Quality of Justice
Services Delivered
Key findings
- The Serbian judicial system continues to struggle to
fully comply with ECHR requirements, as evidenced by the large caseloads
in Strasbourg. Non-compliance tends to be found in a
significant number of case types, highlighting specific problems
relating to non-enforcement of the final decisions, length of
proceedings, protection of property, and lack of effective
investigation. In addition, there are challenges in the enforcement of
ECtHR judgments, and further actions are needed to establish organized
coordination between all various state bodies.
- Overall, judges and prosecutors think that judicial
quality has improved since 2013, but lawyers see less
improvement. Unreliable data quality and availability,
inconsistency in jurisprudence, and fragmented administrative systems
are overarching challenges in addressing court system quality. On the
positive side, members of the public who have been involved in court
cases are generally satisfied with court quality.
- Citizens and the business sector are highly satisfied
with the quality of notary work, while there has been a decrease in
public satisfaction with court administrative services. While
most members of the public remain satisfied with the quality of court
administrative services, the downward trend in satisfaction should be
compared with positive public opinion about notaries. Part of the
courts’ administrative responsibilities was transferred to notaries in
2014, and public satisfaction suggests that the reform was
successful.
- There are some concerns about impartiality. These include
lawyers’ perceptions of selective enforcement of laws.
Prosecutors have complained the police do not cooperate with them during
investigations. Conversely, lawyers complain that they do not have
access to all the information that prosecutors and judges have. Further,
there is a concern that wealthier people may obtain deferred prosecution
by making monetary donations to good causes, and those decisions to drop
prosecutions are sometimes politically motivated.
- Because of gaps and ambiguities in legislation, laws are
not applied consistently, and unwarranted appeals are filed, and,
conversely, lower court decisions are reversed on appeal. Two
related issues are the clarity of legislation and its application in the
judicial systems. Regarding the first, about 40percent of judges,
37percent of prosecutors, and 46percent of lawyers believe that laws are
ambiguous and inconsistent to a great extent or to some extent. While
lawyers’ perceptions have improved over time, there has been uneven
progress in judges’ and prosecutors’ perceptions.
- The proliferation of new legislation continues, often
without analysis of the impact on or harmonization with existing
laws. Ad hoc working groups are convened to consider and draft
each new law, but there is sometimes an inadequate representation of
stakeholders, working group members report inadequate guidance, and
proposals are not necessarily subjected to formal analysis. Legislation
continues to be routinely passed by the National Assembly under
emergency procedures and without sufficient transparency.
- 84 percent of judges cited that less frequent changes in
laws could contribute to a better quality of justice services.
Criminal prosecution provides an example of the impact of frequently
changed legislation and the quality of judicial services. The Criminal
Code was amended 10 times over the last 15 years. During this period of
change, offenses can be charged as both criminal and misdemeanor
offenses - or as both criminal and commercial offenses. The same
incident burdens the courts twice: once for the misdemeanor offense,
with its procedure and legal remedies, and again for a criminal offense
with its procedure and legal remedies.
- Following the enactment of new legislation, there have
been challenges in implementation. These include limited outreach and
training. A primary example is low awareness of the
availability of free legal aid (see Access Chapter).
- Inconsistent interpretation of laws and inconsistent
jurisprudence remain challenges for the Serbian judiciary. 70
percent of judges and prosecutors and 90 percent of lawyers stated that
inconsistent interpretation of laws and inconsistent jurisprudence
happen at least from time to time, if not often. More than 80 percent of
lawyers reported that selective implementation of laws and
non-enforcement of laws occurs frequently, but only about one-third of
judges and prosecutors shared this view. Judges’ and prosecutors’
perceptions have been slightly improved since 2013, but lawyers’
perceptions have worsened over the time, especially in the area of
selective enforcement of laws.
- The judicial system still lacks a standardized approach
to routine aspects of case processing. The quality of case
processing has not improved significantly since the 2014 Judicial
Functional Review. There are no checklists, standardized forms, or
templates for routine aspects of case processing, nor is there a
consistent approach to drafting routine documents, such as legal
submissions, orders, or judgments.
- There are few examples of specialized case processing for
the types of cases that often warrant a tailored approach. The
law on the prevention of family violence is an example of the potential
for improved coordination in case processing. It envisages the
establishment of a group for coordination and cooperation (Article 25)
that consists of representatives of public prosecutors, police, center
for social work, and, if there is a need representatives of other
institutions (educational, employment services, etc.).
- Lawyers who represent criminal defendants in particular
point to shortcomings in information and communication
technology. For instance, some databases are available only to
judges and prosecutors. There is no comprehensive countrywide system to
process and interlink cases across courts and prosecutorial
networks.
- There is a continuing lack of data about the reasons for
dismissals by prosecutors. Since 2013, Serbian law has allowed
the filing of complaints about the dismissal of criminal complaints, and
Serbians have made extensive use of this process.
- The number of cases concluded by plea bargaining
decreased by eight percent in 2019 due to a 17 percent drop in plea
bargains in the Belgrade appellate region.
- The implementing legislation for deferred prosecution is
incomplete and imprecise, prosecutors’ decisions are not uniform, and
guidelines and criteria for its use are missing. There is a
lack of consideration for the interests of the victims of the crimes
involved. The conditions imposed in deferred prosecution measures seldom
benefit the community at large through rehabilitation programs or
community service. The most frequent condition is a cash donation to
humanitarian causes. This can give the impression that defendants have
bought their way out of the criminal justice system.
- The lack of official guidelines and political will for
cooperation between police and prosecutors continue to impede the
effective investigation of criminal cases. Prosecutors have no
practical means for compelling police to follow their directions.
Prosecutors reported this problem arose particularly in cases that might
have political implications. In addition, when police submit both
misdemeanor and criminal charges for the same incident, they often do
not inform the prosecutor, which leads to duplication in court
proceedings, as noted above.
- Serbia’s prosecutorial system also remains highly
hierarchical, with higher-instance Public Prosecutors authorized to
control the work of lower-instance ones. Higher-instance
prosecutors can take over any matter from a lower-instance Public
Prosecutor within his or her jurisdiction and issue mandatory
instructions to those lower-instance Public Prosecutors. On the one
hand, such oversight could be useful in promoting consistent practices.
On the other, it may allow selectivity in prosecution.
- Standardized forms and templates used by PPOs are not
being updated on a system-wide and regular basis, despite amendments to
the criminal code. The use of up-to-date templates and
standardized forms would facilitate consistency in routine prosecutorial
tasks, reduce mistakes, and fast-track daily actions.
- The 2014 Functional Review found the appeals system is at
the heart of Serbia’s problems in terms of quality of decision-making
and remains high but has declined. The rate of appeals filed
and the rate of reversals on appeal, are relevant to legislative
quality, judicial quality, and public trust. A high rate of reversals
can indicate that lower courts are struggling to interpret ambiguous
laws. Lack of uniformity in the application of laws can encourage
parties to hope for a more favorable result on appeal.
- Trust in the appellate system among court users in Serbia
has decreased in the past decade. However, Court users who
received an unfavorable judgment filed an appeal in 84 percent of the
cases if they considered the decision unfair, an increase by 21
percentage points over the 2014 Functional Review.
- Serbian Basic PPOs appealed in 12 percent of cases in
2019 and were successful in only 21 percent of their appeals, indicating
that prosecutors may be pursuing appeals that were not
justified. Appellate success rates varied significantly among
PPO types, among individual PPOs, and over the years. There were no
written policies or guidelines governing the selection of cases to
appeal. Appeal rates varied considerably among Basic PPOs, including
those of similar size.
- While appeal rates vary markedly across court types, case
types, and court locations, the data management system is not adequate
to compare performance. It is not possible to generate a report on
lodged appeals or dismissed appeals. It is not possible to
distinguish between cases appealed from Basic Courts and those appealed
from Higher Courts, which are entered in the same registry.
- It is possible that appeal and reversal rates will
decline as the quality of judges’ decisions improves. The
clarity in written decisions may help the parties, and the reviewing
courts better understand the reasoning of the first instance courts.
Existing judicial training has improved the clarity of written
decisions. The Supreme Court of Cassation has organized round tables to
discuss criminal judgments and identify shortcomings and good practices
in judgment writing.
- As well as improving quality, specialization can result
in more efficient use of limited resources. For example, the
courts are burdened with many repetitive cases that derive from the same
underlying issue. An example is over 56,000 military reservists’ claims.
Serbia has not adopted the practice used in some countries of
consolidating cases to resolve similar or identical factual and legal
claims.
Introduction ↩︎
- This chapter assesses the ability of the Serbian judicial
system to deliver quality services to citizens and its progress since
the 2014 Judicial Functional Review. Quality of justice
services was assessed through a range of dimensions, including the
uniform application of the law, user satisfaction with the justice
services received, consistency with ECHR standards, and perceptions of
integrity.
- The quality of the justice system is a significant part
of effective justice, underpinning business confidence, job creation,
and economic growth and providing protection from violations.
However, according to the World Bank 2020 Regional Judicial Survey, more
than 40percent of citizens and business representatives in Serbia
believe that the quality of the judicial system has not changed over the
course of the past three years, although many measures were implemented
with the aim of improving e the quality of work.
