NB_CE

CCPE-SA(2014)2

Strasbourg, 12 May 2014

Consultative Council of European Prosecutors

(CCPE)

Opinion on

the status of prosecutors

following amendments to the law

concerning the State Prosecutor's Office in Montenegro

I. Introduction

By letter dated 3 September 2013, addressed to the President of the Consultative Council of European Prosecutors (CCPE), the representatives of Montenegro at the 8th plenary meeting of the CCPE in Yerevan sought the opinion of the CCPE on constitutional and legal changes which occurred on 31 July 2013 concerning the status of prosecutors in Montenegro.

By letter dated 24 March 2014, the President of the CCPE, Mr Antonio MURA, informed the President of the Prosecutorial Council of Montenegro, Mr Veselin VUCKOVIC, that the CCPE Bureau decided to prepare an opinion and he had set up, for this task, an ad hoc CCPE Working Group (WG) composed of 3 experts: Mr Cedric VISART de BOCARME (Belgium), Mr Joao Manuel DA SILVA MIGUEL (Portugal) and Mr Peter McCormick (Ireland).

They were entrusted with the task of verifying the compliance of new constitutional and legislative provisions with international standards and in particular with Recommendation (2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system of the Council of Europe

II. Presentation of the question

A. The Constitution adopted by Montenegro in 2007 contained specific provisions for the Prosecutor’s Office:

· Article 134 that “the State Prosecution shall be a unique and independent state authority that performs the affairs of prosecution of the perpetrators of criminal offenses and other punishable acts who are prosecuted ex officio”;

· Article 135 that “the affairs of the State Prosecution shall be performed by the State Prosecutor. The state prosecutor shall have one or more deputies. The supreme State Prosecutor and state prosecutors shall be appointed and dismissed from duty by the Parliament. The Supreme State Prosecutor and state prosecutors shall be appointed for the period of five years”;

· Article 136 that “the council of prosecutors shall secure the independence of the state prosecution and the state prosecutors. The council of prosecutors shall be elected and dismissed from duty by the Parliament. The election, mandate, responsibilities, organization and manner of work of the council of prosecutors shall be regulated by the law”.

B. On 31 July 2013, amendments to the Constitution were approved by the major political parties to depoliticize the judicial apparatus at the request of the parliamentary assembly of the Council of Europe and the European Commission:

· Amendment 10 (which replaces Article 135 of the Constitution):

Tasks of the State Prosecutor’s Office shall be executed by the heads of the state prosecutor’s offices and state prosecutors.

The Supreme State Prosecutor shall be elected and discharged from duty by the Parliament of Montenegro upon hearing before the relevant parliamentary body, at the proposal of the Prosecutors’ Council, based on the public vacancy announcement.

The Supreme State Prosecutor and heads of state prosecutor’s offices shall be elected for the period of five years.

Duty of the state prosecutor shall be permanent. Exceptionally, persons elected to the duty of the state prosecutor for the first time shall be appointed for the period of four years.

Mandate of the head of the state prosecutor’s office and state prosecutor shall cease and they shall be discharged from duty in cases and under the procedure stipulated by the law.

Head of the state prosecutor’s office and state prosecutor shall be discharged from duty if sentenced with the effective court decision to unconditional imprisonment.”

· Amendment 11 (which replaces Article 136 of the Constitution):

Prosecutors’ Council shall ensure independence of the state prosecutor’s office.

The Supreme State Prosecutor shall chair the work of the Prosecutors’ Council, except in case of the disciplinary proceedings.

Composition, election, mandate, organization and manner of work of the Prosecutors’ Council shall be regulated by the law.

Prosecutors’ Council:

- establishes the proposal for appointment of the Supreme State Prosecutor;

- appoints and discharges from duty heads of state prosecutor’s offices and state prosecutors;

- determines the end of mandate of heads of state prosecutor’s offices and state prosecutors;

- proposes to the Government the amount of money for the work of state prosecutor’s office;

- submits to the Parliament annual activity report of the State Prosecutor’s Office;

- discharges other duties stipulated by the law.

Prosecutors’ Council shall adopt decisions with majority vote of all of its members.”

