EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
DRAFT
LAW
AMENDing the
law on
the state prosecutor’s office
OF
MONTENEGRO
Article 1
In the Law
on State Prosecutor (“Official Gazette of the Republic of Montenegro”, No.
69/03), the words: “State Prosecutor” in the name of the Law and in Articles 1,
2, 4, 8, 10, 13, 14, 15, 16, 17 and 18, shall be replaced with the words:
“State Prosecutor’s Office”.
Article 2
Article 2
shall be amended and it shall read as follows:
“State
Prosecutor’s Office shall be a single and autonomous state authority which
shall perform its function on the bases of the Constitution, laws and ratified
international treaties.”
Article 3
The words
“the Republic of” in Articles 10, 13, 14, 20, 24 and 31 shall be erased.
Article 4
In Article
17, the words: “represent the Republic in property law matters” shall be
erased.
Article 5
Articles
20, 21, 22 and 23 shall be erased.
Article 6
In Article
25 paragraph 1, indent 3 shall be amended and it shall read as follows:
“- for the Basic State Prosecutor – six years, and for his/her
Deputy – three years.”
Article 7
In Article
26, the words: “and the Deputy” and “the Republic of” shall be erased.
In the same
Article after paragraph 2, new paragraph 3 shall be added and it shall read as
follows:
“Deputy
State Prosecutors shall be appointed and removed from office by the Prosecutors
Council”.
Article 8
Article 28
shall be amended and it shall read as follows:
“The State
Prosecutor shall be appointed for a term of five years and he/she may be
reappointed.
The office
of the Deputy State Prosecutor shall be permanent, except in case of the first
appointment of a Deputy Basic Prosecutor.”
Article 9
Heading and
Article 29 shall be erased.
Article 10
In Article
32 paragraph 4 shall be amended and it shall read as follows:
“The decision of the Prosecutors
Council on the complaint shall be final and an administrative dispute may be
instituted against it.”
Article 11
New heading
and Article 32a shall be added after Article 32 and they shall read:
“Standard Application
Form
Article 32a
Application
referred to in Article 32 paragraph 1 above shall be submitted, as a rule, in a
form approved by the Prosecutors Council.”
Article 12
New heading
and Article 33a shall be added after Article 33 and they shall read:
“Criteria
Article 33a
Criteria
for appointment of the State Prosecutor and the Deputy State Prosecutor shall
be as follows:
-
specialized
knowledge, working experience and working results;
-
published
research papers and other activities in their line of work;
-
additional
professional training;
-
ability
to perform the function for which he/she applies impartially, conscientiously,
determinedly and responsibly;
-
communication
skills;
-
relationship
with colleagues, conduct outside work, professionalism, impartiality and
reputation, and
-
organizational skills necessary for the position of the State Prosecutor.”
More detailed criteria for the
appointment of the State Prosecutor and the Deputy State Prosecutor shall be
laid down by the Rules of Procedure of the Prosecutors Council.
Article 13
Article 35
shall be amended and it shall read as follows:
“The
Prosecutors Council shall interview the applicants who have fulfilled the
requirements for appointment.
Applicant
does not need to be interviewed:
- if he was given
positive assessment or
-
negative
assessment when interviewed for a post in a state prosecutor’s office of the
same or higher jurisdiction during the last twelve months;
-
he was given negative assessment several times when interviewed for a
post in a state prosecutor’s office of
the same or higher jurisdiction, regardless of when he was last interviewed.
Based on the interview and
documentation received, the Prosecutors Council shall assess each candidate
taking into account the criteria referred to in Article 33a of this Law.
The Prosecutors Council shall decide
by a majority vote on the assessment of the candidates.
Immediately after the interview, the
Prosecutors Council shall fill in a standard candidate assessment form which
shall contain the assessment of each candidate and explanatory note.
The Prosecutors Council may conduct
written testing of the candidates prior to the interview.
The method of assessment and the
contents of the candidate assessment form shall be regulated by the Rules of
Procedure of the Prosecutors Council.
Article 14
New Article
35a shall be added after Article 35
and it shall read:
“Based on
the interview, the assessment of the candidates and documentation received
referred to in Article 35 of this Law, the Prosecutors
Council shall draw up a list of candidates who achieved satisfactory results.
The list of
candidates shall contain the assessment of each candidate who has been
interviewed, and/or who was tested, as well as a summary of assessment results.
