Who controls the work and protects the independence of prosecutors and judges: Only SDT hunts for mistakes

Initiated criminal proceedings against judges and prosecutors, including those who have held the highest positions for years, as well as the current mutual accusations of prosecutors about possible illegal and inappropriate influence, are indicators of serious problems in the judiciary.

What is particularly worrying, according to the interlocutors of "Vijesti", is the fact that several judges and prosecutors stated in the media, at parliamentary committee sessions and at hearings during criminal proceedings, that they suffered pressure from managers and presidents of the courts, and that they had not previously requested protection from the Judicial or Prosecutorial Council.

These bodies have the constitutional and legal authority to ensure the independence and independence of judges and prosecutors.

Human Rights Action (HRA) argues that vetting judges and state prosecutors would be useful if it were done in a legal and unsuspected manner.

"Such a complex procedure must be carried out by a government that has legitimacy, with the participation of representatives of international organizations," the legal adviser of the Action for Human Rights (HRA) told "Vijesti" Marija Vesković.

She said that numerous accusations, which are charged to some judges and prosecutors, are an indication that the system of determining disciplinary responsibility within the judiciary has not taken root in practice.

"Only one state prosecutor and three judges were found to be subject to disciplinary responsibility for failing to perform their duties in the period from 2018 to the end of 2022. When it comes to judges, it was mostly about misdemeanors such as not showing up for scheduled trials or failing to make a judgment within the legal deadline. On the other hand, when it comes to prosecutors, in the last five years, only one was found to be disciplinary. We are talking about the basic state prosecutor who was given the mildest prescribed disciplinary sanction - a fine of 20 percent of the salary for three months, because during 2019, 2020 and 2021, without justifiable reasons, he did not act in even 13 criminal cases within the deadlines prescribed by law, which is why the statute of limitations for criminal prosecutions has started in those cases", stated Vesković.

In the past 13 months, the Special State Prosecutor's Office initiated criminal proceedings against the former, long-time president of the Supreme Court. Vesne Medenica, President of the Commercial Court Blaž Jovanić, judges of the Commercial Court Milice Vlahović Milosavljević, the special prosecutor Saša Čađenović...

The trial against the criminal group, of which Medenica was a member, recently began before the Specialized Chamber of the High Court in Podgorica, where the former first lady of the Supreme Court is accused of exerting illegal influence, and Vlahović-Milosavljević is also a defendant in that case.

An indictment was brought against Jovanić, who has been in custody since May 9 last year, on the suspicion that he organized a criminal group within the Commercial Court, which abused his official position.

Special Prosecutor Saša Čađenović was arrested on December 9 last year and is still in custody in Spuš, where he expects the SDT to hand him an indictment soon, due to the suspicion that he became a member of a criminal organization in the second half of 2020, due to the fact that allegedly in several case, he did not undertake criminal actions against prominent members of the Kavaka clan.

Due to the small number of disciplinary proceedings, but also trivial sanctions due to disciplinary failures within the judiciary, the HRA has been emphasizing for years that a change in the legislative framework is necessary, especially in relation to determining the disciplinary responsibility of prosecutors and judges.

"The legal descriptions of some disciplinary offenses are too vague and allow for arbitrary interpretation by the authorized proposer to initiate disciplinary proceedings, the Disciplinary Prosecutor or the Disciplinary Council, and thus the unequal treatment of judges and prosecutors. It is necessary to improve the legislative framework, especially when it comes to the problem of matching the description of actions that violate the Code of Ethics and disciplinary violations. The difference is not insignificant because disciplinary violations attract serious sanctions, unlike ethical violations, which are practically unpunished. Only those violations of the code, which concern relations with parties, colleagues and other employees, can to some extent affect the evaluation of state prosecutors and judges and thus, indirectly, their advancement", emphasized Vesković.

HRA's legal advisor believes that the new legal solution should give broader powers to the disciplinary prosecutor, but also to the members of the Judicial and Prosecutorial Councils to initiate proceedings within the prosecutorial organization themselves...

"We believe that the disciplinary prosecutor should be given the authority to initiate the initiation of disciplinary proceedings, and in this regard we point to the proposal of the Venice Commission from 2015 that a person outside the prosecutor's office should be chosen for that position, which would increase the democratic legitimacy and credibility of determining disciplinary responsibility . In addition, each member of the Judicial Council and the Prosecutorial Council should have the authority to initiate disciplinary proceedings against the state prosecutor. It should be borne in mind that since the amendments to the Law on the State Prosecution, from June 2021, a proposal for the dismissal of the head of the State Prosecution can be submitted by at least three members of the Prosecutor's Council. We do not see why individual members of the Prosecutor's Council would not have the authority to initiate disciplinary proceedings against each state prosecutor", says Vesković.

Scheduled numerous control mechanisms within the judiciary

Executive Director of the Center for Civil Liberties (CEGAS) Marija Popović Kalezić she said that the prosecution of some judges and prosecutors is an indicator of captivity and the poor state of the judiciary.

She believes that bad legal solutions are one of the key reasons for the lack of adequate control in the work of the judiciary and the prosecutor's office, and that even the existing ones "were absolutely not respected, nor were they acted upon."

"Citizens' trust in the judiciary was, precisely for the aforementioned reasons, at the lowest possible level, just as it is the case with political parties. Today, this trust is slightly increasing, precisely because of the processing of certain cases in the judiciary and the prosecution, so it is clear that it essentially refers to the work of the SDT", said Popović-Kalezić.

And the executive director of CEGAS claims that the control of the work of prosecutors and judges has been delayed for years within the judiciary, as well as disciplinary procedures due to work failures.

"Even now we do not have any major progress compared to previous years, so somewhere the statistics on the number of conducted disciplinary procedures are completely equal compared to before. And when disciplinary responsibility is determined, in a small number of cases, the lowest possible sanction is always used. In this part, it is necessary to change the Law on the State Prosecutor's Office, as well as, accordingly, certain by-laws (Regulations on the internal work of the State Prosecutor's Office, etc.). It also seems to me that the determination of the amount of sanctions in case of disciplinary liability should be changed, but also that the will to determine them and respect the law must exist. Numerous methodologies will have to be changed and set up, again in accordance with the amendment of the law, and somewhere a connection must be found between the established disciplinary responsibility, violation of the code of ethics, as well as the way of evaluating state prosecutors. The situation is similar when it comes to the Judicial Council and its competences," she explained.

No one is responsible for the statute of limitations

HRA's legal adviser emphasizes that the past practice of both councils, based on complaints about the work of judges and prosecutors, as well as annual work reports, have shown that there are numerous cases of statute of limitations for criminal prosecutions.

The statute of limitations in cases, as Marija Vesković believes, may indicate a suspicion that there were omissions in the work of state prosecutors and judges...

"In practice, checks and initiation of procedures for eventual determination of their responsibility were absent. For this reason, it would be particularly important to ensure that the reasons for the limitation of criminal prosecution are examined in each case in which it occurs, that the commission determines whether there is responsibility for it on the part of the competent judge, that is, the state prosecutor, and in the event that responsibility is established, that it has influence on evaluation, promotion and dismissal, and this is something that the HRA has appealed to for years," said Vesković.