Former judge on judgments: Out of 200 pages, a few paragraphs are important

if the number of resolved cases in Montenegrin courts has increased in recent years, the public gets the impression that a large number of judgments are being overturned and returned for retrials, and that many proceedings last "forever".

This is most noticeable when the cases that are under public scrutiny are abolished - Šarići, Kalići, Morinj, Zavala, Šćekić, Mandić...

Former judge of the High Court in Podgorica, lawyer Goran Velimirović points out that an absurd situation has arisen - that a step forward has been made in the number of completed cases, but also a sense of legal uncertainty due to the large number of annulled verdicts.

Drawing a parallel between the former and the current judicial system in Montenegro, he observes that twenty years ago there was a much smaller number of annulled judgments in the Montenegrin judiciary than today.

At that time, Velimirović points out, the rule was that if the court had solid evidence, the verdict was shorter, and that they more extensively indicated that the court had no real arguments for such a decision.

He assesses that today's judgments look completely different, and that more than 90 percent of their content is a mere reproduction of all the evidence presented, both those that are important and those that are not at all important for the judgment.

Velimirović explains that today, using the copy-paste method, the content of the evidence in the verdict is transferred verbatim from the record, and even "a program is used that automatically switches the testimony given in the first person to the third person".

"That's how we started getting the so-called mammoth verdicts are 50, 100 or even 200 pages long, of which only a few paragraphs refer to what constitutes the essence of the verdict. It is quite normal that with such a style of work, mistakes must be made, both of a technical nature, as well as due to the contradictions of the indiscriminately cited evidence, and the meager legal reasoning," Velimirović points out.

The lawyer added that another important difference leads to a greater number of annulled decisions compared to when he was a judge.

He clarified that this is the judge's norm, which has been increased by about 50 percent in both criminal and civil cases, and that the deadline for making judgments of 30 days is set so strictly that non-compliance can lead to the judge's dismissal.

Velimirović also points out that until ten years ago there was no Appellate Court, nor the possibility of overturning Supreme Court verdicts with a Constitutional appeal. That is why the procedure ended only in the relationship between the two court instances Basic-District (today Higher) and District-Supreme Court. According to the current system, the first-instance verdict can be annulled by as many as three court instances.

"Different courts take different legal positions (the Zavala case - diametrically opposed positions of the Appellate and Supreme Courts), which further confuses the first-instance courts, because they do not know 'which empire they will side with'." It also happens that two different councils make different decisions on the same legal issue," explains the former judge.

He reminds that the Montenegrin Law on Criminal Procedure also provided for the possibility of shorthand and audio recording of the main trial, which, unfortunately, is not implemented.

Velimirović assessed that judges spend "an enormous amount of time on writing excessive verdicts", which leaves the most room for annulment of decisions.

"We need to create solutions that go, if not quite Anglo-Saxon, to the American judiciary, where judgments are written on one side, and at least direct their writing to an incomparably smaller scale, where only the essence, the essence of the evidence from which the court drew a conclusion for his decision", concludes the former judge.

Begović: Formal deficiencies are the most common reason for cancellation

The President of the Bar Association, Zdravko Begović, points out that very often it happens that the judgment is annulled due to some formal defect, which does not affect the correct judgment. He assesses that a great deal of time is wasted, the costs of the procedure increase, and in certain cases the conduct of the procedure loses its meaning.

"If such a verdict hit the bottom line, I am convinced that some formal defect neither can nor should be a reason for its cancellation," he said.

When deciding on an appeal, concludes Begović, the court must take into account the quality of the judgment as a whole, and present to the lower court how to proceed in the retrial, so that the judgment is not revoked multiple times.

Incomplete termination solutions

The judges of the Podgorica Basic Court generally believe that the reasons for annulment of judgments do not change the essence of the decision, and that in many cases, the annulment decisions state that the first-instance verdict is unclear and incomprehensible, without specific reasons why it is so.

Also, in the litigation department of that court, they assess that some things should be better regulated by amendments to the Law on Civil Procedure, the adoption of which is planned by the end of the year.

As they explain, now the old and new ZPP are often intertwined, where according to the old law, the burden of proof was on the court, and according to the new one, on the plaintiff and the defendant.

"The second-instance court, in annulment decisions, often asks us to influence the parties in connection with the submission of evidence, which should not happen," points out one of the judges in the litigation department of that court. In that court last year, one third of court decisions were canceled or changed, most of which were canceled.

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