INTRODUCTION
The modern state, in theory, rests on the balance of three branches of power: legislative, executive, and judicial. Each of these branches has the responsibility to protect public order within its jurisdiction. For any branch of power to be functional and capable of performing its duties, it must be efficient. The efficiency of state power involves not only the good organization of the specific power system and the proper setting of priorities in action but also an understanding of the position of each branch within the overall state structure. Imbalances in the relations between the branches of power may not necessarily be the greatest problem when viewed from the perspective of the functionality of the overall state power, and often represent a logical consequence of the varying degrees of efficiency of each branch. An inefficient branch of power inevitably falls under the influence of the more efficient one. For this reason, indiscriminately highlighted the problem of imbalance can contribute to the further weakening of the very branch of power that is already in a subordinate position.
It seems that this is exactly what has happened with the judicial power in the Republic of Serbia. Over the years the judicial power identified that the largest and often the only problem is the executive power. The reasoning for this belief is that the core systematic errors in the organization and functions of the judiciary have not been properly addressed for years. What the judiciary failed to understand is that it has generated the same number of weaknesses as the executive branch.
The weaknesses, which are now clearly visible not only to judicial authorities but also to the public, were initially thought to be easily fixable once the judiciary was no longer under the control of the executive branch. However, over time, these issues have only worsened. Despite this, there has been a complete lack of effort to identify the root causes of these problems, meaning the specific systematics failures that have led to this situation of the judiciary remain unanswered.
It can be said that insufficient responsibility is at the core of all systematic failures. Responsibility itself is a generic concept under which such failures could be recognized. However, responsibility cannot be introduced with magic words or a brilliant mathematical formula. Introducing responsibility into the judiciary is a process that needs to be initiated. The seed of responsibility must first be planed, then carefully watered and nurtured, and finally, one must be patient when harvesting the fruits. In order for responsibility to be sown at all, it is necessary to first clear the weeds. These weeds consist of established practices of self-management, which the judiciary mistakenly believes to be unchangeable.
Although one might expect that, as in the previous metaphor, weeds would refer to insufficient independence or questionable expertise of the judiciary staff, we believe that even discussing these issues in the current circumstances is nothing more than wasting much-needed time and unnecessary clouding the focus.
It is, in fact, undisputed that the level of independence and expertise of our judges is not satisfactory, but this is not the case only in our country. In his criticism of the judiciary, the renowned American economic Stiglitz addresses precisely the insufficient independence and problematic expertise of no less than the judges of the U.S. Supreme Court. Stiglitz notes that the credit for the public’s attacks on the Supreme Court “goes to President George H.W. Bush and his appointment of the disastrously unqualified Judge Clarence Thomas.” Similarly, Stiglitz argues that America has a court “that many perceive as just another instrument in the general partisan struggle”, criticizes Congress for refusing to “even consider Obama’s highly qualified nominee Merrick Garland”. And concludes that “it is naïve to think that we can have a Court that is completely above politics,” but “we could have a Court that is less biased and where such rigged appointments do not happen as frequently”. [1]
It should be noted that the issue of judicial independence and expertise is not something that is only happening in our country. It is a global challenge that is faced by all kinds of judicial systems around the world. Even highly respected and valued systems, such as the U.S. judiciary, have faced these kinds of struggles. Although our judiciary does not fall behind on the most important matters such as the independence and expertise, we face unique challenges that many judiciaries in the West could not comprehended or even dream about.
Therefore, the task is to identify the anomalies that are characteristic only for our reality, because, unlike other European countries, including former communist states of the Eastern bloc, only in this region have institutions been infected by the experiment of self-management.
We believe that all the fundamental anomalies of the Serbian judiciary, arising from and sustained by irresponsibility, can be classified into four major problem groups:
- Lack of efficiency
- Lack of consistency
- Promotion of dishonesty and negligence
- Relativization of what is good and just as the highest goal of the judiciary existence
Within these categories, it is necessary to identify the root causes of the judiciary’s dysfunction and the effective treatments that we could use to remove them. Further analysis will present our view on these issues and the specific solutions that could be used to resolve them.
II THE MIXING OF THE PUBLIC AND PRIVATE SPEHERS AS THE SEED OF THE DEVALUTATION OF LAW AND MORALITY
The lack of accountability, which has been deeply rooted in our society since the late 1980s, is the core issue behind the current approach of the judicial authorities. This was carried out by the renowned law professor Andrija Gams, who identified the systematic error in the context of property relations during last phase of self-managed socialism[2].
According to Professor Gams’ analysis, the flawed and unclear understanding of social ownership led to a discrepancy. Enterprises treated their property as if they were the owners, but were never held accountable for its management. The mixing of public and private interests that is combined with the lack of accountability (since “inadequately regulated responsibility can sometimes lead to irresponsibility”), lead to a catastrophic consequence for the society. Gams emphasizes the concept of “grouping”, which refers to the alliance between political and economic powerholders. This alliance generates unaccountable influence and removes any sense of responsibility, even in cases where the system suffers significant harm.
What is crucial for our analysis is the impact of the above-mentioned contradictions on the “incoherent, fragmented, confused, and inefficient legal system”, which leads to the erosion of law and morality. In addition to elaborating the typical understanding that people have, namely that “nothing can be achieved without connections, so they try to find a connection even when they could achieve what the law entitles them to without one”, Gams also cities a statement submitted by the Constitutional Court to the Assembly of the SFRY in March 1985 regarding the state of constitutionality and legality. Considering it important for this analysis, we will fully quate that statement: “Guided by narrow, partial interests, individuals often use their social position to influence the application of the Constitutional and laws according to these interests. They… often use their authority to exempt from responsibility those who do not act in accordance with the Constitution. This becomes apparent not only in the application of the law but also in its creation, which is particularly dangerous for the protection of constitutionality and legality, because it produces long-term harmful consequences”. This quote was taken by the author from an interpretation published in the daily newspaper Politika on March 7, 1985.
