Main Findings ↩︎
- Despite numerous anti-corruption initiatives and some
improvements in normative and institutional frameworks, prevention of
judicial corruption and impunity remained an issue of concern in Serbia
from 2014 to 2022. There still was no effective coordination
mechanism in place for the prevention, reduction or elimination of
corruption. In October 2020, the Group of States against Corruption
(GRECO) found that since 2015, Serbia had satisfactorily implemented
only two of GRECO’s 13 recommendations regarding “Corruption prevention
in respect of members of parliament, judges and prosecutors,” which led to GRECO’s evaluation of
the situation as “globally unsatisfactory”.
However, in March 2022, in the Second Interim Compliance report, GRECO concluded that the overall
level of compliance with the recommendations was no longer “globally
unsatisfactory” as ten recommendations had been partially
implemented.
- Judicial institutions have not made use of integrity
plans. Such plans are required by the Law on the Prevention of
Corruption as a means of self-assessment, but there is no evidence that
they have been used effectively to develop or strengthen safeguards
against corruption.
- There are still notable openings for the exercise of
undue influence on the judicial system. The constitutional and
legislative framework continued to leave room for undue political
influence over the judiciary, and pressure on the judiciary remained
high. The 2022 Constitution amendments
remove the role of the executive and legislative branches from the
process of appointment of judges and composition of the HJC. However,
for the operationalization of the new provisions, the legal framework
has to be adopted and it is set for March 2023. Government officials,
some at the highest level, as well as members of Parliament, continued
to comment publicly on ongoing investigations and court proceedings and
about individual judges and prosecutors, while articles in tabloid
newspapers targeted and sought to discredit members of the judiciary.
- The SPC established the Commissioner for Autonomy in 2017
to report to the public on claims of undue influence or attempts to
place undue influence on prosecutors. However, the post was not
filled from March 2020, when the term of the first Commissioner expired,
through the end of the mandate of the SPC composition in March 2021. The
new Commissioner was appointed in April 2022, but the rules of procedure
for the Commissioner and needed resources are still missing.
- The automated, random assignment of cases became the
official norm in Serbia’s courts by 2018, but the Law on Judges and the
Court Rules of Procedure still contained fairly broad provisions that
allowed court presidents to assign or transfer a case to a particular
judge, despite the general prohibition of deviating from random
assignment. There was no centralized tracking of cases that
were not randomly assigned. There still was no automated mechanism for
the random assignment of cases in PPOs.
- There was no central tracking of the source, basis, or
disposition of written complaints about court and prosecutorial
operations. Complaints were submitted directly to courts and
PPOs and/or the SCC, RPPO, the Councils, the Ministry of Justice, and
the Anti-corruption Agency (ACA) / Agency for Prevention of Corruption
(APC). Each court was obligated to collect and submit complaint
statistics every six months to the MOJ, SCC, HJC, and its immediately
superior court. The Ministry of Justice introduced
an automated system for complaints, however, it is not linked with other
stakeholders. However, there was no office in
the system with unified numbers for the written complaints received
during the period under review, how many complaints were submitted to
more than one institution, how many were ignored, and how many were
considered to be valid.
- From 2017 to 2022, Serbia made significant steps in
integrating ethical codes for judges and prosecutors into the regimes
governing their behavior. Ethical boards were established as
permanent bodies within the HJC and SPC, while ”Ethics and Integrity in
the Judiciary” were one of the most frequently covered thematic areas
within the JA’s continuous training curricula on “Special Knowledge and
Skills.” Furthermore, continuous training curricula for holders of
judicial office shifted to include more skills-based training on ethics
and integrity.
- The appointment of expert witnesses does not conform to
international standards for impartiality, leaving the Serbian judicial
system vulnerable to corruption. There were no clear and
transparent rules about the process that prosecutors use to appoint
expert witnesses in criminal proceedings. Experts in the same field were
not always paid at the same rates. These variations reportedly
influenced the selection of witnesses by parties or judges and the
quality of their work. The MOJ did not keep systematized data when
revoking the authorization of experts for unethical, incompetent or
unprofessional performance. Experts who missed deadlines or hearings
generally were not penalized.
- While judicial institutions have complied with the Law on
the Protection of Whistleblowers, adopted in 2014 by appointing
whistleblower point persons, these individuals have not received
training in how to carry out their responsibilities. In
addition, surveys indicate that employees of the judicial system are not
well-informed about the protections under this law.
- In large part, the legal frameworks governing the
disciplinary accountability of judges and public prosecutors conformed
to international standards. The major exception was the
continued designation of the Councils as the second-instance
disciplinary bodies, particularly since the Councils also elect members
of the respective Disciplinary Commissions for judges and prosecutors. There is also a need for clarity
in the grounds for discipline.
- The 2020 Regional Justice Survey showed a significant
increase in the trust of Serbian citizens in their judicial system,
compared to 2009 and 2013. The judicial system was in the
middle of the 2020 ladder of trust, at 55 percent. This improvement was
part of a pattern of increased trust in state institutions generally,
with the exception of the media. Trust in the judicial system increased
both among court users and the general public.
- A significant portion of judges, prosecutors, and lawyers
report that the judicial system is not independent in practice.
Approximately 24 percent of judges and 34 percent of prosecutors
reported that the judicial system is not independent. Lawyers are even
more skeptical, with 73 percent of lawyers reporting that the judicial
system is not independent.
Introduction ↩︎
- Ensuring that judicial functions are conducted with
integrity is of the utmost importance to Serbia’s democratic and
economic future. The EU’s revised Western Balkan enlargement
methodology, adopted by the European Commission in 2020, places an even
stronger focus on the core role of fundamental reforms essential for
Serbia’s EU accession, including judicial reform.
This represents an application of international standards that recognize
no society can be considered serious about fighting corruption if its
judiciary or security services are perceived to be operating with
impunity. Maintaining a culture of integrity cannot be accomplished by
repressive measures alone: promoting integrity requires safeguarding the
independence and autonomy of judges and prosecutors and eliminating
aspects of the system that create opportunities for corruption to
flourish.
- For purposes of this review, both ‘integrity’ and
‘corruption’ are used in a broad sense. ‘Integrity’ encompasses
the ability of the judicial system or an individual judicial actor to
resist corruption while fully respecting the core values of judicial and
prosecutorial independence, impartiality, personal integrity, propriety,
equality, competence, and diligence.
