Support to the Judiciary in Serbia in the Implementation of
the European Convention on Human Rights
Strasbourg, 16 December 2013 DGI (2013) 21
FACT-FINDING MISSION
TO SERBIA (18-22 November 2013
)Prepared by
Ms Aleksandra Ivankovic-Tamamovic
Former Lawyer of the Registry of the European Court of Human Rights
Mr Bert Maan
Judge at the Appellate Court in Amsterdam, Former President of the District Court Zwolle-Lelystad
Ms Nina Vajic
Former Judge and Section President of the European Court of Human Rights,
elected in respect of Croatia
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Council of Europe project “Support to the Judiciary in Serbia in the Implementation of the European Convention on Human Rights”, funded by the Kingdom of Norway
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Table of Contents
EXECUTIVE SUMMARY ... 4
I. INTRODUCTION ... 6
II. THE CONTEXT ... 7
Background ... 7
Legal framework ... 7
Legal culture ... 7
Legal education ... 8
Judicial Academy ... 9
Institutional reform ... 10
Convention material ... 11
The High Judicial Council ... 11
Conclusion ... 12
III. THE BENEFICIARIES ... 13
Appellate courts ... 13
Administrative Court ... 15
Supreme Court of Cassation ... 16
Constitutional Court ... 17
Conclusion ... 18
IV. CONTINUING NEEDS AND PROPOSALS FOR REFORM ... 19
Communication ... 19
Case management system ... 19
Case law database ... 20
Human Rights Reference Officers ... 21
Revolving placement programme ... 22
Capacity building ... 22
Strengthening the role of the Judicial Academy in close co-ordination with the HJC ... 23
V. CONCLUDING REMARKS AND SUMMARY OF RECCOMMENDATIONS ... 25
VI. ANNEX 1 – LIST OF INTERVIEWS... 28
VII. ANNEX 2 – QUESTIONNAIRE ... 29
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EXECUTIVE SUMMARY
The present report is a result of a growing concern for the performance of Serbian judiciary when it comes to the harmonisation of its domestic case law with the requirements from the European Convention on Human Rights (herein ECHR) and the case law of the European Court of Human Rights (herein ECtHR) and the overall consistency of its domestic jurisprudence. With more than 12,000 applications pending before a decision body of the ECtHR, Serbia is currently responsible for 11% of the entire workload of the ECtHR and has the largest number of cases per capita. This report therefore calls upon Serbia to take well-planned and systematic action towards establishing clear lines of responsibility for the quality of the judiciary.
It has been prepared at the request of the Council of Europe pursuant to the Council of Europe project “Support to the judiciary in Serbia to ensure a coherent implementation of the European Convention on Human Rights” and is based on a fact-finding mission conducted from 18 to 21 November 2013, during which the authors of the report conducted interviews with the Constitutional Court, the Supreme Court of Cassation, the Administrative Court, the four Appellate Courts (“the beneficiary courts”) and the Judicial Academy (“the Academy”).
The fact-finding mission showed that there was a lack of clear lines of responsibility for the quality of Serbian judiciary, while the level of training that the judges and judicial assistants were provided with on the ECHR issues is uneven, and largely donor-based. Furthermore, there is a lack of acceptance that harmonisation is a priority in order for the Serbian judiciary to bring human rights home and to gain trust of the people, which had been largely absent in the past years, due to a series of reasons including an unsuccessful reform of the judiciary and a great deal of inconsistencies of domestic jurisprudence. Moreover, it transpired that, even though a great deal had been done to make use of information technologies on a large scale, many judges still don’t use the IT tools to the maximum or are deprived of the possibility to freely access open source internet data; there is also a need to transform internal databases from hard-copy to comprehensive electronic user-friendly source of information by changing current court rules and procedures which prescribe that case law has to be filed in hard copy.
Against such background, the report calls upon the High Judicial Council (herein HJC) to assume its leadership role, the Constitutional Court to do more in the field of normative control, the Supreme Court of Cassation to resume their role in the efforts to achieve harmonisation and consistency and remaining courts to make harmonisation and consistency their priority and not a side-effect of justice in Serbia.
The report makes some systematic recommendations, which should improve the training and quality of the judiciary. It therefore recommends that the HJC ensures that the Judicial Academy is enabled to develop their curricula for the continuing education of judges to be needs-based rather than donor-based and that the performance of each judge is appraised and evaluated for quality which is not based exclusively on the “upheld” rate of a particular judge. It is further emphasised
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that the Supreme Court of Cassation is responsible for both the harmonisation and the consistency of the domestic jurisprudence, and recommended that they should accord to this duty.
Additionally, the report advocates the possible use of available modern technologies in order to provide comprehensive resources for the beneficiary courts to be in a better position to achieve the general aims of harmonisation and consistency. It therefore proposes the establishment of systematic and structured lines of communication, and calls upon Serbia to entrust the Judicial Academy with the development of a comprehensive case law database to be used by the beneficiary courts, but also by the broader public.
Moreover, the report establishes the need to make a single person at the level of each beneficiary court (apart from the Constitutional Court) responsible for advising the respective courts on the issues of ECHR rights and ECtHR’s case law.
Finally, the report aims to identify how best to use continuing education for the benefit of the Serbian judiciary, and eventually for the achievement of a good quality independent judiciary. To that end the report suggests that a revolving system of placement be agreed upon with the ECtHR, a standard training curriculum for judges and judicial assistants is established and additional needs- based training is also provided.
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I. INTRODUCTION
1. The present report is concerned with looking into methods for harmonising Serbian jurisprudence with the ECHR and the case law of the ECtHR whilst simultaneously achieving legal consistency between the case law of the Appellate Courts, the Administrative Court, the Supreme Court of Cassation and the Constitutional Court (“the beneficiary courts”). At the same time, the Report aims at establishing the training needs and formulating the questionnaire which would facilitate identification of topics for the capacity-building events to be organized for judges and staff of the beneficiary courts, in order to further lead them towards achieving consistency and harmonisation with the ECHR.
2. The Report has been prepared at the request of the Council of Europe pursuant to the Council of Europe project “Support to the judiciary in Serbia to ensure a coherent implementation of the European Convention on Human Rights”.
