The state of the Montenegrin judiciary in some segments is still worrisome, but certain developments have been recorded. This was stated in the document "Analysis of selection procedures, promotion and determination of responsibility of judges in Montenegro in 2023 and 2024", which was done by the NGO Action for Human Rights (HRA).
HRA director Tea Gorjanc Prelevic claims that, unlike in the previous period, judges in Montenegro are now "elected and promoted in accordance with the ranking list, according to criteria and sub-criteria".
"We have reached a modern edition of the Judicial Council with the most frequently updated website, which conducts interviews and elects judges without scandals."
However, she says, it is important now that the Judicial Council, due to its entry into the European Union, meets the expectations of the European Commission as quickly as possible and "ensures a transparent, up-to-date, independent, but also responsible judiciary, resistant to political and other inappropriate influences".
"From the experience with chapter 31, which despite many expectations was not closed, it can be seen that joining the EU will not be just a formality. One should prepare for the fact that, perhaps due to the bad atmosphere created by the politicians, any omission can become a reason for delaying entry into the European Union. The Judicial Council should not provide a single such reason," said Gorjanc Prelevic, at yesterday's meeting where the report was presented.
In the analysis of the HRA from the beginning of 2023 to November 2024, the termination of office for 51 judges was noted, that NGO announced. In the same period, 50 candidates for judges were selected who were sent for training, 46 judges, 16 judges advanced to a higher court, and 12 court presidents were elected.
However, it was determined that the Judicial Council did not implement the procedures for selecting candidates for judges in a timely manner, that it took an average of six months from the announcement of the advertisement to the referral to training, that is, four months before the candidates were selected as judges after completing the training.
"This lack of timeliness has significant consequences, given the chronic shortage of judges in the Montenegrin judiciary," the HRA document states. That is why "referring judges to temporary work in courts with a large backlog is a measure that should be used more and for which judges should be additionally motivated by prescribing new incentive measures".
The President of the Judicial Council, Radoje Korać, said that this and other criticisms of the work of that body are welcome. He claims that filling the positions of judges is not an easy process, especially since the interest in those positions is weaker than in the earlier period.
"We don't have a base from which to choose judges. We don't have much choice. We do not have a large number of candidates from which to choose the best. "We are often in a situation where we choose only those who have applied because they meet the minimum requirements, and sometimes a smaller number of candidates apply than what was requested," says Korać.
In order not to paralyze the courts, he proposes the engagement of the so-called substitute judges.
"These are the same judges as the others, except that they would have the obligation to be assigned by the decision of the Judicial Council where a judge is absent for a certain period of time. If such a judge were to go from court to court, then in 15 or 20 years he would have the right to choose to remain as a permanent judge in a certain court," explains Korać. He adds that this requires changes in the law, but also that the state provides apartments for those judges.
Miodrag Iličković, a member of the Judicial Council, also agrees with him. "We ask the question - is it expensive? It is most expensive when there are no judges. It is the most expensive. So we have to think about those categories," he says.
Vladimir Čejović, a lawyer and representative of the Bar Association of Montenegro, sees the solution in hiring judges who work in misdemeanor courts, and that there should be a replacement for those who have left the higher courts.
"The Law on Misdemeanors today is practically the Law on Criminal Procedure in miniature... So it might be wise to think about that base that is missing at the moment," says Čejović.
Mirjana Popović, the president of the Court of Appeal, is of the opinion that one should not skip court instances and that it could be demotivating for judges of higher courts. She advocates for the "opening" of the Montenegrin judiciary.
"In the way that lawyers from other professions can apply for judges of the higher, Appellate and Supreme Courts... I think that in the legal profession, the NGO sector, in the economy we have great lawyers who can contribute to the work of the courts", she said.
In the HRA analysis, it was assessed that not all decisions of the Judicial Council on the advancement of judges are sufficiently explained, and that the situation is similar during the election of court presidents.
Judge of the Special Division of the High Court in Podgorica, Vesna Kovačević, who is a candidate for judge of the Court of Appeal, said that when advancing, judges should not leave old cases to "heirs".
