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When Law Doesn't Rule- State Capture of the Judiciary, Prosecution, Police in Serbia

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When Law Doesn't Rule- State Capture of the Judiciary, Prosecution, Police in Serbia WHEN LAW DOESN’T RULE: STATE CAPTURE OF THE JUDICIARY, PROSECUTION, POLICE IN SERBIA WHEN LAW DOESN’T RULE STATE CAPTURE OF THE JUDICIARY, PROSECUTION, POLICE IN SERBIA Belgrade, Brussels, October 2017 updated in June 2018 1 Written by: Transparency Serbia Center for Investigative Journalism, Serbia Authors1: Branko Čečen, Nemanja Nenadic, Dino Jahić, Ivana Jeremić, Milica Stojanović, Dina Đorđević, Vladimir Kostić, Milica Šarić, Anđela Milivojević, Zlatko Minić, Srđan Cvijić. Open Society European Policy Institute - OSEPI, Brussels, EU Center for Investigative Journalism of Serbia Transparency Serbia Design: www.beelzepub.com 1 Branko Čečen, Dino Jahić, Ivana Jeremić, Milica Stojanović, Dina Đorđević, Vladimir Kostić, Milica Šarić, Anđela Milivojević, from CINS, are authors of the case studies. For each individual case study, the author in question is mentioned under that specific section. The author of an individual case study takes full responsibility for observing the duties and responsibilities related to ethical journalism and the application of a factual and objective methodology in conducting his or her research and writing of the case study. Nemanja Nenadić, Zlatko Minić, from Transparency Serbia, and Srđan Cvijić, from OSEPI, wrote the analysis of the legal and institutional framework. Remove justice, and what are kingdoms but gangs of criminals on a large scale? – St Augustine WHEN LAW DOESN’T RULE: STATE CAPTURE OF THE JUDICIARY, PROSECUTION, POLICE IN SERBIA CONTENTS Executive Summary ....................................................................................................................................................................................................................................................................5 Introduction .............................................................................................................................................................................................................................................................................................. 10 Case Studies CS 1: Media repression – leaking of information ..................................................................................................................................... 12 CS 2: Manipulation of Trials and Flaws in the Prosecution System ......................................................................................................................................................................................................18 CS 3: Arbitrary Decisions - the Dinkić case ........................................................................................................................................................23 CS 4: The Politicisation of the Judiciary, Poor Accountability, and an Unsatisfactory Relationship with the Media.............................................................................................................................................................................................28 CS 5: Dysfunctional System of Accountability (SP 1) ...................................................................................................................33 CS 6: Failures of the Prosecutor’s Office (SP 3 and 7) ............................................................................................................. 38 CS 7: Procedure for Protection of Politicians (SP 7).......................................................................................................................44 CS 8: Appointing Judges and Prosecutors (SP 2) .................................................................................................................................. 48 CS 9: Prescription of Offences due to Political Influence (SP 7,5 and 6) ..............................................................................................................................................56 CS 10: Inappropriate Relationships: Media in Court (SP 4 and 3) ...................................................................... 61 CS 11: What is Known About the Work of the Police Internal Control Department? (SP 2, 6 and 7) ............................................................................ 67 CS 12: Non-Transparency and Abuse of Statistical Data (SP 5) ............................................................................. 73 3 WHEN LAW DOESN’T RULE: STATE CAPTURE OF THE JUDICIARY, PROSECUTION, POLICE IN SERBIA Institutional Framework ..............................................................................................................................................................................................................................................77 European Integration Documents .......................................................................................................................................................................................................82 Strategic Acts ..................................................................................................................................................................................................................................................................................... 86 Reference List .................................................................................................................................................................................................................................................................................... 88 Legal Framework ......................................................................................................................................................................................................................................................................... 89 Conclusions ............................................................................................................................................................................................................................................................................................90 4 WHEN LAW DOESN’T RULE: STATE CAPTURE OF THE JUDICIARY, PROSECUTION, POLICE IN SERBIA EXECUTIVE SUMMARY Politicians in Serbia exert a great deal of infuence over its judiciary and police. The country is currently ruled by the Serbian Progressive Party (SNS) and its leader Aleksandar Vučić, who is the President of the Republic. This infuence manifests itself through many and varied cases of institutional abuse. For example, police have exerted pressure on leaders of independent bodies, the opposition, and people who have criticised the authorities. Moreover, the police practice of disseminating information and misinformation to discredit critical individuals or groups is widespread. The independence of the institutions is further compromised by the police being prevented from carrying out their work in certain “politically sensitive” cases, including the infamous Savamala demolition case and by its farcical epilogue in court. While the police are politicised, the prosecution has sometimes refused to investigate cases in which suspects belonged to, or were close to, the authorities and government. Finally, unlawful decisions by the courts – some almost certainly motived by political considerations - remain a serious problem. Political infuence over law enforcement bodies and courts is exerted through the violation of regulations, poor enforcement, the abuse of legal loopholes, ambiguous rulings that can be interpreted in diferent ways, and the fact that some laws still contain norms that allow direct political infuence over the judiciary and police. This research, commissioned by the Open Society European Policy Institute (OSEPI) and Open Society Foundations Serbia, and conducted by Transparency Serbia and the Center for Investigative Journalism Serbia, identifies seven ways in which political control is exerted over Serbian’s independent institutions, or in which systemic weaknesses in the rule of law are exploited. In some instances, the inefficiencies and abuses of the system enable politicians to gain sway over the judiciary, prosecutors, and police. 1. Limited accountability: the system for holding judges and public prosecutors accountable is inefective and inconsistent; a lack of proactive disciplinary bodies and insufcient transparency helps hide political pressure. (Illustrated in case studies 4, 5) 2. Political appointments: Political bodies are involved in appointing public prosecutors and court presidents. Similarly, the criteria and selection process for police ofcials are not transparent. Political infuence is further exercised through a reluctance to appoint certain key positions in the police on a permanent basis with a full mandate. (Illustrated in case studies 2, 11) 3. Too much discretion: Law enforcement bodies have signifcant discretionary powers when they decide whether to investigate and prosecute a given case. Similarly, they do not provide adequate explanations of why they have decided to abandon an investigation. This means possible political motivation can be hidden behind apparently routine police and prosecutorial decisions. (Illustrated in case studies 3, 6, 10) 4. Media manipulation and discrimination: Inappropriate relationships between the media and law enforcement agencies, judiciary and politicians take several forms: leaking information, using the media for defamation, violation of the presumption of innocence in criminal matters,
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