- In comparison to general perceptions about the quality of
judicial services, experience with court cases has a positive influence
on citizens’ assessment. Citizens with recent personal
experience are noticeably more positive about court work quality in
their own case (69percent) than is the general public (45percent). The
outcome of the case does not seem to play a role in the perception of
court work quality. At the same time, business representatives with
recent experience in court cases are the most satisfied with court work
quality. When court users do perceive low quality, they see bad laws,
followed by poor work by the judge, as the main reasons for the low
quality.
Quality of Laws and
Law-Making ↩︎
- The need to have good quality laws is stipulated in the
jurisprudence of the ECtHR. Therefore, the legislatures of
Member States need to respect the principles of the rule of law and the
minimum requirements of good law-making. This aspect includes
accessibility to information about laws and policies and foreseeability
about how they are applied. Otherwise, there can
be concerns about arbitrary interference by the public authorities.
- Clearly, the quality of justice depends on the quality of
laws and the performance of the law-making system. This section looks at three
dimensions of the quality of laws: perceptions of the quality of
existing laws, the law-making process, and the rollout of recent law
reforms.
Perceptions
about the Quality of Existing laws ↩︎
- Justice system professionals are concerned about whether
laws are clear and consistent. Among judges, 40percent believe
that laws are unclear and ambiguous to a great extent or to some extent.
Among prosecutors, 37percent share that view. Among lawyers, 46percent
have that concern, although lawyers’ perceptions have improved over
time. Judges’ perceptions of clarity of the laws fell between 2009 and
2013, then improved in 2019, but only back to the 2009 level.
Prosecutors’ perceptions fell between 2009 and 2013, then improved in
2019, but are still below the level in 2009. (See Figure 82)
Figure 82: Extent to which Serbian Laws are Clear and Unambiguous, as
Expressed by Judges, Lawyers and Prosecutors, 2009, 2013 and 2020
- Further, professionals expressed reservations about the
fairness of Serbia’s laws. Only 13 percent of judges and
prosecutors considered the laws to be generally fair and objective,
although these perceptions are an improvement in comparison to 2009.
Again, most professionals reported somewhere in the middle.
- The survey also highlights how imprecise and unclear laws
can impact the quality of justice services. Lack of clarity and
precision of the laws has a greater impact on the work of less
experienced judges. Compared to their older peers, 55 percent of whom
raise this issue, 69 percent of judges whose working experience does not
exceed five years point out the need for greater precision of the laws.
19 percent of lawyers and 9 percent of prosecutors cited unclear laws as
the main reason why the quality of judicial work is not higher.
- Improvement in the law-making process and less frequent
changes in legislation could enhance quality. 84 percent of
judges stated that less frequent changes in laws could contribute to a
better quality of justice services. In addition, 84 percent of judges
see a better quality of drafting legislation as a measure that would
improve quality.
- In interviews, stakeholders noted that overlapping and
conflicting laws cause problems for the courts. Several
stakeholders highlighted the need for greater harmonization of existing
laws, as well as the need to consider existing laws when drafting new
ones. Other stakeholders noted that there are gaps in the law, and that
judges struggle to deal with these cases in the absence of clear
guidance. Stakeholders in prosecution offices highlighted challenges in
the application of environmental protection legislation and the use of
ambiguous terms regarding wage laws, which causes problems in
interpretation.
Quality of the Law-Making
Process ↩︎
- Unfortunately, the quality of the law-making process is
still problematic in Serbia, despite the adoption of rules for the
preparation and adoption of laws. There are several problems
that lead to the adoption of laws of low quality. These include very
frequent use of urgent procedures for the adoption of laws, which
stifles democratic debate and lowers the quality of legislation; lack of
transparent and genuine debate; lack of strict rules on the membership
in working groups; and transposition of rules from other systems without
adequate assessment of conditions and their implementation in Serbia. Furthermore, the National Assembly
does not exercise its supervisory function, and changes in laws are not
based on an assessment of the impact on the practice or pre-existing
laws.
- Several stakeholders identified poor drafting practices
in recent years as contributing to unclear or ambiguous new laws, which
have led to uncertainty about the application of laws by the
courts. In addition, some changes to legislation were
introduced to improve practice, but without assessment of the impact of
previous laws and practice. For example, to address the risk of
corruption in the public procurement area, a special crime was
introduced in the Criminal Code – abuse in the public procurement
procedure. However, an insignificant number of cases have been
prosecuted under this law because public prosecutors have reported that
is more difficult to collect evidence for this crime than for abuse of
office.
- Organizational methods within working groups and
representation in working groups have not always been clear.
Stakeholders who are members of various groups expressed frustration
that working groups often are not given clear direction about the goals
to be achieved by the law and the specific mandate and methods for their
work. Some working groups are guided by prior analytic studies, but
others simply debate their views. Official working groups do not always
include representatives from the populations or entities with the most
expertise or those most directly affected by the legislation.
- Although there is a requirement to assess the financial
implications of proposed laws and institutional capacities to deliver
reforms, working groups do not always conduct such analysis in
detail. Lack of robust assessment of the financial implications
of the 2011 Criminal Procedure law, which entered into force in 2013,
led to significant financial arrears in public prosecutor’s offices.
- Although there are have been improvements in the
regulation of consultation processes and public debates, there are still
shortcomings. Amendments to the Law on Public Administration from 2018 brought some
improvements in the rules on public debate, such as the possibility of
opening a public hearing in the early stages of preparation of an act
(article 77), prescription of information that must be published before
a public hearing, and the obligation for public consultations during the
preparation of laws. The Government’s Rule of Procedure stipulates the
obligation to prepare a report on the public debate and publish it on a
webpage. In research on public debates held
in 2019, Transparency Serbia found that state administrative bodies did
not act the same way in similar situations and did not comply with the
provision of the Law on Public Administration and the Government’s Rules
of Procedure.
The Rollout of New Laws ↩︎
- Stakeholders still highlight concerns regarding the
successive and continual reforms in the law over the last
decade. Legislation is amended often without adequate
awareness-raising campaigns among practitioners and users. For example,
the Criminal Code was amended 10 times over the last 15 years, which
could cause confusion among practitioners and challenges in practice.
All that could lead to lack of trust and legal certainty, making it
difficult for potential court users to follow all those amendments and
to know what the law is.
- There should be a greater focus on the dissemination and
popularization of new laws, particularly given the pace of the reforms,
the limited consultation, and the emergency passage of laws.
Awareness of new laws is low among the public, court users, and even
among legal professionals (see Access to Justice Chapter and discussion
of awareness on Law on Free Legal Aid). Yet, they are the subjects and
actors in the new laws, and their understanding is needed for laws to be
implemented effectively.
Quality of
Administrative Services within the Courts ↩︎
- The level of satisfaction with administrative court
services is important from the perspective of court users because they
directly rely on such services to conduct their everyday
business. Administrative services to citizens and businesses
comprise 24percent of all administrative tasks within the court. Basic
Courts provide administrative services and issue certificates. Pending the appointment of
notaries for some municipalities, some courts continue to verify
signatures, manuscripts, and transcripts, including in probate
proceedings.
- According to the 2020 Regional Justice Survey, court
users assess the overall quality of administrative services to be
good (see Figure 83). Court users from
the general population and the business sector which had to complete
administrative tasks related to their court cases were more satisfied
with the quality of the administrative services than with the quality of
the court work related to their case.
Figure 83: Perceptions of Users of Court Administrative Service of
the Quality of Work in that Specific Administrative Case, 2009, 2013 and
2020
- The image of the conduct and competence of service
providers is worsening over time. Most users of administrative
services are satisfied with the knowledge, efficiency, and pleasantness
of staff. However, the number of dissatisfied users has increased over
the last seven years. Satisfaction with court administrative services
should be compared with satisfaction with the work of notaries to whom
part of courts’ administrative competencies were transferred in 2014.
Citizens and the business sector are highly satisfied with the quality
of notary work; 81 percent of citizens and 97 percent of businesses
reported being satisfied with the quality of notary work in their
specific case. Such high satisfaction confirms the success of that
reform.
Figure 84: Court User Perceptions of Efficiency, Pleasantness, and
Knowledge of Administrative Service Staff
Quality in Case Processing ↩︎
- The quality of case processing has not improved
significantly since the 2014 Judicial Functional Review. This
section reviews several indicators and European benchmarks relating to
the quality of case processing, including standardized forms,
consistency in the implementation of laws, use of specialized case
processing for particular case types, and coordination in case
processing.
- Consistency in case processing is still undermined by the
absence of a consistent approach to routine documentation.
There is no uniformity in the online availability of relevant templates
that could support users’ communication with the court and court
administration. There is no common approach, nor
have any changes been made by the Appellate Courts, SCC, or
HJC.
- The RPPO took some measures in the direction of
standardization to facilitate the application of the Criminal Procedure
Code. The RPPO provided standardized forms and templates in an
electronic format aligned with the new CPC in October 2013, but they
would benefit from a system-wide update now, after five years of
application. Prosecutors have altered some of the RPPO templates
themselves already. In addition, the OSCE issued guidelines for
different types of the prosecution to support prosecutors and provide
interpretation of provisions. However, to ensure
unified practice, it would be useful to issue a Guide by the RPPO as a
mandatory general instruction.