"We cannot allow the cases that we inherited from our older colleagues, which were brought to the very end, and we have now brought them to the very end, to leave them to a third judge. "It really wouldn't be fair to the accused and to the citizens who expect these trials to be completed within a reasonable time," she said.
The newly elected president of the Supreme Court, Valentina Pavličić, also spoke about the trial within a reasonable time. She stated the same as our foreign partners - the judicial system in Montenegro produces backlogs.
"There are a lot of challenges, a lot of problems, too. We tackled them. We will solve them, we will not accumulate them, leave them for other occasions. In that segment, I see and expect, first of all, logistical support from the other two branches of government. That each, within the framework of its competences, provides what is necessary for the Montenegrin judiciary to judge within a reasonable time", she says, emphasizing the importance of resisting any kind of pressure.
"We have to return the trials to the courtrooms. We can return them in such a way that there is no discussion about it either in restaurants, on roads, or in some political corridors. Let's justify that the judicial institutions are not fragile, but that they are stable, professional, resistant to all kinds of pressure from whoever it comes from," said the President of the Supreme Court.
That there are pressures, as written in the HRA announcement, is shown by numerous examples during the analyzed period. Most often, they are of a political nature, but verbal attacks and threats against judges have also been recorded, which jeopardizes the integrity and independence of the judiciary, it was stated in the document of the NGO. "The general political attacks by high state officials on the judicial branch of government are especially worrying. The Judicial Council has repeatedly reacted in such situations, but failures to react, i.e. with a delay, have also been recorded," the analysis reads.
However, as they state, what was announced by the member of the Judicial Council, Rade Ćetković, is encouraging. He says that soon we can expect the formation of a team that will promptly react in situations that require it.
"We are in the process of developing a protocol for the application of guidelines in crisis communication... There will be a body that will take care of the media space and react in all situations in which it deems it necessary... We believe that this will speed up the reaction and that it will be timely," he explained. Cetkovic.
Minister of Justice Bojan Božović said that problems in the judiciary are not only problems of that branch of government, but also legislative and executive. He used the opportunity to express his expectation that he will not be a member of the Judicial Council in the future, after the changes to the Constitution of Montenegro.
"We must continue or additionally make it more efficient to create conditions for better quality work. No one in this country can say that the conditions are satisfactory, let alone good. We have to say that we have a lot of problems and challenges, but I should also say that these are, for the most part, inherited problems, but not problems that should be an excuse for not solving them," explains Božović.
Code of ethics and disciplinary responsibility
In the analysis of the HRA, the problem of the functioning of the Commission for the Code of Ethics of Judges was noted. That body was blocked for 20 months due to the lack of a quorum, so it started deciding on cases from 2022 and 2023 only at the end of March 2024, the announcement reminds.
Since the reactivation of the Commission, 21 cases have been legally concluded, and only in two cases was an opinion given on the violation of the Code of Ethics. The HRA notes that the Commission would have to determine the factual situation more objectively, and not only, as so far, on the basis of the complaint and the statement of the judge against whom it was filed.
It was also recorded that from the beginning of 2023 until November 1, 2024, ten disciplinary procedures were initiated, and only in one case was the judge's responsibility established (this decision was not yet final in December). Three disciplinary proceedings (initiated in 2020 and 2021) were suspended because the judges resigned. Five procedures were initiated due to the same disciplinary offense – failure to provide data on assets and income. The responsibility of the judges was not determined in any of them, although the Agency for the Prevention of Corruption (ASK) previously determined that all of them violated the Law on the Prevention of Corruption (ZSK) because they did not submit accurate and complete information about their assets and the assets of their spouses. Also, the disciplinary prosecutor and the Disciplinary Council of the Judicial Council still insist on the position that failure to provide information on assets and income does not constitute a disciplinary offense if it is done once, i.e. if it is not a continuous violation of a legal obligation. "Such an interpretation violates the principle of responsibility for reporting assets and income and opens up the possibility of impunity for the most serious failures to report very valuable assets, provided that it is done only once," the HRA analysis concluded.
