The 27-page-long fourth report on the current state of judiciary, presented yesterday by the Anti-Corruption Council at the Belgrade Media Centre, listed systemic issues in the Serbian justice system which led the Council to infer that the judiciary was dependent and inefficient.
Report’s findings and recommendations were submitted to the Serbian Government in late March, but there’s been no response whatsoever from either the Government or the Justice Ministry,” a Council member, Jelisaveta Vasilić, told the press conference.
According to the Council’s report, it was precisely the Justice Ministry that fell short of the target the most as a lead entity in implementation of the National Anti-Corruption Strategy and adoption of action plans, hence the report specified that the ministry “did not comprehend the importance of judiciary reform, fight against corruption and protection of fundamental human rights”.
The Council cited as particularly troubling the fact that even those employed in judiciary were of the opinion that it lacked independence. Thus, 25% of judges, 33% of prosecutors and about 60% of lawyers are under the impression that judges and prosecutors are not independent and autonomous. At the same time, according to a survey by Ipsos polling agency, as many as 80% of citizens do not believe that judiciary is independent from politics and other groups with vested interests.
One of the biggest problems, in the Council’s view, is a constant pressure exerted by the executive branch of power on judiciary through media appearances, giving comments on pending cases, Prime Minister’s public announcements of tough actions, Interior Minister’s statements in public that the collected evidence was very strong and presenting polygraph test results as a crucial piece of evidence.
“Any such statement amounts to an instruction and a warning as to what and how judges and prosecutors need to do in order to please those from the executive authorities since their very existence depends on them,” reads the report.
The Council cited specific examples to illustrate politicians’ efforts to exercise influence such as when “Prime Minister labels Miroslav Mišković as a criminal”, or “Dragoslav Kosmajac as the biggest drug-dealer even though his criminal trial has not even started”, or when PM “speaks about Siniša Mali who is not guilty of anything” or comments in public on the helicopter case declaring that “there is nothing blameworthy in either the minister’s or generals’ actions”, thereby absolving them in advance of any responsibility.
Judges and Prosecutors Lack Protection
The report stated that neither the High Judicial Council nor the State Prosecutorial Council, as supreme bodies of judicial authority, tended to the protection of judges and prosecutors from politicians, which was why they were intimidated.
Miodrag Majić, a judge with the Court of Appeals in Belgrade, said that in his experience, apathy and fear are prominent in judiciary. The reason for this, in his view, is that the majority of honest judges are “fed up with everything” since they know that if they step out of bounds, they will fall prey to tabloid press and smear campaigns.
Among the examples of intimidation presented in the report, the Council singled out the case of judge Vladimir Vučinić, former Belgrade Special Court president, who was the trial chamber’s presiding judge in the criminal proceedings against Miroslav Mišković. Following his decision to return the passport to Mišković, judge Vučinić came under pressure to reverse his ruling and Belgrade Higher Court president threatened to relieve him of his post as the president of the department and send him back to work on regular criminal cases.
The report also presented a court case involving, as one of the parties, Andrej Vučić, the brother of Prime Minister Aleksandar Vučić, where a recusal of the acting judge occurred.
“The court president recused the judge in a fast-track procedure over ‘procrastination’ even though this could not constitute a reason for the recusal in terms of the Civil Procedure Code, which effectively meant that the court president passed an unlawful ruling on the recusal,” reads the Council’s report.
According to the Council, these cases demonstrate that court presidents merely “execute what politicians say” and the Council wonders “whether our country needs courts and prosecutors when we have executive and legislative authorities that bring charges, conduct proceedings, present evidence, evaluate them and adjudicate”.
In Jelisaveta Vasilić’s words, judiciary will remain dependent, intimidated and ineffective as long as the executive authorities treat judiciary with condescension, denigration and intimidation.
Bad Laws and Confidential Contracts
In its report the Council further maintained that bad laws, difficult to enforce and frequently amended, were being enacted in Serbia. Hence, e.g. the Judges Act was changed 12 times in last five years and this “clearly showed that the bills were drafted by insufficiently skilled or inexperienced individuals incapable of adjusting the laws to real life”.
Justice Ministry’s Response
Following the Council’s press conference, the Justice Ministry has issued a press release in response to the report on judiciary stating that significant efforts were made from 2012 through to 2016 to improve the situation in the justice system.
“The Ministry is aware that the current state of judiciary is still far removed from what the Serbian citizens deserve and should have, but anyone who wants to see the big picture in objective terms may infer that it is much better now than it used to be in 2012,” reads the press release.
The Ministry highlighted the results of its work in ten bullet-points: refurbishment and construction of judicial facilities, implementation of the Whistleblower Protection Act and the Right to Trial within Reasonable Time Protection Act, reduction in the number of cases against the state before the Strasbourg court, introduction of a new electronic system for domestic violence prevention, etc.
In addition, both the Government, as an executive authority, and the Parliament, as a legislative authority, toe the party line which is why it has almost never happened that a bill proposed by either the Government or a ruling party MP has been rejected. As a consequence, in 80% of all the legislative initiatives the laws were passed in a fast-track procedure without expert public debate.
According to the Council’s findings, such laws are corruptive as they confer large powers on a small group of individuals, which is most conspicuous in privatisation cases where the authority to decide on the manner of sale of state-owned assets without any control and transparency is vested in cabinet members. Thus, many contracts on disposal of state assets are shrouded in secrecy.
“As regards the confidentiality of contracts, it is important if confidentiality is intended as a cover for money laundering and unlawfulness of contractual provisions or as a front for onerous contracts due to corruption (Belgrade Waterfront, Air Serbia, Fiat, Železara – Smederevo Steelworks – a series of contracts on acquisition of agricultural land, etc.),” reads the report.
The Council highlighted as a problem a large backlog of pending court cases. Judicial reform neither yielded results, nor did it make the justice system more efficient. Thus, at the beginning of the reform in 2009, there were 1,318,059 unresolved cases in total; in late 2014 – 2,849,360; and in late 2015 – 2,837,468. A slight improvement occurred when the Supreme Court of Cassation’s president adopted a programme for reduction of the backlog of old cases.
Miroslava Milenović, a Council member, said that judiciary still did not have its own budget detached from the executive authorities. As a result, bank accounts of many courts in 2015 were blocked. The debt of courts in aggregate for the first half of 2015 totalled almost 840 million dinars.
“Budget for courts and prosecutors’ offices cannot be planned in the offices of the Treasury and Finance Ministry,” Milenović told the press conference yesterday. “No one does it that way anywhere in the world.”