Consistency
in the Implementation of Law and Perceptions of the Quality of Judicial
Work ↩︎
- Inconsistent interpretation of laws and inconsistent
jurisprudence remain challenges for the Serbian judiciary. In
the 2020 Regional Justice Survey, 70 percent of judges and prosecutors
and 90 percent of lawyers stated that inconsistent interpretation of
laws and inconsistent jurisprudence happen at least from time to time,
if not often. More than 80 percent of lawyers reported that selective
implementation of laws and non-enforcement of laws occur frequently.
However, only about one-third of judges and prosecutors shared this view
(see Figure 85). Judges’ and prosecutors’ perceptions have slightly
improved since 2013, but lawyers’ perceptions have worsened over time,
especially in the area of selective enforcement.
Figure 85: Share of Judges, Prosecutors, and Lawyers who Estimate
that Listed Problems Occur from Time to Time or Frequently in the
Enforcement of Laws, 2013 and 2020
- Despite improvement, lawyers are still mostly
dissatisfied with the quality of work of judges. By contrast, 73 percent of
prosecutors rated the quality of work of judges as high or very high in
2020, compared to 54 percent in 2014, and 67 percent in 2009. 87 percent of judges rated the
quality of judges as high or very high in 2019, compared to 50 percent
in 2014, and 61 percent of judges in 2009.
- The evaluation of improved quality over time is
substantially higher among judges and prosecutors (53percent of judges
and 48percent of prosecutors), than among lawyers (only
17percent). 42percent of lawyers actually report that the
quality has worsened over time, compared to only 7percent of judges and
15percent of prosecutors (see Figure 86 below). Lawyers’ opinions are
influenced by personal experience with the shortcomings of the existing
system, such as the lack of information and communication technology
systems, the absence of a comprehensive countrywide system to process
and link cases across courts and prosecutorial networks, and limits to
some databases, which are available only to judges and
prosecutors.
Figure 86: Quality of work over time
Use of
Specialized Case Processing for Particular Case Types ↩︎
- There are few examples of specialization in case
processing in the Serbian judiciary. Commercial Courts have
specialized their case processing somewhat. Misdemeanor Courts are a
type of specialized court, but within their jurisdiction is a broad
range of cases, from customs and tax offenses to traffic infringements,
yet few mechanisms exist to tailor case processing to these very
different types of cases. The Administrative Court has similar
challenges, with a broad range of cases ranging from competition cases
to cases related to election legislation.
- Lack of specialization prevents prosecutors from
developing special competencies and thus resolving cases with greater
success. In addition to specialized PPOs and four specialized
departments for corruption cases, only the larger PPOs have established
specialized departments. The First Belgrade PPO has departments for
commercial offenses and domestic violence, and the Belgrade Higher PPO
has a department for combating high-tech crime. On the other hand, there
is a specialization of case processing for juvenile cases in courts and
prosecutor offices as required by law.
Coordination in Case
Processing ↩︎
- Coordination in case processing still presents challenges
for the Serbian judiciary. Overlapping criminal and misdemeanor
offenses still exist in the Serbian legal system.
Elements of specific offenses can be charged as both criminal and
misdemeanor offenses - or as both criminal and commercial offenses. In Serbia, police often submit
both misdemeanor and criminal charges for the same incident and do not
inform the prosecutor of the duplication.
- Overlapping offenses also cause inefficiency within the
court system. The same incident burdens both the prosecution
and the courts - once for the misdemeanor offense, with its procedures
and legal remedies, and again for the criminal offense, with its
procedures and legal remedies.
- There are examples of the roll-out of good practices in
coordination of case processing across all courts. A positive
experience from inter-sectoral coordination in family violence cases
from Zrenjanin has been incorporated in legislation. The law on the
prevention of family violence envisages the
establishment of group for coordination and cooperation (Article 25)
that consists of representatives of public prosecutors, police, the
center for social work, and representatives of other institutions
(educational, employment services, etc.) if needed. The group is obliged
to meet once every two weeks.
- The great majority of prosecutors strongly believe that
cooperation with other investigative bodies contributes to the quality
of their institution, while judges and lawyers have more moderate
opinions on this issue. It seems that the view of prosecutors
is more accurate, and it is recommended that Serbia’s political leaders
implement an effective, no-tolerance policy for the unwillingness of
police to follow prosecutors’ instructions during all investigative
phases of a case. Otherwise, it will be impossible
to produce consistent improvements in the quality and timing of case
resolutions or increase public confidence in the judicial
system.
- Lack of political will, accompanied by the lack of
official guidelines, generally impedes the effective investigation of
cases. On the other hand, there are some
positive trends of cooperation that improve the quality of work. For
example, a cooperation agreement between Eurojust and Serbia entered
into force in December 2019, and in 2020 Serbia took part in three joint
investigation teams. Also, the cooperation between the
War Crimes Prosecutor's Office and the War Crime Investigation Service
has been improved by forming joint investigation teams and introducing a
new methodology. These positive examples of good
cooperation resulted in greater optimism among prosecutors who took part
in the Regional Justice Survey.
Quality of Decision-Making
in Cases ↩︎
- Although there is no template or a common approach to
judgment writing, some initiatives have been undertaken by the Supreme
Court of Cassation and professional
associations. The Supreme Court of Cassation
has organized round tables to discuss criminal judgments and to identify
shortcomings and good practices in judgment writing. The Judicial
Academy, in cooperation with the USAID ROL project, has organized
training for judicial assistants on judgment writing technics.
- Judicial training, both initial and continuous, includes
a judgment writing module. A judgment-writing component was
included in the Judicial Academy’s continuing training program for 2014,
but the training is general and does not teach a standardized approach.
As part of the initial training at the Judicial Academy, trainees
receive compulsory training on the writing of various types of judgments
and other court decisions in civil, non-litigious, enforcement, and
criminal cases; in their final evaluation as trainees, they are
evaluated on judgment-writing skills by their mentor judges.
Consistency of
Decision-Making with the ECHR ↩︎
- The statistics of the ECtHR in Strasbourg suggest that
the Serbian justice system is still struggling to comply fully with the
standards of the ECHR. Between 2017 and
2020, there has been an increasing number of cases where Serbia has been
found in violation of the standards for non-enforcement and length of
proceedings. Compared to 2010-2013, the number of violations related to
the length of proceedings significantly increased, from 10 percent to 28
percent of overall violations, while violations concerning failures to
enforce final court decisions and non-enforcement remain high. Out of a total of 63 judgments in
2017-2020 in which the ECtHR found Serbia in breach of the ECHR, 28
percent of violations related to an excessive length of proceedings and
27 percent of violations concerned failures to enforce final court and
administrative decisions. Other violations were found for the right to
protection of property and right to a fair trial. Serbia also has been
cited for lack of effective investigation, inhuman or degrading
treatment, and the right to respect for family and private
life.
Figure87: ECtHR Judgments against Serbia by Case Type (2017-2020)
- There also has been an increase in the overall number of
Serbian cases pending before the ECtHR. Serbia is still among
the countries with a significant number of pending cases at the ECtHR
(2.8 percent of the pending applications at the end of 2020). This is only surpassed by far
larger countries, such as Russia (22 percent), Turkey (19 percent), and
Ukraine (16.8 percent). Almost 97 percent of the Serbian cases heard by
the ECtHR have been declared inadmissible or stricken.
- Of applications decided by a judgment, a significant
number have found at least one violation of articles of the ECHR (22 out
of 24 in 2019; 4 out of 5 in 2020). Among these, it is common
for the ECtHR also to find a violation of the length of proceedings and
non-enforcement.
- There has been a recent noticeable increase in the number
of friendly settlements, an effective way in which
Serbian authorities can resolve matters without the need for cases to go
to hearings.. In 2017, there
were 32 friendly settlements; by 2019, the number of settlements had
risen to 103, but this is still significantly lower than 679 friendly
settlements in 2013. The negotiation of friendly settlements is likely
to be a useful litigation strategy for the state, given that awards for
non-pecuniary damages can be quite high. Friendly settlements also are
good for applicants because they prevent further delay in resolving
their case and receiving compensation.
- The Serbian authorities are taking measures, both
legislative and non-legislative, to enforce ECtHR judgments, but certain
challenges remain. Cooperation among different state
authorities is the biggest challenge because enforcement of an ECtHR
judgment may include the adoption of legislation and change of court
practices and case law to come into line with the rulings of the ECtHR,
as well as having budgetary implications.
Therefore, it is important to establish organized coordination between
all relevant state bodies.
Effectiveness
of the Appeal System in Ensuring Quality of Decision-Making ↩︎
- The appeal system in Serbia remains one of the judicial
system’s impediments, with high appeal rates and deteriorating public
perception of trust. The system still provides only unprecise
data on lodged appeals, which hinders precise analysis and required the
FR team to use estimated figures. Rates varied noticeably across court
types, case types, and court locations. High appeal rates prolong the
overall duration of cases and increase caseloads. On a more positive
note, the reversal rates have declined and have been partially
substituted by increased amendments, most likely due to the legislative
obligation of the appellate court to decide on its own on the second
appeal.
