The Government Working Group for preparation of amendments on Criminal Code Procedure was formed in March 2013 and it is justified that they were working for so long on this the most important legal document in the field of criminal justice. The Government submitted the Proposal Law to the Parliament on 11 May this year and imposed expectations to be adopted in shortened procedure, due to the respect of deadlines envisaged within the Chapter 23.
Since there is no more significant legal instrument for the fight against criminal, especially corruption and organised crime, a daily topical theme, we have referred an initiative to the Committee on Political System, Judiciary and Administration to organise a public hearing with all interested parties. The public hearing was attended by over twenty persons, representatives of Working group, competent state authorities, academic community, NGO representatives and MPs of the Committee. This control hearing represents an example for other committees how to organise an expert discussion with different and conflicting attitudes, devoid of political views, all with the aim to improve the law. It turned out that there are number of controversial issues, mostly related to the dilemma whether the balance between the necessary efficiency of investigations and respect for human rights was established.
We have also referred a criticism to the proposer of the law due to a conclusion that “the existing concept of criminal procedure should not be changed”, without giving any argument or explanation. It raises the question on the basis of which parameters they came to that conclusion and why all the problems in cooperation between the police and the prosecution, disorientation of the prosecutors with their new role, an evident lack of results it the field of corruption and organised crime and a reduced number of charges were completely ignored.
We consider that this concept should be boldly questioned, not necessarily in order to be changed, but to thoroughly take into account all the Montenegrin specifics, due to which this normally successful concept in most European countries, has not yet started to work in our country.
Regarding that, a tendency to increase the powers of the state prosecutors and thus strengthen their role of head of investigation, to the detriment of the powers of investigative judges is particularly noticeable in the Law Proposal. While this may be a natural next step in the future, former practice has shown that state prosecutors are not yet sufficiently prepared to fulfill obligations prescribed under their competence by the applicable laws.
Bearing in mind problems in cooperation between the Police Administration and The Prosecutor’s Office, the Institute alternative has suggested on the public hearing, among other things, that the most important provisions of the Agreement on joint work of the State Prosecution and the Ministry of Interior – Police Administration during the preliminary investigation and criminal proceedings should be incorporated in the Criminal Code Procedure. The European Commission has recognised the justification of our request, which is explicitly stated on the 42nd page of the Progress Report on Montenegro, adopted by the European Commission, but the Government refuses to do so. Even though the provisions of the Agreement are mostly technical and the law matter, the negative practice has shown that there is a need for detailed regulation of the steps, accountability and obligations of both sides and for resolving contentious issues by the Law. It is ironic for the state authorities to sign an Agreement on joint work which is already imposed by the Law, but it is even more ironic not to cooperate for five years and for it to be admitted by the Government’s senior officials.
When it comes to secret surveillance measures (SSM), IA in principle is not against expanding the possibilities of SSM, because we believe that the aim is preventing the most serious offenses, but we are obligated to point out that the state authorities have not made an effort to bring more accountability and transparency into this area.
So we called the MPs not to vote for the adoption of the Law Proposal until the police, prosecution and the courts publicly announce detailed results of the application of the SSM since the adoption of the CPC in 2010 – which they refused to do in previous years. We have also requested to determine the officials responsible for numerous exclusions of the evidence obtained by the SSM from the court records, because the provisions of the CCP were violated.
Additionally, we have a dilemma about the extension of the period of SSM from “a maximum of 7 months” to “no longer than 18 months”, due to the lack of capacity of the Police Administration to apply simultaneously as many measures as requested. The European Commission’s expert, Mauricio Varaneze, in his Report from 2013 states that the Department for Special Checks has declined 50% of the requests of the Department for Combating Narcotics, because they have been applying measures for the cases of other police departments. Implementation of measures in accordance with the new law would further reduce possibilities for initiating more cases, so this solution should be considered in terms of efficiency.
Given the particular sensitivity of criminal charges for criminal offenses of corruption, we believe that it is necessary to introduce the control of dismissals of these criminal charges by an external, independent body, i.e. court, and not directly High State Prosecutor’s Office. Since persons who report these crimes are exposing themselves to the possible serious repercussions, it is necessary to double check their criminal charges.
Also, it would be important to create a system for the control of dismissal of anonymous criminal charges, because in that case, there is no one to file a complaint.
These and many other comments we have submitted to the MPs, and during the public hearing all the participants, governmental and non-governmental, have recognised the possibilities for improving this Law, which the MPs should turn into amendments.
Public Policy Researcher
Text originally published in the ,,Forum” of daily Vijesti