“This law is completely new for us and will bring a lot of new cases to judicial system.”
Zoran Balinovac, advisor to the Minister of justice, “Danas” daily, 19 July, 2014
The advisor was talking about a draft of a proposed law protecting the right to trial within a reasonable time, and along with a couple of million unsolved cases the one thing Serbia certainly needs right now is even more brand new “cases”.
It’s a pickle season, so we should prepare for the judiciary winter. This article is an attempt to describe new judiciary winters that are before us.
1. What are the priorities of executive government in charge of judiciary?
The floods brought forward long awaited “reforms” – whether simulated or purely normative (so called reform laws). Behind enthusiastic and overwhelming “reform” sweep led by a heavy hand but a heart soft as silk, the remains of fallen judicial system of Serbia continue to rot while they are trying to turn the stench into intoxicating scent – by one draft bill, with mandatory (and in fact apologetical) reference to “European standards” and “wide spectrum of measures” of the National judiciary reform strategy: “The draft states that citizens would be able to ‘speed up’ court proceedings by filing complaints and objections against the judge, during the proceedings. They would also be able to protect their right to trial within a reasonable time later on through compensation for non material damage ranging from EUR 300 to 3,000 in local currency equivalent. Presiding judges of trial and appellate courts would decide upon these complaints and objections, considering only “time related evaluation of a judge’s work” that is whether they scheduled individual court proceedings and passed decision on time, and would not evaluate methods, which can also influence the length of the procedure. It was told again, at the public hearing, that this draft is part of a wide spectrum of measures defined by the National judiciary reform strategy. Those measures are aimed to ‘make justice more accessible to citizens, building citizens’ trust in judicial system, reduce the backlogs of cases as well as the number of appeals against Serbia to the European court of human rights in Strasbourg for breaches of the right to trial within a reasonable time.” („Danas“, 19 July, 2014).
Leaving aside non-European practice persistently maintained for decades – because it is a holy constitutional order – in which Parliament appoints presiding judges, that is another branch of power interfering with judiciary; and with pseudo-judicial authority of presidents of courts, despite the contended jurisdiction for their appointment, increasingly expanding to the extent that turns them into executive power which de facto controls judiciary; and where, acting on the citizens’ complaints, presidents of courts already have the authority to control the duration of the court proceedings, which they never or very rarely exercise; and where verdicts charging the state to compensate citizens are either not carried out or it lasts “unreasonably” long.
It is true that court cases are closed after “unreasonably” long time and that a large number of citizens’ appeals to European court of human rights is motivated by exactly this type of violation of the right to fair trial. It is true that there is no efficient legal remedy within Serbian legal system which could, while the trial is still ongoing, “sanction” the court as a state authority for its undue delay of proceedings. Legal maxim “justice delayed is justice denied” is true. It is all true.
So why am I questioning a new ”reform” bill? Because neither the National strategy nor this law (when passed) would solve problems of priorities for the necessary transformation of the Serbian judicial system. And it is not just because of constitutional, legal and factual position of presidents of the courts or difficulties with executing verdicts against the state.
Judicial system, like other legal and social phenomena, has its anchor points which are hard to change: in judiciary it is a judge, and not a president of the court; it is about equality of all before the law and within judicial protection, and not only about final ruling within a reasonable time; it is independence and impartiality of the judges and not just that: it is not enough for a judge to be independent and impartial, they have to appear as such; and most certainly it is not already obvious selectiveness of public prosecutors, but equal access under the same or similar circumstances.
The draft bill in question sounds effective, but it’s easy to mix up effect and defect not just in words. It is in fact intended to pacify citizens that, in common poverty, would be satisfied with any amount of damages for delayed proceedings, without questioning the merit of the final ruling that decides on the protection of their rights. Also, its intent is to discipline judges based solely on the duration and not the essence of the court proceedings. It is also meant to expand the personal authority of a president of the court over judges. All these consequences are true and will be true under the existing facts of constitutional, legal and factual positions of a judge and a president of the court. We need to change these facts, and urgently. Only after that should we think about the effects. Ministry of justice, responsible for strategic and normative reform of the judicial system could have used one source of inspiration in order to avoid turning effect into defect: the Anti-corruption council set the priorities in their Second report on judiciary reform published on 17 April 2014, in a way that is not only reasonable and customary in states with questionable judicial systems, but also adjusted to important legal facts about Serbian judiciary (report is available at the Council’s web site). Those priorities are: independence, material status, expertise, responsibility, efficiency and access and publicity – in this exact order. The Council analyzed all these priorities and proposed the ways to accomplish them, by constitutional, legal and everyday-life (factual) changes and improvements. However, “reformist” political elite suppressed this report just like it started to suppress the “24 disputable privatizations”, bringing them into public debate only when they want to deal with someone personally.
