Calling this report the most critical one since the beginning of the accession process would be accurate. The criticisms and recommendations of the European Commission (EC) should be taken seriously. Will they be? Since they are meant, primarily, for the state, it is hard to believe that this state, which is a personal authoritarian regime, would make any substantial changes. However, recommendations from the report (at least those concerning judiciary and the rule of law) are also meant for the professionals: judges, public attorneys, police, state officials in the ministries.
What should be done, and what can be?
I will divide the statements from the EC report regarding the judiciary and the rule of law into several categories, which are not identical to those from the Report, nor will they be listed in the same order. My order is informed by the kind of job Serbia now has to do, both as a state and as a society.
(1) The highest shortcoming in the hierarchy is that the constitutional reform which was supposed to strengthen independency of the judiciary wasn’t implemented. The Report says that this task was postponed because of the elections which took place earlier this year. Actually, the elections were only an excuse, regardless of whether it comes from Serbia or the EC. All activities were stopped one year before the elections took place (page 18).
(2) Since the proposed constitutional amendments weren’t adopted, the laws which would have to accompany constitutional changes weren’t amended. Provisions stipulated by the EC refer to election of judges and public attorneys, their professional careers and disciplinary cases. Constitutional changes also require changes in legislation on the High Judicial Council and the State Prosecutors’ Council which would enable efficient protection of judiciary independency and autonomy of public attorneys, in line with European legal and political standards. Also, the laws on organization and jurisdiction of courts and state prosecutors, as well as on responsibility and work of the Judicial and Prosecutorial Council (Chamber) and the Judicial Academy would need to be changed. (pages 18, 19, 20)
(3) A strategic document which might have a huge impact on the content of the missing or inadequate legislation, as well as on negotiations on Chapter XXIII, is the Judicial reform strategy 2013-2018. After its validity expired and the goals it prescribes weren’t fulfilled, in July 2020 a kind of supplementary or accompanying strategy was adopted (not in the parliament, so the issue of the source of its power arises). The EC didn’t give this document a passing grade, since it wasn’t accompanied by a clear financial analysis of the total cost of the judicial reform (page 19).
(4) Revision of bylaws on disciplinary accountability and ethical code of judges and public attorneys, according to the EC, is ongoing. I must add that the fact that these revisions are in progress has been kept from the public, together with the reasons for them and their direction. EC warns that revisions of these bylaws are necessary, primarily for the clearer definitions of disciplinary violations, “strengthening the capacities” (a common stereotype with vague meaning) of disciplinary bodies and for the need to clarify which violations by the judges and public prosecutors may be grounds for disciplinary liability. All these changes must be in line with the European standard that only serious violations and not mere incompetence may lead to disciplinary proceedings. I must add here that the application of this standard in a situation of political rather than legal recruitment of judges and prosecutors to the extent to which the parliament influences the process (which is not negligible now, nor will it be if constitutional amendments are adopted in their current form) would contribute to maintaining existing professional incompetence of one part of the judicial and prosecutorial staff. On the other hand, the absence of this standard could lead to political dismissals or punishments, under the guise of incompetence. Therefore, it is necessary at this moment to list exhaustively, and not indicatively, the offenses that lead to disciplinary proceedings. “Some steps,” the Report said, were taken by establishing ethical bodies as permanent. Except that the mandates of all members expired in 2018, and there was no re-election. (page 21)
(5) In specific areas related to the judiciary that are relevant to the rule of law, the EC recommends changes in legislation on the financing of political activities so that the law is in full compliance with OSCE / ODIHR recommendations (OSCE Office for Democratic Institutions and Human Rights specialized in election observation). It is also recommended to change the Law on Free Access to Information of Public Importance, especially the provisions that prevent access to information when it comes to companies in shared (state-private) ownership, because they are the basis for arbitrary denial of information of public importance. The Report also states that the legal framework for the protection of whistleblowers must be changed to match EU rules. (page 29)
(6) The Law on Churches and Other Religious Communities, according to the Report, needs to be amended to comply with international standards (not specified). (page 32)
(7) The anti-discrimination law, which needed to be amended to be fully in line with EU rules, is still awaiting change. Also, the anti-discrimination strategy expired in 2018, and there is no new one. The mandate of the Equality Commissioner expired in May 2020, and a new one was not elected. Amendments to the Criminal Code that relate to the prohibition of discrimination and the punishment of crimes of racial and other discrimination are not in full compliance with EU rules. (page 36)
