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 Jorgen
Steen SORENSEN
(Director of Public Prosecutions, Denmark)
1.
Introduction
This note contains my preliminary comments/questions on the
draft law amending the Law on State Prosecutors Office of Montenegro.
The present Act was passed in 2003. It deals extensively
with numerous issues concerning the Prosecution Service in Montenegro, and the present draft amending Act
– although it contains a large number of provisions in itself – touches upon
only a limited number of subjects dealt with in the entire present Act.
At this point, the task for the Venice Commission will not
be to deal with the present Act as such, but only with the amendments now
proposed. Thus, my comments below refer, as a general rule, only to the
amendments. Also, as a general, rule I do not comment on issues that appear to
be strictly technical.
It is difficult to assess the full content and implications
of the present draft amendments without detailed knowledge of the political
background and motivations that lie behind them. For that reason, some of the
comments below may be due to misunderstandings, and some of the amendments to
which I have no comments, may, on the other hand, in fact appear to be very
relevant and call for further discussion. These issues will need to be
investigated in connection with the upcoming meeting in Montenegro (which I am unfortunately unable to
attend) and with the further work that lies ahead after the meeting.
2. Preliminary comments/questions on the draft
amendments
Article 1
This provision appears to mean simply a change of name: from
“State Prosecutor” to “State Prosecutor´s Office”. Perhaps, the provision is to
be seen in context with Article 3 stating that the State Prosecutor´s Office is
a “single” state authority.
If this is indeed the only implication of the provision, I
have no comments.
In the following, I use the notion SPO to mean the State
Prosecutor´s Office.
Article 2
It is not quite clear what the implication of this amendment
is. On the face of it, it gives rise to some concern that the word
“independent” is now struck from Article 2. However, the present Article 3 of
the Act – stating that nobody shall influence the work of the SPO – remains
unchanged.
The intentions of this amendment should be investigated.
Article 3
This amendment appears to be a simple consequence of the new
constitution.
I have no comments.
Article 4 and 5
The implication of these amendments is to relieve the SPO of
its task to represent the state in property law matters.
Relieving the prosecution service of taking care of other
business than dealing with prosecution of criminal offences is generally in
line with CoE standards, cf.CDL-AD(2005)014, Opinion on Federal Law on the
Prokuratura of the Russian Federation, para 75.
I see no other implication if this amendment. If this is
correct, it should be welcomed.
Under Article 17 of the present Act, it remains a task for
the SPO to “apply legal remedies for the purpose of protection of
constitutionality and legality”. It is unclear what this means in practice. The
amendment concerning property law matters might therefore be an opportunity to
briefly investigate this issue in order to assess whether this is an
appropriate task for the SPO.
Article 6
This amendment implies a difference in the requirements for
work experience as regards the Basic State Prosecutor and his/her Deputy.
The amendment as such does not appear to be of great
significance. However, it appears slightly odd that a differentiation is only
made on the Basic State Prosecutor level and not at Chief State and High State Prosecutor level.
Furthermore: although, as said above, the present task is to
deal only with the amendments, it may be pointed out that the advantages of
provisions such as Article 25 is questionable especially where there is, as it
appears to be the case here, no possibility to defer from the requirements. For
example, it does not seem appropriate that a person who otherwise appears as
the best candidate for the position of Chief State Prosecutor cannot be appointed
simply because he/she only has 14 (and not 15) years of work experience.
Generally, such mechanisms are not well suited to ensure that the best
candidates are appointed.
It might be worth raising this issue although, as I say, it
goes beyond the proposed amendment as such.
Article 7
This is one of a number of provisions of the draft Act
dealing with the position of the Deputy State Prosecutor (DPS) vis a vis the State Prosecutor (SP). The consequence of the
amendment provided for in this provision is that the DPS may be appointed and
removed by the Prosecutors Council directly whereas the competence to appoint
and remove the SP will remain with the Assembly (at the proposal of the
Prosecutors Council).
In the opinion of the Venice Commission on the constitution
of Montenegro (adopted in December 2007), the
commission deals with the very significant political influence on the
appointment and removal of prosecutors that is a consequence of the
constitution. In this context, it should be noted that the Prosecutors Council,
although consisting mainly of prosecutors and experts, is appointed by the
Assembly, cf. Article 86 of the present Act.
I believe the concerns expressed in the opinion should
indeed continue to be the view of the Commission.
However, it is now a fact that the constitution requires
this influence.
Under these circumstances, the ambition would seem to be
that as much competence as possible in relation to appointment and removal
issues should rest with the Prosecutors Council rather than the Assembly since
this would, on balance, appear at least to limit the practical risks of undue
political influence on these matters.
Seen in this context, I believe the amendment as such should
be welcomed.
If the view expressed above is correct, it would seem
appropriate if even the SP (and not only the DSP) would be appointed directly
by the Prosecutors Council. While this may be unrealistic in a political
context, it would still be the natural point of view of the Venice Commission.
In any event, these issues should be discussed at the
meeting.