Article 15
In Article
36, the words “or the Deputy” shall be erased.
Article 16
New headings and new Articles 36a,
36b and 36c shall be added after Article 36 and they shall read as follows:
Article 36a
The
Prosecutors Council shall pass the decision on the appointment of a Deputy
State Prosecutor at a session closed to the public based on the list of
candidates.
The
decision on appointment of a Deputy State Prosecutor must contain a written
statement of reasons.
The
Prosecutors Council shall notify the candidate appointed, the Prosecutor’s
Office to which he/she has been appointed and the Ministry of Justice of its
decision on appointment.
The
decision on the appointment of a Deputy State Prosecutor shall be published in
the “Official Gazette of Montenegro”.
Candidate’s
Rights
Article 36b
Candidate
shall be entitled to have an insight into his/her documentation and
documentation of other candidates who applied for announced appointment of the
Deputy State Prosecutor, the results of written tests, assessments of the
candidates and opinions on candidates and to deliver a written statement thereon
to the Prosecutors Council, within three days as of the date of such
insight.
Legal redress
Article 36c
Decision of
the Prosecutors Council on the appointment of the Deputy State Prosecutor shall
be final and an administrative dispute may be instituted against it.”
Article 17
In Article
37 in paragraph 3, the words: “and Deputies” shall be erased.
After
paragraph 3, new paragraph shall be added and it shall read as follows:
“Deputy
Prosecutor shall take an oath before the Prosecutors Council no later than 15
days after the date of appointment.”
Article 18
In Article
41 in paragraph 1 subparagraph 3, the words: “hearings or” shall be erased.
New
subparagraphs 4 and 5 shall be added after subparagraph 3 and they shall read
as follows:
“4) is absent from the sessions of the Prosecutor’s Office;
5) is absent from
work;”
Previous
subparagraph 4 shall become subparagraph 6.
Article 19
New heading
and Article 48a shall be added after Article 48 and they shall read as follows:
“Legal Remedy
The decision of the Prosecutors
Council establishing disciplinary responsibility of a State Prosecutor and of a
Deputy State Prosecutor shall be final and an administrative dispute may be
instituted against it.”
Article 20
In Article
51, paragraph 2 shall be amended and it shall read as follows:
“The
Prosecutors Council shall notify the Assembly without delay that the conditions
for termination of office of a State Prosecutor have been fulfilled.”
In the same
Article in paragraphs 3 and 4, the words: “or Deputy” shall be erased.
After
paragraph 4, three new paragraphs shall be added and they shall read:
“The
decision on termination of office of a Deputy State Prosecutor shall be passed
by the Prosecutors Council within 30 days as of the date of receipt of
notification at latest.
The office
of the Deputy State Prosecutor shall terminate on the date of passing of the
Prosecutors Council’s decision on termination of office.
The
decision on termination of office of a Deputy State Prosecutor shall be delivered
by the Prosecutors Council to the Deputy State Prosecutor whose office
terminated and to the State Prosecutor with whom he/she exercised the office of
the Deputy.”
Article 21
In Article
54, in the third paragraph after the word “relates” full stop shall be replaced
with coma and the following words shall be added: “together with the
notification that he/she is entitled to engage a defence attorney in the
proceedings conducted before the Prosecutors Council”.
Article 22
In Article
58, paragraph 3 shall be amended and it shall read as follows:
“The
Commission shall submit a report on its work to the Prosecutors Council within
a deadline fixed by the Prosecutors Council.”
Article 23
After
Article 58, new heading and Article 58a shall be added and they shall read as
follows:
“Opinion
Article 58a
If a
proposal for removal of the Chief State Prosecutor from office has been filed
on account of incompetent or unconscientious performance of the function, the
Prosecutors Council shall obtain the opinion of the session of prosecutors of
the Chief State Prosecutor’s Office.
If a
proposal for removal of a State Prosecutor or of a Deputy State Prosecutor from
office has been filed on account of permanent loss of work capacity required to
perform the function, the Prosecutors Council shall obtain the opinion of the
competent authority.”
Article 24
In Article
60, subparagraph 3 shall be added and it shall read as follows:
“3) pass the decision on removal of the Deputy State Prosecutor
from office.”
Article 25
Article 61
shall be erased.
Article 26
In Article
63 in paragraph 1, after the word “removal” the words: “of the State
Prosecutor” shall be added.
