Chief Special Prosecutor Milivoje Katnić said that he will be a victim of discrimination if the Prosecutor's Council concludes that his mandate has been terminated due to the alleged fulfillment of the conditions for retirement.
Katnić stated this in a letter sent to the President of the Prosecutor's Council, Acting Supreme State Prosecutor Maja Jovanović. He also requests that members Sinisa Gazivoda and Steve Muk be excluded from decision-making regarding his questions.
We transmit the letter in its entirety:
"On February 14, 2022, I provided you with detailed notifications regarding my service status and insurance record, which represent a reference value, whether I have fulfilled the conditions for exercising the right to an old-age pension.
"In addition, I am addressing you with appreciation of the importance of Montenegro following the policy of the European Union, especially in the area of the rule of law.
"As the Chief Special Prosecutor of Montenegro, let me address you and point out the illegalities that could be carried out and which certain persons (apparently) intend to carry out in Montenegro, under the pretext of judicial reform. With no particular intention to protect my personal interest (although and a justified goal), I want to protect the interest of the rule of law.
"I am asking you to take certain measures through the mechanisms provided by the position you perform, in order to prevent the independence and impartiality of the prosecutor's office from further collapsing.
"Namely, as you know, in Montenegro last year, amendments were made to the Law on the State Prosecutor's Office, which changed the provisions on the composition of the Prosecutor's Council, the conditions for the termination of the prosecutor's office, the election of the acting Supreme State Prosecutor and others. The amendments entered into force, so I, like others, respect and apply them, but they were adopted and that's why I state this, contrary to the recommendations of the Venice Commission, which repeatedly indicated the possibility of political influence in the case of the application of the mentioned changes to the law.
"I emphasize, and it is more than obvious, that the goal of passing the law on amendments to the Law on the State Prosecutor's Office is solely my dismissal, initiated by those against whom I initiated criminal proceedings for serious criminal offenses. Reform of the judiciary by which the legislator and political parties tried to hide the real motive of the changes in the law was not realized, because if it was, not these provisions would have been changed, but numerous others, in order to enable the prosecutors to work unhindered in prosecuting the perpetrators of criminal offenses. of the Law on the State Prosecutor's Office aimed solely to politicize the State Prosecutor's Office and to create the conditions to terminate my mandate before its expiration.
"In addition, an initiative was submitted to the Constitutional Court for the review of the constitutionality of the Law on Amendments to the Law on the State Prosecutor's Office, as well as the Labor Law, but unfortunately the court did not consider these initiatives, even after eight months. Therefore, the state prosecutors (including me personally) are powerless to initiate any other procedure that could prevent such a violent change, so I am forced to address you in this way as acting Supreme State Prosecutor.
"Unfortunately, today we are in a situation where, contrary to the opinion of the Venice Commission, a new Prosecutor's Council was formed, the majority of which are distinguished lawyers who were elected by a simple majority in the Parliament of Montenegro.
"I will remind you, due to the continuity of the mission, that today the Prosecutorial Council has 11 members, of which four members are elected by the Conference of Prosecutors from among state prosecutors, four are distinguished lawyers - lawyers and one representative of an NGO, and a representative of the Ministry of Justice. It is important to note that one of the prominent lawyers is a lawyer against whom the Special State Prosecutor's Office, and at whose head I initiated and led the criminal proceedings, and whose involvement in the Prosecutor's Council is solely to carry out revenge for that criminal proceedings against me personally.
"Therefore, the intention of the aforementioned member of the Prosecutor's Council, that the Prosecutor's Council states the termination of my mandate, because I allegedly fulfilled the requirements for a pension. With this goal, it unbearably violates the regulations provided for the implementation of procedures regarding the verification of the fulfillment of the conditions for a pension, for any prosecutor, including me as the Chief Special Prosecutor This is done by conducting private activities in the direction of securing certain evidence in that direction.
If such a decision is reached, Montenegro will certainly follow the path of discrimination, violation of the right to work and violation of the independence of the prosecutorial function, which was also chosen by Hungary, but almost ten years ago, and which was decided by the Court of Justice in Luxembourg, as well as the European Court of human rights in Strasbourg, and the European Commission had clear positions on it.
"In this regard, I will first quote Article 9 of the Constitution of Montenegro "Confirmed and published international treaties and generally accepted rules of international law are an integral part of the internal legal order, they have primacy over domestic legislation and are directly applied when they regulate relations differently from internal legislation" .
"In this regard, I will briefly explain to you how my case is, unfortunately, similar to the events in Hungary in 2012. The basis on which the Prosecutorial Council intends to terminate my mandate, as Chief Special Prosecutor, and fulfill the conditions for retirement, on the basis of the benefited working experience.
"Namely, the right to the so-called benefited seniority (which seniority I achieved due to previous specific jobs I performed, and which is important, so I remind you, has not yet been established with certainty), is prescribed for employees, that is, persons engaged in or were engaged in particularly demanding and risky occupations and represents a form of positive measure by the legislator towards that category of persons, that if they wish, they can exercise their right to an old-age pension earlier than others.
