Institute Alternative has delivered Comments to the Draft Law on State Prosecution and Special State Prosecution to the members of both Anti-corruption Committee and Committee on Political System, Judiciary and Administration while pointing out the number of worrying solutions.
We consider it to be unacceptable that during the public debates, important issues in judicial reform are considered only from the narrow political angles, shortening the procedure, instead of undertaking serious efforts to formulate systemic solutions which would produce results and on which basis the trust in the judiciary could be restored. In relation to that, it is especially worrying that the status of the Special Prosecution would be even lower than compare to the status while it was the part of the Department of chief State Prosecution as well as the continuous disregard to the needs for its specialization, autonomy and efficiency.
In the same time, while there is a vigorous debate about who will be the most powerful figure in the State Prosecution – Chief State Prosecution, Prosecutorial Council or the Minister of Justice; serious problems are being completely ignored.
- The proponent of the Law and the State Prosecution intend to conduct the (re)appointment of the State prosecutors until July, under the law currently in effect. Therefore, the absolute space is left for the arbitrary decision to be brought about who will leave the State prosecution and who will stay is, because the current law in effect doesn’t stipulate objective criteria or indicators for measuring hitherto results of the work of the prosecutors.
- It is necessary to improve the composition of the members of the Prosecutorial council as well as requirements for their appointment. Namely, the Venice Commission believes that the Prosecutorial Council composed of state prosecutors is not fairly and proportionally set up in order to represent the State Prosecution and that “two or three members from the Basic Prosecution Offices” should have been appointed as well. On the other hand, for the members of the Prosecutorial Council among the eminent lawyers don’t have any restrictions. In this way, someone who is a member of a political party, someone who has a criminal proceeding opened against him, or someone convicted for a felony which makes him unworthy for this position, could apply.
- After a suggestion of the European Commission and Venice Commission to enable even to other lawyers to apply for the positions in the State Prosecution, the proponent “has thought of” a compromise – to appoint one State Prosecutor from the High State Prosecution Office and Chief Prosecution Office, therefore three in total from around 140 of all state prosecutors in Montenegro. Additionally, the requirements for the appointment of the one prosecutor are so radical that unfairly treats the lawyers who haven’t worked as the prosecutors, equating 8 years of the prosecutors’ work with 20 years of the lawyer’s work. The lawyer with 20 years of work experience fullfils even the condition to apply for the position of Chief Prosecutor (in accordance to the same Draft Law) which clearly illustrates the rigorousness of this regulation. Apart from that, prosecutors, judges and lawyers with ten-year experience could apply for work in Special State Prosecution. Hence, the intention of making the “access” to the Chief and High State Prosecution Office for these three positions is really unreasonable.
- Chief Special and Special Prosecutors, and not only the rest of employees in Special State Prosecution, have to undertake a series of security checks as well as the checks of the financial status. The recommendation of Institute Alternative is that these checks should be only requirements for the appointment of the Chief Special Prosecutor and Special Prosecutor. The necessity of the security checks is deriving from the special sensitivity of the cases which are in the competence of the Special State Prosecutor.