Spaić: Without monitoring the work and responsibility of judges, there are no changes in the judiciary

Without monitoring the work and accountability of judges, there are no changes in the judiciary, said Bojan Spaić, a member of the Council of the Center for Democratic Transition, stating that it is important to free the Judicial Council from political influence and support the selection of members based on expertise and integrity.

According to Spaić, there is no magic wand to solve problems in the Montenegrin judiciary.

In the article "Trialing the Montenegrin judiciary", Spaić said that in this way a kind of knowledge base is being created on different segments of the functioning of the state, which will be offered to state authorities as support for the creation of a better and fairer society.

"Only by patient, professional and conscientious action within the framework of legal competences, the judicial system can be improved by the use of means of external and internal control of the work of judges and prosecutors", stated Spaić.

According to him, Montenegrin society and political elites must draw an important message from judicial affairs.

"That one who enters the judicial system based on the political power of the temporary holders of executive power, and not personal and professional integrity, cannot produce results different from those we are witnessing today," said Spaić.

This, he said, is particularly important in the context of the upcoming election of new members of the Judicial Council, whose responsibility is the election, promotion, responsibility and dismissal of judges.

Spaić said that in judicial systems where there is an effective possibility of holding judges accountable for offenses that are constitutionally provided as grounds for dismissal, i.e. in those judicial systems where no one, not even the judge, is untouchable, there is no need for revolutionary changes in the entire judicial system.

"Nor is there a need for a general review of the work of judges depending on political circumstances," he added.

Spaić assessed that the Judicial Council has never built the necessary independence and credibility in the implementation of its key competencies, from the issue of the election and advancement of judges to the implementation of internal work control mechanisms.

"That is why it is important to free the Judicial Council from political influence and support the selection of members based on expertise and integrity, not on the basis of political affiliations," he believes.

According to Spaić, the mechanisms of external work control, which includes the possibility of prosecuting judges for criminal offenses for which the constitution stipulates the possibility of dismissal, were dysfunctional until recently.

"Potential abuses of position were pushed under the carpet of political suitability, all explosions of arrests of high-ranking judicial officials and persons close to them," he stated.

Spaić stated that, in the light of the discovery of affairs at the top of the Montenegrin judiciary, a debate was initiated on the direction in which the judiciary should be changed in order to reduce or eradicate the potential for corruption and organized crime.

According to Spaić, on one side are those who insist on gradual, iterative changes, based on existing analyzes and deficiencies in the legal framework and the actions of the highest judicial bodies.

"On the other side are the advocates of radical reforms, embodied in the proposal to proceed with the general re-election of judges," he said.

The article states that in a well-established judicial system, judges are not untouchable.

"Evaluation of their work by superiors and professional bodies, continuous training and the possibility of calling for disciplinary responsibility are the internal ways in which the work of judges is subject to verification and control," said Spaić.

External control of work, as he said, implies the possibility of prosecuting judges for criminal offenses for which the constitution prescribes the possibility of dismissal, as well as the possibility of the professional and lay public to evaluate the selection process, expertise and performance of the judge.

"The permanency of the judge's office does not mean inviolability. "Untouchability actively undermines the subjective independence of the judiciary by undermining public trust in the work of judges and the judiciary," Spaić believes.

According to him, changes in the legislative and executive power can be a political basis for changes in the judiciary.

"But those changes within the framework of the current law cannot be radical but only gradual, and they cannot be comprehensively personal but only individually personal, within the limits prescribed by the Constitution," he said.

Spaić stated that the existing normative framework enables more efficient action of the highest judicial bodies, provided that these bodies operate with full personnel, with complete publicity of their actions and with the selection of new members who meet all professional and moral requirements for the performance of their duties.

As he added, the report of the Venice Commission (VK) testifies to this.

"In a recent opinion, the Supreme Court emphasizes that normative reforms cannot replace long-term efforts to improve the professionalism, transparency and ethics of the judiciary, and that changes in the legal framework cannot by themselves lead to a culture of respect for judicial independence," said Spaić.