ASSESSMENT OF RISKS OF POOR CONDUCT AND CORRUPTION IN THE SERBIAN JUDICIARY AND PROSECUTION

Joint European Union – Council of Europe Project “Strengthening the Capacities of Law Enforcement and Judiciary in the Fight against Corruption in Serbia” (PACS) www.coe.int/pacs

Belgrade • 2015 Publisher Council of Europe, Office in Belgrade Španskih boraca 3, 11070 Belgrade www.coe.int

This publication has been prepared within the framework of the project “Strengthening the Capacities of Law Enforcement and Judiciary in the Fight against Corruption in Serbia” (PACS), funded by the European Union and Council of Europe, and implemented by Coun- cil of Europe. The views expressed herein can in no way be taken to reflect the official position of the European Union and/or Council of Europe.

Authors James Hamilton, Council of Europe expert Jose Igreja Matos, Council of Europe expert Quentin Reed, Council of Europe expert Lado Laličić, Council of Europe Secretariat Milica Djunić, Council of Europe Secretariat

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For more information on the subject of the publication, please contact: Economic Crime and Cooperation Unit Action against Crime Department DG I – Directorate General Human Rights and Rule of Law Council of Europe Email: [email protected] Internet: www.coe.int/corruption

4 Contents

INTRODUCTION AND EXECUTIVE SUMMARY...... 7 1. METHODOLOGY...... 13 1.1 Terms of Reference...... 13 1.2 Objective...... 13

2. THE JUDICIARY AND PROSECUTION IN SERBIA: STATE OF PLAY...... 14 2.1 Structure and main features...... 14 2.2 Current reform strategies...... 15 2.2.1 Judicial Reform Strategy...... 15 2.2.2 Anti-corruption Strategy...... 15 2.2.3 Role of the Anti-corruption Agency...... 16

3. CONDUCT OF JUDGES AND PROSECUTORS...... 16 3.1 Official evidence...... 16 3.2 Survey evidence...... 17 3.3 Interview evidence...... 18

4. ISSUES AND RISK FACTORS ...... 18 4.1 Appointments and Governance...... 18 4.1.1 Election of Judges and High Judicial Council members...... 18 4.1.2 Election of Prosecutors and State Prosecutorial Council members...... 19 4.1.3 Key governance functions of the HJC and SPC...... 20 4.1.4 The election of 2009...... 20 4.1.5 Role of the Judicial Academy...... 21 4.1.6 Problems/risks...... 21 4.1.7 Control of budgets...... 25 4.1.8 Recommendations for governance...... 25 4.2 Resources...... 27 4.3 Legal certainty and uniformity...... 28 4.3.1 Changing laws...... 28 4.3.2 Inconsistent case law...... 29 4.4 Organisation of work...... 30 4.4.1 Specialisation...... 30 4.4.2 Allocation of cases within courts and prosecution offices...... 31 4.4.3 Collection of evidence...... 31 4.4.4 Status of support staff...... 32 4.4.5 Anti-corruption Departments/monitoring of high-risk cases...... 33 4.4.6 Expert witnesses...... 34 4.5 Reforms of Criminal Procedure...... 34 4.5.1 Plea-bargaining and the opportunity principle...... 36 4.5.2 Control over investigations: relation between the Prosecution and the Police...... 37 4.5.3 Training...... 37 4.6 Mechanisms to assess performance...... 38 4.7 Integrity Plans...... 41 4.8 Conflict of interest and regulation of standards/ethics...... 42 4.9 Sanctions and disciplinary proceedings...... 43 4.9.1 Declarations of assets and income...... 44 CONCLUDING REMARKS...... 45

context of the entire law enforcement cy- INTRODUCTION AND cle: the prosecution and police are close- EXECUTIVE SUMMARY ly linked in investigating crime, and prob- lems of misconduct in the police in gen- This study makes a general assessment eral are equally important as those at the of the capacity of the judiciary and prosecu- level of the prosecution and courts. tion in Serbia to promote and sustain integ- hh Insofar as the assessment is concerned rity and good conduct, and identifies factors with corruption, the objective of the as- that may lead to or increase the risk of poor sessment is not to assess the effectiveness conduct in either institution. The primary fo- of the judiciary and prosecution in deal- cus of the assessment is not corruption but a ing with cases of corruption which are re- broader set of problems, one of which may ferred to them in connection with their re- be corruption. For the purpose of the study spective professional responsibilities, but poor conduct is defined as any conduct that to assess their effectiveness in preventing undermines the proper performance by ei- and tackling such conduct within their ther institution of its function. It includes (a) own ranks. corruption, (b) misconduct or poor conduct The key findings of the risk assessment which does not involve corruption, as well as are the following: (c) conduct that results from unauthorised external pressures or perceptions of such hh According to surveys, public perceptions pressures. Section 1 elaborates the scope of misconduct in the judiciary - specifical- and methodology of the study in more de- ly misconduct linked to corruption - are tail. very high. However, such surveys should not be regarded as an accurate measure Three key points should be noted with re- of actual levels of corruption. Surveys of gard to the scope and coverage of the risk as- citizens’ actual experience of corruption sessment: in the judiciary yielded varying results, hh The assessment focuses primarily on the making them unsuitable for deriving clear criminal courts and prosecution offices, conclusions. Many of those interviewed with much less information gathered spe- during the assessment argued that cor- cifically on the civil, commercial, adminis- ruption among judges and prosecutors trative or misdemeanour courts. Howev- is not necessarily as widespread as pub- er, many of the issues covered are likely lic perceptions might suggest. to apply equally or similarly to these oth- hh Many of the formal frameworks for er branches of the judiciary and prosecu- underpinning good conduct in Serbia tion. The criminal courts and prosecutors’ (for example ethics codes) are adequate, offices do not necessarily present the only although awareness of them is in some target for persons seeking to corrupt the cases limited. However, the institutional judicial system, and poor judicial or pros- framework for governance of the ecutorial conduct can have very serious judiciary and prosecution is one in consequences in the civil or commercial which the appointment and promotion field as well as the criminal. of both professions is politicised and hh The assessment should be read in con- where appointments are subject to junction with the PACS report ‘Risk Anal- periodic renewal, resulting in a serious ysis on Obstacles to Efficient Crimi- threat to the necessary independence nal Investigations and Proceedings’ (EC- and impartiality of both branches. CU-PACS SERBIA-TP9-2014). Corruption These factors create a risk of undesirable and other poor conduct in the judicia- influence on the conduct of prosecutors ry and prosecution should be seen in the and judges, whether directly or in the

7 form of pre-emptive caution in dealing radical changes in prosecutorial powers with cases that affect the interests of and the organisation of the courts which politicians or those whose interests they create risks of misconduct. Many inter- wish to protect. locutors agreed that the changes were in- troduced without adequate preparation hh Following the unlawful de facto dismiss- and training or the necessary allocation of al of judges and prosecutors in 2009 the resources. High Judicial Council (HJC) and State Prosecutorial Council (SPC) were elect- The consolidated recommendations of ed in 2011 without the participation of the assessment are the following: a substantial body of judges and prose- cutors. As a result, the HJC and SPC are 1. In line with Objective 1.1.1.3 of the Na- perceived by many to lack legitimacy or tional Judicial Reform Strategy (NJRS), credibility, making them weak and inef- constitutional amendments should ex- fective and unlikely to perform key func- clude the National Assembly from any tions properly. Specifically, bodies held in role in the election of judges (including such low regard are unlikely to be effec- court presidents), prosecutors and (sub- tive champions of high judicial standards ject to the more detailed comments con- or perform other vital regulatory function cerning European standards which fol- with the necessary credibility, including low) the High Judicial Council and State the key functions of performance evalu- Prosecutorial Council. As the HJC and the ation and disciplinary proceedings. There SPC have a role in the selection and ca- was a strong impression that this situa- reer of judges and prosecutors the meth- od for electing them should be in accord- tion underpins a general feeling of ma- ance with European standards and rec- laise in the two professions. ommendations as well as the opinions of hh The creation of the Judicial Academy as the relevant authoritative European bod- the only channel for people to become ies.1 These instruments make clear that: judges or prosecutors represents a laud- a majority or a substantial component of able attempt to limit the influence of cro- judicial councils should be elected by the nyism and clientelism in appointments. judges and prosecutors themselves; they However, the lack of a transitional solu- should include representatives of civil so- tion to allow the possibility of those who ciety and the legal profession, who may have worked for long periods of time as be chosen by lawyers and civil society judicial or prosecutorial assistants becom- themselves; in no circumstances should ing judges or prosecutors without having to complete the entire Academy curricu- 1 These are in particular: the European Charter on the lum risks demoralising key personnel and statute for judges adopted in Strasbourg in July 1998 causing valuable talent to leave the judi- (DAJ/DOC(98)23); Recommendation (2010)12 of the cial and prosecution systems. Committee of Ministers of the Council of Europe on Judges: Independence, Efficiency and Responsibilities; hh The judiciary and particularly the prosecu- with Opinion No. 1 (2001) of the Consultative Council tion suffer from an acute lack of resourc- of European Judges (CCEJ) on standards concerning es, technical and organisational support, the independence of the judiciary and the irremova- bility of judges; Opinion No.10 (2007) of the CCJE on or in the best case unevenly allocated re- the Council of the Judiciary at the Service of Society; sources, a problem that places obstacles and the recommendations of the Venice Commission, in the way of the proper performance by in particular its “Report on Judicial Appointments judges and prosecutors of their functions. CDL-AD(2007)028 of 16-17 March 2007, Report on the Independence of the Judicial System Part I: The hh The coming into effect of the new Crimi- Independence of Judges” CDL-AD(2010)004 of 12-13 nal Procedure Code (CPC) for all prosecu- March 2010; and “Report on European Standards as tion offices on 1 October 2013 introduced regards the Independence of the Judicial System: Part II- The Prosecution Service” CDL-AD(2010)040.

8 councils include practising politicians; analysis; organised and announced vis- where parliament has a role it should be its of the HJC/SPC to courts/prosecution confined to the election of members who offices; clear mechanisms by which judg- are not judges, and by qualified majori- es/prosecutors may contact their rele- ty to avoid politicisation; councils should vant council both formally and informal- be free to choose their own chairs. Pros- ly; activities of engagement such as the ecutors and judges should then be elect- organisation of an annual conference ed in turn by the reformed Councils. concentrating on a particular important issue or issues; the formulation and pub- 2. In line with strategic guideline 1.4.1 of the lication of guidelines and codes of con- NJRS, and particularly measure 1.4.1.3, duct; participation in public education clear rules and procedures should be es- and the establishment of spokespersons tablished for the appointment of court and staff for communication with the presidents and public prosecutors in or- media, either in general or, where appro- der to end the possibility of these posi- priate, in relation to specific cases. tions being occupied on an acting basis for lengthy periods of time. Specifical- 5. When legal or constitutional amendments ly, a time limit should be introduced on are passed to establish the Judicial Acad- the length of time a particular position of emy as the sole route to holding the of- court president or public prosecutor may fice of judge or prosecutor, these should be held on an acting basis which should include transitional provisions such as a not exceed the period necessary for mak- provision under which judicial and prose- ing the appointment. cutorial assistants who satisfy certain cri- teria (for example length of employment, 3. As an interim measure additional to those age etc.) may be candidates for judge or contained in the NJRS, in order for the le- prosecutor if they take the final Judicial gitimacy of and trust in the High Judicial Academy examination, without having to Council and State Prosecutorial Coun- complete the entire course. cil to be restored, the current councils should step down in order to facilitate 6. The judiciary and prosecution should elections in which all currently sitting have separate budgets, administered un- judges and prosecutors may participate. der the control of the reformed HJC and SPC respectively. While respecting the 4. The HJC and SPC should work to estab- right of the government to make final lish themselves as genuine mechanisms budget decisions, the budget for the ju- for identifying and addressing problems diciary and prosecution should be deter- of the branches they govern, mediating mined following detailed proposals (cov- communication between judges/prose- ering both current and capital expend- cutors and other institutions with whom iture) submitted by the HJC and SPC. they interact, including appropriate con- Where the Government does not accept tacts with the executive and the legisla- or alters these proposals, all decisions ture as well as the public and the media, should be accompanied by a clear and and ensuring accountability to the pub- public written explanation. lic insofar as this is compatible with the need to protect the independence and 7. In order to enable the HJC and SPC autonomy of judges and prosecutors. Ac- to carry out budgetary and other tions to achieve this would include: the administrative tasks each council should provision of a web page (web site/IT plat- employ a senior administrator (in effect a form?) with full access to HJC/SPC deci- chief executive officer) answering to the sions and activities along with publica- council and appropriate staff with skills tion of citizen’s complaints (or at least including accountancy and information statistical data thereon), research and technology.

9 8. It is strongly recommended that the com- to prevent the Supreme Court from be- mitments in the NJRS to clarify the re- ing overwhelmed, the Supreme Court it- source needs of courts and prosecution self could be given the power to decide offices are backed up by more specif- whether to hear an appeal, applying a ic commitments to meet these needs, in test such as whether the case involved an particular through adequate budget al- important or previously undecided point locations to ensure that prosecutors es- of law. Another possible mechanism to pecially have adequate space and equip- assist in ensuring a more uniform appli- ment to perform properly the investiga- cation of law might be to provide for a tive role given to them by the new Crimi- system of preliminary rulings on points nal Procedure Code. Greater efforts need of law referred by lower courts, similar to to be made to deal with the mismatch the system of preliminary rulings in the between needs and resources which ex- Court of Justice of the European Union. ists at present, with courts in Belgrade 11. Objective 2.8 of the NJRS, and in particu- and the larger cities overworked and un- lar the establishment of a central data- derstaffed while some courts in the prov- base of court decisions should be formu- inces have a low workload. Measures lated/elaborated as a more urgent objec- such as the use of financial or other in- tive, rather than being generally stated centives to persuade judges to move vol- as “long-term”. In addition, the Supreme untarily to areas where the need is great- Court of Cassation should establish a sys- er should be considered. tem of legal reporting that provides a di- 9. The authorities should consider chang- gest of significant cases on a regular ba- es to the legislative process (i.e. the pro- sis. cess by which legislation is initiated and 12. The Regulation on Administration in the drafted) to require proper regulatory im- Public Prosecution should be amend- pact assessment prior to proposed le- ed to clarify exhaustively under what cir- gal changes, including assessment of cumstances public prosecutors may de- the real need for legislation (as opposed viate from the standard procedure for al- to better enforcement of existing laws), locating cases within their prosecution and analysis both of the impact of legal office - thereby removing the catch-all changes on other legal provisions and of category of “other reasons”. enforcement needs. 13. Necessary legal amendments should 10. The concept of “binding precedent” is be passed, and sufficient budgetary re- not part of Serbian law and many Serbi- sources provided, so that prosecution of- an lawyers would be strongly opposed fices and courts introduce recording by to its introduction. While it therefore may electronic means of the collection of ev- be impossible to establish a mechanism idence from witnesses or suspects and that ensures binding interpretations of of court proceedings as standard proce- case law, a mechanism should be intro- dure. duced by which the Supreme Court of Cassation can issue opinions on disput- 14. Amendments to the Criminal Procedure ed points of law which, even if not for- Code should include provisions to en- mally binding, would carry great author- sure that special investigative techniques ity as the opinion of the highest court in may be used for a sufficient range of cor- Serbia. In particular, it would be advisa- ruption-related offences, including in ble to provide further appeal of ordinary particular those involving misconduct by decisions to the Supreme Court, at least judges or prosecutors. in cases where the jurisprudence of the 15. Interim measures should be taken to al- Courts of Appeal is inconsistent. In order low the transfer of some administrative

