Urgent selection of the missing judges and advisers and better organization of work are necessary prerequisites for the judiciary to be more efficient, and the means to speed up proceedings effective, Human Rights Action (HRA) announced.
This, as they said, was one of the conclusions from the meeting on the application of the Law on the Protection of the Right to a Trial within a Reasonable Time, which was organized by the Human Rights Action (HRA) in cooperation with the Center for Monitoring and Research (CEMI), within their joint of the project "Access to justice and human rights in Montenegro - trial monitoring project 2021-2023".
The project is financed by the European Union and co-financed by the Ministry of Public Administration of Montenegro.
HRA Executive Director Tea Gorjanc Prelevic pointed out that the European Court of Human Rights in Strasbourg has recently established in two cases a violation of the right to a trial within a reasonable time in proceedings before the Constitutional Court, which calls into question the effectiveness of a constitutional appeal as a legal remedy:
"The violation was established in proceedings that lasted longer than 3 years and 7 months, that is, 4 years. This is a special problem if you bear in mind that the Constitutional Court has canceled the deadline for dealing with cases, as well as that constitutional appeals from 2018 are still pending before that court," stated Gorjanc Prelevic.
She pointed out that the analysis done by the HRA also indicates that there is a lack of an effective tool for speeding up administrative procedures, and that there has been a sharp deterioration in the promptness of the courts in the last six years, especially in the last year of 2022.
This, he says, is the third HRA report on the application of the Law on the Protection of the Right to a Trial within a Reasonable Time.
According to her, the first analysis was published for the period 2008-2010, and the second from 2011-2015. years.
The author of the report, lawyer Darka Kisjelica, it is added, explained that the resources for the trial within a reasonable time cannot be observed without insight into the up-to-dateness of the courts.
The HRA stated that the report points out that the inflow of cases last year, compared to the average annual inflow from 2017 to 2022, increased by only one percent, thus a disproportionate increase in the number of pending cases of as much as 35,7 percent compared to the previous year. year, that is, from 27 percent compared to the six-year average, is not a consequence of the increased influx of cases.
"The goal foreseen in the action plans for the implementation of the Justice Reform Strategy 2018-2020. has not been achieved, and a serious deterioration in the resolution of backlog cases can be noted," said Kisjelica.
The report also points out that the increase in the number of old cases (older than three years) was the most pronounced in the last year compared to the average from 2017 to 2022 and is as much as 40 percent.
"Out of the total number of submitted requests for speeding up the procedure, 44 percent were submitted to the Administrative Court", the lawyer pointed out, adding that the submission of requests in that court is effective because they have been proven to lead to an accelerated conclusion of the case.
The report, as stated by the HRA, indicates that the decline in promptness was also contributed to by the weaker management of human resources and cases in the courts than was previously the case.
They add that the submission of requests to speed up the procedure is almost twice as frequent as before, and the number of lawsuits for just satisfaction has also increased.
"The level of effectiveness of the adopted control request did not increase compared to the period 2011-2015, but remained the same, and in 70 percent or more than two-thirds of cases, this tool does not lead to the acceleration and completion of the procedure within four months," the statement reads. HRA.
However, it is added, the notification according to the control request that the case will be completed within the deadline or that action will be taken is effective in a high percentage of 78 percent or in almost four fifths of cases, mostly thanks to the success before the Administrative Court.
"The low success rate of constitutional appeals, the report adds, is also influenced by the insufficient reasoning of such appeals, as more than a quarter (28%) were rejected because the reference to violations of constitutional rights was only formal without stating well-founded reasons indicating a violation of the constitutional or convention law," the announcement reads.
Gorjanc Prelević and Kisjelica also questioned the reliability of statistical data on the work of the courts, which has not been corrected even to this day.
Gorjanc-Prelević recalled that the Supreme Court once submitted incorrect data to the European Court of Human Rights, on the basis of which that court then formed a conclusion on control requests as an effective legal remedy, and that the HRA warned about this in 2016.
"Today, artificial intelligence is at everyone's disposal, and we have not been able to develop a reliable statistical system in the judiciary for ten years," Kisjelica stressed.
It is said that the problem of statistics in the courts does not seem to be solved anytime soon. From the Ministry of Justice, but also from the presidents of the courts, as they said, it was possible to hear that the project supported by UNDP failed, and that, instead of a new information system for the judiciary, the existing PRIS, which in practice created many problems, will be upgraded for the time being .