Article 27
In Article
64, paragraph 2 shall be amended and it shall read as follows:
“State
Prosecutor or Deputy State Prosecutor may be temporarily suspended from his/her
office after the Prosecutors Council has accepted the proposal to initiate the
procedure for removal from office.”
Article 28
After
Article 64, new heading and new Articles 64a and 64b shall be added and they
shall read as follows:
“Corresponding
applicability of the provisions regulating disciplinary proceedings
Article 64a
The
provisions of this Law governing lapse of time and disqualification in
disciplinary proceedings shall apply accordingly to the procedure for removal
from office.
Article 64b
The
decision of the Prosecutors Council on removal of the Deputy State Prosecutor
from office shall be final and an administrative dispute may be instituted
against it.”
Article 29
Heading and
Article 65 shall be amended and they shall read as follows:
“Delivery of
Decision
Article 65
The
Assembly shall deliver the decision on removal from office to the State
Prosecutor who has been removed from office and to the Prosecutors Council.
The
Prosecutors Council shall deliver the decision on removal from office to the
Deputy State Prosecutor who has been removed from office and to the State
Prosecutor’s Office in which he/she exercised his/her office.”
Article 30
In Article
71, paragraph 2 shall be added and it shall read as follows:
“A person
fulfilling the requirements for the position of High State Prosecutor may be
appointed as the Deputy Special Prosecutor.”
Article 31
In Article 77, paragraph 2 shall be amended and it
shall read as follows:
“Exceptionally,
the Chief State Prosecutor may second a State Prosecutor or a Deputy State
Prosecutor, without his/her consent, to work with the Special Prosecutor if,
due to disqualification or absence of the Special Prosecutor or his/her Deputy
or for other justified reasons, regular discharge of duties has become
uncertain in the Special Prosecutor’s Office”.
Article 32
In Article
83 subparagraph 1, after the word “prosecutor”, coma and the words: “and
his/her Deputy” shall be replaced with the words: “appoint Deputy State
Prosecutor, remove from office and decide on termination of office of the
Deputy State Prosecutor.”
In the same
Article, subparagraph 4 shall be amended and it shall read as follows:
“4) ensure
the training of prosecutors and deputy prosecutors in cooperation with the
Judicial Council;”.
After
subparagraph 4, new subparagraphs 5, 6, 7, 8 and 9 shall be added and they
shall read as follows:
“5) give opinion of draft laws and bylaws in the field of
justice and initiate enactment of relevant laws and of other regulations in
this field;
6) ensure
implementation, sustainability and uniformity of the Judicial Information
System in the part related to the prosecutors’ offices;
7) keep records containing information about State Prosecutors
and their Deputies;
8) propose framework guidelines on necessary number of state
prosecutors and their deputies and of other officers and administrative staff
in prosecutors’ offices;
9) adopt methodology for development of work reports of the
State Prosecutor’s Office and annual allocation of tasks.”
Previous
subparagraphs 5, 6, 7 and 8 shall become subparagraphs 10, 11, 12 and 13.
Article 33
In Article 84 in paragraph 3, indents 3 and 4 shall
be erased and they shall be replaced with indent that shall read:
- “two from amongst renowned lawyers in
Montenegro, at the proposal of the President
of Montenegro”;
Article 34
In Article
85, in paragraph 1, the word “appointed” shall be replaced with the word “elected”.
Article 35
In Article
87 in paragraph 1, the word “Prosecutor” shall be replaced with the word
“Prosecutor’s Office”; and in paragraph 3 the words: “in the Republic” shall be
erased.
Article 36
In Articles
88, 91, 100 and 102, the word “Prosecutor” shall be replaced with the words
“Prosecutor’s Office”.
Article 37
In Article
89 in paragraph 1, the word “appointed” shall be replaced with the word
“elected”.
Article 38
Article 99
shall be erased.
Article 39
Article 103
shall be amended and it shall read as follows:
“The Chief
State Prosecutor shall submit to the Assembly the annual report on the work of
the State Prosecutor’s Office and of the Prosecutors Council.
The annual
work report shall also contain the information on the work of the Prosecutors
Council and the proposal for measures aimed at improvement of performance of
the State Prosecutor’s Office and of the Prosecutors Council.
The annual
report shall be submitted to the Assembly by 31 March of the current year for
the preceding year at latest.
The report
shall be published on the web page of the Prosecutors Council.
The Chief
State Prosecutor shall set out the annual work report of the State Prosecutor’s
Office and of the Prosecutors Council in the Assembly.”