10 and technical tasks to technical/support understands his or her rights and options staff and judicial associates, and has received legal advice, and that the evidence supporting the plea are re- 16. Measures should be taken to ensure that tained. The appeal court could be given a technical/support staff and judicial as- remit to set out general principles relat- sociates are employed on a basis that is ing to sentencing with an obligation on commensurate with their responsibili- trial judges to give due weight to those ties. principles. Alternatively, a sentencing ad- 17. Amendments to the Law on Expert Wit- visory body could be established to per- nesses - and if necessary an implement- form this task. ing regulation - should ensure that cri- 21. Written guidelines should be issued for teria for appointment and for payment prosecutors on the application of the of fees are clear, that appointments are opportunity principle. These guidelines openly publicised, and that standards of should set out clearly the scope of the conduct of expert witnesses are clearly prosecutor’s discretion, the principles to regulated. be applied in its exercise, and the extent 18. Following the coming into effect of the to which decisions to apply the opportu- new Criminal Procedure Code, in order nity principle should be notified to or ap- to balance the rights of the defence and proved by a more senior prosecutor2. prosecution and lessen the risk of arbi- trary or abusive decisions by prosecutors, 22. Much more training should be provid- mechanisms to keep prosecutorial dis- ed to prosecutors and judges on their cretion in check should be established. role and duties under the new CPC, in or- These should include i) a mechanism by der to ensure that prosecutors and judg- which judges may require a prosecutor es are equipped to perform their func- to reconsider decisions such as not to tion in a manner that is appropriate for open a procedure or drop charges, in a an adversarial system that a recently in- process explicitly involving the superior troduced ‘graft’ onto a different legal tra- prosecution office; ii) sufficiently detailed dition. In particular, training for prosecu- rules of evidence; iii) internal Guidelines tors should underline that they have now on conduct and advisory channels (see an obligation to safeguard the rights of Recommendation 32). defendants in adversarial proceedings which are no longer subject to the same 19. Article 77 of the Criminal Procedure Code judicial oversight as before. should be amended to ensure the right to a free defence counsel for any person 23. The requirements of the CPC in terms of charged with an offence for which he or resources should be a key input into de- she is liable to be imprisoned and who termining resource requirements for the has not the means to pay for a lawyer. judiciary and prosecution (see Recom- mendation 8). 20. Regarding plea-bargaining, a mecha- nism needs to be found to ensure that 24. Criteria for the evaluation of judges sentencing principles are clearly estab- and prosecutors’ performance should lished. In order to encourage early pleas be established in a consensus- of guilty, courts should be required, in based manner, i.e. through extensive the case of such a plea, to impose a less- consultation with those to be evaluated er sentence than they would following a as well as other legal professionals. fully-fought trial, perhaps of the order of one-quarter or one-third discount. How- 2 According to the information subsequently provided ever, the court should not accept a plea by the prosecutors from Novi Sad, the Guidelines were already in place thus this recommendation is to be of guilty unless satisfied that the accused considered as implemented.

11 They should not include indicators that lic Prosecutor’s Office, given the impor- depend on other factors than judges’ or tant role played by the latter already in prosecutor’s performance, unless these overseeing anti-corruption mechanisms factors can easily be taken into account within the prosecution. and controlled for in the process of 29. The template for Integrity Plans should be evaluation. altered to make it less prescriptive, and in 25. Reflecting the recommendations in Sec- particular to provide specific institutions tion 1, it is essential that the full inde- with guidelines and a framework for how pendence of the HJC and SPC are estab- to think about specific problems within lished if they are to perform the role of their own institutions, rather than pre- appeal body in performance evaluations. determining the issues to be solved and even measures to do so. In addition, the 26. Responses to poor evaluation scores guidelines should be amended so that should be made on a case-by-case basis, Integrity Plans are not narrowly focused and should not automatically lead to dis- on ‘preventing and fighting corruption’, missal. The consequences of mediocre or but more broadly oriented towards un- poor performances should be widened derpinning integrity and good conduct - to allow or to require for example com- only one component of which is anti-cor- pulsory training as a first response to ad- ruption policy in a narrow sense. dress skills or knowledge gaps. A num- ber of the quantitive evaluation criteria 30. Institutions should be obliged to update should be reconsidered, in particular the Integrity Plans either at more regular in- 3 counting of cases dealt with without any tervals , or in response to circumstanc- consideration of the complexity of cas- es as they arise - for example the coming es, the measurement of rates of success- into effect of the new Criminal Procedure ful appeals and “success-rates” for pros- Code. ecutors. If such measurements are to be 31. Judges’ and prosecutors’ rules and stand- made the results should be regarded as ards of conduct, such as those in the indicative only and not determinative codes of ethics should be disseminated of a problem in the absence of more de- more actively by the HJC and SPC, and tailed analysis. the curricula of the Judicial Academy should be revised to include ethics and 27. Procedures for issuing evaluations of standards of conduct as a permanent prosecutors and judges should include component of ongoing training of judg- mechanisms by which those evaluated es and prosecutors. have a chance to provide feedback on their evaluation during the process, as 32. Internal guidelines and mechanisms for well as an appeal mechanism built into advisory services (providing advice to the disciplinary mechanism with a fur- prosecutors and judges on appropriate ther right of appeal to a court of law cov- conduct on request) within Prosecution ering at minimum procedural or legal Offices and courts should be introduced. grounds. Training should also cover these guide- lines through real-life scenarios, such as 28. The duty to formulate Integrity Plans ethical dilemmas and attempts at im- should not be imposed on all individual proper influence. Training should also in- institutions of a sector, but only on those with an important coordinating role. For 3 Although Article 19 of the Guidelines for Integrity the judiciary this should be the HJC or Plan Development states that the head of institution may request the preparation of integrity plan earlier/ HJC together with the Supreme Court of between these intervals and when he/she estimates Cassation; for the Prosecution it should that the integrity of institution is compromised, this be the SPC together with the Repub- remains to be an optional/discretionary right only.

12 volve attorneys and lawyers, in order to ternational organisations). encourage common values in the new hh Phase 3 was dedicated to final assessment criminal procedure system. of the analysis, preparation of the report 33. In accordance with Objective 3.1.2.4 of and its distribution to respective counter- the Anti-corruption Action Plan, the parts. necessary legal amendments and insti- tutional steps should be implemented 1.2 Objective in order to ensure the Anti-Corruption Agency (ACA) has access to other pub- The objective of this study is to identify lic databases of property, assets and in- factors within the judiciary and prosecution come of public officials. system in Serbia which may compromise their capacity to perform their public service function in an impartial, accountable and ef- ficient manner. Such factors are those that increase the likelihood that judges and pros- 1. METHODOLOGY ecutors (and also other officials/staff if rele- vant) will engage in two types of poor con- duct: 1.1 Terms of Reference i ) Acting in ways that serve their own in- The Risk Analysis has commenced in May terests rather than the interests of the 2013 when the Risk Analysis Methodology public. This can involve: Guide4 was prepared. This document pro- h vides general outline concerning the iden- h Corruption of various kinds, in particular: tification, analysis and assessment of key ƒƒRequesting or accepting bribes in return risks associated with the existence of corrup- for making or refraining from decisions or tion. Further to that, the Terms of Reference proceeding in certain ways in the course - specifying the steps to be taken and their of performing official duties, such as pri- timeframe - defined three different phases oritising certain matters; through which the assessment was carried ƒƒCronyism - advancing the interests of as- out: sociated persons such as friends, neigh- hh Phase 1 - reviewing and collecting rele- bours, business associates or political al- vant and selected literature, legal frame- lies, either in the course of judicial deci- work, related surveys and previous re- sion-making or in human resource man- searches; agement; hh Phase 2 – two on-site visits to relevant in- ƒƒNepotism - advancing the interests of stitutions and interviews with the stake- family members, either in the course of holders (during this phase the experts judicial decision-making or in human re- team held meetings/interviews with the source management; representatives of the High Judicial Coun- ƒƒMaking decisions in the expectation of cil, State Prosecutorial Council, judges making a personal gain or obtaining an of the Supreme Court of Cassation, judg- advantage, or of benefiting another in- es and prosecutors of the appellate and dividual or group, even where no direct higher courts and prosecutors’ offices in bribe is involved; Belgrade, Nis, Novi Sad and Kragujevac; ƒƒActing in a case despite the existence of a representatives of the Bar Chamber; An- conflict of interest; ti-Corruption Agency; Anti-corruption Council; Judicial Academy; NGOs; and in-

4 http://www.coe.int

13 hh Other forms of poor conduct or behaviour ment/appointment, the provision of suf- which are not necessarily linked with cor- ficient resources, working procedures de- ruption, such as: signed to minimise the risk of miscon- duct, dissemination and implementation ƒƒTreating citizens/clients unequally or un- of measures and procedures to underpin fairly ethical conduct and protect judges/pros- ƒƒAllowing bias or prejudice to affect deci- ecutors from improper advances, etc. sions hh Mitigative mechanisms include function- ƒƒFailure to follow procedures/observe le- ing complaints mechanisms, effective gal requirements disciplinary proceedings, proportionate ƒƒExcessive formalism/proceduralism sanctions in cases of misconduct etc. ƒƒInsubordination, obstructionism The absence of mechanisms such as those summarised above may be expected to con- ƒƒIncompetence stitute institutional risks, even if the absence ƒƒRudeness or bad manners of a mechanism does not necessarily result in misconduct. In addition to factors that might directly encourage or facilitate poor con- ii ) Acting in ways (such as making or re- duct of the type described above, this paper fraining from certain decisions, or also notes factors that might indirectly make conducting investigations in a cer- poor conduct more likely - for example steps tain manner) that respond to exter- or policies that contribute to general desta- nal pressures or perceived pressures bilisation, demoralisation, incompetence or on the institution not to perform its other undesirable phenomena. role in the interests of the public. Such pressures include: h h Political pressure 2. THE JUDICIARY AND hh Extortion - securing favourable treatment from judges or prosecutors via threats PROSECUTION IN The various types of poor conduct may SERBIA: STATE OF PLAY overlap. For example, a common strategy employed by organised crime is to engage in ‘throffers’ - offering officials of law enforce- 2.1 Structure and main features ment or the judiciary benefits if they act in a certain way, combined with the threat of Since the ousting of President Slobodan punishment if they do not. Milošević in 2000, the legal and institutional framework for the judiciary and prosecution The study assumes that in order to ful- in Serbia has undergone major changes. The fil their public service function effectively, 2006 Serbian Constitution and subsequent the judiciary and prosecution need to have laws established a new network of courts in place a range of institutional mechanisms and prosecutor’s offices, a new framework of designed to prevent poor conduct occur- governance and appointment for the judici- ring (preventive mechanisms), and address- ary and prosecution, together with changes ing such conduct where it occurs (mitigative in basic procedural laws. mechanisms): The Serbian judiciary is divided in a vertical hh Preventive mechanisms include a system sense into basic courts, high courts, courts of of governance that ensures the indepen- appeal, and the Supreme Court of Cassation. dence and professionalism of judges and In a horizontal sense it is divided into ordinary prosecutors, fair and merit-based recruit- courts, criminal courts, administrative courts

14 and commercial courts. There are four 2.2 Current reform strategies appellate courts for proceedings, with the exception of commercial courts for which With regard to the judicial system, two there is one appeal court. In addition, a main strategic policy documents are of rel- separate system of misdemeanour courts evance: the National Judicial Reform Strate- and High Misdemeanour Court adjudicates gy for 2013-2018, and the National Anti-cor- on a wide range of lesser offences. The ruption Strategy for 2013-2018. Each of these system of prosecution offices largely mirrors strategies is accompanied by a detailed Ac- the structure of the criminal court system, tion Plan. with a prosecution office corresponding to each criminal court. Each court consists of 2.2.1 Judicial Reform Strategy the President of the court plus other judges, and each public prosecution office consists In July 2013 the National Assembly adopt- of the public prosecutor heading the office, ed a comprehensive Judicial Reform Strategy plus deputy public prosecutors. for 2013-2018 (hereinafter ‘Judicial Reform Strategy’). The Strategy is based on five prin- There were about 2,100 judges in 2013, a ciples - independence, impartiality and qual- fall from 2400 in 2006. Following the amal- ity of justice, competence, accountability, ef- gamation of basic courts into court units un- ficiency - and six priorities: der the 2008 law, amendments in 2013 led to the reform of the network again from Jan- hh Reintegration in the judicial system of the uary 2014, reintroducing many lower courts. judges and public prosecutors reinstated The number of court units fell from 103 to 14 based on Constitutional Court decisions, while the number of basic courts doubled to and revision of the judicial network 66 basic courts, with 58 basic prosecutor’s of- hh Resolving the case backlog - at 3 million fices (with a few POs covering two courts). cases as of December 2013 according to Significantly, the number of judges’ positions the Ministry of Justice was increased at the same time to 3089. hh Ensuring trial within a reasonable time In addition to the standard court/prose- hh Upgrading the status of the High Judicial cution network, in 2002 a special Organised Council and State Prosecutorial Council and Crime Prosecution Office (OCPO) was creat- normative regulation of their responsibilities ed (along with War Crimes Prosecution Of- fice). The OCPO is responsible for the prose- hh Establishing uniform case law cution of organised crime and serious crimes hh Establishing a unified e-justice system including abuse of power, bribery and trad- ing in influence involving all elected officials 2.2.2 Anti-corruption Strategy and officials appointed or designated by the National Assembly (Parliament), Govern- The National Anti-corruption Strategy for ment, High Judicial Council and State Pros- 2013-2018 contains a section on the judici- ecutorial Council; this therefore includes all ary (including prosecution). With regard to members of the HJC and SPC and all judges policies to prevent and tackle poor conduct and prosecutors. The OCPO corresponds to within the judiciary, the following objectives a special department of the Higher Court in are relevant: Belgrade. The Office is better resourced than other prosecution offices, with higher sala- hh Ensure full independence or autonomy ries, sufficient prosecutors and support staff, and transparency of the judiciary in terms space, and audio-visual equipment for re- of budgetary powers (3.4.1) cording all proceedings. hh Ensure that the process of selection, promotion and accountability of holders of judiciary functions is based

