Every electoral process, whether direct or conducted in parliament, is based on the rules of electoral mathematics. The will of citizens is expressed through parliamentary mandates, while Members of Parliament subsequently elect holders of other state functions, by majorities that depend on the nature and importance of those functions.
This is a common and undisputed practice – until inconsistencies are observed that produce different majority requirements for the election of members of the Judicial Council and the Prosecutorial Council from among distinguished legal professionals. At that point, Radbruch’s idea of the connection between law and mathematics through logic ceases to apply, as does the fundamental legal maxim that the basis of justice is equal treatment in equal situations.
Namely, the election of distinguished legal professionals to the Judicial Council requires a qualified majority: a two-thirds majority (54 MPs) in the first round and a three-fifths majority (49 MPs), as a deblocking mechanism, in the second round. In contrast, members of the Prosecutorial Council are elected by a simple majority of MPs present who ensure a quorum. This means that the minimum number of votes required to elect members of these two bodies stands at a ratio of 49 for the Judicial Council versus only 21 for the Prosecutorial Council.
In such a ratio, logic and fairness lose their meaning. This is further confirmed by the recent election of a member of the Prosecutorial Council with only 30 votes. Such an election may be legal, but it is not legitimate, unless one accepts the view that the “prosecutorial government” is less important than the “judicial government”.
Moreover, such a disparity cannot be justified by the assumption that the selection of judges is more complex and/or more responsible than the election of prosecutors, and that, consequently, the election of those who elect prosecutors should be less demanding.
This inconsistency finds no support in the competences of the two bodies either. Both the Prosecutorial Council and the Judicial Council appoint and dismiss prosecutors/judges, propose to the Government the budgetary resources for the work of prosecution offices/courts, decide on the disciplinary liability of prosecutors/judges, consider complaints, issue opinions on incompatibility of functions, and provide opinions on draft legislation relating to the judiciary or the prosecution service. The nature, scope, and content of their competences are therefore essentially similar.
Nor can the different approach be justified by the constitutional provision stating that the judiciary is independent while the prosecution service is a unified and autonomous state body. The bodies of the Council of Europe, as a key standard in building systems based on the rule of law, insist on a high degree of prosecutorial independence. The Consultative Council of European Prosecutors, in Opinion No. 16 (2021), clearly emphasizes that the independence of the prosecution service should be guaranteed at the highest possible level and be “similar to that enjoyed by judges.”
This is not the case in our system. The autonomy of the prosecution service begins with the very manner in which members of the Prosecutorial Council are elected, that is, with the way those who appoint prosecutors are chosen. A minimal majority for their election does not represent an adequate normative response to these European standards, nor to the recommendations of the Venice Commission that the composition and method of election of the Prosecutorial Council be regulated by the Constitution.
The absence of such a solution in practice is not merely a legal issue, but also an indicator of political will. The authorities have never problematised this issue, while the opposition has continuously pointed to the inconsistency of the existing model. The debate was further intensified during the parliamentary consideration of the annual report on the work of the prosecution service, where ambitions for political influence over the prosecutorial organisation could be discerned, instead of substantive oversight of its work.
All of the above leads to a recommendation: members of the Prosecutorial Council should be elected by the same qualified majority as members of the Judicial Council, through a constitutional provision. This would prevent any future majority from reintroducing the “simple majority” solution through legislation.
Such an approach would have at least two positive effects: it would open space for broader political dialogue between the government and the opposition, and it would encourage greater competitiveness, that is, a larger number of candidates in the election of members of the Prosecutorial Council.
In the process of constitutional changes, which in our political reality are unfortunately often reduced to identity-related issues, it is necessary to adopt amendments that also concern the judiciary. The first would entail deleting the provision on the membership of the Minister of Justice in the Judicial Council, around which there is broad consensus. The second would introduce a qualified majority for the election of distinguished legal professionals to the Prosecutorial Council, around which consensus still needs to be built. After all, international standards serve precisely this purpose – to establish rules that regulate the system so that each of its segments enjoys full legitimacy.
Dr Ivan Vukčević, Human Rights Programme Coordinator