3. The beneficiaries are thus courts competent to decide cases at a final instance: the four appeals courts and the Supreme Court of Cassation, as courts of general jurisdiction, and the Administrative Court as the single court dealing with administrative disputes in Serbia. Furthermore, given its particular competence in deciding on constitutional complaints, the Constitutional Court is probably the most important actor in achieving the harmonisation of Serbian case-law, while the Supreme Court of Cassation is tasked to head the efforts towards achieving overall consistency of the national jurisprudence
4. The report comes as a result of a fact-finding mission which took place from 18 to 21 November 2013, during which the authors of the present report visited all the beneficiary courts and interviewed their management and those responsible for following the case law. The list of meetings is attached to this report.
5. While the report may appear to be, in some instances instances, too broad, the authors felt that this broadness and necessary contextual explanations were necessary to give background to the issues being dealt with.
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II. THE CONTEXT
Background
6. Serbia has lately joined “the top 5” club of countries with the largest number of applications pending before a decision body of the ECtHR, and with 11% of total number of applications pending before the ECtHR, it holds an infamous 5th place. What is more, with more than 12,000 cases and with something more than 7 million inhabitants, Serbia is leading on the ECtHR’s list in the case per capita ratio. More worryingly, a large majority of those cases appear to be prima facie admissible, with several big groups of repetitive, so-called clone cases, making the bulk of the Serbia’s case-load before the ECtHR. When compared with the statistics of Russia, for example, which with 26,617 pending applications leads on the ECtHR’s list of cases per states numbers, it can be noted that 67.4% of cases are assigned to a single judge, being prima facie inadmissible. With the applications lodged against Serbia, 71.2% of cases are actually prima facie admissible, with only 28.8%
applications pending before a single judge.
7. This trend of growth in the number of applications has been consistent since the first group of cases involving non-enforcement of final domestic judgments against “socially owned enterprises” and continuing with smaller or larger groups of cases involving inconsistent domestic case law, clearly shows that much needs to be done at national level in order to bring the human rights protection from Strasbourg back home to Serbia. This, however, will not come by and of itself, and Serbian institutions must take over the responsibility for this to happen.
Legal framework
8. According to the Constitution of Serbia, all international conventions and customary international law are a part of the internal legal order of Serbia. Although ratified international instruments must be in conformity with the Constitution, laws and other legislation need to be in accordance with international conventions binding upon Serbia (Article 194). While the ECHR has not been made a part of the Constitution, all the rights and freedoms from the ECHR found their place in the Constitution.
9. Even though there is no direct constitutional or legal provision which would introduce the case law of the ECtHR into the Serbian legal space, the Constitutional Court of Serbia has been increasingly founding its decisions on the Strasbourg case law, thus taking up a leadership role in the introduction of the ECtHR case law into the Serbian jurisprudence.
Legal culture
10. Two features appear to be characteristic of Serbia. The first is the prevalence of a positivistic approach to law in which the law amounts to a collection of instructions providing comprehensive regulation for every issue that might have to be resolved. Article 1 of the Law on the Organisation of the Courts provides that the courts operate based on the Constitution, laws, other general enactments, generally accepted rules of international law and ratified international agreements.
However, the legal tradition, as is the case of many other European states, is reluctant to accept or to use precedent as the source of law. It may, nonetheless be understood that the case law of the
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ECtHR can easily become part of the domestic judgments. Applying the case law of the ECtHR does not mean introducing a precedential approach to a system where precedent is not known as the source of law. Relying on Strasbourg case law in domestic decisions rather means duly applying the ECHR rights such as developed by the ECtHR through its case law.
11. Furthermore, it should be noted that until 2010, the judicial appointments were done directly by the Parliament, which, according to the Venice Commission “risk[ed] leading to a politicisation of the appointments1”, and thus could have been seen as interfering with the independence of the judiciary.
12. The result of this legal culture is that judges, prosecutors and lawyers have no tradition of reasoning by analogy and building on past decisions as a means of applying broadly-framed legal concepts to specific situations. The law that they dealt with was structured in an entirely different manner and its application did not give them the scope for either going beyond the letter of the provision or having regard to rulings in other cases, and certainly not those involving other countries.
13. Such a legal culture may explain the reluctance of the Serbian judiciary to apply the ECHR as such and even more so the case law of the ECtHR.
Legal education
14. Built on a legal culture described above, legal education was crafted to serve it. Almost all law courses tend to be still thought from a positivistic perspective. Law students usually take a single oral exam and there is no compulsory instruction on writing techniques. It is therefore possible to graduate from law school without ever having to produce written work, which is in large contrast with the general requirement of the job for a judge – to write judgments and decisions. Moreover, at the Faculty of Law of the University in Belgrade, which is the largest educational institution in Serbia, and educates the majority of Serbian lawyers, the course of human rights is thought only as an optional subject, and only within the international law modules, at both undergraduate and graduate levels.
15. Therefore, human rights and the ECHR are given just a general overview as a part of the courses in Public International Law and Constitutional Law. Apart from a few enthusiastic instances, such as the family law course at the University of Belgrade, there is rarely an attempt to integrate the requirements of the ECHR as elaborated by the ECtHR, into courses on criminal procedure, family relations, administrative procedure or the protection of property.,
16. As a result, most of those who graduate not only lack the skills required for the proper application of the ECHR but have little idea about the rights and freedoms that it guarantees and the role of domestic law in giving effect to such rights. Although there are now in the country a few young specialists with diplomas from the west who could teach the ECHR in a suitable manner and contribute usefully to ECHR training, many of them remain unsuited for either activity, mostly due to
1 See Venice Commission, Opinion on the Provisions on the Judiciary in the Draft Constitution of the Republic of Serbia, 24 October 2005, CDL-AD(2005)023
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a complicated and expensive procedure for the recognition of diplomas coupled with the reluctance of the universities to employ them.
Judicial Academy
17. Officially taking over its tasks on 1 January 2010, the Judicial Academy is the welcome and much needed tool provided for overcoming the gap between the Serbian judicial tradition and the reality of the necessity to implement the ECHR domestically.
