27-01 Svetlana-Nenadic-blu...
In the middle of last month, the newly formed High Council of Prosecutions (HPC) carried out the election of public prosecutors and chief public prosecutors. The election was preceded by legal dilemmas regarding the relationship between the old and the new law, given that all actions in the election procedure were undertaken according to previously valid laws and by the State Council of Prosecutors. The Court of Justice also had consultations with relevant actors, in which the Association of Prosecutors of Serbia also participated. On that occasion, we pointed out that, from the point of view of the legality of the proceedings, it would be problematic for the Supreme Court to make a decision on the selection based on the procedure carried out under the previously valid law, and we gave a series of legal arguments, as well as proposals for solving this problem. The suggestions were not listened to and the HJS made a decision on the selection which, in our understanding, violated or misapplied several provisions of the Law on Public Prosecution and the right to a fair trial.
As the new Law on Public Prosecution foresees a legal remedy against the selection decision, the assessment of the legality of the actions of the Supreme Court will be at the Constitutional Court. This procedure will be particularly interesting because the Constitutional Court, for the first time after the so-called of the 2010 re-election, to deal with the election of public prosecutors. It remains to be seen whether the US will maintain its position from the re-election that judicial councils are "tribunals" that have the obligation to respect the right to a fair trial and whether they will accept the modern trends of increased protection of the status of judges and prosecutors noticeable in the recent practice of the European Court of Human Rights.
However, instead of the Supreme Court dealing with the consideration of the merits of criticisms, especially those that point to potential illegalities and non-compliance with international standards, this Prosecutor's Council will deal with those who make those criticisms. According to the short-sighted catchphrase "kill the messenger", the same "prosecutor minders", more concerned about the image of the Council than about the legality of its decisions, turned to the Ethics Committee asking for a statement on whether those who dared to think about the legality of the decisions had violated Code of Ethics. I am convinced that the goal of this address was to achieve that chilling effect, known in the practice of the European Court of Human Rights, which serves to deter colleagues from critical thinking and freedom of speech.
We can only hope that the Court of Justice, when deciding whether, who and how violated the Code of Ethics, will remember that a new set of judicial laws was adopted, which amended the provision on the immunity of public prosecutors, and which stipulates that no prosecutor may be called to account for the opinion expressed in connection with the performance of the office.
The challenges facing VST are great. The legal changes are substantial and numerous. Above all, the European standards for the conduct of judicial councils have been tightened and these bodies, when deciding on the rights and obligations of prosecutors, are obliged, as courts, to apply all standards of the right to a fair trial. It would be useful if the Court of Justice would deal more with legal arguments concerning the legality of actions, and less with image issues, because this is the way to instill confidence in the work, given that the court in a democratic society should "inspire public confidence in fairness" procedure".
The author is a member of the Presidency of the Association of Public Prosecutors
