Nobody needs a lawyer who listens to the government

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For the first time, "Vreme" published my personal opinion last year, in the issue that came out on the eve of the National Day. The case happened to be like that this time as well, with the fact that at the time I was a judge of the First Basic Court in Belgrade, and today I am a lawyer. At the moment of writing this text, lawyers in Serbia are not working or rather they are working in a limited capacity, since the Assembly of the Bar Association of Serbia, as the highest body of the Serbian legal profession, at the beginning of February of this year made another decision on the suspension of work, this time for thirty days.

That decision was preceded by an attempt to suspend the work of lawyers at the end of January for seven days, which was followed by an attempt to thwart it. Namely, the High Court in Belgrade then, following the lawsuit of a Belgrade lawyer, established a minimum work process, that is, determined a temporary measure and ordered lawyers to act in certain matters of a more urgent nature. On that occasion, within just a few hours of receiving the lawsuit, the acting judge drew up a nine-page decision, in which she tried to explain why she ordered the bar to have a minimum work process. The Board of Directors of the Bar Association of Serbia reacted to this with a three-day suspension of work, which lasted intermittently until February 2, when at the new session of the Assembly a decision was made on the suspension, which is still in effect, and according to which lawyers will not access the premises of state authorities. On the other hand, the decision determined that lawyers during the suspension have the right to act in matters in which failure to act may result in the loss of the party's rights. Therefore, no one will lose the right that belongs to him by law due to the suspension. However, a lawyer also filed a lawsuit against this decision together with a proposal for the determination of a temporary measure, with which he requested that the lawyers be ordered to act, as well as to prohibit the Bar Association of Serbia from making decisions on suspension in the future. The High Court in Belgrade ordered the action of a lawyer in certain categories of cases of an urgent nature, while in the rest the proposals of the lawyer who initiated the proceedings were rejected.

FIRST SUSPENSION WITHOUT ECONOMIC INTEREST

In a period of a little more than a decade, this is the third suspension of the legal profession. The reason for the first was the legal decisions regarding notaries public, the second was a consequence of changes in the legal position of the then Supreme Court of Cassation regarding bank fees. Both times the legal profession had an economic interest in the suspension. Now, however, it is not like that. Advocacy is an independent and independent profession, but the material position of a lawyer is conditioned by his work. A lawyer has no salary or guaranteed income. In other words, when he is not working, he is not earning. During the suspension of work, lawyers will not earn money, but they will be properly taxed and the accompanying costs that they will have to bear. During the suspension of work, trials will be postponed, so the cost of the suspension will be the loss of time and nerves, and the citizens will pay for it. However, one must be realistic, lawyers will not be impoverished because of a month's suspension. As far as the citizens are concerned, they need the modernization of the judicial system much more than the story of suspension.

FACTS ABOUT LAWYER

Let's go back to the beginning and try to clarify some things. According to the current Law on Advocacy and the Constitution, the Advocacy is an independent and independent legal aid service. Lawyers in Serbia were first given a place in the law more than 150 years ago, during the reign of Prince Mihail, with the adoption of the Law on Lawyers from 1862. Today, in the Republic of Serbia, the legal profession is a constitutional category, just like the judiciary and the prosecutor's office. These three professions are so closely related to each other that they cannot be discussed separately. In a country, the legal profession is what its judiciary is and vice versa.

Who are the lawyers? The Bar Association is made up of personnel who have grown up in the legal profession, as well as former advocates, public prosecutors, policemen, lawyers from business and administration, and judges of courts of all levels, up to the Supreme Court. In order to become a lawyer, one must first graduate from law school, complete an internship for at least two years, learn several thousand pages of textbooks and laws, pass the bar and then the bar exam and be admitted by the competent bar association. That's what the law says. The law! There are about twelve thousand of us in total in Serbia.

WHAT DOES THAT LAW SAY?

Now we can focus on the issue of suspension of work from the legal side. In Serbia, it is colloquially said these days that lawyers are "on strike". That doesn't correspond to the truth. Lawyers are not on strike, but through their elected representatives at the assembly as the highest body of the chamber, they made a decision to suspend work. What is the difference? A strike is defined by law as a work stoppage organized by employees to protect professional and economic interests. Lawyers are not employed persons, nor are the Bar Association of Serbia, nor the chambers within it, employers of lawyers, but independent and independent professional organizations of lawyers. That's what the law says again.

Why is this important? According to the Law on the Organization of Courts, the higher courts in Serbia, including the one in Belgrade, are competent to, among other things, judge disputes related to strikes.

Since it was clarified that the lawyers are not employed, that they are not on strike and that the bar association is not the employer of lawyers, the conclusion is clearly imposed that the suspension and establishment of the minimum work process was decided by a court that was not competent for it by law. That law again.

REASONS FOR SUSPENSION

So, lawyers in Serbia are not on strike, they have stopped working. Why? The first decision, which determined the seven-day suspension of work, was explained by the expression of support for the demands of the students who, among other things, due to the suspicion of corruption, asked for the publication of the entire documentation related to the fall of the canopy at the Railway Station in Novi Sad, when 15 people, including children, lost their lives.

In the last decision on the suspension made by the Assembly of the Bar Association of Serbia, as the highest body of the Serbian bar, it was stated that the reasons for the original suspension still stand, while attention was also drawn to the threat to the bar due to the attack by the representative of the executive power who announced that the bar associations will be deprived of their powers regarding the registration and deletion of members from the list of lawyers.

It will soon be seventy years since the independence of bar associations in Serbia was restored in terms of decision-making regarding the admission and removal of members from the list of lawyers. With the announced changes, should they come to pass, the bar profession in Serbia would be returned to the position it had immediately after the Second World War. Namely, in the revolutionary year of 1945, the Presidency of the People's Republic of Serbia dissolved the temporary administrative body of the bar association and appointed a delegate who was tasked with re-enrolling lawyers in the bar directory. The reason was the lack of blind obedience of the leading people of the legal profession to the new authorities. The very next year, the Law on Advocacy was passed, with which the then republican government received a mandate to form a commission that will decide who will retain the right to continue practicing law. That law again.

By taking away the powers of the bar associations regarding admission and deletion of membership and transferring them to another body (Ministry of Justice?), the autonomy and independence of the bar in Serbia would be seriously threatened and violated. In such a situation, after the infamous re-election of judges and prosecutors in 2010, the government would have the discretionary right to carry out the "re-election" of lawyers, as well as to further decide on the right and termination of the right to practice law. Such a case would open the door to revanchism against lawyers who would not obey the authorities. Nobody needs a lawyer who listens to the government. Disobedience is a trait that must be immanent in every lawyer, even a judge, since only the law can stand above a lawyer and a judge. That law again.

HAPPY CONSTITUTION DAY TO YOU

The independence of the legal profession is not necessary as long as it exists and the need for it is not felt on one's own skin. After the publication of the article in the "happy" issue of "Vremena" last year, I was transferred to another court department, and an attempt was made to obstruct my entry into the directory of the Belgrade Bar Association. It was at that time that the independence of my colleagues from the Belgrade Chamber was the factor that enabled me to make this call. If the decision had to be made somewhere else, I doubt that he would be called a lawyer today. Duke Marko Miljanov used to say that "a man is only worth as long as he can tell everyone the truth." What is the truth? It is true that there are a large number of admirable people working in the Serbian judiciary, and that I would trust many of them with a decision about my freedom or property. I won't name them, I wouldn't do them a favor. However, individual personnel decisions in the last few years, in addition to the old concern about the absence of criteria, for the first time caused me fear of a possible development of events. Our people have a saying that where two are without a soul, the third can remain without a head. There must be no place for such people in the judiciary, especially in decision-making positions.

In the sea of ​​news these days, one that did not get the necessary resonance stood out to me personally. Vojislava Crnjanski Spasojević, the multiple award-winning journalist of "Večernje novosti", was fired after she published her photos from the protest on her account through one of the social networks. Her dismissal was explained by "ceasing the need to perform the job". I have never met Ms. Crnjanski Spasojević, but I was lucky that in 2017 she was the only one ready to publish the information and confirm that the day before the Prosecutor's Council meeting, I had already delivered to her a ready list of candidates who would be elected. The aforementioned affair later received an epilogue in the media and at a debate in the National Assembly. That was the first time I realized how difficult it is to release information to the public and how important it is that there are journalists who want to hear and publish the truth. Vojislava Crnjanski Spasojević is a journalist, and she was discriminated against because of her beliefs, which is prohibited by the Law on Freedom of Information. That law again.

This year, the Day of Advocacy will not be celebrated. The celebration of the 163rd anniversary of the legal profession has been canceled due to everything that is happening in society. On the other hand, it seems that the Statehood Day celebration will be held in two locations this year: one organized by state officials somewhere in AP Vojvodina, and the other, which the students invite us to, is in Kragujevac, the place where the first Serbian constitution was promulgated. For the first time since 2002, when this holiday was re-established as a national holiday, Serbian youth celebrate Sretenje in such numbers, which is also the Day of the Constitution. It is no small matter, the future of our Serbia celebrates the Statehood Day, which is prescribed by law. That law again!

The author is a lawyer