Consistent judicial application of the law is one of the most important components of the rule of law. It includes both sufficiently reasoned and uniformly applied case law. The pertinence of the consistent judicial application of the law is confirmed by the opinions of the Consultative Council of the European Judges on the Quality of Judicial Decisions (2008) and on the Role of Courts with Respect to the Uniform Application of the Law (2017).
(In)consistent judicial application of the law is conditioned by the judicial culture of a given polity. Judicial culture may be described as customary ways judges think and behave when interpreting and applying the law. Or, in other terms: to what extent judges perceive themselves and act as a governmental power in their own right.
Judges in Serbia generally do not perceive themselves as a separate branch of governmental power and they generally do not act like one. They consider the judiciary to be a contentious branch of the executive power, in contrast to the administration, which applies the law in non-contentious cases. As a result, they uncritically consider legislative and infra-legislative sources of law to be complete and harmonized, providing for the one right answer to every legal issue.
In other words, judicial law application is very much reduced to mechanical jurisprudence. However, not so long time ago (1950’ – 1970’), the Serbian and formerly Yugoslav judges were able, in the absence of the Law on Obligations, to developed a very progressive general rules on strict liability for abnormal, atypical, elevated risk of damage to others. Their case law was codified by the Yugoslav legislator in 1978, and the same rule was retained by the legislators of the states formed after the dissolution of Yugoslavia.
There are several external factors contributing to such a dissatisfying state of affairs: over-frequent changes in the legislation, insufficient funding and inappropriate management of the judicial system, inadequate legal education, abuse of the authentic interpretation of the laws and open political pressures on the judiciary. All of these lead to the general unattractiveness of the judicial profession and therefore to the not so much satisfying level of competence of young lawyers who opt for the judgeship.
When it comes to internal mechanisms for ensuring consistent case law in Serbia, there are formal, semi-formal and informal mechanisms. The most important are those before the Supreme Court, appellate courts and the Constitutional Court. Neither of them is functioning properly, but it appears that there has been an increased effort after 2014 to improve these mechanisms.
Read the full research here: (In)Consistent Application of the Law and the Judicial Culture in Serbia
This paper is part of the Working paper series of the project “Bridging the Gap between Formal Processes and Informal Practices that Shape the Judicial Culture in the Western Balkans” supported by the Kingdom of the Netherlands.