Persistence in the judicial impartiality dimension

Western Balkans: limited change

Serbia: absence of transformative change despite commitment

In Serbia, the absence of progress in the judicial impartiality dimension is reflected in all six indicators that haven’t changed much (see Table 7.2 above). The development of judicial impartiality in Serbia was initially constrained by the legacy of the Milosevic government, which lasted until 2000 and was characterized by the absence of judicial independence, a strong executive and the lack of independent media. Law and order additionally suffered from organized crime, which flourished during the Balkan wars. Even after the end of the last Kosovo conflict in 1999, parallel structures of organized crime survived. Influential criminal groups as well as security forces continued to exert influence on politics and the judiciary through blackmailing or violence. The assassination of Prime Minister Zoran Djindjic on 12 March 2003 was the most prominent case of such influence. During the one-month state of emergency that followed (12 March to 22 April 2003), the executive showed strong tendencies to reinforce its power over the judiciary. For example, the government purged 35 judges over the age of 65 and changed the procedures and laws affecting the selection of judges to the detriment of judicial independence (American Bar Association 2009). From 2003 to 2005, political power struggles and government inefficiency delayed important legal reform.

Table 7.1 Selected indicators of judicial capacity

Sources: Council of Europe (2002, 2006, 2010).

Notes

a This indicator includes Word processing, electronic data base, electronic files, e-mail, internet connection; 4 = highest level, b This indicator includes case registration system, court management information system, financial information system; 4 = highest level.

c This aggregated indicator is composed of five different kinds of training for each group (judges, prosecutors) whose weightings are given in brackets: initial training [1.0], general in-service training [1.0], in-service training for specialized judicial functions [0.3], in-service training for management functions of the court [0.3], in- service training for the use of computer facilities in the court [0.3]; 6 = highest level. No mandatory training forjudges required in Serbia, but still provided on a regular basis.

d Latest available at time of writing (Council of Europe 2010). e Percentage change.

Table 7.2 Selected indicators of judicial impartiality³

Notes

a This table reports indicators of judicial impartiality taken from a variety of international surveys. Higher scores indicate better performance, b Source: World Economic Forum’s Executive Opinion Survey (WEFEOS). c Source: Transparency International (TI). d Source: Bertelsmann Transformation Index (BTI). e Source: Political Risk Services Group (PRSG). f Source: Freedom House (FH). g Percentage change.

In January 2005 some positive developments occurred, such as the transfer of crucial powers from military justice to civilian courts and the improvement of functional independence of the War Crimes Prosecutor. In general, however, the politicization of the Serbian judiciary continued. In 2005 the EU noted that the independence of the Serbian judiciary ‘continues to be severely undermined by political pressure on the appointment of judges and prosecutors and their activities’ (European Commission 2005c: 15). It also criticized the new judicial reform strategy, which did not provide clear, professional criteria or transparency in the reappointment procedure of judges. Judicial independence was characterized as weak and the EU recommended that constitutional changes might be necessary to reduce political influence in the appointment of judges and prosecutors (European Commission 2007b).

The EU has further identified a set of power-related factors that undermined the establishment of the rule of law in Serbia, such as ‘constitutional and legal uncertainty, structural weakness and undue politicization of the administration and the judiciary, the high level of corruption, the pressure exerted by organized crime, and obstruction from parts of the institutional, political, military and state security systems’ (European Commission 2005c: 10). Once the EU urged Serbia to tackle the still unresolved issues of corruption and organized crime, the country reacted swiftly. In May 2005 the government developed a strategy for the fight against corruption and in April 2006 another comprehensive National Judicial Reform Strategy followed. Political will to progress with reforms was also demonstrated through the signing of several international conventions on the fight against corruption and organized crime (e.g. the UN convention against corruption in 2005). A new Serbian criminal code entered into force in 2006, aligning it with the Council of Europe’s ratified criminal law convention against corruption. Despite formal legal progress, the EU still criticized Serbia for a lack of implementation and advised it to create a centralized independent anti-corruption body in order to streamline implementation efforts (European Commission 2006d: 11). Serbia’s anti-corruption agency, however, has only become operational in January 2010 and its capacity remains weak (European Commission 2010c).

In recent years, the Serbian governments have restored law and order and also reduced the influence of connected criminal and security networks. According to Stojarova, the assassination of Prime Minister Zoran Djindjic in 2003 provided an impulse to hunt criminals (Stojarova 2007: 99). Despite some progress, the EU noted that the fight against organized crime remains at an early stage (European Commission 2008e: 52). More recently there were some new positive developments, such as the adoption of a National Strategy for the Fight Against Organized Crime in March 2009 and legal changes that gave more competencies to the Specialised Prosecutor for Organised Crime. However, despite many formal and institutional changes, there is a persisting lack of adequate training, personnel and infrastructure to effectively fight organized crime. While changes have occurred, the number of convictions remains low (European Commission 2009d: 52).

The situation of independent media has remained almost unchanged since 2002. According to Freedom House, legal and practical impediments for free media largely persisted. A recent Nations in Transit report has downgraded Serbia due to new controversial media-related laws that were hastily adopted without public debate and because of recent attacks against journalists and media outlets (Pesek andNikolajevic 2010: 458). In sum, while initially reforms in the judicial impartiality dimension were delayed, we can positively note that after 2005 Serbia demonstrated increasing political will to reform. The many formal changes, however, have not translated into much transformative change.