no. 011-00-25/2021-02 date: August 20, 2021

Acting within the legally prescribed competence[1], the Commissioner for the Protection of Equality, gives

OPINION

on the Draft Law on the Protector of Citizens

The Ministry of State Administration and Local Self-Government, by letter number 011-00-166 / 2021-01 dated August 9, 2021, submitted to the Commissioner for the Protection of Equality, the text of the Draft Law on the Protector of Citizens and the Explanation of the Draft Law on the Protector of Citizens, for the purpose of giving an opinion.

Acting on this letter, we give an opinion on the submitted text of the Draft Law.

The Explanation of the Draft Law states as one of the reasons for the adoption of the new law:

“In the revised Action Plan for the negotiating Chapter 23, under item 3.2:” Position of the Protector of Citizens, the Provincial Ombudsman, and the Protector of Citizens of Local Self-Government Units “, the following interim benchmark was formulated: international standards. Serbia is strengthening the institutional capacity of its Ombudsman structure, including the National Mechanism for the Prevention of Torture. Serbia actively and continuously provides public support to relevant independent human rights institutions. Among the activities identified in the Action Plan for the implementation of the defined interim benchmark, in point 3.2.1.3. The following activity is envisaged: Amendments to the Law on the Protector of Citizens in order to strengthen the independence and improve the efficiency of the Protector of Citizens, especially in performing the work of the National Mechanism for the Prevention of Torture. Further in the revised Action Plan for the Negotiating Chapter 24 of July 2020, under item 6.2. The fight against organized crime has been determined by the following activity: Appointment of a national rapporteur for human trafficking in the institution of the Protector of Citizens, and as an indicator of the results it is stated: The Law on the Protector of Citizens has been adopted. Capacities of the Office of the Protector of Citizens for independent monitoring in the fight against human trafficking have been established, especially with a focus on the rights of victims of human trafficking and the protection of human rights. Also, the Action Plan for the implementation of the Strategy for Improving the Position of Persons with Disabilities in the RS for the period from 2020 to 2024, in the period from 2021 to 2022, under item 3.1.2.1. the activity was determined: Establishment and construction of a national independent mechanism for monitoring the implementation of the UN Convention on the Rights of Persons with Disabilities at the Protector of Citizens in accordance with Article 33 of the Convention”.

Having in mind the above, it is unclear why a new law is being passed instead of amendments to the current law.

The Commissioner points out that Article 138 of the Constitution of the Republic of Serbia stipulates that the Protector of Citizens is an independent state body that protects the rights of citizens and controls the work of state administration bodies, bodies responsible for legal protection of property rights and interests of the Republic of Serbia. and institutions entrusted with public authority.

Having in mind the stated provision of the Constitution, as well as that Article 2 of the Draft Law prescribes the competencies of the Protector of Citizens from other laws, we are of the opinion that the provision in Article 1, paragraph 2 should be deleted.

Article 20, paragraph 3 prescribes that the Protector of Citizens may undertake procedural and other actions in proceedings before state and other bodies and organizations when he is authorized to do so by special regulations. The Commissioner is of the opinion that the said provision is superfluous and should be deleted, bearing in mind that it is indisputable that the Protector of Citizens, as well as other bodies, can take procedural and other actions when authorized to do so by a special regulation.

Further, the Commissioner points out that the provision of Article 24, paragraph 1, item 2) of the Draft Law is unclear. Namely, the provision of Article 24, paragraph 1 of the Draft Law stipulates that the Protector of Citizens is authorized to recommend in writing the dismissal of an official, that is to initiate disciplinary proceedings against an employee of an administrative body who violated citizens’ rights or caused material damage to citizens trough omission: If he/she denies a breach or omission or fails to eliminate the violation upon the recommendation of the Protector of Citizens (item 1) or if he/she fails to perform another obligation provided by law in the procedure conducted by the Protector of Citizens (item 2). In this regard, it is unclear what other obligation is involved.

Article 29, paragraph 1 of the Draft Law stipulates that a complaint to the Protector of Citizens may be filed by any natural or legal person, domestic or foreign, who considers that his human or minority rights or freedoms have been violated by an act, action, or omission of an administrative body. In this regard and having in mind the provision of Article 138 of the Constitution of the Republic of Serbia, the Commissioner is of the opinion that a better wording is given in the valid Law on the Protector of Citizens. Namely, the valid law insists on the violation of the principle of good governance as prescribed by the Constitution, while in the Draft Law this part is practically omitted. It is indisputable that the work of the Protector of Citizens promotes human and minority rights and freedoms because citizens are able to turn to the Protector for violations of rights by state administration bodies. However, we are of the opinion that if this wording remains in Article 29, paragraph 1 of the Draft Law, that in this way the control of the work of executive bodies will be narrowed to the part that refers only to human and minority rights, while protection of rights and protection of good governance absent, especially bearing in mind that specialized and independent bodies have already been established for the protection of certain human rights, such as the Commissioner for Information of Public Importance and Personal Data Protection, the Commissioner for the Protection of Equality and other bodies that cannot control work of administrative bodies from the aspect of violation of the principle of good administration, incorrect attitude of administrative bodies towards the complainant, untimely work or other violations of the rules of ethical conduct of employees in administrative bodies. Having in mind the above, the Commissioner is of the opinion that in the entire text of the Draft Law it is necessary to consider the competencies of the Protector of Citizens prescribed by the Constitution of the Republic of Serbia as the highest legal act with which all laws and bylaws must be harmonized.

