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POLITICAL CRITERIA I Democracy and the rule of law Constitution

1. Please provide a brief description of the constitutional and institutional situation inSerbia. How is the constitutional system of check and balances between the three powersrealised?

2. How is the implementation of the Constitution coordinated? Which are the bodiesinvolved and which are their respective competences in relation to the implementation ofthe Constitution? Are there any weaknesses of the Constitution identified and are thereany plans to amend the Constitution? Please Explain.

3. Do you have a Constitutional Court? What is its legal basis, how are its membersappointed and how do you guarantee its independence and respect for its decisions? Whohas the right to seize the Constitutional Court and how is the scope of its competencesregulated in relation to other courts? Please provide recent examples of rulings by theConstitutional Court?

4. How many laws have been invalidated by the Constitutional Court in the last 3 years? Give concrete examples including on their content?

5. How are the decisions of the Constitutional Court implemented? Are there cases ofdecisions of the Constitutional Court that have not been implemented or have not beentaken into consideration? Please give examples?

6. What are the constitutional guarantees that ensure the independence of the constitutionalinstitutions vis-à-vis the political power?

7. Please specify/clarify the role of the Ministry of Justice in checking draft-laws on theirconstitutionality, and the procedure in practice?

The Parliament

8. Please provide a description of the structure and functioning of the Parliament includingthe competences of the Parliamentary Committees and the speaker of the Parliament, theprerogatives and competences of the Parliament with respect to control of the executivepower, and of the procedures for the adoption of legislation (including an explanation ofexisting fast track procedures and their applicability to the adoption of acquis-relatedlegislation, if any)?

9. Please describe in detail the Parliament's rules of procedure and your experience fromtheir implementation.

10. How is the Parliament exercising its legislative functions? Is there a system of verifying, at Parliament level, the compatibility of new legislationwith the 'acquis '? Explain. Is there an obligation to analyse the fiscal impact of new legislation before it isadopted? How is this process working in practice? Explain.

11. Please specify competences of the committees. How much time is dedicated to scrutinyof legislation by the committees?

12. How many political parties are registered in your country? How many of these arerepresented in Parliament? What percentage of parliamentarians are (a) women and (b)from ethnic and national minorities?

13. Please describe the legal provisions and the institutional arrangements in place for theelection of members of Parliament and the rules applying to their replacement in thecourse of their mandate. Please indicate if and when you plan to review or repeal existinglegislation on blank resignations of holders of parliamentary mandates?

14. Please describe the provisions in place defining the persons having the right to vote inparliamentary, presidential and local elections and the arrangements regarding voters'registers? 15. Please describe the overall framework for party and campaign financing, the rulesguaranteeing its transparency and provide details on the monitoring of its implementation? How are addressed the 2009 GRECO recommendations on "Transparency of PartyFinding". Do the existing reporting obligations under the Electoral Code for publicfunding of political parties during elections also cover private funding sources? Pleaseexplain what mechanisms are in place for reporting private and public party financingfunding?

16. Please describe progress achieved to date in addressing the recommendations of theOffice for Democratic Institutions and Human Rights in terms of depoliticising the theadministration responsible for organising elections, improving its functioning,establishment of rules for media coverage of campaigns and improving transparency invote counting procedures?

17. Please describe how parliamentary immunity is defined and applied?

Government

18. Please provide a description of the structure and functioning of the government. Which isthe legal basis for the structure and functioning of the government?

19. Please provide a description of arrangements within the government for strategicplanning and monitoring. Is there a government programme? How is it prepared, what isthe time-line for its implementation and how is its implementation monitored?

20. How is the legislative programme of the government prepared and monitored?

21. What types of legal acts exist? How and by whom are they adopted? How are theyprepared? What forms of consultation are used, both inside the government (interministerialcoordination) and outside (stakeholders)? What mechanisms exist to monitorthe effective implementation of legal acts by public bodies (e.g. reporting requirements,inspections)?

22. Whatmechanisms exist for inter-ministerial coordination? Specifically, whatmechanisms exist to link strategic planning and budgeting, in each Ministry, atgovernmental level?

23. What structures exist to ensure the coordination of European Integration issues? How isthe compatibility of planned legislation with the EU acquis and with internationalobligations been verified and monitored? Which body is responsible for such verification? Please Explain.

24. Pleaseprovide a summary description of your preparations for decentralisedimplementation and for conferral of management accreditation under the IPA instrumentincluding the institutional set-up. (Please take note of specific questions on componentsIII, IV and V in chapters 11 and 22)

25. What systems are in place to monitor implementation of policies and laws and to receivefeedback?

26. What is the current structure of local government? Please describe the local electoralsystem?

27. Is there an association of municipalities and which are its functions and its administrativecapacity?

28. Is there a clear delimitation of powers between the central and the local governmentlevel? Explain.

29. Which administrative and/or judicial structures at national level are responsible forsupervising the local government? Has there been any strengthening of these structuresrecently?

