NO DISMISSALS FROM THE PROSECUTORIAL COUNCIL SINCE ITS ESTABLISHMENT: All are equal, but prosecutors are more equal

There is no progress in establishing accountability in the judiciary

By Maja Boričić

Special Prosecutor Saša Čađenović received a disciplinary sanction 11 years ago for arbitrarily taking away a case assigned to another prosecutor while serving as a prosecutor at the Basic State Prosecutor’s Office in Podgorica. Čađenović is currently in prison on charges that he is part of a criminal gang.

In a 2012 decision by the Prosecutorial Council, seen by the Centre for Investigative Journalism of Montenegro (CIN-CG), Čađenović had his salary cut by 15% for three months as punishment for failure to perform his prosecutorial duties properly.

On 24 October 2012, he requested from V. M., the technical secretary of the Basic State Prosecutor’s Office in Podgorica, to be handed over a case assigned to by the state prosecutor in Podgorica, LJ. K, to deputy prosecutor, I. P. Without the knowledge of the prosecutor and the case processor, he prevented the dispatch of the decision previously agreed upon by the state prosecutor, drafted another decision without authorization, signed it as the processor, and submitted it to the prosecutor for review.

Eleven years later, the Special State Prosecutor’s Office brought charges against Čađenović for the offence of forming a criminal organization and six offences of abuse of office.

Čađenović is accused of becoming a member of the criminal organization of ‘Kavac clan’ in mid-2020, with the task of not pursuing criminal prosecution and not initiating proceedings against the organizers and members of that criminal organization as a special prosecutor. As the indictment reads, Čađenović among other things hindered the identification of perpetrators of the most serious criminal offences, prevented their detention, removed reports provided by EUROPOL from case files as well as criminal complaints filed by the police against them.

No prosecutor has ever been dismissed since the establishment of the Prosecutorial Council in Montenegro. Only prosecutor Romina Vlahović was fired for incompetent and negligent work, but she was soon reinstated as the Prosecutorial Council’s decision on her dismissal was overturned.

In the last ten years, there have not even been any fines imposed in disciplinary proceedings conducted by the Prosecutorial Council, except for prosecutor Nikola Boričić from the Basic State Prosecutor’s Office in Podgorica, but even that decision was overturned, so the prosecutor was acquitted in a retrial.

Many prosecutors, however, have resigned before disciplinary proceedings were initiated, thereby preventing the conduct of disciplinary proceedings. Some who made serious mistakes were not even subject to any proceedings, and some have been promoted in the meantime.

Even if criminal proceedings are initiated against prosecutors and judges, they usually drag on for years and often end “ingloriously”. Disciplinary proceedings resulted in symbolic penalties at best –such as a salary deduction for a few months.

In the latest unofficial document, known as a non-paper, the European Commission emphasizes that there is virtually no progress when it comes to establishing the accountability of judges and prosecutors:

“The promotion and enforcement of ethics and standards of professional behaviour of judges and prosecutors remains a challenge. There is a limited track record and a lack of proactivity by both Councils.”

The Prosecutorial Council attributes this to legislative solutions, which, as they assert, are inadequate as they leave room for interpretation.

In recent times, proceedings have been initiated against some of the top figures in the judiciary, including former president of the Supreme Court Vesna Medenica, president of the Commercial Court Blažo Jovanić and Special Prosecutor Saša Čađenović, among others.

“The extent of disruption to the foundation of the judiciary and justice in Montenegro is best illustrated by arrests of those who were supposed to serve it. Still, there needs to be caution towards the propensity for selective justice, which unfortunately is not an exception but rather the rule for Montenegro,” emphasizes Marija Popović Kalezić, director of the Centre for Civic Freedoms (CEGAS).

She notes that for further reform, it is necessary to fill all positions in the judicial and prosecutorial system with higher-quality staff, but also to consider the introduction of vetting.

Kalezić also underscores that both the Prosecutorial and Judicial Councils should do much more to expedite key changes.

“The functionality of both councils, as well as transparency, must be increased and lead to concrete results,” she adds. 

Vlahović dismissed and then reinstated to her position

The only decision by the Prosecutorial Council leading to the dismissal of Romina Vlahović was later overturned and she was reinstated.

Vlahović, a prosecutor at the Basic State Prosecutor’s Office in Podgorica, was dismissed in disciplinary proceedings in April 2013 due to incompetent and negligent performance of prosecutorial duties. The decision stated that the prosecutor made unlawful decisions in certain cases, failed to act in cases assigned to her, kept cases at home and refused to return them upon request. It was also noted that she did not consider cases with sufficient care and expertise, while delaying proceedings. Her actions led to the dismissal of criminal charges in some cases, as stated in the annulled decision of the Prosecutorial Council.

A few days before this decision was made, Vlahović submitted her resignation. However, the Prosecutorial Council deemed it ‘irrelevant’ back then.