The Commissioner uses the opportunity to welcome the provision of Article 30, paragraph 2 of the Draft Law which stipulates that a complaint may be filed no later than three years from the violation of citizens’ rights, that is from the last action or inaction of the administrative body in connection with the violation instead of the one-year deadline prescribed by the current law.

In addition to the Draft Law on the Protector of Citizens, the text of the Draft Law on Amendments and Supplements to the Law on Free Access to Information of Public Importance was submitted to the Commissioner for an opinion. These two laws, as special laws regulating the work of independent state bodies, regulate in almost identical ways the issues of election and termination of the function of the Protector of Citizens, i.e. the Commissioner for Information of Public Importance, term of office, organization of professional service, etc. A novelty in both laws is the length of the mandate of eight years, the impossibility of re-election, as well as the possibility of remaining in office, even though the condition for old-age pension was fulfilled during the mandate.

The provision of Article 14, paragraph 1, item 5) of the Draft Law stipulates that the function of the Protector of Citizens ceases if his/her legal capacity is limited by a final court decision. The same condition is prescribed in the Draft Law on Amendments and Supplements to the Law on Free Access to Information of Public Importance. The Commissioner for the Protection of Equality has been pointing out for years that it is necessary to improve the regulations related to deprivation (either fully or partially) of legal capacity because these regulations support the medical approach and are not fully harmonized with international and European standards. Having the stated in mind, we are of the opinion that a more adequate formulation is given in Article 176 of the Labor Law[2] which stipulates that an employee terminates employment regardless of his will and the will of the employer if, among other things, in the manner prescribed by law. loss of working ability – on the day of delivery of the final decision on determining the loss of working ability. In this regard, we are of the opinion that this provision needs to be reconsidered.

Article 18, paragraph 2 of the Draft Law stipulates that in addition to the cases provided for in Article 15, paragraph 3 of this Law, the Protector of Citizens may propose the dismissal of the Deputy Protector of Citizens for the election of a new Deputy Protector of Citizens. The Explanation of this article states that such a decision has a special justification in the case of electing a new Protector of Citizens who should have the opportunity to nominate his closest associates, regardless of the fact that deputies who were elected on the proposal of the previous Protector of Citizens still have a mandate. The Commissioner is of the opinion that by prescribing the mentioned possibility, the continuity in the work of one body is interrupted and that the principle of professionalization in the work of bodies and employees is deviated from. This is especially bearing in mind that it is an independent and autonomous body, and that it is not a function that, for example, may depend on the results of the conducted elections. The Commissioner reminds that the Draft Law on Amendments and Supplements to the Law on Free Access to Information of Public Importance does not envisage such a possibility, although for the most part, almost identical provisions are prescribed regarding the provisions related to the election and termination of office.

In the Explanation of the Draft Law for Art. 28-39 It is stated that “The Draft Law proposes appropriate legal-terminological standardization of the rules of procedure implemented by the Protector of Citizens, and that although the Draft Law introduces and uses certain procedural terms present in the terminology of general administrative procedure, or prescribes certain deadlines for proceeding and completion etc., the proposed provisions do not jeopardize the specific ombudsman character of the Protector of Citizens as a state body that performs the so-called extra-legal control of the administration, and the procedure before the Protector of Citizens still remains a specific procedure prescribed by law of an illegal nature. The proposed procedural terminology and the architectonics of the procedure do not represent the establishment of a special administrative procedure. ”It is indisputable that the procedure before the Protector of Citizens, as well as the procedure before the Commissioner for Equality does not represent an administrative procedure. However, the Commissioner points out that an even greater degree of legal certainty would be achieved if the Draft Law provided for the appropriate application of the law governing general administrative procedure, because the similar application of a particular law indicates that only those rules can be applied in the spirit of the procedure before the Protector of Citizens. Namely, as the provisions on the procedure are short, this similar application would, for example, be welcome in situations that are exemplified, related to the delivery of letters, calculation of deadlines, etc. In this regard, we are of the opinion that it is necessary to consider prescribing the appropriate application of the law governing the general administrative procedure, in order to provide legal certainty and greater predictability of actions of all bodies conducting any type of procedure, including the Protector of Citizens.

[1] Law on Prohibition of Discrimination (“Official Gazette of RS”, No. 22/09 and 52/21), Article 1 and Article 33, paragraph 1, item 7.

[2] Labor Law (“Official Gazette of RS”, No. 24/05, 61/05, 54/09, 32/13, 75/14, 13/17 – CC decision and 113/17)

COMMISSIONER FOR THE PROTECTION OF EQUALITY
Brankica Jankovic