Competencies set too broadly, positions reserved for prosecutors and no security checks prescribed.
The question of the subject-matter jurisdiction of the Special Prosecutor’s Office (SPO) represents one of the key issues to be addressed and should be regulated in accordance with the principle of relieving the SPO of burden, namely the cases High State Prosecution Offices have the capacity of handling. It is more than obvious that this is the situation when it comes to corruption cases of lower degree of social danger, which are, by this Draft Law, assigned to the SPO.
The only explanation for such proposition is that the statistics on the work of the SPO is intended to be tampered with, by listing the cases of low and medium-profile corruption, and, thus, avoiding dealing with the cases that should be under jurisdiction of the Special Prosecutor’s Office.
The jurisdiction of SPO should, therefore, include all forms of organized crime, corruption offenses if committed by public officials, in accordance with the definition in the Law on Prevention of Conflict of Interest, or civil servants above a certain amount, on the principle of greater social danger. Such solutions are the most common in comparative practice when it comes to SPOs, and only such a solution can be an answer to the real problem of high-profile corruption and organized crime existing in Montenegro, to which all progress reports of the European Commission indicate.
However, if by the new Law on the SPO investigative tools of the SPO are adequately enhanced, as well as its administrative and technical capacities, the jurisdiction should not be placed too narrow either, and should include other criminal offenses which are especially difficult to prove.
By analyzing other provisions of the Draft Law on the Special State Prosecutor’s Office, an impression is gained that the intention of the proposers of this Law was to reform the SPO so that it remains the same as it was before. First of all, an inadequate solution is presented when it comes to the conditions for the election of the chief special prosecutor and special prosecutors, considering that only prosecutors are allowed to apply for these positions.
Modeled after the comparative practice, the selection of special prosecutors should be made from a wider base of experts with experience in criminal cases, such as investigative judges, police inspectors with experience in organized crime cases, distinguished lawyers, etc, and thus provide a diverse experience in the work of the prosecution and, in that manner, contribute to resolving complex cases.
Prosecutors and other employees of the SPO must also be subjected to prior and ongoing security checks and verifications of their financial status. It is the recommendation of IA for this to be the sole requirement for the appointment of the chief special prosecutor and special prosecutors. This is a standardized practice existent in the Croatian model, upon which the Government is creating a new model of our Special Prosecution. The necessity of the practice of security checks derives from the special sensitivity of the cases within the jurisdiction of the SPO. In this sense, it is necessary to prescribe by law the procedure and the role of the competent government authority performing the checks, including a provision by which the persons who apply for the position will provide their consent for carrying out these checks along with their applications. In the case of a negative opinion, an insight into the collected material, on the basis of which the opinion was given, should be provided, as well as the possibility for these persons to make a statement on the given opinion, in addition to other possibilities of judicial remedy.
Dina Bajramspahić
Public Policy Researcher
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