The European Commission (EC) expects Montenegro to complete the process of key appointments in the judiciary and appoint the President of the Supreme Court as soon as possible.
This is what the EC spokeswoman told "Vijesti". Ana Pisonero Hernandez, commenting on the fact that another competition for the selection of a leading position in the Supreme Court ended unsuccessfully on Friday.
"The EU welcomes the progress that Montenegro has made in recent months regarding the appointment of judges. This must now be completed with the appointment of the President of the Supreme Court as soon as possible", said Pisonero Hernandez.
Appointments in the judiciary are a key priority in Chapter 23, necessary to meet the interim benchmarks, i.e. obtaining the Interim Benchmark Compliance Report (IBAR) in Chapters 23 and 24, which relate to the judiciary and the rule of law. According to the new accession methodology from 2020, accepted by Montenegro, if the temporary benchmarks for chapters 23 and 24 are not met, no other chapter will be able to be closed. Montenegro has been negotiating with the EU since 2012, and during that period it opened all 33 chapters and temporarily closed only three.
European Commissioner for Enlargement Oliver Varhelji he recently said in an interview with "Vijesta" that Montenegro could receive the final benchmarks in the summer.
"Final benchmarks - it doesn't mean much to ordinary people, not like me or others working on this, but to the ordinary person it should mean that when we meet these criteria, we can move on to the next, final stage of accession negotiations, where we start to close chapters and reach final agreements. If that is achieved, everything will depend on Montenegro when it wants to become a member," he said.
The Government of Montenegro has repeatedly said that they expect IBAR in June.
At the end of last year, Montenegro completed the Constitutional Court, the Judicial Council and elected the supreme state prosecutor.
The head position of the Supreme Court has been vacant since the end of 2020, when the long-time president left that position Vesna Medenica who is being tried on the indictment of the Special State Prosecutor's Office that she is part of a criminal organization allegedly led by her son Milos Medenica.
In the acting mandate from September 2021, the most important position in the judiciary is covered by a female judge Vesna Vuckovic.
The candidates for president of the Supreme Court in the last competition were judges of that court Ana Vuković i Ranko Vukić. At the general session of the Supreme Court on Friday, none of the two received the necessary two-thirds support to be nominated for the president of that institution, who is chosen by the Judicial Council. Of the 17 judges of the Supreme Court, 12 voted for one of the two judges who submitted candidacies and met the conditions for election, while the remaining five submitted invalid ballots.
Is the new competition awaiting changes to the law?
Part of the NGO sector and until recently the representative of Montenegro before the European Court of Human Rights Valentina Pavlicic believes that only by amending the Law on the Judicial Council and Judges can a candidate for the president of the Supreme Court be reached.
He reminds that already, in the proposal phase, there were changes to the Law on the Judicial Council and he does not know what is waiting for some time, and he has already agreed with the European partners in that part.
"There will be no improvement in the rule of law until the judicial system is brought to a level that can efficiently and effectively monitor social relations in real time. Without the head of the judiciary in full term, it is impossible," said Pavličić, answering the question of "Vijesti" whether the failure of the last competition for the election of the president of the Supreme Court could slow down Montenegro's European path and postpone the receipt of IBAR.
Executive Director of the Center for Civil Liberties (CEGAS) Marija Popović Kalezić points out that the non-election of the president of the supreme court is an inherited problem that has been going on for a worryingly long time.
"Considering that certain long-awaited personnel solutions in the judiciary have reached their epilogue, with the election of the missing members of the Judicial Council, judges of the Constitutional Court and the election of the Supreme State Prosecutor, progress has been achieved which, by all accounts, will contribute to obtaining IBAR, despite the non-election of the president of the Supreme Court", she believes.
He emphasizes that even if Montenegro gets the IBAR, it will be more a consequence of the political decision of the European partners, than an essential progress in the reform of the Montenegrin judicial system.
"Nevertheless, it will be a motivating and serious incentive for Montenegrin society to continue essential reforms. Those fundamental reforms in the first steps would have to have a vetting in the judiciary and the obviously necessary changes to the Law on the Judicial Council and Judges, in order to achieve the necessary accessibility for the election of the President of the Supreme Court", says Popović Kalezić.
PES: In the parliamentary procedure until the end of March
The Europe Now Movement (PES) announced that the Proposal for Amendments to the Law on Judges and the Judicial Council will be in the parliamentary procedure by the end of March. The proposed amendments to the Law will no longer require a two-thirds majority, but a half-majority for the proposal that the general session would send to the Judicial Council, after which the Council would elect the President of the Supreme Court with a two-thirds majority.