- Ambiguity in laws and lack of uniformity in their
application may contribute to high rates of appeals and
reversals. Ambiguity may cause lower-court judges to make
reversible errors, while lack of consistency in lower courts may
encourage parties to hope for a more favorable result on appeal. Other
factors also may have encouraged parties to lodge appeals, such as the
attorneys’ interest in charging for more actions taken in a case and/or
dilatory tactics to postpone enforcement in adverse decisions.
Using
Data on Appeals to Evaluate the Quality of Judgments and of the Appeals
System ↩︎
- Due to the lingering lack of more appropriate data, this
FR, like the one from 2014, relies on an estimate of lodged appeals and
appeal rates. That is, present-day
reports still do not provide information on lodged appeals but only on
decided appeals, which does not necessarily equate to appealed lower
instance decisions made in the same reporting period. Also, as found in
the FR 2014, Appellate Court statistics still do not distinguish between
cases received from Basic Courts and cases received from Higher Courts.
Instead, cases deriving from both Basic and Higher Courts are entered
into the same registries.
- To calculate appeal rates, the FR team used the
number of resolved appeals adjusted by clearance rates of higher
instance courts. Since the clearance rates of all higher
instance courts examined here were close to 100 percent, the number of
resolved appeals should be reasonably similar to the number of lodged
appeals. This calculation is rather
straightforward for all court types except for Basic Courts, for which
the team needed to include an additional estimate to distinguish the
appeals disposed of by the Higher Courts from the ones disposed of by
the Appellate Courts.
- Serbian data on resolved appeals lacks one more dimension
– dismissed cases. The SCC’s reports disaggregate resolved
appeals by the following categories; confirmed, remanded, amended, and partially amended or
remanded. Dismissed appeals are left out, although they should be
reported as a separate category. Therefore, the FR team could not
include dismissals in its estimates. If dismissals were included, the
appeal rates would have been somewhat higher than estimated.
- Confirmation and reversal rates, without the appeal rate,
do not mean much individually, but they mean a lot combined.
High appeal and high confirmation rates in combination indicate stalling
or other abusive tactics by parties. High appeal and low confirmation
rates indicate quality and case law harmonization problems. The ideal
situation would be a low appeal rate and a 50 percent confirmation rate,
suggesting that only cases where even the judge may be uncertain of the
right outcome go to higher instances.
- Appeals are crucial not only as an indication of quality
in decision-making but also as a factor in efficiency and
timeliness. High appeal rates prolong the overall duration of
cases and increase caseloads. Reversal causes a case re-opening in the
lower instance court, after which the same case probably will be
appealed again. This could happen several times in a single legal
matter. However, procedural reforms have removed some of these
procedural loopholes. For instance, appellate tiers are required to
substitute the reversed decisions by their own judgments on the second
appeal.
Appeals by Court Type and
Case Type ↩︎
- There are four court types with appellate jurisdiction in
Serbia: the Higher Courts, the Appellate Courts, the Appellate
Commercial Court, and the Appellate Misdemeanor Court, in addition,
appeals may be made to the Supreme Court of Cassation (see Figure 88,
below). The ensuing analysis tracks appeals by court type and
offers views on the current state of the appellate system in
Serbia.
Figure 88: Court Appellate Jurisdiction in Serbia
Source: WB Team Illustration
Appeals from Basic Court
Decisions
- As a rule, appeals from Basic Courts go directly to the
Appellate Courts for review (so-called ‘big appellation’), but some,
usually concerning simple matters, are reviewed by Higher Courts
(so-called ‘small appellation’).
According to the data collected by the SCC for this FR, on a national
level, appeals against Basic Court decisions comprised 62 percent of the
Appellate Courts’ caseload in 2019, and 66 percent in the first half of
2020. Table 14 below displays ratios of received cases from Basic and
Higher Courts per Appellate Court in 2019.
Table 14: Received Cases in Appellate Courts from Basic and Higher
Courts in 2019
| Belgrade |
11,010 |
54percent |
9,558 |
46percent |
20,568 |
| Kragujevac |
8,764 |
66percent |
4,541 |
34percent |
13,305 |
| Nis |
8,313 |
67percent |
4,092 |
33percent |
12,405 |
| Novi Sad |
9,772 |
68percent |
4,704 |
32percent |
14,476 |
| TOTAL |
37,859 |
62percent |
22,895 |
38percent |
60,754 |
Source: SCC Data and WB Calculations
- The cumulative appeal rate of Basic Courts in 2019 was
nine percent – one percent higher than in 2013. This appeal
rate was calculated by dividing 105,464 resolved appeals in Higher and
Appellate Courts by 1,110,393 resolved cases in Basic Courts. 72.40
percent of the decisions or 76,356 were confirmed, 13.64 percent or
14,381 decisions were remanded, 8.18 percent or 8.622 decisions were
amended, and 5.79 percent or 6,105 decisions were partially amended or
remanded.
- Appeals against Basic Court decisions in civil litigious
cases in 2019 were high, with an
appeal rate of 30 percent or approximately seven percentage points more
than in FR 2014. Almost
three-quarters of the appeals pertain to general civil litigation (‘P’
registry) where the appeal rate in 2019 was estimated to be around 33
percent and the confirmation rate 72.64 percent. Labor civil litigious
cases (‘P1’ registry) occupied just under one-quarter of civil litigious
appeals, with an appeal rate of 43 percent and a confirmation rate of
71.72 percent. Family civil litigious cases (‘P2’ registry) comprised
three percent of the civil litigation appeals, with an appeal rate of
six percent and a confirmation rate of 59.10 percent.
- Appeals rates against Basic Court
decisions in criminal matters were also high at 24 percent. Interestingly, the appeal rate in
criminal matters appears to be stable over time, as it was only one
percent higher in 2019 than in 2013, as reported by FR 2014. Of appeal
decisions made in 2019, 68.79 percent were confirmed, 18.27 percent were
remanded, 10.50 percent were amended, and 2.45 percent were partially
amended or remanded. There were another two noteworthy categories of
criminal cases, so-called criminal panels (‘KV’ registry) and parole cases (‘KUO’ cases),
with appeal rates of 17 and 10 percent, respectively. In both
categories, the confirmation rates were almost 100 percent: 97.78
percent in criminal panels cases and 98.58 percent in parole
cases.
- Appeals against civil non-litigious cases remained low,
under five percent, and varied significantly among case types.
This is because non-litigious cases essentially do not involve a dispute
between the parties and because not all non-litigious decisions of the
Basic Courts can be appealed. On one side of the spectrum, the appeal
rate in probate cases in 2019 was 0.3 percent, and the confirmation rate
was 99.85 percent. On the other side, a 38 percent appeal rate was
reported in cases concerning requests for monetary compensation for
immaterial (non-pecuniary) damages due to violation of the right to a
trial within a reasonable time, while 94.49 percent of these cases were
confirmed.
- Appeals against enforcement decisions stayed very low at
approximately three percent.
Out of this percentage, 69.93 percent were confirmed, 12.64 percent were
remanded to the lower court, 11.98 percent were amended, and 5.45
percent were partially amended or remanded. Compared to 2014 data, the
number of amended and partially amended or remanded decisions increased
by multiple times, meaning that the higher instance courts now opt for
resolving the case by themselves more, rather than returning the cases
for retrial and prolonging their duration.
Appeals
from Higher Court Decisions to the Appellate Court
- In Higher Courts, a total of six percent of all decided
cases were appealed in 2019, approximately as many as in
2013. 77.33 percent were confirmed,
11.21 percent remanded, 8.42 percent amended, and 3.03 partially amended
or remanded. In comparison to 2013 figures, the confirmations have
increased by 11 percentage points, the remands have decreased by 3.5
percentage points, while the amendments and the partial amendments or
remands varied only slightly, up to one percentage point.
- Appeal rates among major case types in Higher Courts
varied significantly, primarily due to the ease of appeal. In
the first instance civil litigious cases, the estimated appeal rate was 20
percent, and the confirmation rate was 72
percent. Conversely, in the second instance civil cases, where there are very few
legislative options for appeal, the appeal rate was three percent, and the confirmation rate was
95.80 percent. By contrast, in criminal cases,
the parties appealed in 14 percent of the decided
cases, and the confirmation rate was 61.82 percent.
- In other case types in Higher Courts, appeal and
confirmation rates varied considerably. The lowest individual
appeal rate was 0.1 percent in cases concerning measures to ensure the
presence of the accused in the preliminary proceedings. The confirmation
rate for the same case type was 100 percent. In criminal panels cases,
the appeal rate was 28 percent, while the confirmation rate was 85.86
percent.
Appeals of Commercial
Court Decisions
- In 2019, the Commercial Courts, aggregate appeal rates
and confirmation rates were both moderate. Of the total of
140,082 Commercial Court decisions made, 15,242 were appealed to the
Appellate Commercial Court, representing around 11 percent of the
Commercial Courts’ decisions for that year. 75.37 percent of the
appealed decisions were confirmed, 11.30 percent were remanded to the
lower court, 9.24 percent were amended, and 4.09 percent were partially
amended or remanded.
- The Appellate Commercial Court displayed a greater
inclination to substitute the lower court decisions with its own, i.e.,
the remanded decisions decreased, while the amended and partially
amended or remanded decisions increased. In 2013 19.5 percent
of the decisions were remanded, which is 8.2 percentage points more than
in 2019. Conversely, the amendments increased by 3.44 percentage points
and the partial amendments or remand by 3.39 percentage points.