15 on clear, objective, transparent and pre- sector, and supervising their implemen- determined criteria (3.4.2) tation hh Improve mechanisms for prevention of hh Establishing rules on conflict of interest conflict of interest in judiciary professions and dealing with notifications by public (3.4.7) officials of conflicts hh Provide adequate resources in the Public hh Receiving and keeping a register of the Prosecutor’s Office and courts for dealing declarations of assets and income of pub- with cases of corruption (capacity build- lic officials ing) (3.4.8) hh Acting on complaints submitted by legal hh In addition, the section describing the sit- entities and natural persons uation in the judiciary also mentions the problem of the absence of legal regula- These mechanisms are covered under tion of the work of court experts. specific sections of this report. These strategies and their action plans will be referred to where relevant in the rest of this assessment. In addition to these poli- 3. CO NDUCT OF JUDGES cies, other reform measures that have been introduced or are in the process of being in- AND PROSECUTORS troduced are the following: hh A new Criminal Procedure Code, which This section briefly summarises the ev- came into effect for the War Crimes and idence on issues of poor conduct in the ju- Organised Crime Prosecution Offices in diciary and prosecution. It should be noted January 2012, and then for all other pros- that measuring or assessing actual conduct ecution offices on 1 October 2013 was not the main objective of this study. The hh New systems for the evaluation of perfor- information presented here is regarded by mance of prosecutors and judges the experts as imprecise and indicative, and should be treated with caution. hh New mechanisms and procedures for dis- ciplinary proceedings against prosecutors and judges 3.1 Official evidence There is very limited official evidence of 2.2.3 Role of the Anti-corruption Agency misconduct in the judiciary and prosecution, in the sense of evidence from disciplinary In addition to mechanisms for promot- or criminal proceedings. According to ing good conduct and preventing miscon- information provided by the Organised duct within the judiciary and prosecution, Crime Prosecution Office, as of November an overall framework for the prevention and 2013 it had prosecuted 7 judges since its tackling corruption is established by the Law establishment, with three final convictions on the Anti-corruption Agency for public of- involving prison sentences of 3-6 years plus ficials, the definition of which includes all confiscation of proceeds. In addition, the judges and prosecutors. The Law establish- Office has become significantly more active es the ACA, which is responsible for perform- since 2012, initiating proceedings against ing four main functions relevant for prevent- a number of high-level officials or former ing and detecting corruption among prose- officials including 3 former ministers, the cutors and judges: current director of the national highway hh Issuing guidelines for the development of construction company, former directors of integrity plans in the public and private the State Agency for Privatisation and Health

16 Institute, former deputy Secretary General of may be particularly relevant in the case of the Government, and 11 former employees/ the judiciary and prosecution – for example, directors of the national railway. the fact that only a limited proportion of the population actually comes into contact with Disciplinary mechanisms and procedures courts or prosecutors, the influence that ac- for addressing misconduct have only recent- tual case outcomes may have on corruption ly been established fully (see sections 4.8- perceptions (irrespective of whether corrup- 4.9), and it is too early to use data based on tion was involved or not), etc. their functioning. However, the possibility of disciplinary sanctions for prosecutors already For this reason, surveys of actual expe- existed. According to the Republic Prosecu- rience may be regarded as of considerably tor’s Office, during the five years to 2013 “less more value. The main examples of such sur- than 2-3 prosecutors” were dismissed per veys conducted in Serbia are the following: year on average as a result of incompetence h or poor conduct in decision-making, with h According to the UNDP survey mentioned none being dismissed in some years. above, around 8% of the population paid a bribe during the previous 12 months; another 2.5% were asked for a bribe but 3.2 Survey evidence refused, while 3% have a family mem- Concerning problems of actual poor con- ber who paid a bribe. Of those that paid a duct in the judiciary and prosecution, sur- bribe, around 2-3% paid a bribe to a judge veys indicate that i) perceptions of poor con- or prosecutor, compared to 55% for doc- duct are very high, but ii) actual experience tors, 39% for police officers and 4% for of such conduct, while a significant concern, customs officers. Around 10% of citizens is much more limited. who had refused to pay a bribe did so in relation to a judge or prosecutor. Concerning perceptions, most of the hh According to the 2013 Transparency In- available data focuses on corruption. In a ternational Global Corruption Barometer, UNODC survey5 conducted in 2010, around of the 24% of respondents who had come 52% of respondents believed that bribery is into contact with the judiciary in the past common in courts, while 48% believed the 12 months, 18% declared they had paid a same for the Republic Prosecutor’s Office. bribe, a substantial increase from 13% in According to a survey conducted by UNDP 2010 and 8% in 2009. These figures were and CESID (from December 20126), 64% and higher than in neighbouring countries, with 63% of respondents regarded the courts and the percentage stating they bribed 16% in prosecution as corrupt respectively; these “the former Yugoslav Republic of Macedo- figures were exceeded only by political par- nia” and Bosnia and Herzegovina and 3% in ties (72%) and healthcare (69%), and percep- Croatia. The percentages for the police were tions have been relatively stable since 2009. 16%, compared to 18% in 2007, 9% in 2009 A universal complaint from judges and and 15% in 2010 (in the latter case equiva- prosecutors during the on-site visits con- lent to around 4% of the population). cerned the alleged inaccuracy of surveys of The results of these surveys diverge to the perceptions of corruption in the judiciary extent that it is impossible to state with any and prosecution. The experts share these confidence a conclusion concerning the ex- concerns: surveys of perceptions of corrup- tent of actual misconduct in the judiciary or tion in general must be treated with great prosecution. caution for reasons that have been wide- ly documented, and some of these reasons

5 https://www.unodc.org 6 http://www.rs.undp.org

17 3.3 Interview evidence ty of this assessment to make clear judge- ments of the distribution of corruption or Concerning the responses of interloc- other poor conduct among different types of utors interviewed during the on-site visits courts, it might be expected that investiga- who were not judges or prosecutors, a fair tions of serious economic crime cases might summary of the opinions expressed would expose prosecutors and judges to great- be the following: er corruption pressures (including political hh Classic corruption in the sense of bribery pressure) than other criminal cases. The Or- is probably not a widespread problem in ganised Crime Prosecution Office has come the courts or prosecution. For example, in for some criticism for not initiating earli- incompetence - whether personal or in- er a number of the cases mentioned in Sec- stitutional due to reasons such as a lack tion 3.1: the failure to act under the previous of capacity, resources or specialisation - is government combined with sudden activi- likely to be a more widespread problem. ty following a change of government could give the impression that prosecutors‘ deci- hh However, the conduct of both judges and sions are susceptible to political influence. In prosecutors is politically influenced due the courts, the misdemeanour courts, which to their lack of independence. Specifical- deal with a wide range of relatively minor of- ly, it was widely suggested that following fences (including for example traffic offenc- the election process for judges and pros- es) and impose and collect the vast majori- ecutors in 2010, they are likely to refrain ty of fines might be relatively vulnerable to from engaging too actively in high-pro- small-scale bribery in such cases. file cases that affect or may affect the in- terests of politicians having in mind what was happening in relation to the re-elec- tion process. The re-election process 4. ISSUE S AND RISK caused uncertainty among judges in the permanence of their functions and had FACTORS strong impact on the overall stability of the judicial power. Furthermore, both lo- This section describes the main issues cal experts and relevant international or- covered by this study to assess the integrity ganisations’ reports indicate that the ap- and resistance to poor conduct of the judi- pointment and promotion of judges and ciary and prosecution, and identifies specif- prosecutors are still vulnerable to improp- ic factors which may result in or increase the er political influence. likelihood of poor conduct.

It is interesting to note that the percep- tion of actual or potential political pres- 4.1 Appointments and Governance sure/influence was equally strong concern- ing both judges and prosecutors. Despite 4.1.1 Election of Judges and High the fact that the independence of judges ap- Judicial Council members pears to be somewhat better secured institu- tionally than autonomy of prosecutors, con- Under the Law on Judges, the National cerns at such influence were raised more of- Assembly elects judges to their initial period ten and more strongly by judges than prose- of tenure, from candidates proposed by cutors (see Section 4.1). the High Judicial Council (HJC), the highest governing body for the judiciary. After a It is also very important to note that cer- three-year probationary period the HJC tain areas of the judiciary are likely to be more appoints them permanently: the HJC must vulnerable than others to different forms of make the appointment if the judge has misconduct. While it is beyond the capaci- been rated as “performs judicial duty with

18 exceptional success“, and may not appoint in the territory where s/he performs his/ him/her if his/her performance has been her function), and elected by all judg- rated as „not satisfactory“; apart from this, es from the list of proposed candidates, no criteria for permanent appointment are in an election organised by an Electoral defined. The National Assembly also elects Commission formed by the HJC. All judg- the president of each court for a four-year es may vote for a candidate from the type renewal term, on the proposal of one or more and/or instance of the court where s/he candidates by the HJC. When the term of the holds office. president of a court ceases, the immediately hh On the basis of the election result, the HJC superior court appoints a judge from the then proposes to the National Assembly same court as acting president until a new the candidate for each position who won president is appointed. the largest number of votes, or several Following permanent appointment, judg- candidates for positions where more than es may be dismissed if convicted for an of- one proposed candidate received the fence that carries a prison sentence of at least same number of votes. The National As- six months, a “punishable act that demon- sembly then elects the candidate for each strates that he/she is unfit for the judicial position nominated by the HJC, or choos- function”, incompetence - meaning a perfor- es from the candidates for each position mance evaluation assessment of “dissatisfac- where more than one was nominated. tory”, or in case of a serious disciplinary of- A similar/analogous process for the elec- fence. tion of the two prominent lawyers exists - with candidates proposed by the Bar Asso- The HJC is composed of 11 members: ciation and joint session of deans of all Law hh Three ex officio - the Minister of Justice, Schools. chair of the parliamentary committee re- It is important to note that the Law estab- sponsible for the judiciary, and Chair of lished (as a transitional provision) - a slight- the Supreme Court of Cassation; ly different election procedure for the first hh Six elected judges election of HJC members, which had to take hh Two elected “credible and prominent law- place within 90 days of the law coming into yers with minimum 15 years of profes- effect in December 2008. The election proce- sional experience, one of whom is an at- dure was the same, except that the High Ju- torney and the other a Faculty of Law pro- diciary Council was not bound to nominate fessor”. candidates proposed by judges, but only to take into consideration such candidates. The mandate of elected members is 5 This allowed the HJC to nominate candidates years, and they may not be re-elected con- at will, and did not establish any criteria by secutively. Of the elected judges, one shall which such candidates should be selected. represent each of the following: Supreme Court of Cassation, Commercial Appellate Court, and Administrative Court; appellate 4.1.2 Election of Prosecutors and State courts; higher and commercial courts; ba- Prosecutorial Council members sic courts; misdemeanour courts and High- The Republican Public Prosecutor and all er Misdemeanour Court; and courts from the other public prosecutors are elected by the territory of Autonomous Provinces. National Assembly for six-year renewable For judges: terms. The State Prosecutorial Council (SPC) proposes candidates to the government, hh Candidates are proposed by sessions of which may add its own candidates before the relevant courts (i.e. basic courts may the National Assembly conducts the propose a candidate from the basic courts

19 election. Deputy public prosecutors are 4.1.3 Key governance functions of the elected the same way for a three-year HJC and SPC probationary period, following which they become permanent. When the term of a Apart from their role in proposing, elect- public prosecutor ends, the Republican ing, dismissing and transfer/assignment of Public Prosecutor appoints an acting public judges, key functions of the HJC and SPC prosecutor until a new prosecutor is elected, relevant to underpinning good conduct of and for a maximum period of one year, judges and prosecutors are shown in Table 1. although the appointment can be renewed. Table 1: Selected functions of the High Ju- The acting Republican Public Prosecutor dicial Council and State Prosecutorial Council is appointed by the SPC. High Judicial Council State Prosecutorial Council The mandate of Gives proposals on the volume and structure of budgetary funds required for operations of Pu- the SPC is similar to Decides on the transfer, assignment, and obje- blic Prosecutor’s Office in respect of overhead the HJC – five years ction to the suspension of judges; expenses, and oversee the spending thereof, in with a ban on con- accordance with law; secutive re-election- as well as the com- Determines what other functions, affairs or Rules on incompatibility of other services and private interests are contrary to the dignity position with: three jobs with judge’s office; and autonomy of the Public Prosecutor’s Offi- ex officio members - ce; the Republican Public Rules in the process of the performance eva- Passes the Code of Ethics; Prosecutor (the most luation of a judge and president of the court; senior public pros- Determines the composition, duration and the ecutor), Minister of termination of the mandate of the members Appoints and dismisses the Disciplinary Prose- Justice and chair of of disciplinary bodies, appoint the members of cutor and the deputies thereof, and members the National Assem- disciplinary bodies and regulate the manner of of the Disciplinary Commission and the depu- bly (parliamentary) operation and decision making in disciplinary ties thereof; Committee respon- bodies; sible for the judicia- Rules on legal remedies in disciplinary procee- Passes decisions on legal remedies in discipli- ry; six public prosecu- dings; nary proceedings; tors or deputy public Proposes the volume and structure of budge- Passes Ordinance on Criteria for Performance prosecutors and two tary funds necessary for the work of the courts Evaluation of public prosecutors and deputy for overhead expenses, and oversee disburse- credible and prom- public prosecutors’ inent lawyers. The ment of funds in accordance with law; procedure for elect- Rules on the existence of conditions for com- Passes a decision on legal remedy against the ing the SPC is anal- pensation for damages due to unlawful and decision on performance evaluation of public ogous to the proce- erroneous actions of a judge; prosecutors and deputy public prosecutors; dure for electing the Odlučuje o postojanju uslova za naknadu štete Donosi odluku o pravnom leku protiv odluke o vrednovanju rada javnog tužioca i zamenika HJC - with the SPC zbog nezakonitog i nepravilnog rada sudije; nominating candi- javnog tužioca; dates to the National Assembly. Again, transitional provisions ap- 4.1.4 The election of 2009 plied under which the High Judicial Coun- cil (there was no equivalent of the SPC pri- Under the 2008 laws on Judges and on or to the new laws) nominated candidates to Public Prosecution and laws on the High the National Assembly, taking into account Judicial Council and on State Prosecutorial (but not bound by) the proposed candidates Council, and following the appointment elected by prosecutors. of the first HJC and SPC in 2009 under the transitional provisions mentioned in Section 4.1.1, an election of all judges and prosecutors

