Implementation of Transitional Laws in Serbia 2006

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Implementation of Transitional Laws in Serbia 2006Conclusions on the Implementation of the Law onthe Protector of CitizensAfter researching the implementation of the Law on the Protection ofcitizens, the Initiative reached the following conclusions:• The Assembly did not adhere to the legally stipulated six monthdeadline for appointing the Protector.• The whole procedure of nominating and appointing the Protectorwas not very transparent and as a consequence the Assembly’sConstitutional Board, without public debates and wider supportof the professional circles and the public, nominated Sasa Jankovicfor the Protector – national legal adviser in the DemocratizationUnit of OSCE in Serbia and Montenegro.• Sasa Jankovic was the only candidate nominated for the Protectorof citizens, although the Law stipulates that each Parliamentcaucus can nominate their candidate. As a result, political partiesdemonstrated grave irresponsibility towards responsibilities thatthey, as caucuses, have. The Assembly’s Constitutional Boardwhich was supposed to consider caucuses’ proposals, was last insession on May 30 th 2005, four months before the Law on theProtector of citizens was adopted.• The shortcoming of the Law is that it does not leave thepossibility for the organizations and institutions already includedin the monitoring, protection or promotion of human rights andfundamental freedoms to submit their proposals for the Protector,but gives that possibility only to Assembly’s caucuses.• Relative majority is needed for the election of the Protector, i.e.the majority of MPs present. Although this is in keeping withthe Constitution, this procedure can cause the public to questionProtector’s independence and autonomy. Certain laws in the regionenvisage absolute majority, i.e. the majority of total number ofMPs, or two-thirds majority for the election of the Protector.• The Law does not envisage that the Protector or certain numberof his deputies have to be members of national minoritiesliving in Serbia or that some of them should be females. Thissolution is encompassed within the Act on the Institution ofthe Ombudsman in Kosovo, which is in line with the current90
Implementation of Transitional Laws in Serbia 2006European legal standards.• The Protector is not authorized to control the work of theAssembly, President of the Republic, Government, ConstitutionalCourt, other courts and public prosecution offices by which thehighest bodies of public authority in Serbia are being protectedby this Law from the possible complaints regarding their workperformance, raised by the citizens of Serbia.• The Law gives the option to the Governmental agencies to rejectthe Protector’s request to have access to secret documents insituations when that is not in coherence with the Law. The Lawon the Protector of human rights and freedoms in Montenegroexplicitly says that the Governmental agencies are obliged to makeall data available for the Ombudsman regardless of the level oftheir sensitivity.• Serbian legislation starts off with the premises that beforeinitiating procedures in front of the Ombudsman, all otherexisting legal means. Unlike this solution, Montenegrin’s Law onthe Protector of human rights and fundamental freedoms startingpoint is that there is no need to exhaust all legal means, but thatthe Ombudsman can ask for it if he considers it to be moreefficient.• The Law does not regulate the protection of the complaintsubmitter from the later possible institutional retaliation forinitiating the proceedings before the Ombudsman. The excellentlegal solution of the Law on Human rights Ombudsman in Bosniaand Herzegovina is that a complaint before the Ombudsmanor any sort of intervention on his part will not bear criminal,disciplinary or other sanctions for the complaint submitter, or anykind of distastefulness or discrimination for him.• The Protector will act only in cases that occur after this Law hasbeen adopted. It means that all cases which occurred in the past,and whose consequences are suffered from in the present in theform of breaching of human rights or misuse of governing bodyauthority, will remain unprocessed.• The Law does not contain penalty provisions.• As of November 2006 the Protector has not been appointed,which puts this institution on the margins of institutional andpublic interest;91
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Implementation of Transitional Laws in Serbia 2006

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