30. Is there a detailed plan for transfer of powers to local governments? Please provide adescription of the situation to date and plans for further decentralisation, whereappropriate?

31. Please elaborate on the issue of fiscal decentralisation. How are fiscal competencesshared between central and local government in terms of ensuring that local governmentshave the funds needed to fulfil their responsibilities? Have measures been taken tostrengthen the financial management capacity of the municipalities? Explain. (Please seealso question under Economic criteria.)32. When the fiscal impact of the implementation of new legislation is prepared, is theimpact on the budget of municipalities identified and taken into account? Explain how?

33. How are the political boundaries of the municipalities regulated and defined? Explain.

34. How is the state property, including real estate, distributed between central and localgovernment? Which structures are responsible for the management of state property? (Please refer to questions in chapter 4 on the state capital.)

35. Which administrative structures are responsible to carry out local-self governmentreform?

36. Are municipalities consulted in any formal way in the context of preparation oflegislation which will either affect them or in which they will be involved in theimplementation?

Public Administration

37. Please provide a description of the structures and bodies of the state administration ofSerbia including independent agencies, specifying the source of their financing (statebudget or other), their mission, an organisation chart, the number of their statutorypositions and the number of current employees and their functions?

38. Is there a Strategy and an Action Plan for the reform of the Public Administration inplace? If so, when was it adopted, what are the main objectives and what is the state ofplay of their implementation? How progress is measured (indicators)? What were theshortcomings noticed in the implementation process and how were they overcome?

39. Which bodies/institutions are involved in the definition, coordination, implementationand monitoring of the Public Administration Reform Strategy? Is there a central body orministry in charge of public administration reform?

40. What is the capacity of the administration to handle EU integration issues and to whichextent have recent staff cuts had an impact on it?

41. What is the legal basis for the status of civil servants and other public employees? Isthere a public administration law or regulation defining the status of civil servants,including independence, recruitment, promotion and career structures and remuneration? Are the principles of a European Public administration as identified by SIGMA2 embedded within the legal framework? What are the different categories of stateemployees (i.e. civil servants versus other public employees)? What are the distinctionsbetween these different categories (in terms of legal regime, rights and obligation)? Please indicate the number of employees in each category?

42. How are civil servants and public employees recruited (on national, regional and locallevel)? Are recruitement and promotion based on merit and competence? What is thestatus of public employees? Is there legal framework regulating their status, jobclassification system, career promotion system, accountability and salaries of civilservants and public employees?

43. Are there training institutions for civil servants? Please provide statistics on trainingprovided in the last three years. What percentage of civil servants are (a) women and (b)from ethnic and national minorities (please provide details of grade and seniority ifavailable)? 44? What are their conditions of service? Is there a Code of Ethics applicable to CivilServants? If so, how is its application monitored? Are there specific rules applicable tospecific categories of civil servants? How is the career development (promotion, transfers,2 According to the SIGMA paper no. 27 "European Principles for Public Administration (1999)", these principles refer to: theseparation of public administration of politics, the legal certainty and the proportionality of administrative decisions, theopenness and transparency of administrative acts, the accountability of administrative bodies, the efficiency and effectivenessof public administration in achieving its goals etc.) organised for the civil servants? How is the legal framework regulating these aspectsimplemented (e.g. indications about the number of people being promoted each year)?

45. Please indicate if there are temporary staff employments in the public administration? What is the procedure for recruitment of these categories? What is the legal status of thesecategories – are they considered civil servants and if not, what procedure applies for thembecoming civil servants? Please provide data on annual employments of such categories(indicate also the percentage of these recruitments against the recruitments based on opencompetitions)?

46. How are the management and middle management recruited and for how long? Whowould be politically appointed? Do you have a delimitation between political andexpert/management appointments in the public administration? Are there safeguardsagainst the politicisation of the civil service?

47. Is there a transparent and regulated system of defining the functions and the authority ofmiddle management staff within the administration? Please describe?

48. Is there a transparent legal or regulatory basis for actions taken by civil servants? Inparticular, how is impartiality and non-discrimination of actions by civil servants ensured?

49. How is accountability of administrative bodies ensured (e.g. are administrative bodiesaccountable or answerable for their actions to other administrative, legislative or judicialauthorities, and subject to scrutiny by others)? Name structures involved. Does the legalframework comprise regulations concerning disciplinary measures against civil servants? Explain.