20 was conducted. All positions of judges and emy (adopted in 2009) requires in Article 40 prosecutors were advertised in July 2009, that all candidates for judge or deputy pros- and in December 2009 the HJC elected 1,528 ecutor proposed by the HJC/SPC to the Na- judges from judges already sitting, and 886 tional Assembly must have graduated from judges for the first time. A total of 837 sitting the Academy’s two-year initial training. In judges were not elected, i.e. were effectively addition, the Academy provides on-going dismissed. At the same time, 68 public training, and for example played a key role prosecutors were elected, 416 deputy public in preparing judges and prosecutors to im- prosecutors re-elected and 88 candidates plement the new Criminal Procedure Code for deputy public prosecutors proposed to which came into effect for all courts from Oc- the National Assembly.7 Around 200 sitting tober 2013. The Academy system represents prosecutors/deputy public prosecutors were a move away from the old system, in which not re-elected, according to the Association any lawyer who had passed the Bar Exam of Prosecutors. Following this, in 2011 the could be appointed as a judge or prosecu- permanent composition of the HJC and SPC tor. A typical route to becoming a judge or were elected without the participation of prosecutor was to gain experience as a judi- the judges and prosecutors who were not cial and prosecutorial associate. However, in elected. February 2014 the Constitutional Court ruled paragraphs 8, 9 and 11 of article 40 as uncon- The outcome of the election procedures stitutional (see Section 4.1.6). sparked protests by the sitting judges and prosecutors who were not elected. Reviews conducted by the SPC in 2011 and the HJC 4.1.6 Problems/risks in 2012 of the election upheld objections by iii) Appointments a minority of complainants. Many of the re- maining judges and prosecutors appealed The rules on appointment and composi- directly to the Constitutional Court, which tion of judges and prosecutors and their gov- upheld the appeals. However, the Court ruled erning bodies (the HJC and SPC) are not in that judges and prosecutors who were not in line with the idea of a truly self-governing ju- their positions at the time of the election of diciary. In particular: members of the new High Judicial Council hh The National Assembly has a major role and State Prosecutorial Council in 2011 did in appointment of the HJC and SPC, in- not have the right to stand as candidates in cluding election of the six members who those elections since they did not hold the are judges/prosecutors as well as the two position of judge or prosecutor. lawyer members. Although the Assembly does not formally control the composi- 4.1.5 Role of the Judicial Academy tion of the councils (as judge/prosecuto- rial candidates for nomination are elected In a major reform of the system of prepa- by judges/prosecutors themselves), con- ration and training of judges and prosecu- versations with judges in particular indi- tors, the Judicial Academy was established cated that they perceive the HJC as vul- in 2010. The Judicial Academy provides the nerable to political influence. It seems the basic two-year schooling of judges and pros- intention behind the system is that the ecutors, and Objective 1.4.2 of the NJRS in- judges are to nominate only one candi- cludes the establishment of the “require- date for each vacancy, although the law ment of a degree from the Judicial Acade- does not say so. Even if this is the prac- my as an obligatory precondition for assum- tice, the National Assembly has a veto on ing the office of judge or prosecutor in the any candidate proposed, a provision that first election.” The Law on the Judicial Acad- the Venice Commission criticised in its 7 http://www.pressonline.rs Opinion on the draft Law in 2008 (CDL-

21 AD(2008)006). Although the Assembly own candidates at will. Although depu- has never used this veto right, the poten- ty prosecutors become permanent af- tial for obstruction of a candidate is clear. ter an initial three-year probation period, This perception is clearly influenced by the public prosecutors’ function is limit- the events surrounding the 2009 election ed. The limited 6-year appointment is in- of prosecutors and judges, conducted un- compatible with paragraph 5.d. of Rec- der exceptional one-off provisions of the ommendation Rec(2000)19 of the Com- laws on the HJC and SPC. Whether it is jus- mittee of Ministers of the Council of Eu- tified or not in terms of future pressure or rope on the role of public prosecution in influence on the HJC, there is a clear risk the criminal justice system which recom- that it may lead judges to exert ‘restraint’ mends that public prosecutors have ten- in dealing with cases that involve MPs or ure (although, unlike judges, not neces- their political allies. sarily in a particular position or post) and hh Ordinary judges hold a very narrow ma- an appropriate age of retirement. The Ven- jority on the HCJ, as do prosecutors on the ice Commission has recommended that SPC - six of the eleven members, or seven prosecutors other than the Prosecutor including the Chair of the Supreme Court General should be appointed until retire- of Cassation (Republican Public Prosecu- ment, noting that “Appointments for lim- tor in the case of the SPC). Since the quo- ited periods with the possibility of re-ap- rum in both bodies is six members, this pointment bear the risk that the prosecu- means that if two judges/prosecutors are tor will make his or her decisions not on not present then judges/prosecutors can the basis of the law but with the idea to be outvoted by the other members, and please those who will re-appoint him or in theory these bodies can make decisions her.” (CDL-AD(2010)004 paragraph 50.) with only one ordinary judge (or prosecu- Other recommendations and opinions of tor) plus the Chair of the Supreme Court of relevant international organisations un- Cassation present. Furthermore, the rep- derline these points further.8 resentation of courts is biased in favour hh The process by which judges are elected of the higher courts in which fewer judg- to permanent office following their three- es work. There is also an argument to be year probation period is linked directly made that the system is biased in favour to the performance evaluation of judg- of judges based in Belgrade (see Venice es. The Law on Judges states that the HJC Commission Opinion CDL-AD(2008)006 elects judges to permanent office, and -Ar paras 43-46 and 70-73.) ticle 52 states that judges whose perfor- hh The system by which the National Assem- mance is evaluated as “performs judicial bly elects public prosecutors for six-year duties with exceptional success” are to be terms raises a high risk that prosecutors’ mandatorily elected to permanent office, autonomy will be undermined. For exam- while those assessed as “not satisfactory” ple, it is difficult to imagine that a prose- may not be appointed. Whether judges cutor will deal with a case involving MPs with an evaluation in between these two or their political allies (including mem- bers of the Government, political do- 8 See in particular Council of Europe Committee of nors etc.) without having in mind the fact Ministers Recommendation Rec (2012)11 on the role that the same body will decide on his/her of public prosecutors outside the criminal justice sys- re-election. This risk is exacerbated by the tem, Opinion nº12 (2009) of the Consultative Council fact that candidates for election as a pros- of European Judges and Opinion nº4 (2009) of the ecutor are not limited to those proposed Consultative Council of European Prosecutors (CCPE) on the relation between judges and prosecutors in a by the SPC - the Government may add its democratic society.

22 are elected or not is not specified.9 The and institutional frameworks are satisfac- degree of integrity with which this sys- tory, the legitimacy deficit of the HJC and tem functions will therefore by definition SPC undermine the likelihood that it can depend on the functioning of the perfor- perform its governance role adequately. mance evaluation system for judges (See The National Judicial Reform Strategy Section 4.6). clearly acknowledges the problems of the hh The election by the National Assembly of current processes of appointments. Its Ac- presidents of courts for four-year terms tion Plan contains a key objective (1.1.1.3) also carries the risk of undermining judg- of preparing constitutional amendments “in es’ independence. the direction of exclusion of the National As- hh The fact that the positions of court presi- sembly from the process of appointment of dents and public prosecutors (i.e. heads of court presidents, judges, public prosecutors/ prosecution offices) may be maintained deputy public prosecutors and members of in a state of “temporariness” on an indef- the High Judicial Council and State Prosecu- inite basis represents both a major cor- torial Council” together with “changes in the ruption risk and an unacceptable interfer- composition of the High Judicial Council and ence with judicial and prosecutorial inde- State Prosecutorial Council aimed at exclud- pendence since it maintains senior judges ing the representatives of the legislative and and prosecutors in a state of dependence executive branch from membership in these on political decisions. From 2009 until Oc- bodies”. In addition, Objective 1.1.1.4 envis- tober 2013 the presidents of the most ages transitional measures to strengthen senior courts (SCC, three of the four Ap- independence prior to such constitutional peal Courts, Administrative Court, Com- amendments, and in particular legal amend- mercial Appeal Court and Higher Misde- ments to establish that in elections of judg- meanour Court) were all ‘acting’, and this es, deputy prosecutors, and members of the is perceived by many judges as a tactic to HJC and SPC, the HJC and SPC nominate maintain the senior management of such only one candidate for each position to the courts in a state of uncertainty - a not un- National Assembly. In addition, court pres- reasonable assumption given the recent idents would be elected for only one term, track-record of illegal dismissals of judg- presumably on the assumption that this will es and prosecutors. A similar problem of avoid the risk of court presidents courting ‘acting’ status has also existed for prose- favour with politicians in order to increase cutors. their chances of being re-elected. hh In general, due to the election process of iv) Legitimacy and governance 2009 and the controversy surrounding it, As seen in Section 4.1.3, the HJC and SPC the legitimacy of both the HJC and SPC in are responsible for performing basic func- their present composition is seriously un- tions to underpin integrity, good conduct dermined. A number of judges in partic- and performance in the judiciary and pros- ular referred to a general fear of anoth- ecution, including: regulations to determine er ‘re-election’, and the general impres- which external activities are incompatible or sion was of a profession that has been contrary to the proper performance of func- significantly demoralised by the experi- tion; passing codes of ethics; appointment ence. As already underlined in the previ- of disciplinary bodies and ruling on appeals ous sub-section, a key theme of this as- in disciplinary cases; specification of perfor- sessment is that while many formal legal mance evaluation rules, which according to the laws play an important role as criteria 9 The Venice Commission also criticised the apparent requirement (in order to be sure of election) for an ‘ex- for career advancement and for disciplinary ceptional’ performance evaluation in a 2009 opinion action; and proposing budgets (for current (CDL-AD(2009)023)

23 spending) for the judiciary and prosecution. hh The more than 1700 judicial and prose- The HJC is also responsible for evaluating the cutorial assistants (or associates - the two performance of court presidents. terms are used interchangeably in Serbia) are all qualified lawyers and are of funda- While it is not the role of this assessment mental importance to the functioning of to comment on the specific composition of the courts and prosecution offices. For -ex institutions such as the HJC and SPC, almost ample, the Criminal Procedure Code pro- all judges and prosecutors interviewed were vides expressly that prosecutorial associ- clearly of the opinion that the councils lack ates may perform the role of prosecutor legitimacy. The issue here is not the person- on behalf of the Public Prosecutor in cas- al qualities of specific HJC or SPC members, es punishable by imprisonment of up to 5 but the legitimacy of an election in which the years (8 years in the case of Higher Prose- judges and prosecutors who were not elect- cutorial Associates). Assistants draft pros- ed but later reinstated were unable to partic- ecutorial decisions and court verdicts, in ipate. addition to directly assisting the perfor- In addition, important concerns were mance of all other judicial and prosecu- raised by judges concerning the perfor- torial functions (for example questioning mance by the HJC of its role as a mechanism witnesses). Many associates have worked for underpinning/enforcing good conduct in their positions for a number of years among judges, or as a defender of the judi- (even 10 years or more), in the expecta- ciary. For example, according to senior law- tion that such work will enable them at yers, some 144 complaints had been sent to some point to be considered for appoint- the HJC alleging misconduct of judges, but ment as a first-time judge or deputy pros- no judge had been reprimanded. Concern- ecutor. It was noted by interlocutors that ing the second role, one case was mentioned special prosecution offices and courts - in- in particular by senior judges, in which a cluding the Organised Crime Prosecution judge of the Higher Court in Belgrade was Offices - tend to be staffed by associates allegedly threatened by a lawyer on behalf with longer experience. of the Chairman of one Parliamentary Com- hh The change to the new system has gener- mittee demanding that the Chairman’s cli- ated bitter resentment among assistants. ent be released from detention. The Higher The new rules require any candidate for Court submitted a complaint to the HJC, Par- judge or prosecutor to complete the full- liament and Ministry of Justice; according to time two-year Academy course. Although the judges interviewed none of the institu- Academy students are paid 70% of a judg- tions replied. es or prosecutor’s salary during their study v) Role of the Judicial Academy period - more than the salary of an assis- tant - the new requirements are neverthe- The new requirement that all first time less prohibitive for assistants. In order to elected judges or prosecutors must be grad- study at the Academy they are required uates of the Judicial Academy was intro- to resign as associates. They are there- duced to ensure the professional qualifica- fore asked to take a risk- however remote tion of judges and prosecutors, and also to it may seem - that if things do not go ac- increase the integrity of appointments, with cording to plan they may end up with no the previous system allegedly being vulnera- job at all. These arrangements are partic- ble to judges/prosecutors promoting candi- ularly onerous for associates who live out- dates on the basis of personal or other affili- side Belgrade, are older, or who have fam- ation rather than professional ability. Howev- ily commitments. er, the speed of the transition to the new sys- hh These problems have created serious tem and the absence of any transitional ar- risks for the functioning of the judiciary rangements raise important concerns:

24 and prosecution. There is clearly a wide- Strategic Goal 2 of the NJRS is “full inde- spread feeling of betrayal among assis- pendence and transparency of judiciary in tants, whose concerns are also support- budget authorizations.” A series of meas- ed by the judges and prosecutors whom ures in the Strategy involve closer involve- they assist. Irrespective of the merits of ment of the HJC and SPC in preparation of the change itself, this could potential- the budget, capacity building within the two ly have an important negative impact on councils, and culminating in “full transfer the work ethic and therefore performance of budget authority” to the councils (Meas- of assistants, including standards of con- ure 1.2.3.1) as a medium-term measure. This duct, together with the risk that assistants would mean that the councils collect individ- will leave the judiciary and prosecution to ual budget proposals from courts and prose- pursue careers as private lawyers. cution offices, and “prepare the budget pro- In February 2014 the Constitutional Court posal of the judiciary” (including prosecu- ruled the new provisions as unconstitutional tion). on the basis that i) the requirements for elec- tion to a judicial or prosecutorial function are 4.1.8 Recommendations for governance to be provided by the laws that systemically regulate these issues – i.e. the laws on Judg- Based on the issues discussed in this sec- es and on the Public Prosecution, and not the tion, the following recommendations are for- law establishing a training institution, and warded: ii) the provisions of the Law on the Judicial 1. In line with Objective 1.1.1.3 of the NJRS, Academy limit powers of the HJC and SPC constitutional amendments should ex- that were established by the Constitution – clude the National Assembly from any namely to independently nominate candi- role in the election of judges (including dates for first election of judges and prose- court presidents), prosecutors and dep- cutors. This indicates that any attempt to re- uty public prosecutors, the High Judicial introduce the requirement would have to in- Council and State Prosecutorial Council. volve constitutional amendments. As the HJC and the SPC have a role in the selection and career of judges and pros- 4.1.7 Control of budgets ecutors the method for electing them should be in accordance with Europe- Courts can only be properly independent an standards and recommendations as if they are provided with a separate budget well as the opinions of the relevant au- administered by a body independent of the thoritative European bodies.10 These in- executive and legislature (as underlined in Opinion No. 10 ofthe CCJE, Strasbourg, 23 10 These are in particular: the European Charter on the November 2007). An additional related issue statute for judges adopted in Strasbourg in July 1998 raised by a number of judges is political con- (DAJ/DOC(98)23); Recommendation (2010)12 of the trol of the budget allocation for the judiciary Committee of Ministers of the Council of Europe on and prosecution. The Ministry of Justice pro- Judges: Independence, Efficiency and Responsibilities; with Opinion No. 1 (2001) of the Consultative Council poses the overall size and breakdown of the of European Judges (CCEJ) on standards concerning budget for the judiciary. As input to this, un- the independence of the judiciary and the irremova- der the laws on Public Prosecution and on bility of judges; Opinion No.10 (2007) of the CCJE on Organisation of Courts the SPC and HJC pro- the Council of the Judiciary at the Service of Society; and the recommendations of the Venice Commission, pose the size and structure of the current ex- in particular its “Report on Judicial Appointments penditure budget. However, they have no CDL-AD(2007)028 of 16-17 March 2007, Report on role in proposing or commenting on the cap- the Independence of the Judicial System Part I: The Independence of Judges” CDL-AD(2010)004 of 12-13 ital expenditure budget (such as investment March 2010; and “Report on European Standards as in court infrastructure or equipment). regards the Independence of the Judicial System: Part II- The Prosecution Service” CD L-AD(2010)040.