Time has fully tested this analysis, and later events have proven its credibility. The seed of “grouping” and the absence of responsibility, particularly harmful to the legal and value (moral) system, was sown during the time of self-managed socialism. In the era of the communist social order, before introduction of self-management, there was responsibility, and thus most legally meaningful doctrines, although often unenforceable, originated from that period. For the purposes of this discussion, it is less important whether that responsibility was established before party authorities or in some other way. With the introduction of self-management, a new economic system was created, in which the phenomenon of widespread irresponsibility emerged, gradually trickling down from the highest officials to those lower down, eventually becoming the characteristics of the society as a whole. This was undoubtedly aggravated by the events of the 1990s, which coincided with the period of transition and the new redistribution of wealth. This particularly affected the judiciary.
The general lack of interest in the rule of law, which was one of the defending features of the 1990s, left its greatest mark precisely in the sphere of the judiciary. Due to the degradation of the judicial function and meager salaries, a large number of judges permanently left the judiciary and switched to the legal profession, which led to a sharp decline in the quality of the judicial workforce. Concurrently, “grouping”, or the trading of influence of judicial appointments, began to take on incomparably larger proportions compared to the 1980s, making “connections” a fundamental condition for a candidate to even be selected as a judge. As a result, the motivation of judicial trainees and legal associates, as well as the judges themselves, was completely lost. Perhaps the most serious consequences of that period are the total loss of personal responsibility among those holding judicial positions and employees in the judiciary, which has persisted as a standard to this day.
It is notable that, during the first two decades of the twenty-first century, this issue was not recognized by the judicial and executive authorities in Serbia. Additionally, international bodies, which had become the primary authorities for identifying problems within the Serbian judiciary, also failed to address it. This is likely why the judiciary consistently attributed the causes of the problem to various factors within its scope. These ranged from the state (accused of applying political pressure and underfunding the courts) to the legal profession (which was blamed for overburdening the courts), and even to the laws themselves (which were criticizes as being unworkable). No one asked the most basic question: what is the judiciary’s responsibility, or at the very least, its complicity in failing to address these existing problems?
III SELF-DEVALUATION OF THE JUDICIARY AND RESPONSIBILITY – HISTORICAL AND CURRENT ASPECTS
It is entirely clear that the integrity of each judge is both the most crucial aspect of the role itself and an essential personal trait of the individual holding that position. Judicial power rests on integrity, and without integrity, it can never be in balance with the legislative and, more importantly, the executive branches of power. Integrity is expected and assumed of a judge. Without integrity, a judge would be a job title, not a way of life, one that is characterized by responsibility toward society.[3]
Integrity in the academic sense is defined by certain traits: honesty, trust, fairness, respect, responsibility, and courage. [4]These are precisely the qualities that society and every individual expect from the personality of a judge, with this expectation being innate and intuitive, rather than a result of the level of education or knowledge. Every rural serf, who in the period before the establishment of statehood and the appointment of the first institutional judges during the reign of the Constitutional Defenders, performed judicial duties within the community, was chosen based on these very traits, and this understanding has remained deeply ingrained in the collective consciousness of the people. Therefore, we can assert that the integrity expected of judges is based not only on positive legal revisions but also on tradition; it is not characteristic only of Western democracies but also of our legal heritage, and as always been a societal prerequisite for performing the judicial function.
The concept of self-management, as mentioned in previous discussions, in a certain sense led to a deviation from the classical understanding of a judge’s integrity. The judicial function was understood as a public social function, and the responsibility of judges as its bearers was subject to “all forms of responsibility of the bearers of public social functions, as provided by the constitution, law, and self-management acts adopted of the judicial function, in contrast to the possibility of understanding the concept of a self-managed community. [5]Even expertise, as formally required as it was, was subject to the evaluation of that very community, and thus it depended more on the observer’s perception than on the actual qualities related to knowledge and understanding of the law.
As for responsibility, it was twofold – responsibility toward the achievements of self-management on one hand, and responsibility regarding labor-law obligations on the other. The problem, however, arose with the cessation of self-management and the change in the system, at which point the bearers of the judicial function retained responsibility solely with regard to labor-law obligations. The reason for this is the fact that no one addressed judicial matters for a very long period of time. Specifically, the moment that marked the system change was the adoption of the 1990 Constitution, followed by wars, hyperinflation, and general social anarchy. It is in this context that the causes of the current situation should be sought, where the responsibility of judges is understood exclusively in the context of obligations arising from their employment relationship.[6]
However, all of this did not per se devalue the judiciary nor diminish its power, at least not in the 1990s. Paradoxically, the process of devaluing the judiciary and renouncing its essential power was carried out by the judiciary itself, and the primary cause for this was pure fear of responsibility.
