In 11 basic courts, the Court of Appeal and the Commercial Court, 39 judges are currently missing to function at full capacity. On the other hand, in these judicial instances, in the previous four years, not a single judge was relieved of duty, although as many as 77 people left these courts. Despite the fact that 52 judges were hired in this period, staffing is worse than on January 1, 2020.
Such devastating statistics best show why the judicial branch is the weakest link in the government system, which threatens to collapse all efforts aimed at comprehensive reform of society.
"The fact is that Montenegrin courts lack a significant number of judges, almost at all levels. The reasons for this are various, starting from the insufficient interest of young lawyers to work in the court (they choose easier, more tempting, and often better-paid professions), previously valid legal provisions for the selection of judges of basic courts, the duration of the initial training for candidates for judges, and Finally, the lack of interest of young lawyers to respond to advertisements and work in courts in the north of the country, points out prof. Ph.D Radoje Korac, president of the Judicial Council.
He believes that an additional aggravating circumstance was the fact that before the amendments to the Law on the Judicial Council and Judges came into force, advertisements were advertised throughout Montenegro, and the practical part of the training was conducted only in the Basic Court in Podgorica, which somewhat discouraged young family people from responding to advertisements.
"Until recently, the training of judges for basic courts lasted 18 months, now it has been shortened to 12 months, and they can do the practical part in the courts where the candidates work. Also, the selection of judges at the level of Montenegro, that is, applying for advertisements without the candidates knowing which court they will be assigned to after completing the initial training, discourages young people from applying for advertisements for candidates for judges. Judges from one region have a hard time deciding to work in another region of the country," explains Dr. Korać.
The President of the Judicial Council points out that there is no interest in working in courts in the north, which is the reason for not filling vacant judicial positions. In practice, Korać adds, we also have situations where young judges assigned to some of the courts in the north of the country, choose to go on sick leave in a short period of time or even submit a request for termination of office.
Unfavorable legal solutions
In the Basic Court in Bijelo Polje, the decision on the number of judges in the courts stipulates that the judicial function is performed by the president of the court and 11 judges. The lack of two judges in this court is not, however, the only problem. As the president of the court points out Gorica Đalović, two judge positions were filled only on October 24 this year, while two judges will leave the court soon.
"The reasons why there is still a pronounced deficit of judges in all courts in Montenegro, including this one, are numerous. They primarily concern unfavorable legal solutions that were in force until June of this year. The advisory staff was not stimulated to apply as candidates for judges, which led to the outflow of quality staff from the judiciary," explains Đalović.
In the Basic Court in Berane, according to the president of the court Ivan Došljak, since the end of 2017 there has been a problem of vacant judicial positions. From January 1, 2020 to November 1, 2024, five judges left this court. The reasons, according to Došljak, are the selection for a judge of the High Court in Bijelo Polje, a voluntary transfer, the acquisition of conditions for an old-age pension and personal request.
However, the situation is not better in the south of Montenegro either.
The main reason is the lack of judges in the Basic Court in Kotor, as the president of this court points out Srdjan Klikovac, first of all, the legal solution provided by the Law on the Judicial Council and Judges since 2014, where the procedure for electing judges was arranged, was extended to a minimum of seven years.
"The new Law on the Judicial Council and Judges shortened the training of candidates for judges from 18 to 12 months, but I think that period is also long, considering the large number of missing judges. The reason for the shortage of judges lies in the fact that the judge's salary is very low, that the judge is more or less unprotected, and that since 2015, no government, together with the Supreme Court of Montenegro, has done anything to implement the Law on Courts, i.e. those provisions concerning the security of the courts, and therefore the courts in the interior, outside of Podgorica, are completely unsecured", said Klikovac.
The main reason why the Basic Court in Bar currently lacks four judges, according to the president of the court Tamara Spasojevic, is that the Basic Court in Bar in this period, and earlier, was not staffed in accordance with the systematization, that is, it did not work in full composition, which foresees 11 judges.
"At the time when three judges from the Basic Court in Bar advanced to the High Court, and one judge retired, there was a period when only four judges and the president of the court worked. In the meantime, only two judges were elected to such a reduced staff," Spasojević points out.
She points out that the influx of cases is large and only seven judges, two of whom do not work continuously due to illness, are unable to schedule trials within the legal deadlines, which ultimately affects the number of unfinished cases.
"I believe that the problem of the lack of judicial personnel could be solved in a way that would reduce the duration of the training of candidates for judges, which lasted up to almost a year and a half, and now one year. Training for six months would be quite satisfactory, because these are persons who are trained practically and without training to judge", according to the president of the Basic Court in Bar.
On January 1, 2020, the Commercial Court of Montenegro worked at full capacity with 15 judges and the president of the court. Almost four years later, the Commercial Court has 12 judges and the president of the court, while the initial training for two candidates for the position of judge is underway, and the selection of one more candidate is expected according to the advertisement published by the Judicial Council.
The Court of Appeal is in the period 2020-2024. year, 16 judges left. The Judicial Council determined the termination of judicial function for six judges due to retirement, seven judges were elected to the Supreme Court, and three judges were determined to terminate judicial function at personal request.
Three judge positions are currently vacant in this court, and by the end of the year, one more judge is expected to fulfill his right to an old-age pension.
Dismissal only for the most serious offenses
In addition to the lack of judicial staff, it seems that the sanctioning of unprofessional work, irresponsible behavior or even abuse of the judicial function is no less a problem. In 11 basic courts, the Court of Appeal and the Commercial Court, from the beginning of 2020 until November of this year, not a single judge was dismissed. At the moment, out of about 200 judges who perform this duty or have worked in these courts at one time, only two judges of the Commercial Court have been suspended due to initiation of criminal proceedings.