"There were no solutions offered, after so many years we were nowhere, so as a temporary solution it was decided to upgrade PRIS, and in the meantime find someone who will do the software properly", explained the president of the Basic Court in Podgorica, Željka Jovović. .
A trial within a reasonable time will be a priority in the Constitutional Court
HRA said that Constitutional Court judge Dragana Đuranović confirmed that it is important not to lose the effectiveness of constitutional appeals, and that they agreed at the collegium in the Constitutional Court that constitutional appeals filed by 2020 should be priority cases.
According to them, her colleague Snezana Armenko added that the court is working to direct the practice and asserted that the US had worked properly earlier, so that they might have had a different situation. As they stated, she praised the decision of the Supreme Court to award just satisfaction due to the excessively long duration of the administrative procedure, while there is still no effective remedy for speeding up such procedures.
"Their former colleague, now retired, Miodrag Iličković, added that the problem is that the judiciary is practically not a branch of government and has no power, and that the judges agree to that. He assessed that the data from the HRA report is devastating, and that there is no problem in the Constitutional Court in the number of judges, but that a strong professional service and trained advisers are needed to support the judges," the HRA statement reads.
They add that lawyer Dalibor Tomović emphasized that the decision of the Constitutional Court has not been implemented for five years due to unfounded deprivation of liberty. "Three governments refused to implement that decision".
"The state does not respect the decisions of its own courts, and that percentage is worrying," Iličković concluded.
The representative of the EU Delegation in Montenegro, Đanandrea Vila, as reported by HRA, pointed out that civil society organizations play a key role in raising the level of the rule of law in Montenegro.
"He added that he hopes that the upcoming elections on June 11 will help to solve one of the key requirements for progress in the negotiations with the EU – judicial appointments," the non-governmental organization said.
In their announcement, it is written that the Head of the Legal Department at the NGO Center for Monitoring and Research (CEMI) Ognjen Mitrović said that the project aims to raise the rule of law and respect for human rights, but also to strengthen awareness of equal access to justice:
"Making a court decision within a reasonable time contributes to general legal security and raising the level of the rule of law," Mitrović added.
He also explained that Cemi and HRA formed a monitoring team that monitored over 300 hearings in Montenegrin courts for the last two years and announced the publication of a report on this in the coming months.
The Ministry does not monitor or analyze the implementation of the Law
The HRA report points out that in the 2022 progress report, the European Commission noted that data on the total duration of the procedure are not yet available, and that statistical data on the performance of the judicial system are not analyzed and used for the purposes of management and policy creation. which confirms the negative consequences caused by the interruption of the Ministry of Justice to monitor and analyze the implementation of the Law on the Protection of the Right to a Trial within a Reasonable Time.
Director General of the Directorate for Justice in the Ministry of Justice, Momir Jauković, stated that the preparation of the report on the implementation of the Action Plan is in the final phase, and that the problems highlighted in the HRA report have been recognized.
He added that work has begun on drafting the Justice Strategy for the next period.
The representative of Montenegro before the court in Strasbourg, Valentina Pavličić, stated that the HRA report is a good starting point for court presidents to advance the trial within a reasonable time.
"Financial responsibility for the protection of trials within a reasonable time must also produce professional responsibility in the courts," she pointed out.
He considers that lawsuits for equitable satisfaction are simple cases, that they can be resolved in a few hours. Regarding the findings in the report that in a certain number of cases, although rejected, the request to speed up the procedure still led to the end of the main case a few days before the decision to reject the control request was made, she pointed out that the court in Strasbourg is also observing whether the case was kept until the legal deadline for deciding.
Regarding the data from the report that there are no cases before the Administrative Court that are older than three years, she pointed out that this is not entirely true: "We have a case that was before the Administrative Court five times and the dispute was fought for 15 years, we have cases where there were 13 expertise", emphasizes Pavličić.
The HRA report points out that the legal means provided for by the Law on Administrative Procedure for speeding up the procedure, such as a complaint due to the administration's silence or a report to the inspection or the supervision of a hierarchically higher body, do not lead to speeding up the procedure.
The increase in the number of pending cases in the Administrative Court, it is added, was mostly influenced by the increased influx of cases, which compared to the period 2011-2015. tripled in the year, i.e. quadrupled in 2022, and then a drop in the number of judges from 16 to 11 in a couple of years.
It is added that parties turn to the Protector of Human Rights due to the long duration of both judicial and administrative proceedings. Due to the lack of an effective means to speed up the administrative procedure, the Ombudsman is often the only legal way to exercise that right.