C. Moreover, two laws were adopted to adapt the legal framework to the Constitution:

· The law on State Prosecutor’s Office (2008)

Autonomy and independence

Article 3: Duty of the State Prosecutor shall not be discharged under anyone’s influence and no person shall influence the State Prosecutor in the discharge of his duty, except in the cases stipulated by this Law.

State Prosecutor

Article 4: The affairs of the State Prosecutor’s Office shall be discharged by the State Prosecutor, Higher State Prosecutor and Basic State Prosecutor (hereinafter: the State Prosecutor).

Certain tasks of the State Prosecutor’s Office, in accordance with the law, shall be executed by the Special Prosecutor.

Deputy State Prosecutor

Article 5: State Prosecutor shall have a deputy.

In the proceedings before the court or some other state authority, Deputy State Prosecutor (hereinafter: the Deputy) shall be authorized to execute all activities that the state prosecutor s/he is the deputy of is authorized to execute based on the law.

Mandate

Article 28: Duty of the Deputy is permanent.

Exceptionally from Paragraph 1 of this Article, the Deputy of the Basic State Prosecutor shall be appointed for the first time for the period of three years.

Management

Article 92: The State Prosecutor shall organize work, assign tasks and undertake measures for the purpose of regular and timely execution of tasks of the State Prosecutor’s Office.

Within the limits of his/her authority, the State Prosecutor shall be responsible for regular and timely execution of tasks.

Work instructions

Article 110: The Supreme State Prosecutor shall issue compulsory work instructions to the Higher State Prosecutor and the Basic State Prosecutor.

The Higher State Prosecutor shall issue compulsory work instructions regarding his/her line of work to the Basic State Prosecutor.

Compulsory work instruction in the sense of this law shall be instruction of a general character and instructions how to act in specific cases.

The Supreme State Prosecutor shall issue instructions of a general character, and Higher State Prosecutor and Basic State Prosecutors may initiate their adoption, when they deem necessary.

Instructions how to act in specific cases shall be issued by the Supreme State Prosecutor to his/her deputies, higher and basic state prosecutors; by the Higher State Prosecutor to his/her deputies and basic state prosecutors regarding his/her respective line of work, and the Basic State Prosecutor shall issue them for his/her deputies.”

· The law on “Amendments on the law on state prosecutor’s 2013”:

Managers and State Prosecutors

Article 4: The Supreme State Prosecutor shall manage the work of the State Prosecutor’s Office.

Heads of the state prosecutor’s offices shall manage the work of the basic and higher prosecutor’s offices, and the Supreme State Prosecutor shall manage the work of the Supreme State Prosecutor’s Office.

Head of the state prosecutor’s office and state prosecutor shall perform the duty of a prosecutor in the state prosecutor’s office in which they were elected or to which they were referred, i.e. the one they were transferred to in accordance with this law.

Special prosecutor for suppression of organized crime, corruption, terrorism and war crimes (hereinafter: special prosecutor) shall perform specific tasks of the state prosecutor’s office, in accordance with the law.

Article 64

Article 92 is amended as follows:The head of the state prosecutor’s office organizes work, assigns tasks and undertakes measures for the purpose of proper and timely discharge of duties of the state prosecutor’s office.

The head of the state prosecutor’s office shall be responsible, within the limits of his/her authority, for the proper and timely discharge of duties.

In case of absence, inability to work or end of mandate, head of the state prosecutor’s office shall be substituted by the state prosecutor designated by the assembly of state prosecutor’s office for each calendar year, at the proposal of the head of the state prosecutor’s office.

Article 78

Article 110 is amended as follows: Compulsory work instructions

Article 110: For the purpose of uniform implementation of the law, in the work of the State Prosecutor’s Office it is possible to issue compulsory work instructions.

Compulsory work instructions in the sense of this law shall be instructions of a general character and instructions on how to act in specific cases.

The Supreme State Prosecutor shall issue instructions of a general character, and heads of the Prosecutor’s Offices may initiate their adoption, when they deem necessary. This instruction shall be issued in writing.

Instructions on how to act in specific cases shall be issued by the Supreme State Prosecutor to state prosecutors from the Supreme State Prosecutor’s Office and to the heads of the higher and basic prosecutor’s offices; and by the head of the Higher Prosecutor’s Office to state prosecutors from that prosecutor’s office and to the heads of the basic state prosecutor’s offices in his/her respective line of work; and the heads of the basic state prosecutor’s offices to the state prosecutors working in those respective prosecutor’s offices.