‘Corruption’ includes bribery or intimidation of judges, court staff, or
public prosecutors, abuse of official authority by holders of judicial
office, influence peddling, and exercising undue influence on holders of
judicial office (externally by political actors, media, etc., or
internally by colleagues or higher-ranking officials within the
system).
- In 2019, Serbia adopted a Law on Prevention of
Corruption, which replaced and
expanded upon the Law on the Anti-Corruption Agency adopted in
2008. The objectives of the 2019 Law, which took effect in
September 2020, are the protection of the public interest, the reduction
of corruption risks and the strengthening of the integrity and
accountability of public authorities and public officials. (See Box 21).
The 2019 Law changed the name of the Anti-Corruption Agency to the
Agency for the Prevention of Corruption and expanded and clarified the
duties and mandate of this independent state authority.
Box 21:The 2019 Law on Prevention of Corruption
- In addition to those shown in Figure 114 below,
institutions and organizations with roles to play in preventing and
reporting corruption include the Ministry of Justice, the National
Assembly, the Judicial Academy, and civil society
organizations. Persons working within the judicial system with
anti-corruption roles include individual judges, prosecutors, judicial
and prosecutorial staff, lawyers, and expert witnesses.
Figure 114: Institutional Framework for Integrity in the Judicial
Sector
- Few of the recommendations related to the problem of
corruption in the judiciary from the 2014 Functional Review had been
fully implemented by the end of 2020. The 2014 Functional
Review contained six recommendations, consisting of 20 sub-parts,
related to issues of corruption in the judiciary. Of the 20, only two
were completely implemented, seven were partially implemented, and 11
were not implemented at all.
- Despite numerous anti-corruption initiatives and some
improvements in normative and institutional frameworks, prevention of
judicial corruption and impunity remained an issue of concern in Serbia
from 2014 to 2020. There still was no effective coordination
mechanism in place for the prevention of and reduction or elimination of
corruption. In October 2020, the Group of States against Corruption
(GRECO) found that since 2015, Serbia had satisfactorily implemented
only two of GRECO’s 13 recommendations regarding “Corruption prevention
in respect of members of parliament, judges and prosecutors,” which led to GRECO’s evaluation of
the situation as ‘globally unsatisfactory’.
- There are still notable openings for the exercise of
undue influence on the judicial system. The constitutional and
legislative framework continued to leave room for undue political
influence over the judiciary, and pressure on the judiciary remained
high. Government officials, some at the
highest level, as well as members of parliament, continued to comment
publicly on ongoing investigations and court proceedings and about
individual judges and prosecutors, while articles in tabloid newspapers
targeted and sought to discredit members of the judiciary.
- The most fundamental change to the promotion of integrity
is the 2022 Constitutional amendments that reduce openings for political
influence on judicial operations affecting the membership and duties of
the HJC and SPC. However, for the
operationalization of the new provisions, the legal framework has to be
adopted, and it is set for March 2023. These changes are discussed in
the Governance and Management chapter.
Institutional Coordination ↩︎
- There was insufficient cooperation and coordination among
the institutions with responsibility for building the integrity of
Serbia’s judiciary for the country to improve its reputation related to
corruption in the judicial system. This is a message the
institutions and their leaders have heard many times, e.g., from the
annual Communications on EU Enlargement Policy as well as the 2014
Judicial Functional Review.
The lack of coordination included the lack of sufficient interaction
between the Councils and the Anti-Corruption Agency/APC about the
development, implementation, and monitoring of integrity plans, rules,
and standards governing conflicts of interest and implementation of
those rules and standards.
- The Councils’ lack of centralized databases that collect
all written complaints about the work of judicial institutions impaired
the system’s ability to track breaches of integrity provisions by
judicial officials or employees and to correct problems in justice
service delivery. While there was no legislation requiring the
Councils to collect and analyze all written complaints about the system,
the failure to collect and analyze complaints posed significant
integrity (as well as governance and quality) issues for the judicial
system. The Councils were unable to determine how many
of the complaints were duplicates or how many pertained to a particular
type of case or to a particular court, PPO, judge, prosecutor, or
employee. Given their responsibilities for system performance and the
selection, training, evaluation, ethics, and discipline of judges and
prosecutors, the Councils were in the best position to collect and
analyze the data related to judicial integrity in coordination and
cooperation with other competent institutions.
- The judicial system failed to inform the outside
institutions that originally received complaints about judicial
corruption and/or justice service delivery. This represented
another gap in Serbia’s ability to track and correct breaches of
integrity provisions by judicial officials. Through 2020, these
complaints were made to the court presidents and public prosecutors of
PPOs, the Councils, the SCC, RPPO, APC, and the Ministry of Justice.
Until the Law on Prevention of Corruption took effect, there was no law
requiring any judicial institution to report back to a non-judicial
agency receiving the complaint about its disposition,
except to the Ministry of Justice in line with the Law on Court
Organization. For example, the APC reported to
the World Bank team that relevant judicial institutions did not
routinely tell the Anti-Corruption Agency about the outcome of the 117
complaints about corruption in the courts or PPOs from 2015 to 2020. In
that period, the Anti-Corruption Agency received a total
of 283 complaints related to the work of courts and public prosecutor's
offices. Of that number, 96 complaints were related to the suspicion of
corruption in courts, criminal offenses against official duty, and
criminal offenses against the judiciary by judges. Also, 21 complaints
were related to the suspicion of corruption in PPOs and criminal
offenses against official duty and criminal offenses against the
judiciary by public prosecutors and deputy public prosecutors.
Table 17: Structure of complaints to the APC related to the work of
courts in the period 2015-2020
Table 18: Structure of complaints to the APC related to the work of
PPOs in the period 2015-2020
- The Law on Prevention of Corruption requires judicial
institutions to inform the APC about the outcome of complaints forwarded
by that agency only when the APC determines “there are circumstances in
the work of a public authority that might lead to
corruption.” In those cases, the APC must
recommend measures for the public authority to remedy the situation,
along with a time limit for taking the measures, and the receiving
institutions are obliged to inform the APC about the outcome of those
measures.