25 struments make clear that: a majority and announced visits of the HJC/SPC to or a substantial component of judicial courts/prosecution offices; clear mecha- councils should be elected by the judg- nisms by which judges/prosecutors may es themselves; they should include rep- contact their relevant council both for- resentatives of civil society and the legal mally and informally; activities of en- profession, who may be chosen by law- gagement such as the organisation of an yers and civil society themselves; in no annual conference concentrating on a circumstances should councils include particular important issue or issues; and practising politicians; where parliament the establishment of spokespersons and has a role it should be confined to the staff for communication with the media, election of members who are not judg- either in general or on specific cases. es, and by qualified majority to avoid po- 5. When legal or constitutional amend- liticisation; councils should be free to ments are passed to establish the Judi- choose their own chairs. Prosecutors and cial Academy as the sole route to hold- judges should then be elected in turn by ing the office of judge or prosecutor, the reformed Councils. these should include transitional provi- 2. In line with strategic guideline 1.4.1 of the sions under which, for a transitional pe- NJRS, and particularly measure 1.4.1.3, riod, judicial and prosecutorial assistants clear rules and procedures should be es- who satisfy certain criteria (for exam- tablished for the appointment of court ple length of employment) may be can- presidents and public prosecutors in or- didates for judge or prosecutor if they der to end the possibility of these posi- take the Judicial Academy examination, tions being occupied on an acting basis without having to complete the entire for lengthy periods of time. Specifical- course. ly, a time limit should be introduced on 6. The judiciary and prosecution should the length of time a particular position have separate budgets, administered by of court president or public prosecutor the reformed HJC and SPC respective- may be held on an acting basis. ly. While respecting the right of the gov- 3. As an interim measure additional to ernment to make final budget decisions, those contained in the NJRS, in order for the budgets for the judiciary and prose- the legitimacy of the High Judicial Coun- cution should be determined following cil and State Prosecutorial Council to be detailed proposals submitted by the HJC restored, the current councils should and SPC (covering both current and cap- step down in order to facilitate elections ital expenditure). Where the Government in which all currently sitting judges and does not accept or alters these proposals, prosecutors may participate. all decisions should be accompanied by a 4. The HJC and SPC should work to estab- clear and public written explanation. lish themselves as genuine mechanisms 7. In order to enable the HJC and SPC to for identifying and addressing problems carry out budgetary and other admin- of the branches they govern, mediating istrative tasks each council should em- communication between judges/pros- ploy a senior administrator (in effect a ecutors and the public/media, and en- chief executive officer) answering to the suring accountability to the public. Ac- council and appropriate staff with skills tions to achieve this would include: the including accountancy and information provision of a web page with full ac- technology. cess to HJC/SPC decisions and activities along with publication of citizen’s com- plaints (or at least statistical data there- on), research and analysis etc.; organised

26 4.2 Resources Regarding the courts, senior judges point- ed out that the number of courts and judges In addition to the issue of control over were cut by around 700 after the 2009 elec- budgets - and of course possibly linked to tion at a time when they were already work- that issue - a consistent complaint of inter- ing at full capacity. Judges at higher courts locutors concerned a lack of resources, espe- referred to working conditions as one of the cially in the prosecution. In short, acute con- key barriers to them performing their func- cerns are in place regarding human, physical tions properly. However, the reinstatement and technical resources. In a typical exam- of 7-800 judges in 2012, and in particular the ple from one higher prosecution office, four decision to substantially increase the num- prosecutors share one room, in which all are ber of judges under the reorganisation ef- supposed to conduct desk work and inter- fective from 1 January 2014 (see Section 2.1) view witnesses. This is combined with a lack may do much to address this problem. More- of recording equipment, which slows down over, the budget for the judiciary appears to the process of collecting evidence and con- have increased significantly above inflation ducting court proceedings (see Section 4.3). in every year since 2010. An example of insufficient human resources is provided by Novi Pazar, which has 6 dep- A key point regarding resources concerns uty public prosecutors to match the work of the distribution of workload among courts. 12 criminal judges. One of the stated reasons for the reform of the network of courts from 1 January 2014 These concerns have been exacerbated has been to achieve a more rational distribu- by the introduction of the new Criminal Pro- tion of work among judges. Prior to this at cedure Code (covered in Section 4.5), which least, the case load has been highly uneven. allocates new tasks to prosecutors, in partic- At one higher court outside Belgrade it was ular by transferring responsibility for crimi- claimed that the number of judges is approx- nal investigations to them. Prosecutors claim imately half of those needed, and prior to the that the new system has been introduced establishment of the new network, it was es- without providing any extra resources for timated that 60-70% of all cases in the coun- the prosecution, making it difficult for prose- try were at the Appellate Court in Belgrade. cutors of integrity to perform their job prop- Although it might be natural for a large num- erly. This claim is difficult to verify; the bud- ber of appeals to be concentrated in the cap- get for basic prosecutors’ offices (around half ital, this nevertheless would appear to be a the total prosecution budget) rose by 20% in serious burden for the 74 judges falling un- 2013, and that of the higher prosecutors’ of- der that court as of November 2013. On the fices (around a quarter of the total) by 26%, other hand, judges’ responses at the Special although other prosecution offices saw only Department for Organised Crime at the Bel- small increases and the budget of the ap- grade Higher Court indicated that it has ‘just pellate prosecutors’ offices even fell slight- enough’ judges. ly. Nevertheless, the interviews conducted with prosecutors suggested that resources A key burden on resources is created by are clearly insufficient. Ministry of Justice of- the inefficient nature of judicial and prose- ficials stated that a major problem for imple- cutorial proceedings - in particular the relay- mentation of the new CPC is lack of resourc- ing through the prosecutor or judge of testi- es, from money to space. Prosecutors indi- mony (in both courts and prosecution offic- cated that the transfer of functions to them es from witnesses, accused and defendants) means that each case will take them twice as and typing by support staff (see Section long to deal with, yet the number of prosecu- 4.4.3). It would be fair to say that if working tors has not been increased to deal with this practices were streamlined (see recommen- extra workload. dation for 4.4.3) the number of judges and/ or prosecutors might be sufficient; a clear

27 judgment on this would have to be made 4.3.1 Changing laws when that is done. In general, a criticism raised by lawyers The NJRS does not contain any commit- was a tendency to change laws without en- ment to increase funding of the judiciary or suring compatibility with other existing le- prosecution, although measures to trans- gal provisions, and that the ‘sub-legal’ frame- fer control over budgets include a commit- work for implementation (such as by-laws) ment to prepare “a study of the real needs” of was not always established. To the extent that such criticisms are accurate, this phe- the judiciary/prosecution (Measure 1.2.1.1). nomenon represents a general corruption In addition, Strategic Guideline 5.1.6 aims at risk. Conflicts between legal provisions will developing properly formulated and prior- tend to generate excessive discretion on the itised infrastructural investment planning, part of officials responsible for implement- leading to the submission of proposed in- ing laws, as well of judges in adjudicating dis- vestments to the HJC and SPC. putes over their provisions. They also lead to a legal culture in which the judge could jus- Recommendations: tify deciding cases either way. Also, constant changes in the law lead to uncertainty about 8. It is strongly recommended that the com- what the law actually is, not only amongst mitments in the NJRS to clarify the re- the general public but even among lawyers. source needs of courts and prosecution By contrast, legal certainty may be expected offices are backed up by more specific to discourage judicial corruption by making commitments to meet these needs, in it much more difficult to disguise a corrupt particular through adequate budget al- decision. locations to ensure that prosecutors es- More specifically, a tendency to amend at pecially have adequate space and equip- regular intervals basic legal provisions gov- ment to perform properly the investiga- erning the judiciary and prosecution was sin- tive role given to them by the new Crimi- gled out for particular criticism. As noted in nal Procedure Code. Greater efforts need Section 2.1, legal amendments introduced to be made to deal with the mismatch major changes in the court network (which between needs and resources which ex- affects the network of prosecution offices as ists at present, with courts in Belgrade well) in 2009, changes that were largely re- and the larger cities overworked and versed in 2013. The effect of carrying out ‘re- understaffed while some courts in the form of the reform’, as this is critically referred provinces have a low workload. The use to, is to decrease the feeling of job stability of financial incentives to persuade judg- among judges and prosecutors. For exam- ple, prosecutors expressed concerns that the es to move should be considered. recent reform will lead to the need for new 4.3 Legal certainty and uniformity elections of deputy public prosecutors in many places. On the other hand, the NJRS it- A general factor repeatedly underlined by self is an indication of intent to ensure a co- interlocutors as undermining the effective ordinated and in a sense definitive plan to re- functioning of the judiciary and prosecution form the judicial system. was constantly changing laws, both in gener- A further problem is that the everyday al terms but also specifically those laws gov- predictability of law is undermined by wide erning the judiciary and prosecution, togeth- variations in the way that different courts er with inconsistencies in the way different treat similar cases. For example, commer- courts and prosecution offices decide cases, cial lawyers stated that in commercial dis- leading to legal uncertainty. putes it is impossible to predict how judges

28 will decide with any confidence, as different of judgments, thereby establishing case law” courts adjudicate similar issues quite differ- (measure 2.7.1.3). However, different inter- ently. There appear to be two reasons for in- locutors had different understandings of of- consistency - the absence of mechanisms for ficial intentions regarding: ensuring uniformity of case law, and the lack of availability of court decisions and case law Composition of the Commission. One to either judges or the public. proposal envisaged the Commission will be comprised of judges together with officials from outside the judiciary such as professors 4.3.2 Inconsistent case law of law and lawyers, although the majority of interlocutors were clear that this propos- There is no mechanism in Serbia for en- al had been abandoned and the Commission suring a degree of uniformity of case law. will be comprised only of judges. It should While the Supreme Court of Cassation is the be noted that if Commission decisions were court of highest instance, and specifically the binding, the presence of non-judges would court immediately above the Commercial be an impermissible violation of judicial in- Appellate Court, the High Misdemeanour dependence under European and interna- Court, the Administrative Court and Appel- tional principles. Furthermore, the Commis- late Courts, relatively few decisions of these sion itself would have to be constituted as lower courts may be appealed to it. It decides a court of law. If this has to be done, what on extraordinary legal remedies filed against is the point of creating a Commission rather decisions of courts of the Republic of Serbia than getting the Supreme Court to perform (for example applications for a criminal pro- this function? It still remains unclear wheth- cedure to be reopened because it is discov- er the Commission will include judges from ered that decisive evidence was forged) and other courts than the Supreme Court of Cas- in other matters set forth by law (Article 30, sation. However, if the Commission has de Law on Courts). However, even in such cas- facto authority to determine the correct in- es its decisions, while binding on the parties, terpretation of laws (like a Supreme Court in are not binding on other courts even where common law systems), the inclusion of judg- the same legal issue arises again. For ordi- es from lower courts would be illogical and nary case decisions, the highest instance is controversial. the Courts of Appeal, of which there are four. There are, however, inconsistent decisions hh The exact function of the Commission. across these courts. On this issue there was even less clari- ty among interlocutors. Some stated that According to Article 31 of the Law, the the Commission will stamp or otherwise SCC shall “determine general legal views in designate Appeal Court decisions that are order to ensure uniform application of law to be regarded as good case law, while by courts”. However, it does not appear to ac- Ministry of Justice officials insisted the tually carry out this function. At the time of Commission will only identify case law the expert visits, discussion was proceeding issues on which different Appeal Courts on the establishment of a mechanism to en- have shown inconsistent approaches, as sure uniformity of case law. There is a gener- an initiative for those courts to resolve al intention to establish a “Certification Com- such differences in their regular meetings. mission” for this purpose, although the ex- act location, composition and remit of the The experts have key concerns over Commission had yet to be clarified. The NJRS the proposal to confer the function of Action Plan envisages the “establishment underpinning consistent case law on a of a certification body (Commission) within Commission rather than a court. In most the Supreme Court of Cassation” (measure jurisdictions where such a function exists it 2.7.7.1), that will be “in charge of certification would be carried out by the highest court

29 in the system. To confer the function on a Cassation can issue opinions on disput- commission which is not a court of law risks ed points of law which, even if not for- undermining the role of the courts and in mally binding, would carry great author- turn damaging the independence of the ity as the opinion of the highest court in judiciary. Worse, the potential will exist for Serbia. In particular, it would be advisa- the Commission to disagree with and in ble to provide further appeal of ordinary practice to overrun the Supreme Court of decisions to the Supreme Court, at least Cassation. in cases where the jurisprudence of the Courts of Appeal is inconsistent. In order The second barrier to consistency is the to prevent the Supreme Court from be- fact that court decisions are not available ing overwhelmed, the Supreme Court it- systematically, either to judges or lawyers or self could be given the power to decide to the general public. Currently, some court whether to hear an appeal, applying a decisions are available online at the Supreme test such as whether the case involved Court of Cassation website. However, there is an important point of law. Another pos- no unified method of classifying decisions, sible mechanism to assist in ensuring a making it time-consuming for judges to find more uniform application of law might decisions. There is no system of access to de- be to provide for a system of preliminary cisions for the public or for lawyers, due to rulings on points of law referred by low- issues of data protection/privacy. Objec- er courts, similar to the system of prelim- tive 2.8 of the NJRS is to provide “public ac- inary rulings in the Court of Justice of the cess to legal regulations, case law, judicial re- European Union. cords and proceedings databases”, and spe- cific objectives within the Action Plan pillar 11. Objective 2.8 of the NJRS, and in particu- include the establishment of a central data- lar the establishment of a central data- base of court decisions that will be available base of court decisions should be formu- free-of-charge. The objective is defined as lated/elaborated as a more urgent ob- ‘long-term’. jective, rather than being generally stat- ed as “long-term”. In addition, the Su- preme Court of Cassation should estab- Recommendations: lish a system of legal reporting should be established that provides a digest of sig- 9. The authorities should consider as ap- nificant cases on a regular basis. propriate changes to the legislative pro- cess (i.e. the process by which legislation 4.4 Organisation of work is initiated and drafted) to require prop- er regulatory impact assessment prior to Concerning the organisation of the work proposed legal changes, including as- of the prosecution and courts, the following sessment of the real need for legislation general issues were covered. (as opposed to better enforcement of ex- isting laws), and analysis both of the im- 4.4.1 Specialisation pact of legal changes on other legal pro- visions and of enforcement needs. With regard to the ability of prosecution 10. The concept of “binding precedent” is offices and courts to prosecute sensitive and not part of Serbian law and many Serbi- demanding cases related to corruption and an lawyers would be strongly opposed economic crime, there is a a need to have to its introduction. While it therefore may continuous specialisation of judges or pros- be impossible to establish a mechanism ecutors. A good example is the Organised that ensures binding interpretations of Crime Prosecution Office (see Section 2.1), case law, a mechanism should be intro- which deals with such cases involving high- duced by which the Supreme Court of er-level officials. However, even in this case

