By Srdjan Cvijić
The overall ineffectiveness of the judicial system is being used as a perfect smokescreen to give impunity for perpetrators in a number of high-level political cases.Senior Policy Analyst, Open Society European Policy Institute
Serbian President Aleksandar Vucic would appear to be making strides toward securing Serbia’s membership of the EU by 2025. His initiative with Kosovo’s President Thaci would go toward normalising relations between Belgrade and Pristina — one of the European Commission’s conditions, and Serbia’s planned judicial changes are meant to fulfil another EU stipulation.
But government interference in the judiciary remains endemic and the rule of law is still being compromised. Serbia’s failure to introduce genuine reform will seriously jeopardise the country’s European future regardless of possible progress in relations with Kosovo.
The legal reforms agreed with the European Commission promise to end Serbian government interference in the composition of the High Judicial Council (HJC) and the State Prosecutorial Council (SPC), the bodies in charge of appointing judges and prosecutors. Serbia would have to amend its constitution to make these judicial reforms and also to normalise relations with Kosovo.
However, a protracted dialogue with Pristina risks being used to divert attention from the dismal state of the rule of law in Serbia. After pledging to make the judicial reforms by the end of 2017, Serbia convinced the EU that the deadline was unrealistic. We can expect the same to happen with future deadlines.
The study “When The Law Doesn’t Rule” published today by Transparency Serbia and the Centre of Investigative Journalism of Serbia (CINS) shows that the Government lacks a genuine political appetite to curb political influence over the police, prosecutors and judges in Serbia. The report identifies seven ways in which political control is exerted and how systemic weaknesses in the exercise of the rule of law are being exploited.
These “Seven Deadly Sins” include limited accountability of judges and prosecutors for ineffectiveness; the appointment of public prosecutors and court presidents on political grounds; an inordinate amount of discretion allowed to law enforcement when making investigation and prosecution decisions; inappropriate and partial briefing of the media; the misuse and manipulation of statistics; direct political influence on law enforcement; and deliberately dysfunctional criminal investigations in politically sensitive cases.
Take for example the use of the statute of limitations. The inefficiency is extraordinary: statistics recently uncovered by CINS through numerous FOIA requests show that at the end of 2016 there were 1,703 criminal cases before the courts in Serbia that had been litigated for more than five years and 533 cases for more than ten. The overall ineffectiveness of the judicial system is being used as a perfect smokescreen to give impunity for perpetrators in a number of high-level political cases.
The judicial reform process has been seriously flawed. A number of significant stakeholders like the Judge’s Association of Serbia, the Association of Public Prosecutors and Deputy Prosecutors and other relevant members of civil society expressed deep frustration with the process.
A painstaking back and forth with the Venice Commission showed the government’s reluctance to readily adopt even the bare minimum standards proposed by the Council of Europe’s consultative body. The government is unwilling to give up its judicial influence, but will work hard to give the impression that it is making concessions. As long as the majorities of the HJC and SPC are not composed of judges and prosecutors, the system will remain controlled by the parliamentary majority, and therefore the executive. The Judges’ Association of Serbia conducted a survey of 1,585 judges (of the total of nearly 2,800 in the country). Only 8% of the judges thought the HJC ensured their independence, while 83% considered that the Council pursued its own interests and those of political parties.
By displaying strong political will, Serbia is perfectly capable of fulfilling the conditions of EU membership. The first step would be for the Minister of Justice and the Chair of the Justice Committee of the Parliament to stop interfering in the work of the HJC and SPC. They should accept both council’s proposals, act on them quickly, and transfer financial management powers to them. There is no need to wait for the constitutional amendments: they could do it tomorrow.
The Action Plans agreed with the European Commission should be more impact oriented. This means focusing less on the formal aspects of the reforms (generally speaking Serbia has good laws — they need to be implemented) and more directly on the “Seven Deadly Sins” strangling the independence of Serbia’s judges and law enforcement.
For its part, the European Commission should start implementing some of the proposals contained in its February strategy for the Balkans. Trial monitoring of cases of public interest, for example, would make deliberate postponement of court cases and other types of obstruction more difficult.
Serbia is not alone in allowing a reluctance to reform to jeopardise its own geopolitical interests. The dismantling of the rule of law in Hungary and Poland and the growing strength of illiberal forces within the EU is making any enlargement of the Union increasingly difficult. Regardless of any Serbia-Kosovo deal, without meaningful reform of its justice system and the independence of law enforcement from political power, Serbia does not stand a chance of joining the EU any time soon.
Srdjan Cvijić is a Senior Policy Analyst at the Open Society European Policy Institute.
Opinions expressed in View articles are solely those of the author.