Requested by: Serbia, Ministry of Justice

Recommended Measures:
- On the draft law on the high prosecutorial council, the Venice Commission remains concerned by the presence of the two ex officio members in the Council – the Prosecutor General and the Minister of Justice, and in particular by the effect it may have on the balance of power between the prosecutorial and lay components of the Council, and the effective functioning of the Council. The current composition of the Council is now set in the Constitution, so appropriate solutions must be found at the legislative level to reduce the influence of the two ex officio members within the Council. In this context the Venice Commission considers it very important to ensure the broadest representation amongst lay members so to avoid a politically homogenous lay component affiliated to the political majority. The Venice Commission welcomes the proposal by the Serbian authorities to (i) require a qualified majority in the Commission on the Judiciary of the National Assembly and (i) strengthen the ineligibility criteria, provided that these criteria are further elaborated in the Law as recommended by the Venice Commission. This would address the concern expressed by the Venice Commission about dangers related to a politically homogenous lay component. The Venice Commission also recalls that heightened majority for taking some important decisions may lead to blockages, but the risk of blockages is less if the legislator increases the independence of prosecutorial members from the Prosecutor General and ensures that the lay members represent different political currents or are not politically affiliated to the ruling majority. - On the draft Law on the Public Prosecutor’s Office the Venice Commission makes the following key recommendations: • The mechanism of appeal against unfounded or illegal instructions of a higher prosecutors is necessary, but it is necessary to describe the scope of the power of the commission of the HPC on mandatory instructions in reviewing substantive decisions made by the higher prosecutors; • Temporary assignments as a managerial decision to fill temporary vacancies created by a sudden and/or unforeseen personnel problem in a specific area of the organisation of the prosecution service may be entrusted to the prosecutorial hierarchy itself (i.e. the Prosecutor General’s office) which possesses a more direct knowledge of the needs of the prosecution offices in the country and the possible candidates to meet those needs. These decisions should be issued in writing and be duly motivated and made available to the prosecutor concerned. An appeal against these decisions should be possible. On the other hand, the structural use of temporary assignments to other prosecution offices creates insecurity for the prosecutors and a risk of arbitrariness. The legislator should consider introducing additional mechanisms which would encourage the High Prosecutorial Council to fill in the vacancies which are occupied by the seconded personnel; • The draft Law should explain better the interrelation between disciplinary proceedings and dismissal proceedings; it is necessary to avoid confusion as to the role played by the High Prosecutorial Council in those proceedings. More detailed procedural rules can be specified in the regulations adopted by the High Prosecutorial Council.

Measures taken: The texts submitted to the National Assembly for adoption were modified as compared to the texts examined by the Venice Commission in October and December 2022, and further amendments were made during the parliamentary discussions. The overall direction of the amendments corresponds to the recommendations of the Venice Commission. In particular, the laws now indicate that in ensuring proper judicial administration court presidents should not interfere with the adjudication process and a general rule prohibiting interference with the conduct of court proceedings in individual cases is introduced. The composition of the Ethics Committee and the principles of ethical behaviour of judges are now defined in the law. “Frequent” failure to participate in the work of the High Judicial Council (HJC) and the High Prosecutorial Council (HPC) without justifiable reason is added as a ground for termination of the mandate. Possibilities for the secondment of judges are restricted, evaluation criteria are mentioned in the law, the notion of the “repeated disciplinary offence” is defined more narrowly. The notion of the “improper influence” on the work of the courts is further limited. The power of the prosecutor to request documents or information is restricted to cases where there is a special “legal authority” for such requests. Clarifications are introduced describing the procedure of objections against mandatory instructions of upper prosecutors, the right to object against the annual work schedule is introduced. Some recommendations were not sufficiently addressed: for example, the interrelation between the procedure of dismissal and the disciplinary proceedings, and the role of the HPC and the HJC in those proceedings, remain somewhat unclear. Finally, some of the amendments introduce new legal mechanisms, not analysed in the October and December opinions. For example, the role of the two councils in the budgetary procedure is redefined, and certain new disciplinary offences are created. Most importantly, the laws on the HJC and the HPC introduced a new procedure for the shortlisting of the candidates to the positions of lay members in the two councils, which is the task of the Judiciary Commission of the National Assembly (the JC). This was at the focus of attention of the Commission which recommended that this process should lead to a shortlist of candidates who are either politically neutral or at least politically diverse. The pre-selection procedure now comprises three rounds. It starts with a vote by a 2/3 majority in the JC. If no requisite majority is attained, in the second round a 3/5 majority is required. If this majority is not reached either, the matter is transmitted to a 5-member commission composed of the Speaker, the President of the Supreme Court, the President of the Constitutional Court, the Prosecutor General, and the Ombudsman. This commission will directly elect the lay members to each of the two councils (without a vote at the National Assembly). In its December 2022 opinions the Venice Commission welcomed the introduction of a 2/3 majority requirement for the shortlisting decision by the JC. As to the new anti-deadlock mechanism, the Serbian authorities were confident that it was constitutionally permissible. The same 5-member commission is mentioned in the Constitution as an anti-deadlock mechanism in the case the National Assembly cannot select the 4 candidates (which requires the 2/3 majority vote by all candidates). It remains to be seen whether this mechanism will ensure apolitical (or politically diverse) lay component of the two councils. To contribute to the depoliticisation of these appointments the two laws also strengthened the ineligibility criteria for the candidates. Thus, members of Parliament and top government officials are barred from being candidates, and the candidates should also not be in a position of “strongly influencing the making of political decisions”. This is positive, although the two December opinions recommended even more extensive and specific ineligibility requirements, to create a “safety distance” between lay members and party politics. In sum, the adoption of the five laws is an important advance in the process of bringing the Serbian judiciary in line with the European standards.