Amendments to legal framework on Prosecution should be long-term and in the public interest

Centre for Civic Education (CCE) monitors the public discourse related to the Draft Law on Amendments to the Law on the State Prosecutors` Office, although we did not participate in debates which the Government organized in a manner which we assess that neither respect civil sector nor leave space for detailed analysis of this draft. However, as this is an issue of public importance, which is in the focus of the CCE’s work, we present certain general observations and suggestions.

CCE has previously pointed out that the prosecution in Montenegro is inefficient and that the current constellation within this body does not contribute to an effective fight against corruption and organized crime. This highlights the need for the overall reform process to be under the standards and the best practices to bring the practical and sustainable solutions.

The CCE recalled upon findings of the research conducted in February this year, which has indicated that even 53% of citizens in Montenegro negatively evaluate work of the Prosecution, while 55% consider that the Prosecution is not independent and impartial. Furthermore, citizens perceive the Prosecutor’s Office as an anti-corruption institution to a very small extent – only 7%, which is dramatically low in comparison to the other actors.

Reports of the European Commission have repeatedly admonished for the weak integrity of the Prosecution and vulnerability to political interference. They also often problematized the absence of results in the implementation of the Code of ethics and disciplinary responsibility.

The CCE points out that the Draft Law on Amendments to the Law on the State Prosecutors` Office has not been thoroughly harmonized, which, if adopted in this form, could bring practical problems.

Namely, the Draft prescribes that a person who meets all the conditions required for the Supreme State Prosecutor (SSP) may be elected acting SSP. Furthermore, it is noted that the acting SSP will be appointed at the first constitutive session of the Prosecutorial Council and the mandate of the former acting SSP will be terminated. But, this raises the question arises of how it is possible to appoint the acting SSP on the first meeting of the Prosecutorial Council (PC), if s/he must pass the same procedure as the SSP, that is, conducting announcing of the vacancy at the SSP in the “Official Gazette of Montenegro” and one of the print media in Montenegro, with a legal deadline for candidates to apply within 15 days and then following the application procedure. To make this applicable, it is necessary to incorporate regulation on the manner of applying of persons for an acting person, because the existing formulation stipulates that members of the PC will elect the acting person of the SSP without the application procedure, which raises the question of whether they will elect some person without his/her consent or some person according to the previous agreement without transparent and competitive application procedure.

The current composition of the Prosecutorial Council indisputably has proved to be non-functional, since a larger number of prosecutors in relation to the non-prosecutorial part within members (6-5) negatively affected the determination of the disciplinary responsibility of prosecutors. In brief, prosecutors elected in that body have chosen to protect individual colleagues – not a profession, while non-prosecutorial members, even when wanted, could not initiate even a single disciplinary procedure in that ratio. Therefore, the suggested changes that Prosecutorial Council is composed of an equal number of prosecutorial and non-prosecutorial members, i.e. on the one side should be four prosecutors and SSP as the fifth member, and on the other side five prominent attorneys, are justified, with the note that there is also the representative of the Ministry of Justice as the eleventh member. The CCE also notes that the suggested solution that non- prosecutorial part of members has preponderance, with a representative of the state administration body responsible for judicial affairs (Ministry of Justice) chosen among employers in the Ministry and appointed by the Minister of Justice. This brings a solution for unblocking this body, but also the danger of creating a climate conducive to the influence of the executive branch on the Prosecutor’s Office. In addition, such a proposal would imply the change of the manner of electing prominent lawyers, having in mind the fact that there is no definition of prominent lawyers, nor how to determine the condition of professional impartiality, high professional and moral qualities.

Ultimately, if the planned changes are aimed at establishing better control of disciplinary and ethical responsibility of prosecutors, it is necessary to consider the fact that the legal review against the decisions of ethics commissions has not yet been implemented in law, which also should be addressed.

Furthermore, amendments stipulate that a person who is a former state prosecutor cannot be elected as a member of the Prosecutorial Council, which is discriminative and does not contribute to the better human resources approach. In addition, this prohibition includes those prosecutors who had left this institution just because of the political influence on the Prosecution or sought other work engagements due to the impossibility of promotion. The Prosecutorial Council is the umbrella body of the Prosecution and it must provide the possibility to the most competent staff to apply for the positions of its members without discriminatory conditions.

CCE considers that the intention of the legislator to contribute to the end of nepotistic relations through the introduction of the norm that prescribes that member of PC chosen among state prosecutors cannot be a marital or extra-marital mate or relative of a Member of Parliament, member of the Government of Montenegro and the President of Montenegro in the straight line regardless of the degree of kinship, to the second degree of lateral lines of kinship. However, the prescribed category which refers to „relative in-law” is disputable, and it should be limited to relative in-law up to the second degree of in-law kinship, following the example of the limitation introduced in other positive regulations. It should also consider imposing restrictions on the former marriage partner. According to the previous, the restrictions for election of members of PC chosen amongst prominent attorneys should be modified in the part of determining the limit of the in-law kinship up to the second degree as it would be in the spirit of other laws, because limits are envisaged for all kinds of kinship, and on the other hand, in-law is left unlimited which in the country with a small number of citizens can be a problem.

Having in mind the fact that the state of acting SSP is a transitional and temporarily solution, the possibility of electing a person outside the SSP and outside the prosecutorial organizations is unjustifiably created, because the very acting person should be the one who is in the institution and who procedurally and organizationally knows how to manage in a short period of eight months until the election of the SSP, and not to get acquainted with the system during a short term, which can make the work of that institution harder. Also, this raises the question: from where comes so much distrust towards all prosecutors and does it mean that no one in the Prosecution is not valuable? If it is considered that prosecutors in SSP do not have the competence to perform the duty of the SSP temporarily, this should be addressed in some other manner. In this case, it is unclear why, for example, a random selection/lot of the acting person is not conducted until the election for the full term of the new SSP. Although the managerial function is a matter of personal preference and will, the possibility of obliging the prosecutor with such a function should be considered if it is necessary for the functioning of the institutions (for example, to elect the oldest prosecutor).

The suggested changes stipulate that unprofessional and unconscionable performance of the prosecutorial function will be considered even if the prosecutor “commits a serious disciplinary offense which caused significant damage to the reputation of the state prosecutor’s office.“ The CCE supports the intention to strengthen prosecutorial liability, but this provision requires more concrete and more precise definition, to avoid broad interpretation and minimize the possibility of its abuse for eventual confrontations with ineligible prosecutors or avoidance of responsibility, that is, to be properly usable.

CCE assesses that the need for certain staff changes in Prosecution is reasonable, but it must not create space for the new party employments. It is necessary to create mechanisms that will be a strong basis for an independent and impartial Prosecutor’s Office, which will remain immune to political influence even after all political changes. Therefore, the changes which are being introduced must have a vision that is long-term and in the public interest, with the bona fide approach.  

Tamara Milaš, Human Rights Programme Coordinator