The constitutional amendments proposed by the Government, in the part relating to the Prosecutorial Council, do not resolve the key conflict of interest and the inappropriate concentration of power in the function of the Supreme State Prosecutor, who by virtue of office presides over the Prosecutorial Council. At the same time, by introducing a qualified majority, they unjustifiably make it more difficult to elect the non-prosecutorial members of the Prosecutorial Council in Parliament.
The Government proposes introducing a two-thirds, or alternatively a three-fifths, majority vote of Members of Parliament as a requirement for the election of members of the Prosecutorial Council, thereby creating yet another legal – and a significant political – obstacle. This could foreseeably result in the Prosecutorial Council remaining for months or even years without members who are not state prosecutors. Parliament’s previous experience in attempting to secure such majorities serves as a warning. Our proposal was that members from among distinguished legal professionals be elected by an absolute (simple majority of all MPs) majority in Parliament, as opposed to the currently sufficient ordinary majority (a majority of MPs present).
The Government’s proposal does not provide justification for why the Judicial Council should be chaired by a member who is not a judge, while the Prosecutorial Council is chaired by the Supreme State Prosecutor.
The Government’s proposals do not ensure a constitutional mandate for the Prosecutorial Council to exercise oversight over the State Prosecutor’s Office. At the time of drafting the Constitution, the Venice Commission recommended that its constitutional function should also include “supervising that prosecutorial activity is carried out in accordance with the principle of legality.”
The proposed constitutional amendments do not alter the composition of the Prosecutorial Council, as might be inferred from some media headlines, because the composition of the Prosecutorial Council is not prescribed in the Constitution. Rather, the Government’s proposal transposes into the Constitution the composition of the Prosecutorial Council provided for by the 2024 Law, while definitively abandoning the composition prescribed by the 2021 amendments — amendments that enabled the beginning of reform within the State Prosecutor’s Office.
The Constitution of Montenegro provides that the Supreme State Prosecutor chairs the Prosecutorial Council, except in disciplinary proceedings. This solution was introduced into the Constitution by the 2013 amendments. This arrangement — whereby the Supreme State Prosecutor simultaneously serves as President of the Prosecutorial Council — creates an evident conflict of interest, leads to an inappropriate concentration of power, and consequently limits the Prosecutorial Council’s ability to effectively oversee the work of the prosecution service.
It is not possible for the Supreme State Prosecutor to be simultaneously responsible “for the performance of the duties of the State Prosecutor’s Office and obliged to undertake measures and actions to ensure the efficient and lawful performance of those duties,” while at the same time, as President of the Prosecutorial Council, requesting from himself, from the heads of offices, and from state prosecutors who are hierarchically subordinate to him — and for whose lawful work he is accountable — answers to questions, as well as the submission of information and reports to the Prosecutorial Council.
The fundamental incompatibility between the functions of Supreme State Prosecutor and President of the Prosecutorial Council was confirmed when certain positive oversight practices were abolished or rendered meaningless following the appointment of the Supreme State Prosecutor in January 2024.
We recall that the Venice Commission, in its 2007 Opinion, in the part relating to the Judicial Council, stated that “it would be preferable, instead of entrusting the President of the Supreme Court ex officio with chairing the Judicial Council, to provide that the President be elected by the Judicial Council from among distinguished lawyers, in order to ensure the necessary links between the judiciary and society and to avoid the risk of ‘autocratic management’ of the judiciary.”
Although this recommendation was adopted with regard to the Judicial Council, it was not applied to the Prosecutorial Council, even though, logically, given that courts are independent and the prosecution service is autonomous, it should have been adopted first in the case of the Prosecutorial Council.
The Venice Commission’s opinion also emphasizes that “there is a risk that, as members of the prosecutorial council, prosecutors would vote as a bloc, following instructions (formal or informal) from their superiors. A prosecutorial council lacking a strong and genuinely independent component will not be an effective check on the powers of senior prosecutors, in particular the chief prosecutor.”
Unfortunately, the above concern has been confirmed in practice through the unity and hierarchical discipline of prosecutor members of the Prosecutorial Council, leading to corporatism within the prosecutorial organization. Corporatism within the State Prosecutor’s Office represents a pattern in which state prosecutors develop a closed decision-making system, strong internal solidarity, and limited external oversight. Although the autonomy of the prosecution service is essential for protection against political influence, international standards emphasize that it must be balanced with clear mechanisms of accountability, transparency, and supervision. Otherwise, there is a risk that the autonomy of the State Prosecutor’s Office and the professional independence of prosecutors may turn into professional isolation and mutual protection from accountability.
In this regard, it is necessary to consider, instead of constitutionally prescribing the structure of the Prosecutorial Council as set out in the current Law on the State Prosecutor’s Office, providing through constitutional amendments for an absolute majority requirement for the election of members of the Prosecutorial Council from among distinguished legal professionals and representatives of non-governmental organizations. From our reading of the Venice Commission’s recommendations, we understand that the composition of the Prosecutorial Council was not problematic prior to the 2024 amendments; rather, the issue was that Parliament could elect a member of the Prosecutorial Council by a simple majority of votes of Members of Parliament.
Stevo Muk
President of the Managing Board
*AI-assisted translation