Best practices were recognized and included in the 2017
Guidelines for Enhancing Use of Mediation in the Republic of Serbia,
adopted jointly by the Supreme Court of Cassation, High Judicial
Council, and Ministry of Justice.
- A case referral and registry for mediation cases is a
critical step to optimize the benefits of mediation and improve both
quality and efficiency in the courts’ performance.
Implementation of mediation in courts requires statistical monitoring
and reporting on mediation. This is difficult as mediation is still
registered in auxiliary books rather than the registry. A proposal of
the Forum of Judges to amend the Court Rulebook and introduce a special
M registry to track mediation cases could, by counting mediation as part
of the individual judges’ workload, incentivize judges to refer certain
types of cases to mediation. However, the
amendments to the Court Rulebook did not incorporate the proposed
measure.
Access to Allied
Professional Services ↩︎
- A vast array of professionals other than attorneys –
bailiffs, notaries, interpreters, expert witnesses, and mediators –
support the delivery of justice. Providing information about
these providers and ensuring they can be retained at a reasonable cost
is key to effective court access. Litigants need to be able to identify
these professionals easily by geographic area and topic area, understand
likely fees, and know if there are pending complaints against
them.
- The information available in registries varies in quality
and scope. The MOJ has created registries for most enforcement
agents, mediators, expert witnesses, notaries, and interpreters.
Interpreter and expert witness registries are available in Excel and
allow searches depending on the digital literacy of users. The registry
of bailiffs is also available on the website of the Chamber of Bailiffs,
and bailiffs are listed based on court seats,
as are notaries on the website of the Chamber of Notaries. The registries of bailiffs and
notaries are in a user-friendly format that enables easy search per
geographical location or court jurisdiction.
Geographic
and Physical Access to Justice Service ↩︎
Geographic Access to Court
Locations ↩︎
- Geographic barriers to access to justice are not a
significant concern in Serbia. Around 80 percent of citizens
and 89 percent of business representatives do not consider distance to
the courthouse to be a problem.
- As internet penetration improves, further expansion of
the court network becomes even more unnecessary. The
development of streamlined online processes can bring a range of court
services directly to the user. Future efforts to improve physical access
to justice services would be best addressed using online strategies,
such as e-filing.
Equality of Access for
Vulnerable Groups ↩︎
- Most citizens do not consider the judiciary equally
accessible to all citizens. According to the general
population, unequal treatment of the citizens is primarily based on
economic status and different political party membership. Almost half of
the citizens believe that degree of education impacts treatment by the
courts, while around one-third believe that ethnicity, sexual
orientation, and gender affect treatment. Age is mentioned as a reason
for different treatments by 28 percent of general users. Disability and
religious differences are mentioned by 22 percent of citizens.
Figure 112: Citizens Opinion on Equal Treatment of Citizens
- A considerably smaller percentage of judges and
prosecutors think that different categories of citizens are treated
disparately. However, 27 percent of judges and 31 percent of
prosecutors party membership as grounds for unequal treatment.
- The attitudes of lawyers regarding inequality of
treatment are considerably closer to those of the general population
than to the attitudes of providers of court services.
Figure 113: Judges, Prosecutors and Lawyers Opinion on Equal
Treatment of Citizens
- Members of the business sector also think that there is
disparate treatment of residents and legal entities. 57 percent
of representatives of the business sector believe the treatment of
economic enterprises depends on their ownership structure, and 47
percent think that treatment varies by size of the enterprise. Another
40 percent believe that treatment depends on the specific geographic
location in which the business is located, while 38 percent have
concluded it depends on the type of economic activity.
Recommendations and Next
Steps ↩︎
Recommendation 1: Accessibility of court fees.
