Goran Ilic from the Association of Public Prosecutors and Deputy Public Prosecutors of Serbia writes for prEUgovor about what is new in the Draft act on the Amendment to the Constitution and how to evaluate certain proposed solutions from the point of view of the reasons why the changes to the Constitution were made.
After a nearly two-year standstill, the process of revision the Constitution in the area of judiciary continued in 2021. Unlike the 2018 debate, this year’s debate on the content of constitutional amendments in the area of judiciary was not carried out in a “acrimonious” atmosphere.
Namely, the public debate on the amendments to the Constitution on the judiciary during 2018 was more like an argument in public between politicians and the then representatives of the Ministry of Justice with judges and public prosecutors, in which representatives of the Ministry of Justice were trying to prove that judges and prosecutors were doing their job “badly”, i.e. that the judiciary and the prosecution were “bad.” At that time, no argument in favour of depoliticisation of the judiciary could be heard from the representatives of the Ministry of Justice, although that was the precise reason why the process of changing the part of the Constitution on the judiciary had begun.
Following the opinion of the Venice Commission, the Committee on Constitutional Affairs and Legislation of the Parliament adopted Draft Act on the Amendment to the Constitution of the Republic of Serbia (hereinafter the Draft)
A substantial change in the organization of the public prosecutor's office - from a monocratic to a collective body
The Amendment XVII of the Draft in the paragraph 1 defines the public prosecutor’s office in a somewhat new way, abandoning the traditional, historical definition. Namely, it follows from the wording of paragraph 1 of Amendment XVII that the public prosecutor’s office does everything, including prosecuting perpetrators of criminal offences, to protect the public interest.
The paragraph 7 of the Amendment XVII also introduces a substantial change in the organization of the public prosecutor’s office. Instead of the current monocratic arrangement, the public prosecutor’s office should in the future be a collective body within which the public prosecutor’s function is originally performed by public prosecutors, chief public prosecutors and the Supreme Public Prosecutor. This introduces a substantial change in the organization of the public prosecutor's office.
The abolition of the monocratic principle also results in a change in the name of the office holders in the public prosecutor’s office. The highest position in the public prosecutor’s office will be held by the Supreme Public Prosecutor, heads of public prosecutor’s office will be called “Chief Public Prosecutors”, while the basic office holders will be called Public Prosecutors.
Since the Draft defines the public prosecutor’s office as a hierarchically organized authority, in the same time in the Amendment XIX mandatory instructions are standardized in detail as a special type of hierarchical authority. Without any doubt, detailed standardization of one organizational question is not a constitutional matter. It follows that, according to that criteria, mandatory instructions and their elaboration shouldn’t have been included in the text of the Amendment. In addition, since the hierarchical character of the body is indicated in the Amendment XVII, it can be said that the special prescribing of mandatory instructions in the amendments isn’t necessary.
High Proseccutors’ Council will decide about all status questions, but not about the budget
In the Amendment XX is stipulated that the Supreme Public Prosecutor is elected by the National Assembly for a period of 6 years, at the proposal of the High Prosecutors’ Council (HPC), and that the same person cannot be elected to the position twice. A qualified majority of 3/5 of all deputies is required for the election of the Supreme Prosecutor. In the future, chief public prosecutors will be elected by the High Prosecutors’ Council, which means that their function will lose its political character, unlike the function of heads of public prosecutor’s offices under the current Constitution, elected by the National Assembly at the proposal of the Government. Under the new system, public prosecutors (current deputy public prosecutors) will also be elected by the HPC.
The solution contained in the Draft expands the full functional, material immunity so that, in the future, the area of protection of a public prosecutor will not be limited only to the opinion expressed while discharging office, but will also include all the activities related to performing the function in a public prosecutor’s office (Paragraph 1 of the Amendment XXIII). To illustrate, this norm also means that, once the Constitution is amended, it will no be possible to hold a public prosecutor accountable for an opinion given in the media, if what s/he said was in any way related to the performance of his/her function.
The electoral competencies of the High Prosecutors’ Council include proposing the election and termination of office of the Supreme Public Prosecutor, appointment of the Acting Chief Public Prosecutor, and deciding on the election and termination of office of Chief Public Prosecutors and public prosecutors. Comparatively speaking, the scope of electoral competencies of the HPC is, in part, broader than the scope of competencies of some prosecutors’ councils in the countries of former Yugoslavia, primarily because it is entrusted with proposing the election and termination of office of the Supreme Public Prosecutor, who is elected and dismissed by the National Assembly.
In addition to electoral competencies, the High Prosecutors’ Council will be entrusted also with deciding on all status issues of the Supreme Public Prosecutor, Chief Public Prosecutors and public prosecutors. This is a very important novelty, because it implies that these issues will be excluded from the competence of the Supreme Public Prosecutor. Regarding the list of competencies of the HPC, the Venice Commission stated that budgetary autonomy should be included in the constitutional competencies of this body, which happens to be a well-founded suggestion.
The Venice Commission is concerned about the composition of the High Prosecutors’ Council
The High Prosecutors’ Council will have 11 members: five elected by Chief Public Prosecutors and public prosecutors, the Supreme Public Prosecutor, the Minister of Justice, and four prominent lawyers elected by the National Assembly. The Minister of Justice will not be a full-capacity member, because s/he cannot vote when the disciplinary responsibility of a holder of public prosecutor’s office is on the agenda of the Council. Although the composition of the HPC regarding the elected members responds to the request of the Venice Commission that they represent an essential element, the overall composition of this body has caused “concern” in the same Commission.
Complaining about the composition of the High Prosecutors’ Council, the Venice Commission also gave an unequivocal recommendation that the Supreme Public Prosecutor and the Minister of Justice be excluded from that body, and stated that it would be “ideal” if 6 members of the Council were to be elected by public prosecutors and chief public prosecutors themselves.
The Commission was of the opinion that the reason for excluding the Supreme Prosecutor from the HPC would be his/her hierarchical influence, which would impede the free decision-making of the the body’s professional component. As for the Minister of Justice, the reason for the exclusion would be that a political figure in the Council could jeopardise the impression of the body’s political neutrality.
If both arguments are taken into account, the hierarchical influence of the Supreme Prosecutor seems to be an inescapable obstacle to the Council’s free decision-making. It is necessary to act upon the recommendation of the Venice Commission that the Supreme Public Prosecutor not be included in the High Prosecutors’ Council. As for the Minister of Justice, his remaining in the Council in a narrowed capacity - through exclusion from decision-making when elections and disciplinary proceedings are on the agenda - should be considered as an optimal, albeit less than ideal solution.
In the end, it should be highlighted that in the section on the public prosecutor’s office, the text of the Draft Act amending the Constitution contains improvements compared to the provisions of the current Constitution from 2006, and significant improvements compared to the text from 2018. If the recommendations of the Venice Commission regarding the composition of the High Prosecutors’ Council are accepted, the purpose of the constitutional reform will be achieved because real depoliticisation of the public prosecutor’s office will be ensured.