A number of factors must be aligned for rule of law to thrive. Government’s must avoid overreach, media must have access and editorial freedom, the judicial corpse must be separated by a Chinese Wall from the political establishment.

A report published this week suggests Serbia’s rule of law standards leave a lot to be desired.  The “When the Law Doesn’t Rule” study is co-signed by the Open Society European Policy Institute, Transparency Serbia, and the Centre of Investigative Journalism of Serbia; it identifies seven ways in which political control is being exerted over Serbian Justice.

Political influence weighs on the whole chain of the Judicial process: the judiciary, prosecution, and police. And the report makes clear that these weaknesses are “systemic.”

“Systemic” is the limited accountability of judges and prosecutors, as they are not evaluated on results.

“Systemic” is the political influence exerted in the selection and appointment of public prosecutors and court presidents.

“Systemic” is the large scope for discretion allowed to police and prosecutors, which allows for political influence on law enforcement, especially in politically sensitive criminal investigations.

Alas, “systemic” is the inappropriate and partial briefing of the media and the misuse and manipulation of statistics.

European Interest spoke with one of the authors of this study, Srdjan Cvijic. Dr. Cvijic is a Senior Policy Analyst for the Open Society European Policy Institute (OSEPI) and a leading expert on EU enlargement in the Western Balkans and Turkey. He has been engaged in EU policy work since 2005. Before joining the Open Society Foundation in 2015 he worked at the European Policy Centre, the NATO Parliamentary Assembly, the Stability Pact for South Eastern Europe, and the diplomatic service of the Republic of Serbia.

European Interest: Your report finds political interference over the legal process, from the police and the prosecutor and all the way to the judges. Who benefits?

Serdjan Cvijic: The case studies in the publication clearly demonstrate who benefits from the state capture of the judiciary branch and law enforcement.

It is the oligarchy in power. Businessman or public personalities close to parties in power or politicians, including ministers, that are members of these parties benefit from the current system. Let me offer an illustrative and slightly surreal example from our research: the Belgrade Higher Prosecutor’s Office failed to correct a typographic error in the indictment against Slobodan Milosevic’s wife and nine other inductees which is why the 14-year long criminal trial has been further delayed for more than a year.

It is important to mention in this context that Slobodan Milosevic’s former Socialist Party participates in different governments in Serbia for the last decade. In the overall climate of extraordinary inefficiency where at the end of 2016 we had 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, it is difficult to single out such high political cases.

Yet, 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. Too many criminal cases reach a statute of limitations in Serbia, including the case against a businessman and politician close to the ruling Serbian Progressive Party Karic that our partners from CINS investigated as part of our publication, and many others. The statute of limitations is not just a manifestation of a deeply inefficient court system in the country but also a dirty code word for impunity. The cases covered in our research are just the top of a very dirty iceberg.

And by that token, who is usually the victim of the miscarriage of justice?

Common citizens, without any doubt.

On top of the statistics on criminal cases (that are by the way obtained not directly from state institutions but through hundreds of FOIA requests from our partners from CINS to different courts all over the country), we have the statistics of the overall statute of limitations in Serbia.  At the end of 2016, there were more than 9000 cases that have been going on for more than five years and 1490 cases lasting more than ten years. This means that it is extremely difficult, almost impossible for a common citizen to seek justice in courts. St Augustine used to say, “Remove justice, and what are kingdoms but gangs of criminals on a large scale”.

The situation where a common citizen doesn’t rely on courts and law enforcement to seek justices brings us away from the rule of law and towards the state of nature, where power, not justice, prevails. Let me give you an example: in the night between 24 April and 25 April 2016, a group of people with hoods over their heads used dredgers to demolish several buildings in a street in the center of Belgrade, in the part of the city called Savamala. People who went through Savamala at that time later reported that the group was abusing them, among other things that they had taken their cell phones and tied them up.

The police did not respond to the calls of citizens to react that night.

In the pre-investigative procedure for the case of Savamala, the police had not submitted evidence to the Higher Public Prosecutor’s Office for 14 months, which was why the work of the Prosecutor’s Office was delayed.

After four requests for submission of evidence and information on police conduct, at the end of September 2016 the Prosecutor’s Office sent an urgent appeal to the police. More than eight months later, in June 2017, the requested report arrived at the Prosecutor’s Office, but the perpetrators of demolition were not detected.

In May this year, despite credible claims (investigated by another excellent investigative journalist portal from Serbia KRIK https://www.krik.rs/tag/rusenje-savamala/) that the highest echelons of power in the city of Belgrade were involved in the case. Finally, all the blame fell on a Belgrade police shift commander that signed a plea bargain agreement with prosecutors over the tearing down of houses. He pleaded guilty to failing to react to reports that buildings were being torn down and people being held prisoners. The plea bargain agreement had been signed giving him a suspended sentence.

Stamenkovic is the only person named in the case by the prosecution.

Is Serbia on a path of linear progression and improvement when it comes to Rule of Law?

No. On the contrary. Serbia is experiencing a backsliding since at least 2012.

It has not always been that way. With some ups and downs Serbia experienced gradual reforms and progressed towards fulfilling EU standards ever since its democratic revolution that overthrew the former dictator Slobodan Milosevic from power back in 2000. What we experienced in the first decade of Serbia’s renewed democracy is a gradual establishment of independent institutions and the strengthening of civil society in the country. Ever since the parties that were in power during the Milosevic era came back to power in 2012 we see a gradual backsliding in the rule of law field.

Several oversight bodies, such as the institution of the National Ombudsman back in 2017, gradually, through appointments of pro-government officials, started losing their hard-won independence. The next in line may be the Commissioner for Information of Public Importance and Personal Data Protection whose mandate is due to expire at the end of this year. Ever since the adoption of the Law on free Access to Information of Public Importance in 2004, the work of the Commissioner has allowed the general public to find out information that without it would have died as secrets within the walls of until then impenetrable state institutions.

Without the Commissioner, for example, we wouldn’t have the information necessary to identify the seven Deadly Sins strangling the independence of Serbia’s judiciary and law enforcement. As I mentioned, there have been hiccups when it comes to the strengthening of the rule of law in Serbia even before 2012. The EU was, for example, very critical of the failed justice reform conducted by the previous governments in 2009, yet never, since the fall of the dictatorship in 2000, has any government acquired such concentration of power at all levels as the present one.

Given that rule of law, democratization, and freedom of the press are always evaluated in comparative perspective, would you say that Serbia’s rule of law standards do not meet the current EU benchmark? Are you being too hard on Serbia?

They do not meet the EU standards.

he Serbian government itself has acknowledged that by accepting the recommendations of the European Commission to eliminate the political influence over the judiciary.

Yet, all the deadlines for fulfilling the requirements of this action plan have been broken. 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 High Judicial Council and State Prosecutorial Council are not composed of judges and prosecutors, the system will remain controlled by the parliamentary majority, and therefore the government.

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.

Now you can possibly compare the situation in Serbia with that in some EU member states such as Hungary but do we want to use Hungary’s rule of law situation as a lowest common denominator for entire Europe? Hopefully not. The European Parliament’s vote in September triggering the article 7 procedure against Orban’s regime was very clear in that regard.