Article 8
Under the present Article 28, both the SP and the DSP are
appointed for the office for a term of 5 years with the possibility of
reappointment. The amendment means that whilst the SP will continue to be
appointed under this regime, the DSP will now be permanently appointed (except
in case of the first appointment of the Deputy Basic Prosecutor).
I am not aware whether the Venice Commission has previously
expressed its opinion on the issue of reappointment of prosecutors.
Bearing in mind this reservation, I believe such
arrangements should be carefully and critically scrutinized. Since it is
obvious that prosecutors (as is also the case under the Montenegro system) may
of course be removed under disciplinary proceedings, the arrangement of fixed
term appointments in combination with a possibility of reappointment is
designed to cast doubt on the independence of the prosecution service. This is,
of course, emphasized in systems such as that in Montenegro where there is considerable
political influence on appointment decisions.
Under these circumstances, I believe the amendment as such
should be welcomed since it implies a further safeguard on the independence of
the DSP.
In line, however, with what is said in the comments to
Article 7 above, I believe there is very good reason to raise the question of
the SP also in this connection. In this context, it should be noted that the
fact that it is now (almost) only the SP who is appointed under a fixed
term/reappointment regime appears to intensify the focus on the issue of the
independence of the SP.
Article 9
This provision simply erases the present provision on the
functional immunity of the SPO.
There may be a good explanation for this. On the face of it,
however, the amendment gives rise to concern.
The issue should be further investigated.
Article 10
Under the present Article 32(4), the decision of the
Prosecutors Council on a complaint is final and cannot be challenged in court.
The amendment appears to mean that some sort of legal
challenge against the Council´s decision is now introduced.
On the face of it, this amendment does not appear to be
critical. As I am not sure of the implications, however, the issue should be
further investigated.
Article 11
I have no comments.
Article 12
This amendment means that the Act will lay down specific
criteria concerning professional knowledge etc. for the appointment of SP and
DSP. It appears from the amendment that more detailed criteria shall be laid
down by the Prosecutors Council.
While the practical use of such provisions may in general
sometimes appear to be questionable, there may be an adequate point in this one
given the intense political influence on appointments of prosecutors in Montenegro (see comments above to Article 7).
Thus, the amendment underlines that the criteria must be linked strictly to professional
knowledge and qualifications.
Furthermore, the wording of the criteria appears to be
sufficiently broad in order not to preclude any relevant criteria.
Seen in this context, I believe the amendment should be
welcomed.
Article 13
No comments. Regardless of the amendment, the Prosecutors
Council will always be entitled to conduct an interview if it deems it
appropriate to do so.
Article 14
No comments.
Article 15
See comments on Article 7. Otherwise no
comments.
Article 16
See comments on Article 7 and 10 above.
Otherwise no comments. The proposed Article 36b appears to
be a reflection of the present Article 34.
Article 17
No comments.
Article 18
This amendment should be seen in context with the words
“without justified reason” in the present Article 41.
Otherwise no comments.
Article 19
See comments on Article 10.
Article 20 – 24
No comments.
Article 25
This appears to be only a technical consequence of Article
21 and does not appear to change the right of the SP or DSP to engage a defence
attorney.
If this reading is correct, I have no comments.
Article 26
This appears to be technical consequence of Article 7. See
comments on that provision.
Article 27
No comments.
Article 28
See comments on Article 10. Otherwise no
comments.
Article 29
See comments on Article 7. Otherwise no
comments.
Article 30
No comments.
Article 31
It is difficult to assess the full implications of this
amendment.
On the one hand, secondment of prosecutors without their
prior consent should always be considered critically as it may impede their
independence. On the other hand, the decision to second is laid in the hands of
the Chief State Prosecutor and the secondment in question is to another office
within SPO. Furthermore, the amendment is probably meant merely to solve a
practical problem.
The provision should be discussed, but it is likely that
there are no grounds for concern.
Article 32
No comments.
Article 33
On the face of it, this amendment seems to further underline
the political influence on the composition of the Prosecutors Council.
The provision might therefore give rise to concern and
should be further investigated.
Article 34
The implication of this amendment as such appears uncertain.
See also comments on Article 7 and 33.
The matter should be further investigated.
Article 35-37
No comments.
Article 37
This provision is difficult to assess since the word
“appointed” does not appear in my version of the present Article 89(1).
Article 38
It is difficult to understand why this provision should be
erased.
The issue should be investigated further.
Article 39
No comments.
Article 40
On the face of it, this amendment appears difficult to
understand. Perhaps it should be seen in context with the amendments proposed
in Article 39.
The issue should be investigated further.
Article 41
The implications of this amendment, substituting “shall”
with “may” appears unclear.
The issue should be investigated further.
Article 42
This amendment means there is no time limit to the
secondment of the DSP.
See comments on Article 31.
Article 43
See comments on Article 31 and 42.
Article 44
No comments.
Article 45
No comments. This appears to be a technical consequence of
Article 4 and 5.
Article 46-48
No comments.
Article 49
The implications of this amendment, substituting “official
secret” with “confidential information”, are not clear. It may be only a
technical amendment.
The issue should be investigated further.
Article 50
No comments.
Articles 51-55
No comments.
