The Analysis of provisions that regulate functional immunity of prosecutors

European practice of immunity of public prosecutors and their deputies shows that they should not enjoy general but only functional immunity. Such a restriction, in the opinion of the Venice Commission, leads to a reduction in potential corrupt activities.

Functional immunity is a type of legal immunity granted to officials and serves to protect them from criminal and civil liability for violations of the law committed in the exercise of their public function. This type of immunity of prosecutors and deputy prosecutors is regulated in the legal system of the Republic of Serbia by the Constitution and the Law on Public Prosecution.

Analyzing the provisions of the Constitution and the Law that regulate the functional immunity of prosecutors, project team prepared a comprehensive analysis of these provisions, with the aim of improving them and bringing them closer to European legislation and practice.

Although in most cases the provisions of the Constitution and the Law are in line with international opinions and practices, the Analysis of provisions that regulate functional immunity of prosecutors showed that there is room for improving the provisions of the domestic legislative framework, especially with regard to expanding the scope of material functional immunity (it is proposed to extend this immunity to decisions made in the performance of the prosecutorial function) on the one hand and narrowing the scope of application of procedural functional immunity (it is proposed that the approval for deprivation of liberty in proceedings initiated for a criminal offense committed in the performance of the prosecutorial function, instead of the National Assembly, be given by the State Prosecutorial Council) on the other hand. Such suggestions given in the Analysis are now contained in the changes in the Constitution.  Comparing the domestic Constitution with the constitutions of other countries, through the prepared Analysis, it was determined that the regulation of the issue of immunity of prosecutors in the Constitution itself is not too common in the practice of other countries. The consequence of that is identical provisions prescribed by the Law on Public Prosecution, which should naturally be a legal act that regulates constitutional provisions in more detail.