Can Court Fee Waivers Open the Door for Justice in Serbia?

The courts are open and justice is blind, or so they say. But if you’re poor, the courts may be beyond your reach. How can you protect your rights if you cannot afford to walk through the door of the courthouse?
 
In many countries, courts offer to waive their fees to anyone who can demonstrate that they cannot afford them.
 
Whilst it is true that fee waivers will not overcome profound barriers to access to justice, they do provide an important safety net for the poor to access essential services. And by helping the poor to pursue their rights, the courts can help to level that unequal playing field that is the courtroom.

In Serbia, providing court fee waivers are particularly pertinent.Recent World Bank research on access to justice in Serbia shows overwhelmingly that costs and lack of affordability are the biggest deterrents for Serbian people in accessing the courts.  The affordability factor is even more significant in particular types of cases. In labor cases involving unpaid wages (a common cause of action in Serbia, particularly since the Crisis) a fee waiver may be the only chance for a wronged employee to pursue their rights. Similarly, in domestic violence cases, the fleeing party often lacks access to funds and a fee waiver may be their only hope for safety and a new beginning.

We recently conducted an assessment of Serbia’s court fee waiver program, as part of the Access to Justice component of the Serbia Judicial Functional Review. Based on research and consultations with judges, staff, court users, NGOs, and attorneys, the Review highlighted four key weaknesses with the implementation of Serbia’s court fee waiver program.
 

1. There is very limited awareness of the existence of court fee waivers among the public. Many potential users are deterred from the courts unaware they could access this benefit.
    
2. Practice is widely inconsistent across the country. Two different courts could decide requests entirely differently for persons in similar circumstances. In fact, two different judges in the same court could decide the requests differently. In one recent instance, an attorney assisting two indigent clients in identical circumstances submitted two identical claims to two judges in the same court, only to have one accepted and the other rejected. In some courts the judge decides, but in others the judge defers to the Court President.  Some courts apply a ‘rule of thumb’ that, the higher the value of the request, the more evidence is required to substantiate the application, and other courts apply no such rule.  This variability in practice is a serious concern as it undermines the principle of equal treatment before the law and the expectation that people across Serbia receive the same access to justice.
    
3. The waiver program is unstructured and goes largely unmonitored. There are no standardized application forms or guidelines on granting a waiver.  Manual registers are not kept, and data is not recorded in case management systems. (Despite having electronic recording functionality, court staff report that they don’t bother to enter it because nobody monitors it.)  The only recording of fee waivers is by individual judges in their orders.  There are no official statistics, and no aggregation or analysis of data is possible.
    
4. Stakeholders report that some Court Presidents informally discourage their judges from granting fee waivers due to financial pressures facing their courthouse.  Court fees form a large chunk of the court budget and provide a flexible source of revenue for individual courthouses in an otherwise complex and rigid financial management framework. This is a particularly worrying development, as it suggests that access to justice is being fettered not only inconsistently across the territory, but for reasons entirely unrelated to justice or the claim of the indigent party.  Such influence is also likely to be futile.  Indigent claimants whose applications are rejected are more likely to either withdraw their case or not pay their fees, so the revenue would likely be lost in any event.

Looking forward, we intend to work with stakeholders to strengthen the court fee waiver program in Serbia.  By raising awareness, standardizing processes, and monitoring compliance, the courts could improve access to justice and equal treatment.  In this small way, the Serbian judiciary could bring meaning to those well-worn maxims.  The courts could indeed be open to all, including poorer segments of the Serbian community.