Before facing disciplinary action, a criminal proceeding was initiated against Vlahović in January 2013 for stealing two creams from a ‘Cosmetics’ shop. She was found guilty in the first-instance judgment, but the High Court later overturned that decision. The case was remanded for retrial, which was then suspended due to a legislative change concerning the prosecution for thefts valued at less than 150 euros, which now requires a private lawsuit. The shop owner did not prosecute Vlahović.

In addition to being reinstated, she also received compensation totalling 21,000 euros for reduced or unpaid salaries from February 2013 to August 2014, as well as for unpaid rent during that period.

Prosecutor Nikola Boričić from the same prosecutor’s office faced disciplinary charges for failure to act, resulting in the limitation period expiring in 13 criminal cases. He received a symbolical punishment from the Prosecutorial Council in the form of a 20% salary deduction for three months. The Supreme Court overturned this decision, citing a lack of evidence that the prosecutor’s actions led to the expiration of the cases and consequently acquitting him of responsibility.

Boričić claimed that this procedure was retaliation from Lepa Medenica, head of the High State Prosecutor’s Office, and Dražen Burić, former Acting Head of the High State Prosecutor’s Office, because he refused to act on their unlawful orders, especially after refusing to engage in illegal actions regarding the case publicly known as Belivuk – Miljković. In particular, he refused to participate in lifting the entry ban for those individuals into Montenegro.

As a result of this case, disciplinary proceedings were recently initiated against Medenica, which also ended ingloriously. The Prosecutorial Council refused to discuss the proposal for Medenica’s dismissal because the indictment was poorly drafted. According to information obtained by CIN-CG, this decision will also be brought before the Supreme Court.

Deputy disciplinary prosecutor Tanja Nišavić lodged an appeal with the Supreme Court, seeking to annul the Prosecutorial Council’s decision and remand the case for reconsideration.

The prosecutor accused of usury awaits the High Court

In response to CIN-CG’s request to have access to all decisions regarding the dismissal and temporary removal of prosecutors, the Prosecutorial Council said that data from 2015, the year when the Secretariat of the Prosecutorial Council was established, are available on the website. They also mentioned that they currently do not have access to the archives of that institution as they have not yet been digitized.

The website only contains three decisions regarding the temporary removal of Saša Čađenović, Grujo Radonjić and Lidija Mitrović.

The Basic Court in Kotor told CIN-CG that the proceedings against Grujo Radonjić, the suspended prosecutor of the High State Prosecutor’s Office, have been before the High Court for a year now, pending an appeal against the first-instance judgment.

The proceedings against Radonjić were initiated back in 2018. In April last year, he was initially sentenced to the minimum term of one year imprisonment for usury and fined 1,000 euros. He was accused of ‘earning’ around 44,000 euros through usury. According to the Criminal Code (CC), usury is liable to a fine and imprisonment for a term ranging from one to eight years.

Prosecutor Lidija Mitrović of the Special Prosecutor’s Office has been accused of abusing her office in the ‘Klap’ case by enabling five defendants to avoid criminal prosecution.

In the ‘Klap’ case, the Special Prosecutor’s Office accused 19 individuals of tax evasion and non-payment of contributions, resulting in damage to the state budget amounting to 2.6 million euros.

CIN-CG previously reported that the majority of defendants, including individuals from the ‘Klap’ case, who were members of criminal groups involved in tax evasion amounting to millions of euros, were only imposed suspended sentences and fined a few thousand euros. All of these agreements were approved by judge Boris Savić, with most of the deals having been negotiated by prosecutor Mitrović.

Prosecutor Srđa Jovanović from Kotor resigned after the Special Prosecutor’s Office initiated proceedings against him, thereby avoiding disciplinary action. The Special Prosecutor’s Office began proceedings against Jovanović over a year ago on suspicion of committing the crime of abuse of office. The current status of this case, including whether charges have been filed against the former prosecutor, remains unclear as the Special Prosecutor’s Office has not provided further information.

The Basic State Prosecutor’s Office in Nikšić told CIN-CG that the proceedings against prosecutor Vukas Radonjić, on suspicion of domestic violence, are still in the preliminary investigation stage.

Radonjić's wife reported him for domestic violence back in May, but the Nikšić-based prosecutor’s office has not yet decided on whether to prosecute Radonjić, despite three months having passed since the complaint was filed.

No progress in holding judges and prosecutors accountable

European officials also stress the need for better supervision of the judiciary in Montenegro, including more thorough and unannounced inspections.

“The approach of Ethical Commissions of the Judicial and Prosecutorial Councils to handling cases is still not sufficiently effective and consistent.“

Marija Popović Kalezić, the director of CEGAS, also says that the lack of implementation and malfunctioning of both internal and external control systems are key reasons for the lack of prosecution of judges and prosecutors”

“For five consecutive years, the Special State Prosecutor’s Office has not undergone any control by the Supreme State Prosecutor’s Office, and delays in control by higher authorities over lower ones have also been common.”

She also underscores that during the seven years of operation of the Complaints Commission regarding the legality of the work of prosecutors and heads of state prosecutor’s offices, a total of 667 complaints were filed, of which only 39 were found to be justified.