30 it is not clear to what extent the special de- domly to one of the judges specialised in the partments for Organised Crime at the High- area to which the case belongs (for exam- er and Appellate Courts in Belgrade to which ple organised crime). Exceptions to this are the OCPO corresponds are specialised; while only allowed if a judge is sick or absent for a there is a requirement that judges in the de- lengthy period, or has been issued a final dis- partments have a certain number of years ciplinary sanction for unjustified procrastina- of experience, the TI study notes that there tion from a proceeding. are no clear criteria such as training required, For prosecutors, the regulations on allo- while the deployment of judges to special cation of cases are contained in the Law on departments is decided by court presidents Public Prosecution, which defines the public or the HJC with no special criteria for such prosecutor as responsible for the organisa- decisions. In addition, the same study notes tion of the work of the office, and in the Reg- that corruption-related offences may be ad- ulation on Administration in the Public Pros- judicated by all courts of general jurisdiction ecution. Under the Regulation cases are “as a (i.e. basic, higher and appellate). (TI 2012, rule” allocated to prosecutors based on the 13). order in which they arrive, with cases allocat- Within the ordinary network of prosecu- ed in order of the list of prosecutors in alpha- tion offices and courts, there is a specialisa- betical order. However, the public prosecutor tion of prosecutors. On the basis of the Man- may deviate from this method of allocation datory instruction A number 194/10 from for reasons of work overload or the inability 26 March 2010, and in accordance with the of certain prosecutors, the specialisation of a new court network, anti-corruption depart- prosecutor in a particular area, “or if justified ments have been established in all appellate by other reasons”, although records must be and higher prosecutor’s offices. Although ac- kept on the allocation of cases. (Regulation cording to the data of the Republic Prose- on Administration, Article 42). cutor’s Office prosecutors are educated for Rules on the allocation of cases to judg- these type of cases, it still seems that there es or prosecutors must balance concerns is a lack of continuous training and capacity about improper influence on the one hand, which increases the risk that prosecutors and with the need to provide sufficient flexibili- judges involved will not be able to deal with ty to ensure that cases are allocated to pros- such cases effectively. The lack of any special ecutors or judges who are best qualified to status for such prosecutors and judges may hear them. The rules for allocation to judges also make them more vulnerable to improp- appear to strike this balance well. However, er influence in such cases, although special in the case of prosecutors, allowing the devi- procedures govern the processing of corrup- ation from standard rules of allocation “if jus- tion cases to ensure greater hierarchical su- tified by other reasons” establishes an excep- pervision (see Section 4.4.5). tion that is clearly much too vague.

4.4.2 Allocation of cases within courts 4.4.3 Collection of evidence and prosecution offices There are two main issues of concern In the courts, rules for the allocation of related to the recording and collection of cases are strongly formulated to ensure ‘ran- evidence. The first concerns the burden on dom allocation’ (see particularly Articles 24- resources in general caused by methods 25, Law on Judges and Articles 49-56, Rules of recording and collecting evidence. As of Court Procedure). Cases are allocated to noted in Section 4.2, the way in which both judges on the basis of the court schedule prosecution offices and courts physically of tasks. When a case arrives, it is allocated a process cases is quite burdensome in terms number and the case is then allocated ran- of the time spent by prosecutors and judges

31 on administrative and technical tasks. For 2012 study by Transparency International example, when collecting evidence from notes (TI 2012, 13), such methods may only witnesses or suspects/defendants, the be used for several criminal offences relat- provision of verbal evidence (e.g. questioning ed to corruption (abuse of authority, unlaw- a witness) is not recorded in full; instead, ful mediation, bribe accepting and bribe giv- prosecutors and judges dictate a summary ing), although the Criminal Code contains of the evidence as they have understood it several other important offences. These oth- to a recorder. er offences include abuse related to public procurement, abuse of official position by a There are two main problems with the responsible person and fraud in service, but method of collecting evidence described also notably violation of the law by a judge, above. First, it lengthens initial proceedings public prosecutor or his deputy. In relation to considerably and in the courts has the knock- this, it is important to note that the Law on on effect of lengthening appeal proceedings amendments and additions to the Criminal due to the absence of a complete recording Procedure Code (adopted on 8 April 2013) of the initial proceedings which may leave has introduced a possibility for special inves- the appellate court with no option but to or- tigative means to be deployed also for crim- der a complete rehearing. In particular, this inal offence abuse of office by responsible exacerbates the burden imposed by the new person and abuse in public procurement. Criminal Procedure Code on prosecutors (see Section 4.5). Second, it appears to open the While fears about the use of SITs are natu- possibility of evidence being manipulated ral in countries with a history of secret police or manufactured, although prosecutors stat- methods, these restrictions are likely to seri- ed that disputes over what is recorded as ev- ously hamper effective investigation of crim- idence are usually settled during the process inal offences of misconduct by judges and of recording. Experience in other countries prosecutors, as well as a wide range of cas- suggests that at a minimum it is likely to re- es in general. sult in disputes over what was provided as evidence, the circumstances in which state- 4.4.4 Status of support staff ments (for example confessions) were made, and so on. Conversely, the introduction of re- A concern and possible risk noted by cer- cording of all evidence by audio (or even bet- tain interlocutors is the fact that many court ter, video) removes both the risk of manipu- and prosecution staff (for example around lation or disputes. The NJRS Action Plan en- 900 administrative court staff, including visages as Strategic Guideline 5.3.3 (i.e. ob- some assistants) are employed only on tem- jective) of relieving the burden on judges porary contracts. Despite the concerns raised of administrative and technical tasks by re- in the previous sub-section, a number of im- assigning them to administrative and tech- portant tasks and functions are carried out nical staff and judicial assistants. This objec- by such staff, such as budget administration, tive is very much ‘medium-term’, with pro- allocation of cases in courts, etc. A long term cesses to establish working groups to deter- contract for judicial support staff is impor- mine the tasks to be transferred and the nec- tant if proper training is to be provided and essary changes in staff structure, prior to the the quality of work underpinned. In addition, development of proposals to change the le- court files are highly sensitive, and in crim- gal framework/regulations. inal cases especially they demand secrecy and extensive restraint on the part of anyone The second issue relates to the powers who comes into contact with them. For these of the police and prosecutors to use special and other reasons, support staff should be investigative techniques (SITs, such as wire- properly integrated into the career system of taps) to collect evidence on offences relat- the courts and judiciary, and specialised; in ed to corruption and abuse of office. As the

32 many countries, they even have special sta- reversed. Although this figure seems low, tus as civil servants. the RPO argued that the effect of the mech- anism is mainly preventive and its effective- ness can’t be measured by such figures. 4.4.5 Anti-corruption Departments/ monitoring of high-risk cases While the procedures established by the mandatory instruction appear to provide In the Prosecution, a Republic Prosecu- significant guarantees in the sense of hier- tor’s Office mandatory instruction issued in archical review of sensitive decisions, there 2007 and updated in March 2010 mandates are issues of concern with the mandatory in- the following: struction. For one thing, the term “corruption hh The establishment of anti-corruption crime” is not defined, except to state that it and anti-money laundering departments includes “white-collar crimes related to cor- (ACDs) at each appellate and higher pros- ruption”. It is therefore unclear whether the ecution office. All Higher Prosecutors cases to be monitored are only explicit brib- must assign a deputy prosecutor to moni- ery cases, or include abuse of office, fraud, or tor the status of corruption cases, and one other misconduct offences. or several deputies to monitor AML cases. Moreover, it should be noted that con- hh Higher and Basic POs must keep special cerns about political influence on the pros- records (special marking of cases in the ecution service are of particular relevance register of cases) and inform the RPO im- here. If the concerns noted in Section 4.1 mediately on criminal complaints (re- over the vulnerability of prosecutors to polit- ports) of corruption crimes; higher POs ical pressures and influence are well-found- are to do this also for money laundering ed, hierarchical control mechanisms with- offences. For money laundering offenc- in the prosecution may work as a ‘dou- es, a copy of the relevant financial trans- ble-edged sword’, i.e. they could be used to action report is to be attached to the no- ensure that cases affecting the interests of tification. politicians or those they have a motive to hh Decisions to dismiss crime reports or protect are not processed as they should. cease prosecution after the completion of This underlines again the importance of en- an investigation are to be made in panels. suring that the system for appointment and hh Where a prosecution is ceased by a deci- governance of the prosecution and judiciary sion of a single prosecutor, the decision ensures that judges and prosecutors are suf- must always be reviewed/controlled by a ficiently shielded from such pressures. panel. The experts had the impression that, de- hh The Instruction concludes “Prior to deci- spite the existence of the mandatory in- sion-making, active cooperation with oth- struction, the role of ACDs was not interpret- er agencies is needed to ensure efficient ed in the same way by all prosecutor’s offic- proceedings. es. While members of the ACD at the Repub- Interlocutors from the ACD of the Repub- lic Prosecutor’s Office stated that the depart- lic Prosecutor’s Office stated in addition that ment deals primarily with corruption pre- decisions in such cases the ACD at the RPO vention within the institution, according to reviews draft decisions, and if it disagrees prosecutors at one other ACD the purpose will return them to be reconsidered. Accord- of these procedures is not explicitly to de- ing to the RPO, since 2007 around 10% of cas- tect corruption among prosecutors, but to es have been returned, most for formal defi- ensure that corruption-related cases are pro- ciencies. Of the cases returned, around 2-3% cessed properly and on a consistent basis by of draft decisions were changed - meaning different prosecutors. around 0.2-0.3% of all decisions have been

33 ACDs are also obliged to deal with com- office - thereby removing the catch-all plaints forwarded to them by the Anti-cor- category of “other reasons”. ruption Agency (ACA), as well as complaints 13. Necessary legal amendments should about judges and prosecutors. Criminal com- be passed, and sufficient budgetary re- plaints against judges are processed by the sources provided, so that prosecution relevant Higher Prosecution Office, and the offices and courts introduce recording of ACD reports the results to the RPO, which the collection of evidence from witness- may check the case and issue orders to the es or suspects and of court proceedings prosecutor dealing with the case. Accord- as standard procedure. ing to the ACD of one higher prosecution of- 14. Amendments to the Criminal Proce- fice, complaints forwarded by the ACA are dure Code should include provisions to numerous and not screened in any way, and ensure that special investigative tech- prosecutors implied that much time is wast- niques may be used for a sufficient range ed as a result of them. of serious offences, including in particu- lar corruption-related offences, par- 4.4.6 Expert witnesses ticularly those involving misconduct by judges, prosecutors or other office-hold- Expert witnesses are a key component of ers. a well-functioning courts system, providing 15. Interim measures should be taken to al- expertise that may often be decisive in shap- low the transfer of some administrative ing court verdicts. It is vital that expert evi- and technical tasks to technical/support dence is and is seen to be independent, ob- staff and judicial associates. jective and unbiased. One concern raised by judges interviewed during the on-site field 16. Measures should be taken to ensure that visits was the inadequacy of the current reg- technical/support staff, including judi- ulatory framework for expert witnesses. For cial and prosecutorial assistants, are em- example, it was mentioned that expert wit- ployed on a basis that is commensurate nesses often submit opinions of insufficient to their responsibilities. quality, whereupon a court will hire them 17. Amendments to the Law on Expert Wit- again to complete the work, effectively pay- nesses - and if necessary an implement- ing them twice or more for the same work. ing regulation - should ensure that cri- Ministry of Justice interlocutors identified teria for appointment and for payment the appointment of expert witnesses as one of fees are clear, that appointments are of the main corruption vulnerabilities in the openly publicised, and that standards of Serbian judicial system. Measure 3.5.2.1 of conduct of expert witnesses are clearly the NJRS Action plan is to draft amendments regulated. to the Law on Expert Witnesses to place more emphasis on expertise and competence in 4.5 Reforms of Criminal Procedure the criteria for their appointment - again, a Criminal procedure has undergone fun- “long-term” measure with no defined imple- damental reform in Serbia with the adoption mentation date. of a new Criminal Procedure Code (CPC) in 2011. The Code came into effect for proceed- Recommendations: ings falling under the special prosecution offices for war crimes and organised crime 12. The Regulation on Administration in the from January 2012, and from 1 October 2013 Public Prosecution should be amended for all other proceedings. Until the new Code to clarify exhaustively under what cir- came into effect, judges were responsible for cumstances public prosecutors may de- investigation, with their function being to viate from the standard procedure for al- determine the facts of the case. Under the locating cases within their prosecution

34 new system, this role has been transferred to the interests of justice are understood the prosecutor, who directs all aspects of the in this case as being where the offence investigation and is responsible for taking in question carries a possible prison equally into account evidence that is incrimi- sentence. The NJRS 2013-18 (Measure nating or in favour of the defendant. The role 2.5.1.5) envisages “the possibility of of the court is to reach a verdict based on the amending the Criminal Procedure Code submissions of the prosecution and defence, - amendments to Article 77 that would rather than establishing all facts of the cases provide for bigger guarantees for the - in short, an adversarial system. exercise of the right to a fair trial, especially regarding underprivileged persons”, but While many accept the need to reform the there is no unequivocal commitment to previous Criminal Procedure Code, the con- ensure free defence counsel for persons tent of the new CPC was widely criticised by charged with offences carrying a possible the legal community even prior to its adop- prison sentence. Moreover, Serbia has tion. Around 250 amendments to the draft still not established a system of free legal Code were agreed by a working group of the aid as required by the 2006 Constitution; Ministry of Justice but were not adopted as however, the NJRS envisages a set of steps part of the final approved law. The main ob- to achieve the latter (objective 2.5.1), and jections to the Code have been the follow- a draft law was under discussion as of the ing: end of 2013. hh The new CPC provides extensive new dis- hh The CPC does not establish any rules of cretionary powers to the prosecution. evidence, an important component of Prosecutors can open an investigation a well-functioning adversarial system in without the knowledge of a suspect for which prosecutors rather than judges are an unlimited period of time, and may halt in charge of investigations. This increases an investigation or not initiate proceed- the likelihood that prosecutors will adopt ings, with neither the court nor superior inconsistent approaches to evidence col- prosecution office holding any power to lection in similar criminal cases, and by reverse such a decision. Senior ministry extension creates scope for corrupt influ- officials suggested that even in the first ence on prosecutors to use or reject cer- month of implementation of the CPC it tain types of evidence. was a problem that judges cannot reverse It should be noted that the key objection a prosecutorial decision to drop a case. All above - on the lack of a mechanism for ju- interlocutors including prosecutors ac- dicial review of prosecutorial decisions - in- knowledged that the expansion of un- volves complex issues in the transition from checked discretionary prosecutorial pow- an inquisitorial system to an adversarial one. ers represents a corruption risk. In an inquisitorial system it is logical for the hh Under Article 77 of the CPC, where a judge to have a role in overruling prosecu- defendant cannot afford the cost of a torial decisions not to prosecute, in particu- defence counsel, a counsel is appointed lar; in a fully adversarial system (such as in and the costs paid by a court for cases with the UK or Ireland) few would be in favour of minimum sentences of 3 years or more. such a role. The question is however, what This article appears to be out of line with provisions are desirable in a country that is Article 6 of the European Convention on in a transition from one system to the oth- Human Rights (ECHR), according to which er, and where therefore there may be a risk anyone charged with a criminal offence that prosecutorial conduct does not fulfil the has the right to be provided with free legal standards necessary in a fully adversarial sys- assistance where he/she cannot afford it tem. In this situation, an intermediary solu- and “the interests of justice so require”; tion to maintain judges’ ability to have some

