All decisions granting pardons by terminating criminal proceedings, issued after the 2006 Constitution of the Republic of Serbia came into force, are null and void – legally nonexistent acts.
The Constitution currently in force does not recognize this type of pardon. Under the Constitution, the judiciary is the only authority empowered to conduct criminal proceedings and determine guilt and punishment. As an exception to the principle of the separation of powers, the Constitution grants the President of the Republic a very limited and exceptional power to pardon an individual who has been convicted, relieving them of serving all or part of their sentence.
The former President of the Republic of Serbia committed the criminal offense of abuse of office by issuing pardons for 49 individuals on September 27, 2026, none of whom had been convicted by a final court ruling.
Under the Constitution, the President of the Republic has no authority to grant pardons by terminating criminal proceedings against individuals who have not been finally convicted.
This constitutes an abuse of office because an action was taken that the President of the Republic, as a public official, had no authority to undertake. The outcome the former president sought to achieve was unlawful: the termination of criminal proceedings against the pardoned individuals, which are being conducted under valid indictments.
Even if the former President of the Republic issued these decisions at the proposal of the Minister of Justice, following the procedure set out in the provisions of the 1995 Law on Pardons, which became invalid when the 2006 Constitution entered into force, this would still constitute an abuse of office.
If the Minister of Justice submitted the proposal under provisions of a law that were no longer in force, then both the minister and the President of the Republic committed the criminal offense of abuse of office. The Minister of Justice had no authority to propose the pardons, and the President of the Republic had no authority to issue the decisions granting them.
The question is what courts and prosecutors’ offices should do when they receive a pardon decision concerning someone whose criminal proceedings are still ongoing.
They should continue with the proceedings because such pardon decisions are null and void, meaning they are legally nonexistent acts. In other words, courts and prosecutors’ offices are expected to apply the relevant legislation, including the provisions of the 1995 Law on Pardons governing pardons initiated ex officio or proposed by the Minister of Justice for individuals who have not been finally convicted. Those provisions ceased to be in force when the 2006 Constitution was adopted.
The Constitutional Court does not need to declare those provisions unconstitutional for them to be disregarded. They have clearly become unconstitutional and, consequently, invalid by virtue of the Constitution itself.
Since the Constitution came into force, decisions pardoning individuals who have not been finally convicted have been just as invalid and inapplicable as any other decision the president might issue without having the authority to do so. For example, a decision to repeal a law, order the construction of a building, imprison an individual, or award a monetary prize to a person or group of people.
The President may propose that such decisions be made by the competent authorities, but cannot make those decisions in their place.
The author is a lawyer.
MORE TOPICS:
Source: Danas Foto: ATA Images
Add Serbian Times as your Google source