- Civil litigious cases in Commercial Courts reported very
high appeal rates of 39 percent, while their corresponding confirmation
rate was 73.71 percent. Out of 14,483 resolved cases, 5,721
were decided in the Appellate Commercial Court, and 4,217 were
confirmed. Similarly, high appeal rates were reported in Commercial
Courts in some case types involving bankruptcy proceedings
(reorganization plans) and in enforcement proceedings regarding the
right to a trial within a reasonable time.
Appeals of
Administrative Court Decisions
- In the Administrative Court, appeal and remand rates
remained low. In 2019, Administrative Court decisions were
appealed to the SCC in 1.5 percent of all Administrative Court decisions
for that year. This was a reduction by 2.3 percentage points compared to
FR 2014. Of the 329 appeals decided by the SCC in 2019, 91.08 percent of
the decisions were confirmed. This is almost exactly the same as in
2013, according to the FR 2014 data, when the estimated confirmation
rate was 91.11 percent. The latest data confirm the previous FR 2014
finding that there is a higher level of uniformity and consistency in
administrative law than in other fields and that a large number of
appeals are lodged without merit. However, this analysis is not able to
distinguish if the appeal rates were low, and the confirmation rates
high because the parties find it hopeless to go against the state in
administrative matters.
- Among individual case types in the Administrative Court,
the appeal rate is high (38 percent) only in cases concerning the right
to a trial within a reasonable time. Even in those cases, the
confirmation rate is also high, at 91.08 percent.
Appeals of Misdemeanor
Court Decisions
- In the Misdemeanor Courts, the aggregate appeal rate in
2019 was low, at four percent, while the remand and the amendment rates
were fairly high. In 2019, out of 614,246 decided cases, 25,539
decisions of the Misdemeanor Court were appealed to the Appellate
Misdemeanor Court. Of these, 58.78 percent were confirmed, 19.50 percent
were amended, 21.48 percent were remanded to the lower court, and 0.24
percent were partially amended or remanded.
- In comparison to the 2013 data analyzed in FR 2014, the
Appellate Misdemeanour Court doubled the number of amendments and
reduced the number of remands by roughly one-third. Almost
eight percentage points fewer decisions were remanded in 2019 than in
2013 (when 27.73 percent of decisions were remanded to the lower court).
At the same time, the percentage of amendments in 2013 (9.66 percent)
doubled to about 20 percent in 2019. Other categories are roughly
comparable to the 2013 data.
- The increase in the amendments and the decrease in
remands is an improvement in line with the FR 2014
recommendations. The FR 2014 argued that misdemeanor cases
should be relatively straightforward and the Appellate Misdemeanor Court
would be well placed to amend the decision and save the parties and the
Misdemeanor Courts the necessity of a retrial. The latest data indicate
that the Misdemeanor Courts complied successfully with the given
recommendation.
Appeals by Location ↩︎
- Outcomes of appeals varied among Serbian Basic Courts
without any clear pattern. The average reported confirmation rate was 68
percent. The Basic Court in Subotica reported the highest
confirmation rate in 2019 of 88.87 percent, while the lowest rate, of
34.18 percent, was reported in the Basic Court in Vrsac.
Simultaneously, the Basic Court in Vrsac also reported an unusually high
percentage of amended decisions – 57.02, primarily due to a very high
number of amendments of civil litigious cases registered under ‘P’.
Amendments were also high in Basic Courts in Sremska Mitrovica and Backa
Palanka, at 20.63 percent and 19.86 percent, respectively. By contrast,
the highest remand rate of 27.49 percent was reported in the Basic Court
in Bor, followed by the Basic Court in Velika Plana, Trstenik, and
Senta, in which over one-quarter of decisions were remanded.
Figure89: Appeals Outcomes in Selected
Basic Courts in 2019
Source: SCC Data
- Appeal outcomes varied also among Higher Courts but to a
lesser extent than in Basic Courts. The majority of Higher
Courts remained close to the average confirmation rate of 75 percent.
The only two true outliers were the Higher Court in Kraljevo, with a
confirmation rate of 34.64 percent, and the Higher Court in Prokuplje,
with a confirmation rate of 41.24 percent. In Kraljevo, the low
confirmation rate was caused directly by 59.75 percent of amendments of
406 labor civil litigious cases, most probably identical or very similar
disputes that could have been resolved uniformly. In Prokuplje, 36.60
percent of the decisions were remanded due to 47.90 percent or 57
remanded civil litigious decisions.
Figure 90:Appeals Outcomes in Higher Courts in 2019
Source: SCC Data
User Perceptions of Appeals ↩︎
- Trust in the appellate system among court users in Serbia
decreased from 2013 to 2020, and fell below 2009 values, as demonstrated
in Figure 91. In 2020, under one-half (41 percent) of the
citizens with recent experience in court cases stated that they trust
the appellate system. Meanwhile, a slightly higher percentage (47
percent) of business sector representatives with court case experience
stated that they trust the appellate system. Interestingly, both the
number of people who stated that they trust the appellate system and the
number of people who responded that they do not trust the appellate
system decreased in comparison to both 2009 and 2013. The number of
indecisive respondents grew by seven to twenty times. It is unclear
whether this lack of trust in combination with indecisiveness,
encourages or discourages court users from lodging appeals.
Figure 91: Perceptions of Trust in the Appellate System, as Reported
by Court Users, 2009, 2013, and 2020
- The decision of a party to file an appeal remains
strongly related to the party’s perception of the fairness of the
first-instance trial, even more so in 2020 than in 2013. Court
users who received a judgment that was not in their favor filed an
appeal in 84 percent of the cases if they considered the decision to be
not fully fair, an increase by 21 percentage points over 2013. In
contrast, court users who received a judgment that was not in their
favor but who considered the decision to be fair appealed in only 10
percent of cases, an increase by two percentage points over
2013.
Figure 92: Relationship between Perceived Fairness and Decision to
Lodge Appeal among Court Users who Received a Judgment Not in their
Favor, 2013, 2020
- In 2020, in over fifty percent of the cases, court users
reported that the higher instance court upheld the judgment.
However, in 20 percent of cases involving the public, the judgment was
overturned and a retrial was ordered. In 17 percent of cases involving
the business sector, the judgment was overturned and a retrial was
ordered. Simultaneously, the number of amendments increased from 2013 to
2020 in both citizens’ and businesses’ cases by six and four percentage
points, respectively.
Figure 93: Outcome of Appeals as Reported by Court Users, 2009 and
2013
High Appeal
Rates and High Variation in Appeals ↩︎
- High appeal rates in Serbia, particularly in specific
case types, and deteriorated perception of the appeal system suggest the
systemic presence of quality-related difficulties. Lack of
uniformity in the application of law may encourage parties to hope for a
more favorable result on appeal. Furthermore, it has been frequently
reported that attorneys also may play a role in driving up appeals,
since their expenses are predominantly calculated per each action they
take in a case. They also may instruct their clients about the
likelihood of success on appeal and the tactical advantages appeals may
offer, such as the delayed enforcement of an adverse judgment.
- Reasons for geographic variations remain inexplicable in
any way other than lack of uniformity in the application of the
law. Although one-time effects of specific circumstances in
courts, such as remands of many uniform labor cases, may cause sudden
variations, it is not likely that this could be the case in all of
Serbia, especially since the variations are persistent in 2013 (2014
Functional Review findings) as well.
- The FR 2014 found the appeals system is at the heart of
Serbia’s problems in terms of quality of decision-making.
Appeal rates were found very high on average, as were reversal rates.
Rates also varied markedly across court types, case types, and court
locations. Appeals were poorly monitored. The perceived unfairness of
the system, combined with its lack of uniformity and consistency,
encouraged court users to appeal. Attorney incentives were also
identified as one of the factors driving up appeals. At the same time,
levels of trust in the appellate system among court users were low.
Procedural amendments to reduce successive appeals (known as the
‘recycling’ of cases) were found effective. Nonetheless, appellate
judges (notwithstanding their lighter caseloads) continued to remand
cases back to the lower jurisdiction for retrial more often than they
were required to.
- On a more positive note, the higher instance courts more
often replaced the lower instance decisions with their own, as supported
by data earlier in this section. In FR 2014, only a small
percentage of cases were higher instance courts amending the decisions
of lower courts, although the benefits of such amendments are numerous.
They save the parties the trouble of re-litigating in the lower instance
court, ease the workloads of judges and courts, shorten the trial, and
increase uniformity in the application of the law over time. Legislative
changes obliged the higher instance court to replace the decisions with
their own on the second appeal. Higher instance judges should work
toward, whenever possible, replacing the decision of the lower court in
instances other than a second appeal in the same matter. Higher instance
decisions in which a reversal is issued should contain precise reasoning
and instructions to be followed by the lower court in subsequent
proceedings.
- A range of other measures are available to improve the
quality of decision-making. Some of them were already suggested
in the FR 2014. These comprise education of judges, better use of
existing case law harmonization tools, and implementation of new ones
(e.g., meetings of judges in the same department to discuss legal
issues).