(8) In order to exercise the right of access to court, which is part of the human right to a fair trial, the Law on Free Legal Aid was adopted and is in force since October 2019. The Report neutrally criticizes the content and practice of application of this law. (page 38)
(9) The Law on Police must be made to match the Code of Criminal Procedure, which was not done. Also, there is no legislative framework that would guarantee the operational autonomy of the police from the Ministry of Interior Affairs. During the pre-investigation and investigation procedure, the police submit reports not only to the competent public prosecutor, but also to the Ministry of Interior Affairs, which manages media relations and issues press releases. The operational autonomy of the public prosecutor’s office and the police from the security services is not ensured – neither legally nor in practice. Interception and eavesdropping equipment is only available at the Security Information Agency (BIA). Serbia has not conducted an analysis of the role and practice of security agencies and police, regarding the interception and eavesdropping of communications, which it must do in order to be in line with EU best practice. (page 42)
Judiciary and prosecutor’s office, judges and prosecutors and other bodies of importance for the judiciary
General assessment of the functioning of the judiciary (courts and public prosecutor’s office) is that no progress has been made compared to the previous report, which is why all previous recommendations remain in force. (page 18)
(1) The political influence on the judiciary is permanent and raises serious concerns (page 18). From the point of view of legislation, the EC finds that there is still a significant space in both the Constitution and the laws through which illicit political influence on the judiciary is made possible. The EC assesses this influence as strong. Members of the Government, some in the highest positions, as well as MPs, continue to publicly and regularly comment on ongoing investigations or court proceedings. Articles in the tabloids are targeted to discredit judges or prosecutors. In some cases, judges sought an exception in legal matters involving local politicians, citing pressure on them or their family members. The High Judicial Council (VSS) and the State Prosecutors’ Council (DVT) are monitoring such cases, the Report says. During 2019, the High Judicial Council issued two statements condemning public comments, while the DVT acted on 18 complaints and imposed certain measures in three cases. In one case, it found that there were “justified concerns” about public commentary and the media campaign. I emphasize that these figures are far too modest, and the measures ineffective, and that the EC’s assessment of these few activities of the VSS / DVT in relation to the number of public attacks against judges and prosecutors, is missing. Despite the vocabulary, it is certain that the EC considers that the independence of courts and judges, as well as the autonomy of public prosecutors, has been severely violated in Serbia, and that this process is constantly ongoing. (pages 20, 21)
(2) Disciplinary and ethical responsibility of judges and public prosecutors is addressed in the Report only in figures and is not accompanied by comments or recommendations, except for those concerning the need to change legislation and the code of ethics (see Legislative Deficiencies (4)). (page 21)
(3) Professionalism and competence of judges is also expressed in neutral numbers, but is accompanied by critical observations. The EC finds that, in order to improve judicial and prosecutorial independence and accountability, it is necessary to review the system of recruitment, transfer and promotion of judges and prosecutors. The purpose of the audit should be to ensure that the judicial career is based solely on merit, which should be judged by the VSS / DVT, not the parliament. Ongoing training, but not the evaluation of that training, must be part of the professional evaluation of judges, provided that the evaluation must be based not only on quantitative, but also qualitative criteria. (pages 21, 22)
(4) The role and activity of the Judicial Academy in the training of judges and prosecutors was criticized in the Report, in terms of legislation as well as practice. First of all, it is only stated that this Academy operates under the supervision of the Ministry of Justice. This is done in a neutral way, without asking about the need for autonomy of an educational institution in relation to a political body. But, it is further written that there is an “urgent need” to increase the professionalism of the Academy, to improve its internal organization, and to establish a permanent system of quality control. (page 22)
(5) The quality of work of the judiciary, especially the use of databases and electronic connectivity, is not at the level which would guarantee the availability of information to the judiciary. The EC considers that it is necessary to establish a national system of electronic connectivity within the judiciary, i.e. the prosecutor’s office. Some activities regarding this issue started in October 2019. Now we’re waiting for: changes in the legislation, sufficient budget, trained staff, as well as the appropriate communication infrastructure. So, literally everything that is necessary is still not there, despite the vehement bragging about the “successes” of digitalization. (page 23)
(6) The overall efficiency of the judiciary is low. Although the decision-making program on “old cases” has continued, the definition of that term has changed. Before, cases were considered “old” if they’ve been waiting for a first instance decision for more than two years. Today, this is three years. Information on backlog can be found on page 24. Basically, this problem has remained the same in the last three to five years.