Development and
Monitoring of Integrity Plans ↩︎
- Integrity plans are designed to be self-assessments of an
institution’s exposure to opportunities for corruption and other
irregularities, but there was no evidence the judicial system used them
effectively to develop or strengthen its safeguards against
corruption. From 2012 to 2015, public institutions developed
and implemented their initial integrity plans and completed the first
cycle of implementation. The second cycle started in December 2016 and
lasted until October 2019. In preparation for the second cycle, the
Anti-Corruption Agency worked with the MoJ and the Councils to develop
model integrity plans for judicial institutions. Each institution could
add risk areas and processes beyond those in the model plans, but none
of the judicial institutions chose to do so.
For instance, no court or PPO identified risks related to the
implementation of rules on deferring criminal prosecution, concluding
plea agreements or the recusal of judges or public prosecutors, although
these were issues discussed throughout the criminal justice system from
2012 through 2019.
Table 19: Areas Identified in the Integrity Plans of judicial
institutions
as Most Vulnerable to Corruption
- Ethics and Personal Integrity
- Security
- Institutional Management
- Human Resources Management
- Documentation Management
- Public Procurement
- Financial Management |
- IT Security - Security of information
- Human Resources Management |
Source: Data from the Anti-Corruption Agency, July 2019
- Effective use of the plans also was hampered by the
failure of judicial institutions to appoint senior personnel to develop
and monitor the implementation of integrity plans and the lack of
transparency about their contents. APC data shows integrity
plans were adopted by 84percent of judicial institutions in the first
cycle and 88 percent in the second. However, as of the
end of 2020, most judicial institutions, including the MoJ, the
Councils, courts, and PPOs, also had failed to follow the
Anti-Corruption Agency recommendations that integrity plans be posted on
each institution’s web page.
Rules
on conflict of interest, undue influence, and declarations of
assets ↩︎
- From 2015 to 2020, under the Law on the
Anti-Corruption Agency/Law on Prevention of Corruption, the
Anti-Corruption Agency initiated 217 proceedings against judges and
public prosecutors for violations of statutory provisions related to
assets and income disclosures, conflicts of interest of public
officials, and the statutory rules on gift-giving. Of these,
196 proceedings were completed. These resulted in 185 measures of
caution, seven public announcements that violations had occurred, and
four proceedings were suspended. Measures of caution
were the mildest available sanctions for these violations.
- The Law on the Prevention of Corruption generally
strengthened and clarified the rules on conflicts of interest and asset
declarations. The judicial and prosecutorial codes of ethics in
effect through 2020 did not address “conflicts of interest” as such, but
the codes and Articles 30-31 of the Law on
Judges and Articles 65-68 of the Law on Public Prosecution did contain
clear prohibitions on external activities that might compromise
impartiality, and the duty to notify superiors of activities that might
do so.
- In April 2021, the HJC and SPC amended their Rules of
Procedure. The HJC adopted amendments to its Rules of Procedure
regulating the prevention of undue influence on individual judges and
the judiciary as a whole. Also, the SPC
decided to revise the Rules of Procedure with improved provisions
regulating the prevention of undue influence on prosecutors. Those Rules
now provide the basis for the functioning of the Commissioner for
Autonomy of the Prosecution. Following the amendments of its Rules of
Procedure, the HJC conducted numerous activities to promote reporting of
undue influence on judges and to adequately implement this
mechanism.
- The Code of Ethics for Public Prosecutors and Deputy
Public Prosecutors and accompanying guidelines adopted by the SPC in
April 2021 contains a series of principles related to conflicts of
interest. However, conflict of interest is
not presented as a separate topic, and different types of conflict of
interest are not elaborated on in the new Code. In addition, the Code
recognizes only one strategy for preventing or resolving a conflict of
interest – recusal. The practical effect of this limitation is
aggravated by the lack of any provisions in the Code or guidelines
clarifying when prosecutors should seek a recusal;
Instead, prosecutors are referred back to “the law.”
- By late 2020 there also were efforts to increase
awareness among judges and prosecutors about the problems posed by
potential risks of conflict of interest and undue influence. In addition
to training conducted by the Judicial Academy and discussed in more
detail below, the APC published a Manual for Recognizing and
Managing Conflicts of Interest and Incompatibility of Offices, while Guidelines for the
Prevention of Undue Influence on Judges
and the Guidelines for the prevention of Undue Influence on
Prosecutors were published in February 2019.
Although the Manual was not written only for judges and prosecutors, the
APC promoted it among representatives of the judicial system. Both Guidelines contained
instructions for proper management of these risks.
- Also positive was the 2017 establishment of the
Commissioner for Autonomy by the SPC
in 2017, to report to the public on claims of undue influence or
attempts to place undue influence on prosecutors. The
Commissioner was introduced after the EU 2016 Serbia Report noted that
external pressure was being exerted on the judiciary through many public
comments made about investigations and ongoing cases, including comments
from the highest political levels, and the HJC and SPC had not taken
adequate measures to protect those in the system from the effects of
those comments. As GRECO noted, the Commissioner addressed 18 cases in
2019 and 40 in 2017 and 2018, “he recommended to the SPC to further
protect prosecutors against excessive criticism from the political
sphere, carried out direct inspections to verify in eight cases that the
prosecutors had not worked under undue political influence, published on
its website specific reports and statements on undue influence exercised
on public prosecutors on specific cases.”
- However, the Commissioner’s post was vacant for a year
after the three-year term of the first Commissioner expired in March
2020. With the new composition of the SPC, the new Commissioner
was appointed in April 2021. The SPC also failed to adopt rules of
procedure for the Commissioner as a proper legislative framework for the
operations, as well as necessary resources for the effective work.
Rules on Gifts ↩︎
- Both the Law on Judges and Law on Public Prosecution
Service envisage that acceptance of gifts is contrary to the provisions
regulating conflict of interests and can amount to a disciplinary
offense. The provisions about the receipt of gifts are somewhat
clearer under the Law on Prevention of Corruption than they were in the
Law on the Anti-Corruption Agency. The newer law permits public
officials and their family members to retain only a protocol or
“occasional gift” received in connection with the
discharge of public office, providing the gift’s value does not exceed
10 percent of the average monthly salary without taxes and contributions
in the Republic of Serbia. The gift provisions
of the Law on the Anti-Corruption Agency required officials to
relinquish protocol or “appropriate gifts” with values exceeding five
percent of the value of the average net salary in the Republic of
Serbia.