Quality of prosecution ↩︎
Introduction
- This chapter builds on the analysis of Serbia’s
prosecutorial system (Prosecutorial FR) by the World Bank and the
Multi-Donor Trust Fund for Justice Support in Serbia, by examining data from
2017 through 2019. The Governance and Management Chapter of
this report covers those functions for the prosecution as well as for
the courts, but readers should consult the Prosecutorial FR for more
details about the structure and hierarchical nature of the prosecutorial
system overall. The Prosecutorial FR also covered the functions of the
SPC, the RRPO, and the different types and jurisdictions of
PPOs.
- The Prosecutorial FR, formally published in January 2019,
focused primarily on 2014 through 2016, when Serbia’s prosecutors were
adjusting to extensive changes in the nation’s Criminal Procedure Code
(CPC), adopted in 2013. These changes included the introduction
of adversarial proceedings, which challenged many prosecutors as they
adjusted to their new, more active roles.
- At the same time, leaders of Serbia’s political and
judicial systems were under continuous pressure to make major additional
structural changes to the governance and management of the country’s
prosecutorial functions as part of Serbia’s planned accession to the
EU. That pressure has continued to the publication of the
present FR, as discussed in the various EU reports related to the EU’s
Enlargement Policy.
- The official data on which many of the statistics in this
Chapter rely were not always consistent and could not always be
reconciled. Data in this study came from statistics in RPPO
Annual Reports from 2014 through 2019 and from the SPC, but other data
was derived from interviews and published analytical reports such as
those produced by CEPEJ.
- The available data for prosecutorial services still was
far less extensive than it was for courts, and the data that was
reported was of limited use because of the collection methods and
formats. There was no unified electronic case management system
for the prosecutorial system in place by the end of 2019. The available
RPPO Annual Reports were published in a format
that was not suitable for computer processing. Preparation of those
reports depended highly on manual data collection and individual
interpretation, which made the reports prone to inconsistencies and
inaccuracies.
Quality in Case Processing ↩︎
- There were no significant advancements in modernizing
performance measuring for prosecutors or PPOs. Prosecutors
still lacked support in measuring their performance and how to use this
information to their advantage to improve case management, support
funding requests, foster public support, and respond to criticism
clearly and precisely. The prosecution system would undoubtedly benefit
from such modernization.
- Regular system-wide updates of the standardized forms and
templates provided by the RPPO in 2013 were still required, especially
since there had been several amendments to the CPC since 2013.
Individual prosecutors reportedly altered some of the RPPO templates for
their own use, but there was no centralized revision of the official
forms. As noted in the Prosecutorial FR, the use of templates and
standardized forms facilitates a consistent approach to routine
prosecutorial tasks, reduces the number of mistakes in documents, and
fast-tracks regular daily actions.
Conviction rates ↩︎
- As important as they are for assessing the quality of
prosecution, conviction rates alone do not provide a complete picture of
how well any prosecutorial system has performed. In addition to conviction rates,
factors such as the timing and reasons for dismissals and deferred
prosecutions can be used to examine both the quality of decision-making
and the skills of professionals within a judicial system.
- The types of cases included in Serbia’s conviction rate
statistics did not change between the publication of the Prosecutorial
Functional Review and 2019, so they included only cases in which a court
entered a decision of guilty or innocent. As a result, the
statistics about convictions included cases concluded through plea
bargains but did not include deferred
prosecutions, which involve the dismissal of charges by a prosecutor
without a court finding of guilt or innocence, while imposing a sanction
on the defendant.
- The overall conviction rates of Basic and Higher PPOs
held steady or improved during 2018 and 2019, compared to the rates for
2015-2017. The average for Basic Courts was 91 percent for 2018
and 2019, compared to 90 percent for 2015-2017, while the average for
Higher Courts increased from 86 percent in 2015 and 2016 to 89 percent
in 2017 and 2018, and 91 percent in 2019.
- However, there were wide variations in conviction rates
among even PPOs of the same size and jurisdictional levels and sometimes
by year within the same PPO from 2015 through 2019. See Figure
94 and Figure 95 below. The FR team was not able to obtain any analyses
of the reasons for the variations that may have been completed by the
SPC or the RRPO. The Basic PPO in Petrovac on Mlava had
a 100 percent conviction rate from 2015 to 2017 and a 99 percent
conviction rate in 2018 and 2019. Similarly, high conviction rates
throughout the period were reported in Basic PPOs in Jagodina and
Smederevo. The Basic PPOs in Belgrade had rates that were roughly at the
national average. Conversely, similarly-sized Basic PPOs in Lebane and
Mionica reported much lower conviction rates and/or higher variations. . The medium-sized Basic PPOs in
Vranje had lower conviction rates than the average, ranging from 74
percent in 2015 to 83 percent in 2017 and 2019. The Basic PPO in Nis
improved its conviction rate significantly in 2018 to 94 percent, which
was approximately 14 percentage points higher than in previous years,
but the rate fell again in 2019 to 86 percent. In 2019, the lowest
conviction rate (61 percent) and a drop of 27 percentage points compared
to the previous year was reported in the Basic PPO in Prokuplje. This
sudden drop in Basic PPO in Prokuplje was caused primarily by a 400
percent increase in the number of acquittals.
Figure 94: Convictions for Selected
Basic PPO from 2015 to 2019
Source: RPPO Annual Reports 2015-2019
- The conviction rates of Higher PPOs also had similar
variations, but the FR team could not locate any analyses of the
possible causes of the variations. For instance, the conviction
rate for the Higher PPO in Vranje dropped from 84 percent in 2017 to 58
percent in 2018. The rate for the Higher PPO in Belgrade increased each
year by a total of 18 percentage points from 2015 to 2019. The three
Higher PPOs with the lowest rates in 2019 were Vranje (72 percent),
Jagodina (81 percent), and Kraljevo (82 percent). In contrast, the rate
for the Higher PPO in Leskovac rose from 64 to 97 percent in 2019. Only
two Higher PPOs, in Novi Pazar and Uzice, managed to maintain conviction
rates of 90 percent or higher over the five observed years(there was no
data available for Uzice for 2017).
Figure 95: Convictions per Higher PPO from 2015 to 2019
Source: RPPO Annual Reports 2015-2019
- Conviction rates of Specialized PPOs and specialized
departments in select Higher PPOs also varied significantly.
The Special Prosecutor’s Office for Organized Crime reported conviction
rates from 75 to 91 percent from 2015 to 2019
while conviction rates of the Special Prosecutor’s Office for War Crimes
ranged from zero to 83 percent. Conviction rates for
the Special Prosecution Office for High Tech Crime within the Belgrade
Higher PPO improved from 37 percent in 2015 to 91 percent in 2019. The specialized departments to
combat corruption, established in 2018 in four Higher PPOs, produced a
100 percent conviction rate that year and a rate of 96 percent in
2019.
Quality in Decision-Making ↩︎
Control
Mechanisms and Coordination in Case Processing ↩︎
- There were no changes to the highly hierarchical
structure of Serbia’s prosecutorial system between the publication of
the Prosecutorial FR and the end of 2019. Higher-instance
Public Prosecutors still had the right to control the work of
lower-instance ones; the higher-instance prosecutors could take over any
matters of lower-instance Public Prosecutors within his or her
jurisdiction and issue mandatory instructions to those lower-instance
Public Prosecutors.
- By the end of 2019, there still were no effective means
prosecutors could use to force police to follow their
instructions.. Prosecutors interviewed for the FR reported it
still was common for police to ignore or to vary from prosecutorial
instructions about steps to be taken during the investigations.
Prosecutors reported this problem arose particularly in cases that might
have political implications because of political issues or the political
roles of persons involved in a case, which also was true when the
Prosecutorial FR was published in 2018.
- To ensure better quality and control of prosecutors’
work, starting in 2013, the CPC has allowed the filing of complaints
about the dismissal, suspension, or abolition of a criminal complaint,
and Serbians have made extensive use of this process. An alleged victim or the person
who submitted a criminal complaint may request that a higher-instance
PPO reconsider a dismissal.
- The complaints mechanism was applied in eight percent of
the dismissals in Basic PPOs (4,749 complaints) and 43 percent in the
Higher PPOs (2,122 complaints) in 2019. In the absence of any
data to explain the difference of 35 percentage points, the FR team
presumes persons affected by the more serious crimes handled by Higher
PPOs were more apt to feel they had significant interests in the outcome
of those cases.
- In 2019, 12 percent of the 4,749 complaints against Basic
PPO dismissals were adopted by the Higher PPOs while 75
percent were rejected, and 12 percent were carried over to
2020. Since the time limits for this type of complaint against
any dismissal are quite strict, presumably, the carried-over cases were
those received at the end of the year.
- In 2019, eight percent of the 2,122 complaints against
Higher PPO dismissals or 166 were adopted by the applicable Appellate
PPOs, while 1,739 were rejected, and 217 were carried
over.
- In both Basic and Higher PPOs, the figures related to
injured person complaints varied to some extent from 2014 through 2019
but without a distinct pattern. Approximately 3,500 to 4,500
complaints were submitted against Basic PPOs dismissals, and 1,000 to
2,500 against Higher PPOs dismissals. Roughly 75 to 85 percent of
complaints against both Higher and Basic PPOs were not accepted, with
the exception of 2017, when 93 percent of the complaints submitted
against Higher PPOs were rejected.