(7) War crimes proceedings are addressed by the EC’s views on co-operation with the Mechanism (The Hague), as a successor to the Tribunal. The report says that Serbia has repeatedly and publicly challenged the verdicts of the International Criminal Tribunal, including those passed in the highest degree. Serbia is considered responsible for the fact that the work of the Tribunal had to continue through the Mechanism, because of its long-term refusal to cooperate and extradite the accused to the Tribunal. The prosecution of war crimes before the courts in Serbia is limited, and the 2016 War Crimes Prosecution Strategy is being implemented too slowly. Although this strategy expires at the end of 2020, a new one is not in preparation. The Office of the War Crimes Prosecutor has not published a report on its work since 2018. During 2019, only 16 cases were pending in court, against 44 accused lower-ranking individuals in the military, police or paramilitary formations. There are several procedures that have lasted longer than five years. Authorities in Serbia continue to provide public platforms for convicted war criminals and allow hate speech. The denial of the genocide in Srebrenica by some MPs continues without consequences. It is recommended that Serbia truly commit to investigating and prosecuting war crimes and ensure that priority is given to complex cases involving high-ranking individuals. (page 25)
(8) Crimes related to corruption, prevention and the role of responsible bodies were analyzed in more detail than before and given more space in the Report than usual (pages 25-29). The National Anti-Corruption Strategy expired in 2018, a new one has not been adopted, which is why the action plan for Chapter XXIII had to be postponed. The Law on Prevention of Corruption, which is actually an amended Law on the Anti-Corruption Agency, entered into force in September 2020. The EC estimates that, compared to last year, limited progress has been made in Serbia, with some implementation of last year’s recommendations. The report states that “operative” steps have been taken to strengthen the competencies and independence of the Anti-Corruption Agency. It is regrettable that the EC does not mention those steps specifically, as the public in Serbia is not aware of them. On page 26, recommendations on the necessity of investigation and final adjudication of criminal acts of corruption, on the effective application of the law and the necessity of adopting a new strategy are given. These recommendations, however, are generalized to an extent that prevents control of their implementation. On pages 26 and 27, a more curious reader will find figures that show not only the inefficiency of the Agency, but especially the prosecutor’s office and courts, even when the Agency decides to initiate certain procedures. The Anti-Corruption Council, as the Government’s advisory body, despite not working in its full capacity (they have only seven, instead of the 13 members required) has a valued place in the Report, just like before. The government is criticized for not having a constructive relationship with the Council.
The EC’s position on human rights in Serbia is based on the assessment that the legislation is generally good, with some exceptions, but the main problem is that consistent and efficient implementation of the law is not ensured. It is especially emphasized that the problem is the application of the rules on freedom of expression and that the recommendations from the Report for 2019 weren’t applied. It is especially recommended that Serbia should:
– strengthen human rights institutions, in particular their independence, by providing sufficient staff and sources of funding; therefore, it is necessary to amend the Law on the Ombudsman and the Law on Access to Information of Public Importance;
– adopt and implement a new strategy for the protection of persons facing discrimination and actively conduct investigations and trials for hate crimes;
– ensure the implementation of legislation on minorities, including the Roma, so as to lead to effective exercise of their rights throughout the country.
The general assessment of the human rights situation includes government decrees restricting human rights during the state of emergency declared on March 15, 2020, including a total ban on the movement of persons over 65 (70 in rural areas). The authorities informed the Council of Europe about the restrictions on human rights only after 3 weeks, on April 6, 2020, without information about the measures taken. (page 30)
(1) The prohibition and prevention of torture in Serbia, on the one hand, has been strengthened by the introduction of stricter penalties for these crimes and changes to the Criminal Code in June 2019, and on the other hand, endangered by the introduction of life imprisonment without legal possibility of parole for a number of crimes, which has caused concerns about the compliance of this change with the European Convention for the Protection of Human Rights and Fundamental Freedoms. (page 31)
(2) The EC views on the prison system and the rights associated with it can be found on pages 31 and 32; on the protection of personal data, on page 32; on health data and sending a disturbing message from the Crisis Committee through only one mobile operator, on page 32; on freedom of conscience and religion, on page 32. I will not present these parts of the Report because they are completely descriptive.
