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Independence of the Public Prosecutor's Office - the discrepancy between the normative and the real

Niš, 23.11.2023.


This year's fourth lecture, to the second generation of participants, as part of the training program Strengthening Capacities for Judicial Reform - southern Serbia, was held by Dr. Goran Ilić, the public prosecutor of the Prosecutor General Office (Vrhovno javno tužilaštvo) and honorary president of the Prosecutors Association of Serbia. The title of the lecture is Independence of the Public Prosecutor's Office - the discrepancy between the normative and the real.



The Constitution of Serbia proclaims the division of power into legislative, executive, and judicial. It separates the judiciary from the other two branches of government and guarantees its independence. The Prosecutor's Office has a similar, but slightly less favorable constitutional position. It carries the epithet of an independent body, but not an independent one. Thus, the attachment of the prosecution to the other two branches of government is more pronounced than it is in the case of the judiciary. Independence, as a lower degree of independence, is also well reflected in the strict hierarchical regime of the prosecution, which is led by the Supreme Public Prosecutor, who is superior to all other public prosecutors, while he himself is responsible for his work to the political body - the National Assembly. The supreme public prosecutor and the chief public prosecutor in the management of public prosecutions have hierarchical powers concerning the actions of lower chief public prosecutors and public prosecutors in a specific case. 


Freedom of the media is of great importance for the independence of the public prosecutor's office, since the free media is a key deterrent against inappropriate pressure due to the government's "fear" of disclosing such pressure. There are fewer chances that the executive power will attack the independence of the prosecutor's office if independence is a value accepted by citizens. When independence is a value accepted by the majority of citizens, the executive branch will refrain from pressure on the prosecution because of the expectation that voters will sanction such pressure in the next election. 



At the lecture, Mr. Ilić emphasized, among other things: 


- an important novelty of the recent legal changes is the expanded scope of immunity of prosecutors and judges; 

- at the sessions of the High Prosecutorial Council, when voting on key issues, the outcome is always 9:2, which raises the suspicion that key decisions were made even before the session;

- prosecutor's offices are insufficiently staffed;

- in criminal proceedings, the independence of the judiciary without the independence, that is, the independence of the prosecution, is useless; 

- the majority of citizens, unfortunately, are not interested in the subject of an independent judiciary, and this makes it difficult for the judiciary to choose for it; 

- the majority of citizens support when politicians criticize the judiciary in a populist manner; 

- rapid and unexpected changes bring uncertainty to the judiciary (for example, in 2011, a judicial investigation, which had been applied in our system for over 120 years, suddenly switched to a prosecutor's investigation); 

- changes are often contradictory and confusing; for example, the penal policy is tightened, and the principle of opportunity is expanded without any influence of the victim on it; 

- prosecutorial police is necessary, but without an independent prosecutor with integrity, it will not be useful; 

- the most important characteristic of the prosecutor is integrity; it is more important than worthiness or even expertise. 

 

The lecture was realized with the support of the Open Society Foundation




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