N14.T6 – New Code of Ethics for State Prosecutors: Modern Norms, Old Dilemmas Remain
HRA NEWSLETTER 14 – TOPIC 6
On 1 November, the Prosecutors’ Conference adopted a new Code of Ethics for state prosecutors, replacing the previous ethical framework with a more modern and clearly structured document.
The new code establishes a somewhat shorter normative framework, but at the same time a more precise one — adapted to contemporary forms of communication and the demands arising from current practice in the State Prosecution.
Nevertheless, the new Code still fails to establish a clear distinction between ethical violations and disciplinary offences, which continues to allow for uncertainty in its practical implementation.
Under Article 8 of the new Code, a prosecutor is required to seek an opinion from the Ethics Commission in situations “when there is suspicion of a conflict of interest or other circumstances likely to affect his impartiality,” converting what was previously discretionary into an explicitly regulated obligation.
The same article for the first time obliges state prosecutors to request from the Prosecutorial Council an opinion on incompatibility of certain jobs with prosecutorial duties, when there is doubt that performing such jobs might conflict with their official duties or undermine the personal reputation of the prosecutor and the State Prosecution.
The Code also more precisely regulates rules of public communication — both with citizens and media. Article 9 stipulates that a state prosecutor must not “in the exercise of office or in private life use hate speech, harsh, offensive or derogatory language, nor make statements of discriminatory character.” Article 13 introduces a duty to address every journalist or media outlet “correctly, with care, patience and due respect.”
For the first time, the Code regulates prosecutors’ use of social media: under Article 12, “a prosecutor’s posts on social media shall be considered public statements.”
For the first time, the Code explicitly proclaims political neutrality: a state prosecutor must “refrain from publicly expressing political views or participating in political public debates.” However — and critically — an exception is provided for discussions on issues of constitutionality, legality, the work of the State Prosecution, as well as human rights and freedoms. This exception is expected to encourage more prosecutors to participate in public discussions on important issues of human rights and improvements to the conditions under which they perform their duties.
While the previous code regulated prosecutors’ cooperation with the police only during preliminary investigations, the new Code extends that regulation to cover the investigation phase as well.
The new Code also introduces a provision specifically addressing membership in organizations, stipulating that state prosecutors must not accept membership in any organization that “requires the highest degree of loyalty,” or whose activities call into question the values enshrined in the Constitution of Montenegro.
Although the phrase “highest degree of loyalty” is open to interpretation, it is assumed that, in addition to the already prohibited membership in political parties, this would also preclude prosecutors from joining, for example, Masonic lodges. Italian judicial authorities, for instance, have treated such membership among judges as a disciplinary offense.
However, in the case of Maestri v. Italy, the European Court of Human Rights found a violation of the judge’s freedom of association, not because Masonic membership was deemed acceptable per se, but because Italian rules at the time lacked the clarity and foreseeability required for the judge to reasonably know that such membership constituted a disciplinary breach. By contrast, in a dissenting opinion, five judges emphasized that Masonic lodges involved “strong hierarchical ties” and “strict obligations of loyalty,” which were manifestly incompatible with judicial office, concluding that in that context, the judge ought to have known that such affiliation carried disciplinary consequences.
Notwithstanding the innovations and improved structure, the problem of overlapping definitions of ethical violations and disciplinary offences has not been fully resolved.
For instance, under Article 108 of the Law on State Prosecution, disciplinary offences exist when a prosecutor “in the performance of prosecutorial function or in public places behaves in a manner not appropriate for prosecutorial duties,” or “addresses process participants and employees of the State Prosecution in an inappropriate way.” The Code of Ethics, through Articles 4, 6, 7, 10 and 12, prescribes almost identical standards regarding conduct towards employees, participants in proceedings, or behavior in public places. Since the prohibited behaviors are essentially defined in the same way, any inappropriate addressing or conduct can be judged simultaneously as both an ethical violation and a disciplinary offence.
The Code (Article 9) also clearly prohibits a prosecutor from requesting or accepting any gift, favour or benefit for himself or for others if such behaviour could affect, or give impression of affecting, his impartiality. This provision coincides with disciplinary offences under Article 108 of the Law on State Prosecution, which defines a serious offence if a prosecutor “accepts gifts” or uses his prosecutorial function to pursue private interests or interests of family or persons close to him. In such cases, the same act may simultaneously constitute a breach of the Code of Ethics and a disciplinary offence.
The consequences of violating the Code are significantly milder than those for disciplinary offences — a disciplinary offence can lead to warning, fine, prohibition of promotion, or dismissal; while a violation of the Code can only affect the evaluation of a prosecutor, indirectly influencing his career progression.
Furthermore, under Article 107c of the Law on the State Prosecutor’s Office, it is not permissible to conduct both proceedings simultaneously based on the same conduct or omission. If the Ethics Committee determines that there are elements of a disciplinary offense, it must suspend the proceedings for a breach of the Code and submit a proposal to initiate disciplinary proceedings. If disciplinary responsibility is established, the proceedings before the Ethics Committee are terminated; otherwise, they continue. In practice, however, despite meeting the necessary conditions, the Committee has not submitted proposals to initiate disciplinary proceedings (see: Analysis of Procedures for the Selection, Promotion and Accountability of State Prosecutors in Montenegro in 2023 and 2024, Human Rights Action).
Given that the June 2024 amendments to the Law on the State Prosecutor’s Office did not include more precise definitions of disciplinary offenses, we consider it essential to urgently establish a working group to draft further amendments to this law in order to clearly distinguish between disciplinary offenses and breaches of the Code of Ethics.
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