The immunity of MPs must not be a shield against corruption, but solely a mechanism to protect their function, said the lawyer. Miloš Vukčević, warning that the key problem in the story of this institute is its abuse in practice.
Vukčević explains that immunity is not a personal privilege, but a model of protecting the office so that a parliamentarian can speak, vote and act politically freely, without fear of politically motivated persecution.
"This is a standard in all democratic systems, and it has also been recognized through the practice of the European Court of Human Rights," he said, responding to a question from "Vijesti" about whether the Constitution should also provide for the lifting of immunity for MPs for criminal acts of corruption.
A similar proposal has recently been in the parliamentary procedure, but it concerns members of the Government - it is requested that their immunity for criminal acts against official duty be lifted. Therefore, the leader of the opposition Democratic People's Party (DNP) Milan Knezevic asked a question to the Prime Minister Milojko Spajić (Europe Now Movement) why the announced changes to the highest legal act do not also provide for the lifting of immunity for members of parliament for criminal acts of corruption. Spajić is expected to answer this question during today's Prime Minister's Hour in Parliament.
The government submitted a proposal to amend the Constitution to the highest legislative chamber in mid-April. Deputy Prime Minister Momo Koprivica (Democrats) then announced that this implements an important recommendation of the Group of States against Corruption (GRECO), and that the goals of the solution are to strengthen the rule of law, improve the framework for the prevention of corruption, align with the highest international standards and accelerate integration into the European Union (EU). He pointed out that the action plan for GRECO recommendations is one of the benchmarks in Chapter 23 (judiciary and fundamental rights) in Montenegro's negotiations with Brussels.
The lifting of immunity for MPs for criminal acts of corruption, or rather, the clarification of the Constitution in that regard, is supported by the Democratic Party of Socialists (DPS), the Democrats and Social Democrats (SD), while the Europe Now Movement, New Serbian Democracy, the Bosniak Party, the Socialist People's Party and the Civic Movement URA did not respond to questions from the editorial staff about whether they would vote for that solution.
According to the Constitution (Article 86), a deputy cannot be held criminally or otherwise liable or detained for an opinion expressed or a vote cast in the performance of his or her parliamentary duties.
"Criminal proceedings cannot be initiated against a member of parliament, nor can detention be ordered without the approval of the Assembly (waiver of immunity), unless he is caught committing a criminal offense for which a penalty of more than five years in prison is prescribed," the highest legal act states.
It's bad if immunity protects politically
Recalling that the current constitutional solution does not grant absolute immunity - an MP can be held criminally liable, with prior approval from parliament, unless he is caught committing a criminal offense, Miloš Vukčević says that the key issue is the abuse of that mechanism in practice.
"If parliament uses immunity as political protection, then the system is not functioning," he said, adding that he therefore believes the solution is not necessarily the complete abolition of immunity for corruption crimes, but rather its precise limitation.
The interlocutor therefore states that there should be a clear distinction between substantive immunity, for speech and voting, which must remain absolute, and procedural immunity, which would be narrowed or automatically suspended for criminal acts of corruption.
"Such a model exists in several European countries and ensures a balance between the protection of function and the rule of law," claims Vukčević.
According to the Constitution (also Article 86), immunity, in addition to MPs, is granted to the President and members of the Government, the Head of State, the President of the Supreme Court, the President and judges of the Constitutional Court, and the Supreme State Prosecutor.
Don't hide officials from responsibility
Head of the Democrats Parliamentary Club Boris Bogdanovic, told "Vijesti" that his party absolutely supports the Constitution's provision for the abolition of immunity for parliamentarians for criminal acts of corruption.
"We believe that no one who holds a public office should be protected from liability if there is a basis for suspicion that they participated in corrupt criminal acts. Immunity should not be a shield for crime, but solely a guarantee of freedom of speech and political action of MPs within the framework of their mandate," he said.
As he adds, the Democrats would support such a proposal, because the fight against corruption is one of the key conditions for building a state based on the rule of law, restoring citizens' trust in institutions, and accelerating Montenegro's European path.
"If we demand accountability from everyone else, then politicians, and especially MPs, must be the first to show that there are no privileged people before the law," Bogdanović said, emphasizing that their position is clear: full support for the abolition of immunity for criminal acts of corruption, "because public office must not be an umbrella before justice."
DPS voted to lift immunity for its own members
MP and spokesperson for DPS Sonja Popovic, told the editorial staff that the party has always had a principled attitude when it comes to lifting the immunity of MPs. She claims that, unlike the others, they are the only ones who have always voted for lifting the immunity of their MPs, as well as government representatives, and in this way "contributed to improving the rule of law."
"We believe that no individual, if there is a reasonable suspicion that they have committed a certain act, even by such a judiciary, whose work we have repeatedly qualified as selective and politically biased, should be protected by immunity, nor should there be any instruments that prevent the implementation of a process in which all relevant legal facts would be established," said Popović.
She added that they also see nothing controversial in the proposal to lift the immunity of members of the Government for corruption-related crimes.
Since the change of government in 2020, the Parliament has lifted the immunity of opposition MPs on several occasions. In November 2021, the immunity was lifted for the then DPS MP Petar Ivanovic, who is on trial for the criminal offense of abuse of official position in the "Abu Dhabi Fund" affair.
In the "Apartments" scandal, in 2023, five DPS and SD MPs were left without immunity due to suspicion of abuse of official position.
On the other hand, the Parliament did not decide on the immunity of NSD deputies. Milan Lekić and a former representative of that party Marko KovačevićIn Lekić's case, the Administrative Committee proposed lifting immunity, but the proposal did not reach the plenary session, while in Kovačević's case, the prosecution's request was not even put on the committee's agenda.
The Higher Prosecutor's Office in Podgorica asked the Administrative Board to lift Kovačević's immunity due to the controversial part of his speech in Grahovac in June 2024. Kovačević said at the time that "those who do not want to be brothers will be treated like Turks."
The Higher Prosecutor's Office dismissed the criminal charges against Kovačević, so the case was transferred to the Minor Offences Court in Nikšić.
On the other hand, the Basic Court in Pljevlja requested the lifting of Lekić's parliamentary immunity so that his (Lekić's) criminal prosecution could continue for an accident he caused while drunk in October 2024.
Is the Constitution clear?
Stating that the immunity of deputies is regulated by the Constitution, the SD deputy Nikola Zirojevic says that his understanding of the provisions of Article 86 is such that parliamentarians are not protected when it comes to criminal acts of corruption.
Certainly, as he adds, if this topic needs to be defined more precisely, he believes it should, because he appreciates that the essence of parliamentary immunity is of a different nature, to protect their free speech and to protect them in the professional performance of their parliamentary duties, and not to enable them to violate laws without responsibility.
Criminal acts of corruption in Montenegro are defined through several provisions of the Criminal Code, including accepting and giving bribes (Art. 423 and 424), trading in influence (Art. 422) and abuse of official position (Art. 416).
For the most serious corruption offences, such as accepting bribes and abuse of official position, the Criminal Code provides for sentences of up to 15 years in prison, while for lighter forms, sentences of three months to five years are imposed.
The Law on the Prevention of Corruption defines corruption as "any abuse of official, business, or social position or influence for the purpose of obtaining personal benefit or benefit for another."
Vukčević: Every government is reluctant to give up the mechanisms that protect it
When asked whether there is political will to provide for the Constitution to abolish immunity for MPs for criminal acts of corruption, Miloš Vukčević replied that, realistically speaking, political will is limited.
The reason, he says, is simple: every government, regardless of its political affiliation, is reluctant to give up mechanisms that can provide it with a certain degree of protection.
"In this sense, amendments that affect the immunity of MPs are among the most sensitive constitutional issues," the interlocutor added.
On the other hand, he states, pressure from the international community, especially in the context of negotiation chapters related to the rule of law, 23 and 24 (justice, freedom and security), as well as the growing need to strengthen public trust in institutions, may be key drivers of change.
"If the reform is presented as part of a broader fight against corruption, rather than as a political showdown, there is room for it to gain the necessary support - but with a broad consensus, which is not certain at this point," Vukčević concluded.
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