Article 90

Following Article 135f there are nine new articles added as follows:

Deadline for the election of the Prosecutors’ Council

Article 135g: Election of new members of the Prosecutors’ Council, in accordance with this law, shall be realized within three months from the date of coming into effect of this law.

Members of the Prosecutors’ Council from amongst state prosecutors shall be elected by the Conference of State Prosecutors comprised of state prosecutors and their deputies appointed in accordance with the Law on State Prosecutors’ Office (Official Gazette of RoM no. 30/93 and Official Gazette of MNE no. 40/08 and 39/11).

Prosecutors’ Council elected in accordance with the Law on State Prosecutor’s Office (Official Gazette of ROM no. 30/93 and Official Gazette of MNE no. 40/08 and 39/11) shall continue with its activities until the election of the new Prosecutors’ Council in accordance with this law.

Public Call for the Appointment of the Supreme State Prosecutor

135h: Public Call for the appointment of the Supreme State Prosecutor shall be announced by the Prosecutors’ Council within 30 days from the date of coming into effect of this law, and the proposal for the appointment of the Supreme State Prosecutor shall be forwarded to the Assembly within 10 days from the day of expiry of the deadline set in the Public Call.

Deadline for the appointment of heads and state prosecutors

Article 135i: Appointment of heads of state prosecutor’s offices, in accordance with this law, shall be executed within three months from the date of election of the Prosecutors’ Council.

Appointment of state prosecutors, in accordance with this law, shall be executed within six months from the date of election of the Prosecutors’ Council.

In the process of appointment of state prosecutors there will be no written test of the candidates implemented in the sense of Article 35a of this law, if the candidates have already discharged the prosecutorial duty, and in this case scoring will be done using the criteria referred to in article 33b of this law.

If the candidate who discharged prosecutorial duty for minimum three years is selected for the position of the state prosecutor, he/she shall be appointed with a permanent mandate, and if the candidate who discharged prosecutorial duty for less than three years prior to this is selected for the position of the state prosecutor, he/she will be appointed for the period of four years.

Mandate of the state prosecutors

Article 135j: As of the date of entry of this law into force, state prosecutors and the deputies thereof appointed in accordance with the Law on State Prosecutor’s Office (Official Gazette of RoM no. 30/93 and Official Gazette of MNE no. 40/08 and 39/11), shall continue to discharge their duties until the election of heads of state prosecutor’s offices and state prosecutors takes place in accordance with this law, unless they are discharged from duty or their mandate expires prior to that.

Deadline for adoption of the Rules of Procedure

Article 135k: Rules of Procedure of the Prosecutors’ Council shall be harmonized with this law within 30 days from the date of coming into effect of this law.

Deadline for adoption of decision on number of state prosecutors

Article 135l: Decision on the number of state prosecutors shall be adopted within 20 days from the date of election of the Prosecutors’ Council, in accordance with this law.

Deadline for election of the Selection Commission

Article 135lj: The extended Assembly of the Supreme State Prosecutor’s Office shall appoint the Selection Commission within 15 days from the date of coming into effect of this law.

Mandate of the Special Prosecutor

Article 135m: Special Prosecutor and his/her deputies appointed in accordance with the Law on State Prosecutor’s Office (Official Gazette of RoM no. 30/93 and Official Gazette of MNE no. 40/08 and 39/11) shall continue to discharge their duties until the adoption of the special law, unless they are discharged from duty or their mandate expires prior to that.

Application of the law on the ongoing procedures

Article 135n: Ongoing procedures for the appointment of state prosecutors and deputies that were initiated, but not finalized before the coming into effect of this law, shall be suspended.

Procedures for establishment of the end of mandate, disciplinary responsibility and discharge from duty of the state prosecutors and deputies, initiated in accordance with the Law on State Prosecutor’s Office (Official Gazette of RoM no. 30/93 and Official Gazette of MNE no. 40/08 and 39/11) shall be finalized according to the provisions of the law they were initiated under, unless this law is more favorable for them.

Article 91: This Law shall come into effect on the eight day from the date of being published in the Official Gazette of Montenegro”.

The 2008 law governing state prosecutors prescribed that the mandate of the state prosecutors was for a fixed term and the appointment of their deputies was permanent.

