Serbia: Ten Years Later
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. IFIMES has analysed current events in Serbia in the light of the tenth anniversary of the overthrowing of Slobodan Miloševic and empowerment of the Democratic Opposition of Serbia (DOS) on 5th October 2000. The most interesting section from the comprehensive analysis entitled "Ten Years Later" are given below.
On 5 October 2010, Serbia will mark the 10th anniversary of the overthrowing of Slobodan Miloševic and his Socialist Party of Serbia (SPS) and the empowerment of the Democratic Opposition of Serbia (DOS) led by the Democratic Party (DS) of Serbia's president Boris Tadic who is still performing the double function - president of DS and president of Serbia.
Slobodan Miloševic lost the election for the president of the Federal Republic of Yugoslavia (FRY) which was held on 24 September 2000. This represented the end of his autocratic regime which lasted for a decade. After the meetings in Belgrade and several days of mass protests and strikes which arose throughout Serbia, the crisis ended on 5 October 2000 which is remembered as a symbolic date of the power being taken over by DOS.
On 3 September 2010 the IFIMES International Institute published an analysis on Serbia entitled "Collapse of the judicial system in Serbia" (link: http://www.ifimes.org/default.cfm?Jezik=En&Kat=10&ID=547 ).
Ten years later, Serbia is facing numerous open issues. Where is Serbia now and in what direction is it heading? What are its main challenges? Did the assassination of Prime Minister Zoran Ðindic on 12 March 2003 actually represent the assassination of democracy in Serbia and the end of the Democratic Opposition of Serbia? Does Serbia ten years after the democratic changes need new changes?
WHAT IS THE AIM OF THE JUDICIAL REFORM?
Before we can observe the disastrous consequences of the judicial reform in Serbia, which should be systematically eliminated, we have to understand the initial aim of the judicial reform. Essentially, the reform was aimed at harmonising the Court Organisation Act with the Constitution of the Republic of Serbia. Besides the obligation to form appeals courts and the Supreme Court of Cassation, the concrete tasks of the judicial reform, regardless of the proclaimed tasks, were:
1. to increase the efficiency of courts by accelerating all types of court proceedings and adopting higher quality decisions;
2. to assert the autonomy of judges in desicion-making by releasing them from the pressure of the executive branch of power and daily politics as well as ensuring complete depolitisation of justice;
3. to reduce the costs of court proceedings (if feasible);
4. to facilitate citizens' access to justice and increase the protection of human rights, especially in various types of disputes led by citizens against state authorities (civil actions for damages and administrative disputes);
5. to increase the standard of living for judges and prosecutors as well as all other employees in the judicial system.
NON-ACHIEVEMENT OF REFORM GOALS
Both the professional public and the citizens who were involved in court proceedings are of the opinion that none of the above essential goals of the reform have been achieved and that the actual results of the reform were disastrous since the situation in the judicial system is worse than before, especially in the wider area of Belgrade where two megalomaniac courts have been created. Instead of realising the goals of court reorganisation, the reform was actually reduced to the general re-election of judges, who were guaranteed continuous function by all previous laws. The decision was made to reduce the number of judges and public prosecutors, although the efficient and successful resolving of existing proceedings actually required an increase in their number. It is therefore logical that a standstill in scheduling trials occurred in Belgrade where instead of five municipal courts two basic courts were formed and therefore the cases were physically moved and allocated. However, civil proceedings in those two courts in Belgrade, especially in the First Basic Court, will not be more efficient since the number of judges dealing with the existing number of cases has been reduced. Therefore the judges of the First Basic Court will not be physically able to schedule more than two hearings per year. Bearing in mind the reduced number of court staff, typists, registrars and clerks it is logical that it would be impossible to achieve greater efficiency with the reduced number of employees and the same volume of work.
Moreover, the records which were previously kept in books (registers) have been computerised. This has further slowed down the process for the clients who file suits and other documents or ask for the verification of signatures, the issuing of certain documents or for putting a clause in a document. For example, it took no more than one day to obtain an enforceability clause from the previous municipal courts in Belgrade, while now it takes one and a half month before the same clause is issued by the First Basic Court. Another justified goal was to set up a computerised system for checking whether a real estate has already been sold in order to prevent numerous frauds committed by vendors who sell the same real estate to several buyers. Unfortunately, the computerised system was not set up properly or it lacked the appropriate quality and therefore it often crashes. The court staff and clients who are for example waiting for the verification of signature or authorisation, have to wait half an hour or more before the crashed systems starts to work again.
In order to achieve efficiency of judicial system under those circumstances and especially due to the obviously lacking number of judges, the Civil Procedure Act has been amended. Pursuant to that Act, decisions taken by the court of first instance may be revised by the Supreme Court of Cassation only in cases where the value of the dispute is higher than EUR 100.000. How many citizens in Serbia can have claims of such high value? Moreover, experiences show that in Serbia such high debts are resolved by violence rather than before the court. And even if someone had a claim greater than EUR 100.000, they would still not be able to bring an action before the court, since pursuant to the detrimental Act on Court Fees they would have to pay a fee of EUR 1.000, while the average wage in Serbia is EUR 300. Thus, citizens have practically lost any possibility to verify the legality of a judgement adopted at the second instance using the extraordinary legal remedies. With the aim to achieve efficiency the courts of first instance will adopt judgements without properly examining the facts and the appeals courts will confirm those judgements, while the citizens will not have the right to have those judgements verified by the Supreme Court of Cassation.
A special issue is the abolition of numerous municipal courts and their replacement through the formation of judicial units of basic courts which deal with civil and non-civil procedures, while criminal procedures were allocated to basic courts outside the judicial units. Municipal public prosecutors have also been abolished, so that now criminal prosecution on the territory of judicial units is undertaken by the basic public prosecutor in the place where the basic court is located. Since one part of judges of former municipal courts and public prosecutors were re-elected, this in practice means that civil proceedings judges still work in the buildings of former municipal courts where the judicial units of basic courts are now located, which requires maintenance of those buildings. At the same time the criminal proceedings judges, deputies of basic public prosecutors and all court and prosecutor's office staff have to travel daily from the place where the judicial unit is located to the town or city where the basic court or basic public prosecutor is located, which represents an additional burden and incurs unnecessary costs.
Analysts believe that the main goal of the judicial reform was to eliminate previous judges and prosecutors and to employ certain staff, mainly those from or near the Democratic Party led by Boris Tadic. In case of the Higher Court and Appeals Court in Belgrade it is obvious that the reform enabled a large number of judges to be promoted on the basis of "friendly connections". A large number of criminal court judges who used to be judges at the Fourth Municipal Court in Belgrade were promoted to a higher position. Thus one out of five former municipal courts in Belgrade became the incubator of staff thanks to friendly connections with certain people.
COURT DECISIONS ARE NOT BINDING IN SERBIA
The citizens in Serbia, i.e. natural and legal entities, implement many of their rights through administrative proceedings before certain state bodies. They may appeal against those decisions by initiating an administrative dispute before the Administrative Court. However, the Administrative Disputes Act gives the Administrative Court the right, but not the obligation, to adopt the decision in the so called full jurisdiction dispute, i.e. to resolve the substance of the case on its own. The administrative court thus decides only on the legality of the contested act or annuls the act and returns the matter for a new decision-making process. In practice it happens that the administrative court repeatedly annuls an act, while the state body without any sanction and due respect for the legal order repeatedly adopts the same unlawful act. Only if a court becomes "fed up" by constantly annulling an administrative act, it eventually adopts a decision in the full jurisdiction dispute, i.e. it decides on the substance of the case. However, by then it is too late for the decision to be executed, since years have passed and the situation has changed.
Notably this practice can be observed in the case of companies owned by Bogoljub Karic. The unlawful decision of the Governor of the National Bank of Serbia to withdraw the work permit and liquidate Astra banka was annulled nine times by the Supreme Court, and eventually the Supreme court adopted the decision in the full jurisdiction dispute stating that the work permit is to be returned to Astra banka and its operations enabled. None of those decisions have been enforced, and after several years of destroying its property by the liquidator the bank finally went bankrupt. The same happened with the decisions of the Supreme Court which confirmed that BK Televizija was unlawfully prohibited to operate by seizing its radiofrequency. However, since several years passed before the court adopted the final decision, BK Televizija was not able to operate during that time and eventually became bankrupt, while the rest of its property was sold by the trustee.
Decisions of the Constitutional Court of Serbia are practically unenforceable since they merely assert that human rights were violated while they do not impose an obligation upon the court to reinstitute criminal proceedings or to adopt a different decision in civil proceedings. This was especially the case in the disputable re-election of judges. Even if the constitutional complaints of non-reelected judges are granted, the decisions of the Constitutional Court can not be executed since the Constitutional Court is not authorised to decide on the re-election of those judges to positions which have already been filled by other judges.
WHERE ARE €1,513 BILLION PROCEEDS FROM THE SALE OF MOBTEL
During his term of office as Minister of Telecommunication, Tadic was also the chairman of the management board of JP PTT saobracaja Srbije (public enterprise of postal communications of Serbia), which had a joint company with Mobtel owned by Bogoljub Karic. From that period it is still not clear what role Tadic played in the initiation of bankruptcy procedure, determination of the amount of the share capital, preparation of the company for its sale to the buyer who was related to his Democratic Party (DS), sponsorships carried out by the order of Boris Tadic etc. The investigating bodies have not examined nor processed President Tadic on those issues yet.
The sponsorship provided by Mobtel to sports teams during the period when Boris Tadic was the chairman of the management board of JP PTT saobracaja Srbije as the co-owner of Mobtel and president of Water Polo Association of Yugoslavia was actually granted on the demand of Boris Tadic. Interestingly only those sponsorships are not included in the demand to initiate the investigation against some of Mobtel's management headed by Sreten Karic, who are suspected of giving sponsorship to sports teams.
Another dubious case is the agreement of 4 April 2006 when Mobtel's property was unlawfully taken over by the newly formed company Mobi 63 which was subsequently sold to Telenor, which is marked as state secret. Why should a commercial agreement be marked as state secret and in whose interest would that be? Where did EUR 1,513 billion of proceeds from the sale of Mobtel to a foreign owner disappear? The IFIMES International Institute is currently investigating the role of Boris Tadic, Mladan Ðinkic, Martin Schlaff and others as well as certain European officials in the illegitimate sale of Mobtel and will soon publish the results of the investigation.
POLITICALLY MOTIVATED COURT PROCEEDINGS AGAINST KARIC AND OTHERS
As soon as the Serbian Strength Movement-Bogoljub Karic (PSS-BK) announced discussions with the opposition Serbian Progressive Party (SNS) with the aim to unite Serbian opposition, an indictment against Bogoljub Karic and his 14 associates was issued in the late afternoon on Friday, 17 September 2010. The indictment was first announced in the media, which represents criminal conduct since it should have first been served on the legal representatives of the accused and only presented to the public if eventual comments made by the defence were rejected. Any other conduct represents legal violence and criminal offence. Why was the indictment issued at this very moment after the investigation had lasted four and a half years? Obviously it is politically motivated, since the aim is to prevent the uniting of the opposition which will, according to our relevant source, replace the Democratic Party which has ruled the country for ten years.
"MISUSE OF OFFICIAL POSITION IN A PRIVATE COMPANY"
The Karic and other cases can perhaps best illustrate the disastrous situation in Serbian judicial system. Bogoljub Karic was accused of the "misuse of official position in a private company", although this legal wording does not exist in European judiciary.
Interference in the work of judicial bodies is constant practice in Serbia, which is especially evident in the activities of Minister of Justice Snežana Malovic, who has often, and recently in an interview for the "Vecernje novosti" newspaper, suggested the decision which the Constitutional Court should take regarding the complaints of non-reelected judges and prosecutors. Similar statements were made by the spokesperson of Tadic's Democratic Party Jelena Trivan who has presented the accused as being guilty in order to influence the court and create a negative image of the accused in the Serbian public.
Analysts stress that regardless of the image of the accused created by the media, the principles of the rule of law should be respected, i.e. the indictment should be based on valid grounds, no politically motivated proceedings should be initiated, the presumption of innocence should be respected and the right to a fair trial should be given to all citizens.
SEIZURE FOR THE BENEFIT OF "THE RULE OF LAW"
The Constitutional Court of Serbia still has not adopted the decision on the constitutionality of certain provisions in the Seizure of Criminal Property Act, which introduce the neo-communist possibility of property seizure before the conclusion of criminal procedure. The Act opens wide possibilities for political racketing and is used as such by the authorities to give an impression to their impoverished citizens, who are not provided any economic prospects by the same authorities, that they take from the rich and give to the poor. The Constitutional Court, which should be the highest judicial instance, obviously can not ensure the autonomy of the court in relation to the executive branch of power.
Even nine years were not enough for the Constitutional Court to adopt the decision to initiate the review of constitutionality of the Extra Profit Act. Although the Act is clearly unconstitutional and contrary to all international standards of human rights and rights to possess property, the Constitutional Court is not willing to adopt the decision which would lead to the restitution of vast assets that were unjustifiably seized from certain individuals. The Constitutional Court of Serbia is working under strong political pressure of the governing elite.
Misuses of the Seizure of Criminal Property Act, which was drawn up contrary to the principles of legality and fundamental human rights, are inevitable. The application of the Seizure of Criminal Property Act actually means that all those who are convicted res judicata of committing criminal offences covered by this Act may be deprived of the property for which they have no proof that it was legally acquired. Certain legal experts and lawyers believe that the Act is not precise enough, thus leaving open the possibility of seizing even legally acquired property. The Act stipulates that financial investigation may be initiated against property owners even before the criminal proceedings for certain criminal offence are initiated, which leads to the conclusion that the fundamental aim of the Act was determining the origin of property. The correct procedure would be to initiate financial investigation against a person who is already subject to criminal proceedings during which a suspicion arises that his/her property was acquired through crime. However, since the Act enables the possibility to initiate financial investigation before criminal proceedings are initiated, it leaves open the possibility of misuses by authorities. It is the public prosecutor who orders the initiation of investigation and who has to convince the court that somebody has committed crime and that financial investigation against that person would be justified, which again leaves open the possibility of misuses. On the basis of the Seizure of Criminal Property Act the state may seize and sell property that will probably never be restituted to its owner, which is inconceivable and unconstitutional. It is also contrary to the presumption of innocence.
Analysts have warned that the Constitutional Court of Serbia should review the (un)constitutionality of certain provisions of the Seizure of Criminal Property Act as soon as possible.
ENTHRONEMENT OF PATRIARCH IRINEJ OF SERBIA
The enthronement of the Serbian Orthodox Church Patriarch Irinej will be performed in the Pec (Kosovo) patriarchate on 3 October 2010. The announced presence of Kosovo's leaders at the enthronement of Patriarch Irinej of Serbia represents a positive sign of development of coexistence in this region and the beginning of the urgently needed process of conciliation between Serbs and Albanians. The event may be used as a strong incentive in this process.
The presence of Serbia's and Kosovo's leaders at the enthronement may also give strong impetus to the beginning of the announced EU assisted dialogue between Belgrade and Priština.
EU OBSERVERS ARE AN INEVITABLE FACT IN SANDŽAK
The situation in Sandžak is becoming increasingly troublesome. However, the EU will also have to assume responsibility for the situation in this region. The request presented by the Bosniak National Council to EU High Representative for Foreign Affairs and Security Policy Catherine Ashton to send an EU observer to this region represents a warning sign. Having received that request Baroness Catherine Ashton also assumed a part of the responsibility for eventual events in Sandžak, since the omission to send an observer will mean that EU will have to assume responsibility for eventual victims in the region.
Analysts have pointed to poor activities and unacceptable behaviour of Minister of Human and Minority Rights Svetozar Ciplic and Minister of Religions Bogoljub Šijakovic, who are performing their function of the basis of the principles of the position of power and discrimination, instead of conducting a dialogue with representatives of minorities, human rights organisations and religious communities. The resignation of State Secretary at the Ministry of Human and Minority Rights Marko Karadžic represents a protest against the work of Minister Ciplic, which sends out a negative message to the international public on events in Serbia and the position of minorities. State Secretary Karadžic is one of the very few representatives of authorities who correctly understood the obligations of the state in the field of human rights which should be based on the Constitution and international convention. Karadžic has always spoken clearly and unambiguously about the responsibilities of the state in respect of human rights, especially in concrete cases of violence and discrimination. His resignation illustrates the situation at his Ministry and the impossibility of working together with Minister Ciplic, who does not enjoy any trust neither from minorities nor from reputable human rights organisations.