- There still was concern that the newer law still did not
include criteria to determine whether a gift was "in connection to the
discharge of public office” or not.
Furthermore, the World Bank team could not verify that from 2015-2019
the HJC, SPC, RPPO, individual courts, or PPOs kept the records required
by Article 41 of the Law on the Anti-Corruption Agency of gifts reported
by judicial officials.
Random assignment of cases ↩︎
- The automated, random assignment of cases became the
official norm in Serbia’s courts by 2018, but as of December 2020, there
was no centralized tracking of cases that were not randomly
assigned. Also, as of December 2020, the Law on Judges and the
Court Rules of Procedure still contained fairly broad provisions that
allowed court presidents to assign or transfer a case to a particular
judge, despite the general prohibition on deviating from random
assignment. The combination of Articles 24-27 Law on Judges and the
Court Rules of Procedure allowed non-random assignment if the assigned
judge already was overloaded or the judge had been precluded, in the
event of a prolonged absence on the party of the judge, if the efficient
functioning of the court was jeopardized, or if the judge received a
final disciplinary sanction due to a disciplinary offense for
unjustified procrastination, “as well as in the other cases prescribed
by law.”
- There still was no automated mechanism for the random
assignment of cases in PPOs by late 2020, and the random allocation of
assignments was not the rule. As noted in the 2014 Judicial
Functional Review, Public Prosecutors were supposed to assign incoming
cases to the next Deputy Public Prosecutor based on an alphabetical
list, and the assignments were to be recorded in a case assignment
logbook. However, as of December 2020, Public Prosecutors still had
broad discretionary power to reassign cases when they found it was
justified under the Rules of Administration in the Public Prosecutor's
Office.
Appointment of expert witnesses ↩︎
- The regulatory framework governing expert witnesses in
Serbia did not comply with European standards.
Since expert witnesses are a key component of a well-functioning
court system as they provide evidence that is often decisive in shaping
court decisions, it is vital that expert evidence is seen to be
independent, objective, and unbiased.
- The appointment of expert witnesses has been recognized
as one of the main corruption vulnerabilities in the Serbian judicial
system. Through December 2020,
first-instance courts informed the MoJ about their general needs for
expert witnesses with specific expertise.
However, the MoJ was not bound by the Courts’ requests when it published
its calls for expert witnesses, so the available supply of experts did
not necessarily match the needs of the system. Prosecutors could appoint
expert witnesses in criminal proceedings, but there were no clear and
transparent rules about that process.
- Experts in the same field reportedly did not always
charge or were not always paid at the same rate, in violation of the
Rulebook on Reimbursement of Expert Witnesses. These variations
reportedly influenced the selection of witnesses by parties or judges as
well as the quality of work done by expert witnesses.
Experts also reported it was rare for judges to ask the witnesses to
supply a statement of expenses and specification of fees upon completion
of the opinion, even though this is a Rulebook requirement.
- While the Law on Expert Witnesses allowed the MoJ to
revoke its authorization for experts who performed his or her duties in
an unethical, incompetent, or unprofessional manner, the MoJ did not keep
systematized data about any revocations.
There also were few reported instances of parties or courts penalizing
or seeking redress from experts who missed deadlines or even missed
hearings altogether.
Mechanisms for
the protection of whistleblowers ↩︎
- The 2014 Law on the Protection of
Whistleblowers governed the
reporting of irregularities related to the work of all public
institutions, including those in the judicial system. As a
result, holders of judicial office, judicial and prosecutorial
associates and assistants, and other judicial system staff could use the
mechanisms in the Law to report issues related to the work of their
colleagues and/or of judicial institutions.
- There were no reliable statistics indicating what efforts
had been made to make those working in the system aware of the
availability of the whistleblowing mechanism. Interviews
conducted by the FR team indicated that holders of judicial office,
judicial and prosecutorial associates, and assistants, as well as other
judicial staff, were not sufficiently aware of the possible use of the
whistleblowing mechanisms.
- Interviewees reported that most of the persons designated
to receive the information and conduct whistleblower proceedings had no
training on how to execute their responsibilities. However,
judicial institutions did fulfill their obligation to appoint
whistleblower point persons and to adopt general acts on internal
whistleblowing.
Effectiveness
of Complaints, Ethical Codes and Discipline Processes ↩︎
Complaint mechanisms ↩︎
- There was no central tracking of the source, bases, or
disposition of written complaints about court and prosecutorial
operations. As noted above, a non-exhaustive list of
institutions receiving judicial system complaints included individual
courts and PPOs, the SCC, RPPO, the Councils, the Ministry of Justice,
and the ACA/APC. Each court was obligated to collect and submit
complaint statistics every six months to the MoJ, SCC, HJC, and its
immediately superior court. However, there was
no office in the system with unified numbers about written complaints
received during the period under review, how many complaints were
submitted to more than one institution, how many were ignored, or how
many were considered to be valid.
- The lack of statistics about the basis for complaints
left the system with little ammunition to counter rumors and perceptions
that the judiciary was riddled with corruption. While appeals
could be filed only if a party was not satisfied with the substance of a
court’s decision, complaints could be made if the party or other
participant believed the proceeding was being improperly prolonged, that
it was irregular, or that there had been an unauthorized influence on
the course or outcome of the case.
- Interviewees told the FR team reasons the two major
reasons for filing a complaint on court proceedings were dissatisfaction
with a decision and the length of proceedings. Once a written
complaint from any source reached a court president, he or she had to
get the response of the judge concerned and inform the complainant, as
well as the president of the immediately superior court, of the court
president’s own opinion and measures taken in response to the complaint.
This had to be done no later than 15 days after the court president
received the complaint. The court president could dismiss the complaint
in full or partly based on a finding that the complainant abused the
right to a complaint.
- If a complaint was filed through the Ministry of Justice,
the immediate superior court, or the High Judicial Council, the court
president also was obligated to notify that body about the merits of the
complaint and any resulting measures taken. However, none of
those bodies could overrule the decision of the court president or take
any further action if the court president had not acted on the
complaint.
- Complaints about the work of a Deputy Public Prosecutor
could be submitted to the Deputy Public Prosecutor, and about the work
of a Public Prosecutor to the superior Public Prosecutor. The
responding Public Prosecutor was required to provide a written decision
to the complainant within 30 days from the date of its receipt. If the complaint was submitted to
the SPC, MoJ, RPPO, or another superior PPO, these bodies also had to be
notified of the results. Citizens, legal entities, state bodies, and
bodies of the autonomous province and local self-government units could
submit complaints to PPOs about the handling of cases.
