In the period from 2012 to 2021, out of 116 prosecutors working in the basic, higher and Special Prosecutor's Offices, 115 of them were rated - excellent. Only the prosecutor of the Basic Prosecutor's Office in Kotor, Srđa Jovanović, received a good rating. And all the heads of the prosecutor's offices were rated with the best rating.
These data were kept secret for a long time, but for the purposes of our research they were recently obtained by the Center for Civil Liberties (CEGAS).
The evaluations are given by the Commission formed by the Prosecutorial Council (SC), which consists of the supreme state prosecutor and five members of the SC, three of whom are prosecutors, and two of whom are distinguished lawyers. Only those who score less than good cannot advance.
If the reports of the European Commission (EC) are taken into account, it is not clear on the basis of which criteria the representatives of the prosecution did so well, when year after year it is repeated from Brussels that the rule of law is one of the biggest challenges on Montenegro's path to the European Union (EU ).
This is perhaps the best example of how necessary the reform of the prosecutor's office is, but even after five months since the amendments to the Law on the State Prosecutor's Office were passed, there is no indication when the new TS could be completed, nor what should be the first steps in the reform of the prosecutor's organization.
Although the representatives of the parliamentary majority promised that new solutions would finally start the process of change, it currently seems as if it is not a priority.
Due to a misunderstanding in the ruling coalition regarding the election of one member of the TS from the ranks of distinguished lawyers, the Parliament of Montenegro has not yet completed the TS, and this is conditioned by some parties on the reconstruction or change of the Government.
When the prosecutors elected their four members to the Council, the Speaker of the Parliament Aleksa Bečić announced a new TS, with six members, in which, in addition to the prosecutor, there is also Acting Supreme State Prosecutor (acting State Prosecutor) Dražen Burić, who presides over that Council and is a representative of the Ministry of Justice, State Secretary Boris Marić.
However, that truncated Council has not even held a constitutive session yet, and there is no indication that it will hold one, until the Parliament of Montenegro completes its work regarding the election of distinguished lawyers.
At the first session, the Supreme Court should dismiss Dražen Burić from the position of Acting VDT and elect a new acting head of the highest prosecutorial function in the country. As we unofficially learn, there could be a problem with that first task, because the law states that the new acting director of VDT must be elected at the first session of the TS, and it is not specified how the election is done - whether a competition is necessary or a majority is sufficient votes of Council members.
It will not be so easy for the New Council to dismiss the chief special prosecutor (GST) Milivoj Katnić, although he is often cited as one of the obstacles to dealing with corruption and crime at the highest level, due to his alleged connections with the heads of the DPS and the former police department. In June of last year, the previous convocation of the TS unanimously confirmed Katnić for a second term, and he should retire in two years. Considering the results of the Special State Prosecutor's Office (SDT), it is doubtful that he will be able to effectively deal with complicated cases, such as the "Pandora Papers", in which the offshore companies of President Milo Đukanović and his son were discovered. The European Parliament demanded that the allegations made by the International Consortium of Investigative Journalists (ICIJ) be investigated before national judicial authorities.
According to the Law, the VDT, three members of the Council or the Minister of Justice have the possibility to initiate proceedings for the removal of Katnić due to unprofessional or negligent performance of his duties, a serious misdemeanor causing significant damage to the prosecution, or if he has been convicted.
What will be the efficiency of the SDT largely depends on who will be elected for the VDT, for which a two-thirds or three-fifths majority in the parliament is needed. However, there is no indication that the Assembly will quickly vote for a new head of the Montenegrin Prosecutor's Office, as this requires the support of the opposition.
If it is complicated to reach an agreement on the VDT, the question arises why the representatives of the parliamentary majority do not at least choose those members of the TS with whom they have no dispute - three distinguished lawyers and one representative of the non-governmental sector and thus start from a dead end. The Center for Investigative Journalism of Montenegro (CIN-CG) was unable to get an answer to this question. The President of the Parliamentary Committee for Political System, Judiciary and Administration, Momo Koprivica, promised answers to our questions in a telephone conversation, but later ignored numerous calls.
Even his party leader, Speaker of the Parliament Aleksa Bečić, did not answer questions about whether he would initiate a dialogue not only about appointments in the TS, but also about the election of the VDT, but also about other positions in the judiciary.
