The separation of powers is one of the fundamental principles of a democratic state and a key safeguard of the system of checks and balances. This principle can be undermined by the actions of any of the three branches of government – legislative, executive or judicial – but also by an excessive concentration of power in other institutions. When such concentration reaches a certain level, it is legitimate to ask whether a kind of “fourth branch of government” is emerging, whether economic, media-related or, as in this case, prosecutorial.
It is precisely for this reason that the recently adopted amendments to the Law on the Special State Prosecutor’s Office deserve particular attention. They further concentrate power in the hands of the Chief Special Prosecutor (CSP), without a proportionate strengthening of mechanisms of accountability and oversight. Such a framework creates greater scope for selective action and weakens institutional safeguards, while the concentration of power without adequate counterbalances always poses a risk to democratic processes.
The adoption of these amendments once again demonstrates a lack of understanding of the process and of a strategic approach to judicial reform. Strengthening one office or one individual is not the same as strengthening an institution. On the contrary, a system that depends too heavily on the powers of a single person becomes more vulnerable to political pressure, selective action and future abuse. Regardless of who may hold the position of CSP in the future, such a broad scope of powers should be seriously reconsidered before it produces negative consequences.
What are the key controversial amendments?
First, the amendments give the CSP the right to lodge an objection with the Prosecutorial Council when the Supreme State Prosecutor assigns individual cases or actions falling within the competence of the Special State Prosecutor’s Office (SDT) to the Supreme State Prosecutor’s Office. During the public consultation, the Supreme State Prosecutor’s Office rightly warned that, if this amendment were adopted, “the hierarchical structure of the prosecutorial organisation, the unity of the State Prosecutor’s Office and the clear line of accountability would be undermined”. The Ministry of Justice did not adequately take this warning into account.
Second, the amendments provide that the CSP is not subject to performance evaluation. This exempts the holder of one of the most powerful positions within the prosecution service from the professional assessment mechanism applicable to other prosecutors and heads of state prosecutor’s offices. This reduces accountability for results and places the CSP in a privileged position. It should also be recalled that European Commission reports have continuously noted unsatisfactory results in the area of disciplinary and ethical accountability within the judiciary. The adopted amendments therefore run, in practice, counter to the findings and recommendations Montenegro has been receiving from the EU for years. Here too, the Supreme State Prosecutor’s Office rightly stressed the need for “professional evaluation criteria to be mutually aligned and comparable”. The paradox becomes even more pronounced when this solution is compared with the amendments to the Law on the Judicial Council and Judges, where the same proposer moved in the opposite direction – towards expanding the range of judges subject to evaluation.
Third, the provision under which the CSP, upon expiry of the mandate, continues to serve as a state prosecutor in the Supreme State Prosecutor’s Office is also problematic. Heads of other state prosecutor’s offices do not enjoy such a right. This creates an unusual situation: a CSP who is not subject to evaluation during the mandate is granted a legally guaranteed continuation of their career in the highest state prosecutor’s office, while the head of another prosecutor’s office, regardless of their results and evaluations, has no comparable entitlement. Such unequal treatment is difficult to justify on the basis of equality, accountability and merit.
Particular attention should also be paid to the amended eligibility requirements for the appointment of special prosecutors. A candidate may now be a person with ten years of experience in other legal work after passing the Bar Examination, without any previous experience as a prosecutor or judge. In practice, this means that a person who has spent a decade working as a legal professional in a public enterprise, a company or another institution, may directly become a special prosecutor. Opening the prosecution service to qualified legal professionals from outside the judiciary is not problematic in itself. The problem lies in the absence of limitations and adequate safeguards, particularly given the complexity of organised crime and high-level corruption cases. At the same time, professionals from within the judiciary must have six years of experience as judges or prosecutors, while their prior experience as advisers or trainees is not valued in the same way. This also raises questions about the justification for treating different forms of legal experience differently. A more reasonable solution would be to limit the number of non-career special prosecutors – for example, by allowing only one prosecutor to be appointed in this manner. The Supreme State Prosecutor’s Office also proposed that “no more than three special prosecutors, each with at least 12 years of professional experience in other legal work after passing the Bar Examination” could be appointed in this way. Without such a limitation, non-career prosecutors could at some point constitute a majority within the SDT, significantly changing the professional structure of an institution dealing with the most sensitive criminal cases. The motives behind this solution are also unclear, making it necessary to closely monitor who will be appointed as special prosecutors in the coming period. In this regard, the Prosecutorial Council will face a serious test.
Furthermore, the amendments provide that a person with at least 15 years of experience in other legal work may also be appointed as CSP. This opens the possibility for the SDT to be headed by someone who, throughout their entire professional career, has never worked as a judge or prosecutor, never directly handled complex criminal proceedings and has never signed an indictment or judgment. For an institution entrusted with such extensive powers and dealing with such cases, this is far from insignificant.
What was not changed is equally important
What the legislator failed to regulate is equally problematic. The legal framework governing the temporary assignment of prosecutors to the SDT was not improved, even though the Centre for Civic Education (CCE) had previously warned about the practice of prosecutors with minimal experience being assigned to work on the most sensitive organised crime and high-level corruption cases.
Such a practice is detrimental to the quality of investigations, the credibility of the SDT and public trust. The amendments were an opportunity to establish a transparent procedure, clear criteria and an appropriate level of experience for prosecutors assigned to the SDT, but that opportunity was missed.
Independence without accountability is not reform
There is no doubt that the work of the CSP is extremely demanding, given the nature of the criminal cases handled by the Special State Prosecutor’s Office, and that this institution should be provided with adequate human, financial, technical and other resources to operate effectively. However, this does not justify concentrating excessive powers in the hands of the CSP, particularly as international standards on the independence of the judiciary do not envisage offices free from accountability and effective oversight.
A strong SDT is not built by weakening the accountability mechanisms applicable to its head. On the contrary, the greater the powers, the stronger the guarantees of accountability, professional evaluation and institutional oversight must be.
In Montenegro, European standards are too often used as a universal justification for domestic legislative solutions. This is misguided when it overlooks the fact that, in many areas, there is no single model across EU Member States, and that a solution which works in one country may not be suitable for Montenegro’s institutional context. It is even more problematic when politically desirable solutions are presented as supposed obligations arising from the European integration process, even though no such requirement exists. It is particularly disingenuous when certain actors deliberately create the false impression that specific legislative amendments are necessary because of European Union recommendations, while their actual purpose was to protect the interests of their political parties. CCE has already warned of the dangers of such an approach in relation to amendments to the Law on the National Security Agency (ANB) and the Law on Internal Affairs.
The competent ministries therefore need to understand that agreement on the most important issues facing the country should be reached through open dialogue between decision-makers and professionals, within a genuine public consultation process. It is indicative that, in this case, the Ministry of Justice failed to take into account a number of well-founded comments made by the Supreme State Prosecutor’s Office, an institution that is, by its very nature, among those best placed to speak about the internal organisation of and accountability within the State Prosecutor’s Office. It is equally indicative that the current CSP did not voice any criticism during the public consultation, thereby tacitly supporting solutions that grant that office unprecedented powers and privileges.
Judicial reform cannot be a collection of partial interventions tailored to current political or personal circumstances. It requires strategic planning, expert and effective public consultation, and a system in which independence and accountability are two sides of the same coin.
Montenegro needs a strong and independent Special State Prosecutor’s Office, but it does not need a system dependent on the concentration of power in the hands of one individual. Institutions are built by limiting the possibility of abuse of power, regardless of who happens to hold office at any given time.
Dr Ivan Vukčević, Human Rights Programme Coordinator at the Centre for Civic Education (CCE)