Marina Perišić from the Office of the Ombudsman says that the majority of citizens turn to that institution because of the violation of the trial within a reasonable time.
"We have situations where cases that last 17 years have not yet been concluded. In this year as well, we were faced with the case from 2006, which has not been decided to this day. In question was a request for the return of agricultural land. When the party's attorney asked for insight into the case, the Podgorica Administration for Cadastre and State Property said that they could not find the case, that it was lost, without any explanation...".
He adds that the problem is also the avoidance of meritorious decision-making in the administrative procedure, but the case is still returned to the first-instance authority several times, and the explanations are missing or incomplete.
"And the Administrative Court does not decide on the merits, but also returns, we have seen that through practice. An effective accountability system is necessary," said Perišić.
Her colleague Milica Bogojević points out that the Basic Court in Herceg Novi cannot maintain its work with the existing number of judges in the civil division (only the president of the court and two judges currently work in that court), and that "the organizational measures must be adequate, because they are obviously the cause delaying the procedure". She emphasized that they sent a letter to the Judicial Council asking why judges are not assigned to that court.
Montenegro is still at the top in terms of the number of judges
In the HRA report, it is reminded that Montenegro is still second in Europe in terms of the number of judges in relation to the number of inhabitants, right after Monaco.
It is pointed out that the number of judges of regular courts has decreased since 2017 from 257 judges to 212 judges in 2022, which is a reduction of 17%: "The number of judges in 2022 is less by a little over a fifth (21%) than the number that was foreseen Decision on the number of judges in the courts".
It is added that out of 21 courts of general jurisdiction, only two are working at full capacity. The number of missing judges ranges from one to five.
It is concluded that, although the influx of cases from 2017-2022. was lower by 11% than in the previous period, the unfilled judges' positions, especially in 2021 and 2022 of about 20%, contributed to the decline of all indicators of timeliness.
In the report, Kisjelica also states that the stoppage in court work due to the COVID-19 epidemic and the lawyers' strike did not have a visible impact on the deterioration of the promptness of court work, on the contrary, in those two years there was a decrease in the number of new cases (inflow).
Nevertheless, the president of the Basic Court in Podgorica, Željka Jovović, pointed out that 3100 hearings were postponed in that court during the strike.
Instead of the courtroom, they almost tried at the Faculty of Law
The president of the Basic Court in Podgorica, Željka Jovović, speaking about the enthusiasm with which that court tries to solve the problem of protracted proceedings, cited the example that during one of the many false reports about a bomb planted in that court, instead of in the courtroom, the trial was almost held at the Faculty of Law.
She said that two witnesses came from the Netherlands that morning for the scheduled hearing, but as the court had to be evacuated, and they protested saying that they would never come again, she came up with the idea of holding the trial at the chair of the Faculty of Law in Podgorica. Everything was organized for the start of the trial, but the police announced in the meantime that the trial could still be held in the courtroom.
"I think the judges are really dedicated, and let the authorities do their job and help us be more efficient," Jovović pointed out.
She clarified that the Judicial Council, among other things, does not respond to her pleas to elect the missing judges of that court as soon as possible:
"I have 700 unassigned cases, which I now need to give to judges who already have 300 cases each, while the Judicial Council refuses to tell me whether we will get new judges", explains the president of the OS in Podgorica.
Pešić: The parties abuse the procedures
The President of the Administrative Court, Miodrag Pešić, assesses that the analysis shed light on all disputed points and that he supports all its recommendations. He says that the Administrative Court with the current flow of cases would need 50 more judges to be effective.
It clarifies that certain parties abuse the filing of lawsuits in cases due to the unfulfilled right to free access to information in order to obtain the costs of the proceedings. He says that it is a matter of flooding the administration with requests that cannot be answered within the stipulated time, while at the same time the law does not provide anything to prevent such behavior from unduly burdening the courts. He adds that almost half of the cases are due to the administration's silence (12.000), of which 8.000 are "abuse".
"Almost all requests were submitted by only three NGOs. The law on free access to information should prohibit abuse, as they have done in some other countries," said Pešić.
He added that he was not referring to MANS, and that he thanked them for withdrawing almost 4.000 submitted requests to hold the hearing.
Pešić stated that he initiated the procedure to increase the number of advisers in that court, but that this cannot be done before autumn.
He pointed out that cases related to restitution are also a burning problem, because they concern old cases, and said that he instructed the judges to try to resolve all such cases, and on March 1 there were 137, by July 31.
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