We Need More Efficient Legal Solutions

So far, the European Human Rights Court in Strasbourg has passed 17 verdicts against the Serbian state, resulting in somewhat over EUR71,000 being paid out to citizens from the state budget.

Six rulings were to the benefit of the state, while in six other cases either a settlement was reached or the unilateral declaration of the Representative was accepted. To date, Serbian citizens have made some 2,500 submissions to the Strasbourg human rights court.

Half of the submissions were immediately rejected, while in 14 cases it was ruled that damages need be paid, Argus learns from Slavoljub Caric, the state representative before the European Human Rights Court in Strasbourg.

How many cases from Serbia has the European Human Rights Court completely closed?

In all cases where a verdict has been reached, damages have been paid, yet only in one case did the Committee of Ministers pass a final resolution [meaning that the state has fulfilled its obligations according to the verdict and that the case has been closed]. All other cases are still being monitored.

The fact, however, that only one ruling has been executed in its entirety should not be deemed alarming. It is not uncommon that it takes five or more years for a state to ensure the execution of a verdict in accordance with the Committee of Ministers' criteria, as this is not an easy process.

Many other countries also face the problem of executing verdicts. Four hundred and fifteen rulings have been reached against the state of Ukraine, yet only two cases have seen a final resolution passed, determining that Ukraine has fulfilled its obligations. Macedonia has received 50 rulings and none have been implemented.

So far, Serbia has had to pay far less in damages than other countries, and this was done even before the prescribed deadlines.

Which legal violations were most frequently found in cases filed against Serbia with the Strasbourg court?

Of the 17 verdicts, 14 involved the violation of one's right to a timely trial, while the remaining three dealt with violations of one's right to freedom of speech, to the peaceful enjoyment of one's estate, and the right to be presumed innocent until proven guilty.

Why do court proceedings take so long in Serbia?

There are many factors. Sometimes it is the mistake of the court, which, for instance, delays a trial without proper reason, or fails to schedule hearings for prolonged periods of time. Sometimes the cases wait indefinitely for the findings of forensic experts, and the court fails to undertake measures prescribed by the law. It also happens that the parties involved are responsible, constantly changing their demands, suggesting new witnesses, changing attorneys, requesting that judges be exempt. These are all legitimate actions, but influence the length of the proceedings.

The delay in dealing justice is an issue, yet it is very difficult to determine who exactly is responsible and whose actions and behavior have lead to unreasonably long proceedings.

How can this problem be dealt with?

Through the proper legal solutions and increased diligence of those in charge. By passing a special law, as has been done in Slovenia, or by allowing the Constitutional Court to solve the issue through the institution of constitutional appeal. Perhaps the best possible solution has been applied in Croatia, where the Constitutional Court determines the compensation for citizens' rights violated during court proceedings. In Serbia, this is done by a committee. I think that the Constitutional Court should, once it determines a violation, immediately determine the compensation as well, instead of having a committee deliberate on the issue, and then have the citizen, if unsatisfied, file for new proceedings. The question then raised is how long [the new cycle] will last.

On the other hand, the Constitutional Court is the court of highest instance and should deal with sensitive political issues, not just one's right to a timely trial. If the Constitutional Court were to be burdened with this issue, it could become inefficient.

It would be best to wait and see what the practice of the Constitutional Court will be - whether it will amount to dismissing complaints, or it will truly efficiently solve citizens' appeals. The European Human Rights Court and the Committee of Ministers will judge whether appealing to the Constitutional Court, and verdicts passed by this court, represent an efficient legal means for Serbian citizens.

What is Serbia's key problem in implementing the European Human Rights Court's verdicts? Which means would most efficiently speed up their execution and is there a systemic solution?

The obstacles in implementing the rulings of the Strasbourg court vary. What is most important is that there is a will to cooperate between the parties involved, and if that is lacking the situation becomes difficult and can come down to applying penal measures. The current penalties for one party's refusal to abide by a domestic court's ruling are monetary. For some, such a sanction is of no consequence, which is why more stringent measures should be contemplated.

What is beyond doubt is that the Executive Proceedings Act needs changing. The key is that legal solutions be efficient and enable the implementation of the domestic judiciary's rulings, which would then naturally apply to verdicts passed by the European Human Rights Court.

What are the repercussions for a state inefficiently implementing rulings of the European Human Rights Court?

The repercussions are that such cases are constantly monitored by the Committee of Ministers. If verdicts are not being implemented, the committee considers undertaking harsher measures and passes transitional resolutions which call on a state to answer for not honoring the court's decisions. Being called on for such reasons is not pleasant for any country. Protocol 14, which has not yet taken effect, also envisages the launching of proceedings against a state which has not enabled the implementation of a verdict.

Other political pressures can also be used. That Serbia has signed a Stabilization and Association Agreement means that the country's affairs and fulfillment of various obligations are being constantly monitored. Its obligatory cooperation with the International Criminal Tribunal for the former Yugoslavia in The Hague, need not necessarily be central, because one day, en route to further rapprochement with the EU, the operation of the judiciary could be raised as an issue at a higher, state-level.

Has Serbia provided all the legal and systemic capacities for preventing corruption in the judiciary?

Much has been done. The courts are better equipped, judges' salaries are no longer low. Still, the question of proceedings length needn't necessarily be linked to corruption. Corruption is least present there. The larger problem is neglect, but it is also a fact that responsibility needs to be personalized, because if judges knew that each of their missteps - prolonging proceedings and delaying justice - would be sanctioned, their approach would change. The compensations allotted by the European Human Rights Court are for the most part a result of someone's errors, yet in the end all responsibility falls to the court in charge, and not to the judge whose mistake brought on the legal breach.

The introduction of appeals courts is still pending, the implementation of the new Criminal Proceedings Act - which contains certain solutions in keeping with the European Convention on Human Rights and Freedoms - has been postponed, and these are some of the things slowing us down.

Has there been any pressure on the Office of the State Representative before the Strasbourg human rights court?

There have been no pressures; the state even seems uninterested in our work.

The representative's role is primarily preventive; he is to point out changes that should be made to regulations in case they are inefficient. Last year, as well as this year, I forwarded an initiative for changing the Executive Proceedings Act to the Justice Ministry. This was also requested by the Committee of Ministers.

The representative should also be a sort of mediator, on the one hand cautioning domestic bodies that a verdict needs to be implemented, and on the other constantly reporting to the Committee of Ministers and, perhaps, the party which made a submission.

The job of this office is not only to defend the interests of the state which it represents before the court, because sometimes the breach of a right is obvious, but what is far more important is to promote justice being achieved and balance restored, i.e. to establish such a state of affairs as existed prior to justice being violated.

How would you comment on the overall treatment of human rights in Serbia?

Although there are frequent outcries, I believe it is at a decent level, and I don't see that this issue is more prominent in Serbia than in other countries. It could be said that the judiciary has issues with detention length, which is at times too rashly determined for suspects. One should always consider other, milder, alternatives, such as bail. That would be a more acceptable solution for the European Human Rights Court.