- Update court fee schedules based on principles that ensure
affordability to file valid proceedings, discourage frivolous
proceedings, encourage alternative dispute resolution and settlement,
and ensure access to cases involving the public welfare, such as family
law cases. (MOJ, SCC – short- term)
- Amend the Law on Court Fees and Civil Procedure Code to state the
deadline for submitting requests for exemption from court fees and the
deadline for courts to decide on a request. (MOJ – short-term)
- Increase awareness that the court will not suspend litigation for
failure to pay fees. To safeguard against abuse of this policy, consider
requiring unpaid fees to be paid to the court till the end of the
procedure and extend the statute of limitations for court fees. (SCC –
short-term)
- Require courts to make an up-to-date online fee calculator
available to the public at no charge. (SCC – short-term)
- Develop a consistent and timely system for application for court
fee waivers. Evaluate whether the Central Application for Court Fees
(CSST), developed in 2020, is being used effectively, including its use
to track payments of court fees and information about fee waivers. (SCC
– short- term)
- Consider removing caps on court fees so that fees in high-value
cases are proportionate to those in lower-value cases. (MOJ, SCC –
medium-term)
Recommendation 2: Reexamine the affordability of attorney
fees.
- Consider alternative attorney fee arrangements under which
attorneys are not paid per hearing or motion. This will also incentivize
limiting the use of appeals and remands and improve case processing
efficiency. (MOJ, Bar Chamber – medium-term)
- Consider implementing practices used in EU member states and
other nations to negotiate attorney fees based on guidelines that
consider the value of the case, the amount of work required by the
attorney, and the public interest served by the case (for instance, more
strictly regulating fees for cases addressing child custody, injured
workers and people with disabilities, while allowing more arms-length
negotiation in cases of private interest). (MOJ, Bar Chamber –
medium-term)
Recommendation 3: Ensure access to and quality of ex officio
attorneys assigned to provide mandatory representation.
- Use the call center and tracking software introduced in 2019 by
the Bar Association of Serbia to collect data on the number of
appointments, the number of rejections of assignments and the reasons
given, and the types of cases where ex officio appointment is most
common. (MOJ, Bar Chamber – short-term)
- Monitor the work of ex officio attorneys to ensure quality and
impartiality. (MOJ, Bar Chamber – medium-term)
Recommendation 4: Increase public awareness of and access to
free legal aid.
- Encourage Community Service Organizations to refer clients to
Free Legal Aid Centers. (MOJ – continuous)
- Encourage law faculties to contribute their time and supervise
their students in providing Legal Aid services. (MOJ, Law faculties –
continuous)
- Adopt proper budget planning and increase funds for free legal
aid in municipalities’ budgets. Require all municipalities, Legal Aid,
and Legal Support centers to keep a registry of their activities and
submit data to the Ministry of Justice. (MOJ, MDULS –
short-term)
- Develop a method for tracking user satisfaction, implement it
locally, and evaluate results centrally. Provide the Ministry with
additional staffing to monitor the programs. (MOJ – medium-
term)
Recommendation 5: Increase access to information about laws
and courts.
- Consider having public libraries subscribe to online databases of
legislation and regulations so that the public can have full access
without charge. (MOJ – short-term)
- Improve the general public's access to published court decisions
and associated searchable databases. (MOJ – medium-term)
- When publishing new legislation, track changes and
cross-references to existing legislation. (National Assembly, line
ministries – short-term)
- Increase the public’s access to practical guidelines and
plain-language explanations of the law. (National Assembly, line
ministries – short-term)
- Require ministries and other institutions that adopt regulations
to broadly publish them (All – short-term).
- Continue to improve websites that provide information about
courts and particular cases. (MOJ, SCC– medium-term)
Recommendation 6: Increase access to alternative dispute
resolution options.
- -onduct additional outreach initiatives to potential court users
about the possibility of mediation. (MOJ, SCC – short-term)
- Provide additional training for judges, prosecutors, lawyers, and
court staff on the role of mediation. Consider using the best practices
recognized in the 2017 Guidelines for Enhancing Use of Mediation in the
Republic of Serbia. (JA – short-term)
- Adopt a case referral and registry for mediation cases rather
than continuing to register mediation in auxiliary books. Adopt the
proposal of the Forum of Judges to amend the Court Rulebook and
introduce a special M registry to track mediation cases, which would
count mediation as part of individual judges’ workload and incentivize
them to refer more cases to mediation. (SCC – short- term)