18. The Academy conducts twofold educational programmes. The first one, initial training is a comprehensive training course, lasting for 24 months, during which time the candidates are employed by the Academy, receive salary from the Academy, and go through an in-depth training on many areas of law. Their employment with the Academy continues for up to 30 months, or their appointment at the bench, whichever comes first. Unfortunately, the authors of the present Report have to note that the proportion of the training devoted strictly to the ECHR and its case law seems to be insufficient. Only two weeks out of a total of 108 weeks of training are designated to this area even though the Academy makes sure that, apart from these ten days which are devoted solely to the law of the ECHR, the trainees are receiving training on the human rights aspects in particular areas of law. Furthermore, so far the practice has been that the trainees are taken to a study visit to Strasbourg, which has been highly evaluated by both the participants and the Academy, and is certainly praised by the authors of this report. It is also encouraging to know that all the participants who have graduated from the Academy have been appointed as judges shortly after the completion of their training.
19. However the one concern that the authors of this report have in relation to the initial training is, that the comprehensive training is provided only to the judges at the entry level at the judiciary.
What has been neglected so far is that this type of extensive training is only required at the entry level. It will take years, or rather decades, to ensure that all the judges at first instance courts have passed this comprehensive training, and not only the students of the Academy. It will take even longer to have a judiciary comprised of judges who have all attended the initial training.
20. On the other hand, judges appointed to the higher courts as well as the project beneficiary courts are not exclusively being appointed from the ranks of the lower courts. They can also come from the prosecutors’ offices, judges’ assistants or even from the outside of the judiciary, and are not required to undergo any sort of formal training before they take up their judicial functions.
21. Second form of training that the Academy provides is the continuous education programme. While the efforts the Academy puts into continuous training of the judges ever since it was established and even before, while it still existed in the form of the Judicial Center, are commendable, the authors need to note two concerns. Firstly, the participation in the continuous education programme is absolutely voluntary, thus offering the possibility to the judges who are the most reluctant to directly apply the ECHR to skip any form of training. Secondly, given the fact that the Academy largely depends on outside donors in this line of its work, the kind and quantity of training provided is not driven by needs of Serbian judiciary, but is driven by the interest potential donors might have in certain areas. Judges also consider that sometimes trainings are not flexible enough in terms of
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recurrence of topics and/or time-table in relation to their case load and availability. Given that there is no comprehensive policy on the development of human rights curriculum within the programmes of the law schools, which is only thought of as an optional course, or within other courses, the need to support the Academy in its effort to bridge this gap is even greater.
Institutional reform
22. By 2009 Serbia undertook to conduct an overall reform of the judiciary. The reform implied a change of the entire judicial system – the changes in material and territorial jurisdiction, which was followed by series of amendments of procedural laws. Importantly, the reform assumed that by 1 January 2010 all judges and prosecutors would be requested to go through a reappointment process, and their failure to either apply for reappointment or the failure to be reappointed assumed their dismissal as of that date. The Venice Commission has expressed its concern over a number of regulations which were passed in order to guide participants through the process, and importantly, they also suggested that, given the scope of the reform, the timeframe was quite short. Accordingly, the Venice Commission suggested that Serbia should postpone the commencement of the reform from 1 January 2010 to a later date. Regardless of the concerns expressed, Serbia decided not to postpone the commencement of reform. The new system therefore entered into force on 1 January 2010, which led to confusion and a complete blockage of the judiciary, which lasted for months.
23. As the result of the reappointment procedure, around 800 judges and prosecutors were not reappointed. The majority of non-reappointed judges initiated procedures before the Constitutional Court, complaining about the fact, and the Constitutional Court indeed found flaws in the procedure of reappointment (summer 2012). In response, rather than attempting to rectify these flaws in the procedure, thus satisfying the interests of justice, the HJC simply appointed the majority of the originally non-reappointed judges, though not necessarily at the same level of judiciary from which they were “dismissed”.
24. As one of the consequences of such a situation, since 2010 the presidents of courts have not been appointed, the courts being led by acting presidents. Only in November 2013 have the presidents of courts officially been sworn in for the courts of general jurisdiction and the Administrative Court.
However, the seat of the President of the Appellate Court in Novi Sad remains vacant, as apparently nobody applied to fill it in. It is thus to be noted that the Appellate Court in Novi Sad is the only appellate court which still remains without a president. The position is currently filled in by an acting president.
25. The entire circumstances of appointments and reappointments were heavily criticised and the reform, instead of leading towards strengthening the trust of public in the judiciary, has lead to further deterioration of this image, finally leaving the impression that the reform was no reform at all.
26. Against such a background, the Ministry of Justice came up with the National Strategy for the Reform of Judiciary 2013-2018, which provides for a series of legislative amendments and furthermore introduces the Certification Commission. The idea of this commission is still not developed. From what it appears, it should encompass the judges from case law departments of the
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Supreme Court of Cassation and the appellate Courts, Additionally the Commission should be in a position to determine whether the judgment which appears to be inconsistent with the existing case law should be accepted or not. Should the Commission recommend that a judgment not be adopted, the judge would still have the freedom to adopt the judgment at question, however with the obligation to provide reasoning as to why the decision departed from the established case law. It would appear that the idea of creating such a Commission has been met with scepticism at best, and, at worst, with straight forward opposition in the judiciary.
27. It would seem that the reserve with which the idea of the Commission was met is reasonable, given the undefined role of the Commission so far in relation to the changing role of the Supreme Court of Cassation, the activities of the appellate courts and their case law departments. While the authors would not discard the idea from the outset, they are concerned not only over the possible overlapping of too many initiatives, but even more so over the perception the proposed procedure is leaving as one representing an interference with the independence of the judiciary.
Convention material
28. Until recently the AIRE Centre from London has been providing Serbian judges with their Human Rights Legal Bulletin, which was published in Serbian and broadly distributed free of charge, The publication and distribution of the Bulletin were funded from the ordinary budget of the Council of Europe. However, it would appear that as of recently there is no funding to be found for such a distribution. The Bulletins are still available online, but, as will be discussed later on in the report, this kind of access has not proved to be sufficient so far. Furthermore, the Constitutional Court’s case law department periodically prepares summaries of the ECtHR’s case law and distributes them electronically. The Constitutional Court summarizes ECtHR judgements that are relevant for the Republic of Serbia or those that represent key legal opinions.
29. Also, all judgments and decisions adopted by the ECtHR in the cases against Serbia are being translated by the Serbian Government, and published in the Official Gazette and online.
Furthermore, such judgments or decisions are being distributed to every judge of the beneficiary courts in a hard copy.
30. In addition, the Council of Europe has secured the translation of many key judgments adopted against other States, and has made them available to the judiciary. They are also included in the official database of the ECtHR’s case law (HUDOC).
