Strengthen oversight role of Prosecutorial Council and prevent autocratic control of prosecution

The Institute Alternative (IA) has submitted suggestions to the Constitutional Committee of the Parliament of Montenegro as part of the public consultation on amendments to the Constitution of Montenegro, focusing on the proposed provisions concerning the State Prosecutor’s Office and the Prosecutorial Council. They argue that the Supreme State Prosecutor should not be a member or chair of the Prosecutorial Council, that constitutional safeguards against prosecutorial arbitrariness are necessary, that a qualified majority could further obstruct the Council’s work, that the Prosecutorial Council needs a clearly defined oversight role, that the procedure for initiating the dismissal of the Supreme State Prosecutor should be regulated by the Constitution, and that constitutional amendments must strengthen oversight rather than concentrate power.

- We believe that the proposed amendments fail to address the key problems of the existing constitutional framework, above all the fact that the Supreme State Prosecutor is simultaneously a member and chair of the Prosecutorial Council. Such an arrangement creates a conflict of interest and an inappropriate concentration of power: the Supreme State Prosecutor, as head of the State Prosecutor’s Office, is at the same time at the helm of the body that is supposed to oversee the work of the prosecution – Institute Alternative said.

They proposed removing from the Constitution the provision that automatically makes the Supreme State Prosecutor the chair of the Prosecutorial Council, as well as the provision making the Supreme State Prosecutor a member of that body.

- We believe that the Prosecutorial Council should be chaired by a non-prosecutorial member or that the position should be organised through a rotation system, with a member from among state prosecutors chairing for half of the term and a member from among distinguished lawyers for the other half. If the Supreme State Prosecutor is excluded from the Council, one member could instead be appointed by the President of the country following a public call and according to the criteria applicable to distinguished lawyers elected by Parliament. Alternatively, one member could be appointed by the Conference of Judges from among judges, thereby establishing a more appropriate balance between the different legal professions represented on the Prosecutorial Council – they stressed.

According to them, the composition of the Prosecutorial Council under the proposed amendments is effectively copied from the 2024 Law on the State Prosecutor’s Office, abandoning the composition established by the 2021 amendments, which launched the reform process within the State Prosecutor’s Office.

The Institute Alternative warns that a formally equal number of prosecutorial and non-prosecutorial members, once the Supreme State Prosecutor is excluded, does not necessarily mean that they have equal influence.

- If the prosecutorial members act as a unified bloc due to hierarchical relationships within the prosecutorial organisation, while non-prosecutorial members act independently of one another, the balance of power in practice may be significantly different from what the numerical composition alone would suggest. This problem is also highlighted by the fact that, under the law, non-prosecutorial members are in the minority on all committees and bodies of the Prosecutorial Council - IA stressed.

Therefore, they argue, when constitutionally regulating the composition of the Prosecutorial Council, it is essential to take into account the actual balance of power and the possibility of effective oversight, rather than merely the formal numerical ratio of members.

- The Institute Alternative proposes that members of the Prosecutorial Council elected by Parliament be chosen by a majority vote of all MPs. At the same time, we warn that a high qualified majority could constitute a serious political obstacle and result in the Prosecutorial Council being without some of the members elected by Parliament for an extended period. The Prosecutorial Council has already been functioning for some time without a member representing non-governmental organisations. Constitutional provisions should therefore contribute to the stable and continuous functioning of the Council, rather than create additional opportunities for institutional deadlock - IA said.

One of the Institute Alternative’s key proposals is to define more clearly in the Constitution the oversight role of the Prosecutorial Council.

- In addition to safeguarding the autonomy of the State Prosecutor’s Office, the Prosecutorial Council should have a clearly defined function of ensuring that prosecutorial duties are carried out in accordance with the Constitution and the law. This is important because the current Constitution does not explicitly provide for the Prosecutorial Council’s oversight of the legality of the prosecution’s work, while its existing statutory powers in this area are vaguely and imprecisely formulated. Strengthening the autonomy of the prosecution must not mean an absence of oversight and accountability. On the contrary, autonomy must be accompanied by clear mechanisms of oversight, accountability and transparency - IA said.

They also believe that the Constitution should be supplemented with a provision specifying who may submit an initiative to the Prosecutorial Council for the dismissal of the Supreme State Prosecutor.

- This is an issue directly linked to the constitutional position of the Supreme State Prosecutor, the separation of powers and institutional balance. Therefore, the basic authority to initiate dismissal proceedings, as well as the range of entities entitled to initiate them, should be established by the Constitution, while the law may regulate the procedural and technical aspects of the process - IA said.

The Institute Alternative proposes removing the Supreme State Prosecutor’s membership and chairmanship of the Prosecutorial Council from the Constitution, more clearly regulating the composition of the Council and the relationship between prosecutorial and non-prosecutorial members, and providing that members of the Prosecutorial Council elected by Parliament be chosen by a majority vote of all MPs.

- The Constitution should also be supplemented to clearly stipulate that, in addition to safeguarding the autonomy of the State Prosecutor’s Office, the Prosecutorial Council is responsible for ensuring that prosecutorial duties are carried out in accordance with the Constitution and the law. Finally, the Constitution should regulate the range of entities entitled to initiate proceedings for the dismissal of the Supreme State Prosecutor - they added.