Serbia Justice Functional Review

Internal Performance Assessment > Governance and Management

g. Effectiveness of Complaints and Discipline Processes

i. Complaints Mechanisms

  1. Public awareness of complaint mechanisms and disciplinary rules is low. Public education has not been provided regarding what constitutes a disciplinary breach, where to go, and what information to include in a complaint.
  2. This is borne out by the fact that few court users raise complaints, even if they feel they have grounds to do so. According to the 2013 ACA Survey of Court Users, 46 percent of respondents reported that they had grounds to file a complaint about the work of the judge in their case, however only 6 percent had done so. Of the 40 percent of respondents who did not complain when they felt they had grounds, 26 percent reported they did not believe that the court system would act on their complaint. A further 14 percent of the respondents reported they lacked the knowledge, information, or time to lodge a complaint. In the case of administrative tasks, the responses were similar where 35 percent of respondents reported that they had grounds to file a complaint about court administration, while only 2 percent had done so. Similarly, the most common reasons for not complaining included a lack of trust that the system is capable of correcting itself, and a lack of information about procedures for complaint.
  3. The complaints focus mainly on judges and relate to the timeliness of proceedings. The common causes for complaints relate to a judge repeatedly cancelling or rescheduling hearings. That does not mean that judges are the basis of complaints, but rather, there is no mechanism to complain about system-wide problems.657 As the most visible embodiment of the court, judges are the targets for court users’ disgruntlement. Some court types and locations are the subject of more complaints than others.
  4. There are multiple channels by which an individual can complain about justice service delivery, including via the HJC, the SPC, the Court President of the specific court (or its higher or Appellate Court), the SCC, the Ombudsman’s Office, and the ACA. Information about each complaint channel is available in Annex 5, including information about their powers, whether templates exist, the number of complaints they receive, the most common complaints, and any action taken.
  5. The HJC estimates that around 12,000 complaints are received each year, but precise data are unavailable. Each complaint mechanism may collect some data on their work, but data are not electronic, not linked in any system, and not aggregated. Complaints against individuals do not inform evaluation or promotion processes. Most important, data are not analyzed to identify lessons or patterns of behavior that can enable future systemic improvements.
  6. The various complaints-handling bodies face significant capacity constraints. Most agencies are understaffed to cover the inflow of complaints received. The MOJ for example three staff to manage thousands of complaints per year. The HJC lacks staff to perform the function and, like the SCC and individual courts, absorbs this function into existing clerical roles.
  7. The fragmented system causes duplication and prevents action that could improve performance. Complainants routinely lodge their complaints through several avenues, in the hopes that one may be responsive. This practice inflates the figures on the number of complaints and can produce the inverse effect, where each body may be less likely to respond or may pass complainants from one mechanism to the other.
  8. There is little to no coordination between the various complaint bodies. The Ombudsman’s Office has developed a standard template letter in response to citizens who complain about courts, attorneys, bailiffs, or prosecutors. While it is a positive and good faith attempt to inform citizens, the letters describe how the Ombudsman’s Office is not competent to control the work of the judiciary, and provides legalistic information about the functioning of the various supervisory bodies and procedures. Such information offers little practical guidance to an average citizen on avenues for grievance redress. Beyond the Ombudsman’s effort, the officers in each body state they do not talk to one another or coordinate their work. A better coordination could improve the quality of the process and strengthen the ability of citizens to engage constructively within it.
  9. Multiple processing also encourages inconsistent practices. Staff working in the complaint bodies acknowledge that they are most likely to respond to the most pressing complainants (i.e. those who are most vocal or influential) among the many complainants in the ‘pile’ of overwhelming requests. Stakeholders report that procedures are not transparent and some complaints ‘are more equal than others.’
  10. Follow-up on complaints is weak due to an imprecise and ineffective legal framework. Under the existing legal framework, the Court President is not obliged to provide a written response to the complainant or to the complaint-handling body. Complaint-handling bodies are not permitted to make a decision on the complaint that contradicts the stated opinion of the Court President’s, and where the Court President avoids to explicitly engage with the complaint, there is no legally prescribed mechanism to independently and objectively to determine the merits of the complaint, such as by reviewing the actual case files. Further, there is no obligation on courts to comply with measures ordered by complaint-handling bodies to address the principal reasons for the complaints, nor sanctions or deadline for implementing the recommendations. As a result, courts can largely ignore the measures recommended or ordered by a complaint-handling body, or postpone them indefinitely.
  11. The HJC proposes to streamline the complaint mechanism. The HJC, with support from International Management Group (IMG), led a working group on the Complaints Improvement Process which identified improvements to the complaints handling framework, drafted legal amendments, and proposed new business processes. Complainants could continue to lodge complaints with multiple mechanisms, but those complaints would be registered in a central database at the HJC. Complainants will be able to submit their complaint online on the HJC website using a standard form that gathers the data necessary to make a complaint. The database will also record a series of attributes and classifications so that complaints data can be analyzed. The complaint would then be decided as one case by a complaints judge appointed by the HJC. Courts would be required to comply with measures ordered by the HJC, and within certain timeframes. Failure to follow-up would itself be a disciplinary breach which could trigger ex-officio disciplinary proceeding against the judge or the Court President.
  12. It will be important to ensure that the proposed reform to the complaint procedure is easily understood and well publicized to its intended audience of court users. To date, the proposed reforms are technically very sound, but no recommendations were offered regarding public awareness campaigns. Information about how to make a complaint should be highly visible in public areas in all courts, as well as on websites of courts and the HJC. Information should use lay language and be highly visual, and translations into minority languages should also be available. In a positive move, the OSCE and the HJC have recently published a series of posters and leaflets to educate the public about the complaint process, are due to be rolled out to each court. These are highly visible in courts. The HJC could also partner with the ACA and the Ombudsman’s Office, the CSOs, and others to ensure that complaints received by other bodies are channeled to the HJC and that awareness is raised among citizens. Transparency and public awareness campaigns can also minimize the risk of capture in the central body. Standardized complaint forms should be in lay formats to ensure that average citizens can complete them easily, and that complaints processing is as simple as possible from the user perspective.
  13. Though precise data are not available, the number of complaints appears to be rising. However, this should not be judged negatively as there may be a range of positive or natural reasons for the trend. For example, the ACA and the Ombudsman’s Office reported that the number of complaints they received regarding the judiciary may be rising because individuals are increasingly aware of these bodies and their functions. Both agencies also report that citizens are increasingly willing to speak out against malfeasance and poor service delivery, particularly the younger and urban populations.