Dismissals ↩︎
- Due to the continuing lack of detail collected about the
reasons for dismissals, the system was still missing a significant
amount of critical data about the quality of this process.
Dismissals in the RRPO’s Annual Reports were broken down into only five
categories, namely ‘insignificant offenses’,
cases dismissed for lack of evidence, deferred prosecutions, unfinished
deferred prosecutions and “other”. It was not even possible to
determine, for instance, how many of the “other” cases had to be
dismissed against adult defendants because the applicable statute of
limitations had expired. In 2019, 40 percent of the dismissals of
criminal complaints against adult defendants were handled by Basic PPO,
as shown by, and Figure 96, 87 percent of the same set of cases handled
by Higher PPOs fell in the “other” category.
Figure 96: Dismissals in Basic PPOs by Type in 2019
Source: RPPO Annual Report 2019
- From 2014 to 2019, Basic PPOs dismissed a higher share of
cases than Higher PPOs due to the number of cases for which there was
insufficient evidence. In 2019, only five percent of dismissals
in Higher PPOs were for lack of evidence, compared to 13 percent of the
dismissals of the same type in Basic PPOs. See Figure
97.
Figure 97: Dismissals in Higher PPOs by Type in 2019 (Adult
Perpetrators)
Source: RPPO Annual Report 2019
- Comparison of earlier figures to the share of cases shown
as “discontinued” in the CEPEJ 2020 report,
which was based on 2018 data, should be done with
caution. Serbia’s statistics show the share of dismissals in
the number of disposed of cases ranged from 47 to 58 percent of the
cases disposed of for Basic PPOs and 39 to 47 percent for Higher PPOs. The CEPEJ 2020 report found that
Serbian prosecutors discontinued 3.28 cases per 100 inhabitants, which
was higher than the averages for the EU (1.91) and EU11
(1.10), and the Western Balkans (1.33) average.
While these numbers could be read to show a tripling of the cases
discontinued by Serbian prosecutors compared to the previous CEPEJ
report based on 2016 data, between the two reports Serbia changed its
definition of what counted as a case against adult defendants processed
by a public prosecutor. Therefore, the
differences from the earlier numbers probably are not as high as they
appear in the CEPEJ report. See Figure 98.
Figure 98: Percentage of Dismissed Cases in Basic and Higher PPOs
from 2014 to 2019
Source: RPPO Annual Reports 2014-2019
- Also in 2019, of the dismissals of juvenile justice
complaints handled by Higher PPOs, 44 percent were dismissed because the
defendant was too young to be prosecuted for the crime charged and
deferred prosecution was applied in 23 percent of the
dismissals. The bases for the remaining 33 percent of
dismissals were not specified; for instance, dismissal statistics for
juveniles did not contain separate categories for lack of evidence or
insignificant offenses.
Deferred Prosecution ↩︎
- According to the CEPEJ 2020 report (2018 data), with a
score of 0.27 Serbia reduced the number of cases ‘concluded by a penalty
or a measure imposed or negotiated by the prosecutor’, including
deferred prosecutions, for the second time in a row. As opposed
to the previous two evaluation cycles, when the reported ratio was one
of the highest among covered countries,
the latest figures are more modest and well under the CoE average of
0.45. However, they still were more than double than the EU11 average of
0.10. In the CEPEJ 2016 report (2014 data), Serbia’s reported ratio was
0.53, and in the 2018 report (2016 data) 0.36. Many of these differences
probably were affected by Serbia’s decision to expand its definition of
cases against adult defendants processed by prosecutors between 2016 and
2018.
- Compared to 2018, in 2019 Basic PPOs increased the number
of deferred prosecutions by 6 percent, while the Higher PPOs reduced the
number of deferred prosecutions by 74 percent.
The reasons behind the decline among the Higher PPOs were not
documented; presumably, at least part of the decline was due to concerns
about possible overuse of the procedure, as discussed at page 41 of the
Prosecutorial FR.
- Deferred prosecution was applied in 707 juvenile criminal
cases in Higher PPOs in 2019, which represented 23 percent of the
dismissals of juvenile criminal cases. In preceding years,
deferred prosecution attained a similar share in dismissals of juvenile
criminal complaints. There were 619 deferred prosecutions (22 percent)
in 2014, 689 (26 percent) in 2015, 875 (28 percent) in 2016, 834 (24
percent) in 2017, and 468 (14 percent) in 2018.
- Some deferred prosecutions were classified as
‘unfinished’ because the defendant still had time to meet his or her
obligations. Although there still were no statistics available
by the end of 2019 for the number of cases in which the deferred
prosecution was revoked because the conditions of deferral had not been
met, the Prosecutorial FR estimated defendants had failed to comply with
the terms of the deferred prosecution in up to 10 percent of the
deferred prosecution cases.
Table 15: Deferred Prosecution per PPO Type from 2014 to 2019 (Adult
Perpetrators)
| Basic PPOs |
Deferred Prosecution |
17,447 |
21,074 |
20,083 |
16,706 |
17,802 |
18,858 |
| Deferred Prosecution (Unfinished) |
15,706 |
14,216 |
9,011 |
8,787 |
7,874 |
7,320 |
| Higher PPOs |
Deferred Prosecution |
132 |
159 |
161 |
229 |
371 |
97 |
| Deferred Prosecution (Unfinished) |
48 |
er173 |
46 |
66 |
309 |
50 |
|
TOTAL |
33,333 |
35,622 |
29,301 |
25,788 |
26,356 |
26,325 |
Source: RPPO Annual Reports 2014 – 2019
- Deferred prosecution sanctions that could benefit the
community at large, such as rehabilitation programs or community
service, were still of only limited availability by the end of 2019,
since the legislative or regulatory measures needed to implement those
types of programs still were not in place. There were no
official figures available about the number of defendants participating
in rehabilitation programs or community service. The most frequently
reported sanction imposed on deferred prosecution defendants remained a
cash donation to humanitarian causes, a sanction that can be relatively
easily monitored. As the Prosecutorial FR noted, the
widespread use of cash donations can give the impression that defendants
have bought their way out of the criminal justice system.
- By the end of 2019, Serbia also had failed to take any
steps to resolve other issues about deferred prosecutions noted in the
Prosecutorial FR. These issues included concerns that (1)
implementing legislation was incomplete and imprecise; (2) there was a
lack of clear guidelines or criteria for the use of deferred prosecution
and inconsistent use of it by prosecutors, and (3) there was a lack of
consideration for the interests of the victims of the crimes involved,
as prosecutors decided whether deferred prosecution should be offered
and/or what its terms should be.
Plea Bargaining ↩︎
Source: EU 2020 Report
- The most common types of plea bargains in 2019 resulted
in suspended sentences (about one-half) and imprisonment (about
two-fifths). Other measures such as fines, precautions (e.g.,
restraining orders and home detentions), and community service made up
the rest. The RPPO Annual Report for 2019 indicated the sanctions
awarded totaled more than 3,208 years of imprisonment and almost RSD 85
million in fines.
- After five years of consistent increases, the number of
cases concluded by plea bargaining in Basic and Higher Courts decreased
by eight percent in 2019, due to a 17 percent drop in the Belgrade
appellate region. However, even with the 2019 decrease, there
was a 190 percent increase in the number of plea bargains throughout
Serbia in 2019 compared to 2014. Of the 5,971
plea bargains proposed to courts in 2019, courts accepted 90 percent
(5,363) were accepted. This percentage was very close to the percentages
accepted in 2017 and 2018, and nine percent higher than the number of
proposals accepted in 2014. Of the other 608 proposed plea bargains in
2019, the RPPO reported that more than 169 were not accepted by the
courts, while roughly 783 requests were still pending in the courts. The
RRPO Annual Report also indicated that defendants initiated around
one-half of the proposed agreements, and prosecutors were more likely to
initiate an agreement during the pre-indictment period than later in the
case; of 4,612 plea bargains initiated before indictment, prosecutors
initiated 2,680 of them.
- The highest combined number of plea bargains for Basic
and Higher PPOs in 2019 occurred in the jurisdiction of the Appellate
PPO in Belgrade, with a total of 2,490. This was 204 percent
more than the 820 plea bargains for the same PPOs in 2014, and, as
mentioned, 17 percent fewer than the 2,994 plea bargains in the previous
year.
- The decision to appeal for every case lies with the
prosecutor handling a case and the higher-instance PPO.
Prosecutors may appeal when the court has acquitted the defendant or
when the prosecutor is not satisfied with the defendant’s sentence.
- On average, Serbian Basic PPOs appealed in 12 percent of
cases in 2019 and were successful in only 21 percent of their
appeals, indicating prosecutors
should have realized at the outset that many of the appeals would not
succeed. In the preceding year, Basic PPOs
appealed at the same rate of 12 percent of the cases but had a slighter
higher success rate of 27 percent. However, since the
resolution of an appeal often occurs one or more years after the appeal
is filed, the success rates reported in a certain year generally covered
appeals filed at least a year earlier.