- As of December 2020, the websites of many courts
incorporated information from the MoJ’s website about the filing of
complaints; the MoJ information included a written guide, a model
complaint, and an infographic that explained the procedure
visually. The MoJ’s website made it clear that the procedures
did not apply to dissatisfaction with the legality or regularity of
court decisions. The SCC included information on complaints procedure
and a model complaint on its website
, and a model complaint could be found in the section of the RPPOs
website dedicated to regulations and models.
However, as of late 2020, the HJC, SPC, and PPOs had not included
information about filing complaints regarding the work of courts or
prosecutors on their websites.
Effectiveness of Ethical
Codes ↩︎
- From 2017 to 2022, Serbia made significant steps in
integrating ethical codes for judges and prosecutors into the regimes
governing their behavior. As of March 2022, GRECO found that
the 2015 recommendation on effective communication of the Code of Ethics
for judges, complemented by additional written guidance on ethical
questions, has been implemented satisfactorily.
GRECO reported that by late 2020 a large number of judges had gone
through awareness training on the “Guidelines for the prevention of
undue influence on judges”. In April 2022, GRECO noted that dedicated
training on ethical issues is not regularly organized for
judges.
- There were also other positive developments relating to
judicial and prosecutorial ethics. These included the posting
of 36 anonymized final decisions of the HJC’s Disciplinary Commission
“with specified interpretations serving as practical examples and
providing guidance on the ethical questions,”
and, as noted above, the SPC adopted a new Code of Ethics for Public
Prosecutors and Deputy Public Prosecutors, with accompanying guidelines,
in April 2021. The Judicial Academy integrated
training on the prosecutorial ethics code in its 2019 training
program, with 51 prosecutors participating
in ethical training in 2019.
- Confidential counseling was an official mechanism to
promote and support the ethical conduct of holders of judicial office
was established in the HJC, and a confidential adviser was appointed in
November 2021. Before 2018 there
were no clear mechanisms for judges to seek advice or counseling on
appropriate ethics-based conduct in particular cases.
In September 2018, the High Judicial Council finally adopted the Rules
of Procedure for its Ethical Board, eight years after the HJC adopted
its Code of Ethics. These rules required the Ethical Board to provide
written guidance on ethical issues with practical examples and
recommendations and to provide opportunities for judges to seek
confidential advice/counseling on appropriate conduct in particular
cases.
- Although the SPC entrusted confidential counseling to the
Ethical Board and appointed a professor as a confidential adviser, there
is no reported confidential counseling on ethical issues for
prosecutors. The prosecutorial Code of Ethics
allowed prosecutors to ask the Ethical Board of the SPC for an
interpretation of a particular ethical rule or advice or determination
of facts on given ethical issues. However, there was
no requirement that the consultation is confidential.
Disciplinary accountability ↩︎
- In large part, the
legal frameworks governing the disciplinary accountability of judges and
public prosecutors in Serbia conformed to international
standards. The major exception was the continued designation of
the Councils as the second-instance disciplinary bodies, particularly
since the Councils also elect members of the respective Disciplinary
Commissions for judges and prosecutors.
The normative framework also received criticism from domestic sources
for being incoherent and inconsistent,
based on at least two issues. The first criticism was that Law on Judges
was not explicit about the disciplinary accountability of court
presidents who did not implement the rules and regulations they were
required to apply. The second dealt with the lack of definitions for
terms used in the description of offenses, e.g., “serious,” “severe,” or
“to a great extent.” This criticism is not only an
academic concern since judges and prosecutors were sanctioned under
those provisions. The EU urged Serbia to amend the
disciplinary rules for both judges and prosecutors in line with European
standards, so only serious misconduct and not mere incompetence could
give rise to disciplinary proceedings.
- According to the data of the High Judicial
Council, from 2015 to 2020, there
were 90 disciplinary proceedings initiated against judges before the HJC
Disciplinary Commission. This is shown in Table 20. During the
same period, 27 disciplinary proceedings were initiated against public
prosecutors and deputy public prosecutors before the Disciplinary
Commission of the State Prosecutorial Council,
as shown in Table 21.
Table 20:Number of complaints to the disciplinary prosecutor and
initiated disciplinary proceedings against judges
| Year |
Number of complaints to the disciplinary
prosecutor |
Disciplinary proceedings initiated |
| 2015 |
956 |
18 |
| 2016 |
831 |
19 |
| 2017 |
N\A |
15 |
| 2018 |
584 |
14 |
| 2019 |
491 |
14 |
| 2020 |
429 |
10 |
Table 21: Number of complaints to the disciplinary prosecutor and
initiated proceedings against public prosecutors and deputy public
prosecutors
| Year |
Number of complaints to the disciplinary
prosecutor |
Disciplinary proceedings initiated |
| 2015 |
262 |
8 |
| 2016 |
197 |
4 |
| 2017 |
179 |
3 |
| 2018 |
152 |
5 |
| 2019 |
162 |
7 |
| 2020 |
111 |
0 |
- Disciplinary sanctions for judges and public prosecutors
included public reprimand, reduction in salary, and the prohibition of
promotion and termination, although the most common sanctions were
public reprimand and salary reduction. See Figure 115.
Figure 115: Number of disciplinary sanctions imposed on judges and
public prosecutors
Source: Annual Reports of the High Judicial Council and the State
Prosecutorial Council
- The most common disciplinary offenses for which judges
were sanctioned related to efficiency and violations of the applicable
ethical codes. Judges were found responsible for (1) negligent
performance of judicial duties related to the conduct or the completion
of legal proceedings, especially unreasonable extension of proceedings,
(2) delays in drafting decisions, and (3) failing to schedule hearings
or trials. In 2017 and 2018, there were three cases in which judges were
found responsible for “violation of provisions of the Ethical Code to a
great extent”.
- There also were no details available about individual
prosecutorial disciplinary proceedings.
The SPC reported that from 2015 to 2018, public prosecutors and deputy
public prosecutors were found responsible for (1) failing to render
prosecutorial decisions and file ordinary and extraordinary legal
remedies within stipulated time limits; (2) manifestly violating rules
of procedure relating to the respect to be shown to judges, parties,
their legal counsel, witnesses, staff, or colleagues; (3) violating the
principle of impartiality and thereby jeopardizing the public’s trust in
the public prosecution, and (4) “serious violations of the Ethical
Code.”
