The Negotiation Chapter 23 (hereinafter: “Chapter 23”) for Serbia’s accession to the European Union was finally opened on 18 July 2016. This Chapter is part of the acquis communautaire and it is dedicated to the Judiciary and Fundamental Rights, which is strongly related to the issue of consistency of courts’ practice in Serbia.
Due to numerous cases in which Serbian courts issued contradictory decisions when ruling on the same basis and state of facts, the problem of consistency of courts’ practice is of the utmost importance not only for increasing the trust in judiciary institutions, but also for achieving proper level of protection of human rights, which are the core values of the European Union, which Serbia strives to become a member of in the following years.
In preparation of opening negotiations on EU accession, Serbia adopted the National Judicial Reform Strategy for the period 2013-2018 in order to fulfill its obligations related to judicial reform. One of the main issues of the Strategy was the said consistency of courts practice, due to a large number of constitutional appeals and applications before the European Court of Justice on the subject matter.
Prior to the opening of Chapter 23, Serbia received a Screening Report a few years ago on compliance of the Serbian legislation with the acquis communautaire, which contains recommendations for improvement of consistency of courts’ practice through legal remedies. Some of the proposed solutions refer to a simplification of the court system by abolishing courts of mixed jurisdiction, and introduction of an appeal before the Supreme Court of Cassation against any final decision based on the legal grounds. The Screening Report also pointed to another significant issue of the Serbian judicial system, which is that the general public has no access to a complete electronic database of courts’ decisions.
However, it should be noted that Serbia did reach progress on certain Screening Report recommendations, such as the formation of working groups for analysis of the rules related to mandatory court practice, general opinions of the courts, and publishing of court decisions. Also, significant, but not sufficient, progress has been achieved in strengthening the capacities and improving the efficiency of the Jurisprudence Department of the Supreme Court of the Cassation. The efficiency of the Supreme Court of the Cassation is of paramount importance for long-term reform of the judiciary system of the Republic of Serbia, in terms of consistency of court practice and legal certainty in general.
By Radovan Grbovic, Partner, and Nikola Kasagic, Senior Associate, SOG / Samardzic, Oreski & Grbovic