Judges and prosecutors – hundreds of complaints and few sanctions

In mid-January 2016, Slavka Mihajlović was relieved of duty of a judge of the Belgrade Court of appeals for unjustified prolonging of the court case against Sreten Jocić, known as Joca Amsterdam. This case ended up in the Court of appeals following an appeal against the decision of the higher court in Belgrade, by which Jocić was sentenced to 10 months of imprisonment for unauthorized possession of weapons. The process fell subject to limitation due to stalling, and Jocić was finally acquitted.

The decision on suspension of Slavka Mihajlović was passed by the High judicial council – the body in charge of passing decisions on termination of court functions and disciplinary sanctions against judges.

The case of judge Mihajlović is one of the 13 cases which resulted in termination of function of judges in the period from January 2014 to December 2016 in which the disciplinary prosecutor filed a motion to conduct the case. In five of such cases, judges ceased to perform their function upon personal request, while in eight cases suspensions were based on established disciplinary infringements.

In the course of the mentioned three years, the disciplinary prosecutor of the High judicial council received 2,731 disciplinary complaints against judges; the number of proceedings conducted amounted to 78, out of which most were conducted in 2014 – as many as 41. In these three years judges were penalized in 34 cases.

Any natural entity dissatisfied with the work of judges may file a complaint against them.

We judges perceive presidents of courts largely as transmitters of political influence onto the judiciary. On the other hand, they may be calculating that some judges might be powerful and could retaliate against them, so they are afraid for their careers.

Photo: Media centre

Dragana Boljević, president of the Judges’ association of Serbia

The disciplinary bodies of the High judicial council are: the disciplinary prosecutor with three deputies, and the Disciplinary commission, which has a president, two members, and deputies, all coming from the judiciary. Based on the motion of the disciplinary prosecutor, which is, in turn, based on a complaint, the Commission conducts the case. If a party lodges an appeal, the High judicial council decides about the case as the second-instance body.

In an interview with the Center for Investigative Journalism of Serbia (CINS), Dragana Boljević, president of the Judges’ association of Serbia, says that the large number of complaints is not unnatural, as they mostly originate from persons dissatisfied with the outcome of their lawsuit, which is always more than 50% in several hundred of thousands of cases the courts process a year. She also says that in certain cases the Constitutional court annulled decisions on suspension of judges pointing that the High judicial council had not taken care about working conditions, that is, whether the judge could truly observe deadlines or not.

Reasons for not pronouncing sanctions in the cases between 2014 and 2016 were different, including death of the judge, statute of limitation, or cancelation by the disciplinary judge. In 13 out of 78 cases, the High judicial council, in the capacity of the second-instance body, rejected the motion to launch proceedings, while decisions are still pending for some cases from 2016. In three cases upon appeal, the High judicial council confirmed the decision of the Disciplinary commission to reject the motion to launch proceedings.

Sources from the High judicial council did not reply to the request of CINS journalists in relation to this topic.

Unjustified prolongation

Disciplinary sanctions may be in the form of a public reprimand, up to 50% salary reduction for a period of one year, and prohibition of promotion at work within the period of three years. If it is established that the judge committed a grave disciplinary transgression, the Commission launches the procedure his or her suspension.

In the period between 2014 and 2016, 20% salary reduction over different periods of time was the most usual sanction in the decisions of the Disciplinary commission, followed by public reprimands, while the measure of prohibition of promotion at work was pronounced four times; out of these four, the High judicial council modified two decisions, one of them into salary reduction, and the other into suspension of the judge.

Over the period of three years, the most frequent reason for launching of disciplinary proceedings, including those within which judges were suspended, was unjustified delay in composing of the decision and unjustified procrastination of proceedings. The most complaints were against Basic court judges.

Dragana Boljević states that judges, especially in basic courts, are burdened with numerous cases, which is why it could be possible that procrastination of cases is caused by the fact that some complicated cases take more time to be studied than new and easier cases.

The Law on judges makes it obligatory for presidents of courts to file disciplinary charges against a judge as soon as they discover the judge acts contrary to his or her function. In the 2014 Report on work of the High judicial council, it is stated that some court presidents failed to file a disciplinary charges. Reports from 2015 and 2016 do not treat this issue at all.

Dragana Boljević explains it is possible that failure to file disciplinary charges might be caused by the fact that presidents of courts are aware that judges are burdened with numerous cases and the conditions they work in; thus, for instance, they do not have sufficient recording clerks, or adequate access to the Internet. She adds that there also might be some calculations as another reason: “Court presidents are appointed by the National Parliament. We, judges, perceive presidents of courts largely as transmitters of political influence onto the judiciary. On the other hand, they might be calculating that some judges might be powerful and could retaliate against them, thus they are afraid for their careers.”

She also points to possible abuses of disciplinary responsibility because of the composition of the High judicial council which “comprises people under political influence”, who, in turn, appoint disciplinary prosecutors: “We, as judges, are faced with abuses of disciplinary responsibility just because some judge needs to be disciplined in negative sense.”

