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Montenegro adopts new Law on State Prosecution, some elements remain controversial

Photo: Parliament of Montenegro

PODGORICA – Assembly of Montenero has adopted the new Law on State Prosecution with 41 votes of the ruling majority. The Law enables significant changes in the composition of prosecution, which the ruling parties claim is necessary for achieving real results. Opposition DPS criticised the Law, saying that the Venice Commission gave a negative opinion on its content.

During yesterday’s debate on the Law, ruling majority MPs claimed that it would enable the rule of law and allow the prosecution to achieve real results which, according to them, were lacking during the rule of the Democratic Party of Socialists (DPS).

On Monday, an Urgent Opinion of the Council of Europe Venice Commission on the Law was released. DPS welcomed “the negative opinion of the Venice Commission”.

“An attempt to politically adjust an independent branch of government, open party influence on the election of prosecutors, reveals the Government’s intentions: on the one hand to sacrifice Montenegro’s European path in order to stay in power, faced with blackmail from the parliamentary majority, and on the other to instrumentalize the prosecution in an attempt to artificially create scandals”, reads DPS’s statement.

Deputy Prime Minister Dritan Abazović, on the other hand, stated that the Commission’s Opinion was not negative.

“I don’t have a feeling that the Opinion represents a red light, on the contrary, I think it is more of a green light than amber. But even if it is amber, the citizens of Montenegro are waiting for justice, we must get out of the status quo”, said Abazović, adding that the current prosecution is binding Montenegro’s hands when it comes to its EU integration process, Vijesti reported.

On Tuesday evening, DPS asked for a dialogue on filling in the vacant positions in the judiciary, including the Supreme State Prosecutors and two judges of the Supreme Court, in return for delaying the adoption of the law for 20 days. The ruling majority refused, with Speaker of the Assembly Aleksa Bečić saying that the dialogue was necessary, but that these two processes are separate from each other. DPS then left the parliamentary session.

What the Venice Commission said

This was the second version of the Law, the first being withdrawn from the parliamentary procedure in February this year, following the criticism from the opposition and the European Union. The Venice Commission released an Opinion on the new version of the Law on 10 May 2021.

Based on the recommendation of the Venice Commission, the ruling majority abandoned the proposal to replace the Special State Prosecutor’s Office and remove the current Special State Prosecutor, a controversial figure among the current ruling majority.

The Law, however, retained the controversial proposals to change the composition of the Prosecutorial Council and elect new members to this institution before the expiration of the previous members’ terms.

Prosecutorial Council is the principal body managing the careers of prosecutors and the independence of their work. Under the previous law, it was composed of five state prosecutors, four jurists elected by the Assembly and one official at the Ministry of Justice. The new law would decrease the number of prosecutors from five to four and increase the number of jurists from four to five, one of which would be nominated by the civil society.

The election of “lay members”, who now outnumber the prosecutors (5 to 4), by a simple majority, was criticised by the Venice Commission, which did not consider it to “be conducive to political neutrality or at least pluralism.”

However, the revised version of the Law introduced additional criteria for the election of lay members, including ineligibility criteria (not being related to politicians, not having a leading role within a political party etc.) and the nomination of one of the five candidates by the civil society.

“These new criteria create a “safety distance” between lay members and party politics, which will make the PC more politically neutral. They are therefore welcome; a procedure should be devised in order to verify that these criteria continue to be fulfilled throughout the mandate”, the Commission assessed.

The immediate replacement of all currently sitting members of the Prosecutorial Council upon the entry into force of the law did not get the green light from the Commission.

“The Commission has previously stated in respect of judicial councils that as one of their important functions is to shield judges from political influence, “it would be inconsistent to allow for a complete renewal of the composition of a judicial council following parliamentary elections… As a consequence, the Commission does not consider that the termination of mandate of all the current members of the Prosecutorial Council would be justified. It would amount to a serious infringement of its independence”, the Opinion reads.

Finally, the Law provides for an election of an interim Prosecutor General by the new Prosecutorial Council. The term of the current Prosecutor General, Ivica Stanković, expired in 2019, but he remained in office due to the inability of the Assembly to elect a new one by the qualified majority enshrined in the Constitution. It was, however, reported that in May 2021 Stanković would reach the retirement age and would have to vacate his position definitely.

“As concerns the nomination of an interim prosecutor by the PC, while the Commission is not in favour of it, it seems that the expected retirement of the Prosecutor General will lead to a constitutional impasse, so that this transitional arrangement might be necessary”, Venice Commission wrote.

It nevertheless urged for the interim Prosecutor General to be an existing top prosecutor, which is not necessary under the new law. The Commission also urged the political parties to show political maturity and agree on a qualified majority for the election of a full-term Prosecutor General.

Picula: The adoption of revised laws should keep the judiciary independent

European Parliament Rapporteur for Montenegro Tonino Picula said for RTCG on Tuesday that there is only one way out that is welcome for the European perspective of Montenegro.

“The adoption of these revised laws should be very clear, keeping the judiciary on the path to independence, but on the other hand it should be able to deal with crime and organized corruption, but not be contaminated by the will of political parties,” Picula said.

He said that the judicial legislation should be free of political influence and that the Venice Commission has made critical remarks, providing room for compromise.

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