The model that Montenegro applies in relation to the judicial protection of the right to a trial within a reasonable time has shown certain weaknesses and it is necessary to improve it because it does not produce the necessary results.
At the same time, citizens pay dearly for the mistakes of domestic courts, while the system of accountability is absent, it was assessed at the round table of the Center for Monitoring and Research (CeMI).
The executive director of CeMI, Ana Nenezić, said at the round table "The right to a trial within a reasonable time - analysis of national legislation and practice", that the organization prepared a report as part of the project related to the protection of the right to a trial within a reasonable time, that is, as she explained, an assessment of whether this right is effectively protected in the domestic legal system.
"Respecting the right to a trial within a reasonable period of time is extremely important for the efficiency of the courts, as well as the public's trust in the judiciary, bearing in mind that the adoption of a court decision within a reasonable period of time contributes to general legal certainty." However, with regard to the protection of the right to a trial within a reasonable time, we can state that the system needs to be improved because it does not produce the necessary results", said Nenezić in the PR Center.
Speaking about the number of pending cases before Montenegrin courts, Nenezić said that at the end of last year there were 38.971, while in 2008 there were 48.402.
"According to the report of the Judicial Council for 2018, it is indicated that there are still cases that have not been resolved, even though they were started ten years ago, namely 2.807 cases that were started from 2009 to 2015, as well as 541 cases that were started before 2009," Nenezić said.
She said that, compared to the number of pending cases, last year there were only 346 submitted control requests and a total of 69 lawsuits for just satisfaction.
"If we look more broadly than 2008-2018. a total of 2.086 control requests were submitted, of which only 169 were approved. Therefore, the number of approved requests is low and hovers at an average level of about ten percent of the total number of requests submitted annually. stated Nenezić. In the same period, as she stated, 435 lawsuits for just satisfaction were filed, of which 196 were accepted.
"Looking at the statistics related to the number of pending cases in the courts, it can be noticed that their number is in marked disproportion with the number of submitted requests and lawsuits for just satisfaction and that it is several times lower compared to the total number of backlogged cases," said Nenezić.
According to her, it can be concluded that legal means for protecting the right to a trial within a reasonable time are still used by a small number of parties, that a high percentage of negatively resolved requests, especially when we talk about control requests.
Nenezić pointed to the increase in the number of pending cases within the Constitutional Court, which currently has 2.492 pending cases, while in 2015 there were 24.
"These data are warning if we know that over 70 percent of the practice of the Constitutional Court related to constitutional appeals due to potential rights to a trial within a reasonable time, which clearly indicates that the Constitutional Court is overloaded with constitutional appeals due to the violation of this right, and it can be assumed that if the influx of petitions due to the violation of the right to a trial within a reasonable time continues, it may have significant consequences for the work of the Constitutional Court," said Nenezić. She warned that before the European Court, we already have proceedings against Montenegro in which violations of the right to trial within a reasonable time before the Constitutional Court are highlighted, while we do not have effective legal remedies for the length of the proceedings before the Constitutional Court. The situation is the same with the Administrative Court.
Nenezić also warned about the high number of judgments of the European Court in relation to Montenegro, almost half of which refer to the established violation of the right to a trial within a reasonable time, and the related issue of the effectiveness of legal means for speeding up the procedure and fair satisfaction. In 2018, the number of petitions before the European Court against Montenegro was 318, which is an increase compared to 2016, when there were 165," said Nenezić.
At the end of last year, as she added, in relation to Montenegro, a total of 112 cases remained pending, stating that Montenegro ranks first among all Council of Europe countries in terms of the index of petitions submitted to the European Court, per capita.
Nenezić warned that citizens pay dearly for the mistakes of the courts, pointing out that most of the applications accepted by the court in Strasbourg were previously rejected by the highest judicial instance in Montenegro.
"We have no established responsibility in this area, and the number of disciplinary procedures is almost non-existent. Montenegro has paid over one million euros according to the judgments and settlements of the European Court of Human Rights in Strasbourg, not counting the last verdict in the KIPS case, which will cost the citizens of Montenegro more than 4.5 million euros. But that's just the beginning of paying for the mistakes of domestic courts," concluded Nenezić.
The program manager for civil society of the Delegation of the European Union in Montenegro, Ana Margarida Mariguesa, said that the European Commission Report for this year states that the Montenegrin judicial system is moderately prepared and that Montenegro has made some progress in further strengthening the professionalization of the judiciary.
"The Report for this year states that in 2018, the number of backlog cases in Montenegro decreased by 4,5 percent, while the number of cases older than three years decreased by four percent. The report states that Montenegro must strengthen the efficiency of the judicial system, reducing the number of ongoing cases and applying the guidelines of the European Commission for the efficiency of the judiciary," said Mariguesa.
She emphasized that joining the European Union is a choice and requires acceptance of the principles, values and goals of that community, stating that it also requires continuous progress on the reform agenda, especially in the field of the rule of law.
The representative of Montenegro before the European Court of Human Rights, Valentina Pavličić, said that she agrees that there are a large number of cases before Montenegrin courts, but that one should take into account the fact that Montenegrin judges have done a lot to shorten the length of trials within a reasonable time.
"It is indisputable that there are 694 cases where the procedure lasts longer than five years. However, we have to take into account the fact that we have a large number of cases before the courts. However, we cannot say that citizens do not have confidence in this regard if they are already submitting so many lawsuits to Montenegrin courts," said Pavličić.
Speaking about the number of resolved cases from the European Court, Pavličić said that Montenegro is not in a different position compared to other countries, "because this is the real right in which the applicants appeal to the European Court to the highest degree".