Training on
Ethics and other Aspects of Integrity ↩︎
- Training covering ethics and integrity was incorporated
into the JA curricula for both initial
and continuous training
of judges and prosecutors. While the Academy was
responsible for providing the training, the Councils were responsible
for defining the initial training curricula, approving the curricula for
the continuous training of holders of judges and prosecutors, and
monitoring training plan implementation.
The prosecutors‘ Code of Ethics, in effect before 2021, also was
promoted among public prosecutors and their deputies by the JA, which
integrated the code into its 2019 Training Program.
- The JA’s initial training curricula covered ethics and
integrity as part of the classes on "Professional Knowledge and Skills,
EU Law and International Standards." As described in JA
material, the two-day workshops consisted of lectures and debates and
were designed to cover regulations governing the selection, dismissal,
and professional ethics of judicial officials.
- According to the 2018 and 2019 Judicial Academy
Reports, “Ethics and Integrity in
the Judiciary” were one of the most frequently covered thematic areas
within the JA’s continuous training curricula “Special Knowledge and
Skills.” In 2018, this “Ethics and Integrity” theme included
one day of training about the ethics of public servants, judicial
ethics, and prosecutorial ethics. In 2019, training on the undue
influence of prosecutors and judges was added, and for 2020 the
curricula added the consideration of professional ethics as a tool for
preventing corruption. See Table 21 and Table 22. The chapter on
Commercial Law also included a workshop for judges and judicial
associates and assistants of Commercial Courts on judicial
ethics.
Table 22: Training conducted in 2018 for the Chapter “Special
Knowledge and Skills”
| Mentorship |
21 |
| Ethics and Integrity in the Judiciary |
18 |
| Administration in Courts and PPOs |
4 |
| Economic Education of Public Prosecutors |
4 |
| Public Relations and Communication |
4 |
| Economic Education |
3 |
| Improving training |
3 |
| Protection and Support of Witnesses |
3 |
| Public Relations and Communication; Assistance and Support to
Victims, Injured Parties, and Witnesses, and Protection and Support of
Witnesses. |
1 |
Source: The 2018 Judicial Academy Report
Table 23: Training conducted in 2019 for Chapter “Special Knowledge
and Skills”
| Ethics and Integrity in Judiciary |
41 |
| Resolving Backlogged/Aging Cases |
18 |
| Public Relations and Communication |
15 |
| Training for Using of the Electronic Database of Case Law |
4 |
| Mediation |
2 |
| Improving training |
2 |
Source: The 2019 Judicial Academy Report
Table 24: Number of judges and prosecutors participating in
training
on ethics and integrity from 2016 to 2018.
| 2016 |
96 |
89 |
| 2017 |
94 |
91 |
| 2018 |
184 |
94 |
| Total |
374 |
274 |
Source: Annual Reports of the Judicial Academy
- From 2018 to 2020, the continuous curricula shifted to
include more skills-based training on ethics and integrity.
This was done with the assistance of the EU-funded
project Prevention and Fight Against Corruption. This training aimed to provide
participants with skills to identify and resolve ethical dilemmas and
risk situations in practice by application of the Ethical Code and
anti-corruption tools and covered issues of conflict of interest and
gift-giving. According to the 2019 Judicial Academy report, 16 one-day
training sessions were held with the support of the EU project, and in 2020, the JA included this
training program in the continuous training curricula.
However, the training program was not mandatory for all judges and
prosecutors.
- The topic of undue influence on judges and prosecutors
also was incorporated into the 2019 continuous training curricula for
the first time. The Judicial
Academy’s first training needs assessments (TNA) of program users,
conducted in 2018, was a primary source for the contents of the 2019
continuous training curricula.
The TNA identified ethics and integrity training as a top priority for
judges of higher courts and deputy appellate
public prosecutors. The 2019 curricula covered
preventing the risk of undue influence and protection of judges and
training of trainers for preventing the risk of undue influence and
protection of prosecutors. The training was in addition to the
distribution of “Guidelines for the Prevention of Undue Influence on
Judges” to all judges in February 2019
and several awareness-raising programs held for judges about the
guidelines. However, the training on
preventing the risk of undue influence and protection of judges was not
included in the 2020 training curricula.
Views of
Integrity Within the Delivery of Justice Services ↩︎
Perception of Trust and
Confidence ↩︎
- The 2020 Regional Justice Survey showed a significant
increase in the trust of Serbian citizens in their judicial system
compared to 2009 and 2013. The judicial system was in the
middle of the 2020 ladder of trust, at 55 percent (see Figure 116). This
improvement was part of a pattern of increased trust in state
institutions generally, with the exception of media. Trust in the
judicial system increased both among court users and the general public
(see Figure 117).
Figure 116: Citizen Trust in Institutions, 2009, 2013 and 2020
Figure 117: Citizens’ Trust in the Serbian Judicial System, 2009,
2013 and 2020
- A variety of factors continues to undermine citizens’
trust in the judicial system. Eighty percent of respondents
selected the length of proceedings, corruption, and political influence
as reasons for their lack of trust, and more than 70 percent also named
poor and non-transparent personnel policies. Other factors cited were
different results reached in similar cases, lack of fairness, and the
selective initiation of cases (see Figure 118). Some of these factors
were mentioned more often by the court users than by members of the
general public, such as systematic failures to address violations of
rules. Based on the similarity between the factors selected by
respondents in the 2013 Multi-Stakeholder Justice Survey and the factors
selected by respondents in 2020, it appears judicial stakeholders still
have significant work to do in addressing these issues.
Figure 118: Are the following issues present in the judicial
system?
- The Survey results suggest that most attempts to
influence judges and prosecutors are more sophisticated than outright
bribery, although some court users surveyed in 2020 still admitted to
using informal means to advance their cases, compared to those surveyed
in 2013, as shown in Figure 119 below. Three
percent of court users in misdemeanor cases reported using informal
means to advance their case in misdemeanor cases, compared to nine
percent of the court user respondents in 2013. There also was a drop of
two percent of court users in business cases willing to make the
admission. However, there was an increase from two percent in 2013 to
five percent in 2020 of respondents admitting to using informal means to
advance their civil and criminal cases.
