The Agency for Prevention of Corruption (APC) has analyzed relevant regulations governing the work of both the State Prosecutor's Office and the Special Prosecutor's Office of Montenegro (SDT), with a particular focus on procedures related to the assignment of state prosecutors to the SDT. In doing so, it identified high corruption risks, as this critical issue is not clearly and unambiguously defined in the legal texts, which can lead to uncertainty in the field of the rule of law. The Agency has concluded that the issue of meeting the necessary qualifications for work in the SDT by state prosecutors from other prosecutor's offices is not regulated, nor is the scope of their powers, status, and job description clearly defined. These aspects are essential for carrying out "urgent matters" and dealing with "increased workload" and "proceeding in a specific case" as specified in Article 24 of the Law on the Special State Prosecutor's Office.
In addition to clear criteria for determining the qualifications of individuals being seconded to work in the SDT, the Agency believes it is essential to precisely define by law the scope of their powers, status, and job description, in order to ensure that the seconded prosecutors, in addition to being qualified to perform specific prosecutorial tasks, also have the authority to conduct prosecutorial actions in a capacity similar to that of a special state prosecutor, along with the responsibility for the actions they undertake. Furthermore, it is necessary for the law to specify the content of the justification for the request made by the Chief Special Prosecutor to the Prosecutorial Council, as well as the content of the justification for the decision made by the Prosecutorial Council based on this request. This is to preserve the principles of transparency, objectivity, and selection based on merits and qualifications that are inherent to these positions.
The limited development of legal procedures for the assignment of prosecutors to work in the Special State Prosecutor's Office (SDT), as well as the relativization of the fact that the Law on State Prosecutors only regulates the assignment of state prosecutors to other prosecutor's offices under the condition that it is of the same or lower rank, and that legal provisions regarding the conditions that a prosecutor must meet do not limit assignments in cases initiated at the request of the Chief Special Prosecutor, should not be used as justification for the practice of assigning prosecutors to a status that, according to the Law on the Special State Prosecutor's Office, they would not otherwise have. Article 4 of the Law specifies that the prosecution of perpetrators of criminal offenses listed in Article 3 is carried out by the Chief Special Prosecutor as the head of the state prosecutor's office and special prosecutors as state prosecutors, the number of which is determined by the Prosecutorial Council in accordance with the Law on the State Prosecutor's Office, but not by assigned prosecutors as per Article 24 of the same Law. The Agency's recommendation is that, in order to preserve legal certainty until the procedures mentioned are defined, all actions of the respective prosecutors should be approved or signed by the Chief Special Prosecutor, the one on whose request the Prosecutorial Council has decided.
At the same time, the Agency called on the Ministry of Justice to propose appropriate solutions in this area in accordance with the recommendations from the Opinion.
The "Opinion on the Provisions Relevant to the Assignment of State Prosecutors to the Special State Prosecutor's Office of Montenegro" is available at the link.