31. Moreover, given the linguistic similarities, the judges in Serbia can easily read the judgments of the ECtHR published in the national languages of Bosnia and Herzegovina, Croatia and Montenegro.
The High Judicial Council
32. The High Judicial Council (“the HJC”) is an independent body responsible for ensuring the independence and impartiality of Serbian judiciary and was tasked with heading the 2010 reform of the judiciary.
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33. As mentioned previously, the reform was broadly criticized by legal professionals and the general public alike, and the HJC as the principal bearer of the reform seems to have tended to keep low profile, probably as a consequence of such exposure.
34. Thus, even though the law required that after three years on duty performance of each judge needs to be evaluated before their permanent appointment is confirmed, it was not done. Three years have passed for the majority of judges who took over the duty on 1 January 2010, for whom no performance appraisal was conducted, and whose appointments were assumed to have become permanent even in the absence of a comprehensive performance appraisal.
35. Furthermore, even though HJC is responsible for the work of the Judicial Academy, and seemingly involved in their work, there seems to be no responsibility for the amount and quality of training provided by the Academy and the Academy is left to its own devices when it comes to the majority of its continuing education activities.
36. The authors of the present report are convinced that there is a great potential in the HJC to seize up the bulk of its responsibilities, in particular given the recent amendments to the Law on Courts, which provide for more responsibility of the HJC not only in making sure the courts are independent and impartial, but also in ensuring that the judiciary has all the necessary resources to maintain a satisfactory level of quality.
37. The authors believe that the HJC is certainly well placed to take a more serious leadership role in ensuring this quality by, inter alia, providing proper resources and support to the Academy in organizing continuous training for judges, while at the same time making sure their performance is at a satisfactory level. Once this relationship of support and trust develops, the Serbian judiciary would be in a position to have an identifiable point where all questions as to its quality could be addressed. Accepting that it is hard to achieve quality without taking up the responsibility attaining a certain level of this achievement, no institution in Serbia is better placed to lead this crucial process but the HJC.
Conclusion
38. The existing legal system and the lack of comprehensive training on the ECHR for judges raises serious concerns as to the ability of the Serbian judiciary to implement fully its obligations stemming from the ECHR. In the complex context of a reform perceived as failed, or at least failing, with the highest per capita rate of cases before the ECtHR, Serbia and its judges should start taking the ECHR more seriously while the HJC should assume its responsibility for the quality and continuity of training provided to the judges, and eventually for the overall quality of judiciary in Serbia.
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III. THE BENEFICIARIES
Appellate courts
39. Following the 2010 reform, the territory of Serbia was divided into four jurisdictions: Belgrade, Kragujevac, Niš and Novi Sad. Each appellate court is divided into divisions: civil law, criminal law, labour law and juvenile justice. In addition, each of the appellate courts also has a case law division, responsible for consistency of that court’s case law. Moreover, the Appellate Court in Belgrade has additional special divisions, those of: organized crime and war crimes, as well as rehabilitation division. For the vast majority of cases the appellate court is where the case ends in the final instance and it is, hence, of utmost importance that the case law departments function properly and have all the tools to make sure that the case law coming out of their respective departments and courts are well synchronized both within their court and with the case law of the remaining three courts.
40. According to the relevant provisions of the national legislation, there is an obligation on the part of the courts to make sure that their case law is consistent internally – i.e. at the level of each of the appellate courts. It would appear that the courts are more aware of their obligation to make sure that their judgments are consistent, and have thus made an effort in making sure that a judgment is being pronounced only after a significant effort has been made to ensure its consistency with that particular court’s case law. On the other hand, the harmonisation of domestic jurisprudence with the ECtHR’s case law is still a concept not fully understood and applied by the judiciary.
41. The way the courts follow up their own case law is, however, an issue of professionalism, and its proper facilitation is thus crucial for the important processes of harmonisation and consistency.
Since 2009 there has been an ongoing effort and investment to develop a comprehensive case management system. To that end, a Courts Data Center was set up in order to ensure widely available web-based services for all users, supportive working environment and high system availability and enhance information security. However, there is a concern as to how much it is effectively being used for anything else except strictly administrative purposes. Without having an insight into the system, the authors of the present report however believe that the proper use of database could potentially help identify inconsistencies in the case law.
42. Nonetheless, despite the existing system, it is noted that in some appellate courts the judges prefer to keep their case law in paper, sorted in binders and available only by manual search firstly through a catalogue of keywords, and then through shelves filled with binders. While the case law catalogue thus available, neatly sorted by keywords, date and relevance, is surely relevant, the concern still remains that nowadays, with all the technology available and a case management system already running, the court staff still spends a significant amount of time searching through hard copy database. While the effort done to make such a system function is surely admirable, having the necessary searches being done by a few clicks, rather than by spending considerable amount of time in a mechanical search through a paper-based database would greatly reduce the time and effort
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needed, while increasing the probability of focusing the search on finding only the relevant resources. This should not necessarily require departing from existing methodologies, but just represent an upgrade or an improvement to the existing system which undoubtedly functions, but could be improved. This need was noted and the authors of the report were told that current filing of case law in paper format has been based on the Courts’ Rules and procedures; however the new Strategy on Judicial Reform as well as the future Courts’ Rules and procedure envisage organisation of the filing in the electronic format.
43. Be it as it may, once a discrepancy is noted in a judgment of an appellate court, the case-judge is required to make a short justification, separate from the judgment, as to why the case law is not being followed. The case law department brings the case for reconsideration to the chamber which originally decided on the case. The chamber may either remain with such diverging decision or decide to follow the case law. In cases in which the judge or the chamber still wishes to pursue a particular line of argument, which departs from the case law, it is possible to schedule a plenary session of the particular court, at which the matter is further deliberated upon. However, the final decision is on the case judge or the chamber. Should they finally decide to diverge from the court’s case law, there is no requirement, and it indeed does not happen, that such discrepancies are being justified in the decision itself.
44. The process of harmonisation often begins with an inconsistency, as such departures from the established case law might indeed be made in the attempt to bring an already consistent practice in line with the ECHR standards. Thus, it would be important that in particular in such instances, the ECtHR’s case law is duly referred to, adding value to any argument based on domestic law.