Figure 119: Court Users Who Reported Using Informal Means to Advance
their Case, 2009, 2013 and 2020
- According to the 2020 USAID GAI Citizens’ Perceptions of
Anti-Corruption Efforts in Serbia,
roughly 10 percent of citizens reported they gave a gift, paid a
bribe or did a favor for personnel in courts and prosecution
offices. Among those, the majority said they offered a bribe to
obtain faster service, while others wanted a service they were not
entitled to, or they sought to avoid responsibility for their
actions.
- Attempts to unduly influence the judiciary come from a
range of sources and via a range of means. In the Regional
Justice Survey, judges and prosecutors identified the most common
situations they encountered in which an individual tried to resort to
informal means to affect their work as pulling strings through political
influence or through an employee. See Figure 120 and Figure 121 below.
Thirty-two percent of judges and 25 percent of prosecutors reported
influential people had influenced their career (not necessarily in a
positive way) during the past year, and 22 percent of judges and 17
percent of prosecutors reported offering a ‘service in return’. Gifts
and pecuniary compensation were the most infrequently reported forms of
corruption.
Figure 120: Share of judges who report experiencing the following
practices in the last 12 months
Figure 121: Share of prosecutors who reported experiencing the
following practices in the last 12 months
Perceptions of Corruption ↩︎
- Although trust in the judicial system had increased in
2020, there remains a widespread perception that corruption within the
Serbian judiciary is pervasive, and the levels of perceived corruption
are not improving either within or outside the judicial system.
More than 80 percent of the citizens surveyed, 42 percent of judges, and
39 percent of prosecutors believe corruption is present in the judiciary
(see Figure 122 and Figure 123). In response to other survey questions,
businesses also report that corruption poses an obstacle to their
operations.
- The percentage of those who reported that corruption is
present in the judicial system remained the same for judges from 2013,
decreased substantially for prosecutors, and increased substantially for
lawyers. There also was a substantial increase in 2020 in the
percentage of judges and prosecutors who refused to say whether they
thought corruption was present or could not assess the situation. On the
other hand, lawyers apparently had no problem stating their opinions.
Figure 122: Perception of Corruption in the Judiciary among Judges,
Prosecutors and Lawyers, 2009, 2013 and 2020
Figure 123: General Perception of Corruption in the Judiciary, 2009, 2013 and 2020
- For citizens, the judiciary is second only to the health
system as the institution most affected by corruption, as shown in Figure
124. These are the only two institutions for which the majority
of citizens report that corruption is present to a considerable degree
(rated at 4 or 5).
Figure 124: General Perception on the Presence of Corruption in State
institutions, 2009, 2013 and 2020
- The World Justice Project Rule of Law Index 2020 also
examined perceptions of corruption in both civil and criminal
cases. In civil cases, Serbia scored 0.46
and ranked behind all EU countries (73 out of 128 countries included in
the Index). In criminal cases, Serbia scored 0.43 and again ranked
behind all EU countries (see Figure 125).
Figure 125: 2020 World Justice Project, Perception that Civil System
is Free of Corruption (1 = no corruption), Serbia and EU
Figure 126: 2020 World Justice Project, Perception that Criminal
System is Free of Corruption (1 = no corruption), Serbia and EU
Perceptions of Judicial
Independence ↩︎
- A range of legal safeguards exists to protect the
independence of the judiciary, but reforms to remove vestiges of
dependence have been delayed, as discussed in the
Governance and Management Chapter. Among other changes, draft
Constitutional amendments which have been proposed would remove the
Assembly’s approval of judicial appointments.
- A significant portion of judges and prosecutors report
the judicial system is not independent in practice.
Approximately 24 percent of judges and 34 percent of prosecutors
reported that the judicial system is not independent. Lawyers are even
more skeptical, with 73 percent of lawyers reporting the judicial system
is not independent, as shown in Figure 127.
Figure 127: Lawyers, judges, prosecutors: the perception of
independence of the justice system
- The 2019 World Economic Forum’s Global Competitiveness
Report ranked Serbia’s judiciary
101th out of 141 countries for judicial
independence. Serbia fell behind all EU countries except
Croatia and Poland. The results are similar in the 2014 Bertelsmann
Transformation Rule of Law Index, in which Serbia
ranked below all the countries of the EU11: its score for Serbia’s
judicial independence was 6.0 out of 10 in 2014 and remained unchanged
from 2009.
Figure 128: 2019 WEF Global Competitiveness Report, Judicial
Independence in the EU and Serbia
Perceptions of
Impartiality and Fairness ↩︎
- Perceptions of the fairness of the judicial system varied
widely. Only 47 percent of the public, 57 percent of business
representatives, and 62 percent of lawyers consider the system to be
fair. These were small decreases compared to the results of the 2013
survey. In contrast, about 80 percent of judges and prosecutors
evaluated the system as fair in 2020, as shown in Figure 129.
Figure 129: Public Perceptions of Fairness of the Judiciary, 2013 and
2020
Figure 130: Perception of Fairness in Court User’s Case, 2013 and
2020
- While one might expect the evaluations of fairness by
court users to be influenced by the judgments in their cases. The majority of surveyed
court users who had unfavorable judgments still evaluated the trial as
fair. Approximately 30 percent of them even evaluated their
trials as fully fair (see Figure 131).
Figure 131: Perception of Fairness vs. Outcome of Judgment 2013 and
2020
- Perceptions of fairness of the justice system have
declined somewhat among the public and businesses since 2013, as shown
in Figure 132. The majority of all groups surveyed expressed
more positive than negative perceptions in 2013 compared to 2009.
However, even though at least 50 percent of groups (except for members
of the public with court experience) still rank the system as fair in
2020, the percentages of the groups finding it to be fair are lower in
2020 than they were in 2013.
Figure 132: Public Perception of Fairness of the Justice System,
2009, 2013 and 2020
- A majority of court users considered the system to be
fair or mostly fair without regard for the outcome of their case, with
criminal defendants the least likely to consider the system fair at
all. The perceptions of fairness dropped among court users in
civil and criminal cases in 2020 compared to 2013, even as the
perceptions of fairness by court users in misdemeanor cases slightly
improved. (See Figure 133.)