"Such a positive measure, that is, a right, cannot at the same time represent an imperative basis for the termination of the employment relationship or the function of the Chief Special Prosecutor, earlier than it is the case with other employees, that is, state prosecutors, whose insurance years are calculated in accordance with general rules.
"As a confirmation of this position, the rights prescribed by the Constitution of Montenegro are relevant, which guarantee the right to work, the principle of the constitutionality of the prosecutorial function, as well as the principle of prohibition of any direct or indirect discrimination.
"The termination of the prosecutor's office based on the fulfillment of the conditions for a pension, counting the benefited length of service, would certainly violate the basic constitutional principles, namely: Article 8 (prohibition of discrimination), Article 62 (right to work), Article 135 paragraph 4 (permanence of the prosecutor's office) .
"In relation to international standards, I would like to point out, first of all, the directive of the European Union, EU2000/78 which says (although it is not formally an integral part of the internal law of Montenegro, it is very important, because Montenegro has to take over the legal acquis of the EU in order to become its member): "The aim of this directive is to set a general framework for combating discrimination based on religion, belief, disability, age or sexual orientation in relation to employment with the aim of introducing the principle of equal treatment in member states".
"This directive further defines what direct and indirect discrimination means, clarifying that making a difference among employees based on age is certainly a form of direct discrimination.
"So, if it happens that the Prosecutor's Council determines the termination of my mandate, as the Chief Special Prosecutor, based on the fulfillment of the conditions for a pension due to beneficial service, I will unequivocally be a victim of discrimination based on age. I will unfortunately be deprived of my position based on my right (the right to get my pension earlier), which I don't want to use.
"Just now the European Court of Justice in Luxembourg referred to this directive when it indicated that the legislative changes in Hungary (reducing the retirement age of judges) constitute a violation of the right to equality. (Judgment of the European Court of Justice: European Commission v. Hungary – C286/12 from November 06, 2012).
"If perhaps the legal acquis of the European Union still formally obliges us, I must also point to other international regulations that state that the establishment of different age limits for mandatory retirement is a violation of rights.
"The explanation given with the recommendation of the Committee of Ministers of the Council of Europe on judges CM/Rec (2010)12 states: "Early retirement of a judge must be possible only on the basis of the judge's request or for medical reasons". Paragraph 50 page 15).
"Therefore, as the standards of the Council of Europe relating to judges are also applicable to state prosecutors (the Venice Commission has pointed out this several times), the termination of my mandate could only be established at my request.
"Also, the universal Charter on Judges adopted by the International Association of Judges on November 17, 1999 states that: "Any change in the mandatory retirement age must not have a retroactive effect".
"Therefore, it is clear that the termination of my mandate in this particular case would represent discrimination and would be contrary to all the principles of the independence of the judiciary, as well as the European Convention for the Protection of Human Rights and Fundamental Freedoms.
"That such actions of legislators represent a form of political influence, the Commissioner for Human Rights in the Council of Europe pointed out, precisely when commenting on the case of Hungary from 2012. "The Commissioner took into account the steps taken in Hungary that may violate the independence of the judiciary. for the retirement of judges, more than 200 new judges must be re-elected. In addition, the Commissioner considers it unacceptable that, as a result of the new law, the mandate of the president of the supreme court will be terminated before the end of the term for which he was elected. The judiciary must be protected from inadmissible political interference."
"In the case of Hungary, the European Court of Human Rights also reacted by passing the judgment Baka v. Hungary from June 23.06.2016, 172, in which it was stated, among other things, that the legal reforms introduced in Hungary, on the basis of which the applicant's term of office as the president of the court was shortened, defeated the principle of the independence of the judiciary (Paragraphs 173, 174, XNUMX of the judgment).
"I want to point out once again that through the protection of personal interest, I want to protect the general interest as well (it's a shame that it's about me personally), so I want to point out that such decisions and findings, that simple changes to the law can influence the staffing policy of the prosecutor's office , and that someone's mandate can be shortened just like that, has a discouraging effect on all state prosecutors, because they will no longer be able to make decisions impartially, but will make decisions under the influence of the political majority (today one, tomorrow another), in order to ensure the smooth performance of their functions .
"Therefore, Honorable Acting Supreme State Prosecutor, Ms. Jovanović, I ask you to consider everything, present it to the Prosecutor's Council, when the time comes, and that in accordance with the Rules of Procedure of the Prosecutor's Council, i.e. Article 33 of those Rules of Procedure, the Prosecutor's Council from deciding in regarding my questions, exclude two members of the Prosecutor's Council, Mr. Siniša Gazivoda, the reasons for which I have already discussed, and the member of the Prosecutor's Council, Mr. Steve Muk, who, during the public hearing, regarding the draft of prosecutorial laws, spoke then the Acting Supreme State Prosecutor, Ivica Stanković, who outlined the reality that changes to those laws were made solely for the sake of my elimination, stated: "so what, if it's personal, he deserves it because he doesn't respond to the calls of the Assembly and parliamentary bodies and non-governmental organizations, and if he responds, he says what he likes".
"It is true that I say what pleases me and what is right at the same time, what I am doing this time and what I am proud of, but these views of his are circumstances that raise doubts about his impartiality," Katnić's letter states.
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