Centre for Civic Education (CCE) welcomes the agreement reached between the governing majority and the opposition to initiate the procedure for amending the Constitution in a manner that will strengthen the independence of the judiciary, reduce political influence over Montenegro’s judicial system, and create the conditions for an effective rule of law based on a clear separation of powers and a more limited scope for undue interference by the executive and legislative branches in the work of the courts and prosecution service.
Through a number of statements and publications, the CCE has consistently pointed out that the membership of the Minister of Justice in the Judicial Council is incompatible with international standards and with the recommendations of two Council of Europe expert bodies – the Venice Commission and the Group of States against Corruption (GRECO).
The CCE has also advocated for the Constitution to regulate the composition and method of appointment of the Prosecutorial Council, ensuring that its members are elected by the same qualified parliamentary majority required for members of the Judicial Council. This would prevent the parliamentary majority from reshaping the composition of the Prosecutorial Council through amendments to ordinary legislation in line with its political interests, contrary to international standards, as has occurred in the past. Such an approach is also consistent with Opinion No. 16 (2021) of the Consultative Council of European Prosecutors (CCPE), which states that the independence of prosecutors should be guaranteed at a level “similar to that enjoyed by judges.”
The Draft Amendments XVII–XXI to the Constitution of Montenegro incorporate these recommendations by removing the Minister of Justice from the membership of the Judicial Council, regulating the composition and appointment of the Prosecutorial Council at the constitutional level, and requiring that members of the Prosecutorial Council be elected by a qualified majority. These are positive steps towards aligning Montenegro’s constitutional framework with international standards and strengthening the institutional independence of the judiciary.
Nevertheless, it remains unclear why the proposed composition of the Prosecutorial Council continues to differ from that of the Judicial Council, despite their comparable responsibilities and the need for both bodies to enjoy a similar degree of independence. While the Minister of Justice is excluded from the Judicial Council because of the risk of political influence by the executive branch, the proposed amendments simultaneously provide for a representative of the Ministry of Justice—appointed by the Minister from among the Ministry’s staff—to sit on the Prosecutorial Council. If the presence of the executive branch is considered problematic in one case, it is difficult to find a convincing justification for retaining it in the other. The CCE therefore believes that the representative of the Ministry of Justice should also be excluded from the composition of the Prosecutorial Council in order to minimise the risk of undue executive influence over its work.
The CCE further considers that the Constitution should be improved with regard to the chairing of the judicial councils. The Chair of the Prosecutorial Council should be elected from among the prosecutors, but should not be the Supreme State Prosecutor. A similar approach would be appropriate for the Judicial Council, where the President of the Supreme Court should not simultaneously chair that body; instead, another judge should be elected to that role. Such a model would be consistent with the 2024 report of the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Margaret Satterthwaite, and would help reduce the concentration of institutional power in the hands of the President of the Supreme Court and the Supreme State Prosecutor.
The CCE also considers the proposed privileged status of certain legal professions within the Prosecutorial Council to be problematic. It is unclear why lawyers or representatives of civil society organisations should be guaranteed reserved seats to the exclusion of other legal professions, such as academics, notaries, or public enforcement officers. The guaranteed seat for lawyers is particularly problematic, given that the European Commission, Council of Europe bodies, the Agency for Prevention of Corruption, and others have repeatedly warned of potential conflicts of interest in such arrangements. We also recall that the UN Special Rapporteur stated that “the inclusion of practising defence lawyers in the Prosecutorial Council is problematic, as there may be an actual or perceived conflict of interest between membership of the Prosecutorial Council and the exercise of their professional activities.” Accordingly, the CCE considers that members of the Prosecutorial Council should not be lawyers who actively represent clients in proceedings before prosecution offices and courts. Instead, this issue should be regulated in line with the model applied to the Judicial Council by providing for the appointment of four distinguished legal professionals, without reserving seats for any particular profession. Such an approach would ensure equal treatment of all legal professions while reducing the risk of discrimination or preferential treatment.
Furthermore, the CCE believes that the concept of a “distinguished legal professional” should be defined more precisely through clear and objective criteria, in order to reduce the scope for politically motivated nominations and arbitrary interpretation.
The CCE also expects both the governing majority and the opposition to consistently implement the remaining elements of the agreement that are essential for strengthening democratic institutions.
In this context, it is particularly important to ensure that the Law on the National Security Agency and the Law on Internal Affairs are amended accordingly. The CCE has repeatedly pointed out that the most recent amendments to these laws were inconsistent with the positions of the UN Special Rapporteur on the Right to Privacy, the European Commission, the Agency for Prevention of Corruption, professional associations, and organisations working in the field of human rights protection. Of particular concern were the establishment of the Commission for the Verification of Security Clearance Impediments and the weakening of judicial oversight mechanisms over the work of the National Security Agency (ANB), both of which are inconsistent with the International Covenant on Civil and Political Rights, the European Convention on Human Rights, the case-law of the European Court of Human Rights, and the standards of the Council of Europe.
It is equally important that all forthcoming appointments within the Parliament of Montenegro be conducted lawfully and with the broadest possible support from all relevant stakeholders. In this regard, the agreement reached between the governing majority and the opposition may prove decisive. Only a lawful approach can prevent further controversial appointments, and we hope this will be demonstrated in the forthcoming appointment of new members of the RTCG Council.
The CCE also welcomes the commitment to adopt, by 31 July, the priority amendments to the electoral legislation through political consensus. This would further strengthen public confidence in the electoral process and enhance its integrity.
Finally, the CCE recognises the important role played by the Head of the European Union Delegation to Montenegro, Johann Sattler, in helping to bridge the differences between political actors. At the same time, it expresses concern that international mediation was necessary to reach an agreement on issues of fundamental national importance. The European Union should remain Montenegro’s partner in the reform process, but the primary responsibility for political dialogue and reaching compromises must rest with the country’s domestic political actors, particularly the governing majority. Only in this way can Montenegro develop a mature democratic culture and institutions capable of independently addressing matters of the highest public importance, as is expected of a country at this stage of the EU accession process.
Dr Ivan Vukčević, Human Rights Programme Coordinator