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Interviews

[EWB Interview] Flessenkemper: The goal of independent judiciary in Serbia requires a change in political culture

Serbia will mark the 20-year anniversary of its Council of Europe membership in 2023. During that time, this international organisation has been contributing to many reform efforts in the country, with recent priority areas including the judiciary, gender equality and LGBT+ rights. In addition to these areas, where significant work is still required, the future priorities in Serbia will include the Council of Europe’s action against crime, stresses Tobias Flessenkemper, Head of the Belgrade Office of the Council of Europe.

Flessenkemper, who has held the current office since October 2018, discussed the activities, results and plans of the Council of Europe in Serbia in an interview for the European Western Balkans. While legal and technical reforms are important, another aspect is also necessary – the change of political culture and raising awareness of certain issues, he emphasises. Some of the campaigns the Council of Europe has launched to this aim in Serbia include “Block the Hatred – Share the Love” and Democracy Here, Democracy Now.

European Western Balkans: Since 2016, Serbia has been involved in two rounds of the Horizontal Facility initiative, managed by the Council of Europe, which covers reforms in many areas, including independence of the judiciary, freedom of expression, and the fight against corruption. What would you single out as the most successful area so far? 

Tobias Flessenkemper: With the Horizontal Facility, we aim, together with the European Union, to bring Serbia closer to the standards, which are all connected: human rights, democracy and the rule of law. Our interventions are co-ordinated to reach results in the most efficient way. An important milestone are the amendments to the 2006 Constitution of Serbia accepted by the citizens in January of this year. Now the judiciary has the potential of becoming more independent and autonomous. But now Serbian authorities need to start introducing the real change that will be felt by everyone in the country. Another result for Serbia is the introduction of its first law on gender equality. We will see whether more can be achieved for equality and diversity. Also because of these results a third phase of the Horizontal Facility for the Western Balkans and Türkiye is now planned. It will build on the awareness, knowledge and understanding about the European standards which will help raise the levels of democracy, rule of law, human rights.

EWB: When it comes to the constitutional reform in the independence of the judiciary, what are the next steps that the Council of Europe is participating in? Is it just the changes of the laws that have to be prepared now that the Constitution has been changed, or are there other areas in which you are co-operating with the authorities? 

TF: With the result of the referendum of 16 January 2022 the clock started ticking for the change of the laws governing the judiciary. By February 2023 the changes have to be passed. Yet, following the early parliamentary elections on 3 April, the new parliament has not yet been constituted. These legislative changes are the basis for the further steps of judicial reform. It is foreseen that we will then work intensively with all stakeholders in the judiciary, the Councils of Judges and Prosecutors, the bar associations, the academy, the government and parliament and others. By 2026, the judiciary has the potential of being more effective and in line with European standards. This is the result we offer to help Serbia authorities achieve.

EWB: When an average citizen thinks about the problems in the judiciary, they mostly think of the slowness and the lack of initiative when it comes to politically sensitive cases. Is the Council of Europe addressing these specific problems?

TF: The speed of the work of the judiciary is a widespread concern. By focusing on the independence and autonomy, the second concern you mentioned, we aim for effectiveness and efficiency. For this, prosecutors need to be in the position to autonomously take forward cases based purely on legal considerations. So far, the system was designed to include political influence. The independence of judges is also essential, they need to be free from the external influence. These are not purely legal and technical reforms. This means a change in political culture. This also concerns the role of the media, which can have a positive or negative influence on the rule of law. The Council of Europe can help to create the structural conditions but changing the atmosphere in which these structures can function is a challenge for the whole society. Here we can give advice, but, of course, this is work that must be done by everyone in Serbia who is interested in an independent judiciary.

EWB: Among the projects of the Council of Europe in Serbia is also “Block the hatred. Share the love”, which was launched this year. Its aim is to protect vulnerable groups from hate speech. Which groups in Serbia are most affected and what is the project doing to fix this problem?

TF: The “Block the Hatred – Share the Love” campaign started at regional level, covering the entire Western Balkans since late 2020, and indeed it is now launched in Serbia. This has started as a regional initiative on the topic the Council of Europe has been raising awareness about for long time. Young people and youth organisations working with the Council of Europe have already in 2012 started raising awareness about the risks hate speech on the internet poses for democracy and human rights. Already at that time, we could see that people were confronted with hate speech online and our Youth Department put the issue on the agenda.

European unity cannot be built based on people hating each other: this campaign aims exactly at that – making people in Serbia and in the Western Balkans aware there is an alternative to hatred. The alternative is love – as a concept that underpins many others: respect, diversity, inclusion.