Human Rights Action (HRA) said on Saturday that it is questioning whether those responsible for the failure are aiming to prevent reforms that could have been triggered by the election.
"There is no sense in repeating the election procedure, which lasts at least a month, and which now needs to be organized for the eighth time, before the law is amended and allows a simple majority of the judges of the Supreme Court, instead of a two-thirds majority, to propose to the Judicial Council a candidate for the presidential office" , they think in HRA.
As they said, such a solution was contained in the working version of the amendments to the Law on the Judicial Council and Judges, which has been in the works for almost four years.
The HRA pointed out that Judge Ana Vuković received ten votes at the session and that she lacked one vote to be nominated for election to the Judicial Council, while two judges voted for Vukić.
"If the Law on the Judicial Council and Judges had been amended by today, Judge Vuković would have been proposed for election with the majority of votes," HRA stressed.
"Vijesti" previously announced that in the judiciary, i.e. the Judicial Council, there are allegedly two streams that want two judges at the head of the Supreme Court who did not apply for the post of president.
In the report of the European Commission (EC) on Montenegro for 2023, it is written that the state, in addition to the supreme prosecutor, judges of the Constitutional Court and members of the Judicial Council, should also elect a permanent president of the Supreme Court, "in order to ensure the proper functioning of the judiciary with independence, impartiality and integrity of office holders in key judicial positions".
The document states that the appointment of the President of the Supreme Court has been pending since December 2020, and that five election attempts have failed. It is recalled that in October 2022 the Minister of Justice criticized the decision of the Judicial Council to announce a new call for the election of the head of the Supreme Court because he considered it inappropriate, and that in January 2023 the only candidate who applied, the acting president of the court, did not receive the necessary majority due to the interpretation of the law at the general session of the Supreme Court.
"An appeal was filed to the Administrative Court, which annulled the decision and declared the candidacy valid based on the support of a sufficient majority of judges of the Supreme Court. After that, the Agency for the Prevention of Corruption initiated a procedure to examine potential aspects of corruption in the decision-making process of the Administrative Court. In addition, the Agency submitted a request to the Ministry of Justice for the implementation of inspection supervision in the Administrative Court. In July 2023, the Judicial Council did not support the appointment of the current acting president as a full-term president," the report says.
Easier to choose the President of the Court in Strasbourg
Valentina Pavličić explains that the existing norms (introduced by amendments to the Law that entered into force in 2015) have narrowed the number of persons who can apply for a public advertisement for the position of President of the Supreme Court, i.e. only judges of the Supreme Court can practically do this, and on the other hand, decisions The judicial advice on the final selection is formal and verifying.
"We have stricter norms for the selection of that position than, for example, for the selection of a judge of the Supreme Court or the Constitutional Court, or for the selection of a judge of the Court and the president of the court in Strasbourg. This was probably done on purpose in 2014, when the law was being changed, in order to discourage candidates from applying at all, except for those who were projected," she said.
She added that the election procedure is debatable, because no reason is given as to why someone does not vote or does not vote.
"And that's exactly what gives democracy to a procedure. Finally, it gives security and support to everyone who has the strength and courage to deal with the serious problem in which, whether we want to admit it or not, the judicial system finds itself, and without a strong and expertly determined by the European postulates of judicial values, the person at the head of the Montenegrin judiciary, only we will continue to be in an anesthetized state of institutions", warned Pavličić.
The draft law was innovated, harmonized with the recommendations of the Venice Commission
Vasilije Čarapić, head of the Parliamentary Club of the Europe Now Movement, says that the amendments to the Law on the Judicial Council and Judges are fully in line with all the recommendations of the Venice Commission, which were highlighted in earlier drafts of this Law.
"Since December of last year, the working group working on amendments to the Law on the Judicial Council and Judges has had dozens of meetings with experts from the Council of Europe. Within this framework, amendments to the Law were worked on, which are fully in line with all the recommendations of the Venice Commission, which were highlighted in earlier drafts of this Law, so we can safely say that it is an innovative draft of the Law," said Čarapić to "Vijesta".
He emphasizes that the new draft of the Law will also contain a solution to the issue surrounding the election of the President of the Supreme Court, as it will be foreseen that the General Session of the Supreme Court will make a decision on the candidate by a supermajority.
"Also, we believe that a good solution would be to enable the Judicial Council to elect the President of the Supreme Court from among all the candidates who eventually receive overwhelming support, which contributes to the democratization of this process. As a reminder, the rigid mechanism by which the General Session of the Supreme Court proposes only one candidate to the Judicial Council was grossly abused when Vesna Medenica was elected to an unconstitutional third term, so it is clear that we need reform in this area as well," said Čarapić.
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