Lawyers are not allowed to defend ministries: ASK finds public interest is being jeopardized, indicating corruption

The Agency for the Prevention of Corruption has determined that there is a threat to the public interest, which indicates the existence of corruption, in cases where lawyers represent ministries before the courts.

The opinion followed a procedure initiated by ASK ex officio, based on media inquiries when "Vijesti" announced that the Minister of Economic Development Nick Djelosaj signed a contract by which he engaged the law firm of the husband of the now former state secretary in that department for legal representation Ana Raičević.

ASK recommended to the ministry that the representation procedure before courts and state bodies be carried out with full respect for the positive legal regulations governing the matter in question, in a manner that will not jeopardize the integrity of institutions and lead to a violation of ethical standards and principles.

It obliged the Ministry of Economic Development, the Ministry of Maritime Affairs and the Ministry of Transport to submit a report on the actions taken to that institution within 60 days of receiving the opinion of the ASK.

These three ministries have hired lawyers for representation in court proceedings over the past two years.

Upon ASK's request to all government departments, only the Ministry of Energy and Mining failed to respond, which is why misdemeanor proceedings were initiated before the Misdemeanor Court in Podgorica.

"It is established that the representation of state bodies that do not have the status of a legal entity - ministries, before the courts, by lawyers was carried out contrary to legal regulations, which led to a threat to the public interest, which indicates the existence of corruption within the meaning of Article 4, paragraph 3, item 2 and in connection with Article 2 of the Law on the Prevention of Corruption," reads the opinion of the KAS signed by the director Kristina Braletić.

It was concluded that most ministries have engaged law firms or lawyers to provide expert opinions, and they believe that the legal provision relating to their engagement by state bodies that do not have the status of a legal entity should be considered and specified. This, according to ASK, would ensure adequate implementation of the law, but also avoid unnecessary spending of money from the budget.

At the end of December last year, ASK requested all ministries to submit statements regarding whether they had hired a law firm/attorney for the specified period of time in 2024 and 2025 to represent them before the courts, as well as the amount of budget funds spent for that purpose.

During the investigation, ASK requested the opinion of the Protector of Property and Legal Interests in February of this year. In the letter, the Protector stated a position that, they claim, stems exclusively from legal regulations - that a state body is not and cannot be authorized to hire lawyers, or a law firm, for the needs of its work process, both for the needs of representation before the courts and in the case of consulting services.

"In his statement, the Protector explains that in administrative proceedings, a state body has party legitimacy, or party capacity, which is different from procedural capacity. Namely, procedural capacity is equated with business capacity, and a person without procedural capacity is represented by a legal protector, whereby an authority that does not have the status of a legal entity in an administrative dispute performs actions in the procedure through a representative authorized by regulation," the ASK opinion states.

According to the Protector, state bodies do not have the right to engage a lawyer to represent, or consult, the fact of the existence of their legal representative - the Protector, given that they do not have the status of a legal entity, and therefore do not have the procedural capacity necessary to contract and assume obligations, in which direction they can only be authorized by the Government.

ASK also submitted a request regarding this issue to the Supreme Court, which responded that it does not provide opinions in proceedings before other state bodies, because any opinion on a specific legal issue made by them may later be subject to review before the same court in proceedings.

"Vijesti" announced at the beginning of December last year that ASK would investigate whether Đeljošaj jeopardized the public interest by signing a contract with AOD "Tripković i Raičević" in January 2024, where partners are Ivan Raičević, the husband of the then secretary of the economic development department, and the state secretary at the Ministry of Maritime Affairs. Pavle Tripković.

Đeljoš's department then claimed that they had not broken the law and that the Supreme Court had clearly confirmed in several rulings that the court is otherwise obliged to take into account ex officio whether someone is authorized to represent them and that it would not otherwise allow someone to represent someone who is not entitled to do so.

"We do not have the status of a legal entity, but we have the status of a party in the proceedings who, by law, can be represented by themselves or through an attorney in accordance with the Law on Civil Procedure. There is no regulation that limits the possibility of being represented by a lawyer, so the Supreme Court gave the opinion that all actions taken by the lawyer have the same effect as if they were taken by us. The Law on State Property has not been violated because the Protector is authorized to represent state bodies and public services in procedures related to the protection of state property owned by Montenegro, and in administrative disputes, the court decides on the legality of an administrative act that determines or affects the rights, obligations and legal interests of a natural or legal person," the Ministry of Economic Development claimed.

A similar statement was received by ASK from the Ministry of Education, Science and Innovation, stating that there is no regulation in Montenegrin legislation prohibiting a government department from concluding legal transactions with lawyers in situations where they are a party to the proceedings.