The possibility of announcing the re-election of the Bosnian National Council in Serbia opens the question whether the state of Serbia is capable of conducting a fair election. Perhaps the best solution for all those who are involved would be that OSCE takes over the complete organisation of the election.
The question of the attitude of Serbian state towards the citizens of Muslim religion opens a series of other questions. This especially concerns the attitude to its own citizens, to the neighbouring states where members of those minorities live and to the recognition of Kosovo's independence by Muslim countries. Should President Tadic want to influence Muslim countries not to recognise or to slow down the recognition of Kosovo's independence, he would first have to regulate the relations with Muslims and the Muslim community in Serbia which is lead by Mufti Muamer Zukorlic. The IFIMES International Institute has been informed that certain Muslim countries which have not recognised Kosovo's independence yet intend to do so soon due to the attitude of official Belgrade towards Sandžak.
The IFIMES International Institute has analysed the situation in Sandžak and concluded that EU observers represent an inevitable fact. Namely, if EU does not send its observers it will have to assume the responsibility for the events in this region. At this moment EU observers can still act preventively in order to prevent conflicts on the basis of experiences in the Balkan region from early 1990s.
TEN YEARS LATER
Analysts believe that following a decade of Slobodan Miloševic and SPS regime Serbia has now entered the final phase of the decade of DOS and DS government. The time has come for changes which call for new people and new political options. The speed of Serbia's EU accession depends mostly on Serbia itself, while its main challenges and prospects are of inner national dimension. The assassination of Prime Minister Zoran Ðindic has not stopped the reform process, although it was significantly slowed down and sometimes carried out in the wrong direction.
EU membership is an inevitable task for Serbia and NATO membership will also have to be seriously considered since all of its neighbouring countries will soon be members of that Organisation.
The tenth anniversary of DOS regime is also marked by Democratic Party electoral congress and by intra-party conflicts. President Tadic, who is known for his fierce liquidation of opponents, is trying to bring his followers Oliver Dulic and Nada Kolundžija to the position of DS Vice-President and to eliminate Bojan Pajtic who is one of the highest quality politicians in Serbia as well as many other DS members who are not his adherents. Tadic is at the same time the only candidate for president of DS.
Analysts have noted that a thorough reconstruction of the present government of Serbia is needed, especially in the fields of justice, religious communities, minorities, human rights and foreign affairs (covered by ministers Snežana Malovic, Bogoljub Šijakovic, Svetozar Ciplic and Vuk Jeremic).
In order to achieve long-term stability Serbia has to enter into a two-way sincere dialogue with Albanians and Bosniaks, since this will affect the stability of Serbia and the whole region. Serbia will have to change its attitude towards Kosovo and to redefine its relations with religious communities by ensuring secularity of Serbian state and equal treatment of all religious communities.
Special stress should be paid to the creation of professional and non-politicised judicial system, processing of war crimes and apprehension of two most wanted Hague war crimes suspects Ratko Mladic and Goran Hadžic.
Decentralisation process is inevitable for Serbia. Correct regionalisation may contribute to a better national awareness of minorities. In this context Serbia should regulate the status of multiethnic regions of Sandžak and the Preševo Valley which should become the regions connecting Serbia, Montenegro, Bosnia and Herzegovina and Kosovo instead of being an issue of dispute for those countries.
The IFIMES International Institute is of the opinion that Serbia's EU accession process should be accelerated while increasing EU monitoring in Serbia in order to ensure that Serbia fully meets the standards and starts implementing EU legal norms in its legal system. It is high time Serbia stopped producing politically motivated court proceedings in order to show it is ready for accession and membership in the EU.
Ljubljana, 4 October 2010
International Institute for Middle East and Balkan Studies (IFIMES) - Ljubljana
Directors: Bakhtyar Aljaf Zijad Becirovic