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10.12.2024.
We participated in roundtable discussions held as part of the public consultations on the Draft Law on Amendments to the Law on Free Access to Information of Public Importance, which took place on December 9 in Niš (at the City Hall) and December 10 in Belgrade (at the Palace of Serbia).
The Draft Law's text is available on the Ministry of Public Administration and Local Self-Government's website.
At these roundtables, Dragan Đorđević (in Niš) and Mihajlo Čolak (in Belgrade) participated on behalf of the Judicial Base South Coalition and the Human Rights Committee Niš. At the mentioned events, representatives of the coalition highlighted the following:
For several years, we have been pointing out abuses of procedural rights by parties in proceedings before the Commissioner. We believe that, before proposing amendments to the law to attempt to prevent these abuses, there was room and basis to resort to other mechanisms to prevent such abuses. Specifically, we believe that the Commissioner, as a state authority, was obligated to initiate proceedings before the competent public prosecutor's office due to suspicions of abuse of rights by parties and their attorneys in all situations where abuse was suspected.
Judicial Base South published research several years ago on the reactions of bar associations in cases where there were reports of abuse and behavior contrary to the code of ethics, and the research results indicate that the number of proceedings initiated by bar association bodies was symbolic. We remind you that attorneys are legally obligated to possess valid powers of attorney issued directly by the parties. Unfortunately, in cases where there is suspicion about the validity of powers of attorney, the competent prosecutor's offices, as a rule, do not react, or this is a very rare occurrence. If the Commissioner lacks the authority or capacity to independently address abuses, they should have referred the matter to the competent prosecutor's office.
Additionally, the question arises regarding the exercise of public authority, which the state has entrusted under the Law on Advocacy because the public is unaware of whether and which proceedings have been conducted by bar association bodies in cases where there is suspicion of a violation of the attorney's code of ethics. The relationship between the Ministry of Justice and the legal profession is also unclear in the part where a common interest would be the protection of freedoms and citizens' rights from potential abuses of procedural rights.
We agree that the situation is alarming and cannot wait too long for a response. However, the problem arose in 2021, and we are on the threshold of 2025. Ultimately, potential indications of this problem have existed for almost 20 years and have manifested through mass disputes in civil proceedings, through which hundreds of millions of euros have been spent from the state budget for attorneys' fees. Regarding mass disputes in civil matters, for years we have pointed out that the Law on Civil Procedure needs to be amended. The Draft Law on Amendments to the Civil Procedure Law has been sitting in the drawers of the Ministry of Justice for three years. And nothing is happening in that regard.
Regarding the proposed amendments to the Law, we believe that the exclusion of representatives of civil society organizations from the Ministry's Working Group is not a good approach. Representatives of civil society should have been included precisely because of the nature of this law.
The Human Rights Committee Niš and the Judicial Base South Coalition unreservedly advocate for the formulation of appropriate systemic solutions to prevent the abuse of procedural rights. We believe that further discussion of the Draft Law on Amendments to the Law on Free Access to Information of Public Importance is necessary. Therefore, we propose that the public consultation period be extended and that an appropriate format for the consultative process be established, which will include the Commissioner, bar associations, the Ministry of Justice, the Ministry of Public Administration, and Local Self-Government, as well as representatives of civil society organizations. Through such a format, a way should be devised to resolve the specific problem related to the implementation of the Law on Free Access to Information and the work of the Commissioner as quickly and efficiently as possible. Additionally, through such a format, the Ministry of Justice should provide an answer on how it plans to address the problem of abuse of procedural rights and the phenomenon of mass lawsuits.