Ten disciplinary sanctions for deputy prosecutors

Disciplinary responsibility of holders of judicial functions was for the first time regulated in Serbia in 2008, when a set of judicial laws was passed to include the Law on judges and Law on public prosecutor’s office. The High judicial council appointed the disciplinary bodies two years later, in December 2010, and the State prosecutors’ council in May 2013.

The low level of public trust is partly justified, having in mind that in some cases for which the public was interested, the prosecution did not act as if they were “up to expectations” as regarding their task. On the other hand, it seems to me that citizens’ lack of trust in the work of prosecution also largely results from various media campaigns which were frequently not based on facts, but were the result of sensationalism, or were politically motivated.

Photo: CINS

 

Goran Ilić, Commissioners for independence of public prosecutors

Same as the High judicial council, the State prosecutors’ council has its disciplinary bodies, and the manner of filing of disciplinary charges and conducting of proceedings is also similar. The disciplinary prosecutor acts upon complaint and files to the Disciplinary commission a motion to launch proceedings against the public prosecutor or his or her deputy. Sanctions which may be pronounced include public reprimand, 50% salary reduction for the period of no longer than one year, and prohibition of promotion at work within the period of at least three years.

A prosecutor may be relieved of duty in case of a grave disciplinary transgression, when, for instance, the transgression harms reputation of and trust in prosecutor’s office, or if criminal prosecution fell subject to statute of limitation.

In the period between 2014 and 2016, the Disciplinary commission of the State prosecutors’ council received 523 complaints against work of prosecutors and their deputies. Proceedings were launched in 18 cases, out of which only one resulted in suspension. Sanctions were pronounced in nine more cases, while prohibition of promotion was pronounced only once and for the period of three years. Based on the information CINS received, the State prosecutors’ council did not sanction or relieve of duty any prosecutors, only their deputies.

Commissioner for independence of public prosecutors Goran Ilić said for CINS that the primary reason for such a large number of disciplinary complaints lodged is lack of trust in work of the judiciary, thus public prosecution as well.

The low level of public trust is partly justified, having in mind that in some cases in which the public was interested, prosecutors did not act as if they were “up to expectations” as regarding their task. On the other hand, it seems to me that citizens’ lack of trust in the work of prosecutors also largely results from various media campaigns which were frequently not based on facts, but were the result of sensationalism, or were politically motivated, explains Ilić.

Ilić adds that it is strange that there were no cases against seniors in prosecutors’ offices, especially having in mind that the prosecutor’s office is a body in which public prosecutors are superior to their deputies, and that, as public prosecutors have greater authorities, they should also bear greater responsibility. The task of disciplinary bodies is to establish responsibilities of all parties, including public prosecutors, certainly within fair proceedings.

Data of the State prosecutors’ office for the period 2014-2016 indicates that it was deputy municipal public prosecutors who were sanctioned in the majority of cases.

Goran Ilić explains that such prosecutors’ offices are faced with the issue of “undefeatable inflow” of cases: “Insufficient updating or lack of efficiency and omissions in work are more likely to take place at the basic level, because basic prosecutors’ offices are the ones that are mostly buried under plentitudes of cases”.

Sanctions most frequently pronounced against deputy prosecutors in the last three years included 10% temporary salary reduction and public reprimands.

The disciplinary transgression which occurred in eight out of the total of 18 proceedings launched between 2014 and 2016 is that prosecutors do not compose decisions and do not invest legal remedies within the prescribed deadline.

Ilić explains that there are examples of deputy public prosecutors in charge of up to 1,500 cases. There are other issues too, such as insufficient number of recording clerks; thus, in numerous prosecutors’ offices, deputies can conduct hearings and interrogations only once to twice a week, as they may not facilitate typing of minutes.

Inaccurate charges

Almost one third (181 out of 523) cases against prosecutors and their deputies in the last three years were not in the form of disciplinary charges or did not relate to work of prosecutors and their deputies. This is why such cases were transferred to others or filed to the High judicial council or the public prosecutor in charge.

In the course of 2014, 2015, and 2016, the State prosecutors’ council could confirm which infringements were subject to filing charges in only 229 cases.

In their reply to CINS, sources from the State prosecutors’ council explain that complaints are most frequently lodged by citizens, who usually state only Article 104 of the Law on public prosecutor’s offices, which enlists all disciplinary transgressions. They also fail to state the exact paragraph of the Article to accurately describe the transgression in the complaint. In some cases, complaints are filed without any names, only in general terms, against prosecutors and their deputies, which happened in one or even more of public prosecutors’ offices.

Also, Goran Ilić states that in a number of cases, disciplinary complaints are filed because of personal dissatisfaction with the prosecutor’s decision, or with the aim to exert pressure against a prosecutor, especially when it comes to repeated complaints with insulting or defamatory claims.

The issue of complaints was also observed within the High judicial council. In their 2015 Report, it is stated that filed complaints mostly relate to a party’s dissatisfaction with the court decision, in which the High judicial council is requested to amend or modify the decision, or evaluate legality and correctness of the court decision.