EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE DRAFT LAW AMENDING THE
LAW ON THE STATE PROSECUTOR’S OFFICE
OF MONTENEGRO
by
Mr Paul BROECKHOVEN
(Netherlands Expert for the Directorate for Legal
Co-operation of the
Directorate General for Human Rights and Legal Affairs
of the Council of Europe)
Comments on the Law
Amending the Law on State Prosecutor (Official Gazette of the Republic of Montenegro, no. 69/2003)
Preliminary remark
It is a pity that no explanatory memorandum on the Law
Amending the Law on State Prosecutor is available. Now it stays mere guesswork,
why certain amendments are proposed.
Comments
Art. 2
The amendment says: "State Prosecutor's Office shall be
single and autonomous state authority…" Why is de word "single"
used instead of "independent" as in the old law and in article 134 of the Constitution ( "unique and
independent state authority") ?
Art. 4 and art. 5
These amendments mesh with the desirable pushing back of the
tasks of the public prosecutor to protect the interests of the state, which
should be done by private or public attorneys at law.
Art. 7
The new paragraph 3 of article 26 of the Law on State
Prosecutor, stating that Deputy State Prosecutors shall be appointed and
removed from office by the Prosecutors Council, is sensible in the light of a
reduction of the now always lurking political influence on appointments within
the public prosecution and more in line with the notion that deputies are civil
servants.
Art. 8
This amendment sees to the desirable possibility of renewal
of the term of office of the State Prosecutor. The amendment that the office of
the Deputy
State Prosecutor shall be permanent,
shows that deputies are more considered to be civil servants, who normally
perform their duties without a fixed term. The reason of the addition
"except in case of the first appointment of a Deputy Basic Prosecutor" escapes me.
Art. 9
This amendment is questionable if it means that in the
future the State Prosecutor and the Deputy shall be always accountable for an
opinion expressed or a decision rendered in performance of their functions.
Accountability is a good thing, but not under all circumstances.
Art. 10
This amendment is an improvement and in line with the
practice in many European countries, if it means that the decision can be
brought in judicial review before a court of administrative law.
Art. 12
Criteria for appointment as proposed in this amendment, create a safeguard against politically influenced
unwise appointments and create more clarity. Therefore this amendment is
welcome.
Art. 14
The new article 35a, paragraph 2, raises the question if the list of candidates
is a public document. This question seems to be answered affirmatively in the
new article 36b, q.v.
Art. 16
The new article 36b should be discussed extensively. The
fact that a candidate shall be entitled to have an insight into documentation
of other candidates, the
results of written tests, assessments of the other candidates and opinions on other candidates and to deliver a written statement thereon,
can open the door to nasty business, false allegations and whatever. In any
case, such a provision can bring much unnecessary and undeserved damage to the
candidates. The question is also, if this provision is not conflicting with the
right on privacy. In general one has to be very careful with the outcome of
assessments, because the objective and impartial quality of that outcome is
controversial.
With regard to the new article 36c, see the comments on Art. 10.
Art. 19
With regard to the new article 48a, see the comments on Art. 10.
Art. 31
Secondment is something, at which one looks suspiciously,
because it easily can threaten the independence of the office holder. As
formulated in the new proposed paragraph 2, there can be made a exception in the therein described circumstances. So, the
basic assumption is: not without consent of the office holder. In
that respect it is better to maintain the current second paragraph and add the
proposed second paragraph as the third.
Art. 33
The reason why the President of Montenegro should propose
two members of the Prosecutors Council from renowned lawyers in Montenegro, escapes me.
Art. 35 and art. 37
These articles are incorrect in comparison with my text of
the current Law on Sate Prosecutor.
Art. 43
With regard to the new article 106a, see the comments on Art. 31.
Art. 49
There is a great difference between official secret
and confidential information. The amendment deserves some clarification.
Transitional and Final
Provisions
The proposed amendments should be numbered 129, 130, 131 and
132.
