The proposed amendments to the Law on the State Prosecutor's Office, by which the Government requests that the mandate of the Acting Supreme State Prosecutor (VDT) not be limited but that it can last until the election of the head of the State Prosecutor's Office for a full term, will most likely not be adopted because there is currently no support for it in to the Assembly.
According to the knowledge of "Vijesti", the two largest parliamentary entities, the Democratic Party of Socialists (DPS) and the Democratic Front (DF), do not look favorably on the idea of the Government, for whose passage in the plenum the support of one of them is crucial.
The proposal to amend the law, which was initiated by the Prosecutor's Council (TS) and proposed by the executive power, would abolish the provision that prescribes that the mandate of the acting VDT can last six months, with the possibility of one re-election.
The DPS unofficially told the list that they do not yet have a position on the proposed changes, but that they are not in favor of the current acting head of the VDT Maja Jovanovic, whose second mandate expires on February 5, should remain in that position, nor should she be replaced by someone who, as they claim, "has already been appointed to the position in TS".
The DF also unofficially informed "Vijesta" that inter-party consultations on the Government's proposal are underway in that alliance, but that for now there is little chance that they will support the "infinite extension of the acting state".
If the proposed changes do not receive the support of the deputies, it means that the TS will soon elect Jovanović's successor. That judicial body published an advertisement for the position of acting VDT yesterday.
On the other hand, Maja Jovanović, lawyer Milorad Miško Marković and judge of the High Court in Podgorica Suzana Mugoša. The acting position in VDT has been in effect since October 2019.
On February 4, the Assembly will discuss the proposed amendments to the Law on the State Prosecutor's Office. The Government confirmed to "Vijesti" that the proposal was not submitted to the Venice Commission (VK) of the Council of Europe for a legal opinion, although it is an established practice to do so with key judicial regulations.
The determination of the proposal was preceded by the initiative of the TS to the Assembly (December 15) and the Government (January 16) to consider amending the law, because, as they state, frequent personnel changes in the position of the VDT, who is also the president of the TS, can negatively affect the functioning of the institution.
"Since it is necessary for a certain amount of time for the person who performs that function, even in the capacity of an acting official, to become familiar with all the circumstances, information and other issues necessary for the efficient exercise of competence", they pointed out, adding that it is therefore necessary to create legal prerequisites to ensure continuity in the function of VDT.
As "Vijesti" announced, insiders claim that TS decided on that move because there is allegedly a current within the prosecution that wants to take over the management of the VDT after Jovanović's mandate expires. It is speculated that the name of a person who is not from the prosecution organization, who was allegedly chosen to be its head, is known.
Modifications directed at the individual
A member of that body did not agree with the TS idea Stevo Muk, who announced that the proposed changes would introduce an acting mandate without restrictions, which, according to him, can make the obligation meaningless and reduce the responsibility of the parliament to elect the VDT for the entire mandate.
A legal adviser in the Human Rights Action (HRA) claims the same. Marija Vesković, who told "Vijesta" that the proposed changes that would extend Jovanović's mandate indefinitely seem to encourage the continuation of the acting state.
He recalls the changes to the Law on the Judicial Council and Judges from 2018, which led to the fact that there are now three members of the body from the ranks of distinguished lawyers who have been in office for nine years, i.e. who are in their third mandate. He assesses that such changes constitute a concession and justification for deputies who cannot reach a compromise regarding the establishment and normal functioning of state institutions.
"Such ad hominem changes, aimed at a specific individual, were also criticized by the Supreme Court less than two years ago, because they threaten legal certainty and are contrary to the nature of legislative activity, which means defining general rules of conduct, instead of taking executive actions in relation to individuals or individual situations. The manner in which the changes were proposed is not in favor of the TS either, because it creates a bad practice of changing laws non-transparently, according to the individual, in order to keep them in office or remove them from it," Vesković pointed out.
President of the Parliamentary Committee for Political System, Judiciary and Administration Momo Koprivica (Democrats), told "Vijesti" that, in accordance with the Rules of Procedure of the Parliament, he will call a meeting of the Committee to consider the bill.