50. Please describe the role of the Ombudsman in the oversight of administrative bodies? Please indicate if judicial proceedings could be initiated in case the Ombudsman'srecommendations are not followed by the administration?

51. What guarantees exist for the independence of the Ombudsman? Please specify inparticular the procedures for its appointment, end of mandate and the allocated financialand human resources?

52. Is access to all official documents granted to the Ombudsman? Is he entitled to suspendthe execution of an administrative act if he determines that the act may result inirreparable prejudice to the rights of a person? If so, how is this implemented in practice? Does the Ombudsman have the right to contest the conformity of laws with theConstitution and, if so, how is this implemented in practice?

53. Are there decentralised offices of the Ombudsman?

54. Please provide concrete data regarding complaints to the Ombudsman and how they werefollowed up for the last few years. Please provide data regarding how the governmenttakes on board recommendations of bodies in charge of administrative control. Pleaseprovide a detailed table indicating the activity of the Ombudsman per year since 2008(number of received complains, number of cases solved, number of recommendations,number of followed recommendations)?

55. Please specify the number of actions undertaken by the Ombudsman ex officio?

56. What systems are in place to monitor implementation of policies and laws and to receivefeedback? Is there an inspection of the public administration and how does it function?

57. What is done to ensure that the public service is open and transparent? Can any citizenaffected by an administrative action find out the basis for the action?

58. What are the procedures to guarantee citizens’ rights of recourse against public serviceactions? Describe these (e.g. parliamentary committees, ombudsman's office, internal andexternal audit, inspectorates, standard-setting authorities). To what extent are therecommendations formulated by these bodies (particularly the ombudsman's office) takeninto account by the Government? Please provide concrete data. Do special administrativecourts exist?

The judicial system

General

59. Please provide brief description of legislation or other rules governing the structure andfunctioning of the judicial system. Are there any tribunals outside the ordinary judicialsystem (such as military tribunals)?

60. Please describe the organisational framework of the court system and indicate anyplanned changes. How are judges appointed and what is their status? Is there anyimmunity system for judges?

61. Please provide a description of your prosecutorial system. How are prosecutors appointedand what is their status? Is there any immunity system for prosecutors? What are therespective roles of prosecutors and deputy prosecutors and what is the hierarchical systembetween them?

62. Please indicate:

a) The number of courts (by type of court);

b) The main competencies and functions of each type of court;

c) The number of judges, prosecutors and defence lawyers;

d) The number and the exact roles / competencies of bailiffs and public notaries ;

e) The proportion of female judges and of judges belonging to ethnic minorities and,if data are available, the proportion of women and persons belonging to ethnicminorities for the other legal professions mentioned under c)?

63. Please describe in detail the re-appointment procedure carried out for judges andprosecutors: constitutional and legal basis, exact procedure, competent bodies, criteriaapplied, and legal remedies?

64. Explain in detail your plans to remedy the shortcomings identified in the re-appointmentprocedure?

65. Explain in detail your plans to remedy shortcomings identified in the nominationprocedure for judges and prosecutors?

66. Independence of the judiciary: Is independence guaranteed by the Constitution? How arethe rights of the judiciary protected? How is the autonomy of prosecutors protected? Howare the independence of courts and the autonomy of the prosecution service ensured froma financial point of view?

67. High Judicial Council / State Prosecutorial Council: Describe their composition, role,premises and budget. How is their independence guaranteed? How are membersappointed? How long is their mandate?

68. Impartiality of the judiciary: Please provide information on the legal provisions and theinstitutional arrangements in place providing for the impartiality of the courts and theprosecution service. Are there provisions to prevent the conflict of interest for judges andprosecutors and how are they implemented? Are there ethics provisions in place forjudges and prosecutors and what is their exact role? Explain.

69. How do you ensure that natural and legal persons from EU Member States have access toSerbian courts free of discrimination compared to Serbian nationals?

70. Detention: Please describe in detail the rules and procedures governing pre-trial detentionand, in particular, the rules on its extention. Please also describe the rules governingdetention during the trial phase and imprisonment after conviction. How are human andsecure conditions for detainees (in respect of international human rights standards)ensured by the police, justice, prosecution and penitentiary systems? What measures aretaken if such standards are not respected?

71. Training: How is initial and continuous training for judges and prosecutors provided? What are the exact role and status of the Judicial Academy?

72. Clerical staff: Please give the number of clerical staff. How does this compare with thenumber of judges and prosecutors? What are their roles / competencies and their legalstatus?

73. Accountability and discipline: Is there a code of ethics for members of the judiciary andprosecutors? If so, who has adopted the code? What is its legal status? How is it beingimplemented?

