The Center for Civic Education (CGO) sees as a reasonable need for certain personnel ventilation in the Prosecutor's Office, but this must not be the opening of space for new party staffing, the non-governmental organization (NGO) announced today.
"It is necessary to create mechanisms that will be a solid basis for an independent and impartial Prosecutor's Office, which, even after all political changes, will remain immune to political influence. This is precisely why the changes that are approached must have a long-term view and in the public interest with bona fide approach," the statement of the CGE, signed by Tamara Milaš, coordinator of the Human Rights program, points out.
The CGO said that they follow the public discourse regarding the Draft Law on Amendments to the Law on the State Prosecutor's Office, although they did not participate in the debates organized by the Government in a way that they believe neither adequately respects the civil sector nor leaves room for a thorough analysis of the submitted text. .
"However, as it is a topic of public importance, which is also the focus of the work of the CGO, we present certain general observations and suggestions. The CGO has previously indicated that the prosecutor's organization in Montenegro is ineffective and that the current constellation within this body does not contribute to effective the fight against corruption and organized crime. This also emphasizes the need for the entire reform process to be in accordance with standards and best practices in order to bring about an effective and sustainable solution," said CGO.
They recall the findings of a survey conducted in February of this year, which showed that as many as 53% of Montenegrin citizens negatively evaluate the work of the Prosecutor's Office, while 55% believe that the Prosecutor's Office is not independent and impartial.
"Furthermore, citizens perceive the Prosecutor's Office as an anti-corruption institution to a very small extent, of only 7%, which is dramatically low compared to other subjects. The reports of the European Commission have continuously warned about the weak integrity of the Prosecutor's Office and its resistance to political interference. Often also problematized the lack of results in the implementation of the Code of Ethics and disciplinary responsibility," said the CGE.
They indicate that the Draft Law on Amendments to the Law on the State Prosecutor's Office has not been carefully coordinated, which, they claim, if adopted in this form, could bring practical problems.
"In fact, that text states that a person who meets all the conditions required for the Supreme State Prosecutor can be elected as acting Supreme State Prosecutor. Furthermore, it is stated that at the first constitutive session of the Prosecutorial Council, the acting Supreme State Prosecutor and state the termination of the mandate of the former acting Prosecutor's Office. But how is it possible to appoint an acting Prosecutor's Council at the first constitutive session of the Prosecutorial Council (TS), if he has to go through the same procedure as the Prosecutor's Council, that is, by first announcing the vacancy of the Prosecutor's Office in the "Official Gazette of Montenegro" " and one of the printed media in Montenegro, with a legal deadline for applying for candidates of 15 days, and following the procedure for applications. In order for this to be applicable, it is necessary to incorporate a provision on the way to apply for a person acting as an acting official, because it follows from the existing wording that TS members will elect the acting VDT without an application procedure, so the question arises as to whether they will elect someone without his consent or someone according to a prior agreement without a transparent and competitive application procedure," the CGO statement reads.
The NGO states that the current model of the composition of the Prosecutor's Council has indisputably shown that it is not functional, because, as they claim, the greater number of prosecutors compared to the non-prosecutor part of the membership (6-5) negatively influenced the determination of prosecutors' disciplinary responsibility.
"Simply, the prosecutors who sat in that body chose to protect individual colleagues and not the profession, and the non-prosecutor part of the members, even when they wanted, could not initiate any disciplinary proceedings in such a relationship. Therefore, the proposed changes to make TS equal number of prosecuting and non-prosecuting members, i.e. that on one side there should be four prosecutors and VDT as the fifth member, and on the other five distinguished lawyers, with the note that there is also a representative of the Ministry of Justice as the eleventh member. has the upper hand, with the representative of the state administration body responsible for judicial affairs (Ministry of Justice), appointed by the Minister of Justice from among those employed in the Ministry, brings a solution to the unblocking of this body, but also the danger of creating a climate of influence of the executive power on the Prosecutor's Office", said the CGO .
The NGO says that such a proposal would also imply a change in the way of choosing distinguished lawyers, bearing in mind that there is currently no definition of who are distinguished lawyers, nor how to measure the condition of professional impartiality, high professional and moral qualities.
"Finally, if the planned changes seek to establish better control over the disciplinary and ethical responsibility of prosecutors, it is also necessary to look at the fact that the legal remedy against the decisions of ethics commissions has not yet been implemented in the law, which should also be addressed. Furthermore, the changes stipulate that for a member of the TS cannot be elected a person who is a former state prosecutor, which is discriminatory and does not contribute to better staffing. In addition, this ban also includes those prosecutors who left this institution precisely because of political influence on the Prosecutor's Office, or who, due to the impossibility of advancement, sought other work engagements. The Prosecutor's Council is the umbrella body of the Prosecutor's Office and it must be possible for the most competent personnel to apply for its members without discriminatory conditions," said the CGO.
They believe that the intention of the legislator is justified to contribute to the termination of nepotistic ties by introducing the norm that a member of the TS from the ranks of state prosecutors cannot be a (illegitimate) spouse or relative of a member of parliament, a member of the Government of Montenegro and the President of Montenegro in the direct line, regardless of the degree of kinship. in the lateral line to the second degree of kinship.
"However, the prescribed category related to "relative in-law" is disputed and should be limited to in-law relatives up to the second degree of in-law kinship, as this limitation is also introduced in other positive regulations. We should also consider introducing restrictions on former spouses. In accordance with the above, the restrictions for the selection of members of the TS from the ranks of distinguished lawyers should be modified in the part of setting the limit of in-law kinship up to the second degree in order to be in the spirit of other laws, because the restrictions are foreseen for all types of kinship, and for in-law kinship here it is left unlimited, which in a country with a small number of inhabitants, it can be a problem. Bearing in mind the fact that the position of acting VDT is a transitional and temporary solution, the possibility of choosing a person outside the VDT and outside the prosecution organization is unjustifiably left, because the acting person should be a person who is in the institution and which procedurally and organizationally knows how to manage in a short period of eight months until the election of the VDT, and not to get acquainted with the system during a short mandate, which can make the work of that institution difficult," said the CGE.
The NGO says that in the end, this raises the question: where does so much distrust towards all prosecutors come from and does this mean that no one in the Prosecutor's Office is worth anything?
"If it is considered that the prosecutors in the VDT do not have the competence to temporarily perform the duties of the VDT, then it should be resolved in some other way. In a specific case, it is unclear why, for example, random selection/lots of acting officials are not used until the election for the full term of the new of the VDT. Although the management function is a matter of personal preference and desire, one should also consider the possibility of obligating the prosecutor to such a function if it is necessary for the functioning of the institutions (for example, to elect the oldest prosecutor). The proposed changes foresee that non-professional and negligent performance of the prosecutor's function should also be considered if the prosecutor "commits a serious disciplinary offense that caused significant damage to the reputation of the state prosecution". broad interpretation and reduced the possibility of abuse for possible settlements with ineligible prosecutors or evasion of responsibility, i.e. so that it could be properly used", said the CGO.
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