The irresponsibility of those holding positions in the judiciary, as well as judicial officers, which was promoted under self-management (and culminated in the 1990s), became the modus operandi of most courts in Serbia. Just as there was no substantial sanction for unprofessionalism or lack of expertise there was no reward for quality. Due to these unmet expectations, ambitious legal professionals left the judiciary, and their positions were largely filled by lawyers with connections and interests aimed at a peaceful work environment with minimal responsibility. The criteria for appointment to positions also boiled down to the quality of political connections that would ensure selection, regardless of the qualifications of the candidate, and salaries were not only discouraging but often symbolic. Managing a simple case by a judge who transitioned to the legal profession could provide him with several years’ worth of earnings compared to the judge’s salary. The choice presented to individuals with integrity was simple.
Political compatibility was, and still remains, implied, and it naturally arises from the “institution” of connections. On the other hand, it is a variable category because political suitability was never ideologically defined (as it is in some Western countries), but such suitability was created solely in the direction of serving those in power, regardless of ideology. A powerful politician from the 1990s is attributed with the statement that the judiciary is a job for women. Indeed, when looking at the gender structure, outside the context of this statement – which could certainly be subject to numerous critiques – the vast majority of judges and judicial staff are indeed women. Indeed, a considerable number of judges, in the recent past, have informally stated that they chose the judiciary because involves little stress and minimal workload. Whether such statements reflect the actual situation is not relevant to this analysis. However, the personal attitude of certain judges toward the concept of responsibility certainly is.
In such a state, the judiciary has started perceiving itself as an insignificant social factor. It is hard to determine when this perception became the majority stance among those holding judicial positions. However, such a perception undeniably exists. This is one of the reasons why the judiciary has never truly taken control of judicial power, and one of the reasons why those holding judicial functions, as well as international actors, insist of improving independence of the judiciary. Indeed, academic Slobodan Perovic, within the concept of judicial independence, developed the idea of Law of the Twelve Tables of Judicial Independence, which essentially incorporates both integrity and substantive responsibility, and in our opinion, this concept could serve as a foundation on which to build the positions of judicial power.[7]
On the other hand, the lack of judicial independence is not a direct result of the legal framework or undue influences, but rather a consequence of decades of behavior within the judiciary, which has conveyed (and still conveys) messages of suffering, fear, humiliation, and inferiority towards the executive branch. [8]In psychological terms, such a narrative leaves little room for integrity and dignity, the proclaimed values that should characterize those holding judicial positions.
We can, therefore, conclude that the judiciary has for too long positioned itself as a victim of the executive branch. Like any other victim of violence, the judiciary, by its inability to resist the aggressor, places itself in a subordinate position not only in relation to the executive branch but also to media, financial, and other centers of power, and even in relation to citizens, in doing so, the judiciary has deprived itself of any real influence, as well as the ability to resist even the slightest pressure. As Radbruch, quoting Kant, observed: “He who makes a worm of himself cannot complain afterwards that he is stepped on”.[9]
The question is why anyone would agree to such a position. Victims of violence are often in this position due to emotional blackmail, the interest of children, or poor financial circumstances. What does an entire branch of government, in a theoretical sense, have to preserve by agreeing to such a position? The answer is quite simple – irresponsibility, as the ultimate advantage of existence within the judiciary.
III. 2. THE RELATIONSHIP BETWEEN LEGALITY AND RESPONSIBILITY IN THE ACTIONS OF COURTS IN THE REPUBLIC OF SERBIA
The basic principle of modern public law is the principle of legality. In order to act according to the rule of law, every public administration official must be accountable, based on the delegation of authority. This premise of administrative law can be extended to the entire field of public law.[10]
Legality, therefore, rests on responsibility, just as justice, according to Radbruch’s understanding, is a polar value that requires resistance in order to be truly achieved.[11]
The lack of responsibility leads not only to the collapse of legality but also to the undermining of dignity of every citizen or entity dependent on the courts. Is there a better example of this than the general narrative that ties every problem in the judiciary to the concept of a “case”, which is a classic bureaucratic mannerism? By placing the resolution of problems regarding the existence of a case at the center of judicial focus, judges inevitably become more like clerks, transforming their responsibility to legality into a responsibility for efficiency. In a dissenting opinion by a judge of the German Federal Constitutional Court, it was explained that “…All state authorities are obliged to respect and protect the person in his own value, in his individuality. He must treat impersonal as an object, even if this is not due to disrespect for the individual, but with the best of intentions. “[12]It seems that the approach of courts, which places the object of the case at the center of the problem, instead of protecting the interests of the person who initiated the case, is the tip of the iceberg of irresponsibility that has accumulated in the judiciary over the years.
The problem of irresponsibility in the judiciary has been identified multiple times, but always in the wrong way. The famous judicial reform of 2009, among other things, aimed to address the issue of irresponsibility, but it incorrectly targeted the source. The general reappointment of judges, which caused irreparable damage to the reputation and functionality of the judiciary, is a consequence of the irresponsibility of those in the highest positions, who were also the creators of tools used to attempt to solve the problem or irresponsibility.
A similar situation occurred with later reforms, which, as a common feature, focused on addressing the consequences of the problem, without even a near-identification of the actual causes.
The essence is that all reforms sought irresponsibility among first-instance judges, particularly in relation to their labor-law obligations. In contrast, irresponsibility was created in appellate and republic courts, and especially in the Supreme and Constitutional Courts, through the lack of guidelines for judges’ actions aimed at eliminating irresponsibility. It is true that there are many problems in first-instance courts, but most of them are beyond the fault of the judges themselves. After all, the current position of first-instance judges, especially in Belgrade courts, is largely defined by impossible demands placed upon them. The problem with responsibility lies elsewhere and is certainly not related to the fulfilment of labor-law obligations of individuals, but rather with an irresponsible approach to judicial authority.
