Year: 2015

-Too many zeroes for progress-

The sentence „Montenegro must show some measurable results in fight against coruption“ is being repeated in the Montenegrin political discourse by the representatives of the European institutions, politicians, civil society, almost like a mantra. And the universal answer to all questions and all dilemmas is that there are no any, because there is no political will in the state institutions to deal with this phenomenon. What’s hiding behind these platitudes?

Recently I have participated with my colleagues from the region in the workshop on strategic forecasting in Berlin, organized by the German Council on Foreign Relations (DGAP). Workshop aimed to offer possible scenarios and answer question of where the countries of the Western Balkans will be in ten years. The conclusion was a little surprising, and, according to it, up to 2025 nothing important is going to change, neither in Montenegro, which, popularly said, is the most advanced in implementing reforms, nor in the other countries. Potential candidates for the EU membership will continue to simulate reforms. As a result of such policy, integration of these countries won’t be the European Union’s priority. Without the framework of conditionality policy, societies and states are going to stagnate.

This pessimistic scenario is a result of the apathy of the region, but it also corresponds to the current pace of the process of democratization in Montenegro. During the last year, the overall progress havs been made in negotiations for EU membership, but in the field of fight against corruption, the key chapter, no significant progress has been recorded. Or, according to the European Commission, “corruption remains prevalent in many areas and continues to be a serious problem, requiring effective implementation of deep and lasting reforms”. Without concrete results in repressing this occurrence, negotiations are being stopped. That is the essence of the ‘overall balance’ clause which the European Commission has already foreshadowed in this year’s Montenegro Progress Report, and which will be applied if the current trend of “fight against corruption” continues.

What was the total score of concrete results? There’s still no final decision for high-level corruption and there is no established responsibility for violation of the Law and falsification of data on public procurement that State Audit Institution indicates in their reports. During the last year there hasn’t been recorded any new case of temporary seized property acquired through criminal activity, and hasn’t been any permanent confiscation so far. Too many zeros and a lack of will.

What is the extent of the problem? Every fourth citizen of Montenegro says that s/he was asked for a bribe by acivil servant . Only every second citizen would report corruption, because s/he has no confidence in the institutions of the system, meaning s/he doesn’t believe that the institutions would act upon the received complaint. Transparency International, which ‘measures‘ the perception of corruption, ranked Montenegro as 76th out of 175 countries of the world, which is nine places worse compared to 2013.

And what has been done during the last year? A whole set of anti-corruption laws has been prepared, which also corresponds to current pace of reforms. The greatest achievements have been achieved in the field of harmonization of legislation with the EU acquis, but there were some problems in its implementation. The existing institutions for fight against corruption are not strong enough and don’t have enough capacity, jurisdiction or autonomy. Also, the problem is that the competent authorities see 2015 as a transitional year during which all the capacities will be focused on preparing strategic measures and institutionalization of new bodies. And so the year by year is slipping away.

What should be the first measurable results in 2015? It’s a wide choice, but let’s mention some of the tasks. Group of States against Corruption (GRECO) in their report published this month demands resolving „audio-recording affair“ and other misuse of public resources for the purpose of elections. The European Parliament in its Resolution on Montenegro states that the country’s policy regarding The Aluminum Plant is contrary to the rules of the state aid. The European Commission asks for completion of the processes on potential misuses of public office. The Americans expect the final answer to the question whether there was corruption in the case of privatisation of „Telekom“. The response to all this would be a hint of overcoming the existing lack of will.

Otherwise, there is no room for „feeding an easy optimism“ about success of the negotiation, emphasized by Montenegrin officials. Citizens don’t need and don’t care about sixteen opened chapters, quotas and measures, numbers and ‘checked boxes’ – the change of social awareness and culture is what must be achieved. It is necessary to provide judicial independence, depoliticisation of the administration and consistent application of legal norms. That is the only way to regain confidence in institutions and to improve the quality of life of the citizens.

Jovana Marović, PhD
Research Coordinator and member of the Working Group for Chapter 23

Text has been originally published in the ,,Forum” section of daily “Vijesti”

-and other topical questions on reform of the Special Prosecutor’s Office

It would not be a good scenario if the President of the Supreme Court “installs” her candidate for the Chief Special Prosecutor, as speculated by the media, but it also would not be good to be elected by the High State Prosecutor, at his own discretion. The appointment of the Chief Special Prosecutor requires criteria for the objective assessment of the candidates and professional achievements as recommendation, but any of the prerequisites for the right choice have not been set up yet.