Miodrag Iličković, a member of the Judicial Council, is surprised by "a lot of applications for non-declaration of assets", but also by entering incorrect data.
"Judges are not exactly unknown people, so they can get away with something. In decisions, the practice must be changed, it is quite inconvenient, but something must be done", says Iličković.
His colleague in the Council, Rade Ćetković, says that the purpose of the disciplinary offense is to target the concealment of assets, and not to sanction the judge when he makes a mistake in the numbers when filling out the report on income and assets.
"We need to deal with things that have meaning and significance for the whole society, and not some mistakes... For those colleagues who do not submit such a report because of a technical error, but because of personal irresponsibility, I have no sympathy whatsoever," says Ćetković.
Maja Karas Bošković, from the Agency for the Prevention of Corruption, says that due to the current legal solution, all officials are now in an unequal position.
"For example, a decision will be submitted to the Judicial Council that one judge did not report 15 shares of 'Plantaž'. Even though those actions are not even worth 100 euros. And we will have to call the other one, if he forgot 800-900 euros, to correct it, make the correction. The law in that part is not equal and we proposed to change it," she stated.
The analysis also showed that complaints did not prove to be an effective tool for determining the responsibility of judges for illegal work, because in two cases when they were assessed as well-founded, they did not lead to the determination of responsibility, because the judge resigned and the proceedings were suspended.
"He avoided determining responsibility. He had an enviable number of cases in which he did not act, in which he did not respect the legal deadlines. We could not see that he gave a valid explanation. In the end, the Judicial Council confirmed this by initiating two proceedings, but this now raises the question of the responsibility of the president of the court, who in some way tolerated all this even though she was informed about it", explained lawyer Veselin Radulović.
It was also stated that it is unclear when the decision on a complaint should be made by the Complaints Commission, and when by the Judicial Council, and that competences should be specified. Judge Ćetković, who is the president of the Complaints Commission of the Judicial Council, said that he agrees, that the HRA report was like "reading his mind" for him, and that he will propose the same at tomorrow's meeting of the commission working on amendments to the Rules of Procedure.
The HRA also suggested that decisions be made more quickly on complaints that citizens send to the Judicial Council (now the deadline is four to six months), as well as that disciplinary procedures be carried out within a maximum of one year, instead of two or three years, when the statute of limitations occurs or the judge ceases to hold office due to fulfilling the conditions for retirement.
Ćetković says that the effectiveness of the work of the disciplinary commission can be achieved if the disciplinary prosecutor gains independence and is the only one authorized to examine all received complaints and initiate disciplinary proceedings, while the current solution, according to which a member of the Judicial Council is the only one to submit a proposal for determining the disciplinary responsibility of a judge, acts as " the caddy is suing you, the caddy is judging you".
"It was the proposal of the Judicial Council that the prosecutor dedicate himself to the work professionally, because that is the key to approach something thoroughly, actively and to satisfy the efficiency in full capacity," explains Ćetković.
He says that professionalization is also necessary in the Judicial Council itself, i.e. that members do only that work.
"Objectively, we give our maximum, which, when the results are put on the table, is obviously not enough. That's a fact," says Ćetković.
He stated that the analysis of the HRA will help the Judicial Council to improve practice, but also to articulate requests to the executive and legislative authorities so that they understand that what the members of the Council are saying is not only their statement, but also that of the NGO sector, which "looks at the situation objectively and impartially".
The draft report of Action for Human Rights is available here. They say that the report will soon be supplemented with information and conclusions from the round table and published in the "Publications" section.
The report was prepared within the framework of the project "Judicial reform to the rule of law" implemented by HRA with the support of the regional project "SMART Balkans - Civil society for a connected Western Balkans", implemented by the Center for the Promotion of Civil Society (CPCD) with partners, and financially supported by the Ministry of Foreign Affairs affairs of the Kingdom of Norway.
Bonus video:
