Legitimacy, Independence and Impartiality: How do Serbian and Croatian Legal Professionals Assess Their Judiciaries?

Abstract

Drawing on a 2018 survey on a convenience sample of 716 Serbian and 393 Croatian legal professionals, we assess their attitudes towards Serbian and Croatian judiciaries against their key dimensions: independence, efficiency, quality, and fairness and impartiality. Legal professionals in both countries have little confidence in their judiciary, which we take as a proxy for legitimacy. Hence, both judiciaries are faced with an internal crisis of legitimacy. Respondents also scored judiciaries low on each of the key dimensions, while regression analysis confirmed that these attitudes are strong predictors of legitimacy. The results indicate that apparent differences in historical trajectories have not undermined common post-transitional political struggles over the role of judiciaries.

Danilo Vucković's work on this article was supported by University of Belgrade, Faculty of Law: [Project ‘Identity Transformation of Serbia’].

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 In the Serbian and Croatian context, the word ‘lawyer’ denotes a person with a law degree while professional identities are gained through particular legal practice with its own rules, governing structures and interests (Vuković et al. 2020). Hence, we assume that we are not faced with a specific legal profession but several professions (Shultz & Shaw 2003), including but not limited to judges, public prosecutors, lawyers and notaries. These are also known in Serbia and Croatia as ‘judicial professions’ (Spasić et al. 2011; Sibinović 2011).

2 Some elements of our analysis were already presented in Mrakovčić and Vuković (2019), particularly those related to satisfaction and legitimacy. Here we will only briefly restate findings presented there in more detail.

3 Positive law refers to a set of man-made enacted norms in a certain state (jurisdiction) as opposed to, for instance, natural law.

4 The 2019 EU Justice Scoreboard (Luxembourg, Publications Office of the European Union, 2019, pp. 44–6), available at: https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2019_en.pdf, accessed 7 July 2020.

5 In 2018, Transparency International’s Corruption Perception Index (CPI) score for Croatia was 48 and 39 for Serbia. Both countries had lower scores than Slovenia (60), France (72) and Denmark (88) but scored better than Bosnia & Hercegovina (38), Albania (36) and Russia (28). The World Bank Rule of Law Index’s value for Croatia is 0.33 and –0.19 for Serbia (the index range is from –2.5, which indicates weak performance, to 2.5, indicating strong performance). Once again, Serbia performed worse than any other European country apart from Russia, Belarus, Albania, Bosnia & Hercegovina, and Moldova, while Croatia ranked lower than many EU members states from Central and Eastern Europe, for example, the value of the index was 0.39 for Romania, 0.53 for Hungary, 1.02 for Slovenia and 1.12 for the Czech Republic.

6 The source of these data is ‘Anticorruption Policies Revisited: Global Trends and European Responses to the Challenge of Corruption’ (ANTICORRP), a project funded by the European Commission’s Seventh Framework Programme, available at: https://anticorrp.eu, accessed 12 September 2019. The dataset is available at: https://anticorrp.eu/publications/integrated-dataset-with-data-from-wp-11/, accessed 12 September 2019.

7 Often, the bribe was offered by citizens themselves (75% of cases in Serbia and 58% in Croatia) while it was explicitly demanded far less often (8% and 25% of cases respectively) (UNODC 2011, p. 19; UNDP 2015, p. 15). These data only illustrate some of the cultural patterns in the region, such as giving a ‘present’ (a ‘kickback’) to an official or public servant as a sign of gratitude (see also Ledeneva et al. 2018) or the shared expectation that the public sector is generally corrupt and inefficient.

8 Authors’ calculations based on the Project ANTICORRP database.

9 In addition to having little confidence in the judiciary, Croatian and Serbian citizens are sceptical with regards to the ability of the judiciary to adhere to the principles of procedural fairness. Half of the respondents in a Croatian study thought that ordinary citizens cannot expect a fair trial. The main issues are the length of the proceedings (75%) and political influence on the courts (66%), on the prosecution (66%) and on the police (57%), as well as the costs involved in the trial proceedings (63%) (IPSOS 2016). In a similar vein, in a 2013 survey, 47% of Serbian respondents stated that the Serbian judicial system had been unfair at some point over the past 12 months. Furthermore, citizens would do what they could to avoid going to court (63%), for reasons including the high costs involved (65%), the length of proceedings (45%), a lack of trust in the judiciary (22%), corruption (17%), personal reasons and prejudices about court (16%), as well as an expectation that the trial would take up too much of one’s time (11%) and result in an unfair verdict (9%) (MDTF 2015, p. 11). Apart from that of the cost, the most frequent reasons basically indicate a lack of legitimacy of the judiciary.

10 We used the following answers: 1 = I have no confidence at all; 2 = I have very little confidence; 3 =  neutral; 4 = I have a lot of confidence; 5 = I have full confidence.

11 In Croatia, these two dimensions collectively comprise 63.36% and, in Serbia, 64.13% of the total variance of the instrument.

12 These two measures were chosen with the two predominant characteristics of Serbia and Croatia in mind: high levels of corruption and the perception of corruption; and widespread informality and the socio-economic inequalities that have persisted over the long path of postsocialist transformation. We assumed that under such circumstances, wealth and informal networks will be perceived as playing a role in a person’s ability to represent their rights in court. Both factors deploy external resources (contrary to cultural capital, for example) and are illegitimate and illegal. Hence, they go against basic principles of the democratic rule of law and the judiciaries within such systems.

13 As we have seen, previous polls among the legal professions did not confirm these general attitudes but in this case, they did. Here, we may only speculate about the methodological—or other—factors that have influenced this difference, but we assume one reason lies in the wording of the question. In our research, we have not used explicit questions to determine whether the system is fair but have requested our respondents assess the impact that various levels of social and economic capital might have on an individual’s prospects in court.

14 This is analysed in more detail in Mrakovčić and Vuković (2019).

15 It should be noted that the signs (+; –) of beta coefficients in these regression models show that the more respondents believed that low social and economic capital disadvantaged individuals and the more they thought that high social and economic capital advantaged individuals in the judicial system, the less confidence they had in the judiciary and its institutions in their country.

16 See also Maldini (2016), Franc et al. (2018), Pešić (2019), Cvejić (2019), Petrović (2019).

Additional information

Notes on contributors

Danilo Vuković

Danilo Vuković, Faculty of Law, University of Belgrade, Serbia. Email: [email protected]

Marko Mrakovčić

Marko Mrakovčić, Faculty of Law, University of Rijeka, Croatia. Email: [email protected]