The Human Rights Action (HRA) is expressing its protest against the decision of the Prosecutorial Council to propose to the Parliament of Montenegro – at the 14th session held on 14 December, without informing the public – changes to the Law on the State Prosecutor’s Office which would indefinitely extend the mandate of the current Acting Supreme State Prosecutor until the election of the Supreme State Prosecutor.
There are two issues that are worrying: the first is the tendency to propose solutions that serve to maintain the ‘acting situation’ (let us recall the three members of the Judicial Council who have served on that body for 9 years, instead of four), while the second is the tendency to propose statutory solutions to dismiss certain holders of judicial positions, such as the former Special State Prosecutor Milivoje Katnić, or keep them in office even after the expiry of their mandate, such as those that have been proposed now and refer to the Acting Supreme State Prosecutor Maja Jovanović.
The Venice Commission has already criticised such ad hominem changes to the law because they threaten legal certainty and are contrary to the nature of legislative activity, which implies defining general rules of conduct instead of taking executive actions in relation to specific individuals or situations. This Commission has also criticised the endless extension of the ‘acting situation’, indicating that the focus should be on finding a mechanism to prevent blockage rather than maintaining the current state of affairs.
Without questioning the competences and expertise of the current Acting Supreme State Prosecutor, we believe that changing the law in this fashion creates a dangerous practice of amending laws to suit specific individuals, by constantly adapting the legal order to the reluctance of the political elite to reach a compromise on the most important state interests, such as establishment of state institutions that are indispensable for the rule of law and membership in the European Union.
We recall that the Prosecutorial Council had proposed an amendment to Article 48 of the Law on the State Prosecutor’s Office, which stipulated that the same person can hold the position of Acting Supreme State Prosecutor only for two consecutive mandates lasting six months each. It has now been proposed to abolish the six-month limit, which means that – if the changes are adopted – the current Acting Supreme State Prosecutor Maja Jovanović will remain in this position until the election of a full-term Supreme State Prosecutor, that is, for an indefinite period of time.
It is worrying that such changes to the law are supported also by representatives of the Ministry of Justice. Namely, it is precisely this institution that should initiate a transparent and open procedure for changes to the law that includes the interested public, taking into account the opinions of the Venice Commission, i.e. lawyers representing 61 member states, which Montenegro had asked for.
Particularly worrying is the fact that the Prosecutorial Council proposed such changes to the law without notifying the public. There was no indication on the agenda of the session that proposals for amending the law would be considered, and the public was not informed (not even in the press release following the session) that the proposals were adopted and submitted to the Assembly. This was discussed at the session as part of the last item on the agenda called “Current issues”, which commonly serves to discuss issues such as fees for on-call and standby prosecutors, travel expenses, expenses for living separated from one’s family, etc. The Prosecutorial Council raised the issue of amending the law after the HRA representative left the session (which she attended for more than six hours) when she was informed by the Secretariat of the Prosecutorial Council that only current, “not particularly important issues” would be considered from that moment on. Judging by the statement of a member of the Council from the ranks of distinguished lawyers and representatives of NGOs, Stevo Muk, who was absent that day, not all members of the Council were informed about the fact that a change in the law would be requested.
We emphasise once again that the Law on the State Prosecutor’s Office requires fundamental changes, in accordance with the recommendations of the Venice and European Commission from 2021, and that those changes should have been worked on throughout the past year. However, said work was unfortunately not envisaged in the Government’s programme.
We also appeal to the Assembly of Montenegro to implement the procedure for the election of the Supreme State Prosecutor in accordance with the Constitution of Montenegro, bearing in mind that the ‘acting situation’ at the head of that prosecutor’s office has been going on since October 2019.