Opinion of the State Prosecutors’ Council SPC on constit amendments.
At their session of 19 February 2018, the State Prosecutors’ Council, pursuant to art. 164, para 1 of the Constitution of the RS and art. 13, para 1, item 14 of the Law on the State Prosecutors’ Council, considered the working version of draft Amendments to the Constitution and issued the following
OPINION
1. Draft amendment 1
Purview of the National Assembly
The National Assembly shall:
3. Elect and dismiss the Supreme Public Prosecutor of Serbia, five members of the High Judicial Council and five members of the High Prosecutorial Council;
The present Amendment shall supersede article 99 of the Constitution of the Republic of Serbia.
Comment
Para 2, item 3 implies that the Supreme Public Prosecutor[1] of Serbia is elected by the National Assembly. This solution is not unknown in many comparative systems.
However, with the given solution, the Republic of Serbia misses the opportunity to grant the public prosecution guarantees of a full and factual independence from the legislative and executive branches.[2] Namely, if election by the National Assembly gives democratic legitimacy to holders of prosecutorial function, still, in a society where the tradition of the rule of law is not at a remarkable level, this kind of solution may bring about not more than an increased risk of politicisation of the selection procedure for the HPC, and consequently of criminal prosecution under the shadow of politics. The risk of politicisation is also reflected in the fact that the proposed Draft text keeps the strictly monocratic, extremely hierarchic structure of the public prosecution[3], whereby the HPC would exercise the jurisdiction of the entire public prosecution in Serbia. Thus, the outdated organisational model of the prosecution which can be managed from one single point remains intact. In view of this, it is clear that the ruling majority in the parliament may govern the entire public prosecution service just through the supreme prosecutor, on whose election they also decide.
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