Hate speech cannot be solved only by the police action, you cannot say “it’s a crime” and then it will stop. It is everybody’s responsibility. So, the next step is, of course, to say – how do we create awareness about this? And this is where the campaign comes in, saying that first of all, you do not have to tolerate this. When you see it, do something about it. There is an easier way of limiting hate speech – by blocking it, in your own feed. This way, the algorithms can be influenced, limiting the spread of such contents.

Of course, after that simple step that everybody can do, the next step is to create awareness around it and counter it. And that is why we feel happy and privileged to partner with prominent artists in sharing this positive messages. This campaign will not have as a result that there will be no more hate speech in Serbia. But it may have as a result that people are becoming more aware that they can do things about it themselves.

When it comes to the specific groups that are targeted, what we know as a Council of Europe, and from the European Commission against Racism and Intolerance (ECRI), which is regularly looking into the situation, is that hate speech is often targeting national minorities, including Roma, the area of sexual orientation and gender identities, there is a particular issue with neighbouring countries, political events and people who are associated with these political events. What you can also sometimes see is that particular political issues bring out a lot of emotions, which can turn into violent language and degrading language. This is the reason why politicians should refrain from fuelling these sensitive issues by using offensive and degrading language. They should instead make it clear that the use of hate speech is unacceptable in a democratic society.

EWB: Many are saying that hate against people based on their sexual orientation, which you mention, and the overall negative atmosphere in Serbia when it comes to LGBT+ persons has prevented the adoption of the Law on Same-Sex Unions last year. Are you optimistic that this problem can be overcome? Can that law be adopted in the new parliament? 

TF: The Government of Serbia has asked us to help develop the law because in the view of the Council of Europe it will give to same-sex couples equal access to a universal fundamental right. This is not a special right. It is a recommendation of the Council of Europe for many years now and there is a solid jurisprudence of the European Court of Human Rights which allows us to say that there is now a European consensus in providing legal recognition for same-sex couples.

We support Serbia to become the 30th member State of the Council of Europe to take this step. The next step would be for the new government to take a decision on the work that has been done and bring the draft to the National Assembly. The draft that is currently with the competent ministries is a solid proposal, but it could also be more ambitious. Our experts have made some comments on that.

Now, one of the things that you can say in Serbia is that there is a lot of second-guessing of what is the societal atmosphere. Similar processes in other Member States where legislative reforms were preceded by a clear and compelling approach to messaging and communication led to a positive outcome in terms of societal acceptance. We are encouraging the Serbian authorities to take their initiative forward and to create the right fora. We are ready to support this, we already did it last year, through public tribunes containing accurate information to demystify the issue. Serbia is a diverse country, and it has a lot of positive traditions to connect to, so I would not be surprised that adopting such a law, in the wake of the EuroPride activities this autumn, will contribute to positive change.

EWB: When it comes to the future of the Council of Europe in Serbia, are there priorities for which you would like to see more focus and more effort in their implementation in the next couple of years?

TF: Serbia will have been a member of the Council of Europe for 20 years next year. The idea of our work here is to support Serbia in reaching the standards, and a key avenue is through our programmatic partnership with the EU. This co-operation is based on the recommendations of the Council of Europe monitoring bodies. For many years now, we have been focusing on the justice reform. Now, after the change of the Constitution, the implementation is the key issue. At the same time, we expect the Council of Europe’s action against crime to emerge as a more visible topic of our co-operation activities in Serbia. It is mostly about the rule of law, but issues like corruption and money laundering are also related to human rights – directly or indirectly. For instance, we are organising in September a regional conference on combatting trafficking for labour exploitation, a problem that it is increasingly concerning us. Another example is money laundering and tax evasion through which finances are channelled away from such important areas, as medical care. These questions – organised crime and corruption – need to be tackled seriously and vigorously. It is crucial for all members of the society to be treated equally and have more means for education, health, housing, also environment, and so on.

That’s why promoting equality and diversity remains our key priority, as they are also important for democracy. This week, a few hundred young people from all over Europe will hold the Youth Action Week in Strasbourg as part of our Democracy Here, Democracy Now campaign.

It is the challenge of 2020s to revitalise democracy and to strengthen mutual trust between young people and democratic institutions and processes. Access to human rights is the basis for equality and diversity, and meaningful youth and citizen participation and the impact of digitalisation are important factors of democratisation.

Even though there are Serbia-specific challenges, one could say that problems in Serbia are not much different from what other countries face. Our co-operation activities are for the rights of all people in Serbia, and we help bringing the country closer towards European standards. We hope that the new parliament and government will be in place soon so that our work can be stepped up for the benefit of all.

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