It is difficult to defend a third acting mandate
He states that changes to judicial laws must be accompanied by a broad and inclusive public discussion, that the European Commission emphasizes this, and that this must be done also because certain solutions are already causing "principled disputes, even challenges".
"First of all, due to the prescription of an unlimited duration of the acting mandate, which can, in the conditions of political confrontations, be extended indefinitely, which is not its purpose, and it can also demotivate the election of the VDT for a full term. Also, if the third mandates of officials in the judiciary were contested for a reason, in the earlier period, it is difficult, if we stick to the same principles, to defend the third acting mandate, no matter how affirmatively you look at the work", notes Koprivica.
He explains that changes to judicial laws should be carried out thoughtfully, and not hastily, because this, he says, ensures the legitimacy of the procedure, reduces the possibility of error, "but also funds a greater amount of knowledge into solutions."
"Unfortunately, we see a lot of delayed reactions and initiatives, which are in a race against time and deadlines, and it can be seen that the planning function of the responsible proponents has failed", he adds.
Koprivica therefore says that he is convinced that the best solution would be the election of the VDT for a full mandate, so that he would approach the reforms with a clear time horizon of the mandate, as well as the powers, but also provide clear and effective support to the Special State Prosecutor's Office and the Chief Special Prosecutor to continue "capital work for our society".
"And that is the indiscriminate prosecution of the perpetrators of crimes that have devastated the system and the economy for the last 30 years. Part of the VDT election procedure is carried out before the Committee for Political System, Judiciary and Administration, and I will do everything to make it a credible, transparent and legal procedure, which is what our Committee is known for," adds the interlocutor.
Vesković also emphasizes that it is necessary to elect the VDT for a full term after three years of the acting state, through a qualified majority in the Assembly, which, she recalls, last happened more than eight years ago, when Ivica Stankovic elected with the support of the then ruling coalition (led by DPS) and the then opposition Socialist People's Party (SNP).
"For more than three years of the acting state, five public announcements have been announced, of which the procedure for the fifth is ongoing. Of the four conducted, only the first one was not reported, while three were unsuccessful due to the responsibility of the deputies, by prolonging the procedure, which in two cases lasted from a year to a year and a half, and by adopting changes to the Law on the State Prosecutor's Office, which in in one case, the election process was suspended and returned to the beginning", says the interviewee.
Part of the parties criticizes
Apart from the NGO sector, the Government's proposal was also criticized by the Social Democrats (SD), the Europe Now Movement (PES) and the Movement for Change (PzP).
The SD told "Vijesta" yesterday that this is another legal solution that substantially derogates from something defined by the Constitution.
"It is very well known to the public that a qualified majority is necessary for the election of the VDT. On the other hand, the limitation of the term of office of the acting president is logical and correct because it is in accordance with the essence of that legal mechanism that should exist in order not to interrupt the continuity of the functioning of the institution. The proposed changes inappropriately encroach on the constitutional competences and significantly make the election of the VDT meaningless because, if the changes are adopted, any individual could perform the function of the VDT in an acting capacity for an unlimited period of time. In addition, the proposal is not in accordance with the opinion of the relevant European institutions...", they announced, adding that they would not vote for the changes.
On Sunday, the PES assessed that he is anti-European, and that the government wants to "legislate and transform the state of emergency into a regular state", all with the aim of protecting "exclusively personal solutions in order to influence the State Prosecutor's Office through them".
The PzP stated that they do not support the proposal, adding that it would result in someone being in acting status longer than in a regular mandate.
"We are satisfied with the work of Acting VDT Maja Jovanović, but that does not mean that the law should be changed according to some individual," said an official of that party on Tuesday. Branka Bosniak.
Vesković: Introduce an unblocking mechanism for the judiciary
Considering that the VDT is not the only appointment in the judiciary that is waiting for the achievement of a qualified majority, Vesković says that it would be important to establish an unblocking mechanism in the judiciary, for which an amendment to the Constitution would be necessary. He says that he must be the exception, not the rule, because otherwise there would be a circumvention of reaching a consensus among the parties.