Article 40
Article 104
shall be erased.
Article 41
In Article
105 paragraph 2 shall be amended and it shall read as follows:
“Information
that could affect the conduct of the proceedings may not be made available to
the public.”
Article 42
In Article
106, paragraphs 1 and 2 shall be amended and they shall read as follows:
“Deputy
State Prosecutor may, with his/her consent, be temporarily seconded to another
State Prosecutor’s Office.”
Exceptionally,
the Chief State Prosecutor may second a Deputy State Prosecutor, without
his/her consent, to another State Prosecutor’s Office, if, due to
disqualification or absence of the State Prosecutor or his/her Deputy or for
other justified reasons, regular discharge of duties in the prosecutor’s office
to which he/she has been seconded has become uncertain”.
Article 43
After
Article 106, new heading and new Article 106a shall be added and they shall
read as follows:
“Secondment
to another Prosecutor’s Office of the State Prosecutor and his/her Deputy
without their consent
Article 106a
In case of
reorganization of the State Prosecutor’s Office by which the number of
prosecutor posts is decreased or terminated, the Prosecutors Council may
transfer or second a State Prosecutor or his/her Deputy to another Prosecutor’s
Office without his/her consent.
Benefits
and other costs incurred by transfer or secondment of a State Prosecutor or
his/her Deputy to another State Prosecutor’s Office, without his/her consent,
shall be borne by the State Prosecutor’s Office to which he/she is transferred
or seconded.”
Article 44
In Articles
112, 117, 118 and 119, the word “Prosecutor” shall be replaced with the word
“Prosecutor’s Office”.
Article 45
Article 113
shall be erased.
Article 46
Heading and
Article 120 shall be amended and they shall read as follows:
“Advisors
Article 120
“State
Prosecutor’s Office may have advisors.
Advisors
shall assist a State Prosecutor or his/her Deputy in their work, draft
decisions, make records of citizens’ complaints, petitions and statements,
perform other professional duties prescribed by law or regulations adopted on
the basis of the law, independently or under the supervision of and according
to the instructions of the State Prosecutor or his/her Deputy.
A law
graduate who has passed bar exam and who meets the general and special
requirements for a specific post in state authorities, in accordance with the
law, shall be eligible for the post of an advisor.
Exceptionally,
the Basic State Prosecutor may authorise the advisor to represent indicting
proposals in proceedings before the court.”
Article 47
In Article
123, the words: “the expert associate” shall be replaced with the word
“associate”.
Article 48
Article 124
shall be amended and it shall read as follows:
“Commencement
and termination of the employment of court officers and administrative staff,
salaries and other rights, obligations and responsibilities stemming from
employment, required level of education, the length and undertaking of
traineeship, requirements for taking of professional examination, curriculum
and manner of taking of this examination and other related issues, shall be
regulated by legislation applicable to civil servants and state employees.”
Article 49
In Articles
125 and 126, the words: “official secret” shall be replaced with the words:
“confidential information”.
Article 50
In the
heading of Chapter X, the word “prosecutor”
shall be replaced with the word “PROSECUTOR’S OFFICE”.
Article 51
Article 128
shall be amended and it shall read as follows:
“Funds for
the work of the Prosecutors Council shall be allocated in a special line of the
Budget of Montenegro.
The
Prosecutors Council shall propose the amount of the annual budget for the work
of the Prosecutors Council.
The
Prosecutors Council shall submit the proposal for the annual budget to the
Government.
The
President of the Prosecutors Council shall be entitled to participate in the
work of the session of the Assembly at which the proposal for the budget of the
Prosecutors Council is discussed.”
TRANSITIONAL
AND FINAL PROVISIONS
Article 52
State
Prosecutors and Deputy State Prosecutors appointed in accordance with the Law
on State Prosecutor (“Official Gazette of the Republic of Montenegro”, No. 69/03), shall remain in
office until the expiry of the term of office for which they have been
appointed.
Article 53
The
Committee for Constitutional Affairs and Legislation shall establish
consolidated version of the Law on State Prosecutor’s Office, within three
months as of the date of coming into force of this Law.
Article 54
The
provisions of this Law regarding the representation of Montenegro in property law matters shall cease
to be valid on the date of appointment of the Legal Representative of Montenegro in property law matters.
Article 55
The present
Law shall come into force on the eighth day as of the date of its publication
in the “Official Gazette of Montenegro”.