Figure 133: Court User’s Evaluation of Fair Trial, Notwithstanding
the Outcome of their Case, 2009, 2013 and 2020
- The politicization of the judicial system and corruption
in the judicial system were reported as the most common causes of
unequal treatment by the system. The majority of judges,
prosecutors, and lawyers agree that the primary reason for unequal
treatment lies with politicization, while lawyers believe corruption
plays a much greater part than judges and prosecutors do. Lawyers also
found work overload/ poor organization as reasons for unequal treatment
more often than judges and prosecutors, as shown by Figure 134.
Figure 134: Reasons for Unequal Treatment Cited by Judges,
Prosecutors and Lawyers, 2020
- The quality of Serbia’s laws is also perceived to be part
of the unequal treatment. Sixteen percent of judges, nine
percent of prosecutors, and 10 percent of lawyers named poor legal
provisions as a source of unequal treatment.
- Economic status was still cited as another primary reason
for unfair treatment. Twenty-five percent of prosecutors, 19
percent of judges, and 60 percent of lawyers, reported that the public
is treated unequally by virtue of their economic status, while 64
percent of citizens reached the same conclusion.
Figure 135: Equal treatment of citizens, 2020
Recommendations and Next
Steps ↩︎
The most fundamental change needed to promote integrity in the
judiciary is to reduce openings for political influence on judicial
operations. This can be accomplished by the National Assembly passing
legislation in line with the 2022 Constitutional amendments affecting
the membership and duties of the HJC and SPC. New laws should elaborate
new Constitutional provisions that remove the Assembly’s approval of
judicial appointments, as discussed in the Governance chapter.
Recommendation 1: Put in place an effective coordination
mechanism among institutions for the prevention of
corruption.
- Increase cooperation and coordination among the institutions with
responsibility for building the integrity of Serbia’s judiciary. (MOJ,
HJJ, SPC, SCC, RPP – short-term)
- Increase interaction between the Councils and the Agency for
Prevention of Corruption (APC) about the development and implementation
of integrity plans, rules, and standards governing conflicts of interest
and implementation of these regulations. (HJC, SPC, ACC –
short-term)
- Institute procedures for the central tracking of the source,
basis, and disposition of written complaints about courts and
prosecutors. (HJC, SPC, ACC – short-term)
- Develop procedures to ensure that the courts or PPOs to which
complaints are originally made report on the complaints and outcomes to
the APC and the Councils. (HJC, SPC, SCC, RPP – short-term)
- Amend the Law on Judges to be explicit about the disciplinary
accountability of court presidents. (MOJ, Parliament –
short-term)
- Analyze the outcomes of complaints at a systemic level; use this
data to inform future reforms. (HJC, SPC – medium-term)
- Address the continued designation of the Councils as the
second-instance disciplinary bodies. (MOJ, Parliament –
medium-term)
- Amend the disciplinary rules for both judges and prosecutors in
line with EU standards, so only serious misconduct and not mere
incompetence give rise to disciplinary proceedings. (MOJ, Parliament–
medium-term)
- Ensure adequate staffing of disciplinary departments in the HJC
and SPC. (HJC, SPC – medium-term)
Recommendation 2: Strengthen the effectiveness of the
Commissioner for Autonomy.
- Ensure that post is not vacant for a long period. (SPC –
short-term)
- Ensure resources for conducting work of the Commissioner. (SPC –
short-term)
- Publicize opinions and assessments of cases on the SPC website to
increase the transparency of the Commissioner’s work, inform the general
public and guide the conduct of public prosecutors. (SPC –
short-term)
Recommendation 3: Complete the development of procedures for
reporting by court presidents on instances when the random assignment of
cases was overruled and for monitoring these reports by the
SCC.
- Clarify the criteria for court presidents to assign or transfer a
case to a particular judge. (HJC, SCC – short-term)
- Adopt an automated mechanism for the random assignment of cases
in PPOs. (SPC, RPPO – medium- term)
Recommendation 4: Complete the process of adopting integrity
plans in all courts and PPOs.
- Require institutions to post Integrity plans on their
institution’s web page. (All – short-term)
- Provide mechanisms beyond developing a model plan on paper for
courts and prosecutors to identify integrity risks. (HJC, SPC, SCC, RPO
– short-term)
- Require each court or PPO to appoint senior personnel to monitor
the implementation of integrity plans. (HJC, SPC – medium-term)
- Ensure coordination and monitoring of implementation at the
central level. (SCC, HJC, SPC, RPPO – short-term)
Recommendation 5: Further implement the Law on
Whistleblowers.
- Ensure that all court and PPO employees know about protection for
whistleblowers through enhanced general training. (HJC, SPC, JTC –
short-term)
- Provide training to the whistleblower point person in each
institution. (HJC, SPC, JA – short-term)
- Create an environment for safe and effective reporting of all
types of undue influence. (HJC, SPC – medium-term)
Recommendation 6: Complete the process of ensuring that all
court and PPO employees, and the public, know about rules related to
conflicts of interest.
- Clarify criteria to determine whether a gift was “in connection
to the discharge of public office.” (HJC, SPC – short-term)
- Ensure the collection, maintenance, and accessibility of the
records required by Article 41 of the Law on the Anti-Corruption Agency,
requiring that judicial officials report on gifts. (HJC, SPC, SCC, RPPO
– short-term)
- Develop public information regarding the law and policy on giving
gifts to court and PPO employees, and make it available on websites and
in brochures available at the courts and PPOs. (HJC, SPC, SCC, RPPO –
medium-term)
Recommendation 7: Fully implement the Code of Ethics and
Rules of Procedure of the Ethical Board of the HJC.
- Provide written guidance on ethical issues with practical
examples and recommendations, including online FAQs. (HJC –
short-term)
- Make existing training mandatory for all judges and prosecutors.
(HJC, SPC, JA – short-term)
- Monitor the impact of confidential advice/counseling on
appropriate conduct in particular cases. (HJC, SP– medium-term)
- Expand the Ethical Code of Prosecutors to include a level of
detail similar to the code for judges regarding
permissible/impermissible conduct. (SPC – short-term)
Recommendation 8: Enforce rules about the appointment,
disqualification, and compensation of expert witnesses.
- Ensure that all expert witnesses are compensated at the same rate
in accordance with the Rulebook on Reimbursement of Expert Witnesses.
(MOJ, SCC – short-term)