The appellate courts and harmonisation
45. When it comes to harmonisation, currently the only organised effort to follow the case law of the ECtHR seems to be the compulsory distribution of hard copies of translation of judgments issued in respect of Serbia, especially since the AIRE Centre Bulletins are no longer distributed. There is no system in place in which the judges would be encouraged or even have an obligation to make sure that their judgments or, for that matter, even procedural decisions are in line with the requirements of the ECHR. The knowledge the judges have of the ECHR is of varying levels and is acquired sporadically. And while it is noted that lately a few judgments of the domestic courts make reference to the provisions of the ECHR, generally there is still great reluctance of the courts to make references to relevant case law of the ECtHR. All the above coupled with the lack of sufficient training which the Judicial Academy might provide considering its limited resources for judges already in office, this appears to be a serious issue, resulting in the absence of a systematic requirement for the case law to be harmonised with the ECHR.
The appellate courts and consistenc y
46. Following the 2010 reform, the appellate courts rightly identified the need to communicate among themselves in order to bring in line their respective case laws. Following the initiative of the Appellate Court in Kragujevac, a meeting of all four appellate courts was convened with the
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representatives of all the case law departments present. It was decided that the department representatives should meet regularly to discuss issues of case law and should communicate whenever necessary in order to adopt joint opinions on certain issues from their jurisdiction.
47. While the civil and criminal law departments still appear to meet only occasionally, these meetings being certainly much needed and very useful forums for an exchange of opinions and experience, the labour law departments show a commendable example of how the four appellate courts indeed can work together to bring their case law in line and minimalize the possibility of horizontal inconsistencies.
48. Namely, the case law sections of the appellate courts’ labour-law divisions meet quarterly. During their meetings they discuss any issues in the application of the material law that have arisen in the previous period or are anticipated to arise. The judges meet, discuss and identify possible issues, in particular involving large groups of cases and cases involving similar factual background. During the meeting a rapporteur is appointed, who is responsible to report on the issue during the next meeting. At that next meeting a joint approach is decided on, and the labour law judges accord to those joint legal opinions. These approaches are an informal, yet effective tool for bringing the case law in line, in particular given that the bulk of cases which ended up before the ECtHR regarding inconsistencies referred to issues of labour law.
49. The Supreme Court of Cassation, even though regularly invited to be present and take part in these meetings, mostly does not take up the challenge. It would be important to note, however, that the Supreme Court of Cassation, as the one responsible for consistency of the domestic jurisprudence, seems to be showing readiness to take up a more proactive role in this regard. In this effort, it would be important to see the Supreme Court of Cassation having regular meetings with the appellate courts and the Administrative court, while at the same time making sure that the obligation to harmonise is emphasised throughout their publications, most importantly by developing a rubric within their bulletin devoted to the Court’s case law.
Administrative Court
50. The Administrative Court is a unique, single instance court, which deals with all the administrative disputes in Serbia. With the seat in Belgrade, it still has three departments: in Kragujevac, Novi Sad and Niš. Only exceptionally there is the possibility of appeal against their decisions. This court, is thus, in a unique position to make its case law exemplary consistent and harmonised with the ECHR requirements.
51. However, with a total of 37 judges and having adopted 64,000 decisions in the past four years the court is overloaded and understaffed. While there is a case law section, it seems to be only at its beginnings and it is difficult to make sure not only that every decision is in line with the existing jurisprudence of the ECtHR, but also that there are no discrepancies between decisions within the court itself, thus allowing for inconsistencies. Furthermore, harmonisation with the ECtHR and its case law is something which is still not taken into consideration as a necessary requirement in the process of decision-making.
16 Supreme Court of Cassation
52. Following the 2010 reform, the Supreme Court was transformed into the Supreme Court of Cassation, while its jurisdiction was significantly limited. Where according to previously applicable procedural requirements the great deal of cases could have been appealed on points of law in third instance to the Supreme Court, as of 1 January 2010 the Supreme Court of Cassation can examine only cases which exceed a strictly and highly determined census of 100,000 euros in dinar counter- value.
53. It could have been expected that with such a deflation of caseload the Supreme Court of Cassation would be more inclined to start performing its duty of ensuring harmonisation with the ECHR and the consistency of domestic jurisprudence by means of adopting principal legal opinions and deciding on extraordinary appeals on points of law. However, while they are in a position to encourage and strengthen the law-forming efforts of the lower courts, the Supreme Court of Cassation has yet to demonstrate its commitment to this important aspect of their work.
54. The appellate courts expressed their concern as to the lack of support they receive from the Supreme Court of Cassation in their efforts towards achieving a consistent case law. When discussing the possibility of the extraordinary appeal on points of law, which is a remedy for cases in which it would appear that there has been parting from the established case law, the Appellate Court is doing the prima facie admissibility screening, forwarding to the Supreme Court of Cassation only those cases which appear to merit consideration. However, there is no statistics to show how many of such requests have been examined on the merits by the Supreme Court of Cassation and the appellate courts don’t receive any feedback from it other than the decision on the request itself.
55. The Supreme Court of Cassation is the owner of a case management system mentioned in paragraph 41 above. Reportedly this system could be easily made available to other courts, but this potential remains largely unexploited.
56. The Supreme Court of Cassation and its jurisdiction are subject to upcoming amendments. Thus, the competence for observing complaints in relation to length of proceedings would be shifted from the Constitutional Court to the immediately higher courts, depending on the particular instance where the case is pending. Furthermore, the census for extraordinary appeal on points of law should be lowered in order to ensure its essential role in the uniform and consistent application of the law.
However, in any effort to make these remedies more accessible, the issue of responsibility for the overall consistence should be properly addressed.
57. When it comes to resources, the Supreme Court of Cassation is the only outside recipient of the Constitutional Court’s e-summaries of the ECtHR judgments, which is a result of a friendly cooperation between judges and registries of the two courts, rather than a matter of institutional exchange. Furthermore, they, like other beneficiary courts, receive the ECtHR’s judgments against Serbia translated into Serbian, as well as the AIRE Centre bulletins. The Supreme Court of Cassation publishes their own bulletin, which contains all relevant decisions and opinions of the court, and they also tend to include the summaries of the most important judgments of the ECtHR. The bulletin is published quarterly, and hard copies are made available to the judges and judicial assistants in the
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Supreme Court of Cassation, the Administrative Court and the appellate courts. The bulletin is also downloadable free of charge from the court’s website.
58. Nonetheless, the harmonisation is, yet again, one thing absent from the court’s approach in dealing with cases. While it is generally recognized that this should take place, and while the Supreme Court of Cassation is making an effort to follow the ECtHR’s case law by incorporating the ECHR standards into their judgments and decisions, there is still reluctance to make direct references to the ECtHR’s jurisprudence.
Constitutional Court
59. The individual constitutional complaint has been observed, in principle, as an effective domestic remedy, since August 2008. At the time this lead to rejection of more than 1000 applications by the ECtHR, due to non-exhaustion of this remedy. Five years later, the constitutional complaint is still considered to be an effective remedy – “in principle”. However, despite the principle and despite the fact that the Constitutional Court receives and successfully deals with thousands of cases (in 2012 the court received more than 7000 complaints, and in 2013 this number is expected to be even higher), the number of cases pending against Serbia before the ECtHR has more than doubled. This happened partly as a consequence of the ECtHR view that in some types of cases the Constitutional Court case-law does not yet sufficiently comply with the ECtHR expectations. For that reason, some groups of frequently occurring cases are currently pending before the ECtHR.
60. However, given that the situations which have given rise to such an increase in the number of cases before the ECtHR are few, but the cases are numerous, it needs to be noted that the Constitutional Court still stands as the most important barrier to the further increase of Serbian cases before the ECtHR. It is making sure that the domestic jurisprudence is both harmonised and consistent, while the constant reference being made to relevant ECtHR case law is the leadership by example needed in Serbian judiciary.
61. Up until now the Constitutional Court has been hesitant to extend the direct application of the ECtHR case law from the individual constitutional complaints to the proceedings of normative control, althout it has been in a unique position to make a certain provision of the domestic legislation unconstitutional based on the lack of its harmonisation with the ECtHR’s case law. A more broad approach could be used as a pre-emptive measure, thus creating a general rule, clear to the judiciary as a whole. It would be worth to consider using this important competence whenever possible in order to prevent having to deal with numerous individual constitutional complaints on a case by case basis. Such an approach would certainly prevent creating large groups of repetitive cases before both the Constitutional Court and eventually before the ECtHR.
62. The Constitutional Court has its own case law department which duly follows the jurisprudence of the ECtHR. They are preparing periodical e-summaries in Serbian, which are distributed to the judges of the Court, its Registry and informally to the Supreme Court of Cassation. The e-summaries bear great potential, and should be broadly distributed, but should perhaps be more selective in choosing the judgments and decisions to be presented.
18 Conclusion
63. Apart from the considerable efforts by the Constitutional Court, up until now, the Serbian judiciary as a whole has not been able to determine a sustainable approach to harmonisation of the national jurisprudence with the ECHR standards. Moreover, there still is a lot to be done in achieving consistency of domestic jurisprudence in Serbia. There is a lack of coordination between the appellate courts themselves, the lack of communication between the appellate courts and the Supreme Court of Cassation, and the Administrative Court is pretty much left to their own devices.
The Constitutional Court, even though increasingly protecting ECHR rights at home, which certainly needs to be appreciated, has to observe that a relevant groups of cases yet slip through its safety net, adding up to the Serbian workload in Strasbourg.
64. Despite the important leadership assumed by the Constitutional Court, however, the others are yet to follow. The remainder of the beneficiary courts are, even though acutely aware of the necessity to apply the ECHR (and a bit less aware of the necessity to also apply ECtHR case law), still reluctant to be led by example.
65. This reluctance stems from both the lack of training and the lack of consistent access to the case law in the official and accessible languages of the ECtHR. Furthermore, despite the available databases and case management software, it remains underexploited and its full potential is largely unknown.
66. Assistance as regards to trainings in use of search engines, as well as further training in ECHR issues is certainly an important factor. It is notable that the level of training varies from one judge to another. Voluntariness of the training leaves the least motivated judges untrained, and the lack of HJC supervision over their performance certainly does not represent an incentive towards participation in the training. Furthermore, while there are tools for regular follow up of the ECtHR’s case law, in the form of e-summaries of the Constitutional Court, it is not widely distributed and is not officially made available to anyone but the Constitutional Court itself and occasionally to the Supreme Court of Cassation. In such a situation, it is of no surprise that achieving harmonisation and consistency is yet to come.
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IV. CONTINUING NEEDS AND PROPOSALS FOR REFORM
Communication
67. As it transpires from the example of the labour law sections of the appellate courts, developing quality and continuous communication channels makes serious difference in the attempts to create consistent domestic jurisprudence. Building up from this experience, the other divisions of the appellate courts should follow in their steps and make sure that any horizontal inconsistencies are dealt with at the level of appellate courts.
68. Of course, given its important role in achieving the consistency of Serbian jurisprudence, the Supreme Court of Cassation must assume its responsibilities for resolving any inconsistencies in the national jurisprudence. To that end, the Supreme Court of Cassation have to make sure to play a leading role, by supporting the meetings of appellate courts divisions, and showing active interest in evaluation meetings, thus increasing the awareness of issues in the field, as majority of cases no longer come to them in the process of the exhaustion of remedies. In particular since the Supreme Court of Cassation is assigned with the possibility to ensure consistency on their own motion, the Supreme Court of Cassation should make its support to these important discussions to ensure horizontal consistency already by the authority of their interest, or by immediate intervention, should the appellate courts hesitate to arrive to a consensus on a certain issue. This would further ensure the vertical consistency, as everyone would have an insight into what everyone else is doing.
69. Similar communication must exist between the Administrative Court and the Supreme Court of Cassation.
70. Furthermore, all six courts of regular jurisdiction should be in constant dialogue with the Constitutional Court, as the final step before going to the ECtHR. Experiences must be exchanged, while the judges of Constitutional Court might try to use their reputation and the respect they enjoy to encourage other judges to use the ECtHR case law whenever the situation calls for such an intervention.
71. All this being said, it is the Supreme Court of Cassation who is in charge of the consistency of the national jurisprudence. This Court is certainly the best placed and has all the capacity necessary to take upon itself this important and responsible task. It should be supported throughout the project in assuming this responsibility and dispensing with it in the best possible manner.
Case management system
72. It is beyond dispute that today the functioning of any system of proportions and complex needs as that of Serbian judiciary should make extensive use of information technologies. Obviously a huge investment was already made to introduce the system into the beneficiary courts. Thus, all the courts were supplied with necessary hardware, are connected into networks, and provided with internet access and e-mail services. Furthermore, according to a recent needs assessment conducted through the EU IPA programme, the following issues were identified: the courts use
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various case-management systems and are not using electronic communication channels; there is no uniform project management methodology within the judiciary; even document exchange is sometimes difficult, due to different document formats used at different courts; although there is commonly used software for certain non-judicial activities (e.g. accounting), there are a lot of applications developed separately for individual courts for the same or similar functions (e.g. case law, registry books, etc.); reports on the work and performance of various institutions have no uniform structure and content; the equipment is partly outdated, the technical staff is too low while the hiring process for such staff has flaws; and there is a limited number of trainings and development opportunities.
73. While building a comprehensive IT support is a work in progress and it appears that significant resources should still be put in place, it is apparent that the Serbian courts are not making full use of those resources that are already available. Firstly, not all the judges make use of e-mail and internet, and this is not due to lack of resources, but mostly due to lack of experience and/or interest, as well as, due to limited access to internet. Secondly, even when the courts use these technologies, there are important discrepancies in how different courts use the same or similar technologies. This needs to be changed and uniform (up to-date) software should be made available to all courts. The main means of communication in the courts should increasingly become electronic. If necessary, additional training should be provided. Again the Judicial Academy should be made responsible to co-ordinate any such training, while proper administrative support is established.
Case law database
74. Obviously there is no comprehensive database of both domestic and the case law of the ECtHR, available to the judges of beneficiary courts. While it would be ideal that for the ECtHR’s case law the judges are addressing HUDOC, the majority of judges and, reportedly, judicial assistants don’t have the necessary linguistic skills to look into the ECtHR’s judgments in their original language(s).
75. There is a great deal of case law circulating in various bulletins, on various web sites and in various forms. When it comes to domestic jurisprudence, all decisions of the Constitutional Court are published online and in the Official Gazette. Unlike the Constitutional Court, other courts, however, have the obligation to anonymise their decisions before the publication, which calls for resources which are usually not ready available. Thus, they have to be very selective when it comes to making their decisions public.
76. Furthermore, given the reluctance with which a significant number of judges are still observing the information technologies, it is obvious that the publication on websites is mostly for outside audience.
77. Considering the additional rather significant number of judgments available in Serbian and other languages accessible to Serbian judges, and another significant number of summaries available through the efforts of AIRE Centre, as well as those prepared by the Constitutional Court, there is an impressive body of ECtHR’s jurisprudence ready available for use, which would require some not very significant effort in order to be made user friendly and easily accessible to the beneficiary courts.
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78. Firstly, the entirety of available material should be assessed. Only in HUDOC there are around 170 judgments available in Serbian, while additional over 450 judgments and decisions against Serbia were translated. With all the other available accessible versions (notably the translations from, Bosnia and Herzegovina, Croatia and Montenegro), the bulk of material would be impressive. It should be, thus, screened for its relevance. Database should be provided for both domestic and the jurisprudence of the ECtHR and it would make sense that HJC takes the responsibility for its developments and entrusts the Judicial Academy, with the implementation and maintenance throughout the project and beyond.
79. Firstly, comprehensive summaries, whenever possible in three paragraphs per judgment (facts, complaints, findings of the court), should be prepared. This intervention would not be necessary in the cases of summaries already provided by the AIRE Centre. Each judgment should be assigned to a
“family” – civil, criminal, administrative law (possibly more “families” could be determined).
Furthermore, each judgment should be assigned with the appropriate number of applicable keywords or key phrases (e.g. length of proceedings, pre-trial detention, legal capacity, public hearing in administrative proceedings etc.) applicable to the particular judgment. Also, each summary should be allocated a relevant provision of the ECHR applicable to the particular case (possibly even case law referred to). Each should be provided with a link to the full judgment in Serbian and/or English and/or French.
80. Such summaries should then be placed on a server and access made available online to the judges and general public, and possibly also directly through server for judges and judicial assistants.
81. The Judicial Academy would then make sure that necessary training is provided to judges and judicial assistants to familiarise them with the database.
Human Rights Reference Officers
82. While there is certainly no magic recipe for good judiciary, there are some practices which should be noted as successful. One such practice is the appointment of thematic reference officers for particular issues necessitating significant expertise, such as the one that exists, for instance, in the Netherlands’ courts for the application of EU legislation.
83. This position could be easily translated into the circumstances of Serbian judiciary in the application of the ECHR and implemented with the beneficiary courts, with a minimum investment of resources, but a great commitment to harmonisation. This person should be recruited from within the court, from judge’s assistants rather than judges, should be selected based on her/his linguistic and analytical skills and willingness to take up the duty. This person should then become the human rights reference person for the entire court, or, in the case of appellate courts, even for all the courts from the territory covered by the appellate court.
84. The human rights reference officers would be in charge of advising the judges on human rights issues arising in a particular case, conducting research into the case law of the ECtHR, making sure that the jurisprudence of national courts is harmonised with it. To that end he/she may initiate regular meetings in the court for the judges and their assistants, giving updates on the human rights issues both on the domestic and the international level. Presidents of courts should play an
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important part in this regard, by making sure a periodic (at least monthly) update is provided to all the judges and judicial assistants within the particular court, and that periodic discussions about the latest developments regarding Serbian, but also other cases decided by the ECtHR are regularly discussed amongst the colleagues.
85. Ideally, the placement programme, already envisaged by the project to encompass a certain number of judges or judicial assistants, should be secured also for the human rights reference officers, who would be sent for a given period of time (i.e. six months or a year) to the ECtHR to be prepared to take up their new functions upon return. Depending on individual assessment of all of their training needs, they might possibly be provided with some additional training before fully taking up their duties.
Revolving placement programme
86. For several years already the Constitutional Court is securing funding to provide secondments to the members of its Registry, for three to six months in the Registry of the ECtHR. This practice has proven to be useful, as the staff is trained in the procedures and case law of the ECtHR and can then spread the knowledge gained to their colleagues upon their return. Many other member States also have standing secondment and/or placement arrangements, including Russia, Montenegro, Finland, Germany and the Netherlands.
87. It would be advisable for the remaining beneficiary courts to consider the possibility of introducing standing placement arrangements with the ECtHR, thus providing additional training to their staff, and ensuring broader knowledge of the ECHR.
Capacity building
88. It is difficult to obtain comprehensive data on the amount of training provided to each judge, due to the absence of sufficient reliable information and properly segregated data. However, general impression, confirmed through the interviews with judges, is that there has certainly been education, but most importantly, there is an overall need for focused training. Early during the fact- finding mission it was agreed with the beneficiary courts that a questionnaire would be developed which would be disseminated among the judges and judicial assistants and they would be asked to fill it in anonymously, in order to have an overview of the education that has been provided, to identify more specific training needs and facilitate them, and to tailor capacity building according to the needs so defined. This questionnaire has been developed and is annexed to this report (Annex II), thus forming its integral part.
89. Nonetheless, even before the questionnaires are collected and analysed and given the knowledge about the varying levels of training received by judges already, it would certainly be useful to present a standard curriculum to those judges who should be identified by the Judicial Academy as having the most imposing need for additional training in human rights. Thus, training should be ensured in civil, criminal, administrative, labour and family law, to judges who deal with each of the respective issues. Furthermore it would be useful to provide the standard curriculum on the constitutional law to all of the judges and judicial assistants concerned, as well as specific courses on
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freedom of information and right to private and family life to judges who are identified as working on types of cases involving these rights.
90. Furthermore, the study visits to the ECtHR for members of the judiciary have so far proven to be extremely useful and beneficial. Thus, the beneficiary courts are encouraged to work closely with the Judicial Academy in finding ways to provide study visits to as many judges as possible.
91. In addition, an issue which arises out of the fact-finding mission is definitely that as many members of Serbian judiciary as possible should be given education as to their command of the English language.
92. Organization of any capacity building event should be entrusted with the Judicial Academy as a partner.
Strengthening the role of the Judicial Academy in close co-ordination with the HJC
93. There can hardly be any talk of quality in a judiciary when there is no institutional responsibility for that quality. As noted before, this responsibility should be naturally entrusted with the HJC, as the body responsible not only for the appointment and dismissal of judges, and eventually their performance appraisal, but also for the functioning of the Judicial Academy to a significant extent.
94. In regards of the Judicial Academy, the HJC should work closely with the Academy to make use of its extensive experience and expertise. This may require setting up focused human rights training programmes, with a clear vision on who is to be educated by whom and on which level: basic, advanced level or the level of maintaining the existing know-how. These programmes should include judges’ assistants, for which the support from the HJC will be required, given that their role in the development of Serbian judiciary is becoming more significant and their leadership certainly much welcome in this area.
95. Furthermore, the HJC should adopt a comprehensive policy to stress the need for individual judges to adhere to the ECHR rules.
96. But most importantly, the HJC needs to come out and reclaim responsibility for the quality of Serbian judiciary by making sure that the Judicial Academy would grow into an institution which is finally needs-driven, contrary to today’s donor-driven approach to the continuing education programmes that the Judicial Academy is made to follow.
97. In the protection of human rights – the first European judge is always the national judge. The HJC in close co-ordination with the Judicial Academy, making use of systems of performance appraisal could develop a career path dependable on the quality of the work of each judge. This quality must not be understood solely or mainly in terms of how many decisions of a particular judge have been upheld on appeal, as this may nudge them towards taking the path of least resistance. As a matter of fact, making a judge’s performance dependant on the percentage of decisions upheld on appeal might lead to making decisions in line with what that judge feels would be supported by the higher instance, rather than basing decision or even taking into consideration the ECHR and ECtHR case law, not wanting a “failure” to be counted against her/his objectives.
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98. The HJC is not the main partner in the project. It is however worth mentioning that it should make use of the tools it has at its disposal to make themselves and everyone in Serbian judiciary proud and responsible for what they do, including also the performance appraisal, as a widely accepted tool for good human resources and quality management. As the job of a judge is to administer justice in a professional and up-to-date manner, with this great responsibility of course come the consequences – be it rewarding those who excel or sanctioning those who are not properly contributing to the overall quality of judiciary as such.
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V. CONCLUDING REMARKS AND SUMMARY OF RECCOMMENDATIONS
99. The main task of the ECtHR in Strasbourg is the protection of human rights guaranteed in the ECHR.
In this process of protecting individual human rights national courts of each State Party to the ECHR have a primordial role to play.
100. The most effective protection of human rights is the one given at national level, by national courts and national judges – by each and every national judge. National courts are closer to the individuals and situations they have to examine; they determine the facts of a case and interpret provisions of national law which are, in principle, not for the ECtHR to question. The purpose of the ECtHR and its protection mechanism is to exert continuous pressure for maintaining the accepted European standards in order to ensure to the population the enjoyment of their human rights. In practice the situation should be leading to a situation in which a maximum of cases will be resolved through national procedures. Such protection is more appropriate to the situation in the member state concerned, it is done using the national language and is faster and cheaper, and generally for a mutual benefit of all the parties involved and society as a whole.
101. Such an approach clearly reflects the subsidiary structure of the ECHR mechanism according to which human rights protection is primarily the responsibility of States Parties to the ECHR. The ECtHR should only monitor the functioning of domestic structures and will intervene only after cases alleging human rights violations have been examined at the domestic level. Thus, only when human rights are not adequately protected at national level will a case be taken to Strasbourg. This is known as subsidiarity – a concept created by the ECtHR and interpreted by it through its jurisprudence.
102. For the national courts to be able to protect human rights in the same way the ECtHR does and thus fulfil their duty to apply fundamental rights for the benefit of all citizens in Serbia, it is necessary to harmonise the Serbian courts’ practice and case law with that of the ECtHR.
103. In order to accomplish this task judges have to become familiar with the ECHR and in particular the ECtHR’s case law – without which the ECHR provisions remain a skeleton, just bones without flesh instead of a living instrument for the protection of human rights.
104. Therefore, the main purpose of this project is exactly to find ways and means of developing this process of getting to know the Strasbourg case law and it becoming part of national judicial decisions and judgments of all courts in Serbia.
105. One feature of this high number of Serbian cases in Strasbourg is a big number of similar or even identical cases, so-called repetitive cases. Such a situation indicates that the same or similar solutions or violations repeatedly occur at the domestic level, sometimes even after the ECtHR has decided a given issue.
