Pros and cons of the announced reappointment of prosecutors

Opening of a public debate is a necessity, in order to once again review the possible pros and cons of the announced re-election of the state prosecutors and the way that this reappointment will eventually be conducted.

We believe that a long-term damage will be inflicted upon the State Prosecution Office, if the new prosecutors are to be elected in accordance with the current Law on State Prosecution Office, because this law does not regulate provisions relating to the assessment of the professional performance and previous results of the prosecutors.

The current Law on State Prosecution Office imposed the election of the heads of the state prosecution within the three months period and the election of state prosecutors within six months after the election date of the Prosecutorial Council.

Elections were postponed until the new Supreme State Prosecutor was elected, and in the meantime, state prosecutors filed an initiative to review the constitutionality of these provisions, holding that thus the continuity of administration of the state prosecutors, guaranteed by Constitution, is being violated. The main argument is that ”discontinuity ” of administration makes public prosecutors subject to political pressure and undermines their autonomy. International standards recommend that prosecutors should enjoy, through their professional career, continuity in their administration and that under no circumstances should they fear of the exclusion for political reasons.

However, the “permanence” of administration has made them vulnerable to idleness, so the possible re-election could be justified by serious evaluation and questioning of the prosecutors, in order to discover to what degree they meet professional criteria. It is suffice to say that the responsibility for the lack of results in the State Prosecution Office has been neglected for years. This is the reason why this issue is very important and should be approached with the utmost care. Any re-election would be an opportunity for serious reform of the State Prosecutor’s Office to ensure that only the best and most competent lawyers conduct these responsible administrations. It is necessary to pre-create the preconditions for the implementation of the general re-election.

In order for re-election to be fair, a precise and transparent system of assessment is needed, which will include objective criteria and indicators. However, even the latest European Commission report on Montenegro’s progress in October indicates that the recruitment and promotion system in the judiciary leaves considerable scope for influencing the independence of the judiciary. For example, electing system only abstractly defines assessment of “the ability to conduct prosecutorial administration” (60 points), “competence” (20 points) and “the knowledge” (20 points) with the listed sub-criteria that are very difficult to objectively measure.

The draft of the (new) Law on State Prosecution, which was subject of a public debate in July, introduces a system where the space for improvement exists and it is certainly more fundamental than the system put in force by the current Law. Even though it is a legal obligation, another postponement of re-election should be considered until the adoption of the new Law, so that long-term effects of re-election could be effective. With this in regard, we must particularly consider the provisions of the new law and improve them, minding the certainty of the general (re) election.

It is also necessary to open a public debate on re-election, before the public announcement, in order to provide an opportunity for all stakeholders, especially to the state prosecutors, to indicate the possible obstacles to fair evaluation. This particular note, bearing in mind the experience of Serbia where in the Office of Attorney General 700 judges at the beginning of 2010 were not re-elected to judicial office, initiated proceedings for pecuniary and non-pecuniary damages. Until now 590 of them returned to work. According to the estimates of workers in the judiciary, the whole process could cost Serbia close to 15 million Euros.

Stevo Muk
President of the Managing Board

The article was originally published in the Section ‘Forum‘ of the daily newspaper Vijesti

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