“Over the past seven years, only 10 disciplinary offences (punished with the lowest sanctions) and six cases of violation of the principles of the Code of Ethics, which cannot directly impact work assessments, have been identified. It is clear how effective and successful the control system itself is.”

European officials also highlight the differing practices of the Judicial Council and the Prosecutorial Council regarding the inaccurate reporting of assets to the Agency for the Prevention of Corruption.

They explain that the disciplinary committee of the Judicial Council failed to impose sanctions on judges for this type of improper behaviour, while the Prosecutorial Council sanctioned prosecutors by reducing their salaries by 20 percent.

“The independence, accountability and professionalism of the judiciary must be enhanced”, concludes the European Commission.

Popović Kalezić emphasizes that the control is best illustrated by the fact that only one prosecutor in Montenegro has received a three, while all others have been rated with the highest grade, which allows them to advance further. She concludes that legislative changes regarding control and accountability in the judiciary are necessary.

Prosecutorial Council awaits legislative changes

Stevo Muk, a member of the Prosecutorial Council, says that the decision-making regarding disciplinary responsibility should be returned to all members of the Prosecutorial Council, as this currently mostly lies within the Disciplinary Board of the Prosecutorial Council. Muk emphasizes that this is a bad practice that needs to be overcome “with a little goodwill, which has been lacking in the leadership of the Council over the past year and a half.”

He also emphasizes that amendments to the Law on the State Prosecutor’s Office are necessary, both in terms of the procedure for establishing disciplinary responsibility and in the description of disciplinary offences.

“It may be necessary to expand the circle of initiators of disciplinary proceedings or possibly lay down that anyone may submit an initiative for establishing disciplinary responsibility. Ultimately, the decision to initiate disciplinary proceedings would remain with the disciplinary prosecutor,” Muk told CIN-CG.

He explains that it is a misconception that it is the Prosecutorial Council that takes decisions regarding disciplinary responsibility.

“The only such case was the initiative for the dismissal of the head of the High State Prosecutor's Office in Podgorica, Lepe Medenica, which was suspended before the Prosecutorial Council had the chance to ascertain the facts and make a decision,” Muk said.

According to the Law on the State Prosecution, proposals for establishing disciplinary responsibility may be submitted by the head of the State Prosecutor’s Office, the head of the immediately superior state prosecutor's office, the Supreme State Prosecutor, the Minister of Justice and the Commission for Monitoring the Application of the Code of Ethics of State Prosecutors.

Incompetent and negligent performance of prosecutorial duties is deemed to have occurred when a state prosecutor: fails to achieve at least 50 percent of the workload results without justified reasons, unless they provide valid reasons for not achieving the results; starts performing parliamentary or other public functions or professionally engages in another activity; receives an unsatisfactory rating twice in a row; receives disciplinary sanctions twice for serious disciplinary offenses; commits a serious disciplinary offence causing significant damage to the reputation of the State Prosecutor’s Office.

Speaking to CIN-CG, acting Supreme State Prosecutor Tatjana Begović highlighted that work is underway on amendments to the Law on the State Prosecution: “Representatives of the State Prosecutor’s Office and the Prosecutorial Council, members of the working group, are striving to contribute with concrete proposals to further specify certain norms concerning disciplinary responsibility.”

Begović emphasizes that the State Prosecutor’s Office recognizes only perpetrators of criminal offences in its work, regardless of their position or profession: “If there is suspicion that someone has committed a criminal offence that is prosecuted ex officio, they are treated in the same manner, regardless of whether they are a state prosecutor, judge or representative of any other profession.”

Regarding state prosecutors against whom criminal proceedings have been initiated, Begović explains that the Prosecutorial Council, in the current stages of the proceedings, has made the only possible decisions, which are decisions on suspension: “The Law on the State Prosecution stipulates that if a state prosecutor is convicted of an offence that makes them unworthy of performing prosecutorial functions, this constitutes the most serious disciplinary offence.”

However, this is not the only way for a prosecutor to be dismissed. According to the law, this can also be done due to incompetence and negligent work. According to the decisions of the Prosecutorial Council, there have been no such cases in Montenegro.

Vesković: Katnić should have been given a disciplinary penalty

Legal advisor at the Human Rights Action Marija Vesković told CIN-CG that disciplinary prosecutors should be empowered to initiate disciplinary proceedings. Additionally, she emphasizes that the 2015 suggestion of the Venice Commission should be taken into consideration, as it proposes that a person outside the prosecutor’s office should be appointed as a disciplinary prosecutor, thereby increasing democratic legitimacy and credibility in determining accountability.

As an example, she mentions the case of former Chief Special Prosecutor Milivoje Katnić, who was never held accountable for releasing statements containing excerpts from transcripts obtained through surveillance measures, which constitutes a serious disciplinary offence. Katnić disclosed information he acquired in cases and used his position to further his private interests.

“Neither the then acting Supreme State Prosecutor Ivica Stanković nor Minister of Justice Vladimir Leposavić took any action, although they had the legal authority to initiate proceedings against Katnić.”