- Appeal rates varied considerably among Basic PPOs,
including those of similar size. The lowest appeal rate of two
percent was recorded in Basic PPOs in Pancevo, Ruma, Senta, Pozega and
Subotica, while the highest appeal rates appeared in Basic PPO in
Kragujevac (41 percent), Mionica (35 percent), Leskovac (33 percent),
and Lazarevac and Arandjelovac (both 31 percent). The success rates
varied even more, from zero to 72 percent. Zero percent was recorded in
Basic PPOs in Kraljevo, Bor, Backa Palanka, and Novi Pazar, while 72
percent was recorded in Subotica. The wide variation in appeal rates for
2019 is displayed in Figure 99 below.
Figure 99: Ratio of Submitted Appeals and Successful Appeals in
Selected Basic PPOs in 2019
Source: RPPO Annual Reports 2019
- There were no clear correlations between the Basic PPO
appeal rate and success rates throughout the observed period.
For example, in 2019, the Basic PPO in Mionica reported an appeal rate
of 35 percent and succeeded in only two per cent of its appeals. In
contrast, for the PPO in Leskovac, the appeal rate for 2019 was 33
percent and 23 percent of its appeals were successful. (As noted above,
most if not all of the cases reported in the success rates probably were
cases in which the appeals had been filed at least a year
earlier.)
- Over time, appeal rates for most Basic
PPOs were essentially stable, even when success rates varied
widely. For instance, the Basic PPO in Sabac had an appeal rate
of 23 percent in 2015 and 2016, 20 percent in 2017, 21 percent in 2018,
and 22 percent in 2019, while its success rates ranged from three to 28
percent. There was a similar pattern for the Basic PPOs of Kragujevac
and Nis.
- Compared to Basic PPOs, Higher PPOs filed appeals more
frequently and succeeded in more cases. The average appeal rate
of Higher PPOs was 49 percent in 2015, 50 percent in 2016, 39 percent in
2017, 36 percent in 2018, and 41 percent in 2019. The success rates were
30 percent, 26 percent, 30 percent, 29 percent, and 25 percent,
respectively.
- However, very few Higher PPOs had consistently high or
low appeal or success rates from 2015 to 2019. The Higher PPO
in Belgrade has some of the most consistent showings; it appeal rate
varied between 64 and 82 percent, while the success rate ranged between
12 and 18 percent. Similarly, in Zrenjanin, the appeal rates were
between 59 and 82 percent, while the success rates varied between four
and 16 percent. In contrast, the Higher PPO prosecution office in
Prokuplje had appeal rates from 117 to 164 percent
and success rates from 44 to 95 percent.
- The appeal and success rates for specialized PPOs were in
line with the rates for other Higher PPO offices. The Special
Prosecutor’s Office for Organized Crime appealed in 63 percent of the
cases in 2019 with a success rate of 16 percent, and the Special
Prosecutor’s Office for War Crimes appealed in 67 percent of the cases
in 2019 with a success rate of 25 percent. The Special Prosecution
Office for High Tech Crime within the Belgrade Higher PPO appealed in 33
percent of the cases and succeeded in 28 percent. During 2018, which was
their first year of operation, the four anti-corruption Higher PPO
specialized departments had an average appeal rate of 13 percent and
their reported average success rate was nine percent (note, however,
that the successful cases probably were ones that started by other
offices, because the anti-corruption departments opened in 2018). In
2019 the average rate of appeal for the four PPOs was seven percent of
their concluded cases and the average success rate was 27
percent.
Recommendations and Next
Steps ↩︎
The 2014 Functional Review provided seven detailed recommendations
and next steps for improving the quality of court services in Serbia.
Although some recommendations have been implemented over time, with more
or less success, some are still unattended.
Recommendation 1: Improve the clarity and consistency of
legislation.
- Develop consistent standards for representation of stakeholders
in working groups considering new legislation. Provide guidance as to
the tasks expected of such groups. Ensure that they have access to
factual and analytical resources, including information on existing laws
and relevant statistics. (MOJ, HJC, SPC – short-term)
- Encourage legislative groups to think ahead to implementation of
new legislation, including which stakeholders might take the lead in
implementation, what are the budgetary limitations, etc. (MOJ, HJC, SPC
– short-term)
- Subject all proposed legislation to a review of consistency with
existing laws. Develop a procedure to conform to older and new laws.
(MOJ, HJC, SPC – short-term)
- Adopt clear standards and limit circumstances in which emergency
procedures are used for enacting legislation. (Parliament, MOJ –
medium-term)
- Conduct a legislative review to determine whether certain
offenses should be uniformly charged as misdemeanors, criminal cases, or
commercial offenses, and which should remain subject to the discretion
of prosecutors’ offices. (RPPO – medium-term)
Recommendation 2: Improve the consistency of application of
laws by courts.
- -tandardize training in judicial writing (JA, HJC –
short-term).
- Adopt templates for drafting routine documents, such as legal
submissions, orders, or judgments. Adopt system-wide procedures for
routinely updating all such documents (SCC, HJC, MOJ – short-
term).
- Evaluate judicial quality along with both quantitative metrics
(such as remand rates) and qualitative criteria (such as quality of
writing in judicial decisions) (SCC, HJC – short-term).
- Establish regular exchange of data on human resources and quality
of decision-making between the SCC and the HJC to inform both bodies in
performing duties. (SCC, HJC – medium-term).
- Harmonize judges’ interpretation of statutes and case law using
tools such as departmental meetings, issuing legal opinions,
establishing case law departments in higher instance courts, and
developing an easily searchable case law database. (SCC –
continuous)
- Regularly monitor and analyze reports, and discuss potential
improvements in workshops, meetings, and colloquia. (SCC, court
presidents, HJC, MOJ – continuous)
Recommendation 3: Unify and streamline court
practices.
- Adopt checklists and standardized forms for both routine and
specialized cases. Adopt system- wide procedures for routinely updating
all such documents. (SCC, HJC, MOJ – short-term)
- Implement a standardized approach to routine aspects of case
processing. (SCC, HJC – short-term)
Recommendation 4: Improvement of work of public prosecutors’
offices.
- Monitor the reasons for dismissals of cases by prosecutors. (RPPO
– short-term)
- Develop uniform standards for the conditions associated with the
deferred prosecution (principle of opportunity). (RPPO –
short-term)
- Develop uniform standards for prosecutors’ decisions to dismiss
criminal complaints, appeal decisions and impose sanctions, and enter
into plea bargains. (RPPO – medium- term)
- Develop standardized guidelines for the decision of whether to
charge an offense as criminal, misdemeanor, or commercial. Require
police to inform prosecutors of the nature of charges. (RPPO
medium-term)
- Develop uniform standards for police-prosecutor cooperation.
(MOJ, RPPO, MOI – medium-term)
- Develop standards for prosecutors to decide which cases to
appeal. (RPPO – medium-term)
Recommendation 5: Improve the functioning of the appeals
system.
- Set up a permanent body (working group or unit) in the SCC
accountable for monitoring quality indicators in courts, i.e.,
confirmation rates, remand rates, and amendment rates. Monitor the
quality of lower-instance courts' decisions and the appellate judgments
to identify whether the appellate courts are appropriately using the
possibility of amending first-instance decisions. (SCC -
short-term/continuous)
- Separately record Appellate Court statistics for cases received
from Basic Courts and cases received from Higher Courts. (SCC –
short-term)
- Align statistical data on appeals of Basic Courts decisions to
enable tracking of so-called ‘small appellation’ and ‘big appellation’.
(SCC – short-term)
- Enable tracking of lodged (not only resolved) appeals through the
existing case management systems. (SCC, MOJ – medium-term)
- Statistically monitor dismissed appeals as a separate category.
(SCC, MOJ – medium-term)
- Adopt policies that higher-instance judges should avoid reversals
and replace the lower court's decision with their own. Ensure that
remands contain precise reasoning and instructions to be followed by the
lower court in subsequent proceedings. (SCC, HJC – medium-term)
- Design and develop appropriate aggregated and disaggregated
reports for monitoring appeals and corresponding higher-instance
decisions (including information on confirmations, amendments, and
remands). Reports should include data on court type, court, and case
type, to enable evaluations to identify court types, individual courts
and/or case types with adverse quality indicators (e.g., high remand
rates) and identify reasons for poor results. (SCC – medium-
term/continuous)
- Identify causes of appeals (case law harmonization problems,
loopholes in procedural laws, dilatory tactics, or other abuses by court
users). (SCC, MOJ - medium-term)
- Analyze the extent of appeals abuses in the Serbian judicial
system, particularly in those court types and case types with the
highest appeal rates. (SCC, MOJ – medium-term)
- Develop possible sanctions for the abusing parties in line with
COE recommendations, amend procedural laws, and issue instructions to
stakeholders as appropriate. (SCC, MOJ – medium-term)
- Develop standards for prosecutors to decide which cases to
appeal. (SCC, MOJ – medium-term)
Recommendation 6: Regarding the ECtHR judgments, coordinate
various state bodies to improve investigations, protection of property,
length of proceedings, and enforcement of final decisions. (MOJ –
medium-term)
Recommendation 7: Increase the use of specialized courts and
case processing systems.
- Analyze options for using specialized case processing systems in
cases of general and specialized jurisdiction, with specific emphasis on
Misdemeanor Courts and Administrative Courts. (SCC, MOJ –
medium-term)