"When it comes to cases resolved by the European Court, today we have 25 cases. It's not 25 petitions, it's 25 cases, because in those cases we have consolidated petitions where the court itself consolidated them, because it was about the same convention right," said Pavličić.
She said that the increased number of Constitutional appeals is a positive assessment, stating that citizens' awareness has increased to such a level that they believe they should appeal to a special court for endangering civil rights.
"For now, when it comes to the special Department before the Supreme Court that deals with lawsuits for just satisfaction, we have no communicated cases where someone was dissatisfied with the just satisfaction received from the Supreme Court," said Pavličić.
The president of the Basic Court in Podgorica, Željka Jovović, said that last year they had 71 control requests, stating that 14 of them were adopted, "bearing in mind that at the level of all courts there were 346".
"This means that the Basic Court has 20,6 percent, and when we compare that with the total number of cases, we see that the Basic Court in Podgorica acts promptly. In 2018, we had a promptness rate of 102,78 percent," stated Jovović, noting that the judges of the Basic Court are fully committed to their work.
Counselor at the Supreme Court of Montenegro, Ksenija Jovićević, pointed out that the issue of old cases is high on the Supreme Court's agenda in terms of internal judicial policy, stating that cases before basic courts that are older than three years are being monitored in particular, bearing in mind the position of the European Court according to which cases that have lasted more than three years in one instance are evaluated more strictly.
"Recognizing this type of case as a priority, court presidents make annual plans for dealing with old cases, and continuously take care of their proper implementation," stated Jovićević.
She pointed to the fact that all the courts had a total of 87.676 cases in their work, with a noticeable reduction in those cases, we can conclude that the judges successfully tackled the old cases.
"It can be considered that backlogs in court proceedings gave rise to the institute of protection of the right to a trial within a reasonable time. The average duration of proceedings in all courts is 79 days. The majority of cases were resolved within three months, that is 60 percent, up to six months 12 percent, up to nine months six percent, up to one year five percent, while in 15 percent of the resolved cases the procedure lasted longer than one year," stated Jovićević.
Lawyer and legal representative of KIPS before the European Court of Human Rights, Predrag Savić, said that Montenegro, where 80 percent of petitions are rejected, is in the most unfavorable position before the European Court.
"In 2018, it is mentioned that as many as 23 judgments were passed against Montenegro. Like against Russia, roughly. Those petitions are a huge warning to the domestic judiciary," said Savić.
The court in Montenegro does not decide against the state when it accepts control requests, appeals and when it awards compensation.
"They are doing a great service to the country. They prevent a greater number of cases before Strasbourg and provide great financial assistance to the state. Because when a court in Montenegro or Serbia awards a compensation of 300 or 500 euros, it is at least two to three times less than the compensation that will be awarded by the court in Strasbourg due to the violation of rights," explained Savić.
He believes that an independent and independent judiciary with a high degree of integrity is needed.
"You need to have a better lawyer. It is necessary to have not only well-equipped courts and working conditions, but also a good judicial administration," Savić believes.
According to him, the salaries of employees in the judiciary should be higher.
"Judges' salaries are not enough. Judges with better salaries are motivated to work and are more difficult to influence, because they have their own integrity. "They are independent and know that every month they will receive a normal salary that they and their families will live on," said Savić.
In the KIPS case, as he stated, there was discriminatory and illegal behavior by the local executive.
"The retaliation against that company continues today. It is simply unbelievable how that company survives in such conditions. I am announcing a number of other cases when it comes to KIPS and we hope that we will fight to improve the status of that company before the Montenegrin judiciary," said Savić.
He believes that the Constitutional Court in Montenegro can be a very significant corrective factor.
"Criticisms against the Constitutional Court, that it should not interfere in substantive decision-making, are, from my point of view, unjustified. The Constitutional Court should do this, because it will reduce the number of cases in Strasbourg, because it will correct some systemic errors, it will save the country, it will strengthen legal security," explained Savić.
As he pointed out, the courts in Montenegro are more efficient and up-to-date than the courts in Serbia and in many other countries created in the territories of the former Yugoslavia.
"Here I see the need for personnel strengthening, for education. Perhaps the number of judges should be increased. It should be seriously considered. The problem in the entire region is the independence and autonomy of the courts. And I repeat that the economic moment is very important for independence and impartiality in the work of the courts," said Savić.
The Vice President of Democratic Montenegro, Vladimir Martinović, said during the discussion that Montenegro has one of the worst Constitutional Courts.
"The Constitutional Court, as it is, will not eliminate and reduce the number of petitions before the International Court in Strasbourg, but will increase it. We have no accountability system. The rule of law in Montenegro is selective. Chapters 23 and 24 will not be closed anytime soon. All the evaluations that arrive are in favor of the fact that the state is not making progress in that area, and that is devastating," Martinović believes.
The representative of the Center for Political Education from Nikšić, Vera Lalatović, said that citizens are the most affected and that the question of responsibility needs to be raised.
"If the issue of responsibility were raised at a higher level, we would have fewer problems and negativity like this. And the citizens will pay for all that. Not the state, but the citizens," Lalatović believes.
The event was organized as part of the project "Judicial Reform: Improving the capacity of civil society organizations in contributing to the preservation of the integrity of the judiciary", implemented by CeMI, in cooperation with the Center for Democracy and Human Rights (CEDEM) and the Network for the Affirmation of European Integration Processes (MAEIP), and was financed by the European Union and co-financed by the Ministry of Public Administration of Montenegro.
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