(3) Freedom of expression has attracted, for many reasons, the highest attention of the European Commission. Although Serbia adopted a new media strategy in January 2020, which it claims was prepared “in a transparent and inclusive manner”, there is no progress, in the overall environment, in freedom of expression.
It is recommended that Serbia should:
– establish an environment in which freedom of expression can be exercised without hindrance and to ensure that threats, physical attacks, violence and breaches of the privacy of journalists and bloggers are effectively prosecuted and publicly declared unacceptable by public officials;
– ensure full implementation of media laws and strengthening the independence of REM;
– provide adequate financing of public services, transparent co-financing of media whose content serves the interests of the public, and improve the transparency of media ownership and advertising. (page 33)
As usual, the recommendations are general, without specifying an action plan, which makes their control and subsequent evaluation difficult. And quite unimaginative. How can an autocrat be expected to publicly condemn threats and attacks initiated by himself?
Cases of humiliation of journalists, including arrests, well known to the Serbian public, are described on pages 33 and 34.
Issues and problems of application of REM legislation are only descriptively presented on pages 34 and 35.
On public services, briefly and only descriptively, see page 35.
On funding, see pages 35 and 36.
(4) Freedom of assembly and association, the Report said, is guaranteed by the Constitution and is largely respected. There is not a single word in this part of the Report about the excessive physical attack of the police on the citizens, the arrests and controversial prosecution of the demonstrators in June 2020 (page 36).
(5) Discrimination, according to the EC, particularly affects human rights defenders and members of the LGBTI community, who often face hate speech, threats, and violence. The Commissioner for Equality expressed concerns about the increased discrimination during the state of emergency, especially against women, the elderly, persons infected with Covid19, returnees from abroad, and LGBTI persons. (page 36)
(6) Other rights, processed through legislation and the position of certain persons, are described on pages 36-40.
Although this report, I repeat, is extremely critical when compared to all previous ones, it remains bureaucratically anemic for two reasons: due to the use of terminology that aims to smooth the problem rather than explain it, and due to the generality of recommendations given to the candidate country. However, it is discouraging because it shows how far Serbia is from many important and deeply established European standards.
How could we, as a society, react to this report?
Actively, contemplatively, by shrugging our shoulders?
Perhaps, and I limit myself to the part of the Report discussed here, we could approach it professionally. If the state does not want to, if the VSS and the DVT do not, there are still traces of civil society in Serbia. Civil society which was, and should be now, a representative of vita activa, one which doesn’t take actions headlong, but on the basis of reflection and knowledge. We’ve had more difficult historical moments than this autocratic one. And more serious diseases, and less medicine, than in today’s pandemic. Society can always start anew, just like each person. Why is it impossible, for example, for representatives of the Association of Judges, the Association of Prosecutors, the Bar Association, the police union, reputable non-governmental organizations dealing with justice and human rights to sit together (I will not mention any by name, in order to not omit anyone)? Almost 3,000 doctors have already united and showed us that this is possible! Their representatives negotiate, submit requests. They promote vita activa. Let us meet, with masks and at the necessary distance, and try to determine what this Report means for Serbia, to fully understand all the shortcomings of legislation and practice and to recommend what should be done. And then, when at least some of those I’ve mentioned support us, we will have the legitimacy to demand it.
We do not only have the right to contemplate, we must take action. And not only in the street, but also in our speech and writing. Action takes place between people, it is directed towards them. It generates the establishment of a relationship between us. That is the lesson of Hannah Arendt in “Human Condition”. It has been said many times that a lawyer is one who thinks differently, that is, critically. I believe that something must be added to that: a lawyer is a person who thinks and acts differently, that is, critically. This is necessary when dealing with this kind of government.
Translated by Marijana Simic