No shade (part two)

The proposal of the Government of Montenegro initiated constitutional changes in the area of ​​the State Prosecutor's Office, in the part that the composition of the Prosecutorial Council, in which prosecutors have the majority, should be a constitutional category that would, according to prosecutorial logic, guarantee prosecutors independence. In anticipation of the public debate and possible opinion of the Venice Commission, and after the adoption of the text of the Draft Amendment to the Constitution of Montenegro in the Parliament, I am publicly expressing my position and opinion. Let me start with me.

Such a constitutional solution represents a serious institutional failure and a dangerous step towards closing the system that allows space for the creation of a corporate model of governance in the prosecution, in which the holders of prosecutorial functions would practically decide for themselves, as they already legally decide for themselves, without real external control and without the constitutional balance that must exist between the holders of public authority, and the State Prosecutor's Office is not a branch of government. With this model, it threatens to become the first and only authority in Montenegro that would create not only processes in the judiciary but, obviously, also political processes.

I believe that the Prosecutorial Council must not be transformed into an interest body whose primary task is to protect the prosecutorial profession itself, but its purpose must also be to ensure accountability, legality, transparency and citizens' trust in its work. The majority representation of prosecutors in the Prosecutorial Council maintains a closed system of self-control. The history of this institution shows that the prosecutor's office in it elects, controls and supervises itself in a disciplinary manner, and sooner or later it begins to produce untouchability, lack of responsibility and institutional self-sufficiency, and Montenegro's experience in this regard has gone even further.

When this fact is considered, with common sense, it is unclear how it is that European partners who monitor the processes in Montenegro, as claimed by the Government, demand and propose such constitutional solutions in a country that has been facing serious problems for years of political influence on the judiciary, selective justice, weak accountability mechanisms and seriously undermined public trust in the institutions of the system.

That is precisely why the Prosecutorial Council must be a body of institutional balance, and not a closed professional structure.

Its composition must include equal numbers of expert members from outside the prosecutorial organization - people with undisputed integrity and full professional independence, because it is precisely their participation that gives this body its independence.

Referring to European standards as a justification for such changes is not legally convincing. European standards nowhere impose a model according to which prosecutors must have a majority in such bodies. On the contrary, they insist on pluralism, balance and mechanisms that prevent a single profession from monopolizing decision-making processes.

Equally problematic is the solution for the same person to simultaneously be the Supreme State Prosecutor and the President of the Prosecutorial Council.

Such a construction represents a dangerous model of concentration of institutional power.

First - a serious conflict of interest arises because one person directly influences the body that should decide on issues concerning both his own work and his institutional position.

Second, excessive concentration of power in one position is created, which seriously disrupts the internal balance within the prosecutorial system.

Thirdly - other state prosecutors may objectively be exposed to pressure, because the same person influences both the hierarchy within the prosecutor's office and decisions related to their promotion, disciplinary liability and professional status.

In other words, a system is being created in which one man gains excessive institutional power over the entire prosecutorial organization.

This is precisely why European standards recommend the separation of functions and the strengthening of collective governance in the judiciary, in order to prevent political or personal domination of an individual over institutions.

Judicial reform cannot be a cover for the creation of closed institutional structures in which the system ceases to be accountable to citizens and begins to serve itself, in an institutional fortress outside serious democratic control.

In this proposed, legally and implemented monopoly of power, only one person, the Supreme State Prosecutor, becomes free, independent and autonomous, while other state prosecutors can hardly act completely freely, because every professional decision, from promotion to disciplinary responsibility, remains under the shadow of the authority of one dominant figure.

This is not an environment of professional independence in work.

It is an environment of institutional pressure.

Experience shows us that democracy does not always collapse suddenly.

Sometimes it starts quietly, with constitutional amendments and legal solutions like these.

It begins when institutions stop being accountable to the public and start serving themselves.

Therefore, this is not just about technical constitutional amendments, but about an attempt to create a new model of power within the judiciary - a model in which control will be replaced by self-control, responsibility by closure, and institutional balance by the dominance of a narrow circle of people.

Montenegro must not allow itself to be built under the guise of reforms, a system in which the judiciary becomes a closed center of power outside serious democratic control.

Because a state in which institutions elect themselves, protect themselves, and hold themselves accountable ceases to be a state governed by the rule of law, and when the judiciary ceases to be accountable to society, a dangerous deformation of democracy itself begins.

Because of all the above, I am convinced that the proposed constitutional amendments do not lead to the strengthening of the rule of law. On the contrary. They may become the beginning of the creation of a new form of institutional untouchability, concentration of power and further erosion of citizens' trust in the Montenegrin judicial system.

This is the experience of history and a warning that Montenegro should not ignore.

I SPOKE AND SAVED MY SOUL (Rekoh i spasih sebi dušu!).

The author is a former judge and president of the Constitutional Court of Montenegro.