Judiciary and Fundamental Rights - November 2015

This article is an integral part of the Coalition prEUgovor report on progress of Serbia in Chapters 23 and 24 for the period from May 2015 to October 2015.

In the part pertaining to the judiciary, there is no recognition of some of the activities that can be undertaken before amending the Constitution in order to promote transparency of appointing judges and prosecutors, indicators of the success of reforms are not developed enough, it is necessary to come up with more concrete activities so as to make public the political pressure under which judges and prosecutors find themselves and to increase the transparency of judicial institutions, and deadlines for undertaking certain activities are set too far. In the part on fundamental rights, deadlines for increasing the Ombudsman’s capacities are set too far, and not linked with necessary amendments to the law. The issue of “information leaks to the media” about criminal investigations is currently treated formally - by arranging and refining internal procedures.[1]

Although the Progress report states that there are still lot's of work to be done in order to harmonize Serbia's legislature with the EU acquis and ratified international documents with regard to gender equality and protection of women from violence (the catalogue of criminal offences has yet to be harmonised with the CoE Convention, emergency protection orders are not issued promptly, no national women’s helpline is in place; the number of shelters is insufficient and there are no centres for victims of sexual violence, the mechanisms for coordinating the collection and sharing of data between all relevant actors in the system need to be improved) no benchmarks or concrete actions could be found in the Draft Action plan for the Chapter 23 regarding these issues. Set up benchmarks do not show in what way the gender equality will be achieved, except by creating new strategies in a situation when Serbia doesn't have reports on the achievements of the previous strategies.

Human trafficking issues are not considered in the Action Plan for Chapter 23: Judiciary and fundamental rights. ASTRA’s opinion is that problems connected with human trafficking, i.e. protection of victim’s rights, need to be included in the Chapter 23: Judiciary and fundamental rights as a part of Fundamental rights, not just to be considered as a part of organized crime and migrations in the Chapter 24: Justice, freedom and security.

With regard to Serbian legislation it is necessary to adopt new Strategy on preventing and combating trafficking in human beings and protecting its victims, and Action plan for implementation,. Further measures are required to foster a human rights based approach and to step up measures to identify and protect victim. Trafficked persons need to have effective access to compensation of material and non- material damages through compensation fund regardless of the outcome of criminal proceeding and whether the identity of the perpetrator has been established. Non-punishment of victims for their involvement in unlawful activities while they were exploited should be explicitly envisaged in Article 388 of Criminal Code of Republic of Serbia.

Also, Republic of Serbia must implement the judgment of the European Court of Human Rights in the case Jovanović vs. Serbia about missing babies (which date back to the seventies to this date), according to which it is required not only to provide answers and grant compensation to the applicant, but also to establish mechanism that would examine all similar cases and compensate other parents. The deadline for the enforcement of the judgment was September 2014.

Recommendations:

• Having in mind the enormous importance of this document for achieving two key priorities of the current Serbian Government, namely EU accession and fight against corruption, the draft Action Plan must be thoroughly revised.
• The Justice Ministry needs to publish the received comments on the Action Plan, as well as the information on their considerations of those comments i.e. explanations on adopting or rejecting of individual comments and suggestions.