Television and newspaper reports on Monday, November 17th, informed us that a “new Association of lawyers of Serbia” was established. This wasn’t the top news of the day; only those professionally interested or very persistent readers and viewers managed to see it. It was a kind of second-rate news. This is not surprising if we bear in mind that the Association of lawyers of Serbia was established as a civic association and registered in the Business Registers Agency like all the other associations: from those involved in the protection of human rights, to those which gather chess fans or beekeepers. If we consider this association to be just another association of citizens whose members can be of different professions and interests, the question arises – why did this news deserve to be reported in the media? Why aren’t we regularly notified about the registering of other associations?
Let’s look at the founding documents and objectives of the Association of lawyers of Serbia. In a statement to the public, the organization states that its goals are “mutual professional cooperation, human rights protection, strengthening the legal system and the rule of law, as well as strengthening the reputation of the legal profession and improving its position in the Serbian judicial system”. Many of us would support these causes and consider them completely uncontroversial.
The rest of the statement tells us something more about the reasons for establishing: “While the establishment of the Association was planned for mid-2015, current developments in the judiciary and legal profession in the Republic of Serbia have created the need for urgent establishment of a professional organization, which aims to improve the functioning of Serbian law practice and judiciary system. By the decision of the leadership of the Serbian Bar Association, lawyers in Serbia are prohibited access, advocacy and action before the courts, police and other state authorities, which has led to massive human rights violations in the past two months”.
Now the media’s attention seems understandable – establishment of the new association is related to the fact that the Bar Association of Serbia and its more than 8,000 lawyers are on strike for the last two months, which is blocking the country’s judicial system. Experience leads us to the conclusion that “the new Association of lawyers of Serbia” is more important than other associations precisely because it is supposed to become a short-term practical replacement for the Bar Association of Serbia.
A practical and short-term replacement, because the status of any civic association, including the one that gathers lawyers, is quite different from the position of the Bar Association of Serbia and its regional branches. First of all, the Bar Association exercises public authority and performs tasks of general interest, according to the Legal Profession Act. Public authority is well illustrated by the fact that the law stipulates that the Bar decides who will be included in the list of lawyers at the very “entry” into the profession, i.e. who meets the legal requirements to engage in advocacy. Furthermore, the public authority of the Bar is not an end in itself. Nor is it a result of some provisory privilege – this position is derived from the public importance of advocacy.[1] Thus, organization of lawyers in the Bar and the fact that the Bar passes regulations, are only a consequence of this public interest. This is why the Bar performs a number of other public authorities,[2] which cannot and must not be carried out by civic associations.
Civic associations, on the other hand, are established for protection of particular interests of citizens. Those particular interests can definitely be important for the society as well, but that must be separated from the possibility that these organizations exercise public authority and perform tasks of general importance. This is of outmost importance for understanding the different position of the Bar and any civic association, even one whose members are citizens/lawyers.
Role-play doesn’t end here: an association called “Serbian lawyers’ society” – which exists since 2011 – has asked the Serbian Business Registers Agency to ex officio delete “Association of lawyers of Serbia” from the registry, as that name is inconsistent with provisions of the Law on Associations, which states that the name of the newly founded association may not be identical to the name of other associations that are entered in the registry; may not be interchangeable with the name of another association, or cause confusion about the association, its goals, or confusion in regard to the type of legal entity. So, not only has the new association “stepped onto Bar’s toes” (even if it’s on the level of unattainable goals), but has also harmed another association registered under an almost identical name.
In addition, expectation that the decision on mandatory suspension of work can be undone by establishment of a civic association is a complete legal nonsense. This question must be addressed within or before the Bar Association or other institutions that are competent to speak out on this issue. Also, it is difficult to believe that over 8,000 people don’t work out of sheer fear of sanctions from the Bar Association. It is more likely that the majority of them are really dissatisfied.
Of course, the purpose of establishing a parallel association of lawyers is not reasoned dialogue about the different methods of combating whatever caused the suspension of work. This primarily refers to the unjustifiably exclusive position of public notaries in the Serbian legal system, which affects not only lawyers, but also other citizens. It is a simple intention to “overcome the crisis” and create an impression among the public that there is an association of lawyers who are satisfied with the “concessions” made by the last two amendments to the law. Let us recall that these concessions are reflected in the change of the Law on Public Notaries which changed the previous stipulation that all real estate contracts have to be drawn up in the form of a notary record, so now it only has to be done when dealing with persons without a legal capacity. Still, the Law on Real Estate introduced a solution that every contract of real estate transaction must be done either in the form of a notary record or be certified by, of course – a notary. The government can use this maneuver, or “concession” to brag until such time when a person becomes thoroughly informed or feels himself that the situation has remained unchanged.
We already know that our government has simple answers to complicated questions. General economic collapse is resolved by increased allocations of budget funds to public enterprises and parties, and a reduction in salaries and pensions; a poverty epidemic is dealt with by forced labor; criticism of the government is stifled by the prohibition of programs; general hopelessness by promises of unfeasible national infrastructure projects. This is precisely the case with the proposed establishment of a new association of lawyers. We can assume how effective this “solution” will be – just as much as any other. Especially promising is the fact that Association already has about 160 members, as its new president said in one of his first media appearances. The course of this (expected) struggle between the Bar Association and the new civic association remains to be seen. It is certain that this struggle will, at least for a while, fulfill its purpose and diverts attention from the real culprits which led to a two-month suspension of work of one of the few remaining independent professions in this country.
Translated by Marijana Simic
Peščanik.net, 29.11.2014.
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