Following the constitutional and legislative change, the duties formerly carried out by the former state prosecutors are to be carried out by heads of state prosecutor’s offices who are to be appointed for a fixed term. The duties formerly carried out by the former deputies are now to be carried out by state prosecutors who are to be appointed permanently. The constitutional amendment prescribes that the mandate of the state prosecutors is permanent.

The 2013 law on amendments to the law on state prosecutor’s offices provides for the appointment of the supreme prosecutor, heads of prosecutor’s offices and of state prosecutors within a fixed timeframe from the date of enactment of the new law.

The President of the Prosecutorial Council of Montenegro has indicated that, following the constitutional change, the roles of the former deputies and those of the new state prosecutors are the same. The title of the former “state prosecutors” has been changed to “heads of prosecutor’s offices” and the title of the former “deputies” has been changed to “state prosecutors”.

He has expressed concern that the 2013 law requires these former deputies to undergo selection for reappointment as state prosecutors in circumstances where the constitution and the 2008 law provide that their appointment is permanent. He has raised a concern that such a selection process is not required by the constitutional amendment and that the process can negatively impact on the independence and impartiality of prosecutors as well as cause administrative difficulties in the reappointment procedure for 109 such prosecutors.

III. Reference texts and documents

For the CCPE, the independence of justice is an essential value in a democracy. The CCPE would like to refer in particular to:

· point 5 of Recommendation Rec(2000)19 which specifies the essential requirements for recruitment, promotion and transfer of public prosecutors;

· point 8 of the CCPE Opinion N°4 (2009) (“Bordeaux Declaration”) approved by the CCPE which refers to the independence of prosecutors;

· the European Commission for Democracy through Law (the Venice Commission) which issued an opinion (CDL-AD(2008)005) on the draft amendment to the law on the State Prosecutor of Montenegro at its plenary session of 14-15 March 2008;

· the Committee on the Honoring of Obligations and Commitments by Member States of the Council of Europe Parliamentary Assembly (Monitoring Committee) which have published an information note (8 November 2013) (AS/Mon(2013)21rev2) on honoring of obligations and commitments by Montenegro.

It appears from these documents that Montenegro has taken useful steps to improve the independence of courts.

In December 2007, the Venice Commission had given an opinion (CDL-AD(2007)047) on the Constitution of Montenegro in which it recalled the commitments of Montenegro upon accession to the Council of Europe relating to the judiciary and prosecution, namely: “The constitution must provide for independence of the judiciary and recognize the imperative of avoiding any decisive role of political institutions in the procedure of appointment and dismissal of judges and prosecutors”.

The Venice Commission had also noted (CDL-AD(2008)005) the importance of providing a permanent mandate for prosecutors because “fixed term appointments in combination with a possibility of reappointment 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”.

In addition, Recommendation Rec(2000)19 of the Committee of Ministers of the Council of Europe expressly provides (§5, points a, b, c) that:

States should take measures to ensure that:

a. the recruitment, the promotion and the transfer of public prosecutors are carried out according to fair and impartial procedures embodying safeguards against any approach which favors the interests of specific groups, and excluding discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status;

b. the careers of public prosecutors, their promotions and their mobility are governed by known and objective criteria, such as competence and experience;

c. the mobility of public prosecutors is governed also by the needs of the service;”

The International Association of Prosecutors adopted on 23 April 1999 “Standards of professional responsibility and statement of the essential duties and rights of prosecutors” which states, namely, that (see Chapter 6):

“In order to ensure that prosecutors are able to carry out their professional responsibilities independently and in accordance with these standards, prosecutors should be protected against arbitrary action by governments. In general they should be entitled:

- to perform their professional functions without intimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal or other liability;

- together with their families, to be physically protected by the authorities when their personal safety is threatened as a result of the proper discharge of their prosecutorial functions.

IV. Opinion of the CCPE

International standards provide that prosecutors should enjoy, throughout their professional career, stability in their functions and in no circumstances should they fear being excluded due to political reasons or due to changes in the judiciary deriving from the margin of appreciation of States.