35 redress against prosecutorial decisions may es to bring rather than prosecuting every sin- be wise (see Recommendation 18). The im- gle charge; cases where a serious sentence is portance of such a solution is increased by unlikely, for example because of the age or the concerns over prosecutorial independ- state of health of the suspect, or perhaps ence. The Republic Prosecutor’s Office and where the suspect is already serving a sen- other prosecutors argue that risks of miscon- tence for a similar or related offence; cases duct by prosecutors in important cases are where there has been a long delay; the dan- mitigated by special procedures for inves- ger to a witness if a case proceeds or the like- tigations/prosecutions of corruption-relat- ly effect on the health of a witness. ed offences. These procedures appear to en- sure a significant degree of control over deci- The opportunity principle applies in all sion-making in corruption-related cases (see common law countries and in many civil law Section 4.4.5), but as noted earlier, political jurisdictions, including France and the Neth- influence could make such procedures a tool erlands, and there is no serious evidence for ensuring political control rather than one that criminal proceedings are more suscep- for ensuring good conduct. tible to corruption in these countries than in countries where the legality principle ap- plies. Nevertheless, while both plea-bargain- 4.5.1 Plea-bargaining and the ing and the use of the opportunity princi- opportunity principle ple may be important mechanisms for mak- One of the aims of the CPC has been to ing criminal proceedings more efficient, streamline criminal proceedings by expand- the extra discretion they give prosecutors ing the use of the institutions of plea-bar- in pre-trial proceedings may appear to cre- gaining - where the prosecution or the court ate risks of prosecutorial misconduct. In the reduces the sentence requested by the pros- case of plea-bargaining the judicial supervi- ecutor or imposed by the court for a crime sion over the process should minimise this in return for cooperation by the accused, and risk. Concerning the opportunity principle, the principle of opportunity, whereby prose- the experts were informed that the practice cutors may decide not to prosecute a case if in Serbia is to refer the case to a superior be- they believe it is not opportune. fore invoking the opportunity rule. This pro- vides a safeguard against corruption. A fur- Concerning the opportunity principle, un- ther safeguard would be to develop written der the legality principle (previously the law) guidelines as to the factors which might or the prosecutor must in principle prosecute might not be considered. every case in which he has evidence to show the accused committed an offence. Under Plea bargains are becoming an increas- the opportunity principle, even though the ingly important phenomenum in criminal evidence may be there the prosecutor has proceedings. The Organised Crime Prosecu- a discretion not to prosecute where there is tor’s Office reported a big increase in plea no public interest in doing so. Where the op- bargains - from 3 in 228 cases investigat- portunity principle applies it will, however, ed in 2010 to 58 out of 150 cases from Janu- almost always be the case in relation to se- ary to October 2013. The introduction of the rious cases that there is an overwhelming new system of plea-bargaining has much to public interest in prosecution. The sort of cir- recommend it. A well-functioning system of cumstances which in practice are most like- plea-bargaining will encourage early pleas, ly to lead to a public interest decision not thereby reducing the time taken to hear cas- to prosecute include minor offences, espe- es, saving judicial and prosecution resources cially when committed by a first offender which in turn reduces the backlog in courts or a juvenile; cases where multiple offences and delivers speedier justice to all the partic- have been committed, where the prosecu- ipants in the system. Some of the more obvi- tor chooses a representative sample of cas- ous problems with such systems have been

36 avoided in the Serbian reform. There is ju- 4.5.3 Training dicial oversight over the system in that the judge may not accept a plea without being In addition to issues over the content satisfied that the prosecution case is made of the Code itself, concerns have also been out. Under the Serbian system the judge re- raised by both judges and prosecutors over tains control over the sentencing process. the provision of insufficient training pri- or to the CPC coming into effect. The judg- However, the system is not likely to lead es and prosecutors interviewed stated that to early pleas unless the accused person sees 1-2 trainings were provided, and were not some advantage in an earlier plea of guilty in based on concrete case scenarios. Ministry of the form of a lesser sentence than he would Justice officials conceded that there was not otherwise receive. The experts heard much enough time to train prosecutors or judg- evidence that the system is not leading to as es properly. On the other hand, the Judicial many pleas as anticipated because prosecu- Academy claimed that very few prosecutors tors cannot clearly offer defendants a signif- turned up to the first of two main trainings, icantly lower sanction than they would re- in the expectation that the date the CPC was ceive if they plead not guilty. This is exacer- to come into effect would be postponed. bated by a lack of predictability in sentenc- ing by courts (linked to the unpredictabili- To conclude and place the analysis of the ty of case law discussed in Section 4.3). The new CPC in context, the law until amend- appeal courts appear to be reluctant to lay ment has created a system that introduces down sentencing guidelines or principles. aspects of an adversarial system but requires The NJRS 2013-18 envisages amendments some further safeguards to ensure that sys- to the CPC aimed at strengthening the role tem works justly - with particular concerns of the Public Prosecutor’s Office to active- over the equality of arms of prosecution ly make corrections of the penal policy (pro- and defence, and specific risks of abuse of pose the gravity of penalties).” the new powers. In addition, a key issue is the fact that the CPC has introduced a major transfer of powers from the judiciary and the 4.5.2 Control over investigations: relation police to the prosecution while preserving a between the Prosecution and the system of governance that fails to guarantee Police the independence of prosecutors. Third, the new system has been introduced without Concerning the supervisory role of the paying sufficient attention to the resource prosecution over investigations, another im- needs of the prosecution. portant problem that was raised during in- terviews was the lack of powers of the pros- ecution vis-a-vis the police, whom the pros- Recommendations: ecution now directly supervises and directs in criminal investigations. While prosecutors 18. Following the coming into effect of the may issue orders to police, these are not en- new Criminal Procedure Code, in order forceable because the latter are accountable to balance the rights of the defence and to the Director of Police and Minister of Inte- prosecution and lessen the probability rior. This appears somewhat dysfunctional in of arbitrary or abusive decisions by principle in a system where the prosecutor is prosecutors, mechanisms to keep responsible for - and therefore expected to prosecutorial discretion in check should control - investigations. be established. These should include i) a mechanism by which judges may require a prosecutor to reconsider decisions such as not to open a procedure or drop charges, in a process explicitly involving the superior prosecution office;

37 ii) sufficiently detailed rules of evidence; 4.6 Mechanisms to assess iii) internal guidelines on conduct performance and counselling/advice channels (see Recommendation 32). At the time of the field work conducted for this assessment, the framework for new 19. Article 77 of the Criminal Procedure Code systems of performance evaluation was in should be amended to ensure the right the process of establishment for both courts to a free defence counsel for any person and prosecutors. The Law on Public Prosecu- charged with an offence for which he or tion provides for three-yearly evaluation of she is liable to be imprisoned and who prosecutors. Evaluations culminate in three does not have the means to pay for a possible ratings: “performs the prosecutori- lawyer. al function exceptionally”, “satisfactory per- 20. Regarding plea-bargaining, a mecha- formance of prosecutorial function”, and “un- nism needs to be found to ensure that satisfactory performance” (Article 101, Law there are sentencing principles and that on Public Prosecution). These may be used courts are required, in the case of an ear- as grounds/criteria for election, mandato- ly plea of guilty, to impose a lesser sen- ry training and dismissal (Article 99). The tence than they would following a ful- Law delegates to the SPC the task of defin- ly-fought trial, perhaps of the order of ing more clearly the criteria for performance one-quarter or one-third discount. The evaluation. As of November 2013 a draft appeal court could be given a remit to Rulebook on Performance Evaluation Crite- set out general principles relating to sen- ria for Public Prosecutors and Deputy Public tencing with an obligation on trial judg- Prosecutors had been completed. In the case es to give due weight to those princi- of judges, amendments to the Law on Judg- ples. Alternatively, a sentencing adviso- es are expected to define the framework ry body could be established to perform for performance evaluation, presumably in this task. a similar fashion as the Law on Prosecutors. 21. Written guidelines should be issued for The HJC had drafted a Rulebook similar to prosecutors on the application of the op- the one for prosecutors had also been draft- portunity principle (see footnote num- ed at the time of the on-site field visits, en- ber 2). visaging four possible ratings for judges: “ex- 22. Much more training should be provid- ceeds requirements of judicial office”, “meets ed to prosecutors and judges on their requirements of judicial office”, “satisfactory” role and duties under the new CPC, in or- and “not satisfactory “. der to ensure that prosecutors and judg- Both draft rulebooks establish a complex es are equipped to perform their func- system of quantitative and qualitative cri- tion in a manner that is appropriate for teria for deriving the evaluation scores for an adversarial system that a recently in- judges and prosecutors. Criteria vary slightly troduced ‘graft’ onto a different legal tra- between different categories of prosecutor dition. In particular, training for prose- and judge. The following examples are suffi- cutors should underline that they have cient to illustrate, and are taken from the cri- now an obligation to safeguard the teria for judges at basic, higher and commer- rights of defendants in adversarial pro- cial courts, and deputy public prosecutors: ceedings which are no longer subject to the same judicial oversight as before. hh For judges quantitative criteria include 23. The requirements of the CPC in terms of the number of decisions taken per month resources should be a key input into de- compared to the ‘minimum month- termining resource requirements for the ly norm’. If the number of cases is to be judiciary and prosecution (see Recom- counted then the weight and complexi- mendation 6). ty of cases has to be assessed. Qualitative

38 variables include the number of cases of a On a more positive note, professional com- given judge that were reversed on appeal. mitment and cooperation constitute a third This is fundamentally objectionable as in- component of the overall score; one sub-com- compatible with the independence of the ponent of this is rated positively if “at the main judge, ‘Quality of drafting of judicial deci- hearing they act responsibly in presenting sions and skill in conducting proceedings’ cases assigned to them according to the ros- comprises sub-components such as “clari- ter; their decisions are competently substan- ty, conciseness and articulation of written tiated, precise and coherent, well-structured, reasoning of decisions”; “time for draft- clear; they can successfully adapt to a con- ing of decision”; “manner of conducting crete procedural situation; they typically show proceedings - rationality, timeliness and initiative in the proceedings.” granting priority to urgent proceedings and old cases”; and “number of open tri- Evaluations are conducted by the imme- als and hearings before second-instance diately superior prosecutor (in the cases of court in respect [proportion] to the num- prosecutors with special jurisdiction, the Re- ber of reviewed decisions.” publican Public Prosecutor), or a committee from the superior court. The HJC evaluates hh For prosecutors, quantitative criteria in- presidents of courts. For prosecutors and clude the ratio between the number of deputy prosecutors, performance may be assigned cases and the number of cases subject to an unscheduled evaluation on de- in which a deputy public prosecutor has cision of the SPC. rendered a decision in the course of the evaluation period. This takes no account The experts have significant concerns of cases where the correct response is to over the proposed evaluation system, some leave a file open without taking a final de- of which are based on European norms and cision. It is likely to lead to over-hasty and best practices11: therefore bad decision-making. hh The proposed rules attempt to quantify hh ‘Qualitative’ criteria include the ratio be- criteria as much as possible, even ‘quali- tween final convictions and final acquit- tative’ indicators, and the experts doubt tals for cases charged by the prosecutor whether such criteria - for example, the (with an 80% ratio or above evaluated as time taken to reach decisions - can be con- satisfactory, or successful depending on sidered fair unless they are carefully inter- which translation is used). This is a partic- preted in context - for example, taking ularly inappropriate measure. Any prose- cutor can get a “success” rate near to 100% 11 In particular, Council of Europe Parliamentary Assem- just by not prosecuting the difficult cases! bly (PACE) Recommendation no. 1604 (2003) 1 (Role Furthermore, it puts pressure on a prose- of the public prosecutor’s office in a democratic so- cutor to seek convictions even where the ciety governed by the rule of law); Council of Europe evidence does not warrant such a result - Committee of Ministers (COM) Recommendation no. in a clear breach of the most fundamental R (87) 18 (Declaration of Bordeaux), COM Recommen- dation no. R (94) 12 (on the independence, efficiency ethical duty of the prosecutor. These mea- and role of judges), European Charter on the Statute sures will do nothing to improve prosecu- for Judges, adopted in Strasbourg, 8-10 July 1998, tors’ performance - they will reward the COM Recommendation no. R (2000)19 (Role of Public timid prosecutor and penalise the consci- Prosecution in the Criminal Justice System, COM Rec- entious. The time-servers and clock-watch- ommendation no. (2012)11 (Role of the Prosecutors ers will have no difficulty massaging their outside the Criminal Justice System), Opinion no. 3 of scores to achieve top results. If these indi- the Consultative Council of European Judges (On the Principles and Rules Governing Judges’ Professional cators are to be counted at all they should Conduct, in Particular Ethics, Incompatible Behaviour be used with great caution and on a pure- and Impartiality), Report of the European Commission ly indicative basis rather than being treat- for the Efficiency of Justice on the European Judicial ed as determinative. Systems, Edition 2012.

