N13.T8 – What Is the Role of the Supreme State Prosecutor?
HRA NEWSLETTER 13 – TOPIC 8
In Montenegro, there is a widespread misconception about the role of the Supreme State Prosecutor. This was stated by Supreme State Prosecutor Milorad Marković during the ”Načisto” program on TV Vijesti, where he explained that he “does not act in specific cases.”
“As the Supreme State Prosecutor, nor as the head of any prosecutor’s office, including the Chief Special Prosecutor, I do not have the power to directly influence a prosecutor’s actions. I can issue a binding instruction, but the prosecutor is not obliged to act upon it,” said Marković.
He added that, as the Supreme State Prosecutor, he can issue binding instructions only to the heads of state prosecutor’s offices, who may then forward them to individual prosecutors.
“This is where confusion arises about my responsibility in specific cases. I want every prosecutor to be responsible for their own case — and I want them to be independent. If I find it necessary to issue a binding instruction, I will direct it to the head of the office, but do not forget that I have already issued a series of general instructions,” emphasized Marković.
Although the Supreme State Prosecutor points out his limited powers, the Law on the State Prosecutor’s Officeexplicitly provides that he may issue instructions for action in individual cases — to prosecutors from the Supreme State Prosecutor’s Office, the Chief Special Prosecutor, as well as to the heads of higher and basic state prosecutor’s offices.
Furthermore, Article 133 of the Law on the State Prosecutor’s Office stipulates that the Supreme State Prosecutor may directly exercise all powers and undertake all actions vested by law in the heads of the Special, Higher, or Basic State Prosecutor’s Offices. This also implies that he may issue instructions to individual prosecutors.
Therefore, by issuing binding instructions to the heads of prosecutor’s offices and applying Article 133 of the Law on the State Prosecutor’s Office, the Supreme State Prosecutor can have an important and meaningful influence on state prosecutors and on specific cases.
If, however, a state prosecutor considers that an instruction issued by the Supreme State Prosecutor is unlawful or unfounded, they are obliged to provide a written explanation. The prosecutor bears no responsibility for expressing such an opinion. If the Supreme State Prosecutor repeats the instruction and the prosecutor maintains their position, the prosecutor may submit a written and reasoned request to be released from the case. In that situation, the head of the state prosecutor’s office may, in accordance with Article 132(3) of the Law on the State Prosecutor’s Office, release the prosecutor from handling the case — provided that there is no risk of delay — and assign it to another prosecutor.
This means that a case may be reassigned successively until a prosecutor agrees to proceed in accordance with the binding instruction. However, the prosecutor also has the right to retain the case and act according to their own professional judgment.
Based on all of the above, it can be concluded that the Supreme State Prosecutor could considerably enhance the efficiency of prosecutorial work through a more proactive use of binding instructions in individual cases — particularly in cases of special public interest, where there is a risk of statute of limitations or where differing, yet legally grounded, opinions exist.
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