Centre for Civic Education (CCE) recalls that a prosecution service which does not demonstrate accountability cannot enjoy public trust in a society striving for the rule of law. At the same time, accountability must never undermine the autonomy of a prosecutor in a specific proceeding. These two principles must be continuously built and strengthened through various institutional mechanisms, and one of the key ones is the regulation of the ethical responsibility of prosecutors.
The adoption of the new Ethical Code of State Prosecutors , in early November, represents an important step in preserving and strengthening the dignity and reputation of the prosecutorial profession in Montenegro. Its content and implementation will have a direct impact on progress in the EU accession process, particularly in the part concerning the fulfilment of the closing benchmarks under Chapter 23, which relate to the independence and accountability of the judiciary at all levels.
Although prosecutorial ethical responsibility sometimes eludes strict regulation, it can nevertheless be analysed and compared with European standards and good practices, which is why the CCE considers the assessment of the new Ethical Code to be in the public interest.
In this context, the CCE welcomes the introduction of the obligation for a prosecutor to directly notify the Commission for the Ethical Code directly when planning engagements outside the State Prosecution Service that may affect his or her reputation or dignity. Unlike the previous Code, in which the prosecutor would notify their superior, who would then inform the Commission “if deemed necessary”, the new solution is better because it ensures additional oversight and reduces the risk of conflicts of interest.
Also positive is the novelty enabling periodic revision and review of the Code, especially in the light of emerging professional challenges and evolving international standards, as well as the introduction of a provision on the political neutrality of prosecutors, which may contribute to stronger protection of their autonomy.
The CCE also welcomes the introduction of clear rules in communication with citizens and the media, including the obligation of a professional and impartial attitude towards journalists and media house, especially acting with care and respect “towards every journalist and media house”. The application of this provision may be particularly relevant in cases of selective conduct by certain prosecutors towards the media.
Additionally, for the first time, guidelines relating to the use of social media are introduced, aligned with contemporary challenges and international practices, since such communication is also considered public and requires caution and professionalism.
However, some parts of the Code could benefit from further elaboration, and certain provisions from the previous Code were removed without clear justification.
The new Code omits the obligation for prosecutors to continuously improve their theoretical and practical knowledge, as well as to follow the case law of domestic courts and the European Court of Human Rights. It is also unclear why the obligation for prosecutors to encourage employees to undertake professional development has been removed, bearing in mind the importance of professional development for everyone in the prosecution service, and which is also good practice in EU member states. This obligation is particularly important considering that advisers and other employees participate in significantly fewer training sessions than state prosecutors, yet they have substantial influence on the prosecution’s performance and may later themselves become prosecutors.
The CCE also expresses concern over the removal of the provision regulating relations with victims, since it is essential for the Code to prescribe the obligation of special attention towards victims of criminal offences to avoid secondary victimisation.
Further concern arises from the fact that some descriptions of violations of the Ethical Code overlap with more serious disciplinary offences, which may lead to inconsistent application and the possibility of avoiding a stricter form of responsibility. This refers, for example, to inappropriate conduct towards participants in the proceedings, the acceptance of gifts, or the use of the prosecutorial function for achieving private interests. Such regulation is inadequate, and the CCE recommends that certain violations of the Ethical Code and disciplinary offences be described more precisely so that they are clearly distinguished.
In conclusion, the CCE assesses that the new Ethical Code of State Prosecutors represents a step forward in the direction of strengthening the accountability and professionalism of state prosecutors. However, to further reinforce the reputation of the prosecution service, it is necessary to adress the identified shortcomings and incorporate the recommendations proposed by the CCE.
Equally important, it is crucial to ensure consistent and high-quality work of the Commission for the Ethical Code, because without effective supervision over the implementation of the new provisions, the fight for a responsible and professional prosecution service remains without substantive effect.
Dr Ivan Vukčević, Human Rights Programme Coordinator