39 into account whether a judge/prosecu- lic Prosecution) establishes processes for tor had a higher-than-usual workload of appealing performance evaluation deci- difficult cases, etc. In this case, allocating sions to the SPC. However, it does not es- scores is likely to become a highly compli- tablish any mechanism by which prose- cated exercise. More generally, quantita- cutors may provide input and feedback tive indicators may not be accurate indi- on their evaluation during the process cators, while qualitative indicators are al- of evaluation, nor any mechanism for ap- most inevitably more subjective. pealing performance evaluation find- hh In particular, the evaluation criteria rely ings to a court, contrary to international significantly on statistics for judges and recommendations such as Committee of prosecutors on the ‘success’ of their cases Ministers Recommendation R(2010)12. - namely, the number of decisions that are reversed on appeal (in the case of judg- es) or resulting in conviction (prosecu- Recommendations: tors). As the Consultative Council of Eu- 24. Criteria for the evaluation of judges and ropean Judges has underlined (Opinion prosecutors’ performance should be es- no. 6 (2004)), “[T]he use of reversal rates tablished in a consensus-based manner, as the only or even necessarily an import- i.e. through extensive consultation with ant indicators to assess the quality of judi- cial activity seems inappropriate...”. As the those to be evaluated as well as other Consultative Council of European Judges legal professionals. They should not in- (CCEJ) also underlines, evaluation of the clude indicators that depend on other quality of justice should not be confused factors than judges’ performance, unless with evaluation of the professional ability these factors can easily be taken into ac- of every single judge. Although the exam- count and controlled for in the process ple concerns judicial decisions, the same of evaluation. argument applies to the use of conviction 25. Reflecting the recommendations in Sec- rates as a criterion for evaluating judges. tion 1, it is essential that the full inde- hh In the case of prosecutors, the fact that pendence of the HJC and SPC are es- evaluations serve as criteria for promo- tablished if they are to perform the role tion if “successful” or “exceptional”, and of appeal body in performance evalua- as grounds for dismissal if “unsatisfacto- tions. ry”, and the fact that the SPC may initiate 26. Responses to poor evaluation scores evaluations outside the usual three-year cycle raises significant concerns about should be made on a case-by-case basis, possible harassment or pressure given and should not automatically lead to dis- the concerns over independence already missal. The consequences of mediocre or set out in this assessment. Several pros- poor performances should be widened ecutors specifically expressed fears that to allow for example compulsory train- the new evaluation system will be used to ing to address skills or knowledge gaps. target prosecutors, and that difficulties in 27. Procedures for issuing evaluations of implementation of the new CPC will facil- prosecutors and judges should include itate this. Indeed, evaluation of both pros- mechanisms by which those evaluat- ecutors and judges must be conducted ed have a chance to provide feedback by bodies that are independent, which in on their evaluation during the process, the Serbian case is not currently the case if the assessment of the HJC and SPC in as well as clear opportunities to appeal Section 4.1 is accurate. evaluation findings to a court. hh The current legal framework (Law on Pub-

40 4.7 Integrity Plans out a risk assessment. Based on this assess- ment, staff responses to the questionnaire, Under the Law on the Anti-corruption assessment of relevant regulations and inter- Agency, every public institution is obliged to views with employees, the working group fi- develop an ‘Integrity Plan’ of “legal and prac- nalises the integrity plan. According to ACA, tical measures which prevent and eliminate once integrity plan is completed and upload- possibilities for the occurrence and develop- ed, the system automatically generate meas- ment of corruption”, in particular: ures that could be undertaken to mitigate hh Assessment of exposure to corruption for the identified risk. Institutions are obliged to a particular institution; revise their integrity plans every three years. hh Description of the work process, decision The experts have mixed feelings concern- making procedures and identification of ing integrity plans. While the idea of an integ- activities which are particularly exposed rity plan is a laudable one, the way in which to corruption, as well as tasks and activi- this is carried out in practice in Serbia does ties, i.e. functions an official may not per- not appear to be functional at all. In particu- form during discharge of public office and lar: manner of control thereof; hh It is not clear why every individual institu- hh Preventive measures for the reduction of tion within a sector should produce an in- corruption; tegrity plan, or that this is an effective way The ACA has issued guidelines for the de- of designing policy. For the judiciary and velopment of integrity plans, which are spe- prosecution, this means that every single cific to different areas of public administra- court from basic to Supreme produces a tion. In general, the templates have 6-7 areas separate plan, with no apparent coordina- that are common to all institutions, and 1-2 tion within the sector. The fact for exam- that are specific to each sector. For example, ple that the HCJ (and/or Supreme Court for the judiciary the template has seven com- of Cassation) and SPC /Republic Prosecu- mon sections (areas that are included for any tor’s Office are responsible for producing institution): Management of the institution; integrity plans only for themselves rath- Management of finance; Management of er than for the judiciary/prosecution as a public procurements; Documentation man- whole appears illogical. agement; Management of human resourc- hh The template produced by the ACA for es; Security; and Ethics and Personal Integ- the judiciary and prosecution appears rity. The last area is further subdivided into: to be so prescriptive and detailed that it conflict of interest; acceptance of gifts; effec- leaves little or no discretion for these in- tive reaction to reported cases of corruption stitutions to identify risks themselves, and and unethical or professionally unacceptable therefore little incentive for them to think behaviour; and protection of whistleblow- pro-actively about preventing and ad- ers. In addition, the judiciary has one institu- dressing misconduct. tion-specific section, „Case management“. Taken together, these problems appear to For all sections, risks are divided into three have encouraged a formalistic ‘rubber stamp’ parts - ‘regulations’, ‘staff’ and ‘practice’. The approach by courts and prosecution offic- ACA distributed questionnaires to all courts es. Judges and prosecutors were either not and prosecution offices (as it did to all pub- aware of whether their court/PO had submit- lic institutions) to circulate anonymously in ted an integrity plan already, or were large- electronic form to prosecutors, judges and ly dismissive of it as a a formal ‘administra- other staff. Apart from completing the anon- tive exercise’. In addition, despite an original ymous questionnaire by the employees, a deadline of 31 December 2012 that was ex- separate working group is assigned to carry tended to 31 March 2013, not all institutions

41 had submitted one as of December 2013 - in- predetermining the issues to be solved cluding for example the High Judicial Coun- and even measures to do so. In addi- cil. tion, the guidelines should be amend- ed so that Integrity Plans are not nar- In terms of content, there appears to be rowly focused on ‘preventing and fight- a gap between the risks identified by Integ- ing corruption’, but more broadly orient- rity Plans on the one hand, and the real risks ed towards underpinning integrity and on the other. For example, the Republic Pros- good conduct - only one component of ecutor’s Office stated during the expert vis- which is anti-corruption policy in a nar- it that the ‘weakest links’ in the prosecution row sense. system are risks of prosecutors either drop- 30. Institutions should be obliged to update ping cases before investigation or discontin- Integrity Plans either at more regular in- uing cases during an investigation. The RPO tervals12, or in response to circumstanc- Integrity Plan however does not appear to es as they arise - for example, the com- mention this issue, and reads more like a for- ing into effect of the new Criminal Pro- mal checklist in which almost no problems cedure Code. are acknowledged. Although the RPO intro- duced a mandatory instruction in 2007 to 4.8 Conflict of interest and address risks in case management/process- regulation of standards/ethics ing (see Section 4.4.5), it would be logical for an Integrity Plan to summarise the state of Both judges and prosecutors in Serbia are play in terms of how well the risk has been subject to extensive regulations to prevent addressed and what further measures if any situations of conflict of interest arising, en- need to be taken; the RPO Integrity Plan sure that such situations are addressed ap- does not do this, however. Members of the propriately when they arise, and to promote Supreme Court of Cassation did not seem fa- and enforce standards of conduct in general. miliar with the content of their Integrity Plan, In particular: and the Plan identified no risks at all under the category of Case Management. hh The Law on the ACA defines conflict of in- terest in a standard way as a “situation where an official has a private interest Recommendations: which affects, may affect or may be- per ceived to affect actions of an official in dis- 28. The duty to formulate Integrity Plans charge of office or official duty in a manner should not be imposed on all individual which compromises the public interest” institutions of a sector, but only on those (Article 2). It prohibits the holding of vari- with an important coordinating role. For ous external positions, and obligates offi- the judiciary this should be the HJC or cials to declare to the Agency any doubts HJC together with the Supreme Court of concerning a possible conflict of interest. Cassation; for the Prosecution it should The Agency may request information from be the SPC together with the Repub- the official, notifies him/her and his/her in- lic Prosecutor’s Office, given the impor- stitution if it determines there is a conflict tant role played by the latter already in of interest, and recommends measures to overseeing anti-corruption mechanisms the institution in which s/he works to ad- within the prosecution. dress/resolve such conflicts. 29. The template for Integrity Plans should be altered to make it less prescriptive, 12 Although Article 19 of the Guidelines for Integrity and in particular to provide specific insti- Plan Development states that the head of institution may request the preparation of integrity plan earlier/ tutions with guidelines and a framework between these intervals and when he/she estimates for how to think about specific problems that the integrity of institution is compromised, this within their own institutions, rather than remains to be an optional/discretionary right only.

42 hh The laws on Judges (Article 30) and Pros- which judges or prosecutors may seek ad- ecutors (Section 5) contain clear prohibi- vice/counselling on appropriate conduct in tions on external activities that may com- particular cases. The Judicial Academy does promise impartiality, duties to notify su- provide five days of training on ethics as part periors of activities that may do so and re- of the introductory training at the Academy quest exclusion from processes, as well for future prosecutors and judges, but does as the duty to adhere to their respective not provide training on ethics and conduct codes of ethics. to judges and prosecutors on an on-going hh The Code of Ethics of Judges was ap- basis. The HJC has undertaken the prepara- proved by the HJC in December 2010, tion of a permanent curriculum component and the Code of Ethics of Prosecutors in on this subject with participation of the HJC October 2013. The Codes contain exten- disciplinary prosecutors. sive and comprehensive rules and exhor- tations to good conduct. For prosecutors, Recommendations: the Regulation on Administration in the Public Prosecution also contains many of 31. Judges’ and prosecutors’ rules and stand- the same or similar provisions. ards of conduct, such as those in the codes of ethics should be disseminated The formal legal framework for ensuring more actively by the HJC and SPC, and good conduct is satisfactory. It might even the curricula of the Judicial Academy be argued that there is more than enough should be revised to include ethics and regulation, with the laws on judges and standards of conduct as a permanent prosecutors, codes of ethics and prosecutori- component of ongoing training of judg- al regulation overlapping considerably with es and prosecutors. provisions of the Law on the Anti-corruption 32. Internal guidelines and mechanisms for Agency. However, the Code of Ethics of Judg- advisory services (providing advice to es does not appear to have been disseminat- prosecutors on appropriate conduct ed actively. Judges at two different higher on request) within Prosecution Offices courts were not sure that the Code had even and courts should be introduced. Train- been approved, for example. In addition, ing should also cover these guidelines the content of both codes of ethics is ori- through real-life scenarios, such as eth- ented heavily towards ‘exhortation’ to good ical dilemmas and attempts at improp- conduct, and there is no guidance with- er influence. Training should also in- in the codes on how judges or prosecutors volve attorneys and lawyers, in order to should behave in situations where they are encourage common values in the new subject to improper approaches, pressures criminal procedure system. or threats. For prosecutors, there is a provi- sion (Article 4) of the Regulation on Adminis- 4.9 Sanctions and disciplinary tration in the Public Prosecution stating that proceedings prosecutors must inform the Republic Pub- lic Prosecutor through his/her superior pros- The performance by judges and prosecu- ecutor of “any impact made by executive or tors of activities that violate the legal provi- legislative authorities on the performance sions on activities incompatible with the per- of the Public Prosecutor’s Office”. Howev- formance of function, engagement in inap- er, there is no guidance for either judges or propriate relations with parties to proceed- prosecutors on how to respond to improp- ings of legal counsels, and serious violations er approaches or pressures, or what proce- of the Code of Ethics are disciplinary offenc- dure should be followed in reporting such es (Article 104, Law on Public Prosecution; approaches. Nor are there clear mechanisms Law on Judges, Article 90). Sanctions can be within the prosecution or judiciary under a public reprimand, salary reduction of up

43 to 50 % for a period not exceeding one year, tions. In total the ACA receives declarations or prohibition of advancement for a period from around 34,000 public officials. In 2013 of up to three years. Where a judge is found it checked 496 declarations, and its Annual guilty of disciplinary offences three times, Plan stated that it would verify the declara- or whose violation caused “a serious disrup- tions of all judges of the Supreme Court of tion in the exercise of judicial power or regu- Cassation and commercial courts. In 2013 the lar duties at the court or a severe damage to Agency initiated 9 criminal charges against the dignity of the court or public trust in the officials for failing to submit declarations or judiciary, and in particular if it results in the providing false information, out of which (as statute of limitations causing serious damag- of January 2014) 2 indictments were raised, es to the property of the party in proceed- investigations are running in 5 cases and ings”, the Disciplinary Commission is to insti- prosecutors are considering 2 charges. In the tute dismissal proceedings. The Law on Pub- same period the ACA filed 12 misdemeanour lic Prosecution also establishes similar cat- charges against officials who failed to sub- egories of similar and repeated offences as mit declarations within the deadlines, lead- grounds for dismissal (Article 104, 92). ing (as of January 2014) to 5 convictions and 2 cases suspended. The laws cited in Section 4.1.6 together with judges’ Rules on Disciplinary Proceed- The main problem for the ACA appears to ings (approved by HJC in September 2010) be ensuring access to the information held and prosecutors’ Rules on Disciplinary Pro- by other public authorities (such as land reg- ceedings (approved by the SPC in July 2012) ister, vehicle registration etc.) it needs to ver- establish clear frameworks for addressing ify declarations properly. The ACA does not disciplinary violations, notably: Disciplinary have automatic access to such databases, al- Prosecutors and Disciplinary Commissions though memoranda of understanding have established by both the HJC and SPC (for the been concluded with several other institu- HJC, the Disciplinary Prosecutor is appointed tions (Tax Administration, Serbian Business from among judges). Registers Agency, Republic Geodetic Author- ity, Central Securities Depositary and Clear- The experts regard it as too early to make ing house) to ensure direct access to certain an assessment of implementation of the new type of data. In addition, negotiations for the disciplinary system. However, as with other conclusion of similar memoranda with the issues covered in this assessment, there are Ministry of Interior and the Customs Admin- potential concerns about the ability of the istration are underway. HJC and SPC to perform their key roles in the disciplinary system with legitimacy, and con- cerns over the independence of judges and Recommendation: autonomy of prosecutors are particularly rel- 33. In accordance with Objective 3.1.2.4 of evant here (see Section 4.1). the Anti-corruption Action Plan, the nec- essary legal amendments and institu- 4.9.1 Declarations of assets and income tional steps should be implemented in order to ensure the ACA has access to Another important mechanism for pre- other public databases of property, as- venting and detecting venal misconduct is sets and income of public officials. the system of declarations of assets and in- come to the Anti-corruptionAgency. All pros- ecutors and judges must submit such dec- larations on assuming and leaving office, and must notify any changes on an annu- al basis. The ACA may conduct verifications (i.e. checks of the accuracy) of the declara-

44 deficiencies in the systems for appointment CONCLUDING REMARKS of judges and especially prosecutors, and in the system of governance of the two branch- On the evidence and testimonies and es raises acute risks of encroachment of po- opinions heard during the research for this litical pressures on the processing of cases, assessment, there is little evidence of ve- and especially cases that concern politicians nal misconduct among prosecutors or judg- or persons they have an interest in protect- es. However, poor conduct should be under- ing. The same systems of governance also stood in a much wider sense as i) not restrict- preclude the performance by the two key ed to corruption but also covering other in- governance bodies of their key functions in dividual categories including incompetence, a manner that would command legitimacy and ii) conduct that is the result of pressure, and therefore be effective. Second, a number including political influence. On this wider of other issues and factors - notably a lack of understanding, legal and institutional struc- resources together with the impact of legal tures, established patterns of their imple- and institutional changes - place considera- mentation and the political context exhibit ble practical obstacles in the way of prosecu- important gaps in both preventive and mit- tors and judges performing their functions igative mechanisms to minimise the risks of optimally. poor conduct. The Serbian National Judicial Reform First and foremost, while many mech- Strategy 2013-2018 (and to a lesser extent anisms for ensuring good conduct and/ the National Anti-corruption Strategy 2013- or preventing poor conduct are adequate, 2018) contains a large number of objectives their proper implementation requires legit- and measures directed at some of the prob- imate and credible governance of the pros- lems identified in this assessment. This as- ecution and judiciary. Currently, systems of sessment has provided recommendations governance facilitate political pressure and that are formulated in the context of these influence on both branches, most obvious- objectives and measures, but in a number of ly in the case of prosecutors. A number of cases go further or are more specific.

45 46