2. Precedential court decisions as a test of reform readiness
In the history of law there have always been court verdicts that bring back trust in the very idea of judicial system (too often betrayed to be taken seriously permanently). These were mainly decisions passed at crucial times, as a result of court reaction to the most severe forms of crime in the foul past of a society. Readiness of a society and its political elite for the transformation of judicial system is measured precisely by these verdicts.
The latest of those is not local. It is a decision made by a Dutch court on damages to relatives of a certain number of victims of Srebrenica genocide. For now it is a trial verdict decided by the District Court of The Hague (Rechtbank Den Haag), number C/09/295247 / HA ZA 07-2973, available in unauthorized English translation of a lengthy summary at its website. The verdict was passed following the civil litigation lawsuit filed by organization “Mothers of Srebrenica” and another 10 plaintiffs against the state of Netherlands. The lawsuit asked that the court: (1) issue declaratory verdict determining that the accused state had violated the obligation to prevent genocide, an obligation prescribed by the Convention on the prevention and punishment of genocide, signed 9 December 1948, and to declare that the accused state had acted unlawfully and (2) to order the accused state to pay pain and suffering damages over the loss of plaintiffs’ family members. The court decided that the Dutch battalion had cooperated in deportation of 320 Srebrenica men who sought refuge and that cooperation in deportation had started in the late afternoon of 13 July, 1995, when unlawful act by the accused state was committed. Also, the court ordered the accused state to pay non material damages to relatives of the victims for the endured pain.
The verdict caused contradictory reactions in Bosnia and Herzegovina: a sense of satisfaction with the fact that one of the countries was declared responsible for human losses in Srebrenica UN safe area, but also a sense of regret that this responsibility extends only to victims who were inside the Dutch battalion compound and not to all the victims from the entire safe area. Legal arguments of the District Court of The Hague are based on the following:
(a) legal basis for assessing the merit of the accusations for determining and compensating the damages is Convention on the prevention and punishment of genocide;
(b) the District Court of The Hague gave its interpretation of the obligations of the state deriving from this Convention, according to the verdict of the International Court of Justice in a legal matter Bosnia and Herzegovina vs. Serbia and Montenegro: …”It is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible”; …”In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed…”
(c) in order to determine responsibility of the state and compel it to pay the damages, it has to be determined with a sufficient degree of probability that if there were no unlawful act adverse effects would not have happened;
(d) commanding officers of the Dutch battalion had knowledge of a serious risk of genocide (“that the genocide is imminent”) after the fall of Srebrenica: “…The foregoing leads the District Court to conclude that where in the evening of 12 July 1995 Dutchbat could have suspected that the men who had been selected and carried off by the Bosnian Serbs ran a real risk of being killed or of being treated inhumanely”; “…Moreover the District Court is of the opinion that at the end of the afternoon of 13 July 1995 Dutchbat… must have been aware of a serious risk of genocide…”; despite the existence of this serious suspicion, the Dutch battalion cooperated in deportation of Srebrenica men, thus committing an unlawful act;
(e) part of the court decision that caused controversies is limitation of Dutch battalion’s liability, and therefore the state of Netherlands, to so-called mini safe area at the battalion compound in Potocari, where 320 men were situated and from where they were taken; the District Court explains this by limited manpower, light weapons and therefore limited effective power to prevent genocide; for that reason, the Court held opinion that the causal link between unlawful actions of the battalion and the adverse effects can not be determined with certainty, except for more than 300 men that were within the mini safe area.
We know that the judgement of International Court of Justice in the legal matter of Bosnia and Herzegovina v. Serbia and Montenegro (article 5) found that Republic of Serbia is responsible for failing to prevent genocide: “Serbia has violated the obligation to prevent genocide, under the Convention on the Prevention and Punishment of the Crime of Genocide, in respect of the genocide that occurred in Srebrenica in July 1995.”
