Standing points for adopting the Law on the High Prosecutorial Council
The Constitution of the Republic of Serbia of 2006 introduced the State Prosecutorial Council (SPC) in the constitutional system of the Republic of Serbia for the first time, as a special body with the basic function of guaranteeing and protecting the independence of the public prosecutor’s offices.
Until 2001, there were no judicial councils in Serbia, and the High Judicial Council, as a special state body responsible for nominating judges and public prosecutors and appointing deputy public prosecutors, was first introduced by the Law on High Judicial Council of 2001, although there was no constitutional basis for the introduction of that body into the legal system according to the then valid Constitution of the Republic of Serbia of 1990.
Article 165 of the Constitution of the RS of 2006 empowered the SPC to propose to the National Assembly candidates for the first election for deputy public prosecutors, to elect deputy public prosecutors to a permanent position, to elect deputy public prosecutors to a permanent position in more (or in second) public prosecutor’s offices (promotion) and to decide on the termination of office of deputy public prosecutors.
Although the Constitution defined the SPC as “an autonomous body which shall provide for and guarantee the autonomy of public prosecutors and deputy public prosecutors”, the issue of the autonomy of that body remained problematic considering its composition and the selection of elected members.
The composition and method of selection of the elected members of the SPC permitted a big influence by the two other branches of government (politics) on the Public Prosecutor’s Office and called into question the possibility of that body to fulfil its constitutional role to safeguard the autonomy of the Public Prosecutor’s Office. Hence, constitutional amendments were made.
The Action Plan for the implementation of the National Strategy for the Reform of the Judiciary of 2012 envisaged the change of constitutional provisions related to the judiciary with the aim of depoliticizing the judiciary and strengthening the independence of the judiciary and the autonomy of the Public Prosecutor’s Office.
The procedure for amending the Constitution of 2006 was completed at the beginning of 2022, when the National Assembly adopted the Amendments to the Constitution of the Republic of Serbia in the part related to the judiciary.
According to the amended constitutional provisions, the prosecutorial council is named the High Prosecutorial Council and its composition, method of electing members and competences were significantly changed.
Standing points for adopting the Law on the High Prosecutorial Council is the work of the deputy public prosecutor in the Appellate Public Prosecutor’s Office in Novi Sad, Radovan Lazić, in collaboration with lawyers from Novi Sad, Slobodan Beljanski and Veljko Milić.
Standing points for adopting the Law on Public Prosecutor’s office
The constitutional amendments bring an essential novelty in the functioning of the Public Prosecutor’s Office (PPO). According to the previously valid constitutional provisions and statutes (that are still in force), the function of the PPO is performed by the Republic Public Prosecutor and other public prosecutors, while deputy public prosecutors are excluded, and according to the Law they are only “proxies” of public prosecutors, their superiors.
The new Law should regulate that the function of the PPO is performed by the Supreme Public Prosecutor (the Republic Public Prosecutor must be renamed the Supreme Public Prosecutor, because the insufficiently precise name of the Supreme Court of Cassation is changed to the Supreme Court of Serbia, where the PPO of the appropriate rank should act), then the main public prosecutor (according to amendments to the Constitution, the current public prosecutors or heads of the PPOs become chief public prosecutors) and public prosecutors (according to the amended Constitution, the current deputy public prosecutors are renamed as public prosecutors).
From a monistically organized body, the PPO has been transformed by constitutional amendments into a sui generis collective body.
The key points to be regulated by the new Law on Public Prosecutor’s office are:
- Function and management of the Public Prosecutor’s Office
- Autonomy of the Publisher Prosecutor’s Office
- Hierarchical authorizations and mandatory instructions
- Objection to mandatory instructions
- Administration in the Public Prosecutor’s Office and the Act on Administration in the Public Prosecutor’s Office
- Relationship between the Public Prosecutor’s Office and the Police
Standing points for adopting the Law on Public Prosecutor’s office is the result of the work of the Deputy Public Prosecutor in the Second Basic Public Prosecutor’s Office in Belgrade, Predrag Milovanović, in collaboration with the Deputy Public Prosecutor in the Higher Public Prosecutor’s Office in Belgrade, Bojana Savović, and lawyers Vladimir Beljanski and Milan Momčilović.
In July 2022, the Center for Judicial Research (CEPRIS) formed five working groups, which created the standing points for the adoption of five laws – the Law on Judges, the Law on organization of courts, the Law on High Judicial Council, the Law on Public Prosecutor’s office and the Law on the High Prosecutorial Council. The standing points should indicate the key issues that must now be regulated by the mentioned laws, while proposing concrete solutions, bearing in mind the amended Constitution.
The preparation of this text was supported by the Embassy of the Kingdom of the Netherlands in Serbia, the Balkan Fund for Democracy, the project of the German Marshall Fund of the United States of America and the Embassy of the Kingdom of Norway in Belgrade.