Responsibility, which is necessary for legality, has disappeared due to illegality. Illegality has arisen from inadequate, irresponsible, and incorrect application of the law. The Kopaonik School of Natural Law and its founder, academician Perovic, long ago identified the essential elements of the crisis in the legal system and took a stand on them. These key elements include: deficiencies in the quality of law; deficiencies in the quantity of law; non-application or biased application of the law; threats to the principles of constitutionality and legality; legal uncertainty as a notorious social fact. What is even more important, the Kopaonik School points to the absence of a general concept of our law in terms of the idea of law and philosophical orientation. [13]Without a general concept, there is no direction for the development of law, and without a direction for development, there are no legal doctrines. On the other hand, the lack of a general concept of law is primarily due to the absence of responsibility.
The general concept as a prerequisite for development, therefore, implies the prior establishment or restoration of responsibility within the judiciary. However, this certainly cannot happen quickly, and certainly not with any significant result. This is not a matter of our decision, but rather a necessity of society. To use Morley’s words from his famous essay On Compromise, the further progress of the judiciary depends on the revival of the energy of modifying forces, before the current structure becomes ossified and inelastic. The history of civilization is the history of replacing old concepts with new ones that are more suited to the facts. This is a way of removing old institutions and ways of life in favor of others that are better suited to meet the demands of the people.[14]
Therefore, the fundamental demand placed before all those who have the energy to be modifying forces is relatively simple: we must understand that self-management is the past of this society and that the institutions of that system have survived only in the judiciary; these institutions must be changed and adapted to the needs of society and every individual who expects nothing less than justice from the judiciary. When we move in that direction, we will realize that the cause of every anomaly is the lack of responsibility, and that the anomaly arose from the modification of responsibility within the self-management system.
In more simple terms: the demand is to cleanse the judiciary of the remains of self-management.
IV THE RELATIONSHIP OF COURTS TOWARDS THE EFFICIENT USE OF STATE RESOURCES IN THE EXERCISE OF JUDICIAL POWER
In the introductory considerations, we presented the thesis about the existence of four types of weeds that hinder the proper functioning of the judiciary in practice, which, like any other weed, is a consequence of irresponsibility. Among these four categories, the lack of efficiency stands out, as solving this systemic flaw is a prerequisite for addressing the other three. This certainly does not mean that the lack of consistency, the promotion of dishonesty and carelessness, and the relativization of what is good and just are less important priorities that the judiciary must address, but in order to resolve these anomalies, the judiciary must be functional.
On the other hand, the fact is that all four systemic flaws are interwoven, both in their manifestations and in their mutual influence, where one systemic flaw supports the development of another flaw. Inefficient judiciary, in fact, leads to inconsistent court rulings, while inconsistency favors the abuse of law and, consequently, promotes dishonesty and carelessness, which results in the relativization of what is good and just. However, it all starts with inefficiency, as the main creator of all other anomalies. The inefficiency of our judiciary can be best seen by comparing it to systems that are efficient, such as the legal system of the United States, for example.
In this sense, we note that the United States, which has 50 times more judicial systems than Serbia, 50 times more inhabitants, and several hundred times greater annual influx of cases (around 100,000,000 cases annually compared to hundreds of thousands of cases in Serbia), has only 10 times more judges at the state levels (around 30,000 state judges compared to 3,000 judges in Serbia) and even 50% fewer judges than us at the federal levels (1,500 federal judges in the U.S. compared to 3,000 judges in Serbia). Moreover, the U.S. has never had, nor does it have, a problem of court overload. For example, the Appellate Court of New York, whose jurisdiction, in addition to New York, covers three other U.S. states, has only 7 judges, who in 2023 render a total of 2,079 decisions.[15] What about the rest of the judicial decisions, considering that the number of appeals and other legal remedies submitted to this court was certainly much higher?
To explain this phenomenon, we will analyze two typical cases from our judicial practice, one from the civil law area and the other from the criminal law area. The cases to be analyzed are not only not extreme occurrences in our judicial reality, but on the contrary – cases based on the same principles are dominant in our courts. At the same time, we will attempt to hypothesize how American courts would handle similar situations.
IV 1. COMPENSATION FOR NON-MATERIAL DAMAGE DUE TO THE VIOLATION OF PERSONAL RIGHTS – AN EXAMPLE FROM CIVIL LAW
The first case for analysis will be the compensation for non-material damage, with the value of the disputed matter being 100,000 dinars, which was ultimately concluded with a judgment of the Supreme Court that amended the first-instance decision and reduced the awarded compensation to 80,000 dinars. At the same time, the court upheld the decision regarding the costs of the court procedure at 170,000 dinars, and also awarded the defendant (in this case, the defendant was the state[16]) the costs for preparing the appeal in the amount of 36,000 dinars. In this case, 4 hearings were held, the hearings were postponed 2 times, an appeal and a revision were field, and a total of 7 judges were involved in the process (1 in the first instance, 3 in the second instance, and 3 in the revision procedure).
This exemplary case is typical for our judiciary, while a similar case is almost impossible to find in efficient judicial systems, such as, for example, the American judicial system.
What can we conclude from this case:
- The plaintiff decided to file a lawsuit from compensation for non-material damage in the amount of 100,000 dinars, which is roughly the amount of the average monthly salary in the Republic of Serbia. The judge in the first instance considered that for this amount, the state should allocate as many as 6 court hearings, which involve certain costs (the engagement of the judge, court reporter, assistant, postal service, paper, electricity, etc.). For comparison, if the plaintiff had wanted to rent a children’s playroom for 6 sessions, without involving highly skilled personnel, he would have paid the market value of the rental, which exceeds the 100,000 dinars he sought in the lawsuit.
