The Venice Commission (VK) encouraged Montenegro to continue its good work on amendments to the Law on the Judicial Council and Judges, but emphasized that great attention should be paid to the practical application of the new text.
"As the practical application of this regulation itself shows, laws on paper cannot always be applied in practice. The Venice Commission calls on all relevant actors to cooperate and work together in order to ensure that an independent, responsible, efficient and transparent judicial system progresses in Montenegro", it was stated in the opinion of the Supreme Court on the Draft Amendments to the Law on the Judicial Council, which "Vijesti" has access to .
The opinion was adopted yesterday at the plenary session of the Council of Ministers in Venice, which was attended by the Minister of Justice Marko Kovač.
It is stated that the law introduces clearer provisions on the appointment and transfer of judges, encourages internal mobility, provides a clear evaluation system, prescribes new provisions on the Code of Ethics Commission in more detail, increases responsibility and transparency by entrusting the Judicial Council with the possibility of initiating disciplinary proceedings.
They remind that the main problems in the application of regulations are the presence of the Minister of Justice in the Judicial Council and the difficulties in selecting the members of that body.
Experts state that it "needs to be further considered constitutionally" and that they cannot deal with it without encroaching on the constitutional powers of other bodies.
It is stated that the VC regrets that many of its recommendations on the Draft Law from 2014 have not been implemented and calls on the Montenegrin authorities to take them into account.
The VC repeated the recommendations on the Law from 2018 as well, i.e. that the difficulty of achieving a qualified majority should not lead to the waiver of the requirement for a qualified majority.
"In this sense, limiting the action of the anti-blockade mechanism to two years can, in principle, be welcomed to the extent that pressure would be exerted on the parliament to elect the remaining members from the ranks of distinguished lawyers. However, the Supreme Court believes that the supreme state interest lies in preserving the institutions of a democratic state. Respect for the principle of separation of powers requires that one branch of government institutions should not be allowed to block the functioning of another branch of government through deliberate inaction or mere inability to act," the opinion reads.
The SC recommends that anti-blockade mechanisms, such as the election of an acting president of the Supreme Court, should be limited to exceptional events, such as the death, resignation or dismissal of the incumbent, to avoid turning the exception into the rule.
"The evaluation criteria should be partially revised to ensure that the independence of judges is respected and that judicial discretion is not unduly limited and that all judges, regardless of the court in which they work, are subject to the evaluation cycle. The law should ensure that ethical and disciplinary violations are properly kept separate," the opinion reads.
It is also recommended that only members of the Judicial Council be competent to initiate disciplinary proceedings, as well as that the working rights of judges, such as the right to an adequate salary, or the age limit for retirement, should be clearly regulated by law.
When it comes to "political" incompatibility, the Supreme Court believes that the "cooling off" period of members of the Judicial Council should be reduced to five years, in order to avoid excessive stigmatization of political activities and to prevent unjustified limitation of the group of potential candidates.
The draft states that the members of the Judicial Council cannot be those who have been officials of political parties in the last ten years or actively engaged in the party, were directly elected in elections or were members of the Government in the last five years.
The SC praised the Minister of Justice for organizing an inclusive and extensive public debate. It reminds that a transparent, responsible, inclusive and democratic process of passing laws is of the utmost importance for the flourishing of the rule of law.
Bonus video:
