The Human Rights Action believes that the Prosecutorial Council should not have considered higher state prosecutor Tatjana Begović (from the list of prosecutors with at least 15 years of experience as prosecutors) for the position of Acting Supreme State Prosecutor, because she was a member of the Prosecutorial Council at the time the list was compiled. The law forbids members of the Prosecutorial and Judicial Councils from being elected to leadership positions or promoted, and the Administrative Court has already established that this means that they may not apply as candidates while members of the Council.
The HRA believes that submitting a resignation immediately prior to the election to a leadership position formally circumvents the ban, whose goal is precisely to prevent persons serving in the prosecutorial or judicial “government” from enjoying an advantage during election to a leadership position, i.e. another position that is in fact considered a promotion. We support the position of the member of the Prosecutorial Council Stevo Muk, who was the only person who abstained during the vote on Begović’s candidacy, explaining that her election would be against the spirit of the law.
To prevent this sort of behaviour in the future, we suggest amending the law governing the work of the Judicial and Prosecutorial Councils so as to prescribe a time period, running from the moment of resignation of a member of the council, during which he/she would not be allowed to apply as candidate for promotion or a leadership position.
The Law on the Prosecutorial Council stipulates that “during his/her term of office in the Prosecutorial Council, a member of the Prosecutorial Council from the ranks of state prosecutors may not be elected to a state prosecutor’s office of a higher level, or as head of the state prosecutor’s office, while a member of the Prosecutorial Council from the ranks of distinguished lawyers may not be elected state prosecutor or head of the state prosecutor’s office” (Article 27).
In its judgment U. no. 4523/2021, the Administrative Court established that Article 17 of the Law on the Judicial Council and Judges (which is essentially identical to the above-cited article of the Law on the State Prosecutorial Office) requires that a judge resign from the position of member of the Council before s/he applies for promotion.
By noting the resignation of Begović, closing the session without first finishing the item on the agenda that referred to the appointment of acting the Supreme State Prosecutor, and simultaneously scheduling a new session to discuss the same point just 20 minutes later, the Prosecutorial Council obviously wanted to avoid the application of the provision prohibiting advancement during membership in the Council.
Although she did resign as member of the Council prior to the election, Begović for all intents and purposes was not a member of the Council for only half an hour, which is how long it took to make a the decision. Once she was elected Acting Supreme State Prosecutor, she also became the Council’s president.