Human Rights Action (HRA) submitted a letter to the President and members of the Prosecutorial Council in which we urged the Council to refrain from holding the general election of public prosecutors not only until the Constitutional Court reviews constitutionality of such election, but also until the criteria for election are specified.

HRA warns that, because of the current lack of parameters for assessment of criteria for the election of state prosecutors, it cannot be provided that the same criteria apply in the same way for each candidate, and that therefore objectivity has not been ensured.

Although it would be necessary to assess the quality of work of state prosecutors as soon as possible, as some cases of great social significance have obviously been ineffectively investigated and prosecuted, it is necessary to first ensure that such assessment is based on a uniform application of criteria to everyone, which is exactly what the existing regulations do not provide for.

Therefore, prior to the general election (or any further election of state prosecutors) parameters for scoring criteria should be prescribed – the best way would be to wait for the new Law on the State Prosecutor’s Office and bylaws based on that law to be adopted. Alternatively, the Prosecutorial Council should on its own prescribe parameters for the evaluation criteria by its Rules of Procedure.

As an illustration, we present some of the criteria prescribed by the law, which cannot be objectively applied – in the same way to everyone – without parameters that would specify their use:

–        In Montenegro the “worthiness of candidates for the post of state prosecutor” is scored from 0 to 20 points, where it is unclear according to which data someone will get for example 4 points, and someone else 16 points; for “reputation and irreproachable conduct” from 0 to 10 points can be obtained, while it is unclear what is meant by “vicious behaviour” and how it is scored, and the question is how the Prosecutorial Council comes to such information based on which such assessment can be made;

–        Prosecutors and deputy state prosecutors are evaluated based on work results during last three years, which are evaluated from 0 to 40 points, but it is not prescribed what is the number of confirmed indictments and adopted legal remedies that deserve certain number of points, and how to value the fact that due to failure in the work of the prosecutor prosecution is abandoned due to time-bar for example, in one or more cases.

In the letter to the Prosecutorial Council, HRA also pointed out criticism of transparency of the Council’s decision-making – in the past five years Prosecutorial Council elected 106 prosecutors, and gave somewhat reasoned decisions for only 5 of them – by (only) stating the number of points each candidate received. Even 101 decisions do not contain any reasoning other than the mere citation of legal norms. The new membership of the Prosecutorial Council continued with this poor practice – in the first half of 2014 it has selected 12 Heads of the Public Prosecutor’s Office based on almost identical decisions on election, which contained only cited legal norms – no decision on election presented any information about applicants or the elected candidate, based on which the public could conclude why this specific Head was elected, i.e. why he was given precedence over the other candidates.

Transparency of the work of the Prosecutorial Council is poor, as usual, so last night’s session of this body was not even announced, nor was an official statement following the session released to date.

Human Rights Action Team

Letter to the Prosecutorial Council in Montenegrin