On several occasions, during the analysis of constitutional and legal provisions in different member States of the Council of Europe, the Venice Commission reiterated:

· the law on the prosecutor’s office should clearly define the conditions of the Prosecutor’s pre-term dismissal (Report on European standards as regards the independence of the judicial system CDL-AD(2010)040, 3 January 2011, §39 concerning the draft law in Ukraine);

· given the power of the disciplinary commissions to dismiss a judge or prosecutor, an appeal to a court of law would be essential, at least for cases where a serious penalty was imposed (Opinion on the draft Law on the High Judicial and Prosecutorial Council of Bosnia and Herzegovina CDL-AD(2014)008, 24 March 2014, §110);

· an important element in the independence of the Prosecutor General is his protection from arbitrary or politically motivated dismissal. The grounds for dismissal should be stated in the Constitution. The Prosecutor General should be dismissed only for serious violations of the law, following a fair, e.g. stated misbehavior or incapacity (Opinion on the regulatory concept of the Constitution of the Republic of Hungary CDL-INF(96)2, section11);

· the Prosecutor General should be dismissed only for serious violations of the law, following a fair hearing (Joint Opinion on the draft Law on the Public Prosecutor’s Office of Ukraine CDL-AD(2013)025, 14 October 2013, § 14).

At European or international level, there is no uniform rule as to the term of office of a prosecutor other than the Prosecutor General, for which the duration of a limited mandate is perfectly acceptable. However, security of functions is an element that strengthens the independence and impartiality of a prosecutor.

On this issue, the Venice Commission found that:

Prosecutors should be appointed until retirement. Appointments for limited periods with the possibility of re-appointment bear the risk that the prosecutor will make his or her decisions not on the basis of the law but with the idea to please those who will re-appoint him or her” (above-mentioned Report on European standards CDL-AD(2010)040, 3 January 2011, § 50).

With the exception of the Prosecutor General, the CCPE strongly supports the idea of an appointment until retirement or, in others words, for life, granting prosecutors a status close to that of judges, allowing them to perform their duties in the conditions of a stable career and contributing to the image of the independence and credibility of the courts. Removal from the office should only be admitted under serious conditions.

The only reason that can justify a prosecutor being removed from the office is a disciplinary procedure according to the law and respecting the rights of the defense and the same rules and safeguards that apply to the criminal procedure.

Appointment and mobility are related issues and the CCPE considers it important to include reference to the issue of mobility. For this purpose, clear and objective rules should be set up and followed.

In this context, the Venice Commission concluded inter alia that:

- “It would be important that the procedural safeguards for any judge or prosecutor who is to be transferred under compulsion should be set out in the law and the criteria for such transfer clearly stated together with the possibility for the judge or prosecutor affected to answer any case which is made against him or her and to have a right of appeal to a court of law against any decision to transfer” (Opinion on the draft Law on Judges and Prosecutors of Turkey CDL-AD(2011)004, 29 March 2011, § 48);

- “A means of influencing a prosecutor is his or her transfer to another prosecutor’s office without their consent. Threats of such transfers can be used as an instrument for applying pressure on the prosecutor or a “non obedient” prosecutor can be removed from a delicate case. Again, an appeal to an independent body like a Prosecutorial Council or similar should be available”. (above-mentioned Report on European standards CDL-AD(2010)040, 3 January 2011, § 60).

It is not apparent that the constitutional changes require the former deputy prosecutors to undergo selection for reappointment as state prosecutors in circumstances where their powers derive from the constitution and the law which provide that their appointment is permanent.

However, if it is considered desirable for the legislature to make provisions for formal appointment, the process should ensure that the former deputy prosecutors are all formally appointed as state prosecutors without the need to undergo any selection process and continue their career uninterrupted on the basis of the new constitutional and legislative provisions.

This technique has already been used in several member States of the Council of Europe (for example, in Belgium after a change of territorial jurisdiction of the courts, all judges and concerned prosecutors were renamed without exception and automatically) and avoids any risk of making a new selection of prosecutors without applying objective criteria in accordance with international standards and this Opinion.

V. Conclusions

· It is never acceptable that prosecutors, who have been appointed in a regular manner, may lose their office because of a change in the Constitution.

· A change in the Constitution and in the law should not lead to a loss of the office of prosecutors regularly appointed according to the previous Constitution and law.

· Such change should not lead to an end of the career of a duly appointed prosecutor, who has not been subject to any sanction duly imposed as a consequence of a serious offence committed previously.



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