The Judicial and Prosecutorial Council should start applying the regulations flawlessly and that this should be clearly seen, said the executive director of the Action for Human Rights (HRA) Tea Gorjanc Prelevic at the conference "Selection, promotion, evaluation, protection of independence or autonomy and determination of professional responsibility of judges and state prosecutors in Montenegro in 2022."
HRA, with the support of the Embassy of the Netherlands in Belgrade, presented reports, dealing with the analysis of the work of the Judicial and Prosecutorial Council, from January to September of this year.
Gorjanc Prelević pointed out that there is progress in the work of both councils, but that there is still a lack of valid explanations for the decisions they make, that it is necessary to speed up work on complaints about the legality of work, but also that a more objective evaluation and determination of the responsibilities of both judges and prosecutors is necessary. HRA announced.
In the report on the work of the Prosecutor's Council, it is pointed out that the decisions made by that body are still not sufficiently justified: "This circumstance does not make its work transparent, it does not improve trust in its work and in the state prosecutor's office." The council must change this kind of practice," the report, which was prepared by lawyer Veselin Radulović in cooperation with HRA, points out.
The recommendation from last year was repeated that the Government should urgently start work on new and more complete amendments to the Law on the State Prosecutor's Office, in order to ensure a more objective evaluation and determination of the responsibility of state prosecutors.
As noted in the report on the work of that body, prepared by HRA lawyer Marija Vesković, for most of this year the Judicial Council worked with an incomplete composition, contested legitimacy and on the verge of a quorum, because the Assembly has not been able to elect four new members from among distinguished lawyers.
It is also reminded that the Constitutional Court has not yet decided on the proposal of the Judicial Council and the initiative of 11 judges to evaluate the constitutionality of Art. 17 of the Law on Pension and Disability Insurance, which prescribes the conditions for the old-age pension of judges, and the proposal of the Supreme Court for the evaluation of the constitutionality of the provisions of the amended Law on the State Prosecutor's Office, which, among other things, refer to the termination of the office of state prosecutors. Also, due to the ineffective work of the Assembly, reports note, that court does not have a quorum to make decisions either, so these initiatives are still pending.
The Prosecutor's Office will seriously consider the recommendations
Acting Supreme State Prosecutor's Office Maja Jovanović pointed out at the conference that the prosecution will seriously consider the report on the work of the Prosecutorial Council, characterizing it as a critical and benevolent review of their work.
She also emphasized that the Prosecutor's Council will begin to better explain its decisions and that she agrees that the Law on the Prosecutor's Office needs to be amended, but that this is not within their jurisdiction.
The representative of the Ministry of Justice, Bojan Božović, said that the ministry is aware of the need for changes to the Law and that the first draft can be expected at the beginning of next year, and that in a few months the evaluation of the work of the Prosecutor's Council will be much more positive.
He also pointed out that changes to the Constitution will be proposed in 2023, so that the Minister of Justice would no longer be a member of the Judicial Council.
A member of the Judicial Council, Dobrica Šljivančanin, pointed out that he agreed that the Minister of Justice should not be in that Council, and that the amendments to the Law on the Judicial Council and Judges, which are now in the form of a draft, should also resolve other vagueness of the current regulation, it was announced from HRA.
Aleksandar Momirov, senior advisor for the rule of law at the Embassy of the Netherlands, pointed out that the backbone of their activities in Montenegro is strengthening the rule of law, and that in this sense it is necessary to follow the recommendations of the Venice Commission, the European Commission and the Anti-Corruption Body of the Council of Europe (GREKO).
The program manager for the rule of law in the EU Delegation, Đanandrea Vila, reminded that this year's report highlighted the limited progress of Montenegro in the field of justice, and emphasized that, apart from the incomplete or acting situations in which the authorities in the field of the rule of law find themselves, it is necessary to ensure EU standards for both Councils, and agreed that their decisions must be better explained.
The reports point out, as stated by the HRA, that the Disciplinary Council of the Judicial Council did not sanction judges for not providing data on assets and income, unlike the Disciplinary Council of the Prosecutorial Council, which last year sanctioned the state prosecutor for such a disciplinary offense by reducing his salary. in the amount of 20 percent for three months.
The director of the Agency for the Prevention of Corruption (ASK), Jelena Perović, pointed out that amendments to the Law on the Prevention of Corruption are in progress, which would leave a deadline of one month for officials to supplement reports on assets and income that are not accurate.
"It is rigorous that non-declaration of assets is a more serious disciplinary offense for judges and prosecutors," she stressed.
However, the report points out that even the system of determining the disciplinary responsibility of state prosecutors for disciplinary offenses related to the performance of the prosecutor's function and the handling of specific cases has not yet shown adequate results.
Only one prosecutor was punished and that with the mildest sanction, even though his responsibility for the statute of limitations of criminal prosecution was established in as many as 13 cases, which is why the HRA believes that criminal responsibility should have been examined as well.
The report also emphasized that the decisions of the Judicial Council on the selection and promotion of judges are still not sufficiently explained. "The European Commission has been criticizing insufficiently explained decisions of the Judicial Council in its reports on Montenegro for seven years now," Vesković pointed out.
"The system of evaluating judges is not objective. The rule for determining the evaluation, prescribed by law, is unfair and illogical, because it allows the advancement of judges who have unsatisfactory quality and quantity of work, as well as those who have an unlimited number of violations of the Code of Ethics," the HRA statement added. .