Although the public call as an election procedure leaves room for manipulations, it cannot be questioned, because there is no alternative. It is the only chance for persons that fulfill prescribed requirements to formally express interest in conducting responsible function and to be publicly and transparently compared. The alternative to the public call would be discretion in decision-making process and complete concentration of power in the hands of the decision-makers, and we already have enough bad experience with that. Therefore, the question is not if the Chief Special Prosecutor and special prosecutors will be elected based on the publiccall , but if the election criteria are being set up properly and which procedure will be used to elect between those who fulfilled the requirements. And that’s where the problem is.

Namely, after applying for the public call, the Draft Law on Special Prosecution anticipates some kind of evaluation, but without “giving marks” and assigning points for criteria. Put differently, Prosecutorial Council is going to “evaluate” candidates qualitatively, based on criteria and sub-criteria and will not be able to determine a final score for each candidate. According to the Draft Law, Prosecutorial Council makes the decision based on the opinion of the institution which delegates the candidate. The Draft Law does not prescribe how exactly the decision is being made or if there is a ranking list to be made.

If there were more detailed and more specific criteria, referred to skills and capabilities significant for the work of the Chief Special Prosecutor, which currently is not the case, it would not be important if the High State Prosecutor would suggest to the Prosecutorial Council a candidate from the list of those who fulfilled requirements, or if the Prosecutorial Council would directly appoint the candidate with the best score.

During the public discussion on the Draft Law on Special Prosecution, Institute Alternative advocated the solution that the Chief Special Prosecutor and special prosecutors are not being elected among the state prosecutors exclusively, because the State Prosecutor’s Office must open itself to diversity of experiences and approaches, in order to be able to response to the challenges. Good thing is that the Government has accepted this proposal and enabled judges and lawyers to apply for these positions, as well. There is no doubt that the special prosecutors have the most difficult tasks. It is their work or inactivity in the following period that will decide if the negotiations will progress or not. It would be good to use that exact fact as a motivation for the interested candidates to apply.

That brings us to the responsibility issue. In public, there is a trend towards overly exaggerating the role of High State Prosecutor. It is not only impossible that the High State Prosecutor does everything, knows everything, decides everything and is responsible for everything, but it is also dysfunctional, because it does not encourage the others to contribute. That way, multiple damage is being made to the State Prosecutor’s Office itself, by creating a whole bunch of irresponsible officials, hiding behind the High State Prosecutor, regularly occupying positions.

This is precisely why the more frequent public appearance of the state prosecutors recently, talking about their cases and their work, is commendable. The key for the better results of the State Prosecutor’s Office is to insist on responsibility of each individual and focus on objectively measuring accomplishments of each prosecutor or manager and individual responsibility. Until now, the practise in the work of the State Prosecutor’s Office has been to constantly insist on a subordination (of lower to higher prosecutors) and Constitutional „uniqueness“ of that state body. Interpreted like this, the role of the state prosecutor is being reduced to the puppet role, especially when the prosecutors are aware their advancement depends on their „obedience“ and patience. Subordination should be seen as a legal possibility of regulation, not a regular manner of functioning, particularly when it comes to Special Prosecutor’s Office, where specialization must have priority over hierarchy. Bearing in mind the importance of achieving results in the field of fight against corruption and organized crime, the law should stipulate that the Chief Special Prosecutor corresponds and submits the report not only to High State Prosecutor and Prosecutorial Council, but also to the Parliament and competent committee.

Also, one should have in mind that the new Law on State Prosecutor’s Office will additionally divide management of the State Prosecutor’s Office between High State Prosecutor, heads of prosecution (and Chief Special Prosecutor is one of them) and Prosecutorial Council. Responsibilities of the Prosecutorial Council, which makes important decisions with long-term consequences, are not spoken about enough. Prosecutorial Council, as collective body for managing the State Prosecutor’s Office, among other things, will be determining a number of state prosecutors at each prosecutor’s office, evaluate prosecutors and managers, deciding on their advancement and disciplinary responsibility, taking care of their education, considering complaints about their work, providing use of judicial information system, etc. Even though the High State Prosecutor himself presides over this state body, he can be overruled by other member, but that should not stop him from initiating reform processes and submitting proposals for which he will not always have the necessary majority.

Dina Bajramspahić
Public Policy Researcher

Text originally published in the ,,Forum” section of the daily Vijesti