"Dismissal is a disciplinary sanction that can be imposed for the most serious disciplinary violations, which must be imposed in a special type of procedure conducted before the Disciplinary Council. To date, we have not had such decisions. For now, we cannot comment on the criminal proceedings initiated against certain judges", explains Dr. Radoje Korać.
A way out of a somewhat absurd situation in which we have, on the one hand, an almost social consensus about, first of all, political influence on the judiciary and numerous abuses of the judicial function, and the reality that the judiciary has not experienced a fundamental transformation, at one point a vetting system was offered as a way out the process of thoroughly vetting and evaluating an individual to determine their credibility, suitability, integrity, or suitability for a particular task, position, collaboration, or decision-making role.
"We accept vetting as a process of independent and competent evaluation of the ethical and financial integrity of the holders of judicial office. Decision-making implies, as has been repeatedly emphasized, in addition to constitutional changes, a thorough analysis in order not to hamper the process of judicial activity, bearing in mind the lack of personnel in the courts and the insufficient base for the selection of new judges. It seems that the proposal of the phased vetting model can be the basis for formulating a decision on this model", says Dr. Korać, president of the Judicial Council.
In the political structures, after the changes in the August 2020 elections, however, the issue of vetting remained on mostly verbal support without any concrete steps towards this or any other mechanism that would enable a more efficient and responsible judiciary.
In that intermediate space, between the insufficient capacities of judicial institutions and individuals who burden the independent position of courts and judges with their work biographies, Montenegro is increasingly losing its potential to step towards full membership in the European Union through overall reforms.
The Commercial Court has been vacant for four years
On January 1, 2020, the Commercial Court of Montenegro worked at full capacity with 15 judges and the president of the court. Almost four years later, the Commercial Court has 12 judges and the president of the court, while the initial training for two candidates for the position of judge is underway, and another candidate is expected to be selected according to the advertisement published by the Judicial Council.
In the course of 2020, the court achieved an enviable promptness of even 101,77%, however, starting from the middle of 2021, numerous circumstances occurred in the Commercial Court that greatly limited promptness, and therefore threatened the legality of the court's work, that is, the right of the parties to decide on the protection of their rights within an appropriate period.
Namely, after July 2021, until July 2024, two judges left the Commercial Court due to promotion, for two judges the position ended at personal request, while for eight judges the position of judge ended due to fulfilling the conditions for old-age pension. Also, two judges, one of whom was the president of the court, and one candidate for judge, were suspended due to initiation of criminal proceedings.
All the mentioned facts had an evident impact on the timeliness of the court's work, so the total number of pending cases increased from 1298 at the end of 2020 to 3531 pending cases at the end of 2022.
"Due to the large number of pending cases, and bearing in mind the fact that three judicial positions were unfilled due to the conduct of criminal proceedings against two judges and one candidate for judge, and that criminal proceedings can last for several years, I submitted an initiative to the Judicial Council to increase the number judge in the Commercial Court. The aforementioned initiative resulted in the decision of the Judicial Council at the session of May 12, 2023, which increased the number of judges of the Commercial Court to 18 judges and the president of the court. With the same decision, it was actually achieved that the actual number of judges in the court was equal to the number that was defined by the earlier Decision on the number of judges in the courts, and which number in the previous period enabled the legal and up-to-date performance of the judicial function in the Commercial Court, he explains Mladen Grdinić, president of the Commercial Court.
In the meantime, in the period from July 2022, nine judges of the Commercial Court and the president of the court were elected, so that on November 1, 2024, 12 judges and the president of the court will act in the Commercial Court, while the initial training for two candidate for judge, and one more candidate is expected to be selected according to the advertisement published by the Judicial Council.
"From all of the above, it is certain that not all judge positions will be filled by the middle of next year, which means that from 2021 to the middle of 2025, i.e. four full years, the court has not and will not work at full capacity, which had as a result of which the number of pending cases increased by 130 percent", concludes Grdinić and adds that in the period from January 01.01.2020, 01.11.2024. until 10. 10 judges left the Commercial Court of Montenegro, and two judges were suspended, while XNUMX judges and the president of the court were elected in the same period.
The referees should give their opinion on the vetting
"The departure of judges from the courts is not something that happened suddenly, but it is a process that started in the 90s of the last century. Data on a large number of unfilled judicial positions are the result of very poor planning and management of the judiciary in a rather long previous period," he said. Vladimir Čejović, a lawyer from Podgorica.
He believes that the number of unfilled judges' positions is already frightening, but the fact that the competent authorities are not able to propose a solution, but continue according to the established scheme, "which is where we are now," is even more shocking. The situation regarding the number of judges can, according to Čejović, be resolved practically overnight, with the good will and coordination of competent bodies and authorities.
"I am of the opinion that in this situation one should be radical. To explain to EU experts that this experiment of constant training did not bear fruit. It means to open the doors of the court wide, so that lawyers and other lawyers can be chosen as judges, to break with the long practice of internships, constant training and long exhausting waiting in the corridor for selection to the position of judge. And finally, the state is the employer of the judiciary, it should to "bribe" him to work for her (with terms, salary, safety, security, housing...) as a guardian of the Constitution and the law, and not to be the last hole in the pipe to any authority or money for bribery", explains Čejović and points out that all judges should be asked if they are in favor of vetting.
"That question should be in writing and an answer should be sought individually from all the judges. By signing the answer with yes or no, for me, the question of vetting would be over, as well as the question of whether someone can or cannot be a judge", said lawyer Vladimir Čejović.
The research was carried out within the project of the NGO MANS "For a more transparent and responsible judiciary"
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