Vesković states that in Serbia during 2021 there were changes to the Constitution, which, among other things, prescribed an unblocking mechanism, specifically in relation to the election of distinguished lawyers in judicial and prosecutorial councils. It is stipulated, he explains, that in the event that the Assembly does not elect distinguished (i.e. distinguished) lawyers with a two-thirds majority, that authority will pass to a five-member commission consisting of the President of the Supreme Court, the President of the Constitutional Court, the Supreme Public Prosecutor, the Ombudsman and the President of the Assembly, and which will make a decision by majority vote.
"Such a solution, that prominent lawyers are chosen by 'key figures of the judiciary', was positively evaluated by the Supreme Court with the remark that it is necessary to take care of how the people who make up this commission are chosen, by a simple or qualified majority in the Assembly, so that there is no additional politicization of elections. For example, in our country the protector of human rights and freedoms is still elected by a simple majority, which is one of the key reasons why this institution has the 'B' status awarded by the Global Alliance of National Protector Institutions", says Vesković.
On the other hand, he points out that the status of the remaining members of the commission would also be questionable if such a solution were to be considered in our country.
"The function of the president of the Supreme Court has been in an acting state for more than two years, and that of the VDT for more than three years, while in the last two years, after the change of government, two persons performed the function of the president of the Assembly and initiatives for dismissal were submitted against both of them", she states.
Jovanović: The results of my work speak of professional integrity
Maja Jovanović told "Vijesta" that her position on the proposed changes was expressed through support for the initiative of TS, which was addressed to the Parliament and the Government. He states that the initiative sent to the parliament was supported by all nine TS members who attended the session during which it was discussed.
"The initiative was not intended to prejudge the decision on the appointment of the acting VDT, but rather to express the view that discontinuity in the position of the VDT, and thus the president of the TS, i.e. frequent personnel changes in those positions, can negatively affect the functioning of the institution, since a certain amount of time is necessary for the person performing this function, even in the acting capacity, to familiarize himself with all the circumstances, information and other issues necessary for the efficient performance of his responsibilities", she underlined.
When asked if she believes that her professional integrity would be violated if she were to accept that, in the event of the adoption of the amendments, her mandate would be extended in that way, Jovanović answered that she believes that her professional integrity is best expressed by the results of her work achieved during her decades-long tenure in The State Prosecutor's Office of Montenegro.
Proof of Suzana Mugoša's citizenship is awaited
Whether High Court judge Suzana Mugoša will be included in the list of candidates in the VDT election process will be known only at the next session of the Supreme Court, because the members of that body could not make a decision on whether she submitted a complete application even after more than two hours yesterday. documentation.
In the original documentation that she submitted to the TS Secretariat, she did not provide proof that she is a Montenegrin citizen, nor a copy of her identity card.
TS, which according to the Law on the State Prosecutor's Office is obliged to determine whether the registered candidates submitted legally timely and orderly documentation, made a decision to determine the list of candidates only at the next session.
"VDT needs general conditions for the state prosecutor, who says that a person who fulfills the general conditions for working in state bodies can be elected for that position," stressed the Secretary of the TS Secretariat, Mithat Kuč.
Although the issue regarding Judge Mugoša's documentation was first voted on, the members still decided to consider the issue a little more.
"I am in a big dilemma about this issue. I can see that others feel the same way. I don't know what the previous practice was. It is a well-known fact that she is a judge, and she could not be if she does not have Montenegrin citizenship. I don't know if that might be enough," said TS member Miloš Vuksanović.
TS member Muk was restrained because he is a judge and it is indisputable that he is a Montenegrin citizen. "I would not like to eliminate the candidate because it is obvious that he has this condition," said Muk.
During the next vote, Vuksanović, Muk and Filip Jovović abstained, while Siniša Gazivoda, Tatjana Begović, Nikola Samardžić, Đurđina Nina Ivanović and Sanja Jovićević were against adding Judge Mugoš to the list of candidates due to incomplete documentation.
That round was not concluded either, and then Vuksanović asked for a break in the session and referred to Article 19 of the Rules of Procedure, after which the public was excluded from the session by a unanimous decision of the TS.
Behind closed doors for more than two hours, members of TS dealt with the list of candidates for VDT, where acting VDT Jovanović and Marković joined the race in a timely manner.
Jovanović, because she is a candidate for VDT, asked for an exemption during the discussion on this agenda item.
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