Acting VDT Dražen Burić did not want to speak to CIN-CG either, explaining that he had promised an interview to another media.
The EC emphasizes the responsibility of politicians
In the last annual report of the EC on Montenegro, it is emphasized that there is no progress in the field of justice, and that the implementation of key reforms is stagnating. The responsibility of the political elite that fails to secure a qualified majority for key appointments in the judiciary is underlined.
It is emphasized that the recommendations of the Venice Commission (VK) regarding changes in the prosecution system should be followed to the end - the European Commission is also concerned that the mandate of eminent lawyers in the previous session of the Supreme Court was terminated after the amendments to the Law on State Prosecution were passed. The danger of politicization of TS is also mentioned. "A broad political consensus on the appointments of eminent lawyers will be crucial to prevent the politicization of the Council," the report concludes. It is noted that it is necessary to review the disciplinary and ethical responsibility of judges and prosecutors.
It's not just TS that's the problem. For three years now, the Parliament has not been able to secure even a majority for four distinguished lawyers in the Judicial Council, so the mandate of the members whose term of office expired in July 2018 was extended. a judge and a distinguished jurist.
"Both councils must improve the transparency of work, including the publication of fully reasoned decisions on promotions, appointments and disciplinary measures," the EC report states.
State Secretary in the Ministry of Justice, Human and Minority Rights Bojan Božović assessed for CIN-CG that the EC report related to chapter 23 is realistic and objective.
"This kind of report gives a clear message that we must seek solutions in dialogue, as well as that all institutions of the system and all actors in this society, in accordance with their powers, are responsible for the stagnation in the accession process on this issue," said Božović, who and head of the Working Group for negotiating chapter 23 (judiciary and fundamental rights).
The President of the Board of Directors of the Institute of Alternatives (IA) and candidate of the non-governmental sector for TS member Stevo Muk states for CIN-CG that the grades from the report are expected and that they are "a warning and a good basis for much more work in the coming period".
"The report notes progress in the number of processed cases of organized crime, but also points to numerous weaknesses and shortcomings, as well as the fact that there is still concern about the institutional performance of the Prosecutor's Council." For the umpteenth time, insufficient effects in the system of prosecutors' disciplinary responsibility are pointed out," notes Muk.
As the Parliament of Montenegro is the place where the most important positions in the judiciary are appointed, the greatest responsibility for the entire process belongs to the President of the Parliament of Montenegro, Muk assesses. He also points out that it should be discussed "in a package" about all appointments in the judiciary - judges of the Constitutional Court, members of the Judicial Council and the selection of the VDT.
The executive director of the Action for Human Rights (HRA), Tea Gorjanc Prelevic, points out that the parties in power are acting poorly, because they are unable to agree on key appointments related to the rule of law, which is a priority, and in relation to which the European Commission gave the worst rating to date. now.
"It calls into question the key promises of the ruling majority. Even when this blockade is lifted, it will be remembered that the normal functioning of the judiciary depended on individual interests and political party fights, even though they all promised to 'liberate' the prosecution and achieve justice", said Gorjanc Prelevic. Trading around the election of TS members, she adds, reduces citizens' trust in politicians, prosecutors and the state.
New TS announced, but not working
Amendments to the prosecutor's law were voted at the end of May, and according to the deadlines in that law, the new TS could be complete by September.
Amendments to the Law stipulate that the Prosecutor's Council has 11 members, five of whom are prosecutors, including the president of the Council or VDT, and five prominent lawyers, one of whom is a representative of an NGO, while the 11th member is a representative of the Ministry of Justice.
1 candidates applied for the competition for four positions among distinguished lawyers, which lasted until July 16. The majority in the Board agreed that three lawyers: Miloš Vuksanović, Siniša Gazivoda and Filip Jovović, meet the requirements to be members of the Council. However, the fourth candidate - lawyer Nikola Bulatović - was disputed by the representatives of the Democratic Montenegro (DCG), because they pointed out his alleged closeness to the Democratic Front (DF).
Because of this, the process of selecting TS members from the ranks of distinguished lawyers, including the representative of the non-governmental sector, Stevo Muk, was stopped, even though he received the support of the Board members.
At the beginning of August, the conference of state prosecutors elected four prosecutors: Sanja Jovićević, Đurđina Nina Ivanović, Tatjana Begović and Nikola Samardžić as members of the TS. And that choice was called into question, because there was unofficial information that there were irregularities and an insufficient number of votes in the first round for one of the candidates. The Supreme State Prosecutor's Office denied those allegations.
After that, the Speaker of the Parliament declared a new TS, with a truncated composition, in order to stop the intention of the Council in the last convocation to make appointments and elect the head of the Basic State Prosecutor's Office (ODT) in Podgorica and three prosecutors of the VDT.
The previous convocation of the TS proposed that the current acting Dražen Burić be elected to the VDT, but the Parliament of Montenegro did not comment on that proposal.
Proclaiming the new Council, the President of the Assembly stated that the TS can function and make decisions with at least six of the 11 members foreseen. The new Council, however, has not scheduled a single session since then.
The director of the HRA emphasizes that the fact that TS is not working means that there are no conditions for the selection of prosecutors, nor for determining their responsibility for illegal or unethical work.
HRA legal adviser Marija Vesković points out that the acting situation in ODT Podgorica has been going on for more than two years and that no election can be held until TS is established. She emphasizes that, if an agreement on all candidates for TS cannot be reached in the ruling majority, they should at least vote on those over which there is no dispute.
However, as he adds, it is obvious that there is currently no will for that, as well as for consideration of the proposal for the election of the VDT, which the previous composition of the TS submitted to the Assembly at the end of July. "Since the beginning of August, the competent parliamentary committee has held three sessions and these two issues were not on the agenda at all, and the issue of the election of distinguished lawyers became the subject of a political ultimatum for an agreement on the reconstruction of the Government," Vesković points out.
And State Secretary Bojan Božović points out that the incomplete TS greatly complicates the work of the entire prosecution, as well as its reform through the election of new prosecutors.
He adds that this situation should not last much longer and that the Ministry hopes that the TS will be completed during the month of November.
According to the data of the Agency for the Prevention of Corruption (ASK), the mandate of distinguished lawyers in the last session of the Supreme Court, Ranka Čarapić, Milan Filipović, Velimir Rakočević and Aneta Spaić, ended on August 5, when the new Supreme Court was announced.
Their mandates were supposed to last until January 2022. As things stand now, the big question is whether new members of this body will be elected by then.
The court system is also blocked
There is a similar situation in the judiciary, there are many acting positions or there is a smaller number of judges than the expected number. In August of this year, the Council noted the termination of the functions of 23 judges who met the conditions for retirement. In the Supreme Court, there are now only six judges out of the 18 that were foreseen, since as many as 12 of them have retired. The Judicial Council did not even manage to elect a new president of the Supreme Court by a two-thirds majority, after Vesna Medenica resigned at the end of last year.
Neither the Administrative Court, nor the basic courts in Kolašin, Berane, Bar, Rožaje and Kotor, nor the Court for Misdemeanors in Budva have presidents.
The process of evaluating a large number of candidates who applied for vacancies in the Supreme, Administrative, Commercial and Higher Courts is underway.
"We hope that this procedure will be carried out in the shortest possible time and that at least we will not have an acting situation in the judiciary, especially in the Supreme Court where that situation lasts for ten months", reminds Vesković.
And the Constitutional Court is currently functioning in an incomplete composition and on the verge of a quorum. After the retirement of judge Hamdija Šarkinović and judge Mevlide Muratović, that court operates with only five judges, of whom Dragoljub Drašković should retire soon. So that court could soon be left with four judges, which is a quorum for deciding cases, but that means that everyone would have to be unanimous in order to make a decision.
For more than a year, the Assembly has not been able to elect new judges even for the Constitutional Court.
The Constitutional Court will not rule on pensions soon
The Constitutional Court for CIN-CG did not answer when they will decide on the lower retirement age, but also on the constitutionality of the changes to the prosecutor's law, but according to unofficial information, due to the complicated situation in that court as well, it is unlikely that a decision will be made soon.
This certainly, as we were told unofficially, does not prevent those responsible from implementing the regulations that have been adopted.
Amendments to the Law on the Prosecutor's Office provide that the prosecutor's function ends upon exercising the right to a pension, and the same was already provided for in the Law on Courts.
While the Judicial Council decided to comply with the provisions of the law regarding retirement, even though it sought to challenge them before the Constitutional Court, the previous Supreme Court was of the opinion to wait for the decision of that court before deciding to retire the prosecutors.
Bonus video:
