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Justice at a crossroads

With the adoption of the Act on the Change of the Constitution by the National Assembly on November 30 this year, part of the procedure for changing the Constitution was completed, and on January 16, 2022, the citizens will decide on its confirmation in a referendum. The act amending the Constitution refers exclusively to the judicial system and no other issue is the subject of constitutional amendments. The judiciary is at perhaps a historical turning point between the old and the new, politically responsible and independent, conservative and progressive system. Citizens will vote “yes” or “no” to the final change of the Constitution, and they should do so guided by clear criteria and knowledge of the amendments, regardless of political beliefs and attitudes.

Here I would like to say a few sentences about the public prosecutor’s office. Its unique nature already derives from the competence of the public prosecutor’s office, which has become an important part of the judicial system by expanding its powers in criminal proceedings. The constitutional amendments stipulate that the public prosecutor’s office will perform other competencies that protect the public interest determined by law, and that is harmonization with current affairs that are closely related to the function of criminal prosecution, and which concern e.g. submission of proposals for extension of measures for protection against domestic violence under the Law on Prevention of Domestic Violence.

Deputy public prosecutors are abolished and it is prescribed that the holders of the public prosecutor’s office will be the Supreme Public Prosecutor, the Chief Public Prosecutor and public prosecutors. This is important for strengthening the independence of the public prosecutor’s office, because according to the current situation, the function of the public prosecutor’s office is performed by the public prosecutor, and if he is prevented from performing the function, the deputy public prosecutors, who are case handlers, are questioned. The new redistribution of the public prosecutor will guarantee more independent and efficient work on individual cases, increasing the responsibility of each public prosecutor and excluding external and internal influences or any other pressures, both when initiating pre-investigation proceedings and when ordering detention, investigation and indictment.

The permanence of the public prosecutor’s office is guaranteed because everyone will be elected to a permanent post immediately, thus abolishing the three-year probationary term for those deputy public prosecutors who were elected for the first time. The procedure of electing public prosecutors and chief public prosecutors has been transferred to the exclusive competence of the High Prosecutorial Council, as a state body whose main function is to protect the independence of the public prosecutor’s office. The National Assembly will not participate in the election of deputy public prosecutors, just as neither the government nor the National Assembly will decide on the election of heads of public prosecutors. This does not mean that the public prosecutor’s office is alienated from the people, but that the representatives of the legislative and executive authorities who are elected according to political criteria should not decide who will become the public prosecutor. No public prosecutor should be elected, as is the case with MPs and ministers, by membership in a political party, but by professional criteria, because in performing his function he must be professional, expert and qualified to protect the rights of citizens, and bring perpetrators to justice. Only the National Assembly will elect the Supreme Public Prosecutor, and that decision is correct because he needs to determine the strategy of criminal prosecution, in which he will determine the types of criminal acts whose prosecution will be a priority during his six-year term.

The High Council of the Prosecutor’s Office will have 11 members, five public prosecutors elected by chief public prosecutors and public prosecutors, four prominent lawyers with at least ten years of experience in the legal profession elected by the National Assembly who will not be members of a political party. the minister in charge of justice without the possibility of deciding in the procedure for determining the disciplinary responsibility of the public prosecutor. Although the category of prominent lawyers has not been elaborated in detail, this does not mean that these members can be a stumbling block in decision-making and an extended arm of government. The constitutional amendments reduce political influence when deciding on the election and termination of the public prosecutor’s office and strengthen the capacity of the HJPC to be able to resist political turbulence in the future and ensure the independence of the public prosecutor’s office.

The new solutions represent an improvement in the position and organization of the public prosecutor’s office in the judicial system and a huge step towards reducing the influence of political authorities on the work of the public prosecutor’s office, strengthening the independence and responsibility of public prosecutors while adjusting to reality.

Deputy Public Prosecutor in the Second Basic Public Prosecutor’s Office in Belgrade

Contributions published in the section “Views” reflect attitudes author, not always editorial politics list

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