- The defendant field an appeal, and then a revision, requesting that the awarded compensation be reduced to 80,000 dinars. This led to the involvement of 6 more judges, along with supporting staff, including 3 judges from the Supreme Court. This means that for a claim of 20,000 dinars, the defendant managed to engage the time and work of top lawyers for several working hours. If the defendant had paid for a modest lunch for these judges at an average Belgrade restaurant, it would have cost far more than 20,000 dinars.
- The Supreme Court judges considered the defendant’s revision to be completely legitimate and spent their time and work, as well as the state’s resources, to ensure that the defendant would not be deprived of 20,000 dinars.
- All of this did not result in any new legal doctrine, nor did it serve as a model for new practices, nor did it affect any significant value of the public order.
The question raised by this example is the following: How do the holders of judicial power in Serbia value their time and work, as well as the state resources entrusted to them?
The answer is disappointing: Far less than any taxi driver or car mechanic, and even less than a cleaning lady.
Does this approach represent the protection of public order? Quite the opposite, it undermines public order on several grounds. First, it encourages parties to flood the courts with trivial claims, which directly leads to the blocking of the judicial system. This, as a result, requires the increased involvement of human resources, which raises state expenses while simultaneously jeopardizing the integrity of the judicial system and contributing to the judiciary’s self-degradation. Finally, inefficiency in this context weakens consistency, not only because of the costs but also due to the legal uncertainty that persists for years over trivial matters. Additionally, it undermines what is right and just, as fair outcomes in claims of this nature can only be achieved through the timely resolution of disputes.
Does this manner of proceeding represent a consistent application of the law and, as such, an imperative of public order? The answer is also negative. No procedure rule should be interpreted contrary to its purpose, nor can it represent an imperative more important than the functionality of the system. There is no substantial reason why a claim of 100,000 dinars cannot be resolved in a single hearing, just as there is no reason why the Supreme Court should not reject a revision requesting a change of a first-instance judgment for a trivial amount, citing abuse of the right to revision. After all, this is how the European Court of Human Rights operates, considering petitions related to trivial interests as an abuse of the right to petition.
Is, finally, this approach sustainable? The answer to this question lies in the number of cases before the courts, which breaks all imaginable records. This approach is certainly not sustainable – it became unsustainable in the 1990s, and without a change in approach, it is impossible to prevent the further accumulation of cases. Just as no society is rich enough to ensure that a neurosurgeon examines patients with seasonal flu, judges must not irrationally waste their time and state resources on trivial interests. The reason for this is quite simple – state resources, including a judge’s time, must not be irrationally spent so that they remain available for those problems that truly deserve that time. For neurosurgeons, these are patients who need brain surgery; for Supreme Court judges, these are doctrines that shape the direction of judicial power; for first-instance judges, these are cases where significant interests are at stake.
Finally, what would, for example, an American court do if presented with a legal question worth 800 dollars? It would resolve it with minimal expenditure of time and energy, and any insistence by the parties on defending their rights in such a case would be considered contempt of court with incalculable consequences for the party representatives. A lawyer who would dare to burden the U.S. Supreme Court with a financial interest of 150 dollars would likely face informal reputational sanctions, with every serious consequence for their career.
A Serbian judge would probably respond: But this is how we do things here. True, this is how it has been done since the establishment of self-management, which in the same way destroyed both state-owned enterprises and the position of the judiciary.
IV 2. ACTION TAKEN BASED ON AN ISSUED MISSDEMEANORE ORDER – AN EXAMPLE FROM CRIMINAL LAW
The second case for analysis is a typical misdemeanor procedure, which we have selected due to the clearly visible and obvious anomaly directly caused by the inefficiency of the judiciary.
It concerns a procedure related to the issuance of a misdemeanor order, which involves the mildest offenses. An official issued a misdemeanor order to a citizen for committing an offense with a penalty of 3,000 dinars. The citizen has two options: to pay half of the fine within the given time frame (1,500 dinars) or to request a court decision regarding the order, in which case a misdemeanor procedure will be initiated. The citizen hires a lawyer, submits a request for a court decision, and in the process, the lawyer, through blatant abuse of rights, tries to delay the case until the statue of limitations, which occurs within 2 years, with the idea that if the statute of limitations is reached, the lawyer will claim procedural costs ranging from 50,000 to 100,000 dinars, depending on whether he will have costs for preparing an appeal or not. The first-instance court finds the citizen guilty, the lawyer appeals, and the second-instance court overturns the first-instance judgment 3 days before the statue of limitations expires, on the grounds that the first-instance court did not confront the complainant and the defendant, in other words, because it acted efficiently. The case expires, and the lawyer collects fees of 100,000 dinars.
In relation to this example, we will not question the value of the court’s work, since the regulation limits the costs of the misdemeanor procedure to 12,000 dinars (which is, in itself, a form of self-degradation of the judiciary). This means that the obligation to pay costs that the defendant faces, if found guilty in the misdemeanor procedure, can amount to a maximum of 12,000 dinars, which, combined with the maximum fine, totals to 15,000 dinars.
Instead, we will formulate the question as follows: How much does the state pay for the whim of a citizen who is willing to put the interests of 4 judges (1 first-instance and 3 second-instance) into action for an interest of 1,500 dinars?