74. Who is in charge of deciding when to carry out inspections in courts and prosecutorsoffices? Is it the Ministry of Justice or the High Judicial Council / State ProsecutorialCouncil? Please give examples of inspections carried out?

75. How is co-operation between actors (judges, prosecutors, investigators, clerks, judicialpolice etc) in the criminal justice system ensured to facilitate the functioning of thesystem? Are there agreements / memoranda of understanding in place and what is theirrole? Please give examples.

76. Do the different actors have clear roles and responsibilities? How is it ensured that anoverlap of responsibilities is avoided? How is efficient communication between thedifferent actors ensured?

77. Please describe the system of appeal procedures?

78. Please describe the situation as regards war crime proceedings in Serbia: Which courts /prosecution offices are competent? Describe their financial and human resourcessituation. What specialised trainings have been provided to judges, prosecutors anddefence lawyers? Please indicate the state of play of the proceedings. How manyproceedings have been finalised and how many are ongoing? Have there been extraditionrequests? Please elaborate.

Domestic trials for war crimes

79. Please explain what is the status of the domestic legislation on war crimes and provide acopy of relevant Laws?

80. Does Serbia accept the notion of command responsibility, as defined by the ICTYStatute (Art. 7.3) and the Rome Statute of ICC (Art 28)?

81. Do the necessary trained judicial personal (prosecutors, lawyers, judges) to processdomestic war crimes trials exist? What kind of training activities have been done, areongoing and planned?

82 How many persons are indicted for war crimes by Serbian Courts? Is this list public? Please attach a copy of it. How many additional indictments in total are foreseen?

83. How many such cases have been processed? How many verdicts were reached? Can youprovide a list? Do you have any forecast on how long time it will take to process allforeseen war crime cases?

84. Is Serbia prepared to fully cooperate with ICTY on domestic war crimes trials, includingby accepting evidence and other supporting material from ICTY? Is evidence comingfrom the ICTY acceptable, in theory and in practice, in national court proceedings?

85. Is Serbia prepared to accept full and transparent international monitoring of war crimestrials?

86. Is Serbia ready to conclude extradition agreements covering war crimes withneighbouring countries? (For more detailed questions please see chapter 23)?

Anti-corruption measures

87. Please provide any analysis or research made by your authorities or other bodies (e.g? international organisations and NGOs) on the problems of corruption faced by your country?

88. Please give an overview of the efforts geared towards tackling corruption (i.e. adoption oflegislation, international conventions, adoption of strategies and action plans to implementlegislation, reinforcement of institutional and human resources capacities to deal withcorruption). Which are the main priorities in this field? Which are the bodies responsiblefor the fight against corruption? How is coordination between different services ensured?

89. Was the anti-corruption strategy the subject of broad consultation at all levels (e.g. interdepartmentalat national, regional and local levels, consultations with stakeholders in theprivate sector, civil society and the media etc?

90. Please describe efforts to strengthen implementation of the above and provide concreteresults related to the fight against corruption? (For detailed questions please see Chapter 23)

Internal security

91. Please describe the status and the structure of the security forces, both civil and military,and their respective competences concerning internal security. Please provide – whereavailable - organisation charts and indications about the number of employees?

92. Is there civilian control over the security forces, including intelligence services, and howis it exercised? Please describe the relevant arrangements in place for parliamentarycontrol of security forces?

93. What percentage of police officers/membersof the security forces are from ethnicminorities? If available, please provide a breakdown of such figures by rank and seniority?

94. What are or were the main elements of the reform of the security forces?

95. How is police primacy ensured in dealing with internal security? What is the legalframework and how is it implemented? What arrangements exist for calling upon militaryresources under police command in specific crisis situations? How is the police primacyover military ensured in managing the Administrative Boundary Line with Kosovo?

96. Is there or was there a Strategy and an Action Plan for the reform of the Police, includingproper budgetary allocations? What is its stage of implementation?

97. What measures have been taken to ensure an increased awareness within the securityforces of issues such as human rights, non-discrimination and community policingmethods?

98. Are there any arrangements in place forcoordination between local governmentstructures and local/national police forces in the respective municipalities? Please describehow coordination between municipalities and the local heads of police is carried out. Arethere any problems of coordination in practice?

99. What percentage of the police force has received further training over the last 5 years andon what subjects? Is such training obligatory? What is the average amount of training andwhere and by whom is it offered and on what subjects?

100.Please detail the inspection and internal control systems to ensure fairness, transparencyand accountability in the security forces, at all levels, including at the central level andamong senior officers? 101.What actions have been taken by the Internal Affairs unit in the Police dealing withProfessional Standards and with police misconduct? What results have been achieved(including statistics on number of cases, sanctions applied etc.) over the past 5 years?


 

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