The fact that the positions of distinguished lawyers in the Prosecutor's Council (TS) are covered exclusively by lawyers will inevitably increase the need for the application of the exemption institute, so that, among other things, situations do not arise where the defense counsel decides on the promotion or disciplinary responsibility of the prosecutor who was the opposite party to him in to the process before the court.
Marija Vesković, a legal adviser in the Action for Human Rights (HRA), commented on the remarks of certain lawyers - that lawyers in TS may be in a conflict of interest due to deciding on prosecutors who are rivals in the courtroom.
"In such situations, every member of the TS would have to request an exemption based on Article 33 of the Rules of Procedure of the TS, which stipulates the obligation of exemption 'whenever there are circumstances that raise doubts about his impartiality'. It remains to be seen whether the duty of exemption will be applied consistently," Vesković pointed out for "Vijesti".
She reminds that the Law on the State Prosecutor's Office does not prohibit that only lawyers, or only professors, or only lawyers from NGOs apply for all positions of distinguished lawyers...
"The same rule was valid before, when it happened that in the previous mandate no member of the TS was a lawyer," adds Vesković.
The Agency for the Prevention of Corruption (ASK) proposed on December 29 of last year - the day when the Assembly completed the composition of the TS - the introduction of a legal norm or the elaboration of Article 33 of the TS Rules of Procedure, in order to define situations of exemption for a member who is a respected lawyer .
"A who acts in a case as a defense attorney or an attorney in which the state prosecutor is involved, which is discussed and decided at the session of the Supreme Court", according to the opinion of the ASK.
Article 33 of the Rules of Procedure of the TS prescribes that the president or a member of that body will be exempted from the work of the session if the subject of the decision refers to him, his spouse, or a person with whom he lives in an extramarital union, or his blood relative in the direct line to any degree, and if there are other circumstances that raise doubts about his impartiality.
It goes on to say that the president/member of the TS, as soon as he learns that there is a reason for the exemption, is obliged to immediately inform the TS.
The decision on the expulsion of a member is made by the president, and on his expulsion by the TS by a majority of votes.
Prominent lawyers in TS, Filip Jovović, Miloš Vuksanović and Siniša Gazivoda, told "Vijesta" that they do not think that as lawyers they will be at risk of a conflict of interest when acting.
The newspaper could not get a comment on this topic from the fourth prominent lawyer, Borivoj Đukanović.
Jovović says that his work will not be affected by the fact that he is a lawyer.
"There is always a possibility for some conflict of interest, because we are a small community, where everyone knows everyone... However, Article 33 of the Rules of Procedure prescribes cases that lead to exemptions. That article prevents the possibility of a conflict of interest. It is very possible that it needs to be refined, and that topic may be on the agenda of one of the upcoming sessions of the TS", he said.
Vuksanović states that the issue of lawyers in TS is "too dramatized", recalling that they were in that body before.
No one, he says, prevented other distinguished lawyers from applying for the TS...
"And at the hearing before the Parliamentary Committee for Political System, Judiciary and Administration, I spoke about the issue of conflict of interest. At that time, I said that these matters were resolved by the Law on the State Prosecutor's Office and the Rules of Procedure of the TS. Situations in which exemptions occur are defined. "I will act very carefully from situation to situation, and monitor whether there are moments that I should be exempted from," emphasizes Vuksanović.
Gazivoda says that he has nothing against amending the Rules of Procedure by elaborating the disputed topic in more detail, although, according to him, the issue of conflict of interest is primarily a question of the integrity of each individual.
"Certainly, this topic should not be seen as new, because we have had lawyers in TS up to now, and we also have members of the Judicial Council who are lawyers," he notes.
On the other hand, Gazivoda points out that it should also be taken into account that TS members from among state prosecutors have institutional relations with other prosecutors.
He illustrates this with the example that other prosecutors decide on complaints about decisions on the rejection of criminal charges brought by a prosecutor, who is a member of the TS, and that later it may happen that questions concerning the status of those prosecutors are decided by their colleagues in the TS.
"In the functioning of the prosecutor's organization, there are other similar situations, which are essentially not significantly different from the issue of the relationship between lawyers and prosecutors. Certainly, I deeply believe that no member of the TS will put himself in a situation to decide on an issue that could represent a conflict of interest, but I am not against any norming that would reduce such a possibility", underlines Gazivoda.
The Government previously assessed that by choosing "true professionals", the risk of conflict of interest will be eliminated to a much greater extent than it could be by any norm.
The most important thing, as they pointed out, is that lawyers do not have the upper hand in the Supreme Court, as the prosecutors had in previous convocations of the Supreme Court.
The amendments to the Law on State Prosecution, which entered into force in June, changed the composition of the eleven-member TS, so that body now has five state prosecutors instead of six, and five distinguished lawyers (among whom is a representative of an NGO) instead of the previous four.
The problem of a possible conflict of interest in TS also opened up the question of whether eminent lawyers should "freeze" their legal status.
Such a proposal was presented to the public by individual NGO representatives.
The interlocutors of "Vijesti" from TS think that this idea is meaningless.
"I must say that they are there because of ignorance of basic concepts... Namely, membership in the TS is not an employment relationship, and such a thing would only be possible if the amendments to the Law were to professionalize the membership in the TS, which would lead to a completely new to the concept of organization and the method of electing members, which, of course, would be significantly more expensive than the existing one, and the question is whether it is needed", says Gazivoda.
Vuksanović states that requests to "freeze" the legal profession do not have much basis in reality.
"That was not a prerequisite for applying to the competition for TS. If it was, it would affect our candidacy at all," he points out.
The opinion of his colleagues is shared by Jovović, who says that "freezing" the function would represent "twisting" the entire election process in the TS.
"We applied for the competition in order not to 'freeze' our legal status. The question is whether it would be legal and constitutional... I am not in favor of that option," he says.
The KAS also called for consideration of the provisions governing the selection of TS members from among distinguished lawyers, bearing in mind the fact that they do not come from the prosecutorial system, but are directly elected and dismissed by the Assembly.
At the parliamentary session at the end of last year, in addition to Jovović, Vuksanović, Gazivoda and Đukanović, a representative of an NGO - Stevo Muk - was elected to the TS.
The President of the Assembly, Aleksa Bečić, announced at the beginning of August six members of the TS, including the acting (acting) Supreme State Prosecutor (VDT) Dražen Burić, four prosecutors who were elected at the Conference of State Prosecutors - Đurđina Nina Ivanović, Sanja Jovićević, Tatjana Begović and Nikola Samardžić - and representative of the Ministry of Justice Boris Marić.
Vesković: Consider limiting the number of lawyers
Vesković says that the current situation related to the composition of the TS additionally shows that it is necessary to continue, and urgently, to work on changes to the Law on the State Prosecutor's Office and to consider the adoption of the proposal of the Venice Commission, which was also repeated by the European Commission (EC) in the last Progress Report.
"This includes a possible limitation of the number of lawyers in TS, so that, for example, the Bar Association would elect one member, and the rest be NGOs and law faculties - as proposed by the EC," the interlocutor stated.
TS session on January 24
The constitutive session of the new convocation of the TS is scheduled for January 24, "Vijesti" learns.
According to the amendments to the Law on the State Prosecutor's Office, acting VDT Burić will have to resign at that session.
Article 184C of the law states that the TS, elected in accordance with that act, will determine the acting VDT at the first constitutive session and state the termination of duties of the previous acting VDT, which was determined before the law came into force, that is, before the session was held.
The newly formed TS will be able, in addition to electing a new acting VDT, to retire the chief special prosecutor Milivoj Katnić, whom the current government suspects of "collusion" with the former regime.
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