ii. Disciplinary Measures and Sanctions

  1. Effective and open mechanisms for judicial discipline and an appropriate gradation of sanctions including reprimand, fines, suspension and termination have been developed with likely benefits for quality of justice, effective access, and transparency.
    Disciplinary sanctions for judges and prosecutors include reprimand, fines, suspension, and termination. The rules and procedures for discipline are clearly listed.658 Stakeholders frequently report, however that the sanctions are too mild to produce a deterrent effect. Sanctions are also reported to be inconsistent. An assessment of the types of complaints selected for further investigation by the Disciplinary Prosecutor, and the consistency of sanctions for similar disciplinary breaches are needed.
  2. The Disciplinary Commission reports that Court Presidents and judges lack education on what constitutes a disciplinary breach. Some ethics training has been provided to judges, but judges report that this training has been limited in value.659
  3. Despite the underreporting and duplication of the current complaints-handling process described above, a number of judges have been disciplined under the system. 13 sanctions were imposed in 2012 and 2013, a notably very small number in comparison to the complaints received. Of these 13 sanctions, four of these cases resulted in termination of office or resignation. The Commission in 2013 upheld all but one of the cases brought by the Disciplinary Prosecutor.660
  4. The Disciplinary Commission cannot proceed with the large portion of complaints received.661 Many complaints deal with matters outside of the Commission’s purview or do not contain sufficient information to proceed. Without a streamlined process for rejecting non-substantiated complaints, these submissions require significant staff time to process nonetheless.
  5. Disciplinary processes are alleged to be slow. Several Court Presidents complained to the Functional Review team that disciplinary processes for judges under their command took too long and were too opaque, creating loopholes for judges to remain who should have been dismissed.
  6. Court Presidents should be involved in assessing potential disciplinary breaches whenever possible to reinforce their role as the managers of their court. Suggested amendments to the rules of discipline include a strict obligation for the Court President to implement corrective measures imposed by the HJC in a given timeframe (e.g., ‘the hearing has to be scheduled within next 30 days’). Violation of the corrective measure may lead to disciplinary proceedings against the judge and/or Court President.
  7. The disciplinary system is not adequately linked to performance management of judges, impeding the use of complaints to improve the quality of justice when the complaint does not rise to a level requiring discipline. The automated human resource system under development will include indications of complaints and disciplinary proceedings against judges and non-judge employees. While the HJC can require judges with performance issues to pursue continuous training for judges when their performance issues are not disciplinary, this has not occurred.
  8. Disciplinary processes for court and prosecution staff exist but are unclear and applied very rarely. The Law on Civil Servants directs that the SCC be responsible, but in fact, Court Presidents manage and terminate civil servants and public employees without guidance from the SCC, the MOJ, or the HJC. In the prosecution service, the RPPO and the SPC are responsible and examples of discipline and termination across the court system are extremely rare. As for the ‘shadow workforce’ of contractors, interns, volunteers, and lay judges, there is no easily discernable process for discipline or termination. Similarly, decisions would be at the discretion of the Court President. As is common in all systems, relationships play a key role, and stakeholders report that civil servants and ‘shadow staff’ are likely to remain in place despite under-performance or disciplinary concerns.