BLOG  Legal Angle

01 28 2023 

Written by Luka Jovanović
attorney-at-law and FSD Program Director

LEGAL BARBARISM IN SERBIA’S KABUL

Yesterday, January 27th 2023 – a date which will live in infamy – Čedomir Kokanović, a lawyer from Belgrade, was arrested in Novi Sad on a warrant issued by the Basic Court of Novi Sad due to a detention order that court issued in a criminal trial in which the accuser Vladimir Beljanski – president of the Vojvodina Bar Association - filed a criminal lawsuit against him in which he alledges Kokanović defamed him via social networks.

As I write these line Kokanović is still being detained in the County Jail in Novi Sad and it is unknown when he will be released. Last night several colleagues held spontaneous protests in front of the court that made this shameful decision and we need not doubt that this form of protests will continue until the local court authorities cease with this legal barbarism.

Why is this legal barbarism? Why does this conduct by the court, and the Private Prosecutor(!), represent an embarrassment that both the rivers Dunav and Sava won’t be able to wash out? 

The primary reason is the fact that this decision by the court is essentially and irredeemably unlawful in way that is quite obvious to the professional public.

To put it succinctly, private prosecutors can’t propose the determination of detention in private criminal proceedings!

Article 212 paragraph 1 of the Criminal Procedure Code (“Determination of detention”) states:

The decision on detention is determined by the court on the proposal of the public prosecutor and after the confirmation of the indictment and ex officio.

In order to understand this article correctly, we need to turn to Article 2, paragraph 1 items 5-7 of the same bill (“Glossary of terms”):

Particular phrases used in this Act mean the following:

5) “Prosecutor” is the public prosecutor, private prosecutor and the injured party;

6) “Public prosecutor” is the republic public prosecutor, appellate public prosecutor, senior public prosecutor, basic public prosecutor, public prosecutor with special jurisdiction, deputy public prosecutors and persons authorized by law to substitute for them;

7) “Private prosecutor” is a person who filed a private lawsuit for a criminal offense for which the law prescribes criminal prosecution by private lawsuit;

So if Article 212 refers exclusively to the public prosecutor, by checking the glossary of terms it is easy to deduce that the legislator reserved the right to request detention in criminal proceedings for the public prosecutor alone, not for the private prosecutor or the injured party.

Viewed in this light it seems inconceivable how the court in Novi Sad came to the interpretation in which the Private Prosecutor has the right to request determination of detention?

Initially the Basic court turned down that request and took the opposite position but the Private Prosecutor filed an appeal to that decision after which the higher authority reversed the initial decision and issued a detention order. Did this crude braking of the law come about due to abuse of public office, through a law violation by a judge or as a consequence of tremendous incompetence on the part of the judges that issued that decision remains to be seen.

Where is the Belgrade Bar Association in all of this?

Article 35 of the Advocacy Act stipulates that the court, after ordering the detention of a lawyer, is obligated to promptly notify that lawyer‘s bar association about that order.

The act with which detention was ordered was issued on December 9th 2022. Over a month and a half ago! In all that time the court, seemingly, failed to notify the Belgrade Bar Association about any of this.

How is this possible? At this moment it is unknown wether this „breakdown in communication“ happened because someone blocked the information coming out of the court in Novi Sad or was there a problem on the „receiving end“ of the notification in the BBA, but we can expect this confusion to be sorted out in short time.

Last but not least, we come to the Private Prosecutor and his responsibility for this situation.

It is an understatement to say that this drama set in to motion by the president of the second biggest bar association in the country who, by the nature of his position, was obligated to demonstrate a much higher tolerance for his critics, regardless of how out of place it is or how degoutante it is, is a huge embarrassment for the entire legal profession. 

By the nature of it‘s vocation the legal profession is called upon to protect the liberty of every individual and it‘s chief task is to ensure the correct application of the law in order to protect the human rights and civil liberties of all of this country‘s citizens – including dissenters and critics. 

To what extent has the Prosecutor‘s putting of Čedomir Kokanović behind bars contributed to the spreading of freedom and justice for all - and especially the public reputation of his own profession – at this point is best illustrated by the consternation of the entire professional public at this spectacle this action provided it and which is already an unforgettable episode that will be recounted in the years to come as a point from which there is no going back. Both in Novi Sad and beyond.