The answer is tragic: 100,000 dinars, plus the time and work of judges, court staff, and associated costs, which in actual state expenditures exceeds 5,000 euros. The imbalance between the citizen’s interest and the interest of the entire society is 1:400 in favor of the citizen, meaning the state pays the citizen 5,000 euros so that this citizen does not have to pay the state 12 euros.
How would such a trial look and how long would it last in another system, for example, the American system?
It would probably be the case that the judge considers the mere submission of a misdemeanor order for this amount as contempt of court. The lawyer who accepted such a case would be allowed to say one sentence at the hearing, and then the judge would impose a fine of 3,000 dinars, plus a maximum of 12,000 dinars for procedural costs, with any further actions by the lawyer constituting an abuse of right, which would be harshly sanctioned. In addition, the lawyer would be placed on a ‘blacklist’ and would, accordingly, receive the worst possible treatment from every judge.
The reason for this is simple—America is not wealthy enough to waste its resources on anyone’s abuse of rights, and any attempt at such abuse is strictly sanctioned.
Serbia, which created responsibility toward societal and state property under self-management, is evidently rich enough to pay huge sums of money to those who abuse their rights and flood the courts with meaningless requests.
Judges are also rich enough, and their salaries of a few hundred thousand dinars (despite being far lower than those of plumbers) represent an acceptable equivalent for their work. If this were not the case, they would likely find the distribution of the judicial budget, where most funds are “thrown out the window,” unacceptable and would probably at least attempt to close that window.
IV 3. CAUSES AND CONSEQUENCES OF IRRESPONSIBLE BEHAVIOUR
The causes of such an approach by the courts can be found in poor practice, as well as in the irresponsible handling of state resources. Furthermore, and perhaps most importantly, it lies in the incorrect formulation and equally poor interpretation of the principles guiding judicial authority.
The current judicial practice, where it is not only common but also routine for the highest court to intervene – even in cases involving the most trivial issues – by convening the Supreme Court, is clearly unsustainable. The Supreme Court was designed to be the creator of legal doctrines and the guardian of judicial authority. It is an important state resource that should not be wasted on trivial matters. Not only is it unrealistic to expect perfect uniformity in judicial decisions for each of the millions of cases. But even if this were possible, it would be far too costly for any country. Just as the European Court of Human Rights does not intervene in cases involving insignificant interest, regardless of the legal questions raised, the same should not be expected from the Supreme Court.
Equally important, the annulment of judgments should be understood as a procedural mechanism that can only be achieved in situations where the enforcement of an individual’s rights is proportional to the public interest being protected by the annulment. In such cases, the cost of such actions is justified.
In addition to changing judicial practices, a shift in the understanding of the importance of individual cases is necessary, as well as a fundamental revision of the principles guiding judicial conduct. Judges often claim that every case is the same, regardless of the parties’ interests, the value of the dispute, or the impact on public order. This approach is also unsustainable.
For example, if the principle is that a judge must treat every case equally, this leads to a “slippery slope”, which negatively “discriminates” against high-interest cases, cases involving complex legal issues, vulnerable groups, etc. At the same time, trivial cases, along with the widespread abuse of rights that typically accompanies them, are favored. Following the path of least resistance is something inherent to human nature, including judges. If a judge not only has the option but is required to dedicate their time to a trivial case rather than a more important one, it is entirely logical that significant legal questions and major interests will be poorly or entirely overlooked.
The conclusion is that, each judge must have much greater freedom in deciding how much time and state resources to allocate to each case, and this freedom must be guaranteed by preventing the priorities set by judges from being undermined by the thoughtless annulment of such decisions.
Where a judge should not have excessive freedom is in the irresponsible handling of state resources. In this context, the boundary of this freedom would be the balance between the money the state spends on ensuring a person’s right to a fair trial and the interests of the citizen seeking to exercise that right. In short, judges must be required to act efficiently, and this requirement must be respected by all participants in the judiciary.
It should be kept in mind that the Judicial Code of Ethics[17], unlike the example of Canon 3A of the Judicial Conduct Code of the United States[18], does not prescribe the obligation of a judge to ensure that legal proceedings are concluded with the least possible cost. It seems that judges in Serbia do not consider responsible management of taxpayers’ funds to be part of their accountability. This approach must change as soon as possible, before, in the words of Pasolini, we all drown in water that continually rises, even if it rises from light rain.[19]
V LEGAL DOCTORINES OF THE SUPREME COURT AS A KEY TOOL FOR OVERCOMING THE CRISIS
The famous Oliver Wendell Holmes[20], in his equally famous dissent in the case Southern Pacific Co. v Jensen (1917), emphasized that “the law is not a brooding omnipresence in the sky, but the articulated voice of the sovereign which can be identified”. This phrase is often cited by U.S. Supreme Court justices, especially when criticizing arguments by the parties that are not grounded in the existing laws. [21]The existence of the U.S. Supreme Court ensures that the articulated will of the legislature will not be lost in doctrines that lack legal foundation. This is similarly true for the highest courts in other well-established legal systems.
Unfortunately, our legal reality often hovers between two extremes: the brooding omnipresence in the sky on one hand, and narrow formalistic interpretations of legal norms on the other. The most recent serious analyses, based on discovering the “articulated voice of the sovereign”, date back to the era of self-managed socialism. However, these doctrines, despite being contrary to constitutional values, continue to be applied simply because no one has made the effort to replace them with new ones. The problem facing the judiciary could be solved precisely through the development of adequate doctrine by the Supreme Court.