All state prosecutors were once again given only excellent marks during the evaluation.
"On September 15, 2022, the Prosecutor's Council adopted changes to the Evaluation Rules, which will enter into force on October 7, 2022, and which should provide for changes in the evaluation method. However, for complete progress in evaluating the quality of work of state prosecutors, it is necessary to amend the Law on To the State Prosecutor's Office, which limits the assessment of the quality of work only to the number of cases in progress, the number of completed cases, confirmed indictments, passed convictions and accepted appeals, and also contains an inadequate rule for determining the assessment," the HRA added in a statement.
Director of the Center for Civil Liberties (CEGAS), Marija Popović Kalezić, assessed that disciplinary responsibility, code of ethics and evaluation should be linked, and that these things must influence each other, so that the work of both Councils would be better.
The report reminds that the new composition of the Prosecutor's Council still did not deal with the problem of rejecting more than 90 percent of criminal reports from previous years due to the statute of limitations for criminal prosecution, and only one state prosecutor was disciplined for that.
"The bad practice of paying additional compensation to members of both Councils for work in commissions continued, even though they already receive compensation for work in TS and SS, and regardless of actual performance, which was questioned by the European Commission.
Representatives of the executive power and the president of the state made inappropriate statements that put pressure on the work and undermined the integrity of both the prosecutor's office and the judiciary. It is emphasized that the Judicial Council and the Prosecutor's Council did not react to all such threats to independence, and that they should react more consistently in the future," the statement added.
Improvisation or tied hands
TS members, the report notes, did not use the new legal authority that the three of them can schedule a council session.
"The Prosecutor's Council did not readily meet its obligations and responsibilities and resorted to unnecessary improvisations at the beginning of its work," the HRA report points out.
It is clarified that the acting Supreme State Prosecutor was not immediately appointed at the constitutive session, in accordance with the law. After the public call and submission of applications, the Prosecutor's Council did not choose the person who submitted the application, but the state prosecutor who did not apply for the public call.
The decisions on the termination of the prosecutor's office due to the fulfillment of the conditions for exercising the right to an old-age pension were made contrary to the legal procedure, because they were based on the notifications of the Pension and Disability Insurance Fund, instead of the notifications of the heads of the state prosecutor's offices, the HRA points out.
"The decisions do not have valid explanations and reasons from which it could be concluded that the law was correctly applied in any case. The public is denied access to the data on which decisions are based," the report added.
The HRA states that the previous Chief Special Prosecutor (GST) "ceased his position in a disputed manner" due to fulfilling the conditions for an old-age pension, although "there were grounds to initiate at least disciplinary proceedings against him and to dismiss him beforehand", which is , as they add from HRA, that NGO initiated in a timely manner.
"The way the decision was made and the lack of explanation indicate that the goal was to replace the GST due to criticism of its work," said the organization.
Some members of the Prosecutor's Council disagreed with these assessments, noting that there should have been fewer value judgments in the document.
"I expected more comparative practices and solutions in accordance with international standards," pointed out the member of the Prosecutor's Council Siniša Gazivoda.
His colleague Stevo Muk also had objections to the report, the HRA added, stating that the Prosecutorial Council acted correctly in relation to the termination of the prosecutors' office, and that it is positive that a high level of agreement was reached on the selection of VDT and GST.
He added that the Prosecutor's Council suggested to the VDT to pass a binding instruction so that the prosecutors would better justify their decisions, so that it would not happen that citizens complain to that Council about something that is not their competence.
"Our hands are very much tied by the current law, it needs to be changed urgently," Muk pointed out.
Something similar was pointed out by the until recently member of the Judicial Council, judge Ana Perović Vojinović, stating that complaints to that Council often refer to dissatisfaction with the court's decision.
"The Rules of Procedure must elaborate on what is the basis for filing a complaint," she stated.
The Deputy Protector of Property and Legal Interests Snezana Armenko said that the prosecutors are complaining to the Protector about the work of the Commission for the Code of Ethics of State Prosecutors.
She added that more attention should be paid to preserving the independence and integrity of judges and prosecutors.
The member of the Prosecutor's Council, Filip Jovović, said that by the end of the year, all the cases that are in the work of the Commission for the Code of Ethics will be completed, and that changes to the Rules of Procedure related to the work of that Commission are also planned.
Vesković added that the draft Law on the Judicial Council and Judges plans to introduce a legal remedy for all violations of the Code of Ethics.
No reaction to the illegal allocation of apartments
The report also points out that nothing has been done since last year, when the decisions of the Government Commission on the illegal allocation of apartments to judges and prosecutors were published.
The protector of property and legal interests did not initiate proceedings to determine the nullity of the contract on the allocation of apartments and financial assistance to state prosecutors and judges, nor did the state prosecution in any case check whether a criminal offense had been committed, the HRA points out.
A significant number of judges and state prosecutors who received help from the Government already had their housing issue adequately resolved, the NGO reminds, reminding that the adoption of some illegal decisions to solve the housing needs of state prosecutors was initiated by the then Prosecutorial Council headed by the president, who was and the Supreme State Prosecutor.
"This kind of practice indicates a well-founded suspicion that these are criminal acts with elements of corruption," says the HRA report.
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