Unlike the Dutch court, for some imaginary Serbian court which relatives of Srebrenica genocide victims could address, the initial question on whether the state is at least civilly liable for the damage, would have been solved, so it could end the proceedings within a reasonable time. But such Serbian court remains imaginary until further, and ever so further notice. It is not conceivable, here and now, a verdict like that of the Dutch court that would grant compensation for the damage to relatives of at least one victim. Not only because our state officials, contrary to their daily eloquence, remain silent about the 19th anniversary of Srebrenica genocide. Our judicial system goes back into the past only at the command of Vucic’s political will, and within its boundaries. The media report about the judicial system in proportion with the political will. They “solved” the murder of Slavko Curuvija in March of this year. Although the indictment was filed several months after this “solving”, the verdict is still far, far away.
3. Citizens’ trust in judges and courts, and in entire judicial system, as an important motive for the government to reform the judiciary
Conclusions of the Second report on judical reform, developed and published by the Anti-corruption council, regarding several priority points are short and clear. So, I will cite them verbatim and in entirety:
”The situation regarding the independence of the judiciary has not improved during the past two years. On the contrary, the situation has deteriorated, as greater interference by the executive power with the work of judicial institutions has been observed.
The financial situation of the judiciary has also deteriorated because the competences of the judicial administration and especially the financial competences of the judicial administration have not been transferred to the HJC and SPC yet. After the restoration of judges and prosecutors back to work, the lack of office space has been evident. Low salaries in the judiciary are another problem, especially when it comes to civil servants.
The Judicial Academy has not responded to its tasks during the past two years, and so very serious mistakes have been made regarding the quality of the initial training, because it has not carried out a comprehensive training in the light of Article 35 of the Law on the Judicial Academy. Adequate by-laws to regulate relevant standards and criteria for the selection of mentors, as well as the Commission members, teachers and other persons authorized to work with attendees of basic training had not been adopted before the training, which has cast great doubt on the quality of the completed training.
The HJC and SPC have committed many violations of the law, but they have answered for none, although they failed to carry out the re-election properly, failed to adopt timely rulebooks according to which good evaluation of the performance of judges and prosecutors could be made, failed to make an analysis that would show clearly their mistakes, failed to show willingness to protect the independence of courts and judges and the independence of prosecutors’ offices, and failed to qualitatively examine the previous work of the holders of judicial offices.
As to efficiency, we cannot give exact details, as we have not received them from the Ministry, HJC and SPC, so that we cannot conclude at this point whether the number of cases has been reduced, especially the old ones, although the data from the Association of Judges of Serbia show that the number of cases has increased compared to the situation before the Reform, and that the situation is now worse (over three million old pending cases, or cases where the proceedings have lasted for more than two years).
The Council has not managed to obtain comparative data from the competent institutions, on the basis of which it would be possible to determine the elements why, according to the perception of citizens, the efficiency is poorer now than it was before.”
What is our, the citizens’ of Serbia, perception of judiciary? The said report answers that question, too:
“According to the public survey “Perception of the Contents of Chapters 23 and 24 of the Negotiations on the Accession of Serbia to the EU”, 84% of the population think that the judiciary is inefficient, 83% of the population believe that the judiciary is dependent on political and other interest groups, and 82% believe that the judiciary is biased. Consequently, 71% of the population do not trust the courts in Serbia.
These are comparable and much worse results than the results of the previous report of the Anti-corruption council on the reform of judicial system.”
The state of judiciary, a bit better than it is today, was one of the reasons for the change of government in 2012 elections. Current minister of justice Selakovic, who has survived all reconstructions and innovations of the government, replaced the former minister Malovic. As far as I can see, Selakovic is “considering the issue” of the new chief of staff a priority and the prospects are looking good for a civil servant who posted a picture of a riffle identical to the one used in a serious criminal act (assassination of the prime minister Djindjic). The matter of protection of “holders” of the right to trial within reasonable time the minister is addressing through his advisor Balinovac, by increasing the number of cases tried in Serbian courts. The fact that 80% of citizens of Serbia thinks that the judiciary is not only inefficient, but politically and in other ways dependent and partial, is not enough to change the attitude of the Ministry of justice regarding the priorities. Responsibility? Resignation? Replacement? Of Selakovic, of course – are all part of a political imaginarium of the same kind as a verdict in favor of relatives of Srebrenica victims.
Translated by Marijana Simic
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