Some authors refer to legal doctrine as the “currency of law”, defining it as the instrument through which courts create rules and standards that inherently contain legal doctrine. [22]Legal doctrine is characteristic of common law systems, as it receives official confirmation from courts through precedents[23]. However, this does not mean that doctrine does not exist in its original form before a court accepts it, as it is resented by the parties themselves in legal arguments during courts proceedings. Moreover, public debates before the U.S. Supreme Court generally revolve around testing the doctrine of the initiator, conducted by the court’s judges, evaluating the shortcomings of the doctrine, partly through the justification of the arguments of the opposing party. The importance of the proceedings before the Supreme Court generally implies that the opponent also has their own doctrine or legal interpretation, which is defended in such proceedings.
This concept, although rarely applied in our practice, has been conceived in the law on the Constitutional Court. [24]This is indisputably reflected in the provision of Article 37 of the Law on the Constitutional Court, which stipulates that the Constitutional Court shall, as a rule, schedule a hearing when deciding in certain types of cases, but may also schedule one in other instances when resolving complex constitutional and legal issues.
Thus, the legislator, at least for the most complex constitutional and legal issues, had a vision of a procedure based on testing the arguments on which the doctrines of both the initiator and the opponent are based. However, the Constitutional Court has not yet considered such a procedure necessary for a democratic society. The same applies to the Supreme Court and other courts in the Republic of Serbia. Legal interpretation by the participants in proceedings seems to be regarded as unnecessary, and therefore an undesirable burden that burdens the court.
Perhaps in this way of working by the courts, we should seek the root cause of the complete absence of legal doctrines in the reasoning of the highest courts’ rulings and, consequently, the immense legal uncertainty that characterizes judicial practice in the Republic of Serbia.
Instead of engaging in the serious challenges of interpreting the law that would create doctrines, our highest courts generally take an ad hoc approach, forming positions on individual cases. The application of the law is reduced to overly simplistic interpretations, applying no more than a few legal norms. As a result, the reasoning of the highest courts’ decisions is usually limited to factual descriptions, citing only a few legal provisions, and providing a very brief application of the law, often no more than a single paragraph.
From such rulings, sentences are extracted that are similarly devoid of abstraction and difficult to apply beyond the specific factual context. The consequence of lower applying such sentences is generally focused more on a similar factual situation than on legal doctrine. As a result, it is not uncommon in practice for a sentence to be applied even when the factual situation is not identical. The problem is that life does not present identical situations, except in rare cases when a single action by one legal subject causes a consequence for multiple other legal subjects. Even in such cases, these are usually some factual differences. When courts are presented with factual scenarios that are similar (but not identical) to those addressed by an existing sentence in case law, they will often simply overlook the factual differences and adapt the scenario to the sentence.
This phenomenon if further reinforced by the mistaken belief that the unification of case law means resolving the substance of a dispute in a similar manner in comparable situations, particularly concerning the final outcome of the claim. This unnecessarily complicates the problem of legal uncertainty and the unpredictability of judicial decisions. The consequences of such an understanding are more related to the position of the party in the court proceedings than to the facts and the law.
Does this mean that legal doctrines have never had an influence on the creation of case law in our country? Of course not. On the contrary, throughout much of the 20th century, legal doctrines in different state systems with various names were the intellectual foundation for case law. These doctrines were tested both in direct discussions among legal professionals and in the opinions of judicial practices. As such, most of them still serve as the basis for the reasoning of courts on specific issues, even though the courts themselves are often not fully aware of this. Whether these doctrines are outdated or incompatible with the current socio-political system is another question, but their exitance is unquestionable. It is also a fact that courts have abandoned legal doctrines in forming case law, with the exception of doctrines adopted from the European Court of Human Rights[25]. However, even with regard to those doctrines, their application is simplified and limited to typical cases (which, again, often leads to the denial of these very doctrines in their application).
It seems that both the judiciary and society as a whole desperately need the Supreme Court to develop doctrines that will restore a sense of responsibility and efficiency in judicial proceedings. These doctrines should place the annulment of rulings back where it belongs in a theoretical sense, and, if not completely eradicate, at least bring the abuse of legal rights by parties to a reasonable level.
Such doctrines can be adopted while ensuring compliance with the Constitution, the law, and the standards of the European Court, and their effectiveness and applicability in practice would be unquestionable if they came from an authority like the Supreme Court. The purpose of these considerations is to initiate this process.
CONCLUDING STATEMENTS
The fundamental problem of the judiciary in Serbia is not its (in)dependence from the executive branch, but rather the ingrained irresponsibility that was cultivated during the era of self-managing socialism, and which has grown to enormous proportions over time. Without hesitation, one could describe the judiciary as the last stronghold of self-management that still functions in practice. Irresponsibility generates four main categories of problems, which can be characterized as the lack of efficiency, the lack of consistency, the promotion of negligence and dishonesty, and the relativization of justice and fairness as the ultimate goals of the judiciary. Among these, the most significant issue is inefficiency, which leads to the unreasonable waste of public resources (that not only fails to deliver justice but also negates the concept of the rule of law). Unfortunately, the judiciary has not yet recognized this problem, and it attributes its undeniable overload to the insufficient number of judges and staff. By way of comparison, this would be like a house on a mountain in temperatures of -20 °C sending appeals that it is cold and that it will soon freeze because we do not have enough radiators, even though every wall is already equipped with two well heated radiators. What we fail to notice is that all doors and windows in the house are open, and if we were to close them (which we do not plan to do, as we are not used to it), not only would we be warm, but a good portion of the radiators already installed would become unnecessary ballast for the space. The inefficiency we speak of is only partly the result of discrepancies in legal acts (and not even those of a systemic nature), but is largely rooted in the manner in which courts handle state funds irresponsibly, by making decisions and applying (or failing to apply) procedural mechanisms in a way that is contrary to the fundamental interests of public order, which is a functional judiciary. The problem of inefficiency can only be solved in one way, and that way is not by changing legal texts, but by adopting meaningful and applicable doctrines from the Supreme Court that will fundamentally change the way judges operate within the same legal framework.
AUTHOR: VOJIN BILJIC
BIBLIOGRAPHY:
[1]Joseph Stiglitz, “Nation, Power, and Profit,” Novi Sad, 2021, pp. 157-160.
[2] A.Gams, Property, Belgrade, 1988, pp. 339-353
[3] Report of the International Association of Judges, First Study Commission on measures to combat corruption, str.8: „ There should be appropriate decorum in the interaction between judges and other members of the legal profession, such that breach of formal protocols in the form of inappropriate familiarity (which could be or suggest corrupt practice) would be noticeable.76 Judges must conform to the highest standards and avoid any inappropriate behavior in their public and private lives. Being a judge is an obligation to society and not only a job, but a way of life. 77 Finally, the Study Commission endorses that the obligation of judges to take an oath to adhere to the fundamental principles of independence and impartiality has more than just ceremonial significance; it is an important practical step in ensuring a culture of independence and integrity be maintained.”, available on https://www.iaj-uim.org/iuw/wp-content/uploads/2016/11/Report-of-the-IAJ-1st-Study-Commission-on-measures-to-combat-corruption_Oct-2016.pdf
[4] http://integritet.rect.bg.ac.rs/akademski-integritet-1/uvod
[5] R. Ilic, Thirty years of judiciary SFR Yugoslavia, Nis, 1975, available at https://www.prafak.ni.ac.rs/files/zbornik/sadrzaj/zbornici/z15/06z15.pdf
[6] N. Sarkic, Judicial Reform, Belgrade, pp.17, available at https://www.mpravde.gov.rs/files/Tekst%20prof%20dr%20Nebojsa%20Sarkic%20Reforma%20pravosudja%20(1)11
[7] Private Law Reform in South East Europe, Belgrade, pp. 247-262
[8] We consciously chose to describe the narrative of those holding judicial positions using these words. These are the terms that the European Court of Human Rights uses in the context of the consequences that such behavior has on the victim of a violation of the prohibition of torture and inhuman or degrading treatment.
[9] G. Radbruh, Philosophy of law, Belgrade, 2015, pp.144
[10] O.Bo, The State and its Government, Belgrade, 2016, pp.159.
[11] Idem, pp.141
[12] Selected decisions of the German Federal Constitutional Court, Belgrade, 2010, pp.96
[13] In more detail at: https://kopaonikschool.org/wp-content/uploads/2019/06/Prof-dr-Slobodan-Perovic-PDF.pdf
[14] J. Morley, on compromise, London 1903, str. 207: “In a society progressing in a normal and uninterrupted course, this play and interaction is the sign and essence of life. It is, as we are so often told, a long process of new adaptations and re-adaptations; of the modification of tradition and usage by truer ideas and improved institutions. There may be, and there are, epochs of rest, when this modification in its active and demonstrative shape slackens or ceases to be visible. But even then, the modifying forces are only latent. Further progress depends on the revival of their energy, before there has been time for the social structure to become ossified and inelastic. The history of civilization is the history of the displacement of old conceptions by new ones more conformable to the facts. It is the record of the removal of old institutions and ways of living, in favor of others of greater convenience and ampler capacity at once multiplying and satisfying human requirements. “
[15] L. LeCours, Annual Report of the Clerk of the Court of Appeals, available at www.nycourts.gov/ctapps/annrpt.htm
[16] This is irrelevant for the analysis itself, except for the purpose of analyzing the state’s relationship with its own budget. The same outcomes, in fact, occur in the relationships between private entities.
[17] Available at: https://www.paragraf.rs/propisi/eticki-kodeks-principi-i-pravila-ponasanja-sudija.html
[18] Available at: https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_201
[19] P.P Pasolini, Siamo tutti in pericolo, available at https://www.centrostudipierpaolopasolinicasarsa.it/pagine-corsare/la-vita/morte/siamo-tutti-in-pericolo-lultima-intervista-a-ppp-di-furio-colombo-1-xi-1975
[20] Oliver Wendell Holmes Jr (1841-1935), Justice of the Supreme Court of USA
[21] For example Perococo v United States, No.21-1158, argument of the judge Gorsusa on the uncertainty of the representative of the state, available at https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-1158_1bn2.pdf, pp.44
[22] Emerson H. Tiller, Frank B. Cross, What is Legal Doctrine, Northwestern University School of Law 2005, available at: https://core.ac.uk/download/pdf/76622332.pdf
[23] Available at: https://en.wikipedia.org/wiki/Legal_doctrine
[24] Available at: https://www.paragraf.rs/propisi/zakon_o_ustavnom_sudu.html
[25] An example of this is the so-called doctrine of the fourth instance, created by the European Court of Human Rights, which the Constitutional Court applies in its origin from; more on this in G. Dajovic, B. Spajic, The Doctrine of the Fourth Instance and the Right to a Reasoned Judgment in the Practice of the European Court of Human Rights, Annals